Barton v the Queen

[1980] HCA 48

HIGH COURT OF AUSTRALIA

Gibbs A.C.J., Stephen, Mason, Murphy, Aickin and Wilson JJ.

BARTON v. THE QUEEN

(1980) 147 CLR 75

5 December 1980

Criminal Law

Criminal Law—Ex officio information—Power of Attorney-General to present—Whether exercise reviewable by court—Power of court to ensure fair trial—Power to stay or postpone proceedings instituted by ex officio information—Australian Courts Act 1828 (9 Geo. IV c. 83), s. 5—Justices Act 1902 (N.S.W.), Pt IV, Div. 1.

Decisions

December 5.
The following written reasons for judgment were delivered:
GIBBS AND MASON JJ. These three appeals are brought by three persons against whom two ex officio informations (hereafter called "indictments") have been presented in the name of the Attorney-General for New South Wales and signed by him. One indictment charges Alexander and Thomas Barton in two counts with between 1 May 1972 and 3 June 1972 conspiring (a) to cheat and defraud Brins General Insurance Co. Ltd. and (b) to cheat and defraud Westmoreland Minerals Ltd. and Harbourside Oil N.L. ("the Harbourside indictment"). The second indictment charges the Bartons and Laurence Charles Gruzman with between 22 December 1969 and 27 February 1970 conspiring to cheat and defraud Bounty Oil Ltd. ("the Bounty indictment"). This indictment also charges the Bartons with perjury; it charges Gruzman with an offence of false swearing; and it charges Alexander Barton with the fraudulent application of shares of the company to a use or purpose other than that of the company. (at p85)

2. The two ex officio informations have been called "indictments" because s. 4 of the Crimes Act, 1900 (N.S.W.), as amended, defines "indictment" so as to include "any information presented or filed as provided by law for the prosecution of offences". As we shall see, s. 5 of the Australian Courts Act 1828 (9 Geo. IV c. 83) authorizes the prosecution of criminal offences by information in the name of the Attorney-General. The two indictments have been described as "ex officio" because in relation to the Harbourside charges there had been committal proceedings before a magistrate but they had not been completed, and because in relation to the Bounty charges committal proceedings had not even commenced. (at p85)

3. Informations had earlier been laid against the appellants under the Justices Act 1902 (N.S.W.), as amended, in relation to the very offences subsequently charged in the two ex officio indictments. Informations in relation to the Bounty charges had been laid in April 1974 against the Bartons and extradition proceedings against them in Paraguay had been initiated in November 1974. No committal proceedings took place with respect to these charges in the intervening years during which the Bartons were overseas. Committal proceedings took place before a magistrate in accordance with the Justices Act on the informations which charged the offences later charged in the Harbourside indictment. After the magistrate had ruled that the informant had made out a prima facie case, the Bartons went into evidence and closed their case on 29 September 1978. Mr. Hughes Q.C. for the informant, then stated that he would call Sir Peter Abeles in reply on the resumption of the hearing. When the hearing was resumed on 23 October 1978, Mr. Hughes informed the magistrate that an ex officio indictment had that day been filed by the Attorney-General in the Supreme Court. Mr. Hughes requested that the informations be withdrawn and dismissed. The magistrate acceded to the request, granted leave to withdraw the informations and marked them "withdrawn and dismissed". The magistrate did not consider whether the evidence was sufficient to warrant the Bartons being put on trial or whether the evidence raised a strong or probable presumption of guilt (Justices Act, s. 41 (6)). On the same day the Attorney-General filed his Bounty indictment as well as his ex officio Harbourside indictment. Committal proceedings had not commenced on the informations which charged the offences later to be charged in the Bounty indictment when the Attorney-General filed that indictment. On the same day the magistrate was informed that the informant proposed to ask for leave to withdraw the Bounty informations. They also were withdrawn by leave and dismissed in February 1979. (at p86)

4. The appellants first moved to quash the Bounty indictment and the Harbourside indictment and for a stay of proceedings on both indictments. Before argument was heard on these motions the Bartons commenced proceedings in the Equity Division of the Supreme Court of New South Wales for declaratory relief the substance of which was that the indictments were invalid, and for an injunction restraining further proceedings on the indictments. The Attorney-General and Gruzman were joined as the defendants in the statement of claim. The Attorney-General moved to strike out the statement of claim on the ground that it was vexatious and an abuse of process and on the further ground that there was a want of jurisdiction. O'Brien J., who heard this motion, ordered that the Bartons' suit be dismissed. The Court of Appeal then granted leave to appeal from the order dismissing the suit. (at p86)

