Potier v Director of Public Prosecutions

[2001] NSWSC 514

Reported Decision: 123 A Crim R 176

New South Wales

Supreme Court

CITATION:	Potier v DPP [2001] NSWSC 514
CURRENT JURISDICTION:	Common Law division
FILE NUMBER(S):	SC 11078/01
HEARING DATE(S):	20/06/01
JUDGMENT DATE:	22 June 2001
PARTIES :	Malcolm Huntley Potier v Director of Public Prosecutions & Anor
JUDGMENT OF:	O'Keefe J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	Burwood
LOWER COURT JUDICIAL OFFICER :	Magistrate M K Price

COUNSEL :	Plaintiff in person Ms H. Langley for first defendant
SOLICITORS:	Plaintiff in person S E O'Connor Sydney for first defendant
CATCHWORDS:	Criminal law - Committal proceedings - Appeal - Orders in the nature of certiorari and mandamus - Distinction between remedies - Disinclination of courts to intervene - Discretion - Evidence - Refusal by magistrate to allow cross-examination of witnesses
LEGISLATION CITED:	Justices Act s 48E Supreme Court Act 1970 s 69 Crown Prosecutors Act 1987 Pt 3 s 5 Crimes Act 1900 s 26 Justices Legislation Amendment (Appeals) Act 1998 Pt 5 s 104
CASES CITED:	Yates v Wilson (1989) 168 CLR 338 Sergi v The Director of Public Prosecutions (CA 40518/91, 10 September 1981, unreported) Barton v The Queen (1980) 147 CLR 75, 96 Lamb v Moss (1983) 49 ALR 533, 545 Bacon v Rose (1972) 2 NSWLR 793, 797 Caine v Glass (Number 2) (1985) 3 NSWLR 230, CA Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520, 527 (CCA) R v Leslie Robert Butler CCA, 16 August 1991, unreported Ex parte Cousens; Re Blacket (1947) 47 SR 145 The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 The King v Minister of Health (1939) 1 KB 232 Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust (1937) AC 898 at 917 The King v Connell (1944) 69 CLR 407 at 432 The King v Board of Education (1910) 2 KB 165 Saffron v The Director of Public Prosecutions (1989) 16 NSWLR 397 Barton v Berman (1980) 1 NSWLR 63 at 71 Grenvill Homes Pty Ltd v Builders Licensing Board (1981) 2 NSWLR 422 at 433 Craig v South Australia (1994-95) 184 CLR 163
DECISION:	Application dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: O’KEEFE J

FRIDAY, 22 JUNE, 2001

NO: 11078/01 - MALCOLM HUNTLEY POTIER V DIRECTOR OF PUBLIC PROSECUTIONS & ANOR.

JUDGMENT

1    HIS HONOUR:

INTRODUCTION

This is an application by Malcolm Huntley Potier (the plaintiff) to review a decision by a Magistrate (the second defendant) in the Local Court at Burwood, Sydney, given on 2 November 2000 by which the Magistrate refused to allow the plaintiff to cross-examine witnesses pursuant to section 48 E of the Justices Act in a committal proceeding involving the plaintiff.

2 The application was filed on 16 April 2001 and sought orders in the nature of mandamus and certiorari pursuant to s 69 of the Supreme Court Act 1970 quashing the decision of the Magistrate and ordering him to allow the plaintiff to call witnesses to the committal hearing and cross-examine them. The plaintiff also sought a declaration to the effect that no bill of indictment had yet been found by the Director of Public Prosecutions against him.

3 The last mentioned ground can be disposed of quickly. The fact is that on 17 November 2001 the Crown Prosecutor appointed pursuant to the provisions of the Crown Prosecutors Act 1987 found bills of indictment against the plaintiff under section 26 of the Crimes Act 1900 in respect of two offences namely that:

(i) between 2 May 2000 and 8 May 2000 (the plaintiff) at Villawood in the state of New South Wales (the plaintiff) did solicit an undercover police operative with the name "Mal Gibson" to murder Myra Linda Oswald; and,

(ii) between 2 May 2000 and 8 May 2000 at Villawood in the state of New South Wales did solicit an undercover police operative with the name of "Mal Gibson" to murder Glenn Stuart Wakeham.

