O'Meara v R [2006] NSWCCA 127 (21 April 2006)

CITATION: O'Meara v Regina [2006] NSWCCA 127

FILE NUMBER(S):

2006/441

HEARING DATE(S): 19/04/2006

DECISION DATE: 21/04/2006

PARTIES:

Kenneth Ian O'Meara - Applicant

Commonwealth Director of Public Prosecutions - Respondent

JUDGMENT OF: Hodgson JA James J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0978

LOWER COURT JUDICIAL OFFICER: Berman DCJ

COUNSEL:

Applicant in person

M Buscombe - Commonwealth DPP

SOLICITORS:

Applicant in person

Commonwealth Director of Public Prosecutions - Respondent

CATCHWORDS:

Application to quash indictment - no jurisdiction in State court to review committal proceedings brought by Commonwealth - source of Commonwealth Director of Public Prosecution's power to prosecute federal offences in State courts.

LEGISLATION CITED:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Criminal Appeal Act 1912

Criminal Procedure Act 1986

Director of Public Prosecutions Act 1983 (Cth)

Judiciary Act 1901 (Cth)

Interpetation Act 1987

DECISION:

Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/441

HODGSON JA

JAMES J

HOEBEN J

Friday 21 April 2006

Kenneth Ian O’MEARA v REGINA

Judgment

1 HODGSON JA: I agree with Hoeben J.

2 JAMES J: I agree with Hoeben J.

3 HOEBEN J: This is an application for leave to appeal against an order by Berman DCJ refusing to quash an indictment. The application is brought pursuant to s5F of the Criminal Appeal Act 1912. The applicant is not legally represented.

4 The motion by the applicant before Berman DCJ was in the following form:

“1. The indictment be quashed on the ground that the Certificate of Committal is defective and cannot found a valid trial for the following reasons:

1.1 The committing magistrate, on his own admission, did not consider all the evidence, as required by section 63 of the Criminal Procedure Act 1986.

1.2 The committing magistrate acted coram non judice in finding that the applicant had committed an indictable offence, as required by sections 3 and 63 of the Criminal Procedure Act 1986.

1.3 The respondent is incompetent to prosecute, that he cannot lawfully represent the Crown in right of the State of New South Wales as required by section 8 of the Criminal Procedure Act 1986 and section 13 of the Interpretation Act 1987.”

The respondent to the motion was the Director of Public Prosecutions (Commonwealth).

5 The matter was fixed for hearing in this Court on 19 April 2006. By facsimile dated 10 April 2006 addressed to the Registrar of the Court, the applicant advised:

“Attached please find my written submissions which are due 11 April 2006.

Please note that as I am required to attend my Parole Officer on the 19th April 2006 (due to the fact that judgment in that appeal is now over seven months “reserved”), I shall be unable to attend the hearing of this matter, so will not make oral submissions.

I have also decided not to remove the matter to the High Court, at this stage, rather wait the outcome of the District Court’s decision on a further motion to quash, to be heard 12 April 2006.

I advise you of this, so as to assist the Court’s scheduling.”

Attached to that facsimile were eight pages comprising the applicant’s written submissions.

6 Early on the morning of 19 April the following email was received by the Registrar of the Court:

“The above appeal is set down for hearing today.

Please note that the Crown have not served any written submissions on me. All that has been served are:

1. Appeal Book.

2. Supplementary Appeal Book.

Neither of the above contain any submissions.

I intended to make last minute arrangements to attend the hearing today, however this seems unnecessary now as the Crown have not contested the appeal.

Would you please bring the above to the Court’s attention?”

7 The contents of that email were raised with the Crown. In response the Crown adduced evidence from Mr Henschell, a solicitor employed by the Commonwealth DPP, who has the conduct of this matter. His evidence was that he had personally emailed a copy of the Crown’s written submissions to the applicant on 13 April. The address to which the Crown’s submissions had been emailed was the email address used by the applicant in previous contacts between him and the Commonwealth DPP. He had also sent the Crown submissions by mail on the afternoon of 13 April. I accept that the Crown’s submissions were emailed to the applicant’s email address on 13 April 2006.

