Marinovich & Anor v Nairn

The applicants, Ivan Jack Marinovich and Anthony Sergio Ricciardello, sought a writ of prohibition against William Ian Nairn, the Deputy Director of Public Prosecutions of the Commonwealth of Australia. The dispute arose from the presentation of an ex officio indictment for offences under State law by the Deputy Director of Public Prosecutions, following the filing of a nolle prosequi in respect of earlier federal charges that had been the subject of a committal hearing. The matters were before the High Court of Australia.

The legal issues before the court concerned the constitutional validity of the federal Act establishing the office of the Director of Public Prosecutions and its staff. Interwoven with this was a question of construction of the Criminal Code of Western Australia, specifically provisions distinguishing between officers authorised by the Attorney-General to present ex officio indictments and those who may present indictments consequential on committal proceedings. The applicants contended that the Federal Deputy Director of Public Prosecutions lacked the power to present such an ex officio State criminal indictment.

The court was required to determine whether the Federal Deputy Director of Public Prosecutions had the power to present an ex officio indictment under State law. This involved considering the constitutional validity of the federal legislation creating the Director of Public Prosecutions and interpreting the relevant provisions of the Western Australian Criminal Code concerning the presentation of indictments. The applicants argued that if the Deputy Director lacked this power, the proceedings would be a nullity.