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

1. 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.

2. 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 is disrespectful to the Court or the judge presiding over the proceedings according to established court practice and convention.

3. The maximum penalty is 14 days imprisonment or ten penalty units, that is a fine, or both, and subs (2) defines behaviour and subs (8) provides:

Proceedings for an offence against this section may be commenced only with the authorisation of the Attorney General. Authorisation may be given by the Attorney General whether or not the disrespectful behaviour is referred to the Attorney General by a Judge under this section.

4. The Court Attendance Notices allege a number of offences in breach of s 200A(1). There are three offences said to have been committed on 28 November 2016, one offence on 29 November, two offences on 30 November, and three offences are alleged to have occurred on 7 December 2016. The defendant applies for an order that the Court Attendance Notices be quashed and/or that the proceedings be permanently stayed. The basis of the application is that the proceedings were commenced in breach of s 200A(8) of the District Court Act 1973 and that the proceedings were not authorised as required by the legislation. It is submitted that because the proceedings were commenced in breach of s 200A(8) then there is no jurisdiction.

5. The application is opposed by the prosecution. The prosecutor submits that each of the contentions of the defendant should be rejected. Before considering further the grounds of the jurisdictional challenge, it is important to detail the evidence submitted in support of the parties' submissions. Exhibit 1 is the instrument of delegation by the Attorney General under the Solicitor General Act 1969, s 4, and is dated 18 December 2016. Exhibit 2 is the authorisation by the New South Wales Solicitor General, under delegation from the Attorney General, for the commencement of the current proceedings, dated 9 February 2017.

6. The delegation is also subject to challenge by the defendant. The instrument of delegation, exhibit 1, states that:

The Instrument of Delegation states that the Attorney General of New South Wales does, by this instrument made under section 4 of the Solicitor General Act 1969, delegate to the Solicitor General in and for the said State, the exercise or discharge of the powers, authorities, duties and functions as may from time to time be exercised by the Attorney General, including a power, authority, duty or function conferred on the Attorney General as the Minister administering the Act, in relation to the following provisions: matters arising under, or incidental to, or involving;

….Section 200 A of the District Court Act 1973.

7. The Solicitor General's authorisation, stated to be made pursuant to the delegation, is a six page typed document and it is exhibit 2 on the jurisdictional issue. The last paragraph of that document states as follows:

In these circumstances, under delegation from the Attorney General, I authorise the commencement of proceedings for any possible offences identified from the transcript, interviews and CCTV footage referred to above, contrary to s 200A of the District Court Act, against Ms Elzahed in relation to her conduct before Balla DCJ in civil proceedings in the District Court on 28 November 2016, 29 November 2016, 30 November 2016 and 7 December 2016.

8. On p 1 of the Solicitor General's document, or exhibit 2, it is noted by way of background that there were civil proceedings by Ms Elzahed and three other plaintiffs in the District Court for damages for injuries allegedly suffered during the execution of a search warrant by New South Wales Police and the Australian Federal Police on 18 September 2014, and that Ms Elzahed was the first plaintiff in those proceedings. The hearing of the action commenced before Balla DCJ on 28 November 2016 and continued on 29 November, 30 November, 1 December, 2 December and 7 December 2016. Judgment was reserved by Balla DCJ on 7 December 2016 and on 15 December 2016 Balla DCJ entered verdicts for the defendants.

9. On pp 2, 3 and 4 of the Solicitor General's document, or exhibit 2, further background information in relation to the proceedings before Balla DCJ are detailed and available evidence in relation to the alleged offences is considered. This will be further discussed in these Reasons.

10. The defendant submits that having regard to the terms of s 200A(8) and the instrument of delegation and the Secretary General's purported authorisation, as set out in exhibit 2, it is clear that the proceedings were not authorised as required by the legislation. There are three limbs to the defendant's submission.

11. The first is that the Attorney General's authorisation is a precondition to the commencement of proceedings, and it is submitted that what must be authorised is the commencement of the particular proceedings. It is submitted that the Solicitor General did not authorise the commencement of the particular proceedings instituted by the Court Attendance Notices. Instead, what was authorised was the commencement of proceedings "for any possible offences identified from transcript, interviews and CCTV footage referred to above contrary to s 200A of the District Court Act".

