Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 368

Supreme Court New South Wales

Medium Neutral Citation: Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 368 Hearing dates: 11 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Common Law Before: Hamill J Decision: (1) Grant leave to appeal under s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW). (2) Allow the appeal. (3) Pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) set aside the order made by Magistrate Swain on 28 February 2023. (4) In lieu thereof, make an order under 67(3) of the Criminal Procedure Act 1986 (NSW) extending the time for the filing and service of a charge certificate until 8 May 2023. (5) The matter is listed before the Burwood Local Court on 8 May 2023. (6) The parties should strive to reach agreement as to the appropriate order for costs (if any) and, if agreement is not reached, submissions of no more than 5 pages on the question of costs are to be filed with my Associate on or before 4:00pm on 28 April 2023. (7) The parties have liberty to contact my Associate to set a timetable relating to the issue of costs. Catchwords: CRIMINAL PROCEDURE – committal proceedings – extension of time to file charge certificate – beyond six month statutory time limit – application not to be taken lightly – relevant considerations – charge of murder – accused in custody – where Crime Commission in possession of relevant material – procedure to obtain – where no other evidence – whether Director of Public Prosecutions has power to request information – "request power" – whether Magistrate erred in deciding no power – reconciling provisions of two statutes – where Magistrate makes order extending time – where error established – discretion re-exercised on appeal CRIMINAL PROCEDURE – "community expectations" – phrase without meaningful content – who is the community? – where decision delivered late in the day and ex tempore – use of phrase unfortunate – no legal error Legislation Cited: Crime Commission Act 2012 (NSW), ss 45(1), 45(3), 45(4)-(5), 45A Crimes (Appeal and Review) Act 2001 (NSW), ss 53(3), 53(3)(a), 55(3), 55(3)(a) Crimes Act 1900 (NSW), ss 18, 86(3) Criminal Procedure Act 1986 (NSW), ss 66(2)(a), 67(2)(b), 67(3), Ch 3, Div 1-6, 8 Director of Public Prosecutions Act 1986 (NSW), ss 3, 15A, 33 Cases Cited: Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182 Director of Public Prosecutions v Sadler [2013] NSWSC 718 Director of Public Transport v XFJ [2010] VSC 319 Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Landrey v Director of Public Prosecutions (NSW) (2022) 406 ALR 613; [2022] NSWCA 211 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 R v Labaye [2005] 3 SCR 728 R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 Saffron and Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Category: Principal judgment Parties: Tarek Zahed (Plaintiff) Director of Public Prosecutions (NSW) (Defendant) NSW Crime Commission (Interested Party) Representation: Counsel: G James KC and P Lange (Plaintiff) L Livingston SC and W Liu (Defendant) R Lee (NSW Crime Commission)