5. The motions to quash and for a stay then came before O'Brien J. He considered only the motion relating to the Bounty indictment because the Bartons had not been arraigned on the Harbourside indictment. What is more, his Honour's lengthy judgment (which incorporates his reasons in the Equity proceedings) deals only with that indictment. The formal order which followed delivery of judgment and records the dismissal of "The motions to quash the indictments herein and each of them" and the dismissal of "The applications for a stay of proceedings on indictments" does not make this clear. (at p87)

6. Subsequently when the appeal from the dismissal of the Equity proceedings came before the Court of Appeal, that Court revoked the leave to appeal which it had granted earlier. It did so evidently on the ground that the Criminal Court had held the indictments to be good and valid and that there would be no utility in dealing with the Equity judgment on its own. It seems that the Court of Appeal thought that the second judgment of O'Brien J. dealt with motions to quash both indictments. (at p87)

7. The appeals to this Court have been brought pursuant to special leave. The first appeal (No. 32 of 1980) is by the Bartons against the order dismissing the motions to quash the indictments and for a stay. The second appeal (No. 53 of 1980), again by the Bartons, is against the order dismissing the Equity proceedings and against the Court of Appeal's order revoking leave to appeal. The third appeal (No. 33 of 1980) is by Gruzman against the order dismissing the motion to quash and for a stay of the Bounty indictment. (at p87)

8. The effect of the filing of the two ex officio indictments, if they be valid, was to bring the appellants to trial without any preliminary committal proceedings except in so far as such proceedings had earlier taken place on the earlier informations against the Bartons on the Harbourside charges. The effect of the filing of the Harbourside indictment was to deprive the Bartons of the possibility that the magistrate would find that on the evidence they ought not to be put upon trial - see s. 41 (6) of the Justices Act. The appellants sought to draw some support from the fact that a magistrate had earlier, at the conclusion of committal proceedings, discharged the Bartons on another information alleging that they had as directors made false statements with intent to defraud contrary to s. 176 of the Crimes Act and that they made false and misleading statements with respect of securities in relation to Brins General Insurance Co. Ltd. contrary to s. 73 of the Securities Industry Act 1970 (N.S.W.) and that the Attorney-General had not in that case proceeded to file an ex officio indictment. It was said that they had hoped to secure a similar result at the conclusion of the Harbourside committal proceedings and that the cup had been dashed from their lips by the sudden and unheralded filing of the ex officio indictment. The Brins charges to which we have just referred are quite distinct from the Brins charges in the Harbourside indictment. (at p87)

9. The appellants' case is that the ex officio indictments are invalid and that they were presented for an improper and unlawful purpose, capriciously or arbitrarily or at the direction of the Premier, and that they caused prejudice to the appellants which the Supreme Court has power to remedy. One allegation is that the ex officio indictments were filed so as to give effect to Sir Peter Abeles' wish that he should not be called as a witness, to avoid the possibility that the magistrate would decline to commit the Bartons for trial on the Harbourside infromations if Sir Peter was not called as a witness, and to deprive the accused of the benefit of completed committal proceedings on both indictments. Another allegation is that what the Attorney-General did was done at the direction of the Premier, involving no real exercise of discretion on the Attorney-General's part. The allegations were not admitted, but evidence was not taken because it was considered convenient to decide in the first instance whether there was any legal foundation for the challenge to the Attorney-General's actions. (at p88)

10. Power to prosecute offences by an information in his name is conferred upon the Attorney-General by s. 5 of the Australian Courts Act. It is expressed in these terms:
". . . Until further provision be made as herein-after directed for proceeding by juries, all crimes, misdemeanors, and offences, cognizable in the said courts respectively, shall be prosecuted by information in the name of his Majesty's attorney general, or other officer duly appointed for such purpose by the governor of New South Wales and Van Diemen's Land respectively . . ."

