Jim Ilief Kolaroff v R No. Sccrm-97-97 Judgment No. 6214 Number of Pages 11 Criminal Law

[1997] SASC 6214

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

MATHESON, OLSSON AND LANDER JJ

Criminal law - appellant convicted on information of Acting Deputy Director of Public Prosecutions (Cth) of two breaches of Controlled Substances Act - whether information invalid - whether Commonwealth Director can put a person on trial in South Australia in the Supreme Court for a state offence - whether, and to what extent, s275 of the Criminal Law Consolidation Act 1935 and s7(1)(a) of the Director of Public Prosecutions Act (SA) can be read together - reference to Hansard - extent of power of Director of Public Prosecutions (SA) to delegate to any suitable person under s6A of the latter Act - ruling that information is valid and appeal dismissed. Carltona Limited v Commission of Works [1943] 2 All ER 560; Public Service Association v South Australia (1997) 190 LSJS 52; O'Reilly v State of Victoria Commissioners
(1983) 153 CLR 1; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; Aronson and Dyer: Judicial Review of Administrative Action (1996) ; Re Reference under s11 of Ombudsman Act 1976 for an advisory opinion; ex parte Director General of Social Services (1979) 2 ALD 86; Owen v State of South Australia (1996) 66 SASR 251, applied.

ADELAIDE, 13 June 1997 (hearing), 1 July 1997 (decision)

#DATE 1:7:1997

#ADD 9:7:1997

Appearances:

Appellant:

Counsel: Mr M L Abbott QC with him Mr D Agresta

Solicitors: Patsouris & Associates

Respondent R:

Counsel: Mr B R Martin QC with him Ms E M Bolton

Solicitors: DPP (Cwlth)

Intervener Ag (Sa):

Counsel: Mr B M Selway QC with him Mr C D Bleby

Solicitors: Crown Solicitor (SA)

Order: appeal dismissed.

MATHESON J

On 1 March 1995, the appellant was convicted by a jury in the District Court of two breaches of the Controlled Substances Act 1984. Because of the importance of the wording of the information, I now quote it in full: "South Australia

1994

DIRECTOR OF PUBLIC PROSECUTIONS v JIM ILLIEF KOLAROFF

COURT OF TRIAL

DISTRICT CRIMINAL COURT, ADELAIDE

AUGUST SESSIONS

The Information of SUE ANN RAYMOND, Acting Deputy Director of Public Prosecutions (Commonwealth) who prosecutes in this behalf for the Director of Public Prosecutions for the State of South Australia by virtue of Section 6A of the Director of Public Prosecutions Act 1991 and by virtue of the instrument signed by the said Director of Public Prosecutions which is dated the 12th day of October 1993, informs the Court that

JIM ILLIEF KOLAROFF

is charged with the following offences

STATEMENT OF OFFENCE

Count 1. POSSESS PROHIBITED SUBSTANCE FOR THE PURPOSE OF SALE (Section 32(1)(e) Controlled Substances Act 1984)

PARTICULARS OF OFFENCE

JIM ILIEFF KOLAROFF on about the 9th day of April 1994 at West Lakes Shore in the said State, did have in his possession a prohibited substance, namely 7.5 grams of heroin, for the purpose of sale to another person.

STATEMENT OF OFFENCE

Count 2. POSSESS PROHIBITED SUBSTANCE FOR THE PURPOSE OF SALE (Section 32(1)(e) Controlled Substances Act 1984)

PARTICULARS OF OFFENCE

JIM ILIEFF KOLAROFF on about the 9th day of April 1994 at West Lakes Shore in the said State, did have in his possession a prohibited substance, namely 0.15 grams of heroin, for the purpose of sale to another person"

Some argument turned on the wording of the back page of the Information in question. It contained the following words in the middle of the right-hand column thereof: "INFORMATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)"

It was signed at the foot of the right-hand column by Sue Raymond, and underneath her signature the following words appear: "SUE RAYMOND for and on behalf of the Commonwealth Director of Public Prosecutions 11th Floor, Sun Alliance House 45 Grenfell Street ADELAIDE SA 5000 Law Firm Code: L778"

On 12 May 1995 the appellant was sentenced to six years imprisonment with a non-parole period of four years. On 24 April 1997 he was granted an extension of time within which to appeal, and given leave to appeal on the following ground: "The information presented in this matter was invalid.

Particulars

[1] The Commonwealth Director of Public Prosecutions cannot put a person upon their trial in this State in the District or Supreme Court for a state offence;

[2] Only the Director of Public Prosecutions, acting ex officio, can put a person on their trial in the District or Supreme Courts in this State for a state offence;

[3] The power to put a person on their trial in the District and Supreme Courts for state offences is a non-delegable power."

