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Local Court 16 December 2014

Director of Public Prosecutions (Cth) on behalf of the Director of Public Prosecutions (NSW) v El Ali, Khoder (No 1)

[2014] NSWLC 28

Firearms & weapons
CRIMINAL LAW "CARRY ON"

Citation: [2014] NSWLC 28
Court: Local Court of New South Wales
Date: 16 December 2014
Judge(s): Favretto LCM

Background

These were committal proceedings arising from an alleged scheme to import and distribute firearms. The accused was charged with a Commonwealth importation offence and several State firearms offences, all relating to the unlawful importation and subsequent sale of approximately 140 Glock pistols, smuggled in parts through a post office and nearby addresses between 2011 and 2012. The accused was one of three co-accused; the other two had already been committed for sentence in the District Court following contested committal proceedings.

The Commonwealth Director of Public Prosecutions (CDPP) prosecuted the Commonwealth importation charge in its own right. It also purported to carry on the State firearms charges on behalf of the NSW Director of Public Prosecutions (NSWDPP), which did not itself appear at the committal hearing.

The accused pleaded guilty to the Commonwealth charge during the hearing and then challenged the continuation of the State proceedings. The central argument was that the CDPP lacked the legal authority to appear and prosecute the State charges on behalf of the NSWDPP, and that the NSWDPP's absence therefore required his discharge.

  • Whether the CDPP had statutory power, under the Director of Public Prosecutions Act 1983 (Cth) (CDPP Act), to "carry on" committal proceedings for State offences on behalf of the NSWDPP
  • Whether sections 6(1)(m) or 17 of the CDPP Act conferred that power
  • Whether Clause 3 of the Director of Public Prosecutions Regulations 1984 (Cth) separately authorised the CDPP to conduct those proceedings
  • Whether the NSWDPP could authorise the CDPP to appear as its agent by informal arrangement in the absence of a statutory basis
  • Whether, if the CDPP lacked authority, the NSWDPP should be treated as having failed to appear, triggering the discharge or adjournment provisions in section 61(1) of the Criminal Procedure Act 1986 (NSW)

Decision

The court found that the CDPP did have lawful authority to carry on the committal proceedings for the State firearms offences and to appear for the NSWDPP in doing so. As a result, the NSWDPP was not to be treated as having failed to appear at the committal hearing.

The court examined Clause 3 of the Director of Public Prosecutions Regulations 1984 (Cth), which authorises the CDPP to carry on proceedings for State offences where those proceedings were instituted by specified classes of Commonwealth officers or persons. The court rejected the NSWDPP's contention that this regulation applied, because the State committal proceedings had not been instituted (or taken over) by any person falling within the enumerated classes in the regulation. That argument therefore could not provide the foundation sought.

On the question of agency, the court held that any authority for the CDPP to appear and conduct the State proceedings as the NSWDPP's agent required an enabling statutory basis in the CDPP Act itself, consistent with the principles in Byrnes v R and Bond v R. An informal arrangement between the two offices could not supply what the statute did not provide. The court nonetheless concluded, based on its analysis of the CDPP Act (particularly sections 6(1)(m) and 17), that the necessary statutory authority existed and that the CDPP had acted within power throughout the committal. The court reserved separate determination of the accused's further contentions regarding the State charges.

Orders Made

• The CDPP had lawful authority to carry on the committal proceedings for the State firearm offences and to appear for the NSWDPP
• The NSWDPP did not fail to appear at the committal hearing
• The Court will separately consider and determine the accused's further contentions

Key Takeaways

  • The Local Court confirmed that the CDPP's authority to carry on State proceedings on behalf of the NSWDPP must rest on an express statutory foundation in the CDPP Act; an informal arrangement between the two prosecutorial offices is insufficient on its own.

  • Clause 3 of the Director of Public Prosecutions Regulations 1984 (Cth), which permits the CDPP to carry on State committal or summary proceedings, applies only where those proceedings were instituted by a class of persons specifically enumerated in the regulation. Where the proceedings were commenced by NSW Police and taken over by the NSWDPP, that regulation does not provide the authorising basis.

  • Sections 6(1)(m) and 17 of the CDPP Act were treated as the operative sources of authority for the CDPP to appear and carry on State offence proceedings on behalf of the NSWDPP in circumstances where the Commonwealth and State charges were inextricably linked.

  • Where the NSWDPP has taken over State charges under section 9(1)(a) of the Director of Public Prosecutions Act 1986 (NSW), the NSWDPP is the prosecutor to the exclusion of the originating police officers, even if no written notice was given to the court, because section 10(4) of that Act provides that a failure to give written notice does not affect the NSWDPP's functions.

  • The absence of a formal written notice to the court registry that the NSWDPP had assumed conduct of the State charges did not invalidate the NSWDPP's status as prosecutor, consistent with the approach taken in Price v Ferris (1994) 34 NSWLR 704.

Legislation and Cases Referenced

Legislation
- Director of Public Prosecutions Act 1983 (Cth), ss 6(1)(m), 6(2)(b), 6(5), 9(5)(a), 14(1)(a)(i), 15, 17
- Director of Public Prosecutions Regulations 1984 (Cth), cl 3(1)(a)
- Director of Public Prosecutions Act 1986 (NSW), ss 9(1)(a), 10(1), 10(4), 33
- Criminal Procedure Act 1986 (NSW), ss 61(1), 91
- Crimes Act 1900 (NSW), s 93T(1)
- Criminal Code (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 233BAB(5)
- Firearms Act 1996 (NSW), ss 51B(1), 51D(2), 70
- Judiciary Act 1903 (Cth), s 78B

Cases
- Byrnes v R [1999] HCA 38; 199 CLR 1
- Bond v R [2000] HCA 13; 201 CLR 213
- Price v Ferris (1994) 34 NSWLR 704
- Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
- R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
- Gillis v Director of Public Prosecutions (Cth) (1993) 43 FCR 458
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
- Lacey v Attorney General of Queensland [2011] HCA 10; 242 CLR 573
- R v Janceski [2005] NSWCCA 281; 223 ALR 580
- Wells v Commonwealth [2014] NSWSC 148