Reported Decision : 144 A Crim R 21 New South Wales Supreme Court CITATION : Hanna v Patricia O'Shane, Magistrate and Ors [2003] NSWSC 1055 revised - 25/11/2003 HEARING DATE(S) : 21/10/03 JUDGMENT DATE : 14 November 2003 JUDGMENT OF : Shaw J DECISION : (1) Call up the record of the Local Court proceedings in the matter of Fayez Phillippe Hanna v Geoffrey Kearns, Fikry Maks, Mona Maks, Tatiana Onano and Adrian Salem; (2) Quash the decision of the Magistrate of 19 May 2003 and the decision of 29 May 2003; (3) Remit the proceedings to the Local Court; (4) Subject to hearing the parties on the position in relation to costs, make no order as to costs. CATCHWORDS : Appeal - appeal from Local Court - procedural fairness - orders in the nature of certiorari - discretion - litigant in person as prosecutor LEGISLATION CITED : Justices Act 1900 ss 41(1A), 100D Supreme Court Act 1970 s 69 Davern v Messel (1984) 155 CLR 21; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; CASES CITED : Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82; Reg v Aston University Senate; ex parte Roffey [1969] 2 QB 538; Reg v Dorking Justices; ex parte Harrington [1984] AC 743; Spautz v Williams (1992) 174 CLR 509; Fayez Phillippe Hanna - Applicant Patricia O'Shane, Magistrate - First respondent Geoffrey Kearns - Second respondent PARTIES : Fikry Maks - Thrid respondent Mona Adly Maks - Fourth respondent Tatiana Onano - Fifth respondent Adrian Salem - Sixth respondent FILE NUMBER(S) : SC 11582/03 In Person - Applicant COUNSEL : D Watson - Second respondent In Person - First, third-sixth respondents SOLICITORS : Australian Government Solicitors - Second respondent LOWER COURT Local Court JURISDICTION : LOWER COURT 20054057/03/2; 20054225/03/2; 20054399/03/2; 20054735/03/2; 20054903/03/2; 20054065/03/2; 20054911/03/2; 20054073/03/2; 20054241/03/2; 20054081/03/2; 20054250/03/2; 20054428/03/2; 20054591/03/2; 20054090/03/2; 20054268/03/2; 20054436/03/2; 20054604/03/2; 20054102/03/2; 20054276/03/2; 20054612/03/2; 20054113/03/2; 20054284/03/2; 20054452/03/2; 20054623/03/2; 20054129/03/2; 20054292/03/2; 20054639/03/2; 20054973/03/2; 20054137/03/2; 20054305/03/2; 20054647/03/2; 20054989/03/2; 20054145/03/2; 20054313/03/2; 20054487/03/2; 20054655/03/2; 20087975/03/2; 20054153/03/2; 20054495/03/2; 20054663/03/2; 20054831/03/2; 20087983/03/2; 20054161/03/2; 20054508/03/2; 20054671/03/2; 20054840/03/2; 20087991/03/2; 20054170/03/2; 20054516/03/2; 20088003/03/2; 20054014/03/2; 20054698/03/2; 20054866/03/2; 20088011/03/2; 20054022/03/2; 20054196/03/2; 20054364/03/2; 20054703/03/2; 20054874/03/2; 20054033/03/2; 20054372/03/2; 20054719/03/2; 20054882/03/2; 20054049/03/2; 20054217/03/2; 20054383/03/2; 20054727/03/2; 20054893/03/2; FILE NUMBER(S) : LOWER COURT O'Shane LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Shaw J 14 November 2003 11582 of 2003 Fayez Phillippe Hanna (Applicant) v Patricia O'Shane, Magistrate (First respondent); Geoffrey Kearns (Second respondent); Fikry Maks (Thrid respondent); Mona Adly Maks (Fourth respondent); Tatiana Onano (Fifth respondent); Adrian Salem (Sixth respondent) JUDGMENT 1 Shaw J: By summons the applicant applies for judicial review of a decision of Magistrate O'Shane. There are two relevant decisions of the Local Court though the applicant only seeks review of the first. The first decision of the learned Magistrate was to dismiss 62 criminal charges for various offences on informations laid (with leave) by the applicant as a private prosecutor against the second through sixth respondents. The second decision of the Local Court was to refuse his application pursuant to s 100D of the Justices Act 1900 (NSW) (which is now repealed but was in force at the relevant times) to annul the previous decision of her Worship to dismiss the charges mentioned. 2 Though the summons seeks an order to quash the decision of Magistrate O'Shane to dismiss those charges for 'Abuse of Process' it is clear that during the course of his submissions before me, the applicant – who appears in person - means to challenge those decisions by seeking an order in the nature of certiorari for a breach of the rules of procedural fairness or a failure to afford the applicant natural justice amounting to jurisdictional error, or, at the very least, error of law on the fact of the record. 3 The applicant was unable to furnish the Court with a complete record of the Local Court proceedings. However Ms Watson, who appears for the third respondent, has helpfully provided most, if not all, of the relevant record. 4 From the transcripts of the proceedings before Magistrate O'Shane on 19 May 2003 it is clear that her Worship dismissed the charges as laid by the applicant for want of prosecution. The matter was called at 9.30 am and then later at about 10 am. Magistrate O'Shane stood the matter in the list until 11 am, but by that time the applicant had made no appearance before the Court. The charges were then dismissed and an order for costs made in relation to the third respondent. 