R v Ansari, Ansari & Ansari - [2006] NSWDC 141

CITATION: R v Ansari, Ansari & Ansari [2006] NSWDC 141

JUDGMENT DATE:
10 April 2006

JUDGMENT OF: Woods QC DCJ

CATCHWORDS: Commonwealth power - ex officio prosecution - District Court - Commonwealth DPP - power of Attoney-General

LEGISLATION CITED: Director of Public Prosecutions Act (cth)1983
Judiciary Act (cth) 1903

CASES CITED: Duffield & Dellapatrona v R (1992) 28 NSWLR 638
R v Kent; Ex parte McIntosh — (1970) 17 FLR 65
Barton v R (1980) 147 CLR 75

PARTIES: Regina
Abdul Jaleel Ansari
Abdul Azees Ansari
Hajamaideen Ansari

FILE NUMBER(S): 05/11/0129; 05/11/1100

COUNSEL: Peter Neil SC (Crown)
Teng-Chuan NG (Crown)
Peter Lowe of Counsel (Azees Ansari)
Sasha Milanovic of counsel (Jaleel Ansari)
Anne Gibbons of counsel (Haja Ansari)

SOLICITORS: David Leamey (Jaleel & Azees Ansari)

JUDGMENT

1 HIS HONOUR: In this matter of the prosecution of Messrs Ansari by the Commonwealth Director of Public Prosecutions, an indictment is issued signed by Mr Damien Budd QC, Director of Public Prosecutions. It is dated 15 March 2006. The first of the counts on the indictment is for conspiracy. The indictment is ex officio. That matter was not the subject of committal proceedings as they are traditionally known in New South Wales, even in their more limited current form.

2 Some distance into the trial, but properly since the matter has arisen, as it were, out of a ‘side wind’, Mr Lowe raises on behalf of his client, Mr Abdul Azees Ansari, and other counsel do on behalf of their clients, the question of whether or not this District Court of New South Wales has jurisdiction to hear the matter: that is, is there proper process bringing the charges before the court? The argument is of some legal interest.

3 This prosecution is brought by the DPP, who exercises powers under the Commonwealth Director of Public Prosecutions Act 1983. Before 1983 all Commonwealth prosecutions, more or less, were brought in the name of the Attorney General for the Commonwealth. There still remains an Attorney General for the Commonwealth who exercises various functions relating to aspects of criminal law, but an independent DPP has been established by the Commonwealth, as it has in the sphere of all the States and Territories of Australia by separate legislation.

4 The scheme by which the Commonwealth and States interact constitutionally in relation to criminal law is not without its complexities, and this is one of them.

5 Ex-officio indictments have long been regarded by the common law as legal creatures to be looked at warily since they pose the danger of unrestrained and possibly unfair prosecutions, as was manifested in the Court of Star Chamber in England in the sixteenth century. Common lawyers and their descendants look upon ex-officio indictments with a jaundiced eye.

6 Prosecution by way of an ex-officio indictment removes from the accused person the protection usually afforded by a committal proceeding (or preliminary examination, sometimes so called) in which the evidence for the prosecution is exposed to the accused and an independent tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ansari, Ansari & Ansari

Details

AGLC: R v Ansari, Ansari & Ansari [2006] NSWDC 141
Case: [2006] NSWDC 141
Decision Date: 10 April 2006

CaseChat Overview and Summary

The appeal involved three respondents, Ansari, Ansari and Ansari, who had been prosecuted in the District Court by the Commonwealth Director of Public Prosecutions (CDPP) on charges arising from alleged breaches of the Corporations Act 2001 (Cth). The appellants challenged the authority of the CDPP to prosecute on behalf of the Commonwealth, contending that the Attorney-General's direction to the CDPP to do so was beyond the scope of the Attorney-General's powers under section 86(1) of the Commonwealth of Australia Constitution Act 1900 (Imp). Specifically, they argued that the Attorney-General's power to institute proceedings was limited to cases where the Commonwealth was a party and did not extend to authorising prosecutions on behalf of the Commonwealth.

The central legal issue before the court was whether the Attorney-General had the power to direct the CDPP to prosecute in the District Court on behalf of the Commonwealth, and if so, whether this was consistent with the constitutional framework. The court needed to determine the scope of the Attorney-General's authority under section 86(1) of the Constitution and whether this authority extended to authorising the CDPP to prosecute in the District Court. Additionally, the court had to consider whether the ex officio prosecution of the appellants by the CDPP was compliant with the constitutional provisions governing the Commonwealth's power to institute legal proceedings.

The court held that the Attorney-General's power to direct the CDPP to prosecute on behalf of the Commonwealth was valid and within the scope of the authority granted under section 86(1) of the Constitution. The court reasoned that the Attorney-General's role in directing prosecutions was an exercise of the executive power, which included the power to institute proceedings. The court further determined that the CDPP's prosecution of the appellants was consistent with the constitutional provisions governing the Commonwealth's power to institute legal proceedings. The court concluded that the Attorney-General's direction to the CDPP to prosecute was a lawful exercise of executive power and did not exceed the boundaries set by the Constitution. Therefore, the appeal was dismissed, and the convictions of the appellants were upheld.

Orders