Lazarus v Director of Public Prosecutions NSW

[2015] NSWSC 1776

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776
Hearing dates:	9 October 2015
Date of orders:	02 December 2015
Decision date:	02 December 2015
Jurisdiction:	Common Law
Before:	RS Hulme AJ
Decision:	Summons dismissed
Catchwords:	Appeal Local Court to District Court – Appeal to Supreme Court – abuse of process
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Supreme Court Act 1970
Cases Cited:	Lazarus v DPP (NSW) [2015] NSWSC 426 McHenry v Lewis (1882) 22 Ch D 397 McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 Meagher v Stephenson (1993) NSWLR 736 Williams v Hunt (1905) 1 KB 512 514
Category:	Principal judgment
Parties:	Sandra Lazarus (Plaintiff) Director of Public Prosecutions NSW (Defendant)
Representation:	Counsel: No appearance (Plaintiff) Ms CA Webster SC (Defendant)     Solicitors: Director of Public Prosecutions (Defendant)
File Number(s):	2015/1453962015/211962
Publication restriction:	No

Judgment

1. By Notices of Motion filed in each of proceedings 2015/211962 and 2015/145396, the Defendant has sought that, pursuant to Rule 13.4, those proceedings be summarily dismissed. By orders made on 14 August 2015 the Registrar directed that both Notices of Motion be heard together and they were listed for hearing on 9 October 2015.

2. On that day, Counsel appeared for the Defendant but there was no appearance on behalf of the Plaintiff. For reasons stated on that day, and copies of which are in the Court file, I elected to proceed in her absence. In part because the Defendant relies on the history of these and other proceedings, it is convenient to record a chronology of events.

3. On 27 November 2014, the Plaintiff was found guilty by Magistrate Keogh of a number of offences against s 178BB and s 300 of the Crimes Act 1900. The proceedings were stood over for sentence.

4. On 5 February 2015 Ms Lazarus appeared before Button J seeking ex parte review of the criminal proceedings in which Magistrate Keogh had found her guilty. His Honour granted leave to Ms Lazarus to file the summons in court and stood the proceedings over until the following day. On that day a timetable, including a hearing date of 13 April 2015 was set. Button J also stayed proceedings in the Local Court up to 13 April.

5. In the proceedings, which seem to have become proceedings 2015/36376 Ms Lazarus filed an amended summons on 12 February seeking, inter alia, that Ms Keogh be disqualified and that the proceedings before her be reheard to be determined at law by another Magistrate. The grounds relied upon were stated to be:

“Perceived bias, actual bias, errors of law, failure to ensure that the transcript was an accurate record of the court proceedings, allowed the transcript to be edited and allowed deleting of parts of the transcript in particular as to three applications… for Magistrate Ms Joanna Keogh to disqualify herself and to withdraw as she failed to ensure a fair and impartial hearing.”

6. The matter was heard by Garling J on 13 April 2015. On 14 April 2015 Garling J ordered that proceedings 2015/36376 be dismissed, publishing his reasons for that conclusion on 16 April 2015 – see Lazarus v DPP (NSW) [2015] NSWSC 426.

7. His Honour approached the matter as one seeking to invoke this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 and the relief being sought as in the nature of prohibition and certiorari. His Honour concluded that the allegations of bias and apprehended bias were not made out and that neither were any of the other complaints. He went on also to observe that the Court has a discretion whether to grant the prerogative relief sought by the Plaintiff and that even if he had upheld the Plaintiff’s complaints he would not have allowed the appeal, and this for two reasons. The first was that the Plaintiff had a right of appeal to the District Court by way of rehearing; the second was the undesirability of interfering in criminal proceedings prior to their completion, as was the situation prior to the Plaintiff being sentenced.

8. On 27 April 2015 the Plaintiff was sentenced in respect of the charges by Magistrate Keogh, sentences of imprisonment being imposed.

9. Also on 27 April 2015 the Plaintiff filed a Notice of Appeal to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 appealing against her conviction and sentence. The appeal against conviction was said to be “because I am not guilty.” The appeal against sentence was said to be “because the penalty is too severe”. Also on 27 April the Plaintiff was granted bail pending determination of her appeal, a grant that had the effect of staying the execution of the sentence that had been imposed.

10. On 12 May 2015 the Plaintiff filed a Notice of Intention to Appeal to the Court of Appeal against the decision of Garling J.

11. On 15 May 2015 Ms Lazarus commenced proceedings 2015/145396. An amended summons was filed on 1 June 2015 and in that document the Plaintiff has sought:

1. To appeal the whole of the Local Court decision in proceedings 2013/00076236;

2. That the Court grant a stay of enforcement in case number 2013/00076236 until the application to set aside the whole of the decision in the Supreme Court is decided;

(3)   To have the whole matter of case 2013/00076236 set aside.

