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Walsh v DPP [2005] VSC 469 (8 December 2005)


Last Updated: 8 December 2005

IN THE SUPREME COURT OF VICTORIA Not Restricted


AT MELBOURNE
COMMON LAW DIVISION
No. 8933 of 2005
JOHN RICHARD WALSH Plaintiff
v
DIRECTOR OF PUBLIC PROSECUTIONS & Defendants
ANOR
---
JUDGE: HANSEN J
WHERE HELD: Melbourne
DATE OF HEARING: 16 November 2005
DATE OF JUDGMENT: 8 December 2005
CASE MAY BE CITED AS: Walsh v Director of Public Prosecutions
MEDIUM NEUTRAL [2005] VSC 469
CITATION:
---
Judicial review – Charges brought in Magistrates’ Court by plaintiff against Crown Prosecutor at
his trial – Plaintiff also laid charges against DPP – Charges against prosecutor taken over by DPP
who elected not to proceed – Charges against the prosecutor struck out – Whether order of
Magistrate affected by motive, bias or conflict of interest of DPP – Whether decision of Magistrate
open to judicial review – Public Prosecutions Act 1994 s 22(1)(b)(ii), s 24 and s 29.
---
APPEARANCES: Counsel Solicitors
For the Plaintiff In person
For the First Defendant Mr J. D. McArdle QC Mr S. Carisbrooke

Acting Solicitor for Public


Prosecutions

No appearance by the Second


Defendant
HIS HONOUR:
Introduction

1 This is an application for judicial review of orders made by the Magistrates’ Court at
Melbourne on 20 January 2005 whereby proceedings brought by the plaintiff, John
Richard Walsh , against a Crown Prosecutor, Jeremy Rapke QC, were struck out on
the application of the Director of Public Prosecutions ("the Director").

2 The proceedings in the Magistrates’ Court consisted of 22 charges and summonses


which alleged a range of offences. A copy of the charges is not in evidence, but the
nature of the offences alleged is apparent from the short description of the nature of the
charge stated in the certified extracts from the register of the Magistrates’ Court and
which extracts are exhibited to the plaintiff’s affidavit in support. In each case the date
of occurrence of the alleged offence was in the time during which Mr Rapke was
prosecuting the plaintiff at his trial in this Court, and to which I refer below. The
offences alleged are shortly described in the charges and include perverting the course
of justice, using a false document, conspiring to pervert the course of justice, inciting
another to commit an offence, making a false document to the prejudice of another,
copying and using a false document, contempt of court, and subornation of perjury. It is
apparent that the allegation is that the offences were committed in the course of the trial.

3 Prior to the charges being heard on 20 January 2005 Mr Rapke requested the Director
consider taking over and conducting the prosecution of them. The Director considered
the matter and determined that the charges were misconceived as a matter of law and
should not proceed. Accordingly, the Director, acting pursuant to his power to do so in s
22(1)(b)(ii) of the Public Prosecutions Act 1994 ("the Prosecutions Act"), determined to
take over the conduct of the proceedings and to discontinue the charges. The plaintiff
was advised of these decisions by a letter from the Associate to the Director, dated 10
January 2005.

4 At the hearing on 20 January 2005 counsel for the Director informed the Magistrate of
the Director’s decision and asked that the charges be struck out. After discussion with
counsel and the plaintiff the Magistrate ordered that the charges be struck out.

5 The originating motion sets out a series of orders that the plaintiff seeks. The first
order is that the orders of the Magistrates’ Court be set aside, and the charges be
remitted to the Magistrates’ Court to be dealt with in accordance with law. Then follow
a raft of orders or matters in paragraphs numbered three to 14. These commence with a
request that Mr Rapke be directly presented for trial in this Court on all charges. Neither
this request nor those which follow could be ordered in this proceeding and,
accordingly, I do not further refer to them.

6 The defendants to the application for judicial review are the Director and the
Melbourne Magistrates’ Court. The Director has appeared by counsel to oppose. In
accordance with a letter sent to the Court, the Magistrates’ Court did not appear at the
hearing and has not taken an active role in the proceeding.
The plaintiff’s trial

7 Mr Rapke prosecuted the plaintiff at his trial had in Melbourne before Smith J on a
count of conspiracy to defraud and three counts of perverting the course of public
justice. The trial commenced on 19 October 2000 and concluded with a verdict of guilty
on all counts on 24 March 2001. On 31 March 2001 the plaintiff was sentenced to a
total effective term of imprisonment of 10 years with a non-parole period of 7 years.

