Regina v O'Meara
[2002] NSWCCA 134
•12 April 2002
CITATION: Regina v O'Meara [2002] NSWCCA 134 FILE NUMBER(S): CCA 60571/01 HEARING DATE(S): 12/4/02 JUDGMENT DATE:
12 April 2002PARTIES :
Regina
Kenneth Ian O'MearaJUDGMENT OF: Ipp AJA at 16; Sully J at 17; Bell J at 1
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 01/11/0591 LOWER COURT JUDICIAL
OFFICER :Nield DCJ
COUNSEL : M G Allnutt (Crown) SOLICITORS: Commonwealth DPP
In Person (Appellant)LEGISLATION CITED: Constitution
Crimes Act 1914
Criminal Appeal Act 1912
Judiciary Act 1903CASES CITED: Regina v Matovski (1989) 15 NSWLR 720
Regina v O'Meara [2001] NSWCCA 201
Regina v O'Meara [2001] NSWCCA 195DECISION: Leave to appeal refused
60571/01
FRIDAY 12 April 2002IPP AJA
SULLY
BELL J
1 BELL J: This is an application for leave to appeal against the order of Nield DCJ made on 22 August 2001 dismissing the applicant's notice of motion.
2 The proceedings are brought pursuant to s 5F(3) of the Criminal Appeal Act 1912. Nield DCJ did not grant a certificate in this case, and accordingly it is necessary for the applicant to obtain leave to appeal.
3 The history of the proceedings is briefly recited at the commencement of Nield DCJ's reasons. On 23 September 1999 the applicant was arrested and charged with four offences pursuant to the then s 29D of the Crimes Act 1914 (Cth). He was taken before the Local Court at Newcastle on that day and the proceedings adjourned to 12 October 1999. He was granted bail. Thereafter, the proceedings were listed on fourteen separate occasions before the Local Court prior to the applicant’s committal for trial on 15 June 2001.
4 On 22 June 2001 the proceedings were mentioned before the Sydney District Court and stood over to 6 July 2001 for an arraignment hearing. On that date the applicant filed a notice of motion dated 4 July 2001, together with his supporting affidavit sworn on 2 July 2001. The motion was stood over for hearing to 26 July 2001 when it came on before Nield DCJ.
5 The applicant appeared in person before Nield DCJ. His Honour set out the nature of the order sought by the applicant in his motion at pp 4-5 of his judgment:
“(1) The jurisdiction of the New South Wales District Court cannot be invoked by an indictment presented by the Commonwealth Director of Public Prosecutions because the Commonwealth Director of Public Prosecutions is not empowered by s 10 of the NSW Criminal Procedure Act to prosecute by indictment in the District Court; (2) The attempt by the Commonwealth Director of Public Prosecutions to prosecute the accused for indictable offences against the laws of the Commonwealth in the District Court is invalid because it offends s 69 of the Commonwealth Judiciary Act and/or s 109 of the Commonwealth Constitution;
(3) The indictment proposed to be presented by the Commonwealth Director of Public Prosecutions against the accused in the District Court be permanently stayed because the charges have been brought for an improper purpose;
(4) The indictment proposed to be presented by the Commonwealth Director of Public Prosecutions against the accused in the District Court be quashed because the presentation of the indictment would constitute an abuse of process and/or be invalid because the proposed charges relate to alleged breaches of s 29B of the Commonwealth’s Crimes Act whereas the accused has been committed to stand his trial for alleged breaches of s 29D of the Commonwealth Crimes Act;
(5) The attempt by the Commonwealth Director of Public Prosecutions to exercise the executive power of the Commonwealth by intending to present an indictment against the accused in the District Court is invalid;
(6) Section 69 of the Commonwealth Judiciary Act is invalid because it is inconsistent with s 61 of the Commonwealth Constitution;
(7) The Commonwealth Crimes Act is invalid because it is not authorised by any provision of the Commonwealth Constitution; in other words, that it is an unauthorised exercise of Commonwealth power;
(8) The proposed indictment intended to be presented by the Commonwealth Director of Public Prosecutions against the accused in the District Court is invalid because it contains four separate counts contrary to s 66 of the New South Wales Criminal Procedure Act;
(10) The indictment proposed to be presented by the Commonwealth Director of Public Prosecutions against the accused in the District Court be permanently stayed because the charges are not tax related offences.”(9) The indictment proposed to be presented by the Commonwealth Director of Public Prosecutions against the accused in the District Court be quashed because it was not signed by a person duly authorised to do so;
In the concluding words of his judgment Nield DCJ commented:
- "The accused's motion was frivolous and borders on being vexatious. It was brought to delay the proper prosecution of the charges which the Commonwealth Director of Public Prosecutions intends to prosecute.”
6 In Regina v Matovski (1989) 15 NSWLR 720 Gleeson CJ (in a judgment with which Lee CJ at CL and Grove J agreed) said:
- “All of that emphasises the significance which is to be attached to the distinction drawn by s 5F between appeals as of right and appeals which may only proceed by leave. It is the case, it must be acknowledged, that in practice in relation to appeals brought under provisions of the Criminal Appeal Act it has been usual for this Court to make little procedural distinction between leave to appeal and appeal to hear full argument on the merits of the matter before making any decision in respect of the application for leave to appeal. Whether that is a practice that will be appropriate for this Court to continue having regard to the very large backlog of cases is one which will require further consideration at an appropriate time. In particular, whether it is a practice that is appropriate in relation to sentence appeals is a matter that may require fresh consideration. However, in relation to s 5F of the Criminal Appeal Act it is in my view proper that the Court should draw a clear procedural distinction between applications for leave to appeal and appeals as of right.”
7 The applicant appeared in person before Judge Nield. He has not been represented on the hearing of this application. He filed written submissions in support of his application advancing seven grounds of challenge to the orders of the primary judge. A number of these grounds raise contentions which differ to the matters that were agitated before Judge Nield.
8 The applicant did not appear on the hearing of his application. The Court was advised that the applicant had contacted the Registry on 11 April 2002 stating that he was unwell and that he wished his application to be dealt with upon the basis of the written submissions.
9 In the light of the history of the proceedings it is appropriate that the application be dealt with without further delay.
10 Each of grounds two, three, four and seven in the written submissions filed by the applicant raise issues involving the interpretation of the Commonwealth of Australia Constitution. It does not appear that notices under s 78B of the Judiciary Act 1903 have been served upon the Attorneys-General of the Commonwealth and the States. To the extent that Judge Nield dealt with contentions which raise issues advanced in grounds two, three, four and seven, I am not persuaded that his Honour proceeded upon any wrong principle.
11 Ground five was not pressed. Ground six depends for its success upon an acceptance of one or more of the contentions advanced in grounds one to four.
12 Ground one is expressed in these terms:
"The appellant submits that the indictment ought to be stayed on the ground that it has been brought for a collateral purpose.”
13 Judge Nield found that there was no evidence to support the applicant's contention in this respect. Nothing in the applicant's submissions challenges this finding.
14 Judge Nield observed that certain of the matters advanced by the applicant in his affidavit in support of his application for a permanent stay of the proceedings had been dealt with by this Court in Regina v O'Meara [2001] NSWCCA 195 and in Regina v O'Meara [2001] NSWCCA 201 respectively.
15 Nothing in his Honour's judgment or in the submissions filed on the applicant's behalf persuade me that this is an appropriate case in which to grant leave to appeal. I propose that leave to appeal against Judge Nield's order dismissing the applicant's motion be refused.
16 IPP AJA: I agree.
17 SULLY J: I agree.
18 IPP AJA: The orders of the Court will be as proposed by Bell J.
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