Australia, Nov. 22 -- Supreme Court of Victoria issued text of the following judgement on Nov. 18:

1 In June 2022, the Director of Public Prosecutions decided to take over a private prosecution commenced by Zenaan Harkness against Benjamin Banks in the Magistrates' Court of Victoria. At a committal case conference on 16 June 2022, the Director was represented by a solicitor from the Office of Public Prosecutions, who advised the magistrate that she was instructed to withdraw all of the charges. The magistrate then struck out the charges on the basis that they had been withdrawn.

2 In this proceeding, Mr Harkness seeks judicial review of the Director's decision to withdraw the charges against Mr Banks. He seeks orders setting aside the orders of the Magistrates' Court made on 16 June 2022, or alternatively an order requiring the Director to continue or recommence the prosecution. The Director contends that the decision is not amenable to judicial review, relying on the High Court authority of Maxwell v The Queen,[1] and two decisions of this Court.[2]

3 The proceeding was listed for trial on 28 September 2023. On the same day, Mr Harkness applied by summons for orders vacating the trial date, to enable him to serve notice of this constitutional matter on the Attorneys-General of the Commonwealth and the States, as required by s 78B(1) of the Judiciary Act 1903 (Cth) (s 78B notice).

4 After hearing argument on the summons, I was persuaded that the proceeding does involve a constitutional matter, related to whether a decision of the Director to withdraw criminal charges is amenable to judicial review. My reasons for that conclusion are set out in Harkness v Banks.[3] In short, I considered that there was a question how, or whether, the principle that a prosecutorial decision to withdraw charges is not amenable to judicial review could be reconciled with the constitutionally-protected jurisdiction of the State Supreme Courts to supervise the exercise of executive power for jurisdictional error.[4]

5 I adjourned the trial to a date to be fixed, and made directions for Mr Harkness to file and serve a s 78B notice in relation to the following constitutional question:

Does the constitutionally-protected supervisory jurisdiction of the Supreme Court of Victoria extend to reviewing for jurisdictional error a decision of the Director of Public Prosecutions to withdraw criminal charges in a proceeding taken over by the Director under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic)?

6 No Attorney-General chose to intervene in the proceeding. The Director briefed the Solicitor-General for Victoria to appear on her behalf at the hearing of the constitutional question, while Mr Harkness continued to represent himself. In those circumstances, the Director suggested that the Court may be assisted by the appointment of counsel as Friends of the Court to act as contradictor.

7 The Court made a request for assistance through the Victorian Bar Pro Bono Scheme, which was accepted by Frances Gordon KC, Shawn Rajanayagam, and Melinda Jackson. They subsequently prepared written submissions and appeared at the hearing of the constitutional question. I am deeply grateful to each of them for their willingness to assist the Court, and for the quality of their assistance.

8 For the reasons that follow, I have concluded that the constitutional question must be answered 'no'.

*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/709.html)

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