Santos v State Director of Public Prosecutions
[2015] WASC 335
•9 SEPTEMBER 2015
SANTOS -v- STATE DIRECTOR OF PUBLIC PROSECUTIONS [2015] WASC 335
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 335 | |
| Case No: | CIV:1822/2015 | 25 AUGUST 2015 | |
| Coram: | ALLANSON J | 9/09/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to proceed refused | ||
| B | |||
| PDF Version |
| Parties: | JAMIESON ANDREW SANTOS STATE DIRECTOR OF PUBLIC PROSECUTIONS HIS HONOUR JUDGE C P STEVENSON ATTORNEY GENERAL OF WESTERN AUSTRALIA |
Catchwords: | Administrative law Application for judicial review Jurisdiction Whether inconsistency between state and Commonwealth law Whether reasonable prospects of success Delay Turns on own facts |
Legislation: | Australian Constitution, s 75(iv), s 80, s 109 Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), s 5, s 6(1)(e), s 7, s 7(b)(i), s 10, s 18 Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth), s 2.2, ch 2, ch 5, pt 9.1 Criminal Procedure Act 2004 (WA), s 83, sch 1 cl 3(3) Director of Public Prosecutions Act 1991 (WA) Evidence Act 1995 (Cth), s 4 Judiciary Act 1903 (Cth), s 39(2), s 69, s 69(1), s 78B, s 79(1) Misuse of Drugs Act 1981 (WA), s 6 Rules of the Supreme Court 1971 (WA), O 56 r 2(4), O 56 r 5 Sentencing Act 1995 (WA) |
Case References: | Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334 Hughes v The State of Western Australia [2015] WASCA 164 Jamieson Andrew Santos v The State of Western Australia [2013] HCASL 123 McCourt v Cranston [2012] WASCA 60 Momcilovic v The Queen [2011] HCA 34 North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595 Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162 Santos v The State of Western Australia [2014] HCASL 226 Santos v The State of Western Australia [No 2] [2013] WASCA 39 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 Stone v Braun [2015] WASCA 103 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
STATE DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
HIS HONOUR JUDGE C P STEVENSON
Second Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Administrative law - Application for judicial review - Jurisdiction - Whether inconsistency between state and Commonwealth law - Whether reasonable prospects of success - Delay - Turns on own facts
Legislation:
Australian Constitution, s 75(iv), s 80, s 109
Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), s 5, s 6(1)(e), s 7, s 7(b)(i), s 10, s 18
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth), s 2.2, ch 2, ch 5, pt 9.1
Criminal Procedure Act 2004 (WA), s 83, sch 1 cl 3(3)
Director of Public Prosecutions Act 1991 (WA)
Evidence Act 1995 (Cth), s 4
Judiciary Act 1903 (Cth), s 39(2), s 69, s 69(1), s 78B, s 79(1)
Misuse of Drugs Act 1981 (WA), s 6
Rules of the Supreme Court 1971 (WA), O 56 r 2(4), O 56 r 5
Sentencing Act 1995 (WA)
Result:
Leave to proceed refused
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Mr L M Fox
Second Respondent : No appearance
Intervener : Ms R Young
Solicitors:
Applicant : In person
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : No appearance
Intervener : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334
Hughes v The State of Western Australia [2015] WASCA 164
Jamieson Andrew Santos v The State of Western Australia [2013] HCASL 123
McCourt v Cranston [2012] WASCA 60
Momcilovic v The Queen [2011] HCA 34
North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595
Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162
Santos v The State of Western Australia [2014] HCASL 226
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
Stone v Braun [2015] WASCA 103
1 ALLANSON J: Jamieson Andrew Santos was, in 2009, a resident of New South Wales. On 27 February 2009, the Western Australian Director of Public Prosecutions (DPP) presented an indictment against Mr Santos alleging two offences under the Misuse of Drugs Act 1981 (WA). Each was an offence of possession of a prohibited drug with intent to sell or supply. The offences occurred in Western Australia.
2 The indictment was brought by the State of Western Australia, and signed by an officer of the DPP.
3 Mr Santos and a co-accused were tried in the District Court of Western Australia. On 9 December 2011, both men were convicted. On 2 February 2012, Mr Santos was sentenced pursuant to the provisions of the Sentencing Act 1995 (WA) to imprisonment for 15 years.
