R v Elzahed (No 1) - [2018] NSWLC 21

Local Court

New South Wales

Medium Neutral Citation: R v Elzahed (No 1) [2018] NSWLC 21
Hearing dates: 19 - 21 February 2018
Decision date: 20 February 2018
Jurisdiction: Criminal
Before: Huntsman LCM
Decision:
The proceedings were validly commenced and the Local Court accordingly has jurisdiction to hear the proceedings

Catchwords: CRIMINAL PROCEDURE – commencing proceedings - whether Attorney General’s consent validly given to prosecution of the particular offences before the court - whether delegation by Attorney General to Solicitor General was invalid - whether instrument of delegation invalid on the words of instruments for lack of specificity - whether authorisation of the prosecution validly made - whether proceedings not validly commenced by Attorney General such that there is no jurisdiction
Legislation Cited: District Court Act 1973, s 200A
Solicitor General Act 1969, s 4
Cases Cited: Berwin v Donohoe (1915) 21 CLR 1
Crichton v Victorian Dairies Limited [1965] VR 49
McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127
McConnell Dowell Constructions Australia Pty Ltd v Environment Protection Authority (unreported, NSWCCA, 25/10/96)
Oates v Williams [1998] 84 FCR 348
R v Bacon [1973] 1 NSWLR 87
R v Cain [1976] QB 496
Robinson v Eureka Operations Pty Limited (2008) 192 A Crim R 234
Traveland Pty Ltd v Doherty (1982) 63 FLR 41
Category: Procedural and other rulings
Parties: NSW Department of Justice (prosecution)
Moutiaa Elzahed (defendant)
Representation:
Counsel:
Mr D Kell SC with Ms A Mitchelmore (prosecution)
Mr D Hume (defendant)
Solicitors:
NSW Crown Solicitors Office (prosecution)
Z Burrows (defendant)

File Number(s): 2017/140056

Judgment

EX TEMPORE: The defendant, Ms Elzahed, is charged with a number of offences against s 200A(1) of the District Court Act 1973. The prosecutor is the Department of Justice. The offence is a summary offence and the Local Court has jurisdiction. The matter has been listed for a three day hearing which commenced yesterday, on 19 February 2018. The first day of hearing was occupied with a challenge to jurisdiction. Detailed written and oral submissions by the prosecution and defence were made, and a number of authorities were referred to by the parties.
After reading those authorities and considering the submissions, these Reasons for Decision are being given ex tempore on the commencement of day two of the hearing. The Reasons will detail the defendant's challenge to jurisdiction and will engage with both parties' submissions, and provide reasons for the Court's determination of the jurisdictional issue. Section 200A of the District Court Act provides for the offence of disrespectful behaviour in court. Section 200A sets out the offence, disrespectful behaviour in court. Subsection (1) is the offence:

A person is guilty of an offence under this section if:
(a) the person is an accused person or a defendant in or a party to proceedings before the Court or has been called to give evidence in proceedings before the Court; and
(b) the person intentionally engages in behaviour in the Court during the proceedings; and
(c) that behaviour…

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 Elzahed (No 1)

Details

AGLC: R v Elzahed (No 1) [2018] NSWLC 21
Case: [2018] NSWLC 21
Decision Date: 20 February 2018

CaseChat Overview and Summary

The case of R v Elzahed (No 1) involved the defendant, Elzahed, who was being prosecuted in the Local Court of Australia. The dispute centred on whether the proceedings against Elzahed had been validly commenced. The central issue was whether the Attorney General's consent to the prosecution had been properly obtained and whether any delegation of authority to the Solicitor General was valid. The case required the court to examine the legal framework governing the authorisation of prosecutions by the Attorney General and the validity of any delegation of that authority.

The court was tasked with determining several key legal questions. Firstly, whether the Attorney General's consent to the prosecution was validly given for the particular offences before the court. Secondly, whether the delegation of authority by the Attorney General to the Solicitor General was valid, including the specificity of the delegation instruments. Thirdly, whether the authorisation of the prosecution was validly made, and finally, whether the proceedings were not validly commenced by the Attorney General, which would result in the court lacking jurisdiction.

The court held that the proceedings had been validly commenced. It found that the Attorney General's consent to the prosecution was appropriately given, and any delegation of authority to the Solicitor General was valid. The court examined the wording of the delegation instruments and determined that they were sufficiently specific to confer the necessary authority. Consequently, the authorisation of the prosecution was valid, and the proceedings were properly commenced by the Attorney General. As a result, the Local Court had jurisdiction to hear the case.

Orders

Orders of the court

The proceedings were validly commenced and the Local Court accordingly has jurisdiction to hear the proceedings

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Elzahed (No 1) [2018] NSWLC 21
Hearing dates:	19 - 21 February 2018
Decision date:	20 February 2018
Jurisdiction:	Criminal
Before:	Huntsman LCM
Decision:	The proceedings were validly commenced and the Local Court accordingly has jurisdiction to hear the proceedings
Catchwords:	CRIMINAL PROCEDURE – commencing proceedings - whether Attorney General’s consent validly given to prosecution of the particular offences before the court - whether delegation by Attorney General to Solicitor General was invalid - whether instrument of delegation invalid on the words of instruments for lack of specificity - whether authorisation of the prosecution validly made - whether proceedings not validly commenced by Attorney General such that there is no jurisdiction
Legislation Cited:	District Court Act 1973, s 200A Solicitor General Act 1969, s 4
Cases Cited:	Berwin v Donohoe (1915) 21 CLR 1 Crichton v Victorian Dairies Limited [1965] VR 49 McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127 McConnell Dowell Constructions Australia Pty Ltd v Environment Protection Authority (unreported, NSWCCA, 25/10/96) Oates v Williams [1998] 84 FCR 348 R v Bacon [1973] 1 NSWLR 87 R v Cain [1976] QB 496 Robinson v Eureka Operations Pty Limited (2008) 192 A Crim R 234 Traveland Pty Ltd v Doherty (1982) 63 FLR 41
Category:	Procedural and other rulings
Parties:	NSW Department of Justice (prosecution) Moutiaa Elzahed (defendant)
Representation:	Counsel: Mr D Kell SC with Ms A Mitchelmore (prosecution) Mr D Hume (defendant) Solicitors: NSW Crown Solicitors Office (prosecution) Z Burrows (defendant)
File Number(s):	2017/140056