Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776

Supreme Court New South Wales

Medium Neutral Citation: Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776 Hearing dates: 9 October 2015 Date of orders: 02 December 2015 Decision date: 02 December 2015 Jurisdiction: Common Law Before: RS Hulme AJ Decision: Summons dismissed Catchwords: Appeal Local Court to District Court – Appeal to Supreme Court – abuse of process Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Supreme Court Act 1970 Cases Cited: Lazarus v DPP (NSW) [2015] NSWSC 426 McHenry v Lewis (1882) 22 Ch D 397 McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 Meagher v Stephenson (1993) NSWLR 736 Williams v Hunt (1905) 1 KB 512 514 Category: Principal judgment Parties: Sandra Lazarus (Plaintiff) Director of Public Prosecutions NSW (Defendant) Representation: Counsel: No appearance (Plaintiff) Ms CA Webster SC (Defendant)

Solicitors: Director of Public Prosecutions (Defendant) File Number(s): 2015/1453962015/211962 Publication restriction: No

Judgment 1. By Notices of Motion filed in each of proceedings 2015/211962 and 2015/145396, the Defendant has sought that, pursuant to Rule 13.4, those proceedings be summarily dismissed. By orders made on 14 August 2015 the Registrar directed that both Notices of Motion be heard together and they were listed for hearing on 9 October 2015. 2. On that day, Counsel appeared for the Defendant but there was no appearance on behalf of the Plaintiff. For reasons stated on that day, and copies of which are in the Court file, I elected to proceed in her absence. In part because the Defendant relies on the history of these and other proceedings, it is convenient to record a chronology of events. 3. On 27 November 2014, the Plaintiff was found guilty by Magistrate Keogh of a number of offences against s 178BB and s 300 of the Crimes Act 1900. The proceedings were stood over for sentence. 4. On 5 February 2015 Ms Lazarus appeared before Button J seeking ex parte review of the criminal proceedings in which Magistrate Keogh had found her guilty. His Honour granted leave to Ms Lazarus to file the summons in court and stood the proceedings over until the following day. On that day a timetable, including a hearing date of 13 April 2015 was set. Button J also stayed proceedings in the Local Court up to 13 April. 5. In the proceedings, which seem to have become proceedings 2015/36376 Ms Lazarus filed an amended summons on 12 February seeking, inter alia, that Ms Keogh be disqualified and that the proceedings before her be reheard to be determined at law by another Magistrate. The grounds relied upon were stated to be: "Perceived bias, actual bias, errors of law, failure to ensure that the transcript was an accurate record of the court proceedings, allowed the transcript to be edited and allowed deleting of parts of the transcript in particular as to three applications… for Magistrate Ms Joanna Keogh to disqualify herself and to withdraw as she failed to ensure a fair and impartial hearing." 1. The matter was heard by Garling J on 13 April 2015. On 14 April 2015 Garling J ordered that proceedings 2015/36376 be dismissed, publishing his reasons for that conclusion on 16 April 2015 – see Lazarus v DPP (NSW) [2015] NSWSC 426. 2. His Honour approached the matter as one seeking to invoke this Court's jurisdiction under s 69 of the Supreme Court Act 1970 and the relief being sought as in the nature of prohibition and certiorari. His Honour concluded that the allegations of bias and apprehended bias were not made out and that neither were any of the other complaints. He went on also to observe that the Court has a discretion whether to grant the prerogative relief sought by the Plaintiff and that even if he had upheld the Plaintiff's complaints he would not have allowed the appeal, and this for two reasons. The first was that the Plaintiff had a right of appeal to the District Court by way of rehearing; the second was the undesirability of interfering in criminal proceedings prior to their completion, as was the situation prior to the Plaintiff being sentenced. 3. On 27 April 2015 the Plaintiff was sentenced in respect of the charges by Magistrate Keogh, sentences of imprisonment being imposed. 4. Also on 27 April 2015 the Plaintiff filed a Notice of Appeal to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 appealing against her conviction and sentence. The appeal against conviction was said to be "because I am not guilty." The appeal against sentence was said to be "because the penalty is too severe". Also on 27 April the Plaintiff was granted bail pending determination of her appeal, a grant that had the effect of staying the execution of the sentence that had been imposed. 