It is convenient also to note s. 6 which provides:
"Provided always . . . that it shall and may be lawful for any person or persons, by leave of the said supreme courts respectively first had and obtained, to exhibit a criminal information against any other person or persons in the name of the said attorney general, or of such other officer as aforesaid, for any crime or misdemeanor not punishable by death, by him or her or them committed, or alleged to have been committed; and in granting any rule for exhibiting any such criminal information the said court shall not be bound to require from the parties or party applying for the same any exculpatory affidavits, unless the justice of the particular case may to such courts appear to require that such affidavits should be first made; and any information so exhibited as aforesaid by leave of the court shall be heard, tried, and determined, in such and the same manner, in every respect, as any other informations are herein-before required to be heard, tried, and determined." (at p88)

11. Section 5 now needs to be read in conjunction with the provisions of Div. 1 of Pt IV of the Justices Act, which prescribes the procedure before Justices (now magistrates) in relation to indictable offences. An information is laid in any case in which a person has committed or is suspected to have committed any treason or other indictable offence (s. 21). A summons is then issued and served on the defendant requiring him to attend before a Justice or he is brought before a Justice under a warrant and the evidence for the prosecution is taken on oath in the manner provided by s. 36. Section 41 (2) provides that after all the evidence for the prosecution has been taken the Justice shall, if he is of opinion that such evidence is not sufficient to warrant the defendant being put upon his trial, forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry. The Justice shall, after taking all the evidence,(a) if he is of opinion on such evidence that the defendant ought not to be put upon his trial, order the defendant, if in custody, to be discharged as to that information; (b) if he is of opinion that the evidence is sufficient to warrant the defendant being put on his trial, or that the evidence raises a strong or probable presumption of guilt, commit the defendant for trial (s. 41 (6)). (at p89)

12. Usually it is after the defendant has been committed for trial that the Attorney-General decides whether he will file an indictment under s. 5 of the Australian Courts Act, but there is nothing to prevent the Attorney-General from filing an indictment before an information is laid or before committal proceedings under Div. 1 of Pt IV of the Justices Act have been commenced or completed. The Justices Act makes no provision for committal proceedings on an indictment. (at p89)

13. The appellants submit that the power conferred by s. 5 is a statutory power which is subject to review by the courts. They draw a distinction between this power and the prerogative or common law power of the Attorney-General in England to present an ex officio information, though they suggest that this power itself was subject to review by the courts. The appellants take their stand on the decision of Fox J. in Reg. v. Kent; Ex parte McIntosh (1970) 17 FLR 66 a decision which, it will emerge, does not give them all the support which they seek to extract from it. (at p89)

14. It is convenient now to look to the prerogative or common law power, because it is germane to the construction and effect of s. 5. In support of the claim that the prerogative power was subject to judicial review, the appellants relied on Reg. v. Prosser (1848) 11 Beav 306 (50 ER 834) . Correctly understood, this decision does not sustain and, indeed, denies, the appellants' proposition. There a patentee applied to the Chancery Court to stay proceedings on a scire facias to repeal the patent, or that a nolle prosequi might be entered on the ground (inter alia) that the Attorney-General was acting in collusion with other persons with a view to oppress the patentee. Lord Langdale M.R. held that the Court had no authority to interfere in the matter. He pointed out that the courts exercise over the Attorney-General as a litigant the powers exercisable in relation to all litigants and that he, like other litigants, would not be permitted to prosecute vexatious proceedings. (at p90)

15. The Master of the Rolls then said (1848) 11 Beav, at p 314 (50 ER, at p 838) :
"But the Attorney-General, proceeding regularly and being correct in such respects as these, conducts an action of scire facias, or permits it to be prosecuted, according to his own judgment and discretion, and may, when he thinks fit, stay the proceedings, or enter a nolle prosequi. The control is his . . . But I am of opinion that, in the ordinary course of proceeding, upon a writ of scire facias to repeal letters patent, it is within his discretion to determine upon what or upon whose information, or on what terms or security, he will permit the action to be prosecuted; and that the exercise of his discretion in the conduct of the action, is not subject to the control of the Courts in which the proceeding takes place." (at p90)

