Potier v Magistrate Maloney

[2005] NSWSC 336

CITATION:	Potier v Magistrate Maloney and Ors [2005] NSWSC 336
HEARING DATE(S):	8 April 2005
JUDGMENT DATE :	13 April 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Johnson J at 1
DECISION:	Summons dismissed with costs.

CATCHWORDS:	COMMITTAL PROCEEDINGS - order of committal for trial - bill of indictment found - application for leave to appeal and claim for prerogative relief - irregularity in committal proceedings - whether Supreme Court should intervene - relief refused.
LEGISLATION CITED:	Felons (Civil Proceedings) Act 1981 Interpretation Act 1987 Local Courts (Appeal and Review Act) Act 2001 Supreme Court Act 1970 Justices Act 1902 Criminal Procedure Act 1986 Evidence Act 1995 District Court Rules
CASES CITED:	R v Potier [2004] NSWCCA 136 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Ex Parte Cousens; re Blacket (1946) 47 SR 145 Waterhouse v Gilmore (1988) 12 NSWLR 270 Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 Potier v Director of Public Prosecutions (2001) 123 A Crim R 176 V v McDonald (Court of Appeal, 16 February 1995, BC9504205) R v Butler (1991) 24 NSWLR 66 McKirdy v McCosker (2002) 127 A Crim R 217 Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, BC9101577) Burns v Barnett (Studdert J, 1 October 1993, unreported) Christov v Price [1999] NSWSC 1264 R v Basha (1989) 39 A Crim R 337 Grassby v The Queen (1989) 168 CLR 1
PARTIES:	Malcolm Huntley Potier (Plaintiff) Magistrate Maloney (First Defendant) Director of Public Prosecutions (Second Defendant) Chief Judge, District Court of New South Wales (Third Defendant)
FILE NUMBER(S):	SC 10244/05
COUNSEL:	---
SOLICITORS:	Mr Potier (in person) Mr Soulos (First Defendant) (submitting appearance) Ms Helen Langley (Second Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	---
LOWER COURT JUDICIAL OFFICER :	Maloney LCM

This decision has been amended. Please see the end of the judgment for a list of the amendments.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

JOHNSON J

13 April 2005

10244/05 POTIER v MAGISTRATE MALONEY and ORS

JUDGMENT

1 JOHNSON J: The Plaintiff, Malcolm Huntley Potier, seeks relief arising from his committal for trial by the First Defendant at the Central Local Court on 11 January 2005 with respect to a charge of inciting a person to solicit another to commit murder.

2 Following his committal for trial, the Plaintiff appeared before the Sydney District Court on 28 January 2005 and again on 11 March 2005. On the last-mentioned date, a Crown Prosecutor found a bill of indictment alleging that the Plaintiff did between 1 January and 8 February 2002, at Malabar in the State of New South Wales, incite Mr A to commit an offence, namely to solicit another to murder Myra Linda Oswald. The Plaintiff was not arraigned on 11 March 2005, with the matter being stood over for mention in the District Court on 15 April 2005.

3 The First Defendant, a Local Court Magistrate, submits to the orders of the Court except as to costs. The Second Defendant, the Director of Public Prosecutions, appears to oppose the grant of relief. I was informed by Ms Langley, who appears for the Second Defendant, that the Crown Solicitor’s Office has indicated that there would be no appearance for the Third Defendant, the Chief Judge of the District Court, given the absence of jurisdiction to make orders affecting that Court.

Procedural History in Supreme Court

4 On 27 January 2005, the Plaintiff appeared on an ex parte application before McDougall J seeking leave under s.4 Felons (Civil Proceedings) Act 1981 to commence proceedings for prerogative relief arising from his committal for trial and, in a separate application, seeking an injunction restraining the proceedings in the District Court. McDougall J granted leave under s.4 Felons (Civil Proceedings) Act 1981 for the institution of proceedings for prerogative relief but dismissed the application for ex parte interlocutory relief. Leave under s.4 was required as the Plaintiff was in custody having been convicted in October 2001 of two counts of solicit to murder under s.26 Crimes Act 1900, such offences being “serious indictable offences” for the purposes of s.4: s.22 Interpretation Act 1987.

