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Supreme Court 22 June 2001

Potier v DPP

[2001] NSWSC 514

Also reported as 123 A Crim R 176
Public order & justice offences
CRIMINAL LAW COMMITTAL PROCEEDINGS APPEAL DISTINCTION BETWEEN REMEDIES DISINCLINATION OF COURTS TO INTERVENE DISCRETION

Citation: Potier v DPP [2001] NSWSC 514
Court: Supreme Court of New South Wales, Common Law Division
Date: 22 June 2001
Judge(s): O'Keefe J

Background

The plaintiff faced committal proceedings in the Local Court at Burwood on charges of soliciting an undercover police operative to murder two individuals. During those proceedings, his legal representative applied under section 48E of the Justices Act for directions requiring eight prosecution witnesses to attend and be cross-examined. The Magistrate refused the application, finding neither the "special reasons" required for alleged victims nor the "substantial reasons" required for other witnesses had been established.

Following committal for trial on two counts of soliciting, encouraging and persuading to murder and two counts of inciting to solicit murder, the plaintiff sought Supreme Court review. He applied for orders in the nature of certiorari (to quash the Magistrate's decision) and mandamus (to compel the Magistrate to allow cross-examination), as well as a declaration that no bill of indictment had yet been found against him.

By the time the matter came before the Supreme Court, a Crown Prosecutor had already found bills of indictment against the plaintiff, the DPP had confirmed its intention to prosecute, and a trial date of 30 July 2001 had been fixed. Two earlier trial dates had already been vacated.

  • Whether the Supreme Court had grounds to grant orders in the nature of certiorari or mandamus to review the Magistrate's refusal to allow cross-examination of witnesses under section 48E of the Justices Act in committal proceedings
  • Whether a statutory right of appeal to the Supreme Court existed in respect of committal proceedings for an indictable offence under Part 5 of the Justices Act
  • Whether the declaration sought (that no bill of indictment had been found) could be sustained given the subsequent finding of bills by the Crown Prosecutor
  • Whether, as a matter of discretion, the Court should intervene given the stage of the criminal proceedings, unexplained delay in bringing the application, and the availability of a Basha inquiry at trial

Decision

The Court disposed of the declaration ground swiftly. Bills of indictment had in fact been found by the Crown Prosecutor, whose decisions operate as decisions of the DPP. There was therefore no factual basis on which the declaration could be made.

On the question of appeal rights, the Court found that the Justices Legislation Amendment (Appeals) Act 1998, which inserted Part 5 into the Justices Act, provides a right of appeal on a ground of law only in respect of summary proceedings. It does not extend to committal proceedings for an indictable offence. The only available avenue for testing the Magistrate's decision was therefore by way of prerogative relief.

On the prerogative relief grounds, the Court noted the well-established reluctance of superior courts to intervene in committal decisions, citing high authority including Yates v Wilson (1989) 168 CLR 338. The Court found that even if the relevant remedies were technically available, it would decline to exercise its discretion to grant them. Unexplained delay of more than five months in bringing the application was one reason. The application had also been made after the bills were found and on the eve of a fixed trial date, meaning intervention would likely cause another trial date to be aborted.

The Court identified further reasons against granting mandamus in particular: the committal proceedings had ended with the act of committal; remitting the matter to the Magistrate would serve no real purpose because a bill had already been found; and any prejudice arising from the denial of cross-examination could be addressed by the trial judge through a Basha inquiry (a procedure by which a trial judge can allow examination of witnesses before trial where there is a risk of prejudice). The plaintiff's late supplementary argument, that the Magistrate's submitting appearance amounted to consent to the orders sought, was rejected as misconceived.

Orders Made

  • Application dismissed with costs.

Key Takeaways

  • Part 5 of the Justices Act (as amended in 1998) provides rights of appeal to the Supreme Court only in respect of summary proceedings; it does not extend to committal proceedings for indictable offences, leaving prerogative relief as the only avenue for review of a committal-stage decision.
  • A strong judicial disinclination exists to review decisions made in committal proceedings, particularly at an advanced stage of the criminal process where intervention risks disrupting a fixed trial date.
  • Unexplained delay in seeking prerogative relief is a relevant discretionary factor weighing against the grant of certiorari or mandamus, even where the underlying relief might otherwise be arguable.
  • Where a bill of indictment has already been found, remitting a matter to a Magistrate to revisit a committal-stage decision serves no practical purpose in the criminal process, and this futility is itself a reason to withhold discretionary relief.
  • The availability of a Basha inquiry at trial is a recognised factor supporting the refusal of prerogative intervention, as it provides an alternative mechanism for addressing any prejudice caused by the denial of cross-examination at the committal stage.

Legislation and Cases Referenced

Legislation
- Justices Act, s 48E
- Supreme Court Act 1970, s 69
- Crown Prosecutors Act 1987, Pt 3, s 5
- Crimes Act 1900, s 26
- Justices Legislation Amendment (Appeals) Act 1998, Pt 5, s 104
- Director of Public Prosecutions Act 1986, Pt 3

Cases
- Yates v Wilson (1989) 168 CLR 338
- Sergi v The Director of Public Prosecutions (CA 40518/91, 10 September 1981, unreported)
- Barton v The Queen (1980) 147 CLR 75
- Lamb v Moss (1983) 49 ALR 533
- Bacon v Rose (1972) 2 NSWLR 793
- Caine v Glass (No 2) (1985) 3 NSWLR 230 (CA)
- Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520 (CCA)
- R v Leslie Robert Butler (CCA, 16 August 1991, unreported)
- Ex parte Cousens; Re Blacket (1947) 47 SR 145
- The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
- Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
- The King v Minister of Health (1939) 1 KB 232
- Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898
- The King v Connell (1944) 69 CLR 407
- The King v Board of Education [1910] 2 KB 165
- Saffron v The Director of Public Prosecutions (1989) 16 NSWLR 397
- Barton v Berman (1980) 1 NSWLR 63
- Grenvill Homes Pty Ltd v Builders Licensing Board (1981) 2 NSWLR 422
- Craig v South Australia (1994-95) 184 CLR 163