4    The Director of Public Prosecutions has confirmed his intention to prosecute the indictments and the plaintiff's trial has been fixed to commence on 30 July 2001.

5 As a consequence of the operation of ss 5 of the Crown Prosecutors Act 1987 and Part 3 of the Director of Public Prosecutions Act 1986 there is no factual basis on which the declaration sought by the plaintiff in relation to a bill of indictment could be made, even if it were otherwise appropriate to do so. A decision of the Crown Prosecutor has the effect of being a decision of the Director of Public Prosecutions.

6    It should be noted that two earlier dates for trial have been vacated. The first was for 7 May 2001, a date which had been fixed on 22 January 2001. The second was for 12 June 2001, a date which had been fixed on 11 April 2001.

BACKGROUND:

7    The background of the matter is that the plaintiff appeared before the second defendant (the Magistrate) who heard the committal proceedings. This occurred at the Local Court at Burwood on 2 November 2001. On that occasion the plaintiff through his legal representative made application for a direction from the Magistrate to call and cross-examine eight of the prosecution witnesses.

8 This application was opposed by the Crown and as a consequence was argued before the Magistrate at some length, who gave his decision after a short break in the proceedings. He addressed the different requirements of section 48E in relation to different categories of witnesses; namely victims on the one hand and other witnesses on the other.

9    These tests required either "special reasons why, in the interests of justice, the witness should attend to give oral evidence" (victim) or "substantial reason why, in the interests of justice, the witness should attend to give oral evidence" (other than a victim).

10    The Magistrate then adopted the authorities referred to in the written submissions proffered by counsel for the Director of Public Prosecutions and the plaintiff and determined:

"This Court is not of the view that the reasons advanced are special so far as the alleged victims are concerned and the Court would decline to make such a direction for their attendances".

And:

"This Court ... is not satisfied that substantial reasons in the interests of justice exist for requiring for cross-examination the attendance of the nominated witnesses".)

11    As soon as the Magistrate had reached his decision and declined to give the directions sought by the plaintiff, his legal representative said:

"It's our intention to appeal your Worship's decision".

and advised the Court that he wished to:

"Explore the avenue of appeal to your Worship's decision in regard to 48 E".

12    The Magistrate committed the plaintiff for trial on two counts of solicit, encourage and persuade to murder and two counts of incite to solicit murder.

13    At the hearing before this court the plaintiff informed the court that the application which was being heard was the appeal referred to before the Magistrate.

14 Since the giving of assent to the Justice Legislation Amendment (Appeals) Act 1998 in December 1998 the mode of appeal to the Supreme Court in respect of decisions of Magistrates has been regulated by Pt 5 of the Justices Act.

15 Section 104 provides for an appeal on a ground of law in respect of any conviction or order in summary proceedings. It does not provide for any appeal in respect of committal proceedings for an indictable offence.

16    As a consequence any testing of the decision of the Magistrate needs to be by way of order in the nature of a prerogative writ or declaration.

17    At the outset of the proceedings the representative of the Director of Public Prosecutions raised a number of preliminary points. The first was that the Court should not intervene at this late stage of the criminal law process which could culminate in the trial of the plaintiff, scheduled to commence on 30 July 2001, being aborted.

18    The second ground was that the decision of the Magistrate to commit the plaintiff for trial saw an end to the committal proceedings and has in any event been overtaken by the finding of relevant bills of indictment.

19    The third ground was that any order remitting the matter to the Magistrate would be fruitless in view of the finding of the bills and finally it was argued that in any event the plaintiff could, before the empanelling of the jury at the trial seek a Basha enquiry from the trial Judge.

20 There is a traditional disinclination, well-founded in the highest authority, to review the decision of a Magistrate to commit a person for trial (see for example Yates v. Wilson (1989) 168 CLR 338.