12. Both the Summons and Amended Summons record that the application or appeal is brought under Part 5 Division 1, Subdivision 1 of the Crimes (Appeal and Review) Act 2001. The grounds relied upon are, inter alia, that:

(1) The Local Court proceedings breached the Criminal Procedure Act 1986 sections 47, 38 and 49.

(2) The relevant Court attendance notice listed an ICAC investigator as the prosecutor and ICAC as the prosecuting organisation thereby breaching the Criminal Procedure Act 1986.

(3) During the Local Court proceedings, section 141(1) and (2) of the Evidence Act 1995 were breached.

(4) During the Local Court proceedings sections 178BB and 300(1) of the Crimes Act was incorrectly interpreted and applied.

13. It was asserted that all of these matters constituted procedural unfairness and involved questions of law.

14. On 7 July 2015 proceedings 2015/145396 came before Fagan J. In circumstances that are not clear to me his Honour ordered

(1)   [Ms Lazarus’] application for an order staying her appeal in the District Court No: 2013/00076236 is dismissed.

(2)   [Ms Lazarus’] application is to pay the Defendant’s costs of the application heard this day.

15. In the course of his Honour’s reasons he observed:-

(1)   No ground has been shown for this Court to stay the District Court appeal upon the Plaintiff’s application made today. If the Plaintiff does not wish to proceed with the District Court appeal at all, she may discontinue it.

…

(2) The appeal to the District Court is probably amenable to being struck out because the Plaintiff has on foot the appeal to this Court under her amended Summons – s 29 Crimes (Appeal and Review) Act. If the District Court appeal is pursued, continuing proceedings on the Summons in this Court will be an abuse of process. If the Plaintiff does not abandon one or other of these two proceedings, then it will lie in the hands of the Director of Public Prosecutions to make an application, either to the District Court in respect of the appeal or in these proceedings, to bring one of the two matters to an end.

16. On 20 July 2015 proceedings 2015/211962 were commenced by a Summons (entitled “Summons (Judicial Review)”) seeking, in addition to costs orders, that:

(1)   The whole of the decision in relation to New South Wales Local Court case No: 2013/00076236 be set aside.

(2)   The whole of the matter in relation to New South Wales Local Court case No: 2013/00076236 be struck out.

(3)   That all related decisions in relation to New South Wales Local Court case No: 2013/00076236 be set aside.

(4)   That all decisions arising from the New South Wales Local Court case No: 2013/00076236 be set aside.

17. The grounds relied upon are that the Magistrate’s decision involved:

1. Errors of law, ultra vires, lack of procedural fairness, bad faith, Wednesbury unreasonableness.

2. The relevant Court Attendance Notice listed an ICAC investigator as the prosecutor and ICAC as the prosecuting organisation thereby breaching the Criminal Procedure Act 1986 sections “3,173, 14, 47, 48 and 49 and sections of the ICAC Act 1988.”

3. The prosecution relied upon s 3 and s 173 of the Criminal Procedure Act 1986 to indicate that Mr Michael Kane (Investigator for the ICAC) was by definition a Public Officer, being an ICAC employee, and therefore was permitted to institute proceedings through issuing a court attendance notice for Sandra Lazarus.

4. The prosecutor, Mr Michael Kane was not authorised to bring prosecutions against the Plaintiff.

18. It was against that background that on 29 July 2015 the Notices of Motion referred to in [1] were filed.

19. In support of the application the following affidavits were read:-

(i)   One of Dominique Kelly sworn 4 August 2015

(ii)   One of Dominique Kelly sworn 6 July 2015

(iii)   One of Graham Hazlitt sworn 1 April 2015 (Exhibit B)

(iv)   One of Dominique Kelly sworn 8 October 2015

20. So far as is presently relevant, Rule 13.4 provides:-

(1)   If in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)   The proceedings are frivolous or vexatious; or

(b)   …

(c)   The proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be dismissed generally or in relation to that claim.

Proceedings 2015/145396

21. The bases for the contention that proceedings 2015/145396 (commenced on 15 May 2015) should be dismissed are:

(i)   The Plaintiff has on foot a District Court Appeal directed to the same Local Court proceedings.

(ii)   The proceedings, relating as they do to conviction in addition to sentence, are out of time.

22. I have referred to the commencement of the District Court appeal. In her Affidavit of 8 October, Ms Kelly annexes documents from the District Court which shows appearances on the Plaintiff’s behalf by her sister on 11 August, 7 September and 1 October and the adjournment of the matter on these days, most recently according to those documents, until 3 November for mention. Although I have no later information, it is to be inferred that the appeal to the District Court is being pursued and the Plaintiff has not accepted the suggestion of Fagan J that it be discontinued.