5 In this Court the applicant asserts that he was, in fact, within the precincts of the Local Court on that day at about 11 am. He has produced some evidence to this effect. Much of this evidence corroborates the transcript record in which he appears to have entered the courtroom just after 11 am on that day. By this time, however, the orders had been made. 6 The transcript records what happened at this time: BENCH: Where did you come from Mr Hanna? Have you been here all morning? HANNA: No your Worship, I came and I am at the counter because I have to furnish other documents. You said 19 May and I am here 19 May. BENCH: You were supposed to be here at 9.30 this morning. HANNA: You said your Worship, you have to be here on the nineteenth, you didn't say 9.30 your Worship. I am sorry for that but I am here on 19 May. I have lots of things your Worship. I don't have all the facilities of the Department of Public Prosecutions [sic]. 7 In somewhat perfunctory comments to the Bench, Mr Hanna attempted to convince the learned Magistrate that he had attended as required by the last order standing over the proceedings to 19 May, but which, as he asserted, did not tell him what time to appear. Magistrate O'Shane rightly noted that the applicant's own summons bringing the respondents before the Court indicated that they would appear at 10 am. Mr Hanna continued to assert that he need not have attended at the specified time and the Magistrate confirmed her earlier orders dismissing the charges. 8 From this brief background, two considerations arise that should be noted. 9 The first is that it will be difficult, in circumstances in which a litigant has contributed to or even caused an error or unfairness to arise in proceedings to complain that such error or unfairness should be corrected. Courts have responded to and made efforts to adjust their processes to take into account that many people (and some might think an inappropriate number) now appear before them unrepresented and unaware of the usual procedures. However, all litigants, represented and unrepresented, must respect the courts and the processes of those courts. The applicant contributed to and in many ways caused his own difficulties by arriving at the Local Court late on 19 May. He could have sought that the Magistrate review her dismissal of the charges given his late arrival but instead he sought to assert that he had done nothing wrong. His disrespect of the learned Magistrate compounded his lack of regard for the hours of the Local Court. 10 However, a second consideration that arises balances the first, and that is that it is a fundamental concept that procedural unfairness, in almost any form, taints a curial proceeding and renders it susceptible to supervisory relief. 11 The applicant had brought an action (with the authority of leave granted by the Local Court) to prosecute a matter he alleges involves criminal conduct. Though he is a private prosecutor, he has brought an action that he asserts is in the public interest. Accordingly, he should have been heard before losing an opportunity to bring that action. The applicant was not on notice that a failure to arrive promptly on the morning of 19 May could be met with the dismissal of his case, nor was he heard on whether that was the most appropriate response to his failure to arrive in a timely fashion in the courtroom on that day. Something to this effect would now be within Mr Hanna's notice, however in the circumstances, the applicant has an arguable right to the relief he seeks. 12 I acknowledge that different considerations would arise when a well-resourced public authority fails to maintain criminal proceedings in the Local Court. Indeed, there is an express statutory power that recognises that the Local Court may dismiss a charge for want of prosecution: see s 41(1A) of the Justices Act. However, that power was arguably made conditional upon the Justice or Justices consideration, at the very least, not to adjourn the hearing instead of dismissing the charge(s). There is some force in the applicant's contention that an adjournment should have been considered as appropriate and that, at least, the applicant should have had an opportunity to address the Court on the available options open to the learned Magistrate. 