12. The second contention is that the exercise of the discretion to authorise commencement of the proceedings miscarried. It is submitted that the power to authorise proceedings is discretionary. The provision does not, in terms, identify constraints on the power to authorise, however, the discretion must be exercised for the purpose of obtaining the object and securing the purpose of the power.

13. It is argued by the defendant the object is disclosed by excerpts from the Second Reading Speech. It is submitted that the object is to act as a safeguard by ensuring that prosecutions are commenced where a prosecution should be commenced, because its commencement is in the public interest, or at least not contrary to the public interest. It is submitted that the public interest is the object and criterion for the exercise of the power and this is underscored by parliament's choice to vest the power to authorise proceedings in the Attorney General, who may be presumed to be an officer appropriate to making assessments as to what is in the public interest.

14. It is submitted that it would be an error for the Attorney General or his or her delegate to think that the criterion for the exercise of the authorisation power is whether the prosecution is reasonably arguable or would have reasonable prospects of success, and that this would be to ask the wrong question or misunderstand the power being exercised. It is further submitted that in the exercise of the power, the public interest is a mandatory consideration, because otherwise the purpose of the provisions in ensuring prosecutions only occur where they are considered to be in the public interest, would not be achieved. It is submitted that the power is to be exercised for the purpose for which it is given, namely for the purpose of advancing the public interest.

15. It is submitted the decision maker breached these requirements and that the sole matter which the Solicitor General considered to be relevant to the authorisation power was whether a prosecution was arguable. It is submitted there is no mention in the Solicitor General's reasons of whether a prosecution is in the public interest, nor is there any mention of whether a prosecution should occur. It is therefore submitted that the discretion miscarried, with the result that the purported authorisation is not, in law, an authorisation at all.

16. In oral submissions the provisions of subs (6) of s 200A were noted by Defence Counsel as providing protection by restricting those empowered to conduct a prosecution. It is stated that given this provision, subs (8) must have been intended to have more work to do and therefore the function given to the Attorney General must involve public interest considerations. I note that subs (6) provides:

Proceedings for an offence against this section may be brought only by a person or a member of a class of persons authorised in writing by the secretary of the Department of Justice for that purpose.

17. The defendant's third contention is that the delegation to the Solicitor General was invalid. If the delegation was invalid then the Solicitor General did not have the power to grant the authorisation. The source of the power to delegate is s 4 of the Solicitor General Act and this provides for delegation only of such functions as are specified in the instrument of delegation. The word "specified" imports requirements of clarity and precision and is not satisfied by vague generalities. It is stated that the delegation retains an impermissible degree of imprecision in its wording.

18. Without summarising the imprecisions advanced by Counsel for the defendant in these Reasons for Decision, I have carefully considered the written and oral submissions advanced in support of this contention. The defendant submits that if any of these three contentions are accepted, the result is that these proceedings were not commenced with the valid authorisation of the Attorney General. Such a valid authorisation is an essential precondition to the prosecution of an offence under s 200A(1). Defence Counsel submits that proceedings instituted in breach of that condition are an abuse of process or otherwise liable to be struck out or permanently stayed, and it is submitted that the purpose of the provision is that proceedings should not be brought without the Attorney General's authorisation and if the executive could bypass the Attorney, that would frustrate the safeguard purpose of the provision.

19. It is submitted that the purpose is particularly important given that s 200A is capable, it is submitted, of interfering with the rights of litigants and because abuse of power is capable of affecting relations between the Judiciary and the Executive.

20. Counsel for the prosecution provided detailed written and oral submissions, which I have also carefully considered. I will not detail all of those submissions but will highlight the main points. The prosecution submits that, consistent with a long line of authority, the purpose of a provision such as s 200A(8), which imposes a requirement of an authorisation or consent for a prosecution, is effectively to provide a filter or safeguard to ensure that arbitrary or vexatious proceedings are not brought.

21. A number of authorities are referred to and quoted by Counsel for the prosecution in detailed written submissions. A copy of those authorities were also provided to the Court and I have read and considered each of those authorities. I will refer to them in these Reasons for Decision. The prosecution submits that s 200A(8) does not require the Attorney General or delegate to authorise the precise form of the charges in fact brought. It is submitted this is evidenced from a line of cases which are set out in the written submissions. It is thereby submitted that the defendant's first contention ought to be rejected and the Court should find that the proceedings against the defendant were validly authorised.