5 The proceedings for prerogative relief came before me in the Duty Judge List on 28 February 2005. At that time, the Plaintiff had not served the Defendants with process arising from the grant of leave by McDougall J. The Plaintiff was appearing before me in other matters that week. The application for prerogative relief was stood down in the list and, with the assistance of Ms Langley who appeared amicus curiae, a timetable was set for the matter to be ready for hearing in the Duty Judge’s List in the week commencing on 4 April 2005. On 2 March 2005, I enquired of the Plaintiff whether the relief he was seeking was by way of an application for leave to appeal under s.53(3) Crimes (Local Courts Appeal and Review Act) Act 2001 (“Appeal and Review Act”) and he indicated that it was not. He indicated that the nature of the relief he was seeking was confined to prerogative relief.

6 When the matter came before me on 4 April 2005 as Duty Judge, it was apparent that the timetable fixed on 2 March 2005 had not been complied with. At my direction, the Plaintiff filed in Court later that day a summons and affidavit in support. The hearing of the summons was adjourned to 8 April 2005 with further directions being given for the filing and service of affidavits and written submissions.

The Present Claim for Relief

7 In substance, the Plaintiff’s summons of 4 April 2005 seeks:

(a) an extension of time to seek leave to appeal under s.53(3) Appeal and Review Act with respect to orders made in the committal proceedings;

(b) prerogative relief in the nature of certiorari and mandamus under s.69 Supreme Court Act 1970 with respect to the committal proceedings;

(c) an order that the First Defendant conduct a further committal hearing in accordance with law;

(d) an order that the First Defendant, in conducting further committal proceedings, exclude all evidence not served on the Plaintiff in accordance with relevant provisions of the repealed Justices Act 1902 ;

(e) an order that the District Court be restrained from proceeding upon the matter before that Court until the present summons is finalised and any period for the lodgement of appeals by any party has expired;

(f) an order that the District Court dismiss the indictment presented by the Second Defendant on 11 March 2005 on the grounds that the time specified under s.129(2) Criminal Procedure Act 1986 had not been adhered to.

8 It will be apparent from the above that the Plaintiff has altered the position expressed by him on 2 March 2005 and is now seeking leave to appeal under s.53(3) Appeal and Review Act in addition to prerogative relief.

9 At the hearing before me on 8 April 2005, the Plaintiff read affidavits sworn by him on 13 January 2005 and 4 April 2005. Ms Langley read her affidavit sworn on 6 April 2005. Both the Plaintiff and the Second Defendant relied upon written submissions which were supplemented by oral submissions.

The Prosecution Case Against the Plaintiff

10 To place the issues raised in these proceedings in some factual context, it is appropriate to outline the prosecution case against the Plaintiff as revealed in evidence before me. The following recital of the prosecution case (in paragraphs 11-19 below) does not, of course, involve findings of fact by me of these matters.

11 On 3 October 2001, the Plaintiff was convicted by a jury in the Sydney District Court of two counts of solicit to murder, the intended victims being his former de facto partner, Myra Linda Oswald, and her then boyfriend, Glenn Stuart Wakeham. Whilst in a prison van travelling from the Sydney District Court to Silverwater gaol on that day, the Plaintiff is alleged to have befriended another inmate, Mr A. They established a rapport over the next two months and the Plaintiff sought Mr A’s opinion in relation to a possible appeal against his convictions for soliciting to murder.

12 On 2 January 2002, at the Long Bay Correctional Centre, Mr A is alleged to have told the Plaintiff that he thought that there were no avenues of appeal and he also indicated a possible sentence. The Plaintiff is alleged to have indicated to Mr A that the only solution to avoid a lengthy gaol sentence and to obtain custody of his daughter (Sarah) was to eliminate Ms Oswald: “No more Myra Linda Oswald, no more problem”. It is alleged that conversations of this type continued on a daily basis. During one conversation, the Plaintiff is alleged to have said, “If she doesn’t die I’ll never get Sarah back. I’ll have to commit suicide if I get 10 years”.

13 It is alleged that Mr A reluctantly agreed to help the Plaintiff in his pursuit and offered to introduce a contact. The Plaintiff declined on the basis that, during the initial investigation of the solicit to murder matters (for which he had been convicted), conversations had been recorded on a listening device at the Villawood Detention Centre. It is alleged that further discussions occurred, the Plaintiff saying: “She’s got to die by the 14^th of January”. This was the date set down for sentencing of the Plaintiff in the District Court. It is also alleged that the Plaintiff said: “I need a month because the British Consulate will have to come and see me and tell me my wife is deceased. I will have to put a case to the judge to have the matter set aside so I can get bail and go back to England and care for Sarah”.