13 This raises an issue of an appropriate course for this Court to take in these circumstances. Certiorari 14 In Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82 at 91 –92 Gaudron and Gummow JJ (with whom the Chief Justice agreed) said: We conclude that (i) the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction in respect of which prohibition will go under s 75(v) [of the Constitution]; (ii) if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by the classifying the breach as ' trivial ' or non-determinative of the ultimate result – the issue is whether there has or has not been a breach of the obligation; (iii) the practical content of the obligation, and this the issue of the breach, may turn upon the circumstances of the particular case; and (iv) the remedy of prohibition under s 75(v) does not lie as of right, but is discretionary. 15 There are significant reasons to accept that these observations apply with equal force to the remedy of an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW). 16 From the judgment of Gaudron and Gummow JJ in Aala, it can be said that it is not the law that one looks at a 'scale' of procedural fairness with minor or 'trivial' breaches at one end and serious or fundamental breaches at the other. Once it is seen that a person has been deprived of an aspect of procedural fairness in a matter that affects his or her rights, interests or legitimate expectations – or if a jurisdictional error, or non-jurisdiction error on the face of the record is shown - then it is appropriate for a superior court to call up the record for review to determine if the error or unfairness has tainted the decision and the proceedings require a fresh start. 17 This proposition seems to have been endorsed (for non-jurisdictional error on the face of the record) by the High Court in the Catholic Bishops Case (Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372). McHugh J (at 412) said expressly: Under the old procedure [of certiorari], removal and quashing were two distinct steps although in modern times both steps are usually dealt with on the application for an order absolute for certiorari ( R v A Judge of the District Courts and Shelly; Ex parte Attorney General (Q) [1991] 1 Qd R 170 at 176). Later (at 415), his Honour said: Certiorari to quash is not granted as of right. Its grant lies in the discretion of the Court. The explanation offered by McHugh J was historical. His Honour stated (at 417, citations omitted): Although the common law courts had developed the writ [of certiorari] by the early part of the fourteenth century, they did not use the writ to quash proceedings until well into the seventeenth century. Historically, the function of the writ was to call up the records of proceedings in inferior courts and tribunals and any records in the custody of an administrative officer where a question had arisen concerning the correctness of the record or proceedings. Finally, after discussing the right of the Crown to the issue of the writ, McHugh J said (at 421): Even if the Crown remains entitled as of right to remove proceedings, orders or decisions into the superior courts, it does not follow that it ought to have certiorari to quash as of right. 18 The judgments of Gleeson CJ (at 394, stating that the position was 'common ground'); Gaudron and Gummow JJ (at 410, agreeing with Hayne J); Kiby J (at 453-456); and Hayne J (at 472) all expressly consider that certiorari to quash was a discretionary remedy that could be refused. Accordingly, I have approached these reasons considering that certiorari to quash was discretionary and may be refused in the exercise of such a discretion. There are other reasons for thinking that this approach is necessary in this matter. 19 One consideration that has given me some concern is that if certiorari to quash was a remedy as of right the defendants could be exposed to the prospect of double jeopardy. 20 In Davern v Messel (1984) 155 CLR 21 at 30 Gibbs CJ (with whom Dawson J and Wilson J agreed) said: When the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has in indirect application. An appeal is a remedy given by statute; the scope of the appeal must be governed by the terms of the enactment creating it…The question whether an appeal lies from an acquittal therefore must be decided as a matter of statutory interpretation. However it is a principle of interpretation that no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed. 21 Mason and Brennan JJ noted (at 50) that in Reg v Dorking Justices; ex parte Harrington [1984] AC 743 '[n]o distinction´ was drawn between an acquittal and a dismissal of a charge. Similarly, their Honours noted that in Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163 the Full Court of the Supreme Court of NSW (Street CJ, Owen and Herron JJ) refused to issue certiorari to quash the dismissal of a summons by a Magistrate, 'holding that certiorari does not lie to quash an order of committal'. Nevertheless, their Honours noted that the concerns of fairness that lie behind the principle of double jeopardy do not arise where: …the Crown has a legitimate interest in securing a review of a trial, more particularly if it appears that the trial judge has made an erroneous ruling on a question of law or departed from correct procedures (at 55). 