22. The prosecution submits in relation to the defendant's second contention - to the effect that the Solicitor General, in exercising the power under s 200A(8), failed to ask himself the right question and failed to have regard to a mandatory consideration, namely whether it was in the public interest that a prosecution should occur - should be rejected having regard to the following matters. Firstly, subsection 200A(8) does not specify that the public interest is a mandatory consideration for the exercise of the power under the provision. Although the absence of a reference to the public interest is not in itself determinative, it is significant that the legislature did not prescribe the public interest or any other consideration as mandatory in circumstances where it is apparent that the legislature otherwise turned its mind to what was required in order to commence proceedings for an offence under the section.

23. Secondly, the evident purpose of subsection 200A(8) is to prevent the bringing of frivolous or vexatious proceedings such as might be brought by a disgruntled litigant. By its nature it is not a provision that mandates consideration of public interest considerations beyond providing that filter thus described. Thirdly, even if there were a requirement to consider whether it was in the public interest that a prosecution should occur, the defendant has not established that consideration was not so given. It is submitted that the Solicitor General's document, which is exhibit 2, does not purport to be and should not be regarded as a statement containing the exclusive reasons as to the decision to authorise. The concepts of reasonable prospects of success and public interest are also not mutually exclusive, it is submitted.

24. Consideration that a matter has reasonable prospects of success is a matter that directly informs the question of whether a prosecution is in the public interest; thus, it cannot properly be said that by having regard to the question of the prospects of success in the document, or exhibit 2, the Solicitor General did not consider the public interest.

25. As for the third contention, that the delegation from the Attorney General to the Solicitor General was not valid, the prosecution submits this argument should be rejected. Counsel for the prosecution notes the Macquarie Dictionary online defines "specify" as relevantly meaning, "to mention or name specifically or definitely state in detail".

26. The prosecutor notes, when considered by courts, the use of the word "specify" or "specified" in a statute has been interpreted as importing requirements of clarity and precision, rather than, for example, what may be referred to as vague generalities. The starting point where something must be specified is that it must be stated clearly. The meaning of "specify", like any other word used in legislation, will take its meaning from its context.

27. The prosecution submits that the Attorney General's powers, authorities, duties and functions under s 200A of the District Court Act, including subsection (8) are specified in the instrument of delegation, which must be construed in line with ordinary principles of statutory construction, including applicable statutory provisions. In the instrument the Attorney General relevantly delegated to the Solicitor General:

…the exercise or discharge of the powers, authorities, duties and functions which may from time to time be exercised by the Attorney General in relation to the following provisions...s 200A of the District Court Act 1973.

28. It is maintained by Counsel for the prosecution that the powers, authorities, duties and functions delegated under the instrument are identified specifically and definitely in the instrument in explicit terms, not by vague generalities and not by inference, but by direct statement. It is further submitted that the text before the colon in the instrument of the delegation is clear in its terms. It is submitted that although the defendant relies on the word "including" on the fifth line of the instrument to suggest that what then follows are words of expansion, the word "including" needs to be read in context, so read, it is apparent that if and to the extent that the word is intended to expand the delegation, any such expansion is specifically with reference to "a power, authority, duty and function conferred on the Attorney General as Minister".

29. The prosecutor submits it does not follow from the commencement of this subordinate phrase with the word "including", that the scope of the delegation in the text before the colon is unconfined in its terms or otherwise uncertain. The phrase, "matters arising under or incidental to", does not deny the instrument the character of specifying the powers, authorities, duties and functions delegated. The relevant power, authority, duty or function of the Attorney General is the power contained within s 200A(8) to authorise the commencement of the proceedings for an offence under this section. The prosecutor thereby submits that the instrument of delegation and consequent authorisation to commence the proceedings are valid and that the defendant's contentions should be rejected.

Findings

30. In relation to contention 1, in determining this contention I have had regard to the authorities referred to by the parties. This is important in deciding whether the specific offences subject of the Court Attendance Notices are required to be specifically authorised, as contended by the defendant. Those authorities are Berwin v Donohoe (1915) 21 CLR 1, which I will refer to as Berwin; Crichton v Victorian Dairies Limited [1965] VR 49, which I will refer to as Crichton; McConnell Dowell Constructions Australia Pty Ltd v Environment Protection Authority (unreported, NSWCCA, Cole, Sully and Adams JJ, 25 October 1996), which I will refer to as McConnell; there is also the further authority, McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127; Oates v Williams [1998] 84 FCR 348, which I will refer to as Oates; R v Bacon [1973] 1 NSWLR 87; R v Cain [1976] QB 496; Robinson v Eureka Operations Limited (2008) 192 A Crim R 234, the decision of James J; and Traveland Pty Ltd v Doherty (1982) 63 FLR 41, a decision of the Full Court of the Federal Court (referred to as Traveland).