14 In an attempt to locate Ms Oswald, Mr A collated all the information that the Plaintiff had supplied onto a small strip of paper as well outlining the Plaintiff’s intentions. Mr A indicated to the Plaintiff that he would supply this document to a contact of his named “Squita” (a fictitious character). Later that day, Mr A received an unrelated visit. Upon returning to the yard after this visit, the Plaintiff asked Mr A what had occurred. Mr A informed the Plaintiff that he had taken steps for “Squita” to make the appropriate arrangements.

15 Several days later, Mr A alerted Correctional Officers of the Plaintiff’s intentions. Police were contacted and spoke to Mr A on 17 January 2002. Upon Mr A’s return to the prison yard, he was approached by the Plaintiff who questioned him as to what had happened. Mr A indicated that he had been visited by “Squita” and his solicitor. He also informed the Plaintiff that the situation was under control, but would take longer as it had to look like an accident. The Plaintiff sought confirmation from Mr A in relation to some person being in a position to carry out the murder of Ms Oswald in Scotland. The Plaintiff asked Mr A for the dates on the War Memorial in the town of Rhynie, Aberdeenshire, Scotland; this being the hometown of Ms Oswald’s parents. According to the prosecution, the dates on the War Memorial are significant because of an unusual feature. The Memorial bears the dates “1914-1919”. Although the First World War ended in 1918, the Memorial extended to 1919 as soldiers had died in 1919 as a result of war injuries. These details were supplied to Mr A who, in turn, supplied them to the Plaintiff who replied: “Correct, great, they’re on the job”.

16 During further conversations with Mr A, the Plaintiff asked: “Heard anything … are you sure they’re on the job … are you certain you can trust ‘Squita’ and he hasn’t dobbed us into the police … it’s taking too long … are you sure the English Police are not involved in this …”. These discussions occurred towards the end of January 2002.

17 It is alleged that the Plaintiff and Mr A also discussed the price to be paid (£35,000.00 sterling), the Plaintiff saying that this would be paid as soon as he returned to England by selling his shares in British Gas and, if necessary, the sale of his family home “Cacketts”.

18 It is alleged that the Plaintiff asked Mr A how the murder was to be committed and a number of scenarios were discussed. It is alleged that the Plaintiff said: “Why can’t they just have a car accident with her and break her neck?” The Plaintiff allegedly said: “If it can’t be arranged in the time period as an accident, just make her disappear and we will have to deal with that when it happens”. Mr A enquired as to what the Plaintiff would do if he got caught again and the Plaintiff stated: “I’ll put on a crazy act again”.

19 Between 1 and 8 February 2002, a lawfully obtained listening device was installed in the cell of Mr A, whereby a number of conversations between Mr A and the Plaintiff were recorded. It is alleged that these conversations corroborated the fact that prior arrangements had been made to murder Ms Oswald. It is alleged that there were discussions relating to Ms Oswald dying in a car accident and the payment of monies (now £41,000.00 sterling) and also the ownership and occupancy of “Cacketts”.

20 On 3 April 2002, the Plaintiff was arrested at the Sydney Police Centre, Surry Hills, and charged with the common law offence of inciting another to commit a crime, namely murder. Thereafter, the Plaintiff was brought before the Central Local Court.

History of Proceedings before Local Court

21 As proceedings for this offence were commenced before 7 July 2003, the provisions of the repealed Justices Act 1902 and the Criminal Procedure Act 1986 as it stood before amendment, continued to apply to or in relation to committal proceedings for the subject offence: clause 29(2), Schedule 3, Criminal Procedure Act 1986. Accordingly, provisions governing committal proceedings in this case are to be found in Division 1 of Part 4 (ss.21-51B) of the repealed Justices Act 1902. The provisions contained in Part 2 of Chapter 3 of the Criminal Procedure Act 1986 relating to committal proceedings have no application to the present case. Until the hearing on 8 April 2005, the Plaintiff had proceeded upon the basis that the Criminal Procedure Act 1986, and not the repealed Justices Act 1902, represented the applicable statutory regime in this case. Likewise, the First Defendant referred to provisions in the Criminal Procedure Act 1986 during the committal proceedings on 11 January 2005. There is no difference in substance between the statutory provisions. Nothing turns on this aspect for the purpose of the present proceedings. In this judgment, I will refer to the relevant provisions of the Justices Act 1902 only.

