Landrey v Director of Public Prosecutions (NSW) & Ors

[2023] HCATrans 89

[2023] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S145 of 2022

B e t w e e n -

GEOFFREY VANCE LANDREY

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) ABN 27445689335

First Respondent

STATE OF NEW SOUTH WALES ABN 50132005544

Second Respondent

LOCAL COURT OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 JUNE 2023, AT 12.29 PM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR G.D. WENDLER and MR C.L.W. STREET appear for the applicant.  (instructed by Whitfields Solicitors)

MR M.G. SEXTON, SC (Solicitor-General for the State of New South Wales) and MS J.S. CALDWELL appear for the second respondent.  (instructed by Crown Solicitor (NSW))

KIEFEL CJ:   There are submitting appearances for the first and third respondents.  Yes, Mr Wendler.

MR WENDLER:   Your Honours, before I open the application, can I confirm that there has been compliance with section 78B of the Judiciary Act. There was an affidavit filed yesterday which sets out such compliance. Your Honour, this application concerns a constitutional challenge to Part 2, Chapter 3 of the Criminal Procedure Act (NSW). That part of the Act deals with the committal process in relation to indictable offences. It also deals with Commonwealth indictable offences in the sense that those provisions of the Judiciary Act – in particular, section 68A and also sections 68 and 79 – pick up and apply the New South Wales system.

Can I move immediately to what the special leave question is as we have formulated it.  The question is this:  whether application of the Kable doctrine or principle invalidates a conferral of a non‑judicial function or power on a State court in circumstances where the non‑judicial function or power creates an unacceptable diminution of public confidence in the criminal justice system and thereby violates the institutional integrity of the court – in this case, the local court.  It is appropriate that I quickly identify the three sections in the Criminal Procedure Act which are relevant to and critical in relation to the resolution of this application.

Can I invite your Honours to page 59 of the application book.  On page 59 of the application book there is set out that part of the Criminal Procedure Act, in particular section 55. Section 55 is a summary of the committal scheme in Part 2, Chapter 3. Concerning this application, the critical features of section 55 which has six, as it were, steps in the process. The two critical aspects of section 55 are section 66 – can I invite your Honours to page 63 of the application book.

Section 66 is headed “Charge certificates” and, in particular, section 66(2)(a) sets out the obligation of an executive officer – a prosecutor – in determining, effectively, the sufficiency of the evidence which then will determine whether there is to be a trial.  Also, subsection 66(2)(b) picks up the responsibilities of investigating officials set out in section 15A of the Director of Public Prosecutions Act in relation to the discovery of all evidence relevant to both prosecution and the defence cases.

The next and most critical, perhaps, section of the scheme is section 96, which appears on page 77 of the application book.  Section 96 is drafted in mandatory terms and is effectively an order to the court that an accused person must be committed for trial unless the magistrate accepts a plea of guilty.  Effectively, the scheme works like this:  an executive officer formulates the charge by assessing the sufficiency of the evidence and the court effectively acts as, to use an expression I think made by Chief Justice French, the alter ego of the prosecutor.

The court is not involved in an independent review of the sufficiency of the evidence.  There is no obligation for it to give reasons in relation to why a committal order has been made.  The overall impression that comes from this scheme is that there is a clear objective diminution in public confidence – which is an aspect, an important aspect, on the question of whether the institutional integrity has been violated.  In short, any accused is entitled to ask the question:  why am I being committed for trial on the opinion of a prosecutor and not the independent opinion of the court in relation to the sufficiency of the evidence?

KIEFEL CJ:   It is rather a question, though, is it not, of what the order under section 96 involves.

MR WENDLER:   The order is simply that there be a trial – be committed for trial.

KIEFEL CJ:   Yes, but you do not regard that in isolation ‑ ‑ ‑

MR WENDLER:   True.

KIEFEL CJ:   ‑ ‑ ‑ given what goes before and its purpose.  The Court of Criminal Appeal held that it was more in the nature of giving effect to case management, although ancillary to other proceedings.

MR WENDLER:   We challenge that analysis in this way:  the management exercise is of a kind which involves an executive officer, in effect, directing the court as to the outcome of the question of whether there should be a trial.  One of the aspects of ‑ ‑ ‑

JAGOT J:   They are not directing the court.

MR WENDLER:   I am sorry, your Honour?

JAGOT J:   The person has to be satisfied that the pre‑conditions are met.  If they are, there must be the committal to trial.  If they are not, they are not.

MR WENDLER:   True, but the Court does not make the assessment as to whether the sufficiency of the evidence justifies a trial.  It is the prosecutor who commits the accused for trial, not the court.  The court acts a sort of fig leaf, really, in relation to the process.  In Wainohu, this Court – in particular in the judgment of your Honour the Chief Justice and, I think, Chief Justice French – focused upon if the violation of institutional integrity in circumstances where the outcome of the process demonstrated a lack of public confidence in the institutional integrity of the Court.

Here, there is a fusion between the role of the prosecutor – a symbiotic fusion between the role of the prosecutor and the executive officer, and the Court.  True it is that committal proceedings are administrative, we accept that, but a history of the legal nature of the committal proceedings going way back to Barton v The Queen, Grassby, Murphy – all hold the importance of the process in the overall curial process of criminal proceedings.

If I can move back just to Wainohu again, your Honours will recall, and it is worth recalling, what happened and why this Court struck down the scheme that was under challenge – under Kable challenge in Wainohu.  In Wainohu, your Honours will recall that an eligible judge, acting persona designata, made a declaration in relation to proscribing a particular organisation.  That was, of course, the administrative act but the transfer of that act and that process to the judicial act, which was the making of control orders by a judge of the Supreme Court, was held to violate the institutional integrity of the Supreme Court of New South Wales because there had been a transference of a process that was inequal to the idea of independence of the Court and the idea that institutional integrity must be maintained.  Independence, not just the fact of independence but the appearance of

independence, must be maintained as, of course, it is fundamental to the rule of law.

The Kable doctrine was widened considerably, or to of some extent, in Wainohu and that remains the furthest extent of the application in the doctrine.  In the circumstances of this case, the question really is whether a scheme which enables an executive officer to determine whether there should be a trial, that is, the same executive officer who will be involved in the trial – not personally, but be involved in the trial, suggestive of a perceived conflict of functions.

In order for the preservation of public confidence in the criminal justice system, it is the applicant’s submission that in relation to the inextricable connection between the committal process and the later exercise of judicial power in a trial be objectively seen as being an independent process, not a process controlled by a prosecutor who may be influenced by the notoriety of the case, who may be overzealous in relation to the manner in which the sufficiency of the evidence and the coming to existence of a charge certificate occurs.  That is really the special leave question as I have sketched it at the commencement of this application.

If the Court pleases.

KIEFEL CJ:   Yes, thank you, Mr Wendler.  We need not trouble you, Mr Solicitor.  We see no reason to doubt the correctness of the decision of the New South Wales Court of Appeal.  Special leave is refused.  The Court will now adjourn until 1.30 pm.

AT 12.41 PM THE MATTER WAS CONCLUDED