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

Zahed v Director of Public Prosecutions (NSW) [2023] NSWSC 368 · Read the judgment on AustLII

Catchwords: Committals – applications to extend time for charge certification

This judgment of a single judge of the Supreme Court considers the factors that go into the question of whether, on application, the prosecution should be entitled to longer than the default six months for charge certification.

The plaintiff was charged with murder and aggravated kidnapping. Nothing in the judgment gives any clue as to the underlying facts; only procedural facts are recounted. Relevantly, the plaintiff was bail refused after charging, and had been waiting more than six months for the DPP to certify a charge.

Practitioners will recall that, since mid-2018, the system for committal proceedings in NSW imposes a requirement on the DPP to ‘certify’ charges. The Criminal Procedure Act 1986 (‘the Act’) provides that if the charges are not certified within six months from the first time the matter is in court, the charges are to be dismissed unless the prosecutor satisfies the court that it is appropriate in the circumstances of the case to extend the time, taking into account the interests of justice (ss 67 and 68 of the Act).

In this case, it would appear that the prosecution case hinged entirely on material from the NSW Crime Commission (despite 17 volumes of other material). The legislation creating the Crime Commission provides secrecy provisions, prohibiting publication of information obtained at the Commission. The prosecutor in the plaintiff’s matter asked the Crime Commission to exercise a power in the Crime Commission Act to allow the prosecutor to serve the transcript of evidence given before the Crime Commission, but the Crime Commission declined. The DPP then made an application for the Local Court to make a variation to the secrecy provisions, apparently on the basis that without the material the prosecution had no case. That application was pending.

In the meantime, the six-month time limit loomed, and the DPP applied for time to be extended to certify the charges. That application was granted by a magistrate, and the plaintiff commenced proceedings in the Supreme Court, appealing against that decision.

Hamill J, sitting alone, considered the interaction between the DPP’s power to require law enforcement officers to provide documents, and the Crime Commission secrecy provisions. For reasons presently unimportant (unless you happen to be in one of the handful of matters where production of Crime Commission records is in issue), his Honour determined that the Magistrate made an error, and the DPP could have required the production of the documents (albeit that may have caused its own difficulties).

Of wider relevance, rather than remitting the matter to be determined according to law, his Honour decided deal with himself the question of whether time ought to be extended for the filing of the Charge Certificate.

He commenced by observing that the six-month time limit established by the Act should not be taken lightly. In the vast majority of cases, it ought to be ample time for the prosecutor to issue the Charge Certificate, and there should be no expectation that a magistrate will extend time. Whilst the ‘interests of justice’ encompass a wide variety of factors, Magistrates will expect the prosecutor to provide good and cogent reasons for the extension of time, particularly where an accused person is in custody, or in the community but subject to stringent bail conditions (at [50]). In balancing the relevant factors, his Honour subsequently described the fact that the plaintiff in this case was in custody as ‘extremely important’ in the circumstances of this case, and indicated that he had given it ‘significant weight’ (at [55]-[56]). The seriousness of the charges is also a relevant consideration, insofar as it is in the interests of justice that serious crimes (in this case, murder) are prosecuted properly and with all available information considered by the prosecuting authority (at [53]). Moreover, the size of the brief – here, 17 volumes – was also a relevant factor. However, neither the nature of the charges, nor the size of the brief would, on its own, justify an extension of time beyond the six months (also at [53]).

In all the circumstances, His Honour determined to grant a relatively modest further extension in the case.