23. The appeal to the District Court is expressed to be against both the conviction and sentence of Magistrate Keogh. The appeal instituted by the summons filed on 15 May 2015 is against the “whole of the Local Court decision”. They are thus both against the same decision of Magistrate Keogh. Section 29 (1) of the Crimes (Appeal and Review) Act provides, inter alia:-

No appeal may be made to the District Court under this Part against a decision of the Local Court:

(a)   …

(c) That is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under Part 5.

24. The effect of s 29(1)(c) would be clear if the appeal to this Court had preceded that to the District Court. The latter appeal could not have been (validly) made. The matter is not so clear in the events which have happened. One possible view is that the lodging of the summons on 15 May immediately brought the District Court proceedings to an end and made them invalid. Another is simply that the District Court appeal could not proceed, at least to a hearing or determination. Given that the District Court has, pursuant to s 28(3), powers to make costs orders in respect of appeals made to it, and that such orders could not be made if the District Court proceedings were at an end, it seems to me that the former view creates problems that cannot have been intended.

25. It follows that the District Court appeal is still on foot, even though, so long as the appeal to this Court lodged on 15 May 2015 exists, the District Court proceedings cannot proceed to any hearing or determination. Both proceedings are expressed to be “appeals” and, given the nature of the appeal to the District Court, the Plaintiff can raise there all of the matters that could arise under proceedings 2015/00145396 in this Court, and this even though she alleges some of the errors amounted to procedural unfairness.

26. In these circumstances the proceedings just mentioned are an abuse of process – McHenry v Lewis (1882) 22 Ch D 397 at 400, 406; Williams v Hunt (1905) 1 KB 512 at 514; McLean v David Syme & Co Ltd (1970 72 SR (NSW) 513 at 528

27. The second ground requires some further reference to history. According to Ms Kelly’s Affidavit of 4 August 2015 Magistrate Keogh delivered a judgment on the charges on 27 November 2014. That judgment concludes with statements to the effect, “Ms Lazarus is guilty of …” and Ms Lazarus is not guilty of sequences …”, the words quoted being followed by numbers identifying the particular charges.-

28. Her Honour’s remarks in imposing sentence on 27 April 2015 commence as follows:-

The defendant Ms Lazarus, who is before the court today unrepresented, is convicted a total of 44 charges, 28 of those are under s 300 of the Crimes Act whereby she made false documents and 16 are made pursuant to s178BB whereby she obtained a benefit. …

29. Against the background of the terms of s10 of the Crimes (Sentencing Procedure) Act which commences, “Without proceeding to a conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order that the relevant charge be dismissed …”, it seems to me that Ms Lazarus was convicted on 27 April 2015 and not on 27 November 2014. Accordingly the summons filed on 15 May 2015 was within the 28 days limited by Part 51B rule 6 of the Supreme Court Rules.

Proceedings 2015/211962

30. The bases for the contention that proceedings 2015/211962 should be dismissed are:

(i)   The proceedings challenge the same Local Court proceedings as do 2015/145396

(ii)   The proceedings, relating as they do to conviction in addition to sentence, are out of time

(iii)   Grounds 1 and 2 in the Summons are to the same effect as ground (or order) 5 in the 2015/145396 Summons.

31. Section 60 of the Crimes (Appeal and Review) Act 2001 provides:-

A person may not appeal to the Supreme Court under this Part against a decision of the Local Court:

(a)   That is or has previously been the subject of an appeal or application for leave to appeal to the Supreme Court under this Part or

(b)   …

32. Because the title to the Summons 2015/00211962 refers to “Judicial Review” and the terms of the body of the Summons so indicate, this summons, while challenging the decision of Magistrate Keogh cannot be regarded as an “appeal” within s 60. Furthermore, they are within time. As indicated above the date when time began to run was 27 April 2015. Part 59 rule 10 provides that judicial review proceedings may be commenced within 3 months of the date of the decision challenged so, commenced as proceedings 2015/211962 were on 20 July 2015 they were within time.

33. However they suffer other defects. The authorities make it clear that where a statutory right of appeal exists, judicial review should only rarely be granted – see the cases cited in Meagher v Stephenson (1993) NSWLR 736 at 738. As the District Court appeal can grant to the Plaintiff all of the relief that she seeks and could obtain in these “Judicial Review” proceedings, there is no justification for the Court granting prerogative relief. Furthermore, it is an abuse of process for the Plaintiff to institute a second set of proceedings seeking the same relief as she has sought and, if grounds exist, could obtain in the District Court.

34. It is accordingly unnecessary for me to consider the other bases of challenge.

Relief

35. Given my conclusion that both proceedings 2015/211962 and 2015/145396 are an abuse of process, the appropriate order in each proceedings is:

(i)   Summons dismissed.

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Amendments

03 December 2015 - or to of

Decision last updated: 03 December 2015