Section 17 of the Commonwealth Director of Public Prosecutions Act 1983 ("DPP Act (Cth)") reads: "17. Where a member of the staff of the Office, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences."

On 12 April 1990 the then Attorney-General for the Commonwealth, Mr Michael Duffy, consented to Sue Ann Raymond holding an appointment to prosecute offences against the laws of South Australia. The consent read: "DIRECTOR OF PUBLIC PROSECUTIONS ACT 1983

17

I, MICHAEL JOHN DUFFY, the Attorney-General of the Commonwealth, pursuant to section 17 of the Director of Public Prosecutions Act 1983, HEREBY CONSENT to Sue Ann RAYMOND holding an appointment to prosecute offences against the laws of South Australia.

DATED THIS 12th day of April 1990

(Signed) Attorney-General"

Section 275 of the Criminal Law Consolidation Act 1935 ("the CLCA"), prior to its amendment in 1991, read: "275. (1) Any person may be put upon his trial at any criminal sessions of the Supreme Court or District Court, for any offence, on an information presented to the Court in the name and by the authority of the Attorney General.

(2) Every rule of law and enactment for the time being in force in the State relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information so presented."

The Director of Public Prosecutions Act 1991 ("the DPP Act (SA)") amended s275 of the CLCA by substituting the words "Director of Public Prosecutions" for the words "Attorney General" (see Schedule 2 thereof). It is necessary to quote the following provisions of the DPP Act (SA) in their present form: "6.(1) The Office of the Director of Public Prosecutions is established.

(2) The office consists of -

(a) the Director of Public Prosecutions; and

(b) any persons assigned under the Government Management and Employment Act 1986 to work in the Office.

(3) The Director has the administration and control of the Office.

6A. The Director may, by instrument in writing, delegate to any suitable person any of the director's powers or functions under this Act but such a delegation -

(a) is revocable at will; and

(b) does not prevent the Director from acting personally in the matter.

7.(1) The Director has the following powers:

(a) to lay charges of indictable or summary offences against the law of the State;

(b) to prosecute indictable or summary offences against the law of the State;

(c) to claim and enforce, either on behalf of the Crown or other persons, civil remedies that arise out of, or are related to, prosecutions commenced by the Director;

(d) to take proceedings for or in relation to the confiscation of profits of crime;

(da) to institute civil proceedings for contempt of court;

(e) to enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases;

(f) to grant immunity from prosecution in appropriate cases;

(g) to exercise appellate rights arising from proceedings of the kind referred to above;

(h) to carry out any other function assigned to the Director by regulation;

(i) to do anything incidental to the foregoing.

(2) - (5) ...

(6) Where an information or complaint charging an offence is apparently signed by the Director or a person acting on the Director's authorisation, the information or complaint will, in the absence of proof to the contrary, be taken to have been duly signed by or on behalf of the Director.

(7) In any legal proceedings, the Director may appear personally or may be represented by a member of the staff of the office who is a legal practitioner or by counsel or solicitor (including the Crown Solicitor or the Solicitor-General).

(8) ..."

When the DPP Act (SA) was originally enacted, there was no s6A, but subs(4) of s6 read: "(4) The Director may delegate to any member of the staff of the Office any of the Director's powers or functions under this Act but such a delegation -

(a) is revocable at will;

and

(b) does not prevent the Director from acting personally in the matter."

Section 6A, supra, was inserted in the Act by Act No 34 of 1993 which came into operation on 29 July 1993.

Pursuant to s6A, the Director of Public Prosecutions, Mr P J L Rofe QC, delegated certain powers to Sue Ann Raymond. The delegation read as follows: "SOUTH AUSTRALIA

DIRECTOR OF PUBLIC PROSECUTIONS ACT

PURSUANT to the provisions of Section 6A of the Director of PublicProsecutions Act 1991 ('the said Act') I PAUL JOHN LAWRENCE ROFE Q.C., Director of Public Prosecutions for the State of South Australia, DO HEREBY DELEGATE to SUE ANN RAYMOND, Assistant Deputy Director of Public Prosecutions (Commonwealth - Adelaide Office), the following powers vested in me by the said Act, namely the powers:

- to lay charges of indictable or summary offences against the law of the State;

- to prosecute indictable or summary offences against the law of the State;

- to enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases;

- to do anything incidental to the foregoing.

DATED the 12th day of October 1993.

Signed P.J.L. ROFE Q.C. Director of Public Prosecutions."

