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) Solicitors: One Group Legal Director of Public Prosecutions (NSW) Crown Solicitors Office File Number(s): 2023/77378 Publication restriction: There is a non-publication order over any information that identifies the names of the deceased's wife, "known person" or the person attributed to an unsigned statement in the Police Facts Sheet and Brief of Evidence. The redactions to the judgment have been on the request of the Crime Commission. Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 February 2023 Before: Swain LCM File Number(s): 2023/77378 JUDGMENT 1. Tarek Zahed (the plaintiff) seeks leave to appeal against an order made by Ms Swain LCM on 28 February 2023 extending the time for the filing of a charge certificate. The order was made pursuant to s 67(3)(b) of the Criminal Procedure Act 1986 (NSW) ("CP Act"). The application for leave is brought under s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA Act"). 2. If leave is granted, the plaintiff's proposed grounds of appeal are: 1. In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in concluding that the Director of Public Prosecutions did not have the power to require the production of documents which are the subject of a statutory publication restriction. 2. In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in taking into account "community expectations". 1. The first ground of appeal raises a question concerning the interpretation of s 15A(7) of the Director of Public Prosecutions Act 1986 (NSW) ("DPP Act"). It also requires consideration of the ways that the provision interacts with, and can be read in conformity with, s 45 of the Crime Commission Act 2012 (NSW) ("CC Act"). 2. The plaintiff's case also requires consideration of the current procedure by which an accused person might be committed for trial: CP Act, Ch 3, Div 1-6, 8. Those provisions, which introduced significant changes in the law relating to committals, were considered by Basten JA in Landrey v Director of Public Prosecutions (NSW) (2022) 406 ALR 613; [2022] NSWCA 211 at [17]-[31]. The current procedures place enormous responsibility on the Director of Public Prosecutions ("DPP" or "the Director") and their lawyers and place a heavy burden on prosecutors to determine whether an accused person should be committed to stand trial. The process of charge certification is a critical part of that process. For better or worse, the previous system under which a magistrate had jurisdiction to determine whether the evidence was sufficient to justify committing an accused person to stand trial has been cast aside: see for example, and for historical purposes only, Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182 at 197-201, Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 at 5-6 (Deane J), Saffron and Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 at 403-404 and the observations of Simpson AJA in Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [7]-[8]. 3. The factual circumstances of the present case bring into sharp focus the substantial obligation on the Director to act promptly in committal proceedings and to comply with the time limits prescribed by the CP Act. In particular, the case demonstrates that the requirement for the Director to file a charge certificate within six months of the first return date (s 67(2)(b)) (or such earlier date as the Local Court orders) is critical for the expeditious and efficient progress of criminal cases through the Local Court. In the present case, the plaintiff, who is presumed by law to be innocent, has been in custody, with bail refused, for a period exceeding seven months. It is hardly surprising that, when the Director sought to extend the date for the filing of the charge certificate, those representing Mr Zahed opposed the application. 4. In the present case, the "secret" nature of investigations and hearings conducted by the New South Wales Crime Commission ("Crime Commission"), and the associated restrictions on the release of information, has done some violence to the expeditious progress of this matter. Leave to appeal 1. Section 53(3)(a) of the CARA Act allows an appeal to this Court against "an order … made by a Magistrate in relation to [a person] in any committal proceedings", but "only on a ground that involves a question of law alone, and only by leave". 2. The Director conceded that each of the grounds of appeal have been formulated in such a way that they involve questions of law alone. 3. I am satisfied that leave to appeal should be granted given the following matters: 1. The case involves an important question of statutory interpretation and the inter-relationship between two statutes. 2. The plaintiff has been in custody for over seven months. 3. As will be seen, lawyers representing the Director have conceded in bail hearings, that on the voluminous brief of evidence that has been served to this point, they cannot certify the offences with which the plaintiff was charged on 28 August 2022 (more than seven months ago). 