8 On 26 June 2002 the Court of Appeal dismissed applications by the plaintiff for leave
to appeal against conviction and sentence[1]. An application for leave to appeal to the
High Court was abandoned.

9 As mentioned, it was during the trial that the offences the subject of the 22 charges are
alleged to have occurred. The reasons for judgment of the Court of Appeal indicate that
the impugned conduct of Mr Rapke was not relied on as a ground of appeal.

The proceeding

10 The proceeding was brought by originating motion for judicial review pursuant to
Order 56 of the Supreme Court (General Civil Procedure) Rules 1996. The originating
motion was filed on 24 October 2005.

11 The originating motion is supported by a document which describes itself as an


affidavit but which was made as a declaration. No point was taken as to this and nothing
turns upon the document being a declaration.

12 The originating motion and affidavit (as I will call it) are extensive documents which
contain a wide range of allegations concerning the conduct of the Director and Mr
Rapke. I do not in the course of these reasons propose to refer to all that is said. It is
unnecessary to do so. Indeed, to do so would in some instances only give air to
irrelevant and defamatory matter. At the same time I have regard to all that is said to
ensure that no relevant matter is overlooked, although I do not in these reasons refer to
every such matter. I should say that I was assisted by the succinct oral submissions both
of the plaintiff and counsel for the Director which concentrated on the relevant issues.

Order 56

13 Order 56.01(1) and (2) provide, in summary, that the jurisdiction of the Court to
grant relief in the nature of certiorari shall be exercised only by way of judgment or
order in a proceeding commenced by originating motion.

14 Order 56.02 limits the time within which such a proceeding may be commenced.
That time is 60 days after the date of the order in question; see paras (1) and (2). There
is power to extend that time but the power to do so is conferred in the following terms,
namely:

"(3) The Court shall not extend the time fixed by paragraph (1)
except in special circumstances."

Proceeding out of time

15 As the impugned orders were made on 20 January 2005 the period of 60 days within
which to commence the proceeding for judicial review had long since expired when the
originating motion was filed on 24 October 2005. Hence the proceeding must be
dismissed unless the plaintiff can establish the existence of special circumstances which
warrant the time for commencement being extended to the date of filing, and I
determine that the time should be so extended.

Submissions on special circumstances

16 In submitting that special circumstances existed the plaintiff relied on the following
matters. He had been pursuing the matter since the orders were made on 20 January
2005. In that respect he referred, without elaboration, to subsequent hearings in the
Magistrates’ Court which he described as a continuation of his private prosecution of
the Director and Mr Rapke. At these hearings, and it may be at other times, he sought
the transcript of the hearing on 20 January 2005. He told me that he did not receive the
transcript until around May or June 2005. I note that counsel for the Director did not
dispute that the plaintiff received the transcript in that period. The transcript is an
exhibit to the plaintiff’s affidavit.

17 Further to relying on the delay in obtaining the transcript as a cause of delay in


commencing the proceeding, the plaintiff relied on his lack of legal assistance in
preparing the application. He said that he was not able to obtain counsel.

18 The plaintiff further said that he had procedural difficulty in getting the documents
into order. In that respect there is the originating motion and the affidavit which he
forwarded to the Prothonotary "for procedural format checking and registering" on 18
October 2005 and which were received by the Prothonotary on 21 October 2005. The
plaintiff said that he had kept the Prothonotary informed of problems in obtaining the
transcript and acknowledged having received procedural advice from the Prothonotary.

19 Counsel for the Director submitted that special circumstances were not established.
Even though the plaintiff did not then have the transcript of the hearing, he could have
filed an originating motion within the period of 60 days. He could also have sworn and
filed an affidavit in support in which he could have referred to the delay in obtaining the
transcript and otherwise deposed to relevant matters and exhibited such documents as
he wanted to rely on including the certified extracts of the orders made by the
Magistrates’ Court. It is to be noted that the certified extracts in fact exhibited to his
affidavit are dated 9 March 2005 which was, of course, within the 60 day period.

20 Furthermore, even if a delay in the receipt of the transcript to May/June could have
justified the delay in commencing the proceeding, or constituted special circumstances,
the proceeding was not commenced until October.