I draw attention to the fact that the powers delegated are those specified in (a), (b), (e) and (i) of s7(1) of the DPP Act (SA) and note that the appellant has not suggested that Ms Raymond was not a "suitable person".

Mr Abbott QC, counsel for the appellant, argued that the power given to the Director of Public Prosecutions in s275 is non-delegable. He argued that an information must be laid in the name of and by the authority of the South Australian Director of Public Prosecution. He stressed the fact that s275 speaks of "any criminal sessions of the Supreme Court or District Court", and contrasted the language of s7(1)(a) of the DPP Act (SA) with that of s275. He argued that the former provision should be construed as referring only to the laying of charges in a Magistrates Court. He stressed that the delegation authorised by s6A of the DPP Act (SA) related to the Director's powers "under [that] Act". He argued that the power to put a person on trial in the Supreme Court or District Court is derived solely from s275 of the CLCA, and that there is no power of delegation contained in that section. It is convenient to mention here that Williams J rejected similar arguments in the matter of Director of Public Prosecutions v Ridgeway SCCRM 95-365 on 17 January 1996.

The court heard interesting arguments on the history of the procedure for the commencement of criminal proceedings both in England and in this and other Australian states, from Mr Abbott and also from Mr Selway QC, Solicitor General, who intervened on behalf of the Attorney General for South Australia in support of the respondent, pursuant to s9 of the Crown Proceedings Act 1992 (SA). It is the more recent history in this State that I have found most relevant.

The Solicitor General pointed out that when, prior to 1991, s275 of the CLCA referred to "the Attorney-General", those words were to "be construed as applying to the person for the time being acting in the office, or discharging the duties of the office". (See Acts Interpretation Act 1915 (SA) s35.)

The Solicitor submitted correctly, in my view, that prior to its amendment s275 did not require that the Attorney General personally authorise the laying of every information. He could, and did, exercise his functions through agents. See Carltona Limited v Commission of Works [1943] 2 All ER 560 at 563, Public Service Association v South Australia (1997) 190 LSJS 52 at 52 and 71, O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11, and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, where at p38, Mason J (as he then was) said:

"The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him."

I agree with the Solicitor that the ability at common law for officers to act through agents gives meaning to the words "with the authority of" in s275 CLCA.

The Solicitor pointed out that there is a fundamental difference between acting through agents and appointing delegates. He referred to Aronson and Dyer, Judicial Review of Administrative Action (1996) at pp338-343, and to the case entitled Re Reference under s11 of Ombudsman Act 1976 for an advisory opinion; ex parte Director General of Social Services reported in (1979) 2 ALD
86. It was a decision of Brennan J (President), as he then was, sitting in the Administrative Appeals Tribunal. In that case an applicant for Social Service benefits sought a reconsideration of a refusal to grant benefits. In a letter to him, P, a senior officer of the Society Security Department, stated that he had reviewed the applicant's case, but not being satisfied that all requirements for eligibility for benefit had been complied with, the earlier decision not to pay benefits was confirmed. P signed the letter "L J Daniels" and placed his own initials next to the signature. L G Daniels was the Director-General of the Social Security Department at the time. It was agreed that Mr Daniels had taken no part in the reconsideration of the applicant's claim.

Section 12 of the Social Services Act 1947 provided that "the Director General may by writing under his hand, delegate to the Deputy Director General ... or to any other officer, all or any of his powers and functions" under the Act. Section 14 provided that "whenever it appears to the Director General that sufficient reason exists for reviewing a determination ... the Director General may review the determination ..." The Director General had delegated to P his power under s14 of the Act. Brennan J held that in writing the letter, P was acting in his capacity as delegate of the Director General pursuant to s14 of the Act, and he should therefore have exercised the power in his own name, and his letter constituted an invalid exercise of his delegated powers.

At pp93-94 Brennan J said in a passage most pertinent to the present appeal: "An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes the power (whom I shall call 'the authority'). Validity is thus dependent upon the identity of the authority and the doer of the act.

Where the power is not delegable, but the authority could not have been expected by the Parliament to have exercised it personally in the multitude of instances when its exercise would be required, it has been held that some classes of acts done by others for and on behalf of the authority should be treated as though they were the acts of the authority ...

The extent to which an authority may commit to other officials the performance of duties is primarily dependent upon the nature of the power to be exercised. In Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723, the court (Sugerman, Else-Mitchell and Moffitt JJ) at 733 said in reference to the maxim delegatus non potest delegare: 'As a matter of the construction of the statute conferring the power, the application of the maxim, and its extent, must be considered with due regard to the purpose and objects of the statute, the character of the power which is conferred, the exigencies of the occasions which may arise with respect to its exercise, and other relevant considerations.'