4 Mr Santos applies by an application for judicial review, filed 2 June 2015, for a writ of certiorari and a declaration. There are two proposed grounds of review. The substance of them raises these questions or issues:
(1) was the presentation of an indictment based on an offence against the laws of Western Australia and under the judicial power of the State outside power because:
(a) the offence was a Commonwealth matter;
(b) the Director of Public Prosecutions Act 1991 (WA) was inoperative by reason of s 109 of the Constitution; and
(c) the prosecutor who signed the indictment was not appointed to present a federal indictment.
(2) did the District Court judge who presided at the trial err in law because:
(a) the judicial power of the State did not apply;
(b) the Sentencing Act, under which Mr Santos was sentenced, did not apply in a court exercising federal jurisdiction; and
(c) the court was proceeding under a 'null and void' indictment.
6 Because of the claimed constitutional issues, the first respondent issued notices under s 78B of the Judiciary Act 1903 (Cth). Only the Attorney General of Western Australia has chosen to intervene, filing submissions in the event that the application by the first respondent to dismiss the application as having no reasonable prospects of success is not upheld. In my opinion, however, the prospects of success cannot be determined without considering the constitutional argument.
7 The first respondent has submitted that the application should be summarily dismissed on five grounds:
1. The application is out of time in circumstances where the delay has not been properly explained.
2. The application is a collateral attack on the appellant's conviction and thus an abuse of process.
3. The decisions of the first respondent in determining whether or not to prosecute criminal matters are generally not susceptible to judicial review.
4. The District Court of Western Australia is not amenable to prerogative relief in this case as there is no matter pending in that court.
5. The purported constitutional points are wholly without merit.
8 At the hearing, the first respondent relied primarily on the delay, and the impermissible collateral attack. The first respondent adopted the submissions of the Attorney General on the constitutional issue.
The proposed constitutional issue
9 Mr Santos is unrepresented. His submissions deal with some complex areas of law, not always with complete clarity. I have tried to ensure that, despite the argument being difficult to follow at times, I have not failed to appreciate a sound case which has been obscured by Mr Santos' lack of legal training: see Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334 [57]; Stone v Braun [2015] WASCA 103 [62] - [69].
10 Mr Santos relied on two affidavits filed in support of the application, sworn 26 May 2015 and 23 July 2015. The earlier affidavit includes, as annexure JS 3, a document headed 'General Form of Submissions'.
11 In his affidavits, including those submissions, Mr Santos argues that:
1. He was a resident of New South Wales. As a result, the proceedings brought against him by the State of Western Australia attract federal jurisdiction, and the District Court of Western Australia was exercising federal jurisdiction in his trial.
2. The fact that the court was exercising federal jurisdiction has important consequences for the choice and application of law.
3. Because the court was exercising federal jurisdiction, federal legislation applied. The consequences were:
(a) the indictment was invalid in being in the name of the State of Western Australia, and not in the name of the Queen;
(b) the indictment could only be presented by a prosecutor holding an appointment under s 69 of the Judiciary Act;
(c) the indictment invalidly purported to confer the judicial power of the State on the District Court which was a federal court;
(d) provisions of Commonwealth law applied and overrode inconsistent State provisions: in particular, the judge was required to sentence under pt 1B of the Crimes Act 1914 (Cth), and not the Sentencing Act; for the purpose of determining the weight of drugs, Ch 9, pt 9.1 of the Criminal Code Act 1995 (Cth) applied; the Evidence Act 1995 (Cth) applied, particularly as regard admissibility and the warnings required to be given about opinion evidence, hearsay evidence, and accomplice and prison informer evidence.
13 The second limb of the argument does not, however, follow from the fact that the District Court exercised federal jurisdiction.
14 The principal matter argued by Mr Santos is that the indictment was in the name of the State of Western Australia and was signed by a state prosecutor. Section 69(1) of the Judiciary Act requires that 'indictable offences against the laws of the Commonwealth' shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf. Mr Santos submits that the State has not at any time submitted any evidence that the prosecutor was authorised under s 69 of the Judiciary Act to present an indictment for an offence against a law of the Commonwealth. As a result, he submits that the indictment was a nullity, and that his conviction is 'the fruit of a poisoned tree' and also a nullity.
