Potier v Magistrate Maughan

[2004] NSWSC 590

CITATION:	Malcolm Huntley POTIER v MAGISTRATE MAUGHAN [2004] NSWSC 590
HEARING DATE(S):	25/6/04
JUDGMENT DATE:	25 June 2004
JUDGMENT OF:	Bell J at 1
DECISION:	Dismiss the plaintiff's amended summons; The plaintiff is to pay the defendant's costs.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Local Court Appeals and Review) Act 2001 Local Court's (Criminal and Applications Procedure) Rule 2003 Justices Act 1902 Supreme Court Act 1970
CASES CITED:	Electronic Rentals Pty Limited v Anderson [1970-1971] 124 CLR 27 Saffron v DPP (1989) 16 NSWLR 397
PARTIES :	Malcolm Huntley POTIER (Plaintiff) MAGISTRATE MAUGHAN (Defendant)
FILE NUMBER(S):	SC 12485/03
COUNSEL:	In Person (Plaintiff) M Spartalis (Defendant)
SOLICITORS:	In Person I.V. Knight (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 25 June 2004

012485/03 - MALCOLM HUNTLEY POTIER v MAGISTRATE MAUGHAN & ANOR

JUDGMENT

1 BELL J: By amended summons filed on 26 November 2003 the plaintiff claims orders including:

(i) An order that the first defendant be directed to issue, without delay, a court attendance notice pursuant to the Local Court’s (Criminal and Applications Procedure) Rule 2003, or in the alternative, (ii), that this Court shall issue a Court Attendance notice pursuant to the Local Court (Criminal and Applications Procedure) Rule 2003, as applied for by the plaintiff in the Central Local Court Sydney on 14 July 2003 against the second defendant and (iii) that the second defendant attend this Court and answer the indictment so lodged and covered by the said Court Attendance notice.

2 The plaintiff appeared in person. He read paragraphs 1–8 of an affidavit sworn by him on 11 November 2003. Also in evidence was a transcript of proceedings before the first defendant at the Central Local Court on 15 July 2003 and photocopies of two letters. The first is a copy of an unsigned letter purportedly prepared by the plaintiff and addressed to the Chamber Magistrate, Downing Centre Local Court, dated Tuesday July 1, 2003.

3 A further copy of this letter bearing a facsimile transmission report is also in evidence. It appears to have been transmitted on 3 July 2003. The second letter appears to have been signed by the plaintiff and is again addressed to the Chamber Magistrate, Downing Centre Local Court. It is dated Thursday 3 July 2003. A facsimile transmission report shows that it was transmitted to the same telephone service as the first letter on 4 July at 12:05 pm. I will return to the contents of these two letters.

4 On 14 July 2003 the plaintiff submitted to Deputy Registrar Ann Lambino at the Downing Centre Local Court a document; “MHP1” annexed to his affidavit. It is titled Fact Sheet. I will set it out in full:

FACTS SHEET


Offender

Name : David Laidlaw
Occupation : Police Officer
Address : c/o Wollongong Police Station
WOLLONGONG NSW, 2500
Informant
Name : Malcolm Huntley Potier
Address : Goulburn Correctional Center
P.O. Box 265
Goulburn NSW, 2580
Offense
Pervert the Course of Justice by omission
Statute
319 of the NSW Crimes Act 1900
Court
Court Name : Downing Center Local Court, Sydney
INDICTMENT
That Detective Inspector DAVID LAIDLAW during the period April 2000 and October 2001 in the State of New South Wales, did withhold evidence then in his possession namely telephone web traces from MALCOLM HUNTLEY POTIER which would have been used in MALCOLM HUNTLEY POTIERs Defence against the Charges bought by DAVID LAIDLAW intending thereby to pervert the course of justice. Contrary to Section 319 of the new South Wales Crimes Act 1900.
FULL FACTS
In April 2000 then acting Detective Inspector David LAIDLAW acting on information received from Deborah Lee CONWAY caused the setting up of Operation Ramsbury; its intention to investigate the possible commission of a crime by the Informant Malcolm Huntley POTIER then at the Villawood Detention Center in Sydney.
The Informant POTIER was subsequently arrested and convicted of 2 Charges of Solicit to Murder and is currently at Goulburn Correctional Center awaiting the hearing of his Appeal against conviction.

During the void dire and Trial of POTIER LAIDLAW gave evidence that Operation Ramsbury, under his control had sought to obtain evidence against POTIER by the use of the informant CONWAY who was in regular telephone contact with POTIER. Also that he had asked for and been given by the Undercover Section of the NSW Police Department the assistance of an undercover police operative code name MAL. Applications were made for Telephone Intercept Warrants on one of CONWAYS 5 telephones and the mobile phone of MAL together with Listening Device Warrants.