16. His Lordship rejected the argument based on Reg. v. Neilson (1842) Webster's PC, 665 that the Attorney-General's discretion was subject to judicial review by the Lord Chancellor and observed that when the Lord Chancellor "is acting as a Judge in the Court of Chancery, either on the common law or on the equity side, I am not aware of any authority which he has to interfere in matters which depend on the discretionary exercise of the Royal prerogative". (at p90)

17. Prosser (1848) 11 Beav 306 (50 ER 834) dealt, not with the prerogative power to present an ex officio information, but with the prerogative power to enter a nolle prosequi. None the less, there is no reason to doubt that the conclusion rests on the general principle that a prerogative power was not examinable by the courts. Lord Langdale drew a distinction, important for the present case, between the jurisdiction of the court to prevent, as for example by a stay of proceedings, proceedings by an Attorney-General which constituted an abuse of process because they were vexatious and the absence of jurisdiction to examine the exercise of a prerogative discretionary power by the Attorney-General. (at p90)

18. The decisions in Prosser and in the later case of Reg. v. Allen (1862) 1 B &S 850; (121 ER 929) , that the courts cannot review the Attorney-General's exercise of the prerogative power to enter or refuse a nolle prosequi, are in conformity with the principle that the courts cannot examine the exercise by the Attorney-General of his common law power to grant or refuse a fiat in connexion with a relator action (London County Council v. Attorney-General (1902) AC 165, at pp 168-169, 170 ; Gouriet v. Union of Post Office Workers (1978) AC 435, at p 488 ; Reg. v. Labouchere (1884) 12 QBD 320 ). (at p91)

19. On the one occasion in England when consideration was given to the question whether the courts could examine the Attorney-General's common law power to present an ex officio information, the question was answered in the negative. In Reg. v. Comptroller-General of Patents, Designs, and Trade Marks (1899) 1 QB 909, at p 914 A.L. Smith L.J. said:
"The issue of such an information is entirely in the discretion of the Attorney-General, and no one can set such an information aside . . . In Van Gelder's Patent (1888) 6 Rep Pat Cas 22, at p 28 the position of the Attorney-General in these matters is stated in the judgments in the Divisional Court and in the Court of Appeal. I will read a passage from the judgment of Bowen L.J.: 'At common law, the Attorney-General is, when he is exercising his functions as an officer of the Crown, in no case that I know of a court in the ordinary sense.' It follows that his decisions, when exercising such functions, were not subject to review by the Court of Queen's Bench, and are not now subject to review by the Queen's Bench Division or this Court." (at p91)

20. Professor Edwards in Law Officers of the Crown (at p. 289) says, with reference to the speech of the Earl of Halsbury L.C. in London County Council v. Attorney-General (1902) AC 165 :
"Indeed, Lord Halsbury might well have gone further and drawn the exact analogy between the Attorney's responsibility in instituting a relator's action and the exercise of his authority in those areas of criminal prosecutions, for example, nolle prosequi, 'consent' offences and ex officio informations, in which the senior Law Officer's fiat is the key which sets the machinery of justice in motion. In all these instances, embracing both civil and criminal proceedings, the Attorney-General is accountable not to the courts but to Parliament for the manner in which he discharges his discretionary authority." (at p91)

21. It has been doubted by some that the common law power to file an ex officio indictment applied to all misdemeanours. Blackstone thought that it was restricted to "such enormous misdemeanors, as peculiarly tend to disturb or endanger his (the King's) government, or to molest or affront him in the regular discharge of his royal functions" (Commentaries, 15th ed., vol. IV, p. 308). Halsbury's Laws of England, 2nd ed., vol. 9, p. 125 stated it was used "in case of some misdemeanours", but in the footnotes reference is made to Reg. v. Brown (1858) 7 Cox CC 442 in which an ex officio information charged the directors of a joint stock bank with the issue of a fraudulent balance sheet. The passage in Blackstone's Commentaries, vol. IV, p. 309, approved by Lord Coleridge C.J. in Labouchere (1884) 12 QBD, at p 330 related to ex officio informations issued by the Master of the Crown Office at the suit of private litigants. In such cases, as the judgment of Lord Coleridge C.J. demonstrates, the issue of the information was confined to instances in which the private litigant held a public office or position. (at p92)

