Simon Margan v NSW Director of Public Prosecutions and Attorney General of New South Wales [2013] NSWSC 44

Supreme Court New South Wales

Medium Neutral Citation: Simon Margan v NSW Director of Public Prosecutions and Attorney General of New South Wales [2013] NSWSC 44 Hearing dates: 30 January 2013 Decision date: 07 February 2013 Jurisdiction: Common Law Before: Grove AJ Decision: Summons dismissed with costs Catchwords: CIVIL - proceedings by unrepresented applicant - anti-discrimination - Limitation periods - summary proceedings in Local Court Legislation Cited: Anti-Discrimination Act 1977 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Category: Principal judgment Parties: Simon Margan (Applicant) NSW Director of Public Prosecutions (Respondent) Attorney General of New South Wales (Respondent) Representation: Counsel: In person (Applicant) B.K Baker (Respondent) Solicitors: In person (Applicant) I V Knight, Crown Solicitor (Respondent) File Number(s): 2012/00103496

Judgment 1By amended summons the plaintiff seeks orders against the Director of Public Prosecutions and the Attorney General of New South Wales. The proceedings have been brought and conducted by the plaintiff in person and, in essence, he seeks a declaration that certain advice by the Director of Public Prosecutions, which was adopted by the Attorney General, was incorrect and further, that the Court give some directions whereby that advice not be acted upon. 2An understanding of the issues requires a sketch of some background. On 9 August 2010, Danny Manias was walking on Oxford Street in Surry Hills and proceeded to assault several persons and cause damage to property. One of the victims was the plaintiff, in respect of whom Manias was charged with assault occasioning actual bodily harm. On 3 March 2011, Manias was, following pleas of guilty, convicted upon this and other charges and a suite of sentences included imposition of terms of imprisonment. 3On 6 August 2011, the plaintiff sent a complaint form to the Anti-Discrimination Board (ADB) which was received on 9 August. In a lengthy endorsement on the complaint form, under a heading of "Substance of Serious Vilification Complaint", the plaintiff, inter alia, referred to the assault and described actions of Manias on days prior thereto which included shouting things such as "I am going to eradicate all gays from Oxford Street". 4In response to the interrogatory on the form, "What would you like to happen to sort out this complaint", the plaintiff wrote: "I am seeking the legislative mandated sanctions for serious vilification [Anti-Discrimination Act 1977 (NSW), s 49ZTA]: 10 penalty units or imprisonment for 6 months, or both. However, if this is not pursued I would still like to leave the option of pursuing a vilification complaint [Anti-Discrimination Act 1977(NSW), s 49ZT(1)], even though this vilification was associated with a significant amount of violence. Thereby, I will also potentially be seeking the remedies possible for substantiated complaint through the tribunal [Anti-Discrimination Act 1977(NSW), s 108(2)]." 5Section 49ZTA of the Anti-Discrimination Act 1977 (NSW) (the "AD Act") provides: "(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons. Maximum penalty: In the case of an individual-10 penalty units or imprisonment for 6 months, or both. In the case of a corporation-100 penalty units. (2) A person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution." 6In November 2011, the President of the ADB wrote to the plaintiff advising that his complaint had been referred to the Attorney General on 31 August 2011 but that the Director of Public Prosecutions had determined that the offence was statute barred for the reason that such offence is to be dealt with summarily before the Local Court and proceedings were required to be commenced no later than 6 months after an alleged offence has been committed. The letter accurately conveyed the advice that had been given by the Director. 7The initial issue raised by the plaintiff therefore, is whether that advice was correct. 8Section 125 of the AD Act provides: "Proceedings for an offence against this Act or the regulations shall be dealt with summarily before the Local Court." 9A time limit for the commencement of summary proceedings is legislated in s 179 of the Criminal Procedure Act 1986 (NSW) (the "CP Act") which relevantly provides: "(1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed. (2) Subsection (1) does not apply: (a) to an offence for which an Act or law specifies another period within which proceedings must be commenced, or (b) to an indictable offence that is being dealt with summarily, or (c) to an offence involving the death of a person that is or has been the subject of a coronial inquest. (3) ..." 10The plaintiff's first contention was that the prosecution, which he seeks to have instituted, falls within the exemption in s 179(2)(b) because an offence against s 49TZA of the AD Act is an indictable offence being tried summarily. He submitted that the legislative edict, that the offence "shall be dealt with summarily," suggested that there were two ways of dealing with such an offence, that is, summarily or non-summarily. The words of the legislation carry no such implication. Neither is it required to construe the unambiguous expression in the statute to intrude meanings of the word "serious" into the construction. A reference to a speech by a former Director of Public Prosecutions, where he noted that certain threats of similar content to serious vilification could be prosecuted under existing provisions of the Crimes Act 1900 (NSW), does nothing to demonstrate that serious vilification under the AD Act is indictable. There is no legislative (or other) warrant for prosecuting an offence against provisions of the AD Act on indictment. 11The next argument was that the offence by Manias was "continuing" and that the period of 6 months prescribed in s 179 did not commence to run when he made the statements on or prior to 9 August 2010. The question is whether any alleged offence by Manias was complete by that date. The answer must be affirmative. A circumstance where a person may feel the effects of vilifying language after it has been uttered no more demonstrates that an offence is not complete than a fact that a victim of an assault suffers continuing pain. That does not mean that the offence of assault is a continuing one and not complete. 12Thirdly, the plaintiff points to the provisions of s 89B of the AD Act, namely: "89B Acceptance or declining of complaints by the President (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if: (a) ... (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or ... 13The provision in subsection (b), expressing a 12 month period, followed an amendment in 2004 taking effect on 2 May 2005 which substituted an earlier provision which prescribed a 6 month period. Thus, it is argued, there is a discernable legislative intention to overrule the 6 month period prescribed by the earlier enacted s 179 of the CP Act so far as prosecutions under the AD Act are concerned. 14Section 89B relates to the exercise of powers of the President of the ADB upon receipt of complaint. His options include procedures to grant remedies such as apology, damages and civil sanctions. The time limit in s 89B(2)(b) has nothing to do with criminal sanction by way of prosecution. For reasons already expressed, the time limit in section 179 of the CP Act is applicable. 15Finally, the plaintiff directed attention to some broad implied legislative intention in the introduction of anti-discrimination laws. No doubt the legislature intended to sanction against undesirable discriminatory behaviour but how it seeks to achieve this must be gauged in terms of the statutory language. It is not correct, as submitted by the plaintiff, that the six month time limit in s 179 of the CP Act applies to prosecutions solely by the Director of Public Prosecutions. It applies to all proceedings by anyone alleging a summary offence, subject to express exception such as can be found, for example, in Road Transport legislation. 16The argument that the advice concerning the proposed prosecution is statute barred is wrong must fail. It follows that the remedies sought in the nature of directions to either the Director of Public Prosecutions or the Attorney General cannot be granted. That is not to suggest that there are not, in any event, some considerable obstacles to what the plaintiff seeks, in that it is highly questionable whether this Court has any power to make orders concerning the prosecutorial functions of the Director of Public Prosecutions or the Attorney General, particularly in regard to their respective discretionary powers. 17The summons is dismissed with costs.

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Amendments 04 June 2013 - Amended Parties (Respondent) Amended paragraphs: Coversheet 18 June 2013 - Amended Respondent to the case title Amended paragraphs: cover sheet 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: 19 June 2013