The Crown principal evidence submitted to the void dire and subsequent Trial between September and October 2001 consisted of 4 tape recordings [2 on the telephone (1 of which was substantially indistinct), 2 of face to face meetings] supposedly between POTIER and MAL and 21 telephone conversations [11 where CONWAY had rung POTIER and 10 where POTIER had run CONWAY]. All of these were obtained during the period 2nd May 2000 and 9th May 2000. The recordings varied in length between 2 minutes and 35 minutes. LAIDLAW gave evidence and stated that these were a complete copy of all conversations made between POTIER and MAL and POTIER and CONWAY. It was the Crown case that the undercover operatives recordings did themselves not point unequivocally to POTIERs guilt rather that they had to be considered alongside the only other cooberation evidence being that of the recordings of conversations between POTIER and CONWAY.
POTIER submitted in his Defence at the void dire and Trial that the tape recordings of his conversations both with MAL and CONWAY had been altered in that he had not said the things played to the Court in the way that they had been presented and that the conversations had been created by persons unknown. POTIER was unable to point to any evidence during the void dire supporting his submissions.
During the Trial the Jury were played all recordings of conversations between MAL and POTIER and CONWAY and POTIER by the Crown. It was not until the penultimate day of the Crown case and ruing cross-examination by the Defence that LAIDLAW admitted that he had obtained a “web trace” of the telephone of CONWAY which was the subject of the Telephone Intercept Warrant. This document had not previously been given to the Defence. A web trace has a record of all calls made both to and from a particular phone number. It identifies the telephone numbers of both phones the time and duration of the conversations. The Defence called for the web trace document which showed that 5 of the 10 calls and played to the Jury supposed to have been made by POTIER to CONQWAY did not appear on the web trace. Also that there were 4 calls made by CONWAY to POTIER and 3 calls made by POTIER to CONWAY not transcribed or submitted as evidence.
Of the 5 calls supposedly made by POTIER to CONWAY not only did they refer to then ongoing matters and other phone calls but produced transcripts submitted to the Jury of over 84 pages in length.
Established legal precinct in New South Wales requires and puts a positive obligation that all information in the hands of the Crown has to be disclosed to the Defence prior to the commencement of the void dire. The reason being that the Defence has to be in a position to make representations to the Court during the void dire to ensure that in the interests of justice that only evidence of undoubted authenticity be given to the Jury for their consideration at the Trial.
POTIER was at all times during the period of 2nd May 2000 and 9th May 2000 at the Villawood Detention Center evidence was given by Crown witnesses that he only had access to 3 individual pay phones at the Center. POTIER has recently obtained copies of the responses made by Telstra to LAIDLAW under his applications for web traces of the 3 pay phones at Villawood. These applications were made in the month propr to the commencement of the void dire and responded to during that month to LAIDLAW. They showed that the pay hones at the Center did not contact Conway’s telephone at the time or duration as claimed by LAIDLAW and the Crown and that the 5 calls not on Conway’s web trace also did not appear as having been made on the web traces of the pay phones.
As the web trace document sin the possession of LAIDLAW clearly showed that the recordings claimed to have been made by the police of conversations between POTIER and CONWAY submitted in evidence at POTIERs Trial did not take place they and the other recordings would not have been played to the Jury during POTIERs Trial. At worst the Judge would have been obliged to point out to the jury that the recordings were unreliable and supported the defendant POTIERs claims that the recordings were fabrications. Without these recordings as evidence against POTIER the inconclusive evidence of the conversations between POTIER and MAL a Trial might not have commenced and if it had there was insufficient evidence remaining to convict POTIER.
Under the hearing of the General offence of perverting the course of justice Section 319 of the NSW Crimes Act 1900 states that A PERSON WHO DOES ANY ACT, OR MAKES ANY OMMISSION, INTENDING IN ANY WAY TO PERVERT THE COURSE OF JUSTICE, IS LIABLE TO IMPRISONMENT FOR 14 YEARS.

5 Deputy Registrar Lambino refused to sign the document as a court attendance notice. Annexed to the plaintiff’s affidavit is the record of her refusal. It records as the reason for refusal that she was of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospect of success. On 15 July 2003 the plaintiff applied for a review of the Registrar’s decision in accordance with the provisions of cl 61 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (the Rule).

6 The matter came before Magistrate Orchiston, who set it down for hearing on 1 August 2003. Later during the course of 15 July 2003, the matter was called on before the first defendant. The transcript of proceedings on that occasion records the following exchange:

“PLAINTIFF: … I just want to save the Court’s time so I actually did appear before the Magistrate, I think in the next court down, where this matter was dealt with and has been set down for hearing on 1 August.

BENCH: No, we — because I have become available over lunch and it is an urgent matter, I am able to deal with it now for you.