21 In these circumstances the Director submitted that special circumstances had not
been established, that the time for commencing the proceeding should not be extended,
and that the proceeding should be dismissed.

The Prosecutions Act

22 It is now convenient to refer to relevant provisions of this Act. In Part 2 it is


provided, among other things, that the Director is responsible to the Attorney-General
for the due performance of his or her functions and exercise of his or her powers[2]. The
Director may appear in person or be represented by a legal practitioner in any
proceedings conducted by him[3]. In Part 3 provision is made for the appointment of a
Chief Crown Prosecutor[4] who is responsible to the Director for the due performance of
his or her functions and exercise of his or her powers[5]. Then, the functions and powers
of the Director are set out in Part 4. In Part 5 provision is made for the appointment of
Crown Prosecutors[6]. A Crown Prosecutor is responsible to the Director for the due
exercise of his or her functions[7].

23 Turning more specifically to Part 4, the following provisions are to be noted:

"22. Functions of Director

(1) The functions of the Director are –

(a) ...

(b) if he or she considers it desirable to do so –

(i) ...

(ii) to take over and conduct any proceedings in respect of any summary or
indictable offence, other than proceedings in respect of an indictable offence
that are consequent on a finding of a grand jury under section 354 of the
Crimes Act 1958;".

24 Then there is s 24 to which, the plaintiff submitted, the Director should have had
regard when considering whether or not to prosecute the charges, and s 29 which the
plaintiff submitted the Director should have acted under.

25 Section 24 provides that:

"In the performance of his or her functions the Director must have regard to

(a) considerations of justice and fairness; and

(b) the need to conduct prosecutions in an effective, economic


and efficient manner; and

(c) the need to ensure that the prosecutorial system gives


appropriate consideration to the concerns of the victims of
crime."

26 Finally, s 29(1) provides that:

"The Director may request the Attorney-General to perform certain


functions or exercise certain powers of the Director... if the Director
considers it desirable in the interests of justice that he or she should not
perform those functions or exercise those powers whether because of the
existence or possible existence of a conflict of interest or for any other
reason."
Sub-section (2) provides that if the Attorney-General agrees to such a request he or she
may perform the functions or exercise the powers in question or request the Chief
Crown Prosecutor or a Crown Prosecutor to do so.

27 It is to be noted that Part 3 relating to the Chief Crown Prosecutor includes a


provision similar to s 29(1) under which the Director may, following a report to the
Director by the Chief Crown Prosecutor, request a Crown Prosecutor to perform the
functions or exercise the powers of the Chief Crown Prosecutor in question[8].

Charges Against the Director and Other Persons

28 In addition to bringing charges against Mr Rapke, the plaintiff had also charged the
Director and two other persons with offences. These charges were also before the
Magistrate on 20 January 2005. It seems evident that these other charges were related to
or arose out of the prosecution of the plaintiff. The charges against the Director and the
other persons are not the subject of the present application for judicial review, and are
not in evidence. However, they are part of the context and I mention their disposition as
it appears in the transcript of the proceeding in the Magistrates’ Court.

29 The charges against the Director were struck out as they had not been filed within
the time required by s 30(2)(a) of the Magistrates’ Court Act 1989. In that circumstance
s 30(3) required that "the Court must strike out the charge", which the Magistrate did.
The charges concerning the other two persons were adjourned to allow the Director to
obtain more detailed instructions concerning them.

Disposition of the Charges against Mr Rapke

30 These charges were struck out on the basis referred to earlier. The course of events
before the Magistrate was as follows. On announcing his appearance for the Director,
counsel stated that in relation to Mr Rapke, pursuant to s 22(1)(b)(ii) of the Prosecutions
Act, the Director had considered it appropriate that he take over the conduct of the
matter and had considered the matter and determined that the charges were
misconceived as a matter of law and should not proceed. The Magistrate asked counsel
if he was asking that the charges be struck out and counsel said that was correct. Putting
aside discussion pertaining to the charges against the other persons there was discussion
between the Magistrate and the plaintiff as to the power of the Director and the result. In
the course of the discussion the plaintiff commented that he wondered if there was not a
conflict of interest here meaning, as is apparent, a conflict of interest affecting the
Director in the circumstances. The following discussion then occurred:

Magistrate: I can understand why you might have that view. All I can say is
that this Court must act according to law and the position is clear under the
legislation. The Director can take over the proceedings. The Director has
delegated the proceedings to an appropriate officer who has indicated that
the charges are to be struck out.

