R v Michael Foxman

[2025] NSWLC 3

Local Court

New South Wales

Medium Neutral Citation:

R v Michael FOXMAN [2025] NSWLC 3

Hearing dates:

24 June 2024, 6 December 2024, 31 January 2025, 21 March 2025, 4 April 2025

Date of orders:

2 May 2025

Decision date:

02 May 2025

Jurisdiction:

Criminal

Before:

Donnelly LCM

Decision:

Second application for a permanent stay of proceedings is refused and dismissed

Catchwords:

Stay of proceedings – conduct of hearing – whether use of remote room to control proceedings constituted an abuse of process – defendant persistently speaking over his lawyer and interrupting the proceedings including evidence given by a witness – defendant given warning that the remote room would be used but failed to desist – use of remote room consistent with the approach taken in Eastman v The Queen (1997) 76 FCR 9 – discussion of the notion of fairness – requirement to afford natural justice and procedural fairness extends to the prosecution – DPP (NSW) v Chaouk [2010] NSWSC 1418 and The Queen v Lewis (1988)165 CLR 12 applied – fair trial principle does not entitle a defendant to talk over his or her lawyer during the proceedings – Henskens v Rudd [2020] NSWSC 533 applied

Cross-examination – requirement of the Court to intervene, control and sometimes cease cross-examination – defendant persistently failed to follow judicial directions as to the limits of cross-examination – defendant continued to interrupt and commentate instead of framing questions – the decision to cease cross-examination was not an abuse of process and was consistent with appellate authority of the subject – Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and Libke v The Queen (2007) 230 CLR 559 applied

Application for a stay to pursue causes of action in the Federal Court against judicial officers – judicial officers of courts referred to in s 77(iii) of the Commonwealth Constitution are immune from a civil suit – State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3 applied

Legislation Cited:

Evidence Act, ss 11, 26

Cases Cited:

Dietrich v The Queen (1992) 177 CLR 292

DPP (NSW) v Chaouk [2010] NSWSC 1418

DPP v Hamzy [2019] NSWCA 314

Eastman v The Queen (1997) 76 FCR 9

Henskens v Rudd [2020] NSWSC 533

Jago v The District Court of NSW (1989) 168 CLR 23 Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243

Libke v The Queen (2007) 230 CLR 559

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

Newson v Ly [2001] NSWSC 1117

State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3

Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325

The Queen v Lewis (1988)165 CLR 12

Texts Cited:

JJ Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 ALJ 29

Category:

Procedural rulings

Parties:

New South Wales Police Force (Prosecution)

Michael Foxman (Defendant)

Representation:

Solicitors:

Mr L Bonney, M & M Lawyers (24 June 2024 only) (Defendant)

Sergeant L Mussing (Prosecution)

File Number(s):

2021/00238823

Publication restriction:

Nil

Judgment

1. The defendant has been charged with three offences: do an act with intent to pervert the course of justice; do an act with intent to influence a witness; and intimidate a person with intent to cause fear of physical or mental harm.

2. The defendant has made a second application for the criminal proceedings to be permanently stayed. The defendant relies on a multitude of grounds including the manner in which the hearing was conducted on 24 June 2024 and 6 December 2024. One aspect of the defendant’s stay application is that the hearing conducted on 24 June 2024 and 6 December 2024 was unfair because the court took the step of utilising the remote room. (See later exchange with the Bench on 31 January 2025 transcript at page 3.45).

3. In order to understand why the Court took that unusual course it is necessary to set out the course of proceedings. The defendant has claimed that what occurred was judicial and procedural misconduct.

4. By way of background the defendant was represented by Mr Bonney on the first day of the hearing of 24 June 2024. The hearing was adjourned to 6 December 2024. Mr Bonney withdrew from the hearing before that date. He filed a notice of ceasing to act. On 6 December 2024 the defendant was self represented. He brought a dog with him. The NSW Sheriff’s Office is responsible for “the safe and successful operation of state courts” ( The Sheriff on duty informed the court that the defendant could be in the remote room with a dog. That was the course the court took. See transcript of 6 December 2024 at pp 5-6.

Hearing on 24 June 2024

5. On 24 June 2024, the defendant repeatedly talked over his legal representative, Mr Bonney, from the body of the court. The following page numbers below are taken from the transcript of that day.