22. The better opinion seems to be that the prerogative power to issue an information, otherwise than at the suit of a private litigant, extends to any misdemeanour (Stephen, Digest of the Law of Criminal Procedure, art. 198; Stephen, History of the Criminal Law of England, vol. 1, p. 294; Encyclopaedia of the Laws of England, vol. 6, p. 447). At the same time, it has been said that the issue of an information was "the more appropriate mode of prosecuting such misdemeanours as peculiarly tend to disturb or endanger the government, or to affront the sovereign in the discharge of the royal functions, delay being thereby avoided in the prosecution of such offences" (Encyclopaedia of the Laws of England, p. 447) and that the power "was commonly exercised in the case of offences likely to disturb the public peace or the established order of things" (Stephen, History of the Criminal Law of England, p. 296). Sir William Holdsworth in his History of English Law says that in the reign of Edward I, the King "could, by information . . . put a man on his trial for treason or felony" (vol. 9, p. 238), but that in consequence of later statues debarring the Curia Regis from hearing cases of treason and felony, the exercise of the power was confined to misdemeanours (p. 238). He specifically says, "There is, however, no reason to think that the king was unable to proceed by information for offences under the degree of felony" (p. 239). (at p92)

23. The purpose of s. 5 of the Australian Courts Act was to arm the Attorney-General for New South Wales and Crown Prosecutors appointed by him with a power in all respects similar to that enjoyed by the Attorney-General in England and to extend the exercise of the power to all offences, including felonies. The section was enacted because the customary mode of initiating criminal proceedings in England, by presentment of the grand jury, was unsuited, or thought to be unsuited, to conditions in the colony at that time. It was for this reason that the provision was transitory in form. (at p93)

24. The Supreme Court of New South Wales has always acted on the view that the exercise of the power is not examinable. As early as 1844 in Reg. v. Macdermott (1844) 1 Legge 236, at p 237 Stephen C.J., speaking for the Court, said of s. 5: "By this enactment, therefore, until the establishment of a Grand Jury, the powers and functions of that body are vested exclusively in one officer, without supervision, limitation, or control." In Reg. v. Cummings (1846) 1 Legge 289 , the Court initially granted leave under s. 6 to file a criminal information in the name of the Attorney-General, despite the fact that a magistrate refused to commit the defendant and the Attorney-General had then refused to prosecute. The Court made no reference to the principle that the Attorney-General's exercise of discretion was not examinable, perhaps because the Court considered that it had an independent jurisdiction under s. 6. The Attorney-General then filed an ex officio application to stay proceedings on the information. Stephen C.J. said (1846) 1 Legge, at p 292 : that "the Imperial Legislature, instead of conferring upon the Attorney-General any of the powers of a grand jury, or of imposing upon him any of the duties of such a body, had expressly declared that until their establishment in the colony all offences should be prosecuted by informations in his name. The Attorney-General was therefore placed in lieu of a grand jury, and he was not to make presentments in the way that a grand jury would have done, but to file informations in the ordinary manner as in cases of misdemeanor." See also Reg. v. Walton (1851) 1 Legge 706, at p 707 . In R v. Baxter (1904) 5 SR (NSW) 134, at p 135 , it was recognized that a Crown Prosecutor, like the Attorney-General, had power to file an indictment at Quarter Sessions in the absence of a committal or preliminary investigation. In Reg. v. McKaye (1885) 6 NSWR 123 , which was a case on s. 6, the Full Court held that, where a person had been committed for trial by a magistrate, and the Attorney-General had afterwards refused to file an information, the court would not act as a court of appeal from his decision by directing a criminal information to be filed. (at p94)

25. The appellants contest this view of s. 5. They say that because the power is statutory, its exercise is necessarily examinable by the courts. This they put as a general principle applying to all statutory powers. They then seek to reinforce it by saying that a prerogative power is no longer exercisable once it is regulated by statute, and by asserting that it could not have been intended to make the exercise of power by Crown Prosecutors immune from judicial review. (at p94)

26. It is not correct to say that the exercise of every power given by statute is examinable by the courts in the manner suggested by the appellants. It is correct to say that in cases where a statute confers an administrative discretion which is unlimited in terms, the court must concede to the repository a discretion unlimited by anything but the scope and object of the statute. As Dixon J. said in Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505 , before the court can say that a particular consideration is extraneous to the power "there must be some warrant in the provisions, the nature or the subject matter of the statute". See also Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at p 758 . (at p94)

