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 (either a grand jury or a magistrate) casts an evaluative eye over it to see whether the full process of trial by jury is justified.

7 Under the constitutional arrangements in Australia most Commonwealth prosecutions are prosecuted in the already established criminal courts of the States and Territories. This was an obvious and convenient arrangement in 1901 and in 2006 it remains a practical arrangement, although the frictions and difficulties involved in it have perhaps increased.

8 In the decision of Duffield & Dellapatrona v R (1992) 28 NSWLR 638 the Court of Criminal Appeal of New South Wales considered the issue of a prosecution under Commonwealth Law by ex-officio indictment in the Supreme Court of New South Wales. An argument was taken similar to that raised by Mr Lowe in the present case to the effect that the Director of Public Prosecutions for the Commonwealth was not entitled, in those circumstances, to prosecute by way of ex-officio indictment. A powerful court of Justice Kirby, President of the Court of Appeal, Justice Wood, as he then was, and Justice Sharpe went into the history of the point, and dilated upon various amendments to the Director of Public Prosecutions Act and the Judiciary Act bearing upon this issue.

9 The substance of the argument presented by Mr Lowe derives from the fact that the Attorney General, by virtue of the Commonwealth Judiciary Act s71A(1), appears only to have the authority to prosecute an ex-officio indictment for a Commonwealth offence in the Supreme Court of a State or Territory. This trial is being conducted in the District Court, not the Supreme Court. It would seem clear that if this indictment had been signed by the Attorney General of the Commonwealth, there would be an impediment to this prosecution proceeding in this Court. Over the luncheon adjournment I put on paper a few points which troubled me and which link in with arguments which counsel have been putting. The questions which I raised are as follows:

1. Is it correct to say that the Commonwealth DPP can and does have greater powers in regard to ex-officio indictments than the Attorney General for the Commonwealth?

2. Is it not implicit, indeed express in s 8 of the DPP Act 1983 that the DPP is subject to the direction of the Attorney?

3. Does s 71A of the Judiciary Act not confine the Attorney General in the exercise of prosecuting Commonwealth offences in State courts by way of ex-officio indictment to the prosecution of such offences in the Supreme Court of the State or Territory in question?

4. Should s 71A of the Judiciary Act be read subject to the inference that in 1989, when s 6(2)(d) and 6(2)(e) were added to the DPP Act, whatever else the Parliament intended, it did not intend to grant to the DPP a role in relation to prosecutions greater than that of the Attorney General?

10 Counsel have made submissions to me in and around these matters. In the Duffield decision at pp 652 and 653, some of this history is analysed. The Court said that while in 1983 the Commonwealth Director could not prosecute by ex-officio process, that power has, by a variety of steps, been extended to him:

“When a power similar to that enjoyed by the Federal Attorney General and reserved by s 71A of the Judiciary Act (Commonwealth) was eventually extended to the Director of Public Prosecutions of the Commonwealth, express reference was made in s 71A(3) of the Judiciary Act (Commonwealth). By that express reference, it is made abundantly plain that Parliament intended that the ordinary provision relating to the commitment for trial on indictment in accordance with State procedures as enacted by s 68 was to be read in harmony with the special powers duly conferred on the Director of Public Prosecutions by his Act. As has been stated, those powers were gradually enlarged until now they are extremely wide, being limited only in respect of war crimes prosecutions.”

11 The Court went on to say at p 653:

“To the extent that there is any conflict between the obligations expressed in general terms in s 68 of the Judiciary Act 1903 (Commonwealth) and the powers expressed now in such ample terms by the Director of Public Prosecutions Act 1983 (Commonwealth) s 6(2)(d) it is clear that the latter will have priority over the former. Not only is it an express grant of power in precise terms which follows a legislative history, which, as I have demonstrated has over time enlarge markedly and deliberately the powers of the Director of Public Prosecutions, it is also a statute later in time.”

12 Mr Lowe argues that that logic may have been of assistance of the Crown in the case of Duffield, but there the ex-officio indictment was brought in the Supreme Court, where, on the face of the legislation, both the Commonwealth Attorney and the Commonwealth DPP could utilise ex-officio mechanisms. However, he argues, the power granted to the DPP in s 6(2)(d) to which I have referred, is not “similar” to that enjoyed by the Federal Attorney General. It is in fact wider than that enjoyed by the Federal Attorney General.

13 Mr Lowe argues that it would be anomalous if the Federal Attorney were to have less power in this particular respect than the DPP. The DPP should be seen, according to the scheme of the Director of Public Prosecutions Act as, while independent, not having any enlarged powers over and above those of the Attorney General. The Attorney General holds an ancient office and if the Commonwealth Parliament had seen fit to introduce an anomalous new power, diminishing the powers of the Attorney General and enlarging powers of the DPP, it would have done so in no uncertain terms. Here, Mr Lowe argues, the best the Crown can do is to justify its position by inference. Accordingly, a proper reading of the matrix of legislation is that an ex-officio indictment cannot be brought by the Commonwealth DPP in this District Court and accordingly, there is an impediment to the continuation of the present trial.

14 I have given anxious consideration to these arguments because they are of some significance. No doubt the Federal Attorney General and the Director of Public Prosecutions normally work in harmony. I would not be astonished however, were it to be the case that both of these high officers of State might well be interested in debates about their respective powers. As I said, there are important historical reasons why the extension of the power to commence prosecutions by way of ex officio indictment is regarded under the common law as something to be looked at carefully.

15 In conclusion, and not without some considerable hesitation, I reach the view that Parliament has deliberately set out to give the DPP powers which ground his entitlement to lay this information here - this indictment ex officio. I find the Duffield decision persuasive. Such hesitations as I have had have been laid out by me and they relate, as I say, to historical concerns that the prosecution by way of ex officio indictment should not be permitted without considerable protections.

16 Added to the fact that it seems to me that on the whole Parliament has deliberately taken this course, there is the consideration that, as the court spelt out in the Duffield decision, the courts retain the authority to prevent any abuse of process should it arise as a result of ex officio indictment proceeding. If I may be so bold, the most famous judgment of the late Mr Justice Fox was the decision in Crown v Kent ex parte Macintosh (1970) 17 FLR 65 where Mr Justice Fox, after a long historical analysis of the law relating to prosecutions in England and Australia, concluded that it was open in the circumstances of that case for the prosecuting authorities to use an ex officio indictment. He added the qualification that nonetheless it was open to the court to make a decision as to whether or not the prosecution should proceed before the court, or whether it should be adjourned for the purposes of further proceedings. In that case, having decided that there was the power, he adjourned the matter and in due course in fact committal proceedings were held.

17 In the even more famous case of Barton v The Queen (1980) 147 CLR 75 in the High Court, several people charged with alleged fraud were partly dealt with in committal proceedings in New South Wales whereupon (before the committal was completed) the Attorney General utilised the ex officio proceedings. The ultimate outcome was similar to that in the case I have referred to previously, Crown v Kent.

18 There is a saving power in the courts to make appropriate orders allowing a fair trial should the ex officio procedure result in unfairness. Independently of the technical point sought to be raised, I see no actual unfairness or abuse of process here. Accordingly, having noted the objections, the trial will proceed.

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