22 The affidavit of Helen Christine Langley sworn 6 April 2005 reveals the following facts (which I accept) concerning the history of the proceedings before the Local Court. On 12 April 2002, Magistrate Barnett ordered that the police brief of evidence be served by 16 May 2002 and a reply by 30 May 2002. At that time, Mr Stephen Hopper, Solicitor, appeared for and with the Plaintiff. The committal proceedings were listed on 30 May 2002 at Central Local Court for mention.

23 On 16 May 2002, Detective Sipos served the bulk of the brief of evidence on the Plaintiff’s then Solicitor, Mr Hopper, of Sandroussi & Associates, Level 1, 71 Burwood Road, Burwood. A copy of the Form 1 listing the documents served is in evidence before me.

24 Police served the balance of the brief on Mr Hopper on 26 June 2002, including a tape and CD of highlighted conversation, a statement from a witness named Bowen and a further statement from the witness A, together with some documents.

25 On 30 May 2002, the Second Defendant, the Director of Public Prosecutions, first appeared in the matter before the Local Court. Mr Hopper appeared for and with the Plaintiff, and the proceedings were stood over to 27 June 2002 and then to 8 August 2002 for reply.

26 Thereafter, court listings in the Local Court related, in the main, to the issue of subpoenas at the Plaintiff’s request and the adjournment of the proceedings awaiting the determination of the Plaintiff’s appeals to the Court of Criminal Appeal against conviction and sentence for the two counts of solicit to murder and a Crown appeal relating to sentence on that matter. The Plaintiff’s appeal against conviction has not yet proceeded to hearing before the Court of Criminal Appeal, although the sentence appeals were determined on 25 August 2004, with the Applicant’s appeal being dismissed and the Crown appeal being allowed and the sentence being increased: R v Potier [2004] NSWCCA 136.

27 The Plaintiff withdrew his instructions from Mr Hopper, the last appearance by him being on 6 May 2003 before the Local Court. The Plaintiff appeared in person on 15 July 2003 and continuously thereafter, apart from 9 August 2004.

28 On 21 May 2004, Mr Gray, a solicitor employed in the office of the Second Defendant, served a notice with respect to tendency and coincidence evidence for the purposes of ss.97-99 Evidence Act 1995.

29 On 9 August 2004, Mr Graham Chegwidden, solicitor, appeared for and with the Plaintiff before the Local Court. The proceedings were stood over to 8 September 2004 when Mr Chegwidden withdrew from the matter. The Plaintiff indicated his intention to make an application under s.91 Criminal Procedure Act 1986 (which should be taken as a reference to s.48E Justices Act 1902). Magistrate Moore directed that the Plaintiff’s submission in support of such an application be served by 8 October 2004 and a response by 13 October 2004. The matter was listed on 22 October 2004 for mention to obtain a date for the s.48E hearing. The Plaintiff did not serve written submissions as directed.

30 On 22 October 2004, the matter was stood over to 12 November 2004, with the presiding Magistrate directing the Registrar to do what was in his powers to provide a copy of a tape subpoenaed from the Queensland Police Service by the Plaintiff.

31 On 12 November 2004, the Plaintiff indicated to Magistrate Moore that one of his prior legal representatives had retained the brief of evidence. The committal proceedings were relisted before Central Local Court on 15 November 2004 for the Plaintiff to be re-served with the brief of evidence. This was done and the matter was adjourned to 11 January 2005 for a s.48E application. The Plaintiff was directed to file and serve his submissions with respect to that application by 16 December 2004 and the Second Defendant was directed to reply by 22 December 2004.

32 On 17 November 2004, the Plaintiff wrote to the Second Defendant requesting that he be supplied with certain material. On 25 November 2004, Mr Gray for the Second Defendant, stated by letter that certain material would be provided to the Plaintiff. That material was served on the Plaintiff in the Central Local Court on 8 December 2004 when the matter was again listed with respect to subpoenas sought to be issued by the Plaintiff. Further copies of the CD, tape, transcripts of conversations adopted by the witness A, and a copy of an Exhibit receipt were re-served on the Plaintiff by Police on or soon after 24 December 2004.