Where acts are clothed with the character of acts done by the authority, they have the legal effect of acts done personally by that authority. In R v Skinner [1968] 2 QB 700, Widgery LJ (as he then was) said at 707: 'It is not strictly a matter of delegation; it is that the official acts as the Minister himself and the official's decision is the Minister's decision.'

It is often difficult to ascertain whether a given act is one which the authority may authorize another to perform on his behalf (see de Smith, Judicial Review of Administrative Action, 3rd ed, pp268-72), and if an act is not one which may be so authorized, it cannot be effective to exercise the statutory power: Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551.

Where the relevant power is not delegable, the only acts by which the power can be exercised are the acts of the authority and acts which, having regard to the nature of the power, the authority may authorize another to perform on his behalf and which have been so authorized.

But where the relevant power is delegable and has been delegated, the delegate may - without further authorization - act in effective exercise of the power. His acts are not treated as acts vicariously done by the authority. He is not an agent to exercise the authority's power; he may validly exercise the power vested in him. The distinction is brought out by Scott LJ in Blackpool Corporation v Locker [1948] 1 KB 349 at 377 in rejecting a submission that the relationship of principal and agent existed between the Minister and a local council to which he had delegated certain powers: 'In my opinion that view of the legal relationship between them is radically mistaken. As I have already said, the circulars contained (together with much explanatory matter) ministerial legislation with statutory force, transferring to the local authorities concerned the Minister's legal power to override the common law rights of individual members of the public, for the purposes defined in the circulars, and limited by their conditions.'

There is a confusing similarity between the exercise of an authority's power by the authorized acts of another, and the exercise by an authority's delegate of the power delegated to him. In either case the act - whether the act of the authorized person or the act of the delegate - is a valid exercise of power. Nonetheless, the sources of validity are different, though it must be said that the term 'delegation' has frequently been used to describe either case without distinguishing between them. For some purposes, a distinction must be made.

Where an authority has not delegated his power but he has authorized another to act in exercise of his power, the act is to be done in the name of the authority: London County Council v Agricultural Food Products Ltd [1955] 2 QB 218 per Romer LJ at 224. But where a delegate is exercising the power delegated to him, he may validly exercise that power in his own name: Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 562, 611."

What has particularly impressed me in considering this appeal is the fact that at the very time when Parliament enacted the DPP Act (SA) 1991, it amended s275 of the CLCA and did so by the same Act. In my opinion, it must have intended that s275 of the CLCA and s7(1)(a) of the DPP Act (SA) should be read together, and, in my opinion, they can be read together. As the Solicitor conceded, it would have been clearer if Parliament had said "under this or any other Act" in enacting s6A instead of saying "under this Act". However, I have reached the conclusion that s275 must be read so that the words "Director of Public Prosecutions" therein mean "Director of Public Prosecutions or delegate under 6A"

As he was entitled so to do, (see Owen v State of South Australia (1996) 66 SASR 251), the Solicitor derived assistance for his submission from Hansard of 31 March 1993. He referred the court to the second reading speech of the then Attorney General, the Hon C J Sumner, at p1817. The Attorney General said: "That this Bill be now read a second time.

This Bill makes a number of amendments to Acts within, or relevant to, the Attorney-General's portfolio.

DIRECTOR OF PUBLIC PROSECUTIONS ACT 1991

The Director of Public Prosecutions Act came into operation on 6 July, 1992. The Director has pointed out a deficiency in the Act.

For some years there has been an agreement of mutual sharing between the States and the Commonwealth of powers to lay charges and powers incidental thereto, e.g. amendment, termination etc. These powers were formerly delegated by the Attorney-General to the Commonwealth Director of Public Prosecutions, the Deputy Director and his two senior officers in South Australia. The Director of Public Prosecutions is anxious for the arrangement to continue.

The Director of Public Prosecutions Act as currently worded only permits delegations to staff of the office of the Director of Public Prosecutions. There is no provision for the powers of the Director of Public Prosecutions to be delegated to those outside the office. Therefore the Director cannot delegate his powers to lay charges etc to the Commonwealth Director of Public Prosecutions. There is provision for the Director of Public Prosecutions to instruct counsel and these provisions have been utilised in the interim to enable him to instruct officers of the Commonwealth Director of Public Prosecutions to prosecute State matters but such an arrangement is not a satisfactory long term solution. Therefore, Part 2 of the Bill amends the Act to enable a delegation to 'any suitable person'. The Bill provides that delegation must be in writing."