6. The transcript reveals that the defendant interrupted on pages 2.45, 3.4, 4.30ff, 5, 7.40, 10.15, 10.30, 10.40, 11.05, 11.45, 12.05, 12.10, 12.40, 13.5 (at which stage he was informed by the Bench that he cannot keep interrupting), 14.10, 14.15, 14.20, 15.20 (here the Bench thought the comment came from the prosecutor but the prosecutor then made clear it did not and the transcript in fact shows it came from the defendant), 16.25 (an extensive comment by the defendant concerning self-defence and his moral rights) 16.35, 18.15, 18.25, (the Bench told the defendant “Sir I can’t hear your lawyer”) 19.05, 19.10, 19.20, 19.25, 20.05, 20.10 (the Bench said to the defendant “Alright Sir, please, please your lawyer is already talking”) 20.20, 20.25 (the Bench then informed the defendant “You’re talking over people”), 20.30, 21.10, 23.20 and 23.25.

7. Then the following exchange occurred:

HIS HONOUR: Sir, if I can’t conduct proceedings, because you interrupt, I will have to have you removed. So, if you keep talking over me - if I am trying to read something, and you are talking as I’m reading it, that interrupts my - it breaks my concentration.

ACCUSED: I’m sorry, your Honour.

HIS HONOUR: If you break my concentration then I can’t adjudicate.

ACCUSED: I’m a bit--

HIS HONOUR: If I can’t adjudicate, that means I have to conduct proceedings where I can adjudicate. If it requires removal of you to somewhere else, maybe a remote room with a mute button, I will do it.

ACCUSED: I’m entitled to procedural fairness, and I’m entitled to--

HIS HONOUR: You are, but you are not entitled to commentate during the case. So, Mr Bonney, in terms of conducting the proceedings, this is a complex evidentiary argument that I’m grappling with.

If I can’t adjudicate, that means I have to conduct proceedings where I can adjudicate. If it requires removal of you to somewhere else, maybe a remote room with a mute button, I will do it.

BONNEY: Yes, your Honour.

HIS HONOUR: My position has become fairly crystallised here. There’s been a number of interruptions. I want your client to hear proceedings. I want your client to see proceedings, but I don’t want your client to talk through proceedings. So, if it happens one more time, then my suggestion would be, I would ask the registrar if we can get access to a remote room where he can see and hear proceedings, but he can’t interrupt proceedings because I can mute the sound coming out of the room. That’s the position.

I want him to have a fair hearing. I’m doing my best in the circumstances. It’s not easy concentrating on issues of evidence where I’m getting competing submissions, and I’ve got some complex factual material to absorb. In terms of the administration of justice, I want your client to have a fair hearing according to law. Procedural fairness requires him to be able to see the proceedings, hear the proceedings, talk to you his lawyer. That’s what I want to happen.

So, if that’s being impeded - if the administration of justice is impeded by persistent interruptions and references to law which is not coming from the parties, then I will take that step. So, I just pause now, and then we will see how we go. But that’s what I am proposing, and I’ll have to work out whether - it might be easier for him, I don’t know. Perhaps, it might be easier for your client to sit in and have this commentary to himself, I don’t know. But in terms of the administration of justice it has got to a point now where Sergeant Mussing is being talked over. I can’t concentrate, so I’m getting to a point where I do want him to have a fair trial, but I do want him to make sure he doesn’t interrupt me - break my concentration. I’ll put it that way.

BONNEY: I might just put on the record there’s a context of mental health.

HIS HONOUR: Yes.

BONNEY: So, it’s not a disrespect to you.

HIS HONOUR: No, I understand that.

BONNEY: There are some factors at play.

HIS HONOUR: Yes. They are accepted.

8. The prosecution witness was then recalled following a legal argument. The defendant then interrupted proceedings when the witness was asked whether the defendant had participated in a recorded interview (see 28.15). The witness was asked the same question again and the defendant interrupted again at 28.20. At that stage the witness was excused temporarily for the Court to deal with the issue of interruptions. The defendant interrupted again at 28.25 and the following exchange occurred from 28.30:

HIS HONOUR: In this case, Mr Foxman, I did ask you before that you couldn’t interrupt proceedings. You’ve interrupted the proceedings. What I am proposing is to put you in a room where you can see and hear proceedings.