33 On 11 January 2005, the matter came before the First Defendant at the Central Local Court. The Plaintiff appeared for himself. Following some discussion as to whether a legal representative was to appear for him, discussion ensued as to the purpose of the hearing. The Plaintiff asserted that he did not have all of the brief, or had only received parts of it in recent times (Transcript, page 3). Mr Baker, appearing for the Second Defendant, informed the Court that all the material had been served on the Plaintiff’s legal representatives and re-served upon the Plaintiff as well (Transcript, pages 5-6). There was an appearance by a Ms Clarke for the Queensland Police Service in response to a subpoena directed to the Queensland Commissioner of Police (Transcript, pages 1, 7). The Plaintiff asserted that he could only focus on a s.48E argument when he was in full possession of the brief (Transcript, page 11). The Crown asserted that he already had it and the First Defendant confirmed this view (Transcript, page 11.27).

34 The First Defendant then said (Transcript, page 11.40):

“HIS HONOUR: Well look there’s – nothing’s been done for the 91 argument today. The Criminal Procedure Act is quite specific. There is to be a paper committal, there’s a section 91 avenue available, that’s been given to you, you haven’t complied with the written submissions. I’m left now with a paper committal.”

The Plaintiff expressed his disagreement with such an approach.

35 The Plaintiff indicated a desire to object to certain unspecified parts of the material in the brief (Transcript, page 12.1). His Honour adjourned for a period to read the brief.

36 Upon resumption, the First Defendant said that he was “satisfied that a jury properly instructed is likely to convict you of this offence or indeed an indictable offence of similar nature” (Transcript, page 12.43). His Honour then enquired of the Plaintiff whether he wished to give evidence himself or call witnesses. The Plaintiff indicated that he wished to give evidence himself and call witnesses (Transcript, page 12.59). Discussion ensued as to whether the witnesses were present. Reference was made to a Mr John Draffin (Transcript, page 13.30), whom the Plaintiff wished to call. I was informed that Mr Draffin was a retired member of the Australian Federal Police. There was material before the Local Court indicating that Mr Draffin was a resident of Melbourne and had not been served with any conduct money (Transcript, page 13.48). He was not present. The Plaintiff indicated that he wished to call the Queensland Commissioner of Police who was not present. The First Defendant declined to make any order to require Mr Draffin’s presence, nor that of the Queensland Commissioner of Police (Transcript, page 14).

37 After further short discussion, the First Defendant stated that he was proceeding to commit the Plaintiff for trial to the Sydney District Court and nominated an arraignment date of 28 January 2005 (Transcript, page 14.52). Following the order of committal for trial, the following exchange took place between the Plaintiff and the First Defendant (Transcript, page 15.4):

“ACCUSED: Your Honour may I remind your Honour you were explicitly clear that you said that you were prepared to hear representations from myself --

HIS HONOUR: But you haven’t complied with the directions. I’m not going to cavil with what has already been ordered on at least three prior occasions.

ACCUSED: Your Honour that matter --

HIS HONOUR: They are the orders I’ve made Mr Potier --

ACCUSED: Well your Honour I’m sorry I must --

HIS HONOUR: I’m not adjourning the proceedings.

ACCUSED: Your Honour before you rose I specifically said to your Honour that there were certain matters contained within the brief of evidence which I sought to exclude from your Honour’s consideration. Now your Honour you did not hear me on that matter and it is critical to these proceedings. It is not a question of discretion it’s a question of what is --

HIS HONOUR: I’ve made the orders Mr Potier. I’m adjourning.

ACCUSED: Very well your Honour.”
Relevant Statutory Provisions

38 Evidence for the prosecution in committal proceedings must be given by written statements which are admissible as evidence under s.48A Justices Act 1902: s.48AA(1). Written statements must be served upon the defendant before the expiry of a period fixed by a Magistrate: s.48B. A Magistrate shall, when giving a direction under s.48B for the service of written statements, direct that the statements be served at least 28 days before the committal hearing unless the defendant consents to a shorter period or the circumstances of the case otherwise require: s.48GA.

39 A Magistrate may direct the attendance of a prosecution witness to give oral evidence at committal proceedings if the applicable statutory test in s.48E(2) is satisfied.

