Citation: [2015] NSWLC 13
Court: Local Court of NSW
Date: 27 May 2015
Judge(s): Favretto LCM
Background
The accused faced committal proceedings on charges of accessory after the fact to murder and concealing a serious indictable offence, both connected to the 2009 murder of Michael McGurk. The DPP relied on a tendered brief and the oral evidence of two witnesses, including Senad Kaminic and Fortunato Gatellari, who gave evidence pursuant to consent orders under section 91 of the Criminal Procedure Act 1986 (NSW).
At the close of the prosecution case, the accused applied for discharge. Unusually, the application was not based on a claim that the evidence before the Local Court was insufficient. Rather, the accused argued that a trial judge was likely to stay the proceedings for abuse of process, and that this anticipated stay meant there would in effect be insufficient evidence before a jury.
The court first addressed a threshold question: whether a magistrate in committal proceedings has any power to take into account the prospect of a future stay of proceedings when determining whether to commit an accused for trial.
Legal Issues
- Whether a magistrate conducting committal proceedings under sections 62 to 64 of the Criminal Procedure Act 1986 (NSW) has any power or function to assess the likelihood of a stay of proceedings being granted by a trial judge.
- Whether section 70 of the Act prevents a magistrate from considering the prospects of a stay for abuse of process.
- Whether the court should decline to exercise any such power in the interests of practicality, given the DPP's ability to file an ex officio indictment.
Decision
Issue 1: Power of a magistrate to anticipate a stay
The court held that the statutory function of a magistrate under section 64 is confined to assessing the present state of the evidence before the court, treating that evidence as if it were the evidence before a jury (at [12]). The language of the Act requires a determination based on the evidence actually before the magistrate, and nothing else. Drawing on the analysis of Dawson J in Grassby v The Queen and Hunt CJ at CL in Attorney-General for New South Wales v Stuart, the court concluded that a magistrate performing this function exercises an administrative or ministerial role governed by statute, not a predictive or supervisory one over future trial proceedings (at [12]-[13]).
Accordingly, the court held that a magistrate has no duty, function or power to determine whether a trial judge would stay the proceedings (at [14]). The reasoning of Deane J in Grassby, which the accused relied upon, was found to be unsupported by the plurality and had been criticised in AG v Stuart, where Hunt CJ at CL described the broader reading as "wrong" (at [13]).
Issue 2: Section 70 of the Criminal Procedure Act
The court rejected the DPP's submission that section 70 of the Act prevented a magistrate from considering the prospects of a stay for abuse of process (at [15]). Section 70 addresses the exclusion of evidence on admissibility grounds, and does not expressly or impliedly extend to stays of proceedings for abuse of process. That distinction had been noted in AG v Stuart. The court observed that Parliament, when enacting sections 62 to 64, may have deliberately legislated only on evidence exclusion and left the abuse of process question to the common law (at [15]).
Issue 3: Practicality and the DPP's ex officio power
The court rejected the DPP's submission that, even if such a power existed, it should not be exercised because the issue was unlikely to be resolved definitively in the Local Court given the DPP's power to file an ex officio indictment (at [16]). To defer on grounds of practicality would amount to a failure to discharge the court's judicial obligations. The court stated that it was required to properly exercise its powers and could not deny a party a fair hearing on an issue properly raised (at [16]).
Orders Made
- A magistrate has no power in committal proceedings to anticipate a stay of proceedings by the trial judge and consequently discharge the accused on the grounds of insufficient evidence.
Key Takeaways
- A magistrate's function under section 64 of the Criminal Procedure Act 1986 (NSW) is confined to assessing whether the evidence presently before the court would give a reasonable jury a reasonable prospect of conviction. It does not extend to predicting how a trial judge might exercise a future discretion to stay proceedings (at [12], [14]).
- The plurality reasoning in Grassby v The Queen and the Court of Criminal Appeal's analysis in AG v Stuart were treated as persuasive authority that anticipating a stay is no part of a magistrate's committal function, even though those cases were not, strictly, binding on the precise point raised here (at [13]).
- Section 70 of the Criminal Procedure Act is limited in scope to the exclusion of evidence on admissibility grounds. It does not govern or foreclose questions about the prospects of a stay for abuse of process (at [15]).
- Deane J's observations in Grassby supporting a broader magistrate's function were declined. They were found to be unsupported by the plurality and had been expressly criticised in subsequent appellate authority (at [13]).
- A court cannot decline to exercise powers properly before it merely because a supervisory or superior court might resolve the same question more efficiently at a later stage. Deferral on grounds of practicality would constitute a failure of judicial obligation (at [16]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 64, 91
Cases
- Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
- Grassby v The Queen [1989] HCA 45; 168 CLR 1
- Jago v District Court of NSW & Ors (1989) 87 ALR 577
- Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573
- R v Mohi [2000] SASC 384; 78 SASR 55