ACCUSED: Your Honour, I need to go to the hospital and get some treatment, because I’ve got OCD, and I’ve been tortured before, your Honour. This is a - your Honour I’m going to go to hospital.

HIS HONOUR: So, we can get you a room. Can we ask whether the remote room is available? So, what we are going to do - I want you to hear proceedings. I want you to see proceedings--

ACCUSED: None of you guys are listening. You’re not allowed to--

HIS HONOUR: You can’t commentate during the proceedings. You’re interrupting.

ACCUSED: Your Honour, I am acting in an act of self-defence, in accordance with s 418 of the Crimes Act.

HIS HONOUR: Your lawyer can articulate that.

ACCUSED: I am acting as an act of necessity. I am entitled to competent legal representation. I’m not saying that the gentleman here is not competent, but he just walked into it today.

HIS HONOUR: No, sir, please.

ACCUSED: Your Honour, the law clearly states--

HIS HONOUR: I’m going to take an adjournment. Mr Bonney, really the question is—

ACCUSED: The Mental Health Act is legislation.

HIS HONOUR: Because your client is interrupting proceedings, whether he would feel better in a room where he can see and hear, but he can’t interrupt proceedings. Because I can’t conduct proceedings in this way. The witness was interrupted on a basic question. I do want him to have a fair hearing. It’s important he has a fair hearing.

There’s ways of doing it because, obviously, he wants to commentate during the course of the hearing. That’s not possible because I can’t concentrate. The administration of justice needs to have silence when people answer questions. So, we will take an adjournment and I want to make this procedural change, and hopefully we can get on with the hearing, and he can hear and see the hearing too.

ACCUSED: Your Honour, that’s going to cause too much damage.

9. After the short adjournment the Bench asked the parties whether they wanted to be heard any further in relation to the remote room option. Mr Bonney on behalf of the defendant declined the invitation. The Court gave a ruling (See transcript at 30) with reference to inter alia the Full Federal Court decision of Eastman v The Queen (1997) 76 FCR 9.

10. Mr Bonney then raised the issue of how the use of the remote room would impact upon the ability of the defendant provide instructions during the hearing. The following exchange occurred:

BONNEY: I’m instructed that Mr Foxman will feel like he is prejudiced if he’s placed into the room on the basis that he can’t provide instructions to me. On that basis he opposes that course.

HIS HONOUR: So, in terms of the issue of instructions, the Court can adjust this proceeding so that the prosecution can adduce evidence-in-chief, at the end of which I will allow you to confer with him, so there’s a break. When you start your cross-examination you will be adequately instructed, because he will have heard the witness and can give instructions accordingly. He’s not allowed to talk during in-chief anyway, so that I don’t see any prejudice there in terms of instructions, but if the Court pauses - I’ve done this before - to allow the advocate and the client to confer and then resume the proceedings that’s how I propose to overcome the instructions issue.

BONNEY: If the Court pleases, your Honour.

HIS HONOUR: So, that’s the position. The interruption of proceedings can’t continue. It’s just not a tenable course. So, on that basis, the way I’ll approach this is that’s the position. So, Mr Foxman, you’ll have to be in the remote room. Sheriff, is that room available?

ACCUSED: That would be denying me my right to procedural fairness and my right under s 418 of the Crimes Act, I’m asserting my right to self-defence.

HIS HONOUR: Yes, thank you. Sir, I will have to remove you from the Court. The sheriffs will take you to that remote room so that you can see and hear proceedings. If you don’t want to do that, you need to be removed from the Court.

ACCUSED: I’m going to go to the hospital, your Honour.

HIS HONOUR: Sir, you can talk to your lawyer. Mr Foxman is to be removed from the body of the Court. He has to be in the room. That’s the position. The Court has just made a ruling.

ACCUSED: I’m going home. I’m going to the hospital. I’m not being incarcerated in a room, because I’ve been malicious to the prosecutor. And under s 418 of the Crimes Act--

HIS HONOUR: Yes. Thank you.

ACCUSED: I’ve put that on the record. Please make sure it’s on the record, and please inform the--

BONNEY: May I be briefly excused just to try and speak with Mr Foxman?

HIS HONOUR: I will have a short adjournment to allow that last chance.