15 The relevant provisions, however, show that the indictment was properly brought in the name of the State and signed by a State prosecutor. Section 80 and s 83 of the Criminal Procedure Act, read with the Director of Public Prosecutions Act, specify who is authorised to commence a prosecution for an indictable offence. Schedule 1, cl 3 (3) of the Criminal Procedure Act requires an indictment to be in the name of the State. These provisions are applicable to a prosecution on indictment for an offence against a law of the State.
16 Because the District Court was exercising federal jurisdiction, s 79(1) of the Judiciary Act made binding the laws of Western Australia, including the laws relating to procedure, evidence, and the competency of witnesses, 'except as otherwise provided by the Constitution or the laws of the Commonwealth … in all cases to which they are applicable'. The procedural provisions of State law - including the Criminal Procedure Act - were thus picked up and applied as 'surrogate Commonwealth law': Hughes v The State of Western Australia [2015] WASCA 164 [145], citing Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 [21]; Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 165.
17 There is no provision in the Constitution or a law of the Commonwealth providing otherwise. Mr Santos' reliance on s 69 of the Judiciary Act cannot be maintained following the decision of the court in Hughes. The court there found that the offence under s 6 of the Misuse of Drugs Act 'is and remained an offence against the law of this State, notwithstanding that the trial court was exercising federal diversity jurisdiction, or alternatively, it is not relevantly "a law of the Commonwealth"': Hughes [156]. It necessarily follows that Mr Santos was not charged with indictable offences against a law of the Commonwealth.
18 To the extent that Mr Santos relies upon inconsistency between the Misuse of Drugs Act and the Sentencing Act of the State of Western Australia, and the Crimes Act and the Criminal Code of the Commonwealth, he has identified no relevant inconsistency. Generally, in the event of claimed inconsistency, it is necessary to first analyse the laws in question to determine their construction. 'To the federal law so read and construed, s 109 then applies and operates to render inoperative any State law inconsistent with it': Momcilovic v The Queen [2011] HCA 34 [272] (Gummow J).
19 For the purposes of the present case, however, the operation of the Misuse of Drugs Act, together with the relevant federal legislation, has been considered in Hughes. The allegation of a relevant inconsistency was rejected: see [153] - [154]. Mr Santos has put nothing forward to show why the same result should not be reached in this case. More generally, I accept the submission made on behalf of the Attorney General that there is no inconsistency between State offence provisions, considered with State criminal process law, and Commonwealth offences considered with Commonwealth criminal process law: see Momcilovic [108] - [109] (French CJ); [237] Gummow J (French CJ & Bell J agreeing); [479] - [480] (Heydon J); [655] - [656] (Crennan & Kiefel JJ).
20 The other inconsistency argument is the claim of a relevant inconsistency with the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth). Mr Santos contends that he should have been charged under s 10 of that Act, which provides:
(1) A person is guilty of an offence against this section if:
(a) the person, on board an Australia aircraft in flight, whether in or outside Australia, engages in conduct that is a dealing in drugs; and
(b) the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory.
(2) This section does not apply in relation to conduct engaged in by a person on board an Australian aircraft in flight between 2 places in the same State or in the same Territory.
21 'Dealing in drugs' includes 'possession with the intention of sale or supply of a narcotic drug or psychotropic substance': s 6(1)(e).
22 Section 10, on its face, is intended to apply to conduct 'in flight'. Section 7 deals with when an aircraft is 'in flight'. Under s 7(b)(i) a flight ends 'at the time of the opening of the first external door of the aircraft to be opened after the aircraft comes to rest after its next landing after the commencement of the flight'. Section 18 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act provides:
Where, in the trial on indictment in a court of a State or Territory of an offence against this Act committed on an aircraft in flight, an act constituting in whole or in part the offence charged is proved, it must be presumed, unless the evidence shows the contrary, that that act did not take place in another part of Australia, being a State.