4. If the appeal is upheld, one possible outcome is that the plaintiff would be discharged. Procedural history 1. I will first set out a chronology of the litigation, insofar as it is currently known to the Court: * 28 August 2022 – the plaintiff was arrested and charged with offences of murder, contrary to s 18 of the Crimes Act 1900 (NSW) ("Crimes Act"), and taking and detaining while in company, with intent to commit to a serious indictable offence ("aggravated kidnapping"), contrary to s 86(3) Crimes Act. The plaintiff has been in custody since that date. * 29 August 2022 – the case had its "first return date" in the Local Court. This meant that, by s 67(2)(b) of the CP Act, the latest date that the charge certificate was to be filed and served by the Director was 28 February 2023 (or 1 March 2023), subject to an order of the kind currently under appeal. * 11 October 2022 – a brief of evidence was served by New South Wales Police on the Director. * 21 October 2022 – the Director was provided with xxxxxx "specifications", pursuant to s 45(1) of the CC Act, relating to hearings conducted before the Crime Commission xxxxx. * 7 November 2022 – the Director became aware, through the service of a Disclosure Certificate, that the Crime Commission may be in possession of material subject to statutory prohibition restriction under s 45(1) of the CC Act that could be relevant to the prosecution of the plaintiff but formed no part of the brief of evidence served on 11 October 2022. * 17 November 2022 – the Director wrote to the Crime Commission requesting a variation to the direction made under s 45(1) of the CC Act, to allow for "the transcript of evidence given before the Commission to be disclosed to the [Director] and the plaintiff". The Director also notified the Crime Commission that she intended to pursue an application for disclosure of material pursuant to ss 45(4)-(5) of the CC Act. * 18 November 2022 – the Crime Commission advised the DPP that it would not be making the variation under s 45(1) that had been sought by the Director. The Director then notified the legal representatives of the plaintiff that she intended to make an application pursuant to s 45(4)-(5) for the disclosure of the evidence. * 30 November 2022 – the Director's application under s 45(4), was heard at the Burwood Local Court by Magistrate Truscott. * 5 and 12 December 2022 – Magistrate Truscott gave a direction (or directions) pursuant to s 45(4) of the CC Act, for the material xxxxx, to be made available to the Court. * 25 January 2023 – the matter was listed in the Local Court for charge certification. An adjournment until 28 February 2023 was granted and the date for charge certification was extended. * 2 February 2023 – the plaintiff made a release application under the Bail Act 2013 (NSW) before Wilson J in this Court. * 10 February 2023 – Wilson J refused bail. * 28 February 2023 – the Director made an application before Magistrate Swain, seeking to extend the date for the filing of the charge certificate, pursuant to s 67(3) CP Act. Over objection the Magistrate made the order currently under review by which the time for filing the charge certificate was extended until 26 April 2023. * 28 February 2023 – The Director also made an application under s 45(5) CC Act before Magistrate Miller. Submissions were made on behalf of the plaintiff and the Director, urging that disclosure should be made to the parties to the criminal proceedings. * 8 March 2023 – The plaintiff filed the summons commencing the present proceedings. * 14 March 2023 – N Adams J, sitting as duty judge, made an order for an expedited hearing of the summons. * 20 March 2023 – the plaintiff made a release application to the Court of Criminal Appeal (Price, N Adams and Yehia JJ). The application was refused with reasons to follow. At the time of writing, no reasons have been published. 1. During the hearing, I became aware of further dates and information relevant to the chronology and progress of the case. 2. After Magistrate Miller heard submissions from the plaintiff and the Director on 28 February 2023, his Honour adjourned the proceedings to a date (apparently not known by the parties), to allow other people interested in the outcome of the s 45(5) application to make submissions in the absence of the parties. This procedure provides procedural fairness to parties not involved in the criminal proceedings but who may be affected by the disclosure of information hitherto protected by non-publication orders under the CC Act. 3. Magistrate Miller is yet to make a decision, but, as I understand it, the s 45(5) application is listed on 24 April 2023. It is anticipated that final submissions from the Director and the plaintiff will be made on that date, and it is expected that a decision under s 45(5) will be made that day or soon thereafter. The Director indicated that if the s 45(5) application succeeds the prosecution will need about 3 weeks to decide which, if any, charges can be certified. Some observations concerning the facts and circumstances of the decision made in the Court below 1. There are a few things that should be noted before embarking on a consideration of the hearing before Magistrate Swain and the plaintiff's grounds of appeal. 