27. The provision made by s. 5 is very different from an ordinary administrative discretion conferred by statute. The section is a self-contained provision the scope of which is unaffected by other provisions in the statute. It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted. All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review. (at p94)

28. All this indicates that Parliament intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General in England acting on behalf of the Crown. The function which the Attorney performs in commencing prosecutions is one that otherwise was performed by the grand jury whose decisions were not subject to judicial review except for matters going to essential regularity. (at p94)

29. It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v. Director of Public Prosecutions (1964) AC 1254 and Director of Public Prosecutions v. Humphreys (1977) AC 1 , to which we shall refer shortly - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of judicial review of the Attorney's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with. (at p95)

30. In Kent's Case (1970) 17 FLR 65 , Fox J. seems to have taken a rather different view. He was considering s. 53 of the Australian Capital Territory Supreme Court Act 1933, as amended, which by sub-s. (1) provides that an indictable offence triable before the Supreme Court shall be prosecuted in the name of the Attorney-General or of such other person as the Governor-General appoints in that behalf, and by sub-s. (2) enables the Attorney-General to file an information without examination or commitment for trial of the accused person. His Honour said (1970) 17 FLR, at p 89 :
"For present purposes, I am prepared to assume that the power under s. 53 (2) is unlimited, in the sense that it may be used in any type of case (except where by statute, such as the Defamation Act, 1909, other provision is made) and on any grounds which the Attorney-General may think proper. Its exercise is reviewable, but on the assumption made, only in the relatively limited situations (such as where the power has been exercised capriciously or for an unlawful purpose) in which the Court has supervisory jurisdiction over the exercise of statutory powers."
It seems that this approach did no more than reflect a concession made by counsel appearing for the Crown, for his Honour, in referring to counsel for the Crown, said (1970) 17 FLR, at p 79 : ". . . the starting point of his submissions were claims that the filing of the ex officio information was within power and that the power had not been exercised arbitrarily or capriciously". (at p95)

31. It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. The distinction between the court's lack of power to review the Attorney's decision whether to commence proceedings or not and the court's power to control its proceedings was central to the judgment of Lord Langdale in Reg v. Prosser (1848) 11 Beav 306 (50 ER 834) . The course which Fox J. took in Kent (1970) 17 FLR 65 when he ultimately discharged the accused on the ground that there had been no preliminary examination is to be supported, not on the basis that the Attorney-General's decision to prosecute was invalid, but on the footing that the accused would not receive a fair trial without a preliminary examination. (at p96)

32. There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. As a result of the speeches in Connelly v. Director of Public Prosecutions (1964) AC 1254 and Director of Public Prosecutions v. Humphrys (1977) AC 1 , it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds. See especially the speeches of Lord Reid, Lord Devlin and Lord Pearce in Connelly (1964) AC, at pp 1296, 1347-1353, 1361-1362 , and the speeches of Lord Salmon and Lord Edmund Davies in Humphrys (1977) AC, at pp 46, 53-55 . The House of Lords has thereby affirmed the observation of Lord Parker C.J. in Mills v. Cooper (1967) 2 QB 459, at p 467 , "every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court", and rejected the more restricted view of Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes (1954) 1 QB 1, at p 6 . The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for damages for malicious prosecution has been emphatically rejected, as indeed it should be. (at p97)

33. The High Court of Australia has not yet had to decide whether the power of the courts to prevent an abuse of process extends so far. But the courts in this country have not hesitated to assert that they possess power to do justice to an accused person, who has been deprived of the benefit of committal proceedings, by discharging him, as Fox J. did in Kent (1970) 17 FLR 65 , or by staying the trial until a preliminary examination takes place, as Higinbotham J. suggested in Reg. v. Martin (1884) 10 VLR (L) 343 . His Honour said (1884) 10 VLR (L), at p 346 :
". . . it is not the practice of the Crown to employ against a prisoner on his trial evidence which was not suggested in the proceedings before the magistrates. Even if it could be conceived that the Crown could be induced to take such a monstrous course as the example suggested, of presenting for murder a prisoner who had been committed for perjury only, the judge at the trial has ample powers to interfere in the prisoner's behalf, as by postponement, or calling on the Crown to elect between its charges. There are ample safeguards against any possible injury resulting from any abuse of the unlimited powers which belong to the Crown in this respect." (at p97)

