Citation: Potier v Magistrate O'Shane & Anor [2008] NSWSC 141
Court: Supreme Court of New South Wales, Common Law Division
Date: 3 March 2008
Judge(s): Hidden J
Background
The plaintiff, a convicted prisoner who had been found guilty of two counts of soliciting to murder, sought to launch a private prosecution against the detective superintendent who had led the investigation into his offending. He alleged that the officer had withheld critical phone records from the defence, intending to pervert the course of justice contrary to s 319 of the Crimes Act 1900.
The plaintiff applied for a court attendance notice to commence those committal proceedings. A deputy registrar of the Local Court refused to sign the notice, citing the grounds in the applicable rules that the proceedings were frivolous, vexatious, without substance, or had no reasonable prospect of success. Magistrate O'Shane then dealt with the matter as a review of that decision, and declined to have the court attendance notice issued.
The plaintiff challenged Magistrate O'Shane's decision in the Supreme Court, seeking prerogative relief (that is, orders from a superior court correcting or setting aside the magistrate's conduct of the matter). He appeared without legal representation throughout. Because the plaintiff was a convicted felon, he also required leave under the Felons (Civil Proceedings) Act 1981 to pursue civil proceedings.
Legal Issues
- Whether a magistrate has power under s 49(3) of the Criminal Procedure Act 1986 to determine, on a fresh basis, whether a court attendance notice should issue after a registrar's refusal, or whether the magistrate is limited to reviewing the registrar's decision for error.
- Whether the registrar's refusal to sign the court attendance notice was affected by a denial of procedural fairness, including the absence of any oral hearing for the applicant.
- Whether Magistrate O'Shane's handling of the application involved a constructive failure to exercise jurisdiction (that is, whether she failed to perform the task the law required of her).
- Whether the plaintiff had a right to propose an alternative charge before the magistrate.
- Whether a Supreme Court judge could, in these proceedings, issue a court attendance notice if satisfied it was appropriate.
Decision
Hidden J granted leave under the Felons (Civil Proceedings) Act 1981 to allow the case to be decided on its merits, noting that the proceedings raised questions of substance. Having done so, his Honour dismissed the plaintiff's summons in its entirety.
On the procedural question, Hidden J found that a magistrate acting under s 49(3) of the Criminal Procedure Act 1986 exercises an independent power to determine whether a court attendance notice should be issued. The section is not limited to a review of the registrar's decision for error. However, in practical terms, the distinction made little difference here because the materials before the magistrate did not support the issue of a notice.
Regarding procedural fairness, Hidden J found that the registrar was not required to hold an oral hearing before refusing to sign a court attendance notice. The relevant statutory and rule framework permitted the registrar to make a decision on the written materials provided. No denial of procedural fairness was established.
His Honour also rejected the argument that Magistrate O'Shane had constructively failed to exercise jurisdiction. Even if her Honour had approached the matter as a review rather than an exercise of independent judgment, the transcript showed that she had in substance made her own determination that the court attendance notice should not issue. The plaintiff's complaint about not being permitted to propose an alternative charge was also dismissed, as any additional charge could have been included in the original written application. A brief constitutional argument challenging the legislative distinction between private citizens and police or public officers in commencing prosecutions was dismissed as without substance.
Orders Made
- Summons dismissed.
Key Takeaways
- Under s 49(3) of the Criminal Procedure Act 1986, a magistrate asked to review a registrar's refusal to sign a court attendance notice holds an independent power to determine whether the notice should issue, rather than being confined to scrutinising the registrar's decision for error.
- A registrar considering an application to issue a court attendance notice for a private prosecution is not required to afford the applicant an oral hearing before refusing; the decision may properly be made on the written application and supporting material.
- No constructive failure to exercise jurisdiction arises where a magistrate, even if nominally conducting a "review", nonetheless makes a substantive, independent determination about whether a court attendance notice should be issued.
- The legislative distinction between police and public officers, on the one hand, and private citizens, on the other, in the commencement of prosecutions under the Criminal Procedure Act 1986 was confirmed as valid.
- A Supreme Court judge has no power in proceedings of this kind to sign a court attendance notice; that function is exclusively assigned by statute to Local Court registrars and magistrates.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 48, 49(3)
- Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW), cls 57, 61
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 317, 319
- Felons (Civil Proceedings) Act 1981 (NSW)
Cases:
- Potier v R [2006] NSWCCA 27
- Potier v Magistrate Maughan [2004] NSWSC 590
- Potier v Magistrate Huber [2004] NSWSC 720
- Ex parte Qantas Airways Ltd; Re Horsington & Anor [1969] 1 NSWR 788
- R v Emmett and Masland (1988) 14 NSWLR 327
- Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431