Obeid v Director of Public Prosecutions

[2017] NSWSC 618

Supreme Court

New South Wales

Medium Neutral Citation:	Obeid v Director of Public Prosecutions [2017] NSWSC 618
Hearing dates:	16 May 2017
Date of orders:	16 May 2017
Decision date:	16 May 2017
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Summons dismissed
Catchwords:	Appeal – Local Court
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Craig v South Australia (1995) 184 CLR 163 House v King (1936) 55 CLR 499
Category:	Procedural and other rulings
Parties:	Edward Moses Obeid - First Plaintiff Moses Edward Obeid –Second Plaintiff Director of Public Prosecutions – First Defendant Ian Macdonald – Second Defendant
Representation:	Counsel: Mr P Lange – Plaintiffs Mr P Neil SC with Ms M Rabsch - Defendants     Solicitors: Hanna Legal – Plaintiffs Solicitor for Director of Public Prosecutions - Defendants
File Number(s):	2017/124532
Publication restriction:	No
Decision under appeal	Court or tribunal: Local Court NSW Jurisdiction: Common Law Date of Decision: 31 March 2017 Before: Magistrate Swain File Number(s): 2015/214251 – 2015/212851

Judgment

1. HER HONOUR: The plaintiffs in these proceedings, Edward Obeid and Moses Obeid, face a committal hearing in the Local Court of New South Wales with respect to charges of conspiracy to commit misconduct in Public Office. The matter is listed for hearing on 29 May 2017 with agreement between the parties for some 19 witnesses to be called for cross-examination with respect to identified aspects of the evidence of each. That date was fixed on 12 December 2016 when all parties were present and represented.

2. On 31 March 2017, the plaintiffs made application to the Local Court for the committal hearing to be vacated and listed instead in late August 2017. The application was heard by Magistrate Swain who, after hearing evidence and argument, refused the application to vacate the committal date.

3. By amended summons filed with leave today, the plaintiffs seek to appeal that decision. The plaintiffs seek to appeal on two bases: Firstly, pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), and secondly, by seeking prerogative relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) arguing that the learned Local Court Magistrate failed constructively to exercise the jurisdiction conferred upon her.

4. 4 Section 53(3)(a) provides that:

(3)    Any person against whom:

(a)    an order has been made by a Magistrate in relation to a    person in any committal proceedings; […]

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

5. It is apparent that appeals brought under this provision may only be brought with respect to a question of law alone and only with the leave of the Court.

6. Section 69 provides for proceedings in lieu of writs, and preserves the former jurisdiction, with power to grant relief in the nature of a writ. Such relief may only be granted with respect to error of law on the face of the record, or jurisdictional error. The plaintiffs assert the latter has occurred and submits that the decision refusing the adjournment should be set aside.

7. Jurisdictional error is described as follows, from Craig v South Australia (1995) 184 CLR 163:

An inferior Court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act.

Since certiorari only goes to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of a writ where it makes an order or decision including an order or decision to the effect that it lacks or refuses to exercise jurisdiction which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of that jurisdiction. (at 177)

8. Central to both claims is the question of the plaintiffs' capacity to be ready for the committal hearing on 29 May 2017.

9. In support of their contention that they could not be so ready the plaintiffs called evidence before the learned magistrate from their solicitor, Mr Soukie. Mr Soukie swore two affidavits and gave oral evidence. He was cross-examined by counsel for the Crown.

10. It is apparent from that evidence, part of Exhibit 4 before this Court, that Mr Soukie was instructed by the plaintiffs on 11 January 2017. At that time, he understood the nature of the charges and was aware of the committal date. He worked on readying the matter in company with another solicitor and two clerks, one on an ad hoc basis. There was some delay in him obtaining the brief of evidence, and he took the view that it was necessary for him to read the whole of the evidence prior to giving the brief to his clients.

11. Be that as it may, it is clear on the evidence that the accused men had had access to the brief well before 11 January 2017, and had been in a position to take committal dates on two earlier occasions in August and December 2016. Necessarily, the plaintiffs were well familiar with the nature of the prosecution case against them, having given instructions to their former legal representatives in readiness for the two earlier committal dates.

12. The evidence establishes that the brief consists of some 53 or so volumes, although only some of that material constitutes the Crown's case. The balance is material provided to the plaintiffs by the Crown in fulfilment of the Crown's obligation of disclosure.

13. Mr Soukie became concerned about his capacity to read and get on top of the brief of evidence and other material, or to retain counsel in readiness for the hearing; hence the application made to the Local Court on 31 March 2017 to vacate the hearing date.

14. In determining the application, her Honour had the affidavit evidence before her as well as having the additional advantage, not enjoyed by this Court, of seeing Mr Soukie give his evidence and, particularly, his responses in cross-examination. It is clear that there was significant challenge mounted in the cross-examination, to Mr Soukie's evidence as to his inability to ready the matter for committal and retain counsel.

15. Having heard the evidence and submissions, her Honour gave an ex tempore judgment refusing the application.

16. In the impugned judgment, her Honour referred to the obligation on the Court to ensure that an accused person had an adequate opportunity to present his or her case. She also had regard to the broader interests of the community in seeing criminal matters brought to hearing, giving prominence however to the interests of the accused person.