2. The first is that during the hearing of the plaintiff's bail application on 2 February 2023, the Prosecutor made a concession in the following terms: "[So] far as we can tell, based on the facts sheet, this evidence is of central importance and, in fact, without this evidence, as I frankly accepted in the submissions, we have no case." 1. The implication was that, in the absence of the material expected to be released by the Crime Commission, the Director could not certify the charges. 2. Secondly, when the matter was before Magistrate Swain on 28 February 2023, the plaintiff referred to the concession made on the bail application by referring to the "acknowledgment by the Director by the charge certifier that the Crown does not have a viable case at present in the absence of this 45 material". Pressed on that issue, the solicitor then appearing for the Director said: "Yes your Honour and it relates to the fact that we've said in paragraph 15 of my affidavit that we're not able to certify the charges without the evidence of the witnesses." 1. The reference to "the evidence of the witnesses" concerned the material sought to be obtained from the Crime Commission pursuant to the orders under s 45(5). The reference to "my affidavit" is to the following parts of the solicitor's affidavit dated 23 February 2023: "13. The brief of evidence for this matter is contained in 17 large lever-arch folders in addition to electronic material. 14. The [Director] is seeking an adjournment for certifying the matter for a time after the s 45(5) application is finalised is because it requires access to the evidence xxxx, the subject of the NSWCC specification. The [Director] is not able to certify the charges without the evidence xxxx." 1. I make those observations merely to indicate that the matter is unusual. The police who arrested and charged the plaintiff presumably did so in the belief that there was evidence capable of establishing the crimes of murder and aggravated kidnapping. However, despite the service of some 17 volumes of evidence, those representing the Director were unable to certify the charges by reference to that very large body of material. 2. One further observation, before embarking on an analysis of the Magistrate's reasons and the grounds of appeal impugning those reasons, is that the matter did not come before her Honour until around 3:15pm on 28 February 2023. The judgment under appeal was delivered after 4.30pm and the reasons were given ex tempore. 3. It is well established that where a judgment is delivered extemporaneously, and in such pressing circumstances, a court reviewing the decision should not approach the appeal in an unduly critical and technical way: see, for example, Director of Public Prosecutions v Sadler [2013] NSWSC 718 at [78] and the cases cited therein. There are many cases to similar effect. Having said that, the ex tempore reasons of a Magistrate or other judicial officer are not immune from criticism and remain amendable to scrutiny and successful appellate review. 4. I propose to deal first with ground 2, largely because the matters I mentioned in the last two paragraphs have resonance in dealing with the submissions made under that ground. Ground 2: In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in taking into account "community expectations". 1. The second ground of appeal contends that the learned Magistrate erred by taking into account "community expectations" in relation to the prosecution of serious matters. The submission is, in essence, that the concept of community expectations in the present context was devoid of any meaningful content. 2. The passage subject to criticism was as follows, with the impugned portioned italicised: "I've taken into account that in granting the application there is a further delay in this proceeding. [The accused is in custody], bail refused, and [his] life will be on hold until a determination is made. That the extension will just extend the delay. I've taken into account the effect on a person who is bail refused and the fact that they are away from their family and the usual ongoings of life … whilst they are bail refused. I've also taken into account community expectations in relation to the Prosecution of serious matters, in this case murder and accessory after the fact of murder. The Crown as I can see have acted promptly when it came to their notice that there was material from the Crime Commission that may have a bearing on the prosecution of the … accused." (Emphasis added). 