Walsh : He can take over proceedings even though he is involved in the


proceedings?

Magistrate: I think if the Director is a party to the proceedings, that is why I


am dealing only with the matter that is relevant to Mr Rapke. We will talk
further in a moment about the matter concerning Mr Coghlan. That is a
different issue and I think we need to keep the matter separate at this stage
and I am only dealing with the matter relating to Mr Rapke, and that is the
matter that Mr Coghlan has taken over, and indicated through his delegate
that the charges are to be struck out.

Walsh : Your Worship, the conflict of interest that I raised is not relevant
in relation to Mr Rapke. Is that how you see it?

Magistrate: Yes, and certainly again I appreciate that you might not have
access to particular resources of the Court, but I could refer you to... [The
Magistrate then referred to the decision of Habersberger J in Stefanovski v
The Magistrates’ Court of Victoria [2004] VSC 313 where the Director had
taken over the conduct of informations under s 22(1)(b)(ii) of the
Prosecutions Act and determined to discontinue them and on their being
struck out the plaintiff who had issued the informations sought judicial
review, which was refused. The Magistrate continued -] In other words, it
was a matter that came before a Magistrate in similar circumstances to
these, and it was indicated that the Court has no alternative but to act to
strike out the charges, so that’s what I intend to do for the reasons I have
given in the matters concerning Mr Rapke. I will come back to the other
matters in a moment, and you can be seated there and I will try to explain to
you in the best way I can, that I am acting in the way that I am, you can
obviously have a look at it further, but as far as the matter of Mr Rapke is
concerned, the charges will be marked struck out.

A little later the plaintiff asked the Magistrate whether the Director had an overriding
power to quash anything that comes before the Court, to which the Magistrate replied:

"What I am saying to you is this. That if in this Court the Director appears
or through a representative appears, and indicates that pursuant to the
exercise of power under section 22(1)(b)(ii) that the Director has taken over
the conduct of the proceedings, then the Court must accept that decision and
then act according to the decision given by the prosecuting authority."

Submissions on judicial review

31 The submissions of the plaintiff and counsel for the Director before me were short
and succinct. In now referring to the submissions of the plaintiff I have regard also to
his statements and contentions in the originating motion and the affidavit in support.

32 The plaintiff’s submission directed itself to the "decision making process" of the
Director, not merely the decision itself to take over the charges and not proceed with
them. There were "unique, special and exceptional circumstances that should override
the decision" and disallow the Director "from having any ability or any authority to
commandeer and immediately close down a matter the likes of that before the court".
This was because in acting as he did the Director was affected by a conflict of interest.
The conflict arose from the fact that he, the Director, was also charged with offences,
that he acted out of a desire to protect a Crown Prosecutor and out of a desire to close
down the cases against them. It was said that "acting in a judicial capacity he made a
biased decision that completely disregarded his unconscionable position of conflict and
self-interest".
33 The plaintiff submitted that in these circumstances of conflict, and having regard to
the considerations stated in s 24, the Director should have exercised his power under s
29(1) and requested the Attorney-General to perform his functions and exercise his
powers in relation to considering whether to take over the charges and proceed with
them. Alternatively, he could, and should, have treated these decisions as a "special
decision" within the meaning of s 3 and convened a Director’s Committee to consider
the decision pursuant to s 23. The consequence of not acting in this way was that in
effect the Director sat in judgment upon himself. This, the plaintiff submitted, involved
a departure from the principle that no person should be a judge in his own cause. There
was thus a denial of natural justice.

34 The plaintiff submitted further that the Magistrate erred when he allowed the
Director to hold jurisdiction in the knowledge of the exceptional circumstances. This
constituted "jurisdictional error". While the Magistrate had jurisdiction "to issue the end
order" all he did was follow the instruction of the Director who took "all authority away
from" the Magistrate. The Director came into court "as the person holding jurisdiction".
The Magistrate had power to stop an abuse of the processes of the court but "did not
judge the argument but instead followed the instruction of" the Director.