23 Sections 10 and 18 thus meet a potential difficulty where the evidence does not show in what State or Territory the offending conduct occurred, or where the offending conduct may have occurred in more than one State or Territory.
24 In determining the operation of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act, it is relevant that, by s 5, it is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory. The State and Commonwealth laws may both apply to the same conduct. But that is not enough to produce inconsistency.
25 Having regard to the operation of s 10, together with the express statement in s 5, there is no relevant inconsistency with State law which prohibits the possession of drugs within the State. The Commonwealth Act meets situations where it may not be possible to apply the State law, but does not exclude the operation of that law where a relevant offence occurs within the State. In particular, it is not inconsistent and does not exclude the operation of State law where an offender is in possession of drugs, with intent to supply, after the flight has ended.
26 There are some further short points that can be made.
27 First, the argument that the Evidence Act applied does not follow from the fact that the District Court was exercising federal jurisdiction. Section 4 of the Evidence Act provides that it applies to all proceedings in a federal court or an ACT court. The term 'federal court' is defined in the Dictionary to the Act. That is, the question is not whether the District Court was exercising federal jurisdiction, but whether it is a federal court as defined. It is not.
28 Second, the Criminal Code also confines its application. Chapter 2 of the Criminal Code applies only to offences against the Criminal Code and offences against a law of the Commonwealth: Criminal Code s 2.2 and definition of 'offence' in the Dictionary. For the reasons given above, Mr Santos was not charged with an offence against a law of the Commonwealth and ch 2 did not apply.
Delay
29 Under O 56 r 2(4) of the Rules of the Supreme Court 1971 (WA), an application for judicial review must be made within six months of the reviewable decision, otherwise leave of the court is required. The indictment was lodged in February 2009. The conviction and sentence were in 2011 and 2012. The application for review of each decision is many years out of time.
30 The explanation for the delay is insufficient. Mr Santos relies on his position as a sentenced prisoner, unrepresented, and with limited access to resources. All of those things may be accepted. But, as the first respondent submits, Mr Santos was represented at trial by experienced senior counsel. Since trial, he has lodged appeals against both conviction and sentence, and brought applications for special leave on two occasions.
31 Mr Santos appealed against his convictions with 19 grounds of appeal. None of them was concerned with matters of the kind he now seeks to argue. On 20 February 2013, the Court of Appeal (McLure P, Buss and Mazza JJA) refused leave to appeal on the basis that none of the proposed grounds of appeal had any reasonable prospect of succeeding: Santos v The State of Western Australia [No 2] [2013] WASCA 39.
32 Mr Santos applied for special leave to appeal the decision of the Court of Appeal. On 14 August 2013, the application was refused: see Jamieson Andrew Santos v The State of Western Australia [2013] HCASL 123.
33 In their short statement of reasons, Bell and Gageler JJ said:
The applicant has filed a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). He contends that s 109 of the Constitution is engaged because of alleged inconsistencies between the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth), which he appears to contend should have applied at his trial. By force of s 4(1), the Evidence Act 1995 (Cth) did not apply in the applicant's trial. No constitutional matter arises [7].
34 Mr Santos made a further application for special leave: Santos v The State of Western Australia [2014] HCASL 226. On 10 December 2014, the application was refused. In refusing the application, the court referred to notice of a constitutional matter given by Mr Santos, but said that none arose.
35 A statement of reasons refusing an application for special leave has limited effect as precedent: see McCourt v Cranston [2012] WASCA 60 [22], citing North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595, 643 (McHugh J). The two special leave dispositions do, however, show that special leave was sought in 2013 and 2014, on each occasion including constitutional grounds, although the precise nature of the grounds has not been disclosed. The fact that he earlier pursued constitutional grounds is relevant to whether Mr Santos has offered an adequate explanation for his delay in bringing this application.
Conclusion
36 The power to extend time is one to be exercised in the interests of justice. In my opinion, it is not in the interests of justice for this matter to proceed.
37 For the reasons given above, the constitutional argument is not sustainable. I am satisfied that this application is without merit. Having regard to the gross delay in bringing the application, and the absence of any adequate explanation for that delay, this application should not proceed further. The appropriate course under O 56 r 5 of the Rules of the Supreme Court is to refuse leave to proceed.
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