30. For the following reasons, I agree with the submission of the prosecution that there is a line of authority which is of assistance in resolving the issue. I have carefully considered the oral submissions made by Defence Counsel in relation to the authorities, but after review of the authorities, I agree with the position advanced in the written submissions of Counsel for the prosecution as follows. I will briefly refer to the relevant authorities.

31. In the decision of Berwin, it was argued that there was no evidence that the consent of the Attorney General had been given to the prosecution as required by the Trading with the Enemy Act 1914, which was the relevant statute before the Court, and that the written consent of the Attorney General was not in fact given to the initiation of that prosecution.

32. Griffin, Gavin, Duffy and Rich JJ did not determine this issue because they allowed the appeal on other grounds. Isaacs J, at 24, 25 and 26, Higgins J at 28 and Powers J, all agreed that the appeal failed on that point, finding that the Attorney had given consent. Isaacs J states the object of the statute in that case is:

…obviously to prevent persons being harassed by private prosecutions which patriotic fervour might induce without a careful examination of the circumstances of the particular case… The written consent of the Attorney General is required for the prosecution of an offence under s 3.

34. The Attorney General was found to have signed a consent in these terms:

The Attorney General of the Commonwealth hereby consents to a prosecution being instituted [against the named defendant in the case] for an offence against the Trading with the Enemy Act.

35. Isaacs J went on to state:

If it is to be presumed that the Attorney General has done his duty in examining the circumstances of this case, his consent in the terms in which he has given it is sufficient…. A complicated set of circumstances may be reviewed by the Attorney General and his consent to a prosecution under the Act may be given in general terms, leaving it to the Crown Solicitor to formulate the charge. If the precise form of the charge were necessary to be stated then the provisions in the Justices Act and Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative.

36. Higgins J notes at 28:

It is said that this consent is not sufficiently specific, does not specifically refer to this particular prosecution. It is not portended that there is any other prosecution to which it could possibly refer.

37. Higgins J goes on to say:

In as much as the prosecution in this case answers the description of the prosecution to which consent has been given, it is not necessary for the prosecutor to give evidence identifying the former with the latter. It is for the accused to rebut the presumption that the consent refers to this prosecution.

38. In the decision of Crichton, a decision of the Supreme Court of Victoria, the decision of the High Court in Berwin was applied. The Court noted at 59 that it was submitted in the case before the Court that the consent was bad for what was described as generality. The Court refers to the decision of Isaacs J in Berwin and states "For the reasons given in the dicta of these Judges, the present submission must fail". The Court goes on to observe:

There may be circumstances where a consent is given in such wide terms as to be a consent to no proceedings in particular, but we are unable to agree that this consent falls into any such class.

39. The consent in question in the case involved consent to take proceedings against the company for penalties imposed by the Companies Act 1961 for failing to comply with the requirements of Div 2 of Part 4 of the Companies Act 1961.

40. The decision in McConnell, a decision in the New South Wales Court of Criminal Appeal per Cole, Sully and Adams JJ, applied the decisions of Crichton and also Traveland, which I will refer to below, quoting from Traveland at 45.

41. The decision of Oates involved a decision under s 1316 of the Corporations Law. The Full Court of the Federal Court examined what the Minister must decide when giving consent under s 1316 as to whether it is reasonable to allow a prosecution out of time.

42. Relevantly, the Court noted the distinction between the decision under review by the Court, that is whether to allow the prosecution out of time, and a decision to commence a prosecution or to consent to the commencement of a prosecution, and I quote:

A decision taken under s 1316 has little in common with a decision to commence a prosecution or a decision to consent to the commencement of a prosecution. In the first place, the effect of a decision under s 1316 is to take away from an accused the ability to plead an absolute answer to a criminal prosecution.

