Regina v O'Meara

[2001] NSWCCA 340

Reported Decision: 124 A Crim R 493

New South Wales

Court of Criminal Appeal

CITATION:	Regina v O'MEARA [2001] NSWCCA 340
FILE NUMBER(S):	CCA 60372/01
HEARING DATE(S):	31 August 2001
JUDGMENT DATE:	7 September 2001
PARTIES :	Kenneth Ian O'Meara - Applicant Crown
JUDGMENT OF:	Sheller JA at 1; Sully J at 13; Dowd J at 14

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Sweeney LCM

COUNSEL :	Applicant - In person M A Wigney - Crown
SOLICITORS:	Applicant - In person Commonwealth Director of Public Prosecutions
CATCHWORDS:	PRACTICE AND PROCEDURE - error in committal proceedings - whether Court of Criminal Appeal had jurisdiction to issue relief - Administrative Decisions (Judicial Review) Act 1977
LEGISLATION CITED:	Criminal Appeal Act 1912 Justices Act 1902 Crimes Act 1914 (Cwth) Administrative Decisions (Judicial Review) Act 1977 (Cwth) Judiciary Act 1903 (Cwth)
CASES CITED:	R v Buckett (1992) 61 A CrimR 49 Lamb v Moss (1983) 76 FLR 296 Steffan v R (1993) 30 NSWLR 633
DECISION:	Application dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60372/01

SHELLER JA
SULLY J
DOWD J

FRIDAY 7 SEPTEMBER 2001

Regina v Kenneth Ian O’Meara

The claimant sought leave to appeal, pursuant to s5F of the Criminal Appeal Act 1912, against a decision by a Magistrate to admit evidence of certain witnesses in the course of committal proceedings against him. The claimant had been charged with the offence of defrauding the Commonwealth. The claimant submitted that this evidence was inadmissible because the requirements of ss48B and 48D of the Justices Act 1902 had not been complied with.

Held: (per Sheller JA, Sully and Dowd JJ agreeing):

The Court lacked jurisdiction to determine this claim:

(1) Section 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provided that, notwithstanding anything contained in any other Act, a State court did not have jurisdiction to review a decision to which the section applied. A decision to which the section applies is defined as a decision of an administrative character made under an Act of the Parliament.

(2) A committal order is not an interlocutory order but is a decision of an administrative character. R v Buckett (1992) 61 A CrimR 49, applied.

(3) As the claimant had been committed for trial for a Commonwealth offence, the decision to commit was made under an Act of the Parliament.

(4) The order sought by the claimant involved a "review" within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

ORDERS

Application dismissed.

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IN THE COURT OF
CRIMINAL APPEAL

60372/01

SHELLER JA
SULLY J
DOWD J

FRIDAY 7 SEPTEMBER 2001

Regina v Kenneth Ian O’Meara

Judgment

1 SHELLER JA:

This application for leave to appeal (No 60372/01) is brought by Kenneth Ian O'Meara pursuant to s5F of the Criminal Appeal Act 1912. That section applies, inter alia, to proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court (subs

(1)). The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order in proceedings to which the section applies as of right (subs(2)). Subsection (3) provides that any other party to the proceedings to which the section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings, relevantly, if the Court of Criminal Appeal gives leave to appeal.

2 In his notice of application for leave to appeal, Mr O'Meara complained that statements of witnesses admitted in evidence during the course of committal proceedings against him which had begun on 13 October 2000 were inadmissible because the requirements of ss48B and 48D of the Justices Act 1902 had not been complied with.

3 The informant in the committal proceedings was the Commonwealth Director of Public Prosecutions. The offences charged against Mr O'Meara were indictable offences under s29(d) of the Crimes Act 1914 (Cwth) of defrauding the Commonwealth. Section 68 of the Judiciary Act 1903 (Cwth) provides for the laws of the State respecting, inter alia, the procedure for the commitment for trial on indictment to be applied to persons charged with offences against the laws of the Commonwealth.

4 On 15 June 2001, after the statements had been admitted in evidence over the objection of Mr O'Meara, the Magistrate committed Mr O'Meara for trial to the Sydney District Court on all four charges. The application for leave to appeal was filed on 18 June 2001.

5 After the application for leave to appeal had been called on for hearing Mr O'Meara supplemented written submissions with oral submissions to the Court. The Court then raised with Mr Wigney, who appeared for the Commonwealth Director of Public Prosecutions, what orders the Court could make if the submission was correct that, as a result of a failure to comply with the requirements of the Justices Act, the statements admitted, which founded the committal order, were inadmissible. In the course of that discussion the Bench referred to R v Buckett (1992) 61 A CrimR 49. That case concerned a summons brought in the Supreme Court for an order in the nature of a writ of certiorari to have a committal order quashed. The applicant had been committed for trial on three counts under the Proceeds of Crime Act 1987. The Commonwealth Director of Public Prosecutions applied for an order that the proceedings be stayed or dismissed as disclosing no reasonable cause of action. Allen J made an order that the summons be set aside and declared that the court had no jurisdiction to review the decision committing the claimant for trial. The claimant appealed to the Court of Criminal Appeal.

6 The Court's lack of jurisdiction was said to follow from the terms of s9 of the Administrative Decisions (Judicial Review) Act 1977 (Cwth) subs (1) of which provided that notwithstanding anything contained in any Act other than the Act itself, a court of a State did not have jurisdiction to review a decision to which the section applied. A decision to which the section applied was defined as meaning a decision to which the Act applied, a phrase itself defined as meaning a decision of an administrative character made, or proposed to be made, or required to be made, under an enactment, relevantly, an act of the Parliament. "Review" was defined to mean relevantly the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ.

7 In Buckett counsel for the appellant conceded that the committal order was within the meaning of s3(1), a decision of an administrative character made under an enactment; Lamb v Moss (1983) 76 FLR 296.

8 As the offences charged against Mr O'Meara arose under the Crimes Act, the decision to commit was made under a Commonwealth enactment as provided in s9 of the Administrative Decisions (Judicial Review) Act.

9 In Buckett at 52 in a judgment with which Cripps JA and Samuels AJA agreed, I said that in my opinion, the "committal order, being ..... a decision of an administrative character, was, by force of s9 of the Administrative Decisions (Judicial Review) Act, a decision which a court of this State does not have jurisdiction to review."

10 In the present case, Mr O'Meara claimed that statements admitted into evidence were inadmissible. A ruling on the admissibility of evidence has been held in this Court not to be an interlocutory judgment or order; see Steffan v R (1993) 30 NSWLR 633 at 639. In reality the only relief that would effectively correct the error Mr O'Meara claimed to have been made in admitting the evidence would have been an order setting aside or staying the order for committal. This only demonstrates that in reality Mr O'Meara was appealing against the committal order.

11 A committal order is not an interlocutory order but is a decision of an administrative character. In my opinion, the order sought was, within the meaning of the Administrative Decisions (Judicial Review) Act, a "review", being an order of the same or similar nature or effect as the grant of prerogative relief, of that decision. In short, Mr O'Meara was asking the Court to quash the committal order or prohibit the Director of Public Prosecutions or the District Court acting on it.

12 For the above reasons, in my opinion, the Court of Criminal Appeal had no jurisdiction to entertain Mr O'Meara's application and accordingly it should be dismissed.

13 SULLY J: I agree with Sheller JA.

14 DOWD J: I have read the judgment of Sheller JA. I agree with his Honour's reasons and the proposed order.

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