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Local Court 22 May 2015

Director of Public Prosecutions (NSW) v McDonald, Ian; Director of Public Prosecutions (NSW) v Maitland, John

[2015] NSWLC 7

Public order & justice offences
CRIMINAL LAW IMPROPERLY INSTITUTED PROCEEDINGS NULLITY COSTS APPLICATION

Citation: Director of Public Prosecutions (NSW) v McDonald, Ian; Director of Public Prosecutions (NSW) v Maitland, John [2015] NSWLC 7
Court: Local Court of NSW
Date: 22 May 2015
Judge(s): Grogin LCM

Background

Two defendants faced charges in the Local Court arising from an ICAC investigation. One defendant faced two counts of the common law offence of misconduct in public office; the other faced one count of being an accessory before the fact to that offence. Court Attendance Notices (CANs) had been issued on 19 November 2014 by a Senior Investigator employed by ICAC.

The Crown applied to withdraw the Local Court proceedings after filing ex officio indictments against both men in the District Court. Both defendants consented to the withdrawal but sought costs orders against the Crown.

In the course of those proceedings, the defendants raised a more fundamental objection: that the CANs had been issued without proper legal authority and the proceedings were therefore a nullity from the outset.

  • Whether an officer of ICAC had lawful authority to commence committal proceedings in the Local Court by issuing CANs under the Criminal Procedure Act 1986 (NSW)
  • Whether the proceedings were improperly instituted and therefore a nullity
  • Whether the court had jurisdiction to make a costs order under s 117 of the Criminal Procedure Act 1986 (NSW) where the proceedings were found to be invalid

Decision

Magistrate Grogin found that the CANs had been issued by the ICAC officer purportedly under s 48 of the Criminal Procedure Act 1986 (NSW), which permits a public officer to commence committal proceedings by issuing a CAN. ICAC is a declared public body under the Criminal Procedure Regulation 2010 (NSW), and its officers are therefore public officers for the purposes of the Act. However, being a public officer was only part of the requirement. Section 48 also requires that the officer be "authorised under section 14 of this Act or under any other law" to commence committal proceedings.

Section 14, which permits any person to institute proceedings for offences "under an Act", did not apply because misconduct in public office is a common law offence, not a statutory one. The Crown expressly conceded this point. The court then examined whether any other law authorised ICAC officers to commence such proceedings, including the Independent Commission Against Corruption Act 1988 (NSW) and its amendments following the McClintock Review. Magistrate Grogin found that the ICAC Act confers investigative functions and permits ICAC to refer matters and express opinions in reports, but contains no provision expressly authorising ICAC officers to institute criminal proceedings. Amendments that allowed ICAC to recommend that the DPP consider prosecution were found to address reporting functions only, not prosecutorial authority.

While the general common law principle permits any member of the public to commence a prosecution for an offence of a public nature (confirmed in Armstrong v Hammond and R v Thompson), the court found that the procedural mechanism used here, issuing a CAN under s 48, requires specific statutory authorisation that was absent. The private prosecution pathway under s 49, which requires a registrar's signature, had not been followed. Accordingly, the CANs were issued without authority and the purported prosecutions were invalid.

Because no valid proceedings existed, the court held it had no jurisdiction to entertain either a withdrawal application or a costs order under s 117 of the Act. The papers were marked "No jurisdiction."

Orders Made

  • No valid proceedings were before the court; accordingly, no orders could be made.
  • The papers in each matter were marked "No jurisdiction."

Key Takeaways

  • A public officer's status alone is insufficient to authorise the commencement of committal proceedings by CAN under s 48 of the Criminal Procedure Act 1986 (NSW); specific authorisation under s 14 or another law is also required.
  • Where committal proceedings concern a common law offence (rather than a statutory offence), s 14 of the Criminal Procedure Act does not provide the necessary authorisation, as that section is limited to offences "under an Act."
  • Provisions in the Independent Commission Against Corruption Act 1988 (NSW) that allow ICAC to express opinions about whether prosecution should be considered do not, in themselves, confer authority on ICAC officers to institute criminal proceedings.
  • Proceedings commenced without proper authority are a nullity: there is no valid matter before the court, and the court therefore has no jurisdiction to make ancillary orders, including costs orders under s 117 of the Criminal Procedure Act.
  • The general common law right to prosecute offences of a public nature, confirmed in R v Thompson (1991) and Armstrong v Hammond [1958], does not override the procedural requirements governing how proceedings are validly commenced in the Local Court.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 3, 14, 48, 49, 117
- Criminal Procedure Regulation 2010 (NSW), s 101
- Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 13, 74A
- Crimes and Courts Legislation Amendment Act 2006 (NSW)

Cases:
- Armstrong v Hammond [1958] VR 479
- Duncan v Demir (2009) 219 A Crim R 1
- R v Thompson (1991) 58 A Crim R 81