43. The Court notes that that is a very important right or immunity, and goes on to state:

On the other hand, a decision to commence a prosecution or a decision to consent to the commencement of a prosecution does not affect any right of the accused. Secondly, the matters that fall for consideration when making these decisions are different. In the case of a decision to prosecute, the decision maker must decide whether there is a prima facie case. When a consent to a prosecution is required, the decision maker is only concerned to determine whether the proposed prosecution is frivolous or vexatious but is not otherwise concerned with the merits of the case.

44. The Court's decision in Oates is clearly stated to be considering a different kind of Minister's decision and a different category of decision to the one that I am required to consider in the present case. In the decision of R v Cain, a decision of the English Court of Appeal, the English Court cites the decision of Berwin with approval and goes on to state at 502 that:

The purpose of requiring the Attorney General's consent to prosecutions under the Act [in the case that was before that Court] is to protect potential defendants from oppressive prosecutions under the Act….. It is not necessary that the Attorney General should have considered and approved every detail of the charge as it ultimately appears in the indictment. His duty is to consider the general circumstances of the case and to decide whether any, and if he thinks fit, which of the provisions of the Act can properly be pursued against the defendant who has been charged before the magistrate with one such offence. If the Attorney General considers that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case.

45. I note that each of the authorities that I referred to deals with different legislative provisions, but there is a line of reasoning which I am detailing and which is relevant. The decision in Traveland was relied upon by the prosecution as adopting the line of authority I have just detailed, being that the consent to prosecution or institution of proceedings does not need to define or particularise the precise offence or offences with which the prospective defendant should be charged. Traveland was a decision of the Full Federal Court on appeal. At 46 the Court sets out that:

It is clear from the provisions of s 163(4) that the consent in writing of the Minister to the institution of a prosecution for an offence under the Act must be given before the proceedings are instituted. The subsection contains no express provision as to the form which the consent should take or as to the detail or particularity with which the proceedings must be identified. The object of the requirement [in the statute for] consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or where appropriate, his delegate) considers that it should.

46. The Court notes that this provision would not be satisfied unless the Minister has in truth consented to the proceedings in question. The Court goes on to state:

It does not, however, follow that it is incumbent upon the Minister to restrict his consent to the institution of a prosecution for but one offence, or that the consent should either define or particularise the precise offence or offences with which the prospective defendant should be charged. What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent.

47. The Court goes on to cite with approval the decision in Crichton that the requirement would preclude a consent in such wide terms as to be a consent to no proceedings in particular. The Court went on to observe:

On the other hand, it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings.

48. The Court goes on to cite words to similar effect in Berwin per Isaacs J in relation to the effectiveness of the consent given in general terms. The Court also notes the comments of Isaacs J were cited with approval by the English Court of Appeal in R v Cain. In the decision of Robinson, Traveland is applied (refer 246).

49. I am therefore satisfied that the line of authority which I have detailed and summarised indicates that for a consent authorising institution of proceedings to be valid, it is not required that the particular Court Attendance Notice, or indeed, the particulars of the offence, be subject to the authorisation.

50. I find further that it is clear from the Solicitor General's document, which is exhibit 2 in these proceedings, that authorisation was given for the commencement of proceedings for offences contrary to s 200A of the District Court Act against the defendant in relation to her conduct before Balla J in civil proceedings in the District Court on 28 November 2016, 30 November and 7 December 2016. The authorisation notes the offences are identified from the transcript, interviews and CCTV footage referred to in the document. The authorisation states the offences contrary to s 200A of the District Court Act.

51. The authorisation identifies the defendant and details the circumstances of the offences and identifies those circumstances as being the defendant's conduct before Balla J in civil proceedings in the District Court on the dates set out in the authorisation. I am satisfied, having regard to the authorities which I have detailed and the words of the authorisation in exhibit 2, that the Solicitor General turned his mind to the particular proceedings which were ultimately instituted and provided authorisation for the commencement of these proceedings.

52. In relation to the second of the defendant's contentions, this requires me to examine exhibit 2 in some detail, as have the parties in their submissions. The defendant refers to exhibit 2 as the statement of reasons; the prosecution is concerned to indicate that the document cannot be referred to as a statement of reasons. Whether or not it can be considered a statement of reasons has not been determinative in my reasons. The document is entitled, "Question of whether proceedings in contempt for an offence against s 200A of the District Court Act 1973 should be instituted against Ms Moutia Elzahed”. It is a six page document which ends with the last paragraph being the authorisation.