35 Hence, jurisdictional error was to be found in "the exceptional and self-serving


circumstances involved", that is of bias and conflict of interest, and in the Magistrate
subverting his discretion to the dictate of the Director. The plaintiff further submitted
that the decision of the Magistrate was obtained by fraud. It was even said (in the
affidavit) that the Director had fraudulently conspired with a fellow accused to obtain a
material advantage by unfair means and to defeat justice by placing a biased and self-
serving interpretation on the Prosecutions Act.

36 Having read and reread the originating motion and affidavit in support, and heard the
plaintiff’s oral submissions, the above is, I consider, a fair and reasonable summary of
his contentions. If I have not mentioned some point or other it is not because I have
overlooked it but have perforce had to distil the essence of the matter from all of the
materials.

37 I turn then to the submissions of counsel for the Director. It was submitted first that,
insofar as the proceeding sought judicial review of the Director’s exercise of his powers
pursuant to s 22, his decision was not amenable to judicial review. As to this, counsel
referred to Maxwell v The Queen[9] and Williams v DPP[10].

38 In the second place, insofar as the proceeding sought judicial review of the decision
of the Magistrate on 20 January 2005, there should be no review of that decision. There
was no jurisdictional error, no non-jurisdictional error on the face of the record, no
breach of the rules of procedural fairness or fraud. As to the relevant principles of law
concerning judicial review in the nature of certiorari, counsel referred to the well known
passages in Craig v The State of South Australia[11].

39 Finally, judicial review should be refused as a matter of discretion as the proceeding


was a collateral attack upon the plaintiff’s conviction.

Decision

40 The first issue for determination is whether special circumstances exist which
warrant an extension of the time in which to have commenced the proceeding.
41 I considered the meaning of the phrase "special circumstances" in Mann v Medical
Practitioners Board of Victoria[12]. It is not necessary to repeat that discussion in this
case. It is sufficient to say that what is "special" is that which is not general in character.

42 In my view the plaintiff has not established the existence of special circumstances. In
the first place, an originating motion could have been filed within the period of 60 days.
The fact that the transcript was not available within that time was not a sufficient reason
to not commence the proceeding within that time. The transcript could have been
exhibited to a further affidavit when it became available. There is really no satisfactory
explanation for the failure to commence the proceeding within time.

43 Even if, however, it were to be considered that special circumstances existed as to


not commencing the proceeding within time, due to the absence of the transcript and the
other circumstances mentioned by the plaintiff which he contends affected his ability to
prepare the paperwork in time, it is necessary to consider the subsequent delays. In that
respect there is the delay up to the May/June period when the transcript was received
and, following that, the delay up to the commencement of the proceeding in October.
The delay from 21 March to receipt of the transcript is in the area of two months or so.
The delay from receipt of the transcript to commencement of the proceeding is even
longer, being in the order of four months or so. The total delay from the expiration of
the 60 days is in the order of five months.

44 Nevertheless there should also be considered the relative justice or injustice and
prejudice to the parties if time is not extended. The injustice or prejudice to the plaintiff
if time is not extended would be the loss of the ability to have judicial review of the
Magistrate’s decision and, if that review be successful, a remitter of the charges for
hearing in the Magistrates’ Court. The injustice or prejudice to the Director if time is
extended is the loss of the benefit of the expiration of time, namely the preclusion of the
plaintiff from commencing the proceeding for judicial review, and exposure to the risk
of an adverse conclusion in the proceeding and a remitter for a hearing of the charges in
the Magistrates’ Court.

45 However on analysis the above prejudice to the plaintiff is without substance. That is
for this reason. Even if the plaintiff was to be successful in this proceeding and the
matter was remitted to the Magistrates’ Court for determination in accordance with law,
the same result of the charges being struck out must occur again unless the Director
changed his mind and determined to prosecute the charges. The likelihood of that
happening would seem self-evidently to be so slight as to be put to one side. That being
the case, the remitter would be pointless. The likelihood is also that the Attorney-
General would be of the same view if the Director referred the matter under s 29.
Regarding the matter overall, the consequence is that the Director would have lost the
benefit of the expiration of time and in consequence been put to further expense and
bother on a matter that had no substance.

46 I would also be prepared to consider as a relevant factor whether the plaintiff has an
arguable case, without deciding whether that is a factor properly to be taken into
account. I considered whether that was a factor that may be taken into account in my
judgment in Mann v Medical Practitioners Board of Victoria[13]. I should say, however,
that in my view the plaintiff does not have an arguable case.