As Mr Martin QC, Director of Public Prosecutions (Cth) put it, the success of Mr Abbott's submissions would defeat the obvious purpose of Parliament. I also agree with him that there is no proper basis for restricting the ordinary and natural meaning of the words "to lay charges" in the manner suggested by Mr Abbott. Further, the argument overlooks sub par(b) of s7(1). There is no proper basis for confining that sub para to prosecuting offences in the Magistrates Court.

Mr Martin referred to s281(1) of CLCA which provides that "every objection to any information for any formal defect apparent on the face thereof shall be taken ... before the jury is empanelled and not afterwards". He also referred to CLCA s277(2) which provides:

"Notwithstanding any rule of law or practice, the information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Part."

He referred to Rule 1(3) contained in Schedule 3 to the CLCA which refers to the "back of every information". I am not persuaded that there was any real conflict between the back of this information and the information itself, but if that is incorrect, it is the information itself that matters, not its backsheet. The information was legitimately presented in the name of and by the authority of the delegate of the Director of Public Prosecutions (SA).

I am not sure whether the consent given by the Attorney-General of the Commonwealth to Sue Ann Raymond, or the delegation by Mr Rofe to her, were strictly proved at the trial herein, although Mr Abbott did not take any point thereon. However, even if they were not strictly proved, I consider the presumption of regularity applied and there was no attempt to rebut the presumption.

I would dismiss the appeal.

OLSSON J

I agree.

LANDER J

I agree with the reasons of Matheson J. I desire to add only these brief remarks.

Section 6A of the Director of Public Prosecutions Act 1991empowers the Director to delegate to any suitable person any of the Director's powers under that Act.

Pursuant to s7 of the Act the Director has power inter alia: (a) to lay charges of indictable or summary offences against the law of the State and (b) to prosecute indictable or summary offences against the law of the State.

The Director therefore can delegate "to any suitable person" the power to lay charges of indictable offences and to prosecute indictable offences against the law of the State.

An indictable offence may either be a major indictable offence or a minor indictable offence [s3 Acts Interpretation Act; s5Summary Procedure Act].

Where a person is charged with an indictable offence an information may be laid in the Magistrates Court [s101 Summary Procedure Act]. If a person is charged with a minor indictable offence and does not elect to be tried in a superior court to the Magistrates Court the charge will be dealt with in the same way as a charge of a summary offence. If the person is charged with a major indictable offence or elects for trial in a superior court in the case of a minor indictable offence the Magistrates Court will conduct a preliminary examination. The person charged may then be committed to the superior court for trial [s107(3)(b) Summary Procedure Act].

Mr Abbott QC's argument was that the Director of Public Prosecutions Act empowered the Director to lay an information in the Magistrates Court but gave no power to the Director, after committal to lay an information in the Supreme Court or District Court. Moreover, so it was argued, the Director could not, pursuant to s7 lay an information ex officio in the Supreme Court or District Court. Any power to lay an information after committal or ex officio was derived solely from s275 of the Criminal Law Consolidation Act.

That argument would give rise to curious results. First it would mean, notwithstanding the clear words of s7 of the Director of Public ProsecutionsAct the Director is not empowered by that Act to lay charges of indictable offences in the Supreme Court or District Court. That is because, so it was argued, the power is derived from s275 of the Criminal Law Consolidation Act alone.

Secondly it would mean that whilst s7 of the Director of PublicProsecutions Act gave the Director of Public Prosecutions no power to lay charges it was the sole source of power to prosecute the indictable offences laid under the other Act.

In my opinion to arrive at that result is to torture the language of s7 of the Director of Public Prosecutions Act. There is no reason to read the head of power under s7 as limited to laying informations in the Magistrates Court. That would be to ignore the fact that all major indictable offences and some minor indictable offences are prosecuted in the superior courts.

The two sections can be reconciled by viewing s7 of the Director of PublicProsecutions Act as giving the Director of Public Prosecutions the substantive power to lay charges of indictable offences in the Magistrates Court or District or Supreme Courts. That power can be delegated by virtue of s6A. Section 275 provides the procedure for the exercise of that substantive power, by the Director of Public Prosecutions or by the Director of Public Prosecutions delegate or by any person presenting an information in the name of and by the authority of the Director of Public Prosecutions or his or her delegate. That means that the power to lay charges lies in the Director or the Director's delegate as provided for in ss7 and 6A of the Director of PublicProsecutions Act.

The person against whom the charges have been laid can be put on trial by a person presenting an information in the name of the Director or the Director's delegate, if the power has been delegated, and by the authority of the Director, if the Director has authorised the presenting of the information or by the authority of the Director's delegate if the power has been delegated and the delegate has authorised that person to present the information as provided for in s275 of the Criminal Law Consolidation Act.

I agree the appeal should be dismissed.