Citation: Hanna v Director of Public Prosecutions of NSW [2005] NSWSC 134
Court: Supreme Court of New South Wales, Common Law Division
Date: 24 February 2005
Judge(s): James J
Background
A private individual (the plaintiff) had been convicted of an offence under Commonwealth migration legislation relating to advertising immigration assistance without registration. After exhausting his appeal options, including an unsuccessful appeal to the Court of Appeal, he took a different course: he laid sixty-three private criminal informations in the Local Court against five individuals whom he associated with his prosecution and conviction. The charges against those individuals included perjury, subornation of perjury, perverting the course of justice, tampering with evidence, and fraud, among others.
The Director of Public Prosecutions (NSW) exercised statutory powers to take over all sixty-three prosecutions and then declined to proceed further with them. The plaintiff commenced proceedings in the Supreme Court seeking declarations that both decisions were ultra vires and void on administrative law grounds.
The DPP applied to have the plaintiff's summons summarily dismissed. The plaintiff appeared in person; the DPP was represented by senior counsel.
Legal Issues
- Whether the DPP's decision to take over private prosecutions under the Director of Public Prosecutions Act 1986 (NSW) is susceptible to judicial review.
- Whether the DPP's subsequent decision to decline to proceed further with those prosecutions is susceptible to judicial review.
- Whether the plaintiff's summons disclosed any arguable case warranting a full hearing, or should be summarily dismissed under Pt 13 r 5 of the Supreme Court Rules 1970.
Decision
James J held that the DPP is a prosecuting authority and that the relevant powers, namely the power under s 9(1) of the Director of Public Prosecutions Act 1986 to terminate a prosecution commenced by another person, and the power under s 9(4)(b) to decline to proceed further in a prosecution already taken over, are properly characterised as prosecutorial discretions. Decisions made in the exercise of prosecutorial discretions of this kind are, in His Honour's view, insusceptible to judicial review by the courts.
His Honour reached this conclusion after reviewing the relevant NSW legislation and considering a number of authorities, including decisions of the High Court and a Victorian Supreme Court decision addressing analogous provisions. His Honour noted that the Victorian decision in Stefanovski v The Magistrates' Court of Victoria had reached the same conclusion in relation to comparable Victorian legislation, and that a dissenting joint judgment in Gerlach v Clifton Bricks concerning judicial discretions did not disturb the position regarding prosecutorial discretions, which occupy a special category.
Because the proceedings disclosed no arguable basis for judicial review, James J concluded that summary dismissal was appropriate under the Supreme Court Rules. The plaintiff's summons and notice of motion were dismissed with costs.
Orders Made
- The plaintiff's summons and notice of motion were dismissed.
- The plaintiff was ordered to pay the defendant's costs of the proceedings, including the costs of the summary dismissal application.
Key Takeaways
- Prosecutorial discretions exercised by the DPP, including the decision to take over a private prosecution and the decision to decline to proceed further, are not susceptible to judicial review by the courts.
- Under the Director of Public Prosecutions Act 1986 (NSW), s 9(1) and s 9(4)(b) confer prosecutorial powers that fall within a category recognised as immune from administrative law challenge.
- Prosecutorial discretions occupy a distinct category from judicial discretions, and broad general propositions about judicial review drawn from cases involving judicial discretions do not automatically extend to prosecutorial decision-making.
- A summons seeking to challenge a DPP discontinuance decision on administrative law grounds discloses no reasonable cause of action and is liable to summary dismissal under Pt 13 r 5 of the Supreme Court Rules 1970.
- The result in this case aligned with the approach taken in the Victorian Supreme Court's decision in Stefanovski, indicating a consistent judicial position across jurisdictions on the reviewability of prosecutorial discontinuance decisions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Justices Act 1902 (NSW) (repealed)
- Migration Act 1958 (Cth)
- Public Prosecutions Act 1994 (Vic)
- Supreme Court Rules 1970 (NSW)
Cases:
- Barton v The Queen (1980) 147 CLR 75
- Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374
- Gerlach v Clifton Bricks Pty Limited (2002) 76 ALJR 828
- Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
- Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149
- M v Director of Public Prosecutions NSWSC (unreported, 6 March 1996)
- Maxwell v The Queen (1995) 184 CLR 501
- Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997
- Richardson v The Queen (1974) 131 CLR 116
- Stefanovski v The Magistrates' Court of Victoria & Ors [2004] VSC 313
- The King v Weaver (1931) 45 CLR 321
- The Queen v Apostilides (1984) 154 CLR 563