1. The plaintiff submits correctly that the expression "community expectations" has been criticised for its lack of precision. It has been described as "inherently vague and subjective": Director of Public Transport v XFJ [2010] VSC 319 at [106]. In the Supreme Court of Canada, McLachlin CJ said in R v Labaye [2005] 3 SCR 728 at [18]: "In a diverse, pluralistic society whose members hold divergent views, who is the 'community'? And how can one objectively determine what the community, if one could define it, would tolerate, in the absence of evidence that community knew of and considered the conduct at issue. In practice, once again, the test tended to function as a proxy for the personal views of expert witnesses, judges and jurors." 1. Placing those general observations into the context of the present case, it may be that some members of the community would have expectations that a prosecutor should be given some leeway in gathering evidence in a case involving an allegation of murder, while other members of the same community might hold a prosecutor to strict account when the legislation places a six-month time limit on the certification of the charge and the accused languishes in custody. In written submissions, the plaintiff contrasted the observations of the High Court in two unrelated decisions. In Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 396, Mason CJ, Deane and Dawson JJ referred to the "legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime", whereas in Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 33, Mason CJ said "it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged". 2. The use of the expression "community expectations", and the apparent resort to reliance on what the public might expect, was unfortunate. However, the learned Magistrate did not fall into legal error in employing the phrase. In reaching that conclusion, I have read Magistrate Swain's reasons fairly and as a whole, taking into account other things her Honour said, the context in which the phrase was employed, the repetition of several factors that were taken into account and the structure of the judgment given the urgency in which it was delivered. 3. Reading the judgment in that way, I conclude that the reference to "community expectations" was no more than a further enunciation of the seriousness of the plaintiff's charges and the relevance of the public interest in the prosecution of serious offences. I do not accept the plaintiff's reliance on the use of the word "also" (italicised and emboldened in the passage set out at [24]), as indicating that her Honour was giving separate consideration to community expectations and that this was divorced from, or different to, the relevance of the seriousness of the charges to the ultimate question of what was in the "interests of justice". This close textual parsing of the judgment is contrary to the proper approach of reading the reasons fairly as a whole and allowing for the urgency with which the decision was made. 4. I would reject ground 2. Ground 1: In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in concluding that the Director of Public Prosecutions did not have the power to require the production of documents which are the subject of a statutory publication restriction. 1. As I said at the outset, this ground involves consideration of the interaction between s 15A of the DPP Act and of s 45 the CC Act. In the hearing below, counsel for the plaintiff submitted that it was open to the Director to make a request to the Crime Commission for disclosure of information that is currently (and was at the time of the hearing before Magistrate Swain), the subject of the s 45(5) application before Magistrate Miller. The plaintiff argued that the source of the power to obtain that information was derived from s 15A of the DPP Act. 2. Section s 15A provides for disclosure by law enforcement and investigating officers of "all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person". It applies to officers of the Crime Commission: DPP Act, s 3. For present purposes, the critical sub-sections are (6) and (7): (6) The duty imposed by this section does not require law enforcement or investigating officers to provide to the Director any information, documents or other things— (a) that are the subject of a claim of privilege, public interest immunity or statutory immunity, or (b) that would contravene a statutory publication restriction if so provided. (7) The duty of a law enforcement or investigating officer in such a case is to inform the Director of— (a) the existence of any information, document or other thing of that kind, and (b) the nature of that information, document or other thing and the claim or publication restriction relating to it. However, a law enforcement or investigating officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided. (Emphasis added). 