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District Court 10 April 2006

R v Ansari, Ansari & Ansari

[2006] NSWDC 141

Other
COMMONWEALTH POWER EX OFFICIO PROSECUTION DISTRICT COURT COMMONWEALTH DPP POWER OF ATTONEY GENERAL

Citation: R v Ansari, Ansari & Ansari [2006] NSWDC 141
Court: District Court of New South Wales
Date: 10 April 2006
Judge(s): Woods QC DCJ

Background

Three accused were prosecuted by the Commonwealth Director of Public Prosecutions (CDPP) on an indictment that included a conspiracy count. The prosecution proceeded by way of an ex officio indictment, meaning the CDPP filed the indictment directly without the matter having passed through committal proceedings before a magistrate.

Some way into the trial, counsel for one of the accused raised a jurisdictional challenge. The argument was that the District Court lacked the proper process to hear the matter, because the power to file an ex officio indictment had not been validly exercised in a court of that level.

The challenge required the court to examine whether the CDPP possessed power to bring an ex officio indictment in the District Court, or whether that power was confined, as it appeared to be for the Commonwealth Attorney-General, to the Supreme Court of a State or Territory.

  • Whether the CDPP has power under the Director of Public Prosecutions Act 1983 (Cth) to file an ex officio indictment in the District Court of New South Wales.
  • Whether the Commonwealth Attorney-General's power under s 71A of the Judiciary Act 1903 (Cth) to file ex officio indictments, which appears limited to Supreme Courts, also limits the CDPP's corresponding power.
  • Whether Parliament, in extending powers to the CDPP, could have intended to confer on the CDPP a wider power than that held by the Attorney-General.
  • Whether, independently of the technical argument, any abuse of process or actual unfairness arose from the use of the ex officio procedure in this case.

Decision

The court considered the accused's argument carefully, acknowledging its legal interest and expressing genuine hesitation before resolving it. The argument turned on the observation that s 71A of the Judiciary Act appears to confine the Attorney-General's ex officio power to Supreme Courts, and that it would be anomalous for the CDPP to hold a wider power than the Attorney-General. The accused submitted that Parliament would have spoken plainly if it had intended to confer an enlarged power on the CDPP.

The court found the reasoning of the NSW Court of Criminal Appeal in Duffield & Dellapatrona v R (1992) 28 NSWLR 638 persuasive. That decision traced the legislative history of the CDPP's powers and concluded that Parliament had, through a series of deliberate steps, extended the CDPP's ex officio prosecution powers beyond the original position, and that those powers expressly took priority over the general committal obligations in s 68 of the Judiciary Act to the extent of any inconsistency.

The court accepted, not without hesitation, that Parliament had deliberately granted the CDPP powers sufficient to ground an ex officio indictment in the District Court. It also noted that courts retain an inherent power to prevent abuse of process arising from the use of ex officio procedures, drawing on the historical analysis in R v Kent; Ex parte McIntosh (1970) and the High Court's approach in Barton v R (1980). No actual unfairness or abuse of process was identified on the facts of this case.

The trial was accordingly permitted to proceed.

Orders Made

• The trial will proceed.

Key Takeaways

  • The District Court confirmed, following Duffield & Dellapatrona, that the CDPP's powers to prosecute by ex officio indictment have been progressively and deliberately expanded by Parliament, and now extend beyond those enjoyed by the Commonwealth Attorney-General under s 71A of the Judiciary Act.
  • Where conflict exists between the general committal requirements in s 68 of the Judiciary Act and the express prosecutorial powers in the Director of Public Prosecutions Act 1983 (Cth), the latter prevails as both the more specific and the more recent enactment.
  • An ex officio indictment filed by the CDPP in the District Court does not, without more, constitute an abuse of process or give rise to unfairness sufficient to halt the prosecution.
  • Courts retain a supervisory power to make appropriate orders, including adjourning for committal proceedings, where the use of an ex officio indictment results in actual unfairness to an accused, consistent with the approaches taken in Barton v R and R v Kent.
  • The historical suspicion attached to ex officio indictments at common law, rooted in concerns about unchecked prosecution, was acknowledged by the court as a legitimate reason for scrutinising such procedures carefully, even where legislative power is ultimately found to exist.

Legislation and Cases Referenced

Legislation
- Director of Public Prosecutions Act 1983 (Cth), including ss 6(2)(d), 6(2)(e), 8
- Judiciary Act 1903 (Cth), including ss 68, 71A

Cases
- Duffield & Dellapatrona v R (1992) 28 NSWLR 638 (NSW Court of Criminal Appeal)
- R v Kent; Ex parte McIntosh (1970) 17 FLR 65
- Barton v R (1980) 147 CLR 75 (High Court of Australia)