5. On 12 May 2015 the Plaintiff filed a Notice of Intention to Appeal to the Court of Appeal against the decision of Garling J. 6. On 15 May 2015 Ms Lazarus commenced proceedings 2015/145396. An amended summons was filed on 1 June 2015 and in that document the Plaintiff has sought: 1. To appeal the whole of the Local Court decision in proceedings 2013/00076236; 2. That the Court grant a stay of enforcement in case number 2013/00076236 until the application to set aside the whole of the decision in the Supreme Court is decided; (3) To have the whole matter of case 2013/00076236 set aside. 1. Both the Summons and Amended Summons record that the application or appeal is brought under Part 5 Division 1, Subdivision 1 of the Crimes (Appeal and Review) Act 2001. The grounds relied upon are, inter alia, that: (1) The Local Court proceedings breached the Criminal Procedure Act 1986 sections 47, 38 and 49. (2) The relevant Court attendance notice listed an ICAC investigator as the prosecutor and ICAC as the prosecuting organisation thereby breaching the Criminal Procedure Act 1986. (3) During the Local Court proceedings, section 141(1) and (2) of the Evidence Act 1995 were breached. (4) During the Local Court proceedings sections 178BB and 300(1) of the Crimes Act was incorrectly interpreted and applied. 1. It was asserted that all of these matters constituted procedural unfairness and involved questions of law. 2. On 7 July 2015 proceedings 2015/145396 came before Fagan J. In circumstances that are not clear to me his Honour ordered (1) [Ms Lazarus'] application for an order staying her appeal in the District Court No: 2013/00076236 is dismissed. (2) [Ms Lazarus'] application is to pay the Defendant's costs of the application heard this day. 1. In the course of his Honour's reasons he observed:- (1) No ground has been shown for this Court to stay the District Court appeal upon the Plaintiff's application made today. If the Plaintiff does not wish to proceed with the District Court appeal at all, she may discontinue it. … (2) The appeal to the District Court is probably amenable to being struck out because the Plaintiff has on foot the appeal to this Court under her amended Summons – s 29 Crimes (Appeal and Review) Act. If the District Court appeal is pursued, continuing proceedings on the Summons in this Court will be an abuse of process. If the Plaintiff does not abandon one or other of these two proceedings, then it will lie in the hands of the Director of Public Prosecutions to make an application, either to the District Court in respect of the appeal or in these proceedings, to bring one of the two matters to an end. 1. On 20 July 2015 proceedings 2015/211962 were commenced by a Summons (entitled "Summons (Judicial Review)") seeking, in addition to costs orders, that: (1) The whole of the decision in relation to New South Wales Local Court case No: 2013/00076236 be set aside. (2) The whole of the matter in relation to New South Wales Local Court case No: 2013/00076236 be struck out. (3) That all related decisions in relation to New South Wales Local Court case No: 2013/00076236 be set aside. (4) That all decisions arising from the New South Wales Local Court case No: 2013/00076236 be set aside. 1. The grounds relied upon are that the Magistrate's decision involved: 1. Errors of law, ultra vires, lack of procedural fairness, bad faith, Wednesbury unreasonableness. 2. The relevant Court Attendance Notice listed an ICAC investigator as the prosecutor and ICAC as the prosecuting organisation thereby breaching the Criminal Procedure Act 1986 sections "3,173, 14, 47, 48 and 49 and sections of the ICAC Act 1988." 3. The prosecution relied upon s 3 and s 173 of the Criminal Procedure Act 1986 to indicate that Mr Michael Kane (Investigator for the ICAC) was by definition a Public Officer, being an ICAC employee, and therefore was permitted to institute proceedings through issuing a court attendance notice for Sandra Lazarus. 4. The prosecutor, Mr Michael Kane was not authorised to bring prosecutions against the Plaintiff. 1. It was against that background that on 29 July 2015 the Notices of Motion referred to in [1] were filed. 2. In support of the application the following affidavits were read:- (i) One of Dominique Kelly sworn 4 August 2015 (ii) One of Dominique Kelly sworn 6 July 2015 (iii) One of Graham Hazlitt sworn 1 April 2015 (Exhibit B) (iv) One of Dominique Kelly sworn 8 October 2015 1. So far as is presently relevant, Rule 13.4 provides:- (1) If in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) The proceedings are frivolous or vexatious; or (b) … (c) The proceedings are an abuse of the process of the Court, the Court may order that the proceedings be dismissed generally or in relation to that claim.