1. The definition of "statutory publication restriction" in subs (9) includes restrictions imposed under ss 45 and 45A of the CC Act. 2. Section 45 of the CC Act provides a regime by which evidence or information that is otherwise subject to a statutory non-publication order can be lifted. The section is in the following terms: Publication or disclosure of evidence (1) The Commission may direct that— (a) any evidence given before it, or (b) the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant, or (c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or (d) the fact that any person has given or may be about to give evidence at a hearing, must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies. (2) The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. (3) A person must not make a publication in contravention of a direction given under this section. : Maximum penalty--100 penalty units or imprisonment for 2 years, or both. (4) If – (a) a person has been charged with an offence before a court of the State, and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor, the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court. (5) If – (a) the Commission makes evidence available to a court in accordance with subsection (4), and (b) the court, after examining the evidence, is satisfied that the interests of justice so require, the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor. (6) This section has effect subject to section 45A. (6A) It is not a contravention of a direction given under this section to publish any evidence, contents of a document or information to a registered medical practitioner or registered psychologist for the purposes of that health practitioner providing medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person who has given or may be about to give evidence at a hearing. (7) In this section— "publish" includes – (a) disclose to a person, and (b) in relation to evidence or a record of evidence--disclose any information directly contained in or implied from that evidence or record, except where the information could be obtained elsewhere. 1. In helpful written submissions, counsel for both parties provided extensive assistance relating to the relevant tenets of statutory interpretation, as well as a thorough history lesson concerning changes to the relevant legislation, including amendments which had been made in response to various court decisions. Two examples are amendments made in the aftermath of the cases of R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20. Counsel for the DPP invited my attention to certain aspects of the second reading speeches whereby the purpose of the amending legislation was explained to the Parliament. 2. While I do not underestimate the utility of the analysis undertaken by the parties, it is unnecessary to repeat it. The final words of s 15A(7) of the DPP Act are quite clear. They provide, by necessary implication, a power in the Director to request that the Crime Commission provides any relevant information. If such a request is made, the Crime Commission is obliged to ("must") provide the information. Nothing in s 45 of the CC Act impacts on the power of the Director to make such a request or on the obligation of the Crime Commission to comply with such a request. The utility of such a request, in the face of s 45 of the CC Act, is another matter. 3. This was the argument made by Mr Lange, appearing for the plaintiff, in the hearing before Magistrate Swain. The argument was not conceded by the Director in the Local Court proceedings. 4. In providing ex-tempore reasons for allowing the Director's application to extend the time for filing the charge certificate, her Honour said: "As I understand it, the power that Mr Lange says that the DPP could exercise has not been subject to any judicial consideration, certainly by a Court higher than this Court. I have listened very carefully to Mr Lange's argument about that and I'm not satisfied that the Crown does in fact have the power to request that material from the Crime Commission. It seems contradictory to the portions of the Crime Commission Act where the Crime Commissioner has determined that that material should not be released other than in the anonymised summary or that it has. Perhaps it's for another Court to determine, but this Court is not satisfied that the Crown has that power based on the submissions made by Mr Lange in these proceedings." (Emphasis added). 1. The plaintiff asserts that this conclusion, as a matter of statutory construction was wrong and constitutes an error of law which vitiated the Magistrate's ruling and means the exercise of the discretion under s 67(3) of the CP Act miscarried. I agree with that submission. Indeed, on the hearing of the present appeal, Senior Counsel appearing for the Director conceded the Director has the power to request material from the Crime Commission. The defendant's written submissions included: "44. Section 15A(7) of the DPP Act confers a discretionary power upon the Director to request any information, document or thing once the Director is made aware of the existence and nature of the material of the 'kind' contemplated under s 15A(6) and the nature of the claim or publication restriction relating to the material. … 56. Magistrate Swain was not satisfied that s 15A(7) did empower the Director to request material from the NSWCC. For the reasons set out above at [43]-[54] above, the [DPP] contends for a different construction." 