21    This disinclination was referred to in Sergi v. The Director of Public Prosecutions (CA 40518/91, 10 September 1981, unreported)) in which the Court of Appeal said:

"Courts of high authority have repeatedly stressed the great circumspection which should be exercised in the provision of relief which would have the effect of disturbing the conduct of a criminal trial. There is no doubt that this Court, as a supervisory Court, has a wide jurisdiction to grant such relief where justice requires it. See Barton v The Queen (1980) 147 CLR 75, 96. However it is a jurisdiction to be sparingly exercised. Lamb v Moss (1983) 49 ALR 533, 545; Bacon v Rose (1972) 2 NSWLR 793, 797; Caine v Glass (Number 2) (1985) 3 NSWLR 230, CA. In part, this restraint arises out of an historical respect for the jury which takes charge of the accused once the trial commences. In part, it derives from a recognition by Appellate Courts of the difficulties attending the conduct of complex criminal trials. In part, it follows from the large provisions to challenge a conviction on appeal if at the end of the trial the accused is convicted and still complains about an interlocutory ruling. In part, it is based upon the recognition of the dangers of the 'fragmentation in the criminal process'".

And:
"Courts have also taken pains, of late, to stress the authority of the Director of Public Prosecutions to find a bill of indictment and the discretion which is there involved separate from the (usually anterior) exercise of discretion to commit an accused person for trial. See Director of Public Prosecutions v. Kolalich (1990) 19 NSWLR 520, 527 (CCA). In the present case, the Director of Public Prosecutions has now found a bill. The order of the Magistrate, although historically anterior, was not a necessary pre-condition or a legal foundation for the Director of Public Prosecutions action. See R v Leslie Robert Butler , CCA, unreported, 16 August 1991 (per Gleeson CJ, page 4). That action stands on its own footing. The decision of the Magistrate committing the claimant for trial has, thus, now been overtaken by the Director of Public Prosecutions' decision. Any order directed to the Magistrate to re-open the committal proceedings could not, of itself, affect the Director of Public Prosecutions' exercise of discretion to find a bill. To the contrary, the Magistrate would be entitled, unless the Director of Public Prosecutions elected to withdraw and revoke the bill so found, to regard the re-opened committal as entirely futile. A later finding by the Magistrate, on a reconsideration of section 6 properly construed, that there was no evidence to warrant committing the claimant for trial, would leave the Director of Public Prosecutions' bill of indictment completely unaffected. The Director of Public Prosecutions has made it clear to this Court that he intends to present and prosecute his bill when the trial opens."

22    In Ex parte Cousens; Re Blacket (1947) 47 SR 145 it was held that a decision by an examining Magistrate as to whether the evidence against the person charged is such as to warrant such a person being admitted to prison or admitted to bail to await trial is a function which:

"… is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly four hundred years, no instance can be found of a superior Court having interfered with a magistrate by certiorari or prohibitions in the exercise of this function" (supra at 146).

And:

"… the absence from the books of any case in which a Superior Court has assumed to exercise a supervisory jurisdiction over magistrates whilst acting in the exercise of this authority - an authority which has been vested in them for hundreds of years - is a strong indication that their power to examine and commit is in contemplation of the law, purely executive in its nature.

23    In substance, a committing magistrate determines nothing, except that in his opinion a prima facie case has been made out for committing the accused for trial" (supra at 147 per Jordan CJ).

24    The reasoning involved in Ex parte Cousens; Re Blacket (supra) applies a fortiori to a decision of a magistrate antecedent to and subsumed in the decision to commit an accused person for trial on an indictable offence.

25    In my opinion this reasoning is sufficient to deny the plaintiff an order in the nature of certiorari.

26 The question of mandamus remains outstanding. The principles applicable to orders in the nature of mandamus have been definitively stated in The King v. War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228. Rich, Dixon and McTiernan JJ said:

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty, or in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to exercise his function according to law de novo at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the enquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under the colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. " (at 242 - 243).

27 The legal principles set out in the above passage are applicable in New South Wales. For example in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, Jordan CJ in dealing with an application for mandamus to require a Magistrate to hear and determine an appeal by the applicant against the assessment of certain land for a local lighting rate under the Local Government act 1919, said:

“ ... the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute does not necessarily constitute a constructive failure to exercise jurisdiction: The King v. Minister of Health (1939) 1 KB 232 at 245-6. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': Estate and Trust Agencies (1927) Ltd v. Singapore Improvement Trust (1937) AC 898 at 917; or to 'misconceive its duty' or 'not to apply itself to the question which the law prescribes': The King v. War Pensions Entitlement Appeal Tribunal (supra); or 'to misunderstand the nature of the opinion which it is to form': The King v. Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being in purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: The King v. Board of Education (1910) 2 KB 165 (supra at 420)."