PLAINTIFF: That would be fine your Honour, thank you. I entirely apologise for …

BENCH: No, I finished a case that I was doing and they said this was urgent so I came down to do it.

PLAINTIFF: It’s very kind of you, your Honour. I apologise for the misunderstanding.”

7 After hearing submissions from the plaintiff, the first defendant refused to vary the determination made by the Registrar. His reasons were stated as follows:

“Let me say that your approach to the matter that I have to decide in this case is appropriate and you put the matter very succinctly and very properly, setting out all your facts and then the reason why you say the notice should issue, but in my view, and I have not only heard you tell me what the facts are, I read them in your statement that was handed to the Registrar, the two issues that are raised by the facts that you put before the Registrar and now the Court are firstly, the admissibility or otherwise of evidence in the criminal trial, and that has been had. And secondly, the veracity or otherwise of that conviction. These are not matters in my view which would substantiate the issue of a court attendance notice, information as it was before 7 July but a court attendance notice to bring the person Laidlaw before the Court to answer the charge. In my view the application is vexatious and certainly would have no reasonable prospect of success if brought before the Court. I refuse to issue your court attendance notice.”

8 The plaintiff appears to have prepared his summons without the assistance of legal representation. At the commencement of the hearing Mr Spartalis, who appeared on behalf of the second defendant, sought clarification of whether the plaintiff was seeking to bring an appeal against the first defendant’s determination or whether he was claiming orders in the nature of prerogative relief.

9 It is not asserted that the proceedings are an appeal under the Crimes (Local Court Appeals and Review) Act 2001 or otherwise. Rather, the plaintiff asserted that he was seeking relief in the nature of certiorari and mandamus. He claims orders pursuant to the powers conferred on the Court by s 69 of the Supreme Court Act 1970.

10 I have been assisted by written submissions prepared by Mr Spartalis, touching on the circumstances in which the Court in the exercise of discretion would grant relief in the nature of certiorari and mandamus. In the view I take of the matter it is not necessary to consider the principles at any length.

11 In written submissions the plaintiff relied on two submissions identified as argument 1 and argument 2. The first can be dealt with briefly in the light of a concession made by the plaintiff. It is necessary to return to the correspondence, Exhibit B. The letter dated 3 July 2003 states that the author seeks to bring charges against certain individuals under s 319 of the Crimes Act 1900 and that he was preparing a statement of facts. This was to be sent to the Court by facsimile later in the week.

12 The second letter transmitted on 4 July 2003 states “I enclose a detailed indictment for consideration by you as soon as possible. I am in a position to shortly prepare a brief of evidence against the offender and submit the same for the consideration of the Court.”

13 The mechanism for commencing criminal proceedings charging an indictable offence in the Local Court changed following the repeal of the Justices Act 1902 and the consequential amendments to the Criminal Procedure Act 1986 (the CPA) and the introduction of the Rule. The date of commencement of the new scheme was 7 July 2003.

14 Prior to that date the procedure for a private informant to commence proceedings alleging the commission of an indictable offence, was to lay an information in accordance with the provisions of s 22 of the Justices Act.

15 Section 174 of the CPA provides that if a person other than a police officer or public officer is authorised to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice signed by a Registrar, and filing the notice in accordance with the provisions of Div 1 Pt 2 of that Act.

16 Pursuant to s 174(2) of the CPA a Registrar must not sign a court attendance notice if he or she is of the opinion that it does not disclose grounds for the proceedings or it is not in the form required by the Act or that a ground for refusal set out in the Rules applies to it.

17 Clause 57 of the Rule requires the Registrar not to sign a court attendance notice, in proceedings commenced by a person other than a police officer or a public officer, if he or she is of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospects of success.

18 It is the plaintiff’s submission that by sending the document “MHP1” by facsimile addressed to the Chamber Magistrate, Downing Centre Local Court, he had laid an information pursuant to the provisions of the Justices Act. In his submission the first defendant misconceived the nature of his jurisdiction in that he wrongly considered that he was reviewing the determination not to sign a court attendance notice under the Rule. In the plaintiff’s submission the correct analysis was that the first defendant was reviewing the failure of the Registrar to receive and act upon an information duly laid in accordance with the provisions of the Justices Act.

19 There seem to me to be a number of difficulties with this contention, not the least of which is that the proceedings before the first defendant were a review brought under cl 61 of the Rule. In oral submissions the plaintiff sought to contend that there was a right of review under the Justices Act with respect to the failure of a Chamber Magistrate to take action upon an information being laid before him or her. No provision of the Justices Act conferring such a right of review was identified.