53. The document contains a section entitled, "Background", which commences at p 1 and continues through to p 4 of the document. Page 5 of the document details the provisions of the statute and the offence under s 200A. Relevantly, at p 5 of the document, or exhibit 2, it is stated:

Proceedings for an offence against s 200A(1) may be commenced only with the authorisation of the Attorney General s 200A(8). By a delegation made by the then Attorney General and dated 8 December 2016, under s 4 of the Solicitor General Act 1969, the Solicitor General has delegated the powers, authorities, duties and functions of the Attorney General under s 200A of the District Court Act. Accordingly I may exercise the function under delegation from the Attorney General authorising proceedings for an offence under s 200A(1).

54. The Solicitor General goes on to note that proceedings for such an offence may be brought only by a person or a member of a class of persons authorised in writing by the Secretary of the Department of Justice, s 200A(6). In pp 2, 3 and 4 of the document, the Solicitor General sets out the District Court proceedings, relevant aspects of the transcript of the hearing, witness evidence, and in all of that material, the actions of the defendant in not standing for the Judge on several occasions throughout the proceedings are referred to.

55. It is clear from reading those pages of exhibit 2 that the behaviour in court being considered by the Solicitor General in providing his decision to authorise the institution of the proceedings was the failure of the defendant to stand when Balla J entered and left the Court on a number of occasions. CCTV footage of the Courtroom is also referred to. The Solicitor General notes that it might be assumed, but could be the subject of evidence, that standing when a Judge enters and leaves the Courtroom is an established Court practice and convention.

56. It is clear from the material set out in exhibit 2 that the conduct or behaviour considered by the Solicitor General in making the authorisation was the conduct of the defendant in not standing for the Judge in those District Court proceedings. The Solicitor General also indicates that there have been no previous prosecutions under this provision and that there are or may be alternative views as to what was required to be proved in a prosecution in relation to a defendant's intention. In considering this point the Solicitor General also considers and states the explanation given to the Court at the time for her failure to stand, being her religious belief.

57. It has been necessary for me to consider the document which is exhibit 2 in some detail because the defendant's submission is that the Solicitor General restricted his decision in the exercise of the authorisation power to a question of whether the prosecution is reasonably arguable. I am not satisfied, after reading exhibit 2, that the sole matter which the Solicitor General considered to be relevant to the authorisation power was whether a prosecution was arguable as is contended by the defendant. It is clear that the Solicitor General considered the evidence and description of the behaviour or conduct in question, being alleged repeated behaviour to refuse to stand for the Judge in the District Court in civil proceedings.

58. The Solicitor General also considered the evidence in support of the allegations, being CCTV footage, transcript of proceedings and witness statements about the defendant not standing. The Solicitor General also considered the different legal arguments or tests which may apply to the element of the defendant's intention and considered the defendant's reason for not standing as being one of religious belief. Given these considerations, I am not satisfied that the only consideration in making the authorisation was whether the prosecution had arguable prospects of success. Rather, the Solicitor General considered a number of factors, including the defendant's belief.

59. I also agree with the prosecution's submission that a decision that proceedings would have reasonable prospects of success is not exclusive of considerations of public interest. I am not satisfied, as is contended by the defendant, that the Solicitor General improperly exercised the power which was delegated to him, and I am not satisfied also that the defendant has established that the Solicitor General did not consider the public interest, given the matters which were considered, as detailed in the preceding section of my reasons. I am also not of the view that the public interest is a mandatory consideration, having regard to the terms of the legislation, which does not prescribe such a consideration, and also having regard to the Second Reading Speech.

60. The Second Reading Speech refers to the very conduct which has been considered by the Solicitor General in exhibit 2 setting out the authorisation, that is, the alleged behaviour of the defendant in repeatedly not standing for the Judge as being an issue of concern. That is set out in the Second Reading Speech introducing the bill, the Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016. There is a preamble, but it is noted in the first paragraph:

Courts are a fundamental part of our society and our system of government. We rely on our courts to enforce our laws to adjudicate individual disputes, and most importantly, to deliver justice and uphold the rule of law. The tradition and revered role of the courts is such that community expects that certain levels of behaviour should be adhered to in the Courtroom. …. Following and respecting the procedures and rules of the Court is integral to the smooth flow of proceedings and affording all involved their right to procedural fairness.