28 In Saffron v. The Director of Public Prosecutions (1989) 16 NSWLR 397 Priestley JA (with whom Samuels JA agreed) summarised the approach of Jordan CJ in Ex parte Hebburn (supra) into two principal points as follows:

"1. A magistrate may make a mistake of law, even as to the proper construction of a statute without constructively failing to exercise jurisdiction.
2. A mistake of law as to the proper construction of the statute investing a Magistrate with jurisdiction which leads the Magistrate to misunderstand the nature of the jurisdiction so that (i) he applies a wrong and inadmissible test or (ii) misconceives his duty or (iii) does not apply himself to the question which the law prescribes or (iv) misunderstands the nature of the opinion he must form, will make the magistrates decision one given in a purported and not a real exercise of jurisdiction". (supra at 418)

and described this second point above as "fully authoritative and very useful" (supra at 419). See also Barton v. Berman (1980) 1 NSWLR 63 at 71 per Hope JA; Grenvill Homes Pty Ltd v. Builders Licencing Board (1981) 2 NSWLR 608 at 614 per Glass JA; Wentworth v. Rogers (1984) 2 NSWLR 422 at 433 per Glass JA.

29 The summary of the law set out in the judgment of Priestley JA is consonant with the recent expression by the High Court of the rule concerning jurisdictional error. In Craig v. South Australia (1994-95) 184 CLR 163 Brennan, Deane, Toohey, Gaudron and McHugh JJ said:

" ... an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues (the relevant) statute ... and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. " (supra at 177-178).)

30    The determination by the Magistrate did not in my opinion fall within the ambit of a decision which amounted to a non- performance, actual or constructive, of the duty to consider and determine which is inherent in section 48 E. He applied the words of the statute to the facts before him, adopted the test in the authorities apparently agreed by the parties and came to his conclusion.

31    Moreover, the remedy of mandamus is discretionary. So, too, is the remedy of an order in the nature of mandamus. One reason for not granting relief in the nature of mandamus is delay, especially where that delay is unexplained. In the present case there has been a delay of more than five months between the date of the Magistrate's decision and the date of institution of the present proceedings. That delay is unexplained.

32    Furthermore, the application was made after the finding of the bill and on the eve of a date that had been fixed for the trial. In my opinion even if the remedy of an order in the nature of mandamus were open it should not go in the present case. To do so would intervene in the criminal justice process contrary to the traditional disinclination of superior courts so to do.

33    Second, it would be likely to result in yet another trial date being aborted. Third, remitting the matter to the Magistrate would not serve any real function in the criminal law process since he has already determined to commit the plaintiff for trial and even if he were to determine to the contrary hereafter it would be to no point because of the finding of a bill against the plaintiff. Fourth, the committal proceeding is at an end. It ended with the executive act of committal by the Magistrate. Fifth, any claim that there has been prejudice can be dealt with by the trial Judge on a Basha enquiry.

34    After the decision on this matter had been reserved the plaintiff forwarded an additional written submission which he requested the court to take into account before delivering judgment. This has been done.

35    The written submission sought a variation of the application "to ask that the Court make orders 1 and 2 against the second defendant only". The basis of this request was that the second defendant had neither been present nor been represented and that as a consequence the second defendant should be taken as accepting orders of the kind sought. The second defendant has filed a submitting appearance.

36    The alternative argument by the plaintiff is misconceived. The orders that are made are made in the present proceedings and relate to the proceedings before the Magistrate. The fact of his non-appearance and absence of representation does not mean that orders should be made, as it were, by default against him.

37    The additional submission advanced by the plaintiff is without substance and must fail.

38    For the foregoing reasons I am of the opinion that the plaintiff's application should be dismissed.

39    The order of the Court will be:

Application dismissed with costs.

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Last Modified: 11/08/2006