11. I note also that the defendant’s representative also told Mr Foxman to stop interrupting at one point and said he was “struggling” – this was a reference to his ability to follow the questions from the Bench whilst Mr Foxman was interrupting. See transcript of 24 June 2024 at 12.5.

The hearing on 6 December 2024

12. The hearing on 6 December 2024 was conducted using the remote room when the defendant was self represented. This was partly because he had brought a dog to court for support and the Sherriff indicated that this could be accommodated by using the remote room. In any event the transcript of that day again shows the defendant persistently interrupted during the whole day and the mute button for the remote room had to be deployed. The examples include the interruptions on pp22-25 of the transcript.

13. During cross-examination of the alleged victim the defendant did not abide by a judicial direction that he could not interrupt the Bench, that he had to ask questions and that he could not use cross examination as an opportunity to make general comments about the witness or the charges. During cross-examination the defendant also said to the alleged victim inter alia “You’re a liar” (p27.5). This statement required an appropriate judicial intervention. Due to his persistent lack of adherence to judicial directions about the limits of cross-examination the following was said by the Bench at p 34 of the transcript:

CLOSED-CIRCUIT TELEVISION DEACTIVATED

Sir I will put you on mute so you can hear me. I will give you one more time or [sic] you interrupt the witness and disrupt proceedings I am going to cease cross examination of this witness. You ask questions, the witness gets a chance to answer them, we go to our next question. Any more commentary I’m stopping cross examination under section 26 of the Evidence Act. So unmute please.

14. The cross-examination of the alleged victim was then ceased. She was excused. Immediately after it was ceased, the defendant called the witness “a lying fucking bitch” – see transcript pp 39.25.

15. The prosecution case closed and the defendant then gave evidence in chief. He persistently commentated during the course of the cross-examination by the prosecutor despite being asked not to do so. See transcript of 6 December 2024 at p 44:

HIS HONOUR: Please don’t interrupt. Please don’t interrupt. If you interrupt, it’s question, answer format, Sergeant asks the question, you answer the question, please.

16. However the defendant interrupted the cross-examiner and the Bench persistently thereafter. See transcript at pp 46- 47. At one point the defendant had to be informed that he could not ask the questions when he was being questioned. When his conduct continued, he was given a warning at p 48:

HIS HONOUR: If you keep interrupting me I’ll have to cease the cross examination by the prosecutor. So you need to make sure you don’t interrupt. So, Sergeant, ask the question again.

17. Eventually the Court ceased the cross-examination of the defendant and gave a short ruling giving reasons for taking that course. See transcript at pp 50-51.

Determination

18. An informative starting point of the subject of permanent stay of criminal proceedings is the case of Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 (2018) 266 CLR 325. Keifel CJ, Crennan, Nettle JJ said at [106] (footnotes excluded):

…this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial.

19. The defendant ultimately submits that he did not receive a fair hearing, that it was an abuse of process, and this warrants the proceedings to be permanently stayed. The statements of the appellate courts enunciating the common law fair trial principle inform the issue. In Dietrich v The Queen (1992) 177 CLR 292 at 326, Deane J observed:

Strictly speaking, the requirement that the trial of a person accused of a crime be fair, being a legal one, is encompassed by the requirement that such a trial be in accordance with law. Nonetheless, it is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.

20. In the same case, Mason CJ and McHugh J also said: at p 299–300 “[t]he right [to a fair trial] is manifested in rules of law and of practice designed to regulate the course of the trial”. In an article about the principle of a fair trial Spigelman CJ, writing extra-judicially, [JJ Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 ALJ 29] discussed whether it was possible to define fairness, His Honour said at p 33:

Over the course of the centuries certain identifiable issues have arisen on many occasions and led to similar judgments being made as to the effect on fairness of the proceedings.” [emphasis added]

21. His Honour cited a passage from the judgment of Deane J in Jago v The District Court of NSW (1989) 168 CLR 23 where Deane J said at p 57 that the notion of fairness:

“… defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience”

22. It is well settled that the requirement to afford procedural fairness extends to the prosecution: DPP (NSW) v Chaouk [2010] NSWSC 1418 at [49]. As put by all members of the High Court in The Queen v Lewis (1988)165 CLR 12 at 17:

“…the Crown is as much entitled to natural justice as any other litigant.”