61. The Second Reading Speech notes that judges and magistrates have several ways of ensuring the smooth running of their courts, including the law of contempt, which deals with serious behaviour intended to disrupt and undermine the operation of the Court. The reading speech states:

However, in November 2015, a New South Wales District Court trial highlighted that other types of disrespectful behaviour such as a failure to stand for a judge, unaccompanied by any other overt intentions or actions, may not amount to contempt. The public reaction to this case revealed a strong and widely held community sentiment that behaviour in courts such as refusing to stand for a judge is unacceptable. However, the behaviour did not, in that instance, meet the threshold for a charge for contempt. This case confirmed the current law of contempt does not adequately reflect widespread community concern about the level of respect that should be shown to the court judiciary, court officers and wider justice system by people who appear in court.

62. It goes on to say:

The new offence introduced by this bill is a summary offence against deliberate behaviour in court that is disrespectful.

63. It states further that:

The bill sends a clear message that adherence to our laws and procedures of the judicial system is a fundamental expectation of all who appear before the courts.

64. The Second Reading Speech also indicates that:

The offence will apply to behaviour that is disrespectful to the Court or judge according to established court practice and convention. In this way the offence will reflect community expectations as to how people should conduct themselves when appearing in court.

65. The Second Reading Speech also sets out the way it anticipated the decisions to prosecute would proceed:

The decision to refer a person to be charged with a new offence will be at the discretion of the presiding judge or magistrate or on the initiative of the Attorney General. Proceedings may be brought only with the consent of the Attorney General or the Attorney's delegates, being the Solicitor General or Crown advocate. This is a significant safeguard because judges and magistrates have several tools to deal with unacceptable behaviour in court, and as with contempt referrals, this new offence should be used only where appropriate.

66. The Second Reading Speech goes on to note that:

The process for prosecuting the new offence will be similar to when a possible contempt of court matter is referred to the Attorney General for consideration. In keeping with the procedure for contempt, the matter would be referred to the Crown Solicitor's Office, who would then prepare an advice. The advice is then forwarded to the Solicitor General or Crown advocate, who as the delegate of the Attorney General will then make a determination as to whether a prosecution should proceed and the Bill provides that the offence can only be prosecuted by a person or class of persons authorised to do so by the Secretary of the Department of Justice. The prosecution of the offence will be conducted by the Crown Solicitor's Office as instructed by the Department of Justice and the Crown Solicitor's Office will have regard to the prosecution guidelines issued by the Office of the Director of Public Prosecutions ….. the Crown Solicitor's Office will consider discretionary factors in balancing whether prosecuting the matter is in the public interest.

67. I have referred to those parts of the Second Reading Speech referring to the role of the prosecuting authorities, because I consider that that provides support for the submission of the prosecutor that subs 200A(6) and 200A(8) are complementary and work together.

68. For the foregoing reasons I am not satisfied that the discretion miscarried as is asserted by the defendant. Therefore, the ground that the proceedings are invalidly commenced due to miscarriage of the discretion, is not made out. The third contention of the defence is that the delegation from the Attorney General to the Solicitor General was not valid. I have set out the competing submissions of the parties previously in these Reasons.

69. I have also set out that the Solicitor General has clearly stated his authorisation and clearly referred to the delegation in his authorisation. For reasons which I will briefly state, I agree with the submissions of the prosecutor. The words used in the instrument of delegation need to be read in context. The use of the word "including" did not render the text before the word "otherwise" uncertain. The relevant power, authority, duty or function of the Attorney General is the power contained within s 200A(8) to authorise the commencement of proceedings for an offence against the section. The instrument of delegation clearly sets that out. It specifies the powers, authorities, duties and functions delegated and their meaning is not rendered unclear.

70. I am therefore satisfied that the delegation from the Attorney General to the Solicitor General was valid for the reasons given. I therefore have decided that I disagree with the three contentions advanced by the defendant by which the defendant urges me to find that the prosecution was not validly commenced.

71. FOR ALL THE REASONS PREVIOUSLY STATED, I FIND THAT THE PROCEEDINGS WERE VALIDLY COMMENCED AND THE LOCAL COURT ACCORDINGLY HAS JURISDICTION TO HEAR THE PROCEEDINGS.

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Decision last updated: 19 September 2019