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Local Court 20 February 2018

R v Elzahed (No 1)

[2018] NSWLC 21

Public order & justice offences
CRIMINAL PROCEDURE COMMENCING PROCEEDINGS

Citation: R v Elzahed (No 1) [2018] NSWLC 21
Court: NSW Local Court
Date: 20 February 2018
Judge(s): Huntsman LCM

Background

The defendant faced nine charges of disrespectful behaviour in court under s 200A(1) of the District Court Act 1973, arising from her conduct during civil proceedings she had brought against NSW Police and the Australian Federal Police in the District Court. The alleged offending occurred across four hearing days in late November and early December 2016, before a District Court judge. The prosecution was brought by the Department of Justice.

Section 200A(8) of the District Court Act requires the Attorney General's authorisation before proceedings for that offence may be commenced. In this case, the Attorney General had delegated the authorisation power to the Solicitor General under the Solicitor General Act 1969, and the Solicitor General had signed a written authorisation in February 2017.

At the opening of the three-day hearing, the defendant challenged the Local Court's jurisdiction. She argued that the proceedings had not been validly commenced because the authorisation was deficient in three distinct ways.

  • Whether the Solicitor General's authorisation was sufficiently specific to cover the particular proceedings instituted by the Court Attendance Notices, or whether it was too broad to satisfy s 200A(8).
  • Whether the Solicitor General's exercise of the authorisation power miscarried by failing to consider the public interest, and instead focusing only on whether a prosecution was arguable.
  • Whether the instrument of delegation from the Attorney General to the Solicitor General was invalid for lack of specificity in its language.

Decision

First contention: specificity of the authorisation. The defendant argued that the Solicitor General authorised proceedings for "any possible offences identified from transcript, interviews and CCTV footage," rather than the particular charges in the Court Attendance Notices. The Magistrate rejected this. Reading the authorisation document as a whole, the Solicitor General had identified the specific defendant, the specific civil proceedings, the specific hearing dates, and the specific statutory provision. The authorisation was sufficiently particular to cover the charges that followed.

Second contention: miscarriage of the discretion. The defendant submitted that the authorisation power exists as a public interest safeguard, and that the Solicitor General unlawfully considered only whether a prosecution was arguable. The Magistrate disagreed. The court found that ss 200A(6) and 200A(8) operate in a complementary way: subs (8) requires the Attorney General's authorisation, while subs (6) separately contemplates that prosecuting authorities will apply prosecutorial guidelines, including public interest considerations. The Solicitor General's authorisation document addressed the available evidence, and the Crown Solicitor's Office retained responsibility for applying public interest factors in conducting the prosecution. There was no demonstrated miscarriage of the discretion.

Third contention: validity of the delegation. The defendant argued that the instrument of delegation from the Attorney General to the Solicitor General was too uncertain to be valid, pointing to the use of the word "including" in the operative text. The Magistrate rejected this as well. The instrument clearly and specifically named s 200A of the District Court Act 1973, and the word "including" did not render the surrounding language ambiguous or uncertain. The delegation was valid.

Having rejected all three grounds, the Magistrate held that the proceedings had been validly commenced and that the Local Court had jurisdiction to hear the charges.

Orders Made

• The proceedings were validly commenced and the Local Court accordingly has jurisdiction to hear the proceedings.

Key Takeaways

  • Under s 200A(8) of the District Court Act 1973, the Attorney General's authorisation is a precondition to commencing proceedings for disrespectful behaviour in court, and a failure to obtain it would deprive the Local Court of jurisdiction.
  • An authorisation under s 200A(8) does not require the identification of specific charges by number or precise form; it is sufficient if the authorising document identifies the defendant, the statutory provision, and the relevant dates and conduct with reasonable particularity.
  • The authorisation function under s 200A(8) and the prosecutorial discretion to assess public interest under s 200A(6) are complementary rather than duplicative: the public interest assessment need not be expressly resolved in the authorisation document if it falls within the role of the prosecuting authority.
  • A delegation instrument made under s 4 of the Solicitor General Act 1969 is valid if it specifically identifies the relevant statutory provision, even where broad language such as "including" appears in the instrument's text.
  • Insufficient specificity in an authorisation or delegation will not automatically be found merely because the language is general in form; the court will read the document as a whole and in context before concluding that it is uncertain or ineffective.

Legislation and Cases Referenced

Legislation
- District Court Act 1973 (NSW), s 200A
- Solicitor General Act 1969 (NSW), s 4

Cases
- Berwin v Donohoe (1915) 21 CLR 1
- Crichton v Victorian Dairies Limited [1965] VR 49
- McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority (2000) 50 NSWLR 127
- McConnell Dowell Constructions Australia Pty Ltd v Environment Protection Authority (unreported, NSWCCA, 25/10/96)
- Oates v Williams (1998) 84 FCR 348
- R v Bacon [1973] 1 NSWLR 87
- R v Cain [1976] QB 496
- Robinson v Eureka Operations Pty Limited (2008) 192 A Crim R 234
- Traveland Pty Ltd v Doherty (1982) 63 FLR 41