1. The Director submitted to this Court – but not to the Local Court – that what I will call "the request power" exists but is a discretionary power. The submission continued that it was a reasonable exercise of the Director's discretion not to make the request for disclosure pursuant to s 15A(7), but rather to invoke the specific regime for disclosure provided for in s 45. Cogent submissions were made as to why that was so. Those submissions, as they were put in writing, included four reasons: "49. First, any materials received under a s 15A(7) request would have to be 'quarantined', such that the prosecution team does not have access to the restricted materials. The Parliament expressly adverted to the need for the establishment of information barriers in respect of any restricted materials during the second reading of the Crime Commission Legislation Amendment Bill 2014, as set out at [41] above. Such measures are consistent with the Parliamentary intention and with the fundamental concern of maintaining the accused's right to a fair trial, as set out in X7 and Lee. 50. Secondly, in completing a charge certificate a prosecutor must certify, per s 66(2)(a) of the CPA, that 'the evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person'. Whilst s 62(2) of the CPA allows for the brief of evidence in committal proceedings to be in an inadmissible form, until a determination has been made pursuant to ss 45(4) and (5) of the NSWCC Act, it is unknown whether the evidence will ever be available in an admissible form. 51. Thirdly, even if a charge certificate could be certified in reliance upon restricted materials, such materials could not be disclosed to the accused unless and until a court were to order its disclosure pursuant to ss 45(4) and (5) of the NSWCC Act. Otherwise, the disclosure of materials contrary to a direction made under s 45(1) would constitute an offence contrary to s 45(3). The DPP Act does not confer any power upon the Director to override a direction made by the NSWCC pursuant to s 45(1) of the NSWCC Act. The only mechanism for such materials to be disclosed to the accused is to seek a court order pursuant to s 45(4) and (5) of the NSWCC Act. 52. Unfairness to the accused may arise in respect of any exculpatory evidence that may form part of the restricted materials which would remain undisclosable to the accused until a court ordered its disclosure pursuant to s 45(5) of the NSWCC Act. In such circumstances, the case conference mechanism and the witness examination mechanism contained within Pt 2, Ch 3 of the CPA would become inoperable. Charge negotiations, the narrowing of issues, and the examination of witnesses cannot occur without the accused having knowledge of the evidence and the identities of witnesses on which the prosecution relies to establish the charges, or access to any exculpatory material. While a charge certificate might be filed, the committal procedure otherwise must come to a halt. The likely outcome would be that a stay on proceedings would be granted, so as to allow for an application under s 45(4) and (5) of the NSWCC Act to be heard and determined. 53. Fourthly, the restricted materials would not be admissible as evidence unless and until a court were to order its disclosure pursuant to s 45(4) and (5) of the NSWCC Act. Otherwise, for the same reasons as set out immediately above, disclosure of such materials would contravene s 45(3) of the NSWCC Act. 54. In summary, s 15A(7) of the DPP Act confers a discretionary power on the Director to request any information, document or other thing from the NSWCC including materials that are subject to statutory publication restriction. In deciding whether to exercise the discretionary power under s 15A(7) of the DPP Act, the Director may have regard to s 45 of the NSWCC Act and the mechanisms available under that provision for the disclosure of restricted materials. At all relevant times, it is open to the Director to choose not to exercise the discretionary power under s 15A(7) of the DPP Act. For the reasons summarised at [49] to [53] above, practical considerations may make it imprudent for the Director to exercise the power of request under s 15A(7) of the DPP Act." 1. The argument continued that ground 1 should be rejected because the Magistrate "did not err in finding that the Director had followed the proper process by [making] an application pursuant to s 45(4)". 2. I am unable to accept this submission. Nothing in the Magistrate's judgment supports a conclusion that her Honour determined the matter on the basis that the Director possessed the power to request the material under s 15A but had reasonably exercised a discretion not to use that power. On the contrary, the part of the judgment extracted above at [37] makes it plain that her Honour concluded that the Director did not possess the power to request the material from the Crime Commission. Rather, her Honour concluded that the more specific regime in s 45 required s 15A(7) of the DPP Act to be in interpreted in such a way that denied the "request power" urged by the plaintiff. Otherwise, the utility of the regime in s 45 would be compromised. 