47 In my view none of the matters advanced by the plaintiff or to which I have referred,
whether considered separately or together and in the context of all of the relevant
circumstances, constitute special circumstances that would warrant time being extended
to the date upon which the proceeding was commenced. What has happened is that a
very long delay has occurred without evidence of factors that operated to impede the
plaintiff in commencing the proceeding in time and to produce the subsequent delay and
which might, regarded overall, be regarded as special circumstances. Furthermore, even
if time were to be extended and the plaintiff was to succeed on the review, the remitter
of the matter to the Magistrates’ Court would be pointless as the charges would again be
struck out.

48 For these reasons the application for an extension of time within which to commence
the proceeding must be refused.

49 Strictly speaking, this conclusion makes it unnecessary to deal with the aspect of
judicial review. However lest I be wrong in that conclusion, and in view of the
argument, I will express my views upon the issue.

50 As stated in Craig[14] certiorari will lie for judicial error, failure to observe a
requirement of procedural fairness, fraud and error of law on the face of the record. The
ground of error of law on the face of the record was not suggested by the plaintiff,
correctly in my view, and can immediately be put aside as a relevant ground. In his
submissions the plaintiff is seen to have relied on the other three grounds upon which
certiorari may lie.

51 Jurisdictional error was explained in Craig[15] as follows:

"An inferior court falls into jurisdictional error if it mistakenly asserts or


denies the existence of jurisdiction or if it misapprehends or disregards the
nature or limits of its functions or powers in a case where it correctly
recognises that jurisdiction does exist. Such jurisdictional error can infect
either a positive act or a refusal or failure to act. Since certiorari goes only
to quash a decision or order, an inferior court will fall into jurisdictional
error for the purposes of the writ where it makes an order or decision
(including an order or decision to the effect that it lacks, or refuses to
exercise, jurisdiction) which is based upon a mistaken assumption or denial
of jurisdiction or a misconception or disregard of the nature or limits of
jurisdiction."

52 In light of those principles it is important to identify the separate roles and powers of
the Director and the Magistrate and to consider that which the Magistrate did. Merely
regarding s 22(1)(b)(ii) of the Prosecutions Act, a function of the Director was, if he
considered it desirable to do so, to take over and conduct any proceedings in respect of
any summary or indictable offence. If he determined to take over a proceeding he could
appear personally or be represented by counsel. The function of the Magistrate as the
presiding judicial officer at the hearing of the proceeding being conducted by the
Director was to see that the proceedings were heard and determined in accordance with
the law.

53 In the present case, when the proceedings came on for hearing counsel informed the
Magistrate that the Director had taken over their conduct and determined that the
charges were misconceived and should not proceed. Counsel confirmed that he
requested that the charges be struck out. The Magistrate did order that the charges be
struck out but not before some discussion of the legal position including the Director’s
power. It was in the course of that discussion that the Magistrate referred to the decision
of Habersberger J in Stefanovski[16]. In view of the plaintiff’s submission that
Stefanovski was not analogous, I should make some reference to it.

54 Stefanovski was an application for judicial review which Habersberger J heard in the
Practice Court. The case concerned two private informations which Mr Stefanovski
issued against two police officers and which the Director took over the conduct of
pursuant to s 22(1)(b)(ii) of the Prosecutions Act. When the matter came to court
counsel for the Director advised the Magistrate that the Director had decided to
discontinue the proceedings as having no merit, and the Magistrate struck out the
informations with costs. Mr Stefanovski sought judicial review of the orders on bases
including a denial of natural justice and that the Magistrate did not consider and accept
any facts or evidence by Mr Stefanovski. He also sought judicial review of the
intervention of the Director and the discontinuance which denied him the right to
prosecute. The matter came to the Practice Court on a reference from the Master who
had dismissed the claim for review of the Director’s decision and the Magistrate’s
decision and orders on the basis the claims were hopeless, but who had ruled that a
claim to review the costs order was not hopeless. Habersberger J heard the reference as
an appeal from the decisions of the Master and, after dealing with the costs aspect,
considered the claim dismissed by the Master. Briefly stated, Mr Stefanovski argued
that s 22(1)(b)(ii) was void for a variety of reasons including that the Director’s decision
can not be challenged, that it provided for arbitrary dismissal without due process, and
that the Director acted as a judicial authority. In these circumstances the section
contravened s 51(XXIV) of the Commonwealth Constitution. In rejecting the argument
Habersberger J concluded that nothing put or any argument he could think of:

"... would indicate to me that there is any ground for saying that s.22(1)(b)
(ii) of the Public Prosecutions Act 1994 infringes any section of the
Constitution. Moreover, in my opinion, it is not open to the plaintiff to seek
judicial review of the decision by the Director to take over the conduct of
the two informations or of the decision by the Director to discontinue those
proceedings. On that basis, it seems to me that the plaintiff's claim that this
part of the Magistrate's decision should be quashed is hopeless. The
Magistrate was clearly correct in making an order striking out both
informations.[17]

55 It is true that, as the plaintiff said, Stefanovski concerned informations against two
police officers as distinct from the present proceeding against the Director, the
prosecutor and others and involving allegations of the nature and gravity as those made
by the plaintiff in this case. I take that into account in considering the observations of
Habersberger J.

56 As I have said, the Magistrate referred to the decision in Stefanovski and to the
conclusion that the Magistrate had been correct in striking out the information. He
added that the case had come before that Magistrate in similar circumstances to the
present and that it was indicated (by Habersberger J) that the Court had no alternative
but to strike out the charges. The Magistrate concluded that for the reasons he had given
he intended to strike out the matters concerning Mr Rapke, which he then did.

57 In my view the Magistrate did not fall into jurisdictional error or, indeed, any error at
all. The charges were properly before the Magistrate and it was within his power to
order that they be struck out. It was, in fact, entirely appropriate that the charges be
struck out in view of the fact that the Director had determined not to proceed with them
and asked that they be struck out.

58 Further, the hearing was conducted by the Magistrate in an entirely fair and open
manner. The plaintiff had previously been advised of the Director’s decision by the
letter dated 10 January 2005. Then, during the hearing the Director’s position was
clearly stated and the plaintiff was afforded every opportunity to say what he wished to
say, and the Magistrate explained the legal position and why the charges would be
struck out. There was no want of procedural fairness or fraud in the hearing and
determination of the proceedings before the Magistrate.

59 The plaintiff sought to overcome the difficulty in attacking the Magistrate’s decision
by his attack on the conduct of the Director which he sought to link to the Magistrate’s
decision and orders. The jurisdictional error was to be established by founding it upon
the conduct of the Director, motivated as I referred earlier in summarising the plaintiff’s
submissions and carried out in circumstances of conflict of interest, and tying the
Magistrate’s decision and orders to it in the sense that the Magistrate in effect permitted
it to override his jurisdiction and power. It was as a part of that contention that the
plaintiff made the submissions as to conflict of interest and other criticisms of the
Director including fraud.

60 The difficulty with all this is that in determining whether to take over and conduct a
proceeding the Director exercised an independent statutory discretion of an
administrative nature. Contrary to the submission of the plaintiff, the Director did not
act in a judicial capacity or as a judicial authority in making his determinations under s
22.

61 It is true that in circumstances of conflict of interest the Director may request the
Attorney-General to perform the functions under s 22(1)(b)(ii) or treat the matter as a
special decision. And, in this case, he might well have chosen to do so although that is
not to say that he was in a situation of conflict. The Magistrate was bound to strike out
the proceedings against the Director in accordance with the Magistrates’ Court Act, and
he duly did. Quite simply, there was no valid proceeding against the Director. If there
was a conflict of interest it must therefore be found in the wider circumstances of the
authority of the Director in the prosecutorial system and his relationship with the Crown
Prosecutor in this case. To this must be added the Director’s assumed desire to protect
Mr Rapke. From these foundations spring the allegations of bias, self-serving conduct
and fraud. These allegations or rather assertions are not established by evidence.

62 Putting those allegations or assertions to one side, in a general sense the submission
of a conflict of interest may be understood in terms of the relationship between the
Director and the Crown Prosecutor and, doubtless, the Director might have acted under
s 29(1). To say these things however is not to make any particular finding as to the
existence of a conflict of interest or to reflect on the manner in which the Director acted
in this matter. I had no evidence as to that beyond the letter advising the Director’s
decision dated 10 January 2005 and what was said at the hearing before the Magistrate.