23. The prosecution is entitled to a fair hearing without a defendant interrupting evidence given in chief of its witnesses or interrupting the prosecutor’s submissions to the Court.

24. Section 11 of the Evidence Act preserves the common law power of a court “to control the conduct of a proceeding” and particularly “the powers of a court with respect to abuse of process”. Section 26 (d) of the Evidence Act provides a court may make orders that it considers just in relation to “the presence or behaviour of any person in connection with the questioning of witnesses.”

25. What happened in this case may be characterised in the terms used by Spigelman CJ as “certain identifiable issues [that] have arisen”. The core issue being: What is a Court to do in a criminal hearing when a defendant constantly interrupts proceedings and fails to follow clear judicial directions as to the conduct of the hearing?

26. The defendant focusses on the use of the remote room as infringing his right to a fair hearing. The Court gave a ruling during the hearing with reference to the Full Federal Court decision of Eastman v The Queen (1997) 76 FCR 9. The defendant was charged with murder. The Full Federal Court held that no miscarriage of justice had occurred when the trial judge - following repeated interruptions - removed a defendant to another room with video link. The court held that even after the defendant was removed his ability to participate in the trial was preserved by the video link.

27. The defendant further complains that the arrangement had the effect that he could not to give instructions to his lawyer. However this issue was adequately remedied by the proposal that the Court could adopt a practice of short adjournments to allow the defendant to talk to his lawyer (see above at [10]).

28. The effect of the defendant’s contention is that he should be permitted to talk over his lawyer. The fair trial principle does not entitle a defendant to talk over his or her lawyer during the proceedings. This point was made by Adamson J in Henskens v Rudd [2020] NSWSC 533 at [51]:

The plaintiff alleged in this Court that he had been “gagged” by the magistrate because, when he tried to address the Court directly, he was prevented from doing so as the magistrate allowed him only to address the Court through his representative, Mr Santone. I reject this submission. A person who has chosen to appear by a legal representative, is not entitled to address the court directly, but must speak through the legal representative. The plaintiff is bound by the conduct of his legal representative: R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ, McInerney J agreeing). [emphasis added].

29. Further, in this case, the interruptions were repeated and far worse than those in Henskens v Rudd, even after several warnings had been given to the defendant.

Hearing of 6 December 2024

30. It must be reiterated that the remote room was used on 6 December 2024 because the defendant had brought a dog to court. However, its use was not otherwise an abuse of process. The sheer scale and persistence of the defendant’s interruptions would have warranted its use again.

31. The judicial intervention of ceasing the cross-examination was entirely consistent with appellate authority of the subject. In Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 the Court of Appeal, Adamson JA at [122] (Basten and Gleeson JJA agreeing) confirmed the principle relating to the limits of cross-examination and the heavy responsibilities of the Court:

Procedural fairness requires more than merely giving each party an opportunity to be heard. It also requires that each witness be permitted to answer questions without being abused in the process. This is not to say that cross-examination cannot be robust, but it must be fair. The latitude commonly afforded to cross-examiners does not amount to a licence to offend, ridicule or vilify. Fairness requires that no proposition, particularly one which is damaging to the witness, be put without a basis. It also requires that questions be asked one at a time and that cross-examination not be peppered with gratuitous and, as in the present case, insulting, commentary to the witness. It requires that the witness be permitted to finish his or her answer and not be cut off or needlessly interrupted. Where a trial judge fails to intervene to stop such egregious conduct, an impression can be created that the judge is endorsing, or even collaborating, in such conduct. It is possible that encouragement, whether tacit or explicit, to such conduct could give rise to an apprehension of bias which is inimical to the proper administration of justice.

32. As the transcript of the proceedings cited above illustrates this was a case where the Court was obliged to intervene in the manner that it did. The High Court case of Libke v The Queen (2007) 230 CLR 559 involved questionable conduct of a prosecutor during cross examination. Hayne J (Gleeson CJ at [1], Heydon J at [117] agreeing) said at [84]-[85] that it was a case where intervention was warranted:

"...an early intervention from the judge would have prevented any suggestion of unfairness of the kind now said to have arisen from the conduct of the prosecutor.”