34. More recently, in Reg. v. Fazzari Unreported; 8 December 1977. , the New South Wales Court of Criminal Appeal set aside a conviction and ordered a new trial when it appeared that the accused had been convicted on an ex officio indictment, there having been no prior committal proceedings with respect to the offence in question, in circumstances where the Court considered that the accused should have had the benefit of a separate trial instead of being tried jointly, as he was, with a co-accused. Street C.J. spoke of the absence of committal proceedings as a "departure from ordinary practice". Lee J. referred to it as "such a substantial departure from well recognised and established practice, that it resulted in the subsequent trial and conviction . . . being a miscarriage of justice". Yeldham J. described it as "a serious procedural irregularity". (at p97)

35. Mr. Shand, for the Attorney-General, does not contest the existence of a power in the courts to stay criminal proceedings in those very exceptional cases where it may transpire that there is an abuse of process, but he vigorously disputes the proposition that the mere absence of committal proceedings gives rise to such an abuse. He does not contend that a preliminary examination could not take place once an ex officio indictment is filed, though, as we have already noticed, the Justices Act contains no provision for such an examination on such an indictment. Instead, it contemplates committal proceedings as a preliminary to indictment. However, there seems to be no reason why an information could not be laid even at this stage so as to enable such proceedings to take place. They could continue so long as no action is taken under s. 25 (2) of the Justices Act. (at p98)

36. Mr. Shand says that in two cases at least it is acknowledged that a conviction obtained on indictment without committal proceedings is not an abuse of process. One such case is when the accused pleads guilty; the other is when a magistrate, having heard the evidence, directs that the accused be committed for trial on an offence, supported by the evidence, differing from that initially charged. There are, of course, obvious reasons why there is no unfairness in allowing the proceedings to continue in such cases without a preliminary examination. (at p98)

37. Then Mr. Shand says that there can be no unfairness to the accused in dispensing with committal proceedings because the nature and purpose of such proceedings, as provided for in the Justices Act, is merely to ensure that "no one shall stand his trial unless a prima facie case has been made out" (Reg. v. Epping and Harlow Justices; Ex parte Massaro (1973) QB 433, at p 435 , per Lord Widgery C.J.). See also In re Van Beelen (1974) 9 SASR 163, at pp 244-247 . Similarly, in Moss v. Brown (1979) 1 NSWLR 114 , the Court of Appeal held (1) that the nature and purpose of a magisterial inquiry, as provided for in s. 41 of the Justices Act, is to receive, examine and permit the testing of evidence introduced by the prosecutor, in order to determine whether there is sufficient evidence to warrant the person charged being put on trial and, if not, to discharge that person; and (2) that it is no part of the function of the inquiry to ensure that the tactical objectives of either party are served. The consequence was that it was not open to the defendants to argue that the magistrate, by not serving these objectives, had so conducted the inquirey as to deny them justice. At the same time, the Court of Appeal expressly recognized (1979) 1 NSWLR, at p 126 that, if material not presented at the inquiry was used at the trial in a manner which was unfair to the accused, the trial judge would have power to deal with the situation. (at p99)

38. These cases do not establish that there can be no unfairness or abuse of process in proceeding to trial without a preliminary examination. On the contrary, they show that the principal purpose of that examination is to ensure that the accused will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt (Justices Act, s. 41 (6)). For this reason, apart from any other, committal proceedings constitute an important element in the protection which the criminal process gives to an accused person. (at p99)

39. The scope of this protection is diminished to some extent by the circumstance that the Attorney-General can file an ex officio indictment after the magistrate has found that there is no prima facie case or after he has discharged the accused (Commonwealth Life Assurance Society Ltd. v. Smith (1938) 59 CLR 527, at p 538 ). But in general, once the magistrate has so found, that is an end of the matter, this case being a rare exception to the general rule. (at p99)

40. Lord Devlin in The Criminal Prosecution in England was able to describe committal proceedings as "an essential safeguard against wanton or misconceived prosecutions" (p.92) (emphasis added). This comment reflects the nature of committal proceedings and the protection