40 Section 41(5)(i) Justices Act 1902 provides that the Magistrate “shall ask the defendant if he or she desires to give evidence himself or herself or to call any witness on his or her behalf”. Thereafter, “any evidence then given by or on behalf of the defendant shall be taken” ‘by the Magistrate: s.41(5)(ii) Justices Act 1902.

41 When all the evidence for the prosecution and any evidence for the defendant has been taken, the Magistrate is required, after considering all the evidence, to proceed in accordance with s.41(6) Justices Act 1902 and to commit the defendant for trial if there is a reasonable prospect that a jury would convict the defendant of an indictable offence.

Relevant Legal Principles

42 The onus of proof lies upon the Plaintiff to establish, on the balance of probabilities, the facts which are said to give rise to an entitlement to prerogative relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259. Likewise, the onus lies upon the Plaintiff to establish the facts in support of a claimed entitlement to relief under a statutory appellate provision such as s.53(3) Appeal and Review Act.

43 A magistrate’s decision as to whether or not he will commit for trial is purely executive and it is not accessible to correction by the Supreme Court in the exercise of its supervisory jurisdiction by way of certiorari: Ex Parte Cousens; re Blacket (1946) 47 SR 145 at 146-7; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275-6; Potier v Director of Public Prosecutions (2001) 123 A Crim R 176 at 179-180.

44 Relief in the nature of mandamus is available with respect to committal proceedings where there is an actual or constructive failure to exercise jurisdiction: Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 399, 418-420. Mandamus is a discretionary remedy: Saffron, above, at 402, 420; Potier, above, at 182.

45 Section 53(3) Appeal and Review Act provides an avenue for appeal, by leave, with respect to an error of law made in committal proceedings. Where the error of law is said to apply to an order of committal for trial which has already been made, and where a bill of indictment has been found, discretionary considerations apply to the granting of leave of the type considered in V v McDonald (Court of Appeal, 16 February 1995, BC9504205).

46 The holding of committal proceedings is not a necessary prerequisite to a trial on indictment: R v Butler (1991) 24 NSWLR 66 at 68; V v McDonald, above, at pages 4-5, 6. Likewise, the holding of committal proceedings which are free of irregularity is not a necessary prerequisite to a trial on indictment: R v Butler, above, at 74.

47 It is necessary to bear in mind the nature and purpose of committal proceedings. The proceedings are executive or ministerial in nature and do not determine guilt: R v Butler, above, at 68. A decision by a Magistrate to discharge a defendant in committal proceedings does not give rise to a plea in bar by way of autrefois acquit. Even if a discharge occurs, it is open to the Director of Public Prosecutions to find a bill of indictment and maintain a prosecution of the person on indictment: Grassby v The Queen (1989) 168 CLR 1 at 13-14.

48 From time to time, this Court has granted relief in the nature of mandamus with respect to committal proceedings, where a factual foundation has been established for such relief and there are no discretionary reasons for withholding relief. Relief has been granted in cases (usually with respect to s.48E orders) where there has been no order of committal for trial, let alone a bill of indictment being found: see, for example, McKirdy v McCosker (2002) 127 A Crim R 217.

49 Where committal for trial has occurred and a bill of indictment has been found, an entirely different set of circumstances exist. In Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, BC9101577) Kirby P (Meagher and Handley JJA agreeing) said at pages 8-9:

“In the present case, the DPP 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 DPP’s action. See R v Butler (1991) 24 NSWLR 66 at 68. That action stands on its own footing. The decision of the magistrate committing the claimant for trial has, thus, now been overtaken by the DPP’s decision. Any order directed to the magistrate to reopen the committal proceedings could not, of itself, affect the DPP’s exercise of discretion to find the bill. To the contrary, the magistrate would be entitled, unless the DPP elected to withdraw and revoke the bill so found, to regard the reopened committal as entirely futile”.

The decision in Sergi has been applied in a number of cases: Burns v Barnett (Studdert J, 1 October 1993, unreported) at pages 9-10; Christov v Price [1999] NSWSC 1264 at paragraph 7; Potier , above at 179.

50 If a bill of indictment has been found in the District Court, it would require a most exceptional case for this Court to consider intervention by the grant of relief, in effect, to re-open committal proceedings. In the present case, the matter is already before the District Court. It is open to the Plaintiff to make pre-trial applications under Pt 53 r 10 District Court Rules. Likewise, it is open to the Plaintiff to make application for an inquiry in advance of trial of the type envisaged in R v Basha (1989) 39 A Crim R 337.

