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Court of Criminal Appeal 21 April 2006

O'Meara v Regina

[2006] NSWCCA 127

Fraud & dishonesty
APPLICATION TO QUASH INDICTMENT

Citation: O'Meara v Regina [2006] NSWCCA 127
Court: Court of Criminal Appeal, New South Wales
Date: 21 April 2006
Judge(s): Hodgson JA, James J, Hoeben J

Background

The applicant, a self-represented accused, had been committed for trial in the District Court on six Commonwealth dishonesty offences. The charges arose from allegations that he dishonestly obtained or attempted to obtain tax refunds from the Australian Taxation Office to which he was not entitled. The Commonwealth Director of Public Prosecutions (CDPP) filed an indictment against him.

Before Berman DCJ in the District Court, the applicant sought to quash the indictment on several grounds: that the committing magistrate had not reviewed all seven volumes of evidence before committing him for trial, that she had therefore acted without authority, and that the CDPP lacked power to prosecute him because it did not represent the Crown in right of the State of New South Wales. Berman DCJ declined to hear the application, holding he lacked jurisdiction to review the committal decision. The applicant then sought leave to appeal to the Court of Criminal Appeal.

The applicant did not attend the hearing before the Court of Criminal Appeal, having advised by facsimile that he would rely on his written submissions. The Court was satisfied, based on a telephone conversation between a Crown solicitor and the applicant on the morning of the hearing, that the applicant was aware the proceedings were continuing and were being opposed.

  • Whether the District Court had jurisdiction to entertain an application to quash an indictment on the basis that the Commonwealth committal proceedings were defective.
  • Whether section 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) excluded State court review of the committal decision.
  • Whether the CDPP had lawful authority to prosecute federal offences on indictment in a State court, having regard to section 8 of the Criminal Procedure Act 1986 (NSW) and section 13 of the Interpretation Act 1987 (NSW).

Decision

Hoeben J, with whom Hodgson JA and James J agreed, upheld Berman DCJ's conclusion that the District Court lacked jurisdiction to review the committal decision. Section 9(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) expressly provides that, notwithstanding any other Act, a State court has no jurisdiction to review a decision to which that Act applies. The Court applied its own earlier decisions in R v O'Meara (2001) and Buckett v DPP (Commonwealth) (1992), both of which had confirmed this principle in materially identical circumstances.

On the question of the CDPP's authority to prosecute, the Court found the argument misconceived. The CDPP derives its power to prosecute Commonwealth indictable offences from sections 6 and 9 of the Director of Public Prosecutions Act 1983 (Cth), which authorise prosecution by indictment in the CDPP's own official name. Those proceedings are brought in State courts by operation of section 68 of the Judiciary Act 1901 (Cth), which applies relevant State procedural laws. Section 8 of the Criminal Procedure Act 1986 (NSW), which refers to representing the Crown, simply does not apply to the prosecution of federal offences. Section 13 of the Interpretation Act 1987 (NSW), which defines "the Crown" as the Crown in right of New South Wales, does not alter that conclusion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A State court has no jurisdiction to review a Commonwealth committal decision where section 9(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies, regardless of what other State or Commonwealth legislation might otherwise suggest.
  • The Court of Criminal Appeal confirmed this principle by reference to two earlier decisions involving materially identical facts, including a prior application by the same applicant in R v O'Meara (2001).
  • Under sections 6 and 9 of the Director of Public Prosecutions Act 1983 (Cth), the CDPP is authorised to prosecute Commonwealth indictable offences by indictment in its own official name, without needing to satisfy State law requirements about representing the Crown in right of New South Wales.
  • Proceedings for Commonwealth offences are conducted in State courts by operation of section 68 of the Judiciary Act 1901 (Cth), which applies relevant State procedural laws but does not subject the CDPP's prosecutorial authority to State-based definitions of "the Crown."
  • No error was established in Berman DCJ's refusal to entertain the motion to quash the indictment.

Legislation and Cases Referenced

Legislation:
- Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 9(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 3, 8, 63
- Director of Public Prosecutions Act 1983 (Cth), ss 6, 9
- Judiciary Act 1901 (Cth), ss 68, 69
- Interpretation Act 1987 (NSW), s 13

Cases:
- R v O'Meara (2001) 124 A Crim R 493
- Buckett v DPP (Commonwealth) (1992) 61 A Crim R 49
- R v Basha (1989) 39 A Crim R 337
- R v Murphy (1985) 158 CLR 596