3. I am satisfied that the learned Magistrate erred in law in finding that the DPP did not have the power to request material from the Crime Commission pursuant to s 15A of the DPP Act. I am satisfied that that was a material error for the purpose of determining whether her Honour's discretion miscarried, even though, had she approached the matter under the correct interpretation of s 15A of the DPP Act, she may have reached the same conclusion on whether it was in the interests of justice to extend the date for the filing of the charge certificate. 4. The Director submitted in writing: "There was no error in Magistrate Swain's reasoning, let alone House v The King error. It was open to her Honour to conclude, based on the circumstances of the case, that it was in the interests of justice to grant an extension of time and her Honour's conclusion in that regard was correct." 1. The reference to "House v The King error" is, of course, a reference to the following passage in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 1. The Director submitted that the Magistrate's error concerning the existence of the "request power" under s 15A(7) of the DPP Act was not a "material error" and relied at the hearing in this Court on Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [38]: "However, the primary submission made on behalf of the appellant has force. The observation that the risk that the appellant would commit other offences at the time of his release, unless treatment by drugs proved successful, 'constituted a sufficient reason not to make an order for parole', and to make an order for indefinite imprisonment, inverted the question that had to be decided. The question for the Court of Criminal Appeal was not whether the sentencing judge had a sufficient reason not to make an order for parole. The question for the Court of Criminal Appeal was whether the making of an order for parole involved error of a kind warranting appellate interference with a discretionary judgment. Unless some material error of fact or law could be discerned in the reasoning of the sentencing judge, then the question for the Court of Criminal Appeal to consider was whether the circumstances of the case were such that the making of a parole eligibility order involved an implied error, or whether, in other words, the circumstances were such as to require the judge not to make an order for parole." (Emphasis added). 1. This passage does not support the proposition to which it is directed. The final sentence is referring to the last kind of error identified in House v The King, which is sometimes referred to as "latent" error. That kind of error exists where the decision under review is so "unreasonable or plainly unjust" that the appellate court imputes error, although a precise error is not apparent on the face of the judgment under review. Ground 1 in this case is that the judge made an error of law or, in the language of House v King, "acted on a wrong principle". Whether the Magistrate would have reached the same ultimate decision, absent the legal error, does not lead to the conclusion that the error was immaterial. 2. The discretion under s 67(3) of the CP Act miscarried because the Magistrate acted on a wrong principle. Ground 1 must be upheld. Disposition 1. Section 55(3) of the CARA Act provides that the Supreme Court may determine an appeal under s 53(3) by (a) "setting aside the order and making such other order as it thinks just" or (b) "dismissing the appeal". 2. In circumstances where the exercise of the Magistrate's discretion was infected by legal error, the more appropriate course is to set aside the order made by the Magistrate and either remit the matter to the Local Court to be determined according to law or to exercise the discretion afresh. The latter course is permitted by the breadth of the power to make "such other order as [this Court] thinks is just". It is the preferable course in this case because it will result in less delay, albeit that the delay to this point has been the consequence of dual progress of the proceedings in the Local Court and the bringing of the appeal to this Court. 3. I would commence by observing that the six-month time limit established by s 67(2)(b) of the CP Act should not be taken lightly. Six months will be, in the vast majority of cases, ample time for the prosecutor to certify, for the purpose of s 66(2)(a), that the available evidence "is capable of establishing each element of the offences". There should be no expectation that a magistrate will exercise the power to extend the date for filing a charge certificate pursuant s 67(3). While the "interests of justice" encompass a wide variety of factors, Magistrates will expect the Prosecutor to provide good and cogent reasons why charge certification cannot occur within that specified statutory time frame. This is particularly so where, as here, an accused person is in custody pending the resolution of the criminal proceedings or in cases where an accused person is subject to stringent bail conditions. 