51 Insofar as the Plaintiff seeks to complain and seek the intervention of this Court with respect to the indictment before the District Court, s.17 Supreme Court Act 1970 and the Third Schedule lie in his way. Any argument concerning the form of indictment, or time limits for finding a bill, are matters for the trial court, the District Court.

The Plaintiff’s Arguments

52 The Plaintiff contends that the First Defendant fell into error in three respects.

53 Firstly, relying upon s.48GA Justices Act 1902, it is argued that the entirety of the prosecution brief containing written statements had not been served upon the Plaintiff more than 28 days prior to 11 January 2005. It is said that the First Defendant was bound to reject parts of the prosecution brief. It is said that this constitutes a breach of a mandatory provision of the Act which should attract the intervention of this Court.

54 Secondly, the Plaintiff contends that he was required to make submissions for the purposes of s.48E Justices Act 1902 (s.91 Criminal Procedure Act 1986) at a time when the entire prosecution brief had not been served upon him. The Plaintiff asserts that there was no obligation upon him to make a s.48E application by way of written submissions until the entire prosecution brief was served upon him and that process was not completed until on or soon after 24 December 2004. Again, the Plaintiff asserts that this alleged failure gives rise to error so that this Court should intervene.

, the Plaintiff contends that the First Defendant did not conduct committal proceedings according to law. It is said that:

(a) the Plaintiff was not allowed to object to portions of the material contained in the prosecution brief which the First Defendant then took into account in making the decision to commit;

(b) the Plaintiff, having indicated an intention to give evidence in the committal proceedings, was not allowed to do so;

(c) the Plaintiff, having indicated a desire to call witnesses in the committal proceedings, was not allowed to do so.

56 According to the Plaintiff, these alleged failures constitute errors of law within s.53(3) Appeal and Review Act or a constructive failure to exercise jurisdiction so as to warrant the intervention of this Court by the grant of relief in the nature of mandamus under s.69 Supreme Court Act 1970.

Consideration of Plaintiff’s Arguments

57 In my view, the Plaintiff’s first ground does not demonstrate error. It is apparent that the prosecution brief had been served upon the Plaintiff’s former legal representatives. Steps were taken by the prosecution in November 2004 to re-serve the brief upon the Plaintiff personally. Although such a step was not required by law, it was an appropriate course to assist the Plaintiff who was then unrepresented. Certain items were provided to the Plaintiff on or soon after 24 December 2004, that is less than 28 days before 11 January 2005. However, the Plaintiff has not established that those items had not been provided to the Plaintiff’s former legal representatives at an earlier time. Even if error was demonstrated in this respect, however, I would decline to intervene in any event.

58 Nor am I satisfied that any error is demonstrated with respect to the second ground concerning the requirement that the Plaintiff make submissions in support of his s.48E application. Section 48E(4) requires a written application. The Plaintiff failed to furnish a written application or submission. No error is demonstrated on the part of the First Defendant in proceeding with the committal proceedings on 11 January 2005 given the Plaintiff’s failure to comply with the Court’s earlier direction. Even if error was demonstrated in this respect, however, I would decline to intervene in any event.

59 The first limb of the Plaintiff’s third ground (see paragraph 55(a) above) appears to involve the same grievance as contained in the first ground. The Plaintiff has not demonstrated that any part of the prosecution brief was susceptible to objection because it had been served less than 28 days before 11 January 2005, and thus infringed s.48GA Justices Act 1902. At its highest, the Plaintiff was not given an opportunity to advance on objection which had no merit. Even if error was revealed in this respect, I would decline to intervene in any event.

60 Insofar as the Plaintiff relies upon the failure of the First Defendant to allow him to give evidence and to call witnesses (the third ground – paragraph 55(b) and (c) above), a number of observations should be made. Firstly, the Plaintiff indicated a desire to call the Queensland Commissioner of Police and Mr John Draffin to give evidence. Neither were present at Court on 11 January 2005. Before me, the Plaintiff was unable to state the name of the Queensland Commissioner of Police. He was unwilling to indicate to me the nature of the evidence which he would have sought to adduce from the Queensland Commissioner of Police and Mr Draffin if they had been called at the committal proceedings. He submitted that it was not appropriate that he be asked to provide this information given that the present proceedings were civil and not criminal in nature.