8 Mr Henschell gave evidence to the effect that shortly after 10am, after the contents of the applicant’s email of 19 April had been brought to his attention, he contacted the applicant using the applicant’s mobile phone number. He recognised the applicant’s voice from previous conversations with him. He told the applicant that this matter was proceeding before the Court on 19 April and that the Crown would be opposing his application. The applicant acknowledged receipt of that information.

9 I am satisfied that the applicant was aware that his matter would be proceeding on 19 April 2006. I am also of the opinion that the applicant was aware that his application would be opposed by the Crown despite the email of 19 April. Even if he was not, I am satisfied from the telephone conversation between the applicant and Mr Henschell on the morning of 19 April that the applicant understood at that time that his application would be proceeding and that it would be opposed by the Crown. I am also satisfied on the basis of that telephone conversation, and on the basis of the facsimile from the applicant of 10 April 2006, that the applicant did not intend to attend the hearing but proposed to rely upon his written submissions.

10 The applicant’s written submissions are detailed and comprehensive and I propose to deal with the application in his absence.

Grounds of Appeal

2. The applicant submits that the primary judge erred in finding that he did not have jurisdiction in respect of the question before this Court.

3. The applicant submits that the issue in question is not caught by s9 of the Administrative Decisions (Judicial Review) Act 1977, or that any part of the notice of motion was caught by that Act.

4. The applicant submits that he was entitled to have the matter heard.

5. The applicant submits that he is now entitled to have the matter heard on the evidence placed before the primary court, in accord with s5F(4) of the Criminal Appeal Act 1912.

11 The applicant was committed for trial on six offences of dishonesty under the Criminal Code (Commonwealth). The trial was originally listed for 24 April 2006 in the District Court but will now not be proceeding on that date. A new hearing date has not been allocated. It is unnecessary to detail the offences for which the applicant is to stand trial, but they concern allegations that he dishonestly obtained, or attempted to obtain, a refund from the Australian Taxation Office to which he was not entitled. An indictment has been filed for the six committal charges in the name of the Director of Public Prosecutions of the Commonwealth.

12 The applicant asserts that the committing magistrate did not consider all the evidence and that she erred in finding that the applicant had committed an indictable offence. The attack upon the decision of the magistrate to commit the applicant for trial is on the basis of her acknowledgement that she had not read all the seven volumes of evidence in detail.

13 Berman DCJ held that he had no jurisdiction to determine the application because it was, in effect, a request to review a decision to which s9 of the Administrative Decisions (Judicial Review) Act (Commonwealth) applied. In coming to that view the judge applied the decision of this Court in R v O’Meara [2001] NSWCCA 340; (2001) 124 A Crim R 493.

14 R v O’Meara was concerned with an application made by the present applicant under s5F of the Criminal Appeal Act in respect of committal proceedings for offences contrary to s29D of the Commonwealth Crimes Act (now repealed). The Court held that it did not have jurisdiction to determine the application, firstly because the order for committal was not an interlocutory order within s5F and secondly, because the order sought was a review under s9. R v O’Meara confirmed an earlier decision of Buckett v DPP (Commonwealth) (1992) 61 A Crim R 49.

15 Section 9(1) of the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) provides that notwithstanding anything contained in any Act other than the Act itself, a court of a State does not have jurisdiction to review a decision to which the section applies. A decision to which the section applies is defined as meaning a decision to which the Act applies, a phrase itself defined as meaning a decision of an administrative character made, or proposed to be made, or required to be made, under an enactment, relevantly, an act of the Parliament. “Review” is defined to mean relevantly the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ.