33. Hayne J acknowledged at [85] that judges should avoid “such interventions as far as possible” but:

“…the obligation to ensure a fair trial will sometimes best be met by a timely reminder to counsel of the need to observe the rules that regulate the orderly conduct of a trial."

34. This observation applies equally where a defendant is self-represented. The law does not change because a defendant is self-represented. The conduct of the defendant in this case had reached a stage where judicial intervention was necessary and appropriate. Ultimately the defendant decided to disregard multiple judicial instructions, directions and warnings concerning the conduct of the hearing.

35. The unusual steps taken by the Court of utilising the remote room and later ceasing cross-examination was not an abuse of the court’s processes which justifies a permanent stay of proceedings. Rather the interventions were required to ensure a fair hearing was conducted according to law and to maintain the proper administration of justice.

Cause of action against a judicial officer

36. The defendant also submitted that the proceedings should be stayed to enable him to pursue his causes of action in the Federal Court. This includes a claim that particular judicial officers (including myself) belong to a judicial cartel. This submission is also without legal foundation.

37. As a judicial officer of a court referred to in s 77(iii) of the Commonwealth Constitution I am immune from a civil suit as explained in the recent High Court decision of State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3. Judges of any court referred to in s 71 of the Constitution, including any court of a territory and any “court of a State” as referred to in s 77(iii) of the Constitution, are immune from civil suit arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity: [12], [113]. Gaegler CJ, Gleeson, Jagot and Beech Jones JJ said at [1] ff [footnotes excluded]:

Over hundreds of years, there has been a debate within the common law about the scope of the immunity from civil suit of judges of so-called "inferior courts" for acts and omissions in the performance or purported performance of the judicial function, and the extent to which that scope differs from the scope of the immunity afforded to judges of so-called "superior courts".

Although there are differences of significance between inferior courts and superior courts, there is no justification for differentiating between the scope of the immunity from civil suit afforded to judges of all courts. This is so because the purpose of the immunity is the same for judges of all courts. That purpose is to facilitate the independent performance of the judicial function free from the spectre of litigation,[1] as well as to enhance the finality of judgments quelling legal controversies.[2] The necessity for judicial independence, and the interests of finality of judgments, apply to the exercise of the judicial function by judges of both inferior courts and superior courts. Judicial immunity does not exist for the benefit of individual judges.

Recourse against a wrongful act or omission by a judicial officer (including a negligent, unjust, or even malicious act or omission by a judicial officer) in the performance or purported performance of a judicial function is to be found within such system of appeals as might be applicable, such means of collateral challenge as might be available, and such processes of discipline and removal from office to which the judicial officer might be amenable. It is not to be found in a civil suit against the judicial officer.

Claims against the prosecutor

38. The defendant also makes claims against the prosecutor. He claims that this is a malicious prosecution and the charges are false and for that reason the proceedings are an abuse of process. It is not the function of a court to judicially review a decision to prosecute a person. Generally decisions to prosecute are not susceptible to judicial review. As French CJ, Hayne, Crennan, Kiefel and Bell JJ explained in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [20] (footnote references to 3 High Court cases excluded):

It is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.

39. Newson v Ly [2001] NSWSC 1117 is an example of the application of this fundamental principle. Davies AJ said at [10]:

In my opinion, it was not open to the Magistrate, on the facts found by her, to order that the proceedings be permanently stayed. Her Worship proceeded on a misunderstanding of the applicable principles of law. It is not in general the function of a court to decide whether or not a prosecution should be instituted. That is the function of the appropriate prosecuting officers. It is the function of a court to try prosecutions duly brought before it unless it is shown that the prosecution cannot be fairly tried or that there is some other good reason, such as mala fides on the part of the prosecution, for staying the proceedings.

40. See also the discussion in DPP v Hamzy [2019] NSWCA 314 at [51]-[58]. The defendant has not pointed to any conduct of the prosecutor that could justify a stay of proceedings.

Other claimed bases for a stay

41. The other claimed bases for a stay are set out in the voluminous documents sent to the Registry and have been marked “Exhibit 1 Second Stay Application” on the Court file. They include claims of a violation of the defendant’s human rights, want of jurisdiction and abuse of process. These claims lack any factual or legal foundation and constitute bare assertions.

42. For these reasons the second application for a permanent stay of proceedings is refused and dismissed.

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Decision last updated: 13 June 2025