61 During submissions, I reminded the Plaintiff that the present civil proceedings had been brought by him seeking a discretionary remedy with respect to his committal proceedings and that, in those circumstances, it was relevant for him to consider whether he disclosed the nature of the evidence which he sought to adduce from these persons. The Plaintiff maintained his position and declined to indicate the nature of the evidence which he anticipated those witnesses would have given if so called.

62 The witnesses were not present at Court on 11 January 2005. In substance, the Plaintiff’s complaint is that he was deprived of the opportunity to call these witnesses, presumably by the failure of the First Defendant to adjourn the committal proceedings to allow that to be done. Given the Plaintiff’s refusal to identify the evidence which he would have sought to adduce, and its suggested relevance to the committal proceedings, I am not in a position to conclude that the Plaintiff suffered any prejudice as a result of the refusal to adjourn the proceedings. The First Defendant exercised his discretion to refuse an adjournment and no error is demonstrated in that regard.

63 The Plaintiff informed the First Defendant that he wished himself to give evidence in the committal proceedings. The Plaintiff had a right to give evidence: s.41(5) Justices Act 1902. In circumstances such as the present, it is necessary to examine a little closer what occurred before the Local Court and to consider the consequences of the apparent failure on the part of the First Defendant to comply with s.41(5).

64 During submissions, I enquired of the Plaintiff what evidence he would have given before the First Defendant in the committal proceedings. He declined to answer the question upon the basis that he should only be called upon to indicate his case in criminal proceedings and not civil proceedings. Again, I reminded the Plaintiff that the present civil proceedings had been brought by him seeking discretionary relief with respect to the committal proceedings.

65 In these circumstances, it appears to me to be relevant that the Court have some understanding of the nature of the evidence which the Plaintiff would have given to assess its possible impact upon the committal proceedings. The Plaintiff submitted that he could not be required to disclose his defence and that such a consideration was irrelevant to the determination of the present proceedings. I do not agree that this consideration is irrelevant to the present application.

66 The Plaintiff submitted that the Court should intervene and grant relief because there was a prospect that he may have been discharged in the committal proceedings if he had given evidence or called witnesses in his case. The Court is unable to assess this submission beyond a level of theoretical possibility in circumstances where the Plaintiff declines to indicate the nature of the evidence which he would have given before the Local Court. In my view, the Plaintiff’s approach to this issue relates directly to the exercise of discretion involved in the grant of leave to appeal or the grant of discretionary relief in the nature of mandamus.

67 Although the committal proceedings were marked by procedural irregularity with respect to the Plaintiff giving evidence in the defence case, I do not consider that such an irregularity should attract the grant of relief in this case. I am not satisfied that the irregularity in this case constituted an actual or constructive failure to exercise jurisdiction. However, even if I be wrong in this respect, I would decline to intervene in any event.

68 The fact that a bill of indictment has been found in the District Court weighs heavily in favour of the refusal of any relief in this case. The Second Defendant has determined to proceed against the Plaintiff on indictment in the District Court. The First Defendant’s decision to commit the Plaintiff for trial has been overtaken by the decision to find a bill: Sergi, above, and V v McDonald, above. The Plaintiff declines to inform this Court of the nature of the case which he would have sought to lead at committal proceedings. There is no ability for this Court to measure the practical consequences of the procedural irregularity before the Local Court.

69 The Plaintiff may make pre-trial applications in the District Court under Part 53 rule 10 District Court Rules. He may seek a Basha inquiry in the District Court. If his matter proceeds to trial, he may give evidence and call witnesses in the defence case. It is open to him to make application to the Director of Public Prosecutions that the proceedings in the District Court be discontinued upon the basis of the (presently undisclosed) evidence which he intended to give himself and to adduce from others in the committal proceedings.

70 In all the circumstances, I decline to extend time for the Plaintiff to seek leave to appeal under s.53(3) Appeal and Review Act. I refuse the application for prerogative relief.

71 I do not consider that I have jurisdiction to make any order with respect to the form of, and the time of filing of, the indictment in the District Court: s.17 and Third Schedule, Supreme Court Act 1970. In any event, on the evidence before me, no error is revealed with respect to the process surrounding the indictment.

72 The summons is dismissed with costs.

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Amendments

12 June 2014 - name replaced with pseudonym ‘Mr A’ - Paragraphs: 2, 11-19, 24 and 32