63 Counsel for the Director submitted not merely that there was no conflict of interest
but, assuming that there was, the decisions of the Director were not justiciable. I should
say that while it is obviously desirable, not only having regard to the provisions of the
Act but also as a matter of common sense, that if there reasonably be considered to be a
conflict of interest it is desirable that the Director proceed pursuant to s 29(1) or perhaps
by treating the matter as a special decision, yet in the absence of facts I am not satisfied
that there was such a combination of circumstances that the Director should have thus
proceeded in this case.

64 In my view the submission of counsel for the Director is correct. I agree with the
observation of Habersberger J in Stefanovski that a decision of the Director to take over
the conduct of proceedings and a decision to discontinue the proceedings is not open to
judicial review. The reason is that such decisions as the Director made here, to take over
and conduct a proceeding and not to proceed with it – are decisions made in the
prosecutorial process and are not susceptible of judicial review. The reason for this was
more fully stated by Gaudron and Gummow JJ in their joint judgment in Maxwell v The
Queen[18] as follows:

"It ought now be accepted, in our view, that certain decisions involved in the
prosecution process are, of their nature, insusceptible of judicial review.
They include decisions whether or not to prosecute (See Connelly v
Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys
[1997] UKHL 17; [1977] AC 1 at 46; Barton v The Queen [1980] HCA 48;
(1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (See R v Allen
(1862) 1 B & S 850 [121 ER 929]; Barton v The Queen [1980] HCA 48;
(1980) 147 CLR 75 at 90-91), to proceed ex officio (See Barton v The
Queen [1980] HCA 48; (1980) 147 CLR 75 at 92-93, 104, 107, 109),
whether or not to present evidence (See, eg, R v Apostilides [1984] HCA
38; (1984) 154 CLR 563 at 575) and, which is usually an aspect of one or
other of those decisions, decisions as to the particular charge to be laid or
prosecuted (See R v McCready (1985) 20 A Crim R 32 at 39; Chow v
Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605). The
integrity of the judicial process – particularly, its independence and
impartiality and the public perception thereof – would be compromised if
the courts were to decide or were to be in any way concerned with decisions
as to who is to be prosecuted and for what (Barton v The Queen [1980]
HCA 48; (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) [1989]
HCA 46; (1989) 168 CLR 23 at 38-39, 54 per Brennan J; at 77-78 per
Gaudron J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 548
per Deane J; Ridgeway v The Queen [1994] HCA 33; (1995) 184 CLR 19 at
74-75 per Gaudron J).

See too Williams v DPP[19].

65 The plaintiff’s submission that the Director and his decisions in effect usurped the
jurisdiction of the Magistrates’ Court must be rejected. No such thing occurred. The
Magistrate dealt with the case in an appropriate manner and made orders that were
appropriate to be made. There was no relevant error in the hearing and determination of
the matter by the Magistrate. In effect the plaintiff is seeking judicial review of the
exercise by the Director of his powers under s 22(1)(b)(ii). As the decisions of the
Director made in the exercise of those powers are not amenable to judicial review, and
are in any event distinct from the decision and orders of the Magistrate, the application
for judicial review must in any event have failed.

Order

66 The proceeding will be dismissed.


---
[1] Walsh [2002] VSCA 98; [2002] 131 A Crim R 299.

[2] Section 10(1).

[3] Section 11.

[4] Section 13.

[5] Section 20(1).

[6] Section 31.

[7] Section 36(4).

[8] Section 21.

[9] (1995-1996) 184 CLR 510 at 534 per Gaudron and Gummow JJ.

[10] [2004] VSC 516; (2004) 151 A Crim R 42 at 47 per Gillard J.

[11] [1995] HCA 58; (1994-1995) 184 CLR 163 at 175-183.

[12] [2004] VSCA 148 at [68]- [71].

[13][2004] VSCA 148 at [71]. See also the cases collected at Civil Procedure –
Victoria, Williams vol 1, para I 56.01.40.

[14] (1994-1995) 104 CLR 163 at 175-176.

[15] At 177.

[16] [2004] VSC 313.

[17] At [13].

[18] [1995] HCA 62; (1995-1996) 184 CLR 501 at 534.

[19] [2004] VSC 516; (2004) 151 A Crim R 42 at 47 [23]- [24].

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