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Supreme Court 12 August 2004

Potier v Huber & Ors

[2004] NSWSC 720

Also reported as 148 A Crim R 399
Public order & justice offences
APPEAL FROM MAGISTRATE'S DECISION PROCEDURE FOR PRIVATE PROSECUTION NATURE OF MAGISTRATE'S FUNCTION

Citation: Potier v Huber & Ors [2004] NSWSC 720
Court: Supreme Court of New South Wales, Common Law Division
Date: 12 August 2004
Judge(s): Kirby J

Background

The plaintiff, a convicted person serving time following jury verdicts of guilty on two counts of soliciting murder, sought to commence private prosecutions against the Crown Prosecutor and the instructing solicitor from the Director of Public Prosecutions who had conducted that trial. His complaints centred on an alleged suppression or concealment of information about the existence and relationship of a key prosecution witness with a Federal Police officer, during a window of approximately five to six weeks before the information was disclosed to the defence.

A Local Court Magistrate (the first defendant) refused to sign the Court Attendance Notices that would have initiated those private prosecutions, forming the view that the applications were frivolous, vexatious, without substance, or had no reasonable prospect of success. This was not the plaintiff's first attempt at a private prosecution arising from his case: an earlier attempt against the police officer in charge of his prosecution had also failed.

The plaintiff sought prerogative relief in the Supreme Court, arguing the Magistrate had erred or had constructively failed to exercise her jurisdiction in refusing to sign the notices.

  • What is the proper procedure for commencing a private prosecution under the Criminal Procedure Act 1986 and the Local Courts (Criminal and Applications Procedure) Rule 2003?
  • What is the nature and scope of a Magistrate's function when considering whether to sign a Court Attendance Notice in a private prosecution?
  • Whether the Magistrate committed jurisdictional error, including constructive failure to exercise jurisdiction, in refusing to sign the notices.
  • Whether there was error on the face of the record in the Magistrate's decision.

Decision

Kirby J set out in some detail the legislative history governing the commencement of prosecutions, explaining the reforms introduced by the Criminal Procedure Act 1986. Under that regime, police and public officers may issue Court Attendance Notices directly, but private prosecutors must first obtain the signature of a registrar. If a registrar refuses, the matter proceeds to a Magistrate on the private prosecutor's application.

The applicable Rule provided that a registrar must refuse to sign a notice if the application is, among other things, frivolous, vexatious, without substance, or has no reasonable prospect of success. The same test applies when a Magistrate determines the matter on review. Kirby J examined whether Magistrate Huber had misunderstood the nature of her duties and powers in applying that test to the plaintiff's application.

The plaintiff's case rested on the assertion that the second and third defendants had deliberately concealed, for several weeks, their knowledge of the relationship between the key prosecution witness and a Federal Police officer. His eighth ground of alleged evidence of intent to mislead a judicial tribunal was, in substance, that as officers of the court the defendants would have immediately appreciated their disclosure obligation once they knew of that relationship.

Kirby J found the material before the Magistrate provided a sufficient basis for her to form the opinion she did. The Magistrate had addressed the correct question under Rule 57 and reached a conclusion open to her on that material. There was no jurisdictional error and, specifically, no constructive failure to exercise jurisdiction. The summons was dismissed.

Orders Made

  • The Summons was dismissed.
  • The plaintiff was ordered to pay the defendants' costs.

Key Takeaways

  • Under the Criminal Procedure Act 1986, private prosecutors cannot simply file Court Attendance Notices as police and public officers can; they must obtain a registrar's signature, and a Magistrate resolves any refusal on application.
  • A Magistrate performing the gatekeeping function under Rule 57 of the Local Courts (Criminal and Applications Procedure) Rule 2003 is required to form an opinion about whether the application is frivolous, vexatious, without substance, or has no reasonable prospect of success; that function carries with it a genuine discretion and is not merely administrative.
  • No constructive failure to exercise jurisdiction arose where the Magistrate identified and applied the correct legal test and had material before her capable of supporting her conclusion.
  • The legislative reform of this area was deliberately designed to filter private prosecutions through a judicial or quasi-judicial screen, reflecting a recognised policy concern about private informants acting under misapprehension or with improper purpose.
  • In dismissing the summons, the Supreme Court confirmed that prerogative relief will not be granted simply because a private prosecutor disagrees with the Magistrate's assessment; a jurisdictional error or error on the face of the record must be established.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW) (now repealed)
- Criminal Procedure Act 1986 (NSW), particularly ss 47, 48, 49
- Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW), Rule 57
- Crimes Act 1900 (NSW)
- Supreme Court Act 1970 (NSW)

Cases
- Potier v Magistrate Maughan [2004] NSWSC 590
- R v Manos; Ex parte Samuels (1981) 28 SASR 262
- Craig v State of New South Wales (1994-95) 184 CLR 163
- Victims' Compensation Fund Corporation v GM [2004] NSWCA 185
- Saffron v The Director of Public Prosecutions (1989) 16 NSWLR 397