16 R v O’Meara and Buckett v DPP held that a committal order was a decision of an administrative character made under an enactment. The six offences presently charged against the applicant arose under the Criminal Code (Commonwealth). Accordingly the decision to commit the applicant was made under a Commonwealth enactment as provided in s9 of the Administrative Decisions (Judicial Review) Act. It follows that the magistrate’s order for committal in this case, being a decision of an administrative character, was by force of s9 of the Administrative Decisions (Judicial Review) Act, a decision which a Court of New South Wales does not have jurisdiction to review.

17 Berman DCJ was correct in holding that he had no jurisdiction to determine the application.

18 In any event the indictment presented to the District Court was not rendered invalid by any defect in the committal proceedings. An indictment can be presented or filed in the District Court even though there might have been no committal proceedings. In such a case the indictment is, in effect, an ex officio indictment. The only question arising in such a situation is whether the trial on the indictment would be unfair such that the indictment should be stayed: R v Basha (1989) 39 A Crim R 337.

1. The applicant submits that the respondent is incompetent to prosecute in the manner followed in the lower court, where the respondent presumes to prosecute “in this behalf for her Majesty”, presuming to represent the Crown in Right of New South Wales, contrary to section 8 of the Criminal Procedure Act 1986 and section 13 of the Interpretation Act 1987, and contrary to well held authority that where a Commonwealth statute conferred Federal jurisdiction upon a State court, the State court must be taken as it is found”.

19 In this ground the applicant does not seek to argue that Berman DCJ had jurisdiction to determine whether the committal proceedings were defective. His complaint is that the judge ought to have dealt with the issue as to the right of the Commonwealth Director of Public Prosecutions to prosecute him. Berman DCJ did not deal with this issue. Since it is not a matter covered by s9 of the Administrative Decisions (Judicial Review) Act (Commonwealth), this Court has jurisdiction and leave should be granted.

20 The applicant relies upon s8 of the Criminal Procedure Act (NSW). That section provides:

“(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court on behalf of the Crown, in the name of the Attorney-General or the Director of Public Prosecutions.

(2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.

(3) This section does not apply to offences that are required to be dealt with summarily.

(4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily.”

21 The applicant also relies upon s13 of the Interpretation Act (NSW) which provides:

“13. In any Act or instrument:

(a) A reference to the Sovereign (whether the words “her Majesty” or “his Majesty” or any other words are used) is a reference to the Sovereign for the time being, and

(b) a reference to the Crown is a reference to the Crown in right of New South Wales.”

22 The applicant submits that the Commonwealth Director of Public Prosecutions does not fall within s8 if it is read in the light of s13 of the Interpretation Act and therefore cannot prosecute him on indictment since he does not “lawfully represent the Crown in right of the State of New South Wales”.

23 The difficulty confronting the applicant is that the Commonwealth Director of Public Prosecutions obtains his power to prosecute federal offences on indictment under s6 and s9 of the Director of Public Prosecutions Act 1983 (Commonwealth). Section 9 provides:

“9(1) For the purposes of the performance of his or her functions, the Director may prosecute by indictment in his or her official name indictable offences against the laws of the Commonwealth, but nothing in this subsection prevents the Director from prosecuting an offence against a law of the Commonwealth in any other manner.

(2) Where the Director institutes a prosecution on indictment for an offence against a law of the Commonwealth, the indictment shall be signed:

(a) By the Director; or

(b) for and on behalf of the Director, by a person authorised by the Director, by instrument in writing to sign indictments.”

24 Proceedings for such offences are brought in State courts and relevant State laws apply by virtue of s68 of the Judiciary Act 1901 (Commonwealth) (R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 617). See also s69 of the Judiciary Act.

25 It follows that s8 of the Criminal Procedure Act has no application to the prosecution of federal offences, such as the offences under the Criminal Code with which the applicant has been charged. This ground of appeal must fail.

26 The orders which I propose are as follows:

(i) Leave to appeal be granted.

(ii) The appeal be dismissed.

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LAST UPDATED: 25/05/2006