17. She said, at transcript 39 commencing at 50:

In coming to that determination, that is, to refuse to vacate the committal hearing date, I have been well aware that any refusal of an adjournment which has the result of preventing an accused from adequately presenting his case, is a failure to properly exercise the Court's discretion, and if that were the case, there would be a miscarriage of justice.

I have borne those principles in mind during this application. I have also borne in mind of course the community interest in allegations of any sort being brought before the Court and the procedures commenced and continued. However, I am of the view that the community's interests is little less than an accused's interests in preparing a case properly. I want it clearly understood that I have given the principal of an accused being given the opportunity of properly preparing for any proceeding as paramount, and I have given that great weight in this application.

18. In her reasons for the decision, her Honour considered the procedural history of the matter including the fact that the committal was twice previously ready for hearing, the nature of the Crown's case, and the material available to assist the plaintiffs to prepare their case, including a detailed statement of facts, cross-referencing evidence, and an index to the brief which provided some detail as to the contents. As to that, her Honour said, transcript 41 line 10:

The facts sheet in this matter which outlines the allegations is some fifty-five pages which sets out very clearly and very particularly in my view the allegation against each of the accused in these proceedings.

19. Further from about line 23:

In front of the twenty-four volumes of the brief there is an index that has been prepared by the solicitor with carriage in the Director of Public Prosecution's office. That index is succinct, particularly clear, and the committal brief has been prepared in such a manner that it is very easy to see what statements go to what allegations and where it is relevant.

That is certainly of great assistance to the Court, and therefore, must be of great assistance to counsel appearing for the accused. That can only assist in the official preparation in the matter for committal.

20. Her Honour noted that the plaintiffs (as opposed to their legal representatives) had had access to the current form of the brief, that is, organised and indexed, since October 2016. They had had the brief generally much earlier than that.

21. She referred to the agreement as to witnesses for s 91 purposes from December 2016, and noted that the accused men, with familiarity with the Crown case, and having provided instructions in the past to ready the matter for committal, had a very good understanding of the case against them. She concluded, as a matter of fact, that there was sufficient time for the plaintiffs to ready the matter for committal hearing. A conclusion of fact is not amenable to review pursuant to s 53(3)(a).

22. The decision to refuse the adjournment application was a discretionary decision and may be challenged on the ground set out in House v King (1936) 55 CLR 499 at 504 to 505. That is, it must be shown the magistrate acted on some wrong principle, gave weight to extraneous or irrelevant matters, failed to take into account some relevant matter or, mistook the facts.

23. Having considered all of the evidence, I do not conclude that her Honour erred in any one of those ways or that she failed to constructively exercise the discretion that vested in her. Her Honour was cognisant of the amount of work involved in readying the matter for committal, and gave full and proper weight to considerations of that nature.

24. It was contented that her Honour's conclusion that the plaintiffs had had a reasonable opportunity to prepare their case was made without evidence or in circumstances amounting to a denial of procedural fairness since it was not put to or raised with Mr Soukie that, contrary to his evidence, the matter could be ready. I am unable to accept that submission.

25. Mr Soukie was cross-examined at some length by counsel for the Crown as to what he had done to ready the matter. The tenor of that cross-examination, even by reference to transcript alone, is very clearly one of scepticism for his claims in that regard. Her Honour was entitled to assess that evidence and form her own conclusions as to whether she accepted it in whole or in part.

26. I do not regard her as having been obliged to warn Mr Soukie that she might not accept all or any of his evidence. As the tribunal of fact, that was her role, and there can be no denial of procedural fairness where that role is carried out.

27. The adjournment application was opposed. The evidence of Mr Soukie was contested. It was for her Honour to determine what, if any, of the evidence she accepted and what if any weight she gave to it. It was open to her Honour to make that assessment in light of her own experience and understanding of what is required to ready a committal hearing. Indeed, she could hardly consider the matter in any other way.

28. I do not accept the plaintiffs' contention that her Honour was obliged to accept Mr Soukie's evidence as to his inability to prepare the matter or brief counsel in the period available to him of about five months. If that were so, the courts would be captive to the claims of any party to the effect that it could not ready itself for hearing. If that were correct, few matters would come on for hearing since it is often in the interests of one party or another to delay proceedings for as long as possible.

29. Her Honour did not make her assessment in a vacuum. She well understood the nature of a committal hearing and its purpose within the overall context of the administration of the criminal law.

30. Whilst a committal hearing is important, it is not the trial. It is unlikely that the plaintiffs will do more than seek to test the Crown case to expose any deficiencies or weaknesses at committal. It is most unlikely that a positive case will be presented. This is relevant to the assessment of what is required in preparation of the matter.

31. That was an assessment to be made objectively as was conceded before me by counsel for the plaintiffs.

32. Her Honour was entitled to conclude that, having had the brief for a very considerable period of time, the plaintiffs were in a good position to instruct their new legal representatives as to their case and to raise matters relevant to committal. She was also entitled to conclude that the period available to Mr Soukie, whether that be from 11 January 2017 when he came into the matter, from February 2017 when he received another copy of the brief from the Crown, or indeed from 31 March 2017 when eight weeks or so remained for preparation, was sufficient. She was entitled to conclude that the plaintiffs had had a reasonable opportunity to prepare their case.

33. I do not find that there was an error of law amenable to review pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act, and I am similarly unable to conclude that there has been a jurisdictional error or an error on the face of the record.

34. I would not grant the relief sought and the summons is dismissed.

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Decision last updated: 18 May 2017