22 Even so, Mason and Brennan JJ held that the authoritative position that double jeopardy extended to prosecution appeals against acquittal or discharge was too well established to be overthrown. This proposition weighs against the grant of relief sought. Utility 23 Futher, there is some suggestion that there may be no utility in granting the applicant the relief he seeks. In Reg v Aston University Senate; ex parte Roffey [1969] 2 QB 538, the Court of Appeal (Lord Parker CJ, Blain and Donaldson JJ) considered that the issue of certiorari to correct a breach of the rules of natural justice was discretionary and could be refused where an applicant, by inaction, had 'slept upon their rights'. In such a case there was, accordingly, 'no injustice' to correct by the prerogative writ (at 551 per Donaldson J). Discretionary considerations 24 Ms Watson, for the third defendant, has submitted that the Court should consider several issues in exercising a discretion not to quash the decision of Magistrate O'Shane. 25 The first consideration is that Mr Hanna still seems unable to serve all of the defendants with adequate briefs of evidence or even sufficient particulars of their alleged criminal activities to enable them to prepare a defence. As such, should the decision of the learned Magistrate be quashed the proceedings may be delayed further while these briefs are prepared. 26 The second consideration raised by Ms Watson is that Mr Hanna laid his informations after his conviction in the Local Court for offences under the Migration Act 1958 (Cth) but prior to his appeal to the District Court of NSW. In those circumstances the laying of the informations may amount to an inappropriate attempt to collaterally attack his conviction (better remedied by the appellate process) and therefore amount to an abuse of process: see Spautz v Williams (1992) 174 CLR 509. 27 These are weighty considerations, balanced by what I have noted earlier, is a fundamental concept of justice: the right to be heard. Conclusion 28 In all of the circumstances, however, I consider that Mr Hanna should have had an opportunity to present his case and this was denied by the course of events on 19 May and not remedied by the application pursuant to s 100D of the Justices Act dismissed on 29 May 2003. The defect should be cured. The decision should be quashed and the matter remitted to the Local Court for the proceedings to continue. A caution 29 One final warning should be sounded. Mr Hanna should be on notice that if he brings a criminal action against members of the community he must comply with the strict requirements placed upon prosecutors. The charges he raises are of a serious nature but each defendant is entitled to have these allegations proved or dismissed fairly and efficiently. 30 The applicant should ensure that all defendants are appropriately apprised of the criminal charges he brings and the evidence he proposes to adduce to support those charges at the soonest possible moment so that they may adequately prepare their defences. To this extent the timetables set by the Local Court, when this matter is remitted, must be complied with and a failure to do so may see his case, again, dismissed. Costs 31 In circumstances in which there were several factors weighing against the grant of relief, and in considering the specific issues raised by Ms Watson (and noting in particular the suggestion that there is a collateral purpose for which these proceedings have been brought) I have some concern about applying the general rule in relation to costs following the event with regards to this appeal. 32 The matters raised by Ms Watson persuade me that I should, subject to appropriate argument, make no order as to the costs of this application. Orders 33 Accordingly, I order: (1) Call up the record of the Local Court proceedings in the matter of Fayez Phillippe Hanna v Geoffrey Kearns, Fikry Maks, Mona Maks, Tatiana Onano and Adrian Salem; (2) Quash the decision of the Magistrate of 19 May 2003 to dismiss the charges brought by the applicant and (to the extent that it may be necessary) the decision of her Worship of 29 May 2003 not to annul the earlier decision pursuant to s 100D of the Justices Act; (3) Remit the proceedings to the Local Court; (4) Subject to hearing the parties on the position in relation to costs, I am inclined to make no order as to costs. ***** Last Modified: 11/26/2003 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. 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