20 I am not persuaded that the transmission of the document “MHP1” by facsimile to the Local Court constituted laying an information before a justice within the meaning of the Justices Act (as it then stood): Electronic Rentals Pty Ltd v Anderson [1970-1971] 124 CLR 27 per Windeyer J (with whom Barwick CJ agreed) at 39.

21 The plaintiff realistically conceded in the course of oral submissions that the evidence fell short of establishing that any document that may have been transmitted to the Local Court on 4 July 2003 was in fact received by the Chamber Magistrate or Registrar of the Court. To my mind that disposes of the first contention.

22 I turn now to the second argument upon which the plaintiff relied. There are two aspects to it. Firstly, the plaintiff submitted that procedural fairness required that when the matter was called on for hearing on 15 July 2003 the first defendant adjourn the hearing in order to afford him an opportunity to place further evidence before the Court. The plaintiff pointed to the circumstance that Magistrate Orchiston had stood over his application for review for a fortnight but that in the event it had proceeded on 15 July 2003 before the first defendant.

23 I have set out the transcript of the exchange between the plaintiff and the first defendant which explains the circumstances in which the review came on for hearing. The plaintiff made no application that the proceedings be adjourned.

24 The plaintiff submitted that it had been incumbent on the first defendant to stand the proceedings over for a period when it became clear to him that the evidence was insufficient to justify the issue of a court attendance notice. The contention that there was an obligation on the first defendant to identify the need for further evidence in the plaintiff’s case and to adjourn the proceedings for the evidence to be obtained is to misunderstand the nature of the first defendant’s role. It was not his Honour’s function to decide whether the plaintiff’s application would be improved by further or other evidence.

25 There is in my view no basis for the contention that the plaintiff was denied procedural fairness by reason of the review being heard and determined on 15 July 2003.

26 The second aspect of the challenge is that the first defendant did not properly apply himself to the question that he was required to determine. The plaintiff relied on Saffron v DPP (1989) 16 NSWLR 397 per Priestley JA (with whom Samuels JA agreed) summarising the approach of Jordan CJ in Ex parte Hebbern at 418:

“However, as I commented earlier, it may not matter whether or not I agree with the magistrate's conclusions on the DPP's circumstantial case. This is because of the nature of the proceedings in which Carruthers J reviewed what the magistrate had done. As Carruthers J mentioned, the appropriate form of relief in such proceedings, if relief were to be granted, would be an order in the nature of mandamus pursuant to the Justices Act, s 134. As also pointed out by Carruthers J such relief could only be granted if it appeared that the magistrate had not really performed the duty imposed upon him by the statutory provision under which he was acting, in this case the Justices Act, s 41(6). In a decision which has been many times followed in this Court, Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; 64 WN (NSW) 107, Jordan CJ illustrated the difference between a real, although possibly mistaken, performance by a magistrate of the duty imposed on him and a performance of that duty which was not relevantly real, called by him a constructive failure to exercise jurisdiction. He made two principal points (at 420; 109).

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 magistrate's decision one given in a purported and not a real exercise of jurisdiction.”

27 The plaintiff submitted that the first defendant wrongly took into account the circumstance that he had been convicted of offences arising out of the matters set out under the heading “Full facts” in “MHP1”. In this respect he drew attention the first defendant’s remarks that I have set out at [7] above and in particular to the observation, “the veracity or otherwise of that conviction.”

28 The plaintiff submitted that “MPH1” alleges the commission of a serious indictable offence contrary to s 319 of the Crimes Act 1900 and contained a statement of the particulars of the offence that, if true, could not be said to be a prosecution that was frivolous, vexatious, without substance or having no reasonable prospect of success.

29 The scheme for the commencement of private prosecutions under s 174 of the CPA and cl 57 of the Rule is such as to require that a Registrar give consideration to whether the proceedings are frivolous, vexatious, without substance or having no reasonable prospect of success. The Registrar is constrained not to sign a court attendance notice if of the opinion that the proceedings answer any of those descriptions. The Registrar is to have regard to the information that is before him in the court attendance notice in making a determination whether to sign it.

30 The Magistrate was exercising a power conferred by cl 61 of the Rule to review the Registrar’s action in declining to sign the court attendance notice. Accepting for present purposes that “MHP1” constituted a court attendance notice for the purposes of s 175 of the CPA, I am not persuaded that his Honour applied any wrong principle in taking into account the particulars of the alleged offence set out in “MHP1”.

31 I am not persuaded that the plaintiff has shown that the first defendant misunderstood the nature of his jurisdiction in any of the ways identified in Saffron in the passage to which I have referred.

32 I consider that the plaintiff has not made good a claim for relief in the nature of mandamus certiorari or otherwise. For these reasons I dismiss the plaintiff’s amended summons. I direct that the plaintiff is to pay the defendant’s costs.

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Last Modified: 11/08/2006