4. Having said that, the circumstances prevailing in this case are somewhat unusual. The Director was notified on 21 October 2022 and 7 November 2022 that potentially relevant information or evidence was in the possession of the Crime Commission and acted with reasonable speed to obtain that information or evidence. It is true that no request was made under s 15A(7) of the DPP Act, but the Director asked that the publication restriction be varied on 17 November 2022 and, when that request was rejected, filed an application under s 45(4) and (5) of the CC Act on 30 November 2022. The application under s 45(4) was heard in the Local Court on 30 November 2022. It was possible for the Director to have acted with more alacrity, but a fair assessment is that her officers responded diligently and promptly. 5. Further, disclosure of the information pursuant to a request under s 15A(7) may have given rise to practical (and legal) limitations. As the Director submitted, s 45(3) of the CC Act criminalises publication of material subject of a direction under s 45(1). The plaintiff's answer to this, which involved the suggestion that the Director could use her powers of delegation under s 33 of the DPP Act, was unpersuasive, particularly when Kings Counsel was pressed to identify precisely which of the Director's powers would be the subject of such a delegation. 6. Two related matters militating in favour of a finding that it is in the interests of justice to extend the date for charge certification are (i) the nature of the charges under contemplation and (ii) the size of the police brief (namely being 17 volumes). Neither matter, by itself, would justify a finding that it is in the interest of justice to extend the period for charge certification beyond six months. Six months would ordinarily be enough time to certify a murder charge and an aggravating kidnapping charge by reference to a brief of that size. However, the seriousness of the charges is a relevant consideration, in that it is in the interests of justice that crimes of such seriousness are prosecuted properly and with all available information considered by the prosecuting authority. 7. The Prosecutor's concessions that there is, or may be, "no case" in the absence of the material sought from the Crime Commission, is a neutral factor. On the one hand, Mr Zahed should not remain in custody if these are the only extant charges against him and there is limited, or no, admissible evidence against him. On the other hand, the absence of other evidence highlights the potential importance of the material that may be available if an order under s 45(5) is made by Mr Miller LCM later this month. 8. An extremely important factor militating against extending the time for charge certification is that the plaintiff remains in custody, seemingly and only because of the present allegations. He languishes while two instruments of the State (the DPP and the Crime Commission) seek the intervention of a third (the Local Court) to determine what, if any, evidence exists to justify the charges and his ongoing incarceration. This is a substantial matter in favour of refusing the application to extend the date for filing the charge certificate. 9. I have given that last matter significant weight in determining where the interests of justice lie. 10. However, in the end, I am satisfied that it is in the interests of justice to make the order under s 67(3) of the CP Act at least for a short time. Because events have continued to develop, and some time has passed since the matter was before Magistrate Swain, the order I will make will result in a further extension of time. The Director has asked for three weeks beyond the date on which it is expected that Mr Miller will determine the s 45(5) application. I have opted for two weeks on the basis that this should be sufficient time for the Director and her officers to decide whether the charge can, or cannot, be certified. Publication of this judgment 1. This judgment will not be published on Caselaw (or otherwise than to the parties and, via the parties or the Registrar, to the Local Court) until the Crown Solicitors Officer (on behalf of the Police Commissioner and/or the Crime Commission) advises whether there is any application to redact portions of the judgment in accordance with the approach taken in advance of the hearing and during the hearing. (Following consultation between my Associate and the CSO this should be facilitated 4:00pm on the day the judgment is delivered.) Costs 1. I will allow the parties seven days to attempt to agree on the appropriate order for costs, if any, and a further seven days to file written submissions of no more than five pages on the question of costs. Orders 1. Accordingly, I make the following orders: 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 s 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. ********** Amendments 11 July 2023 - The redactions to the judgment in paragraphs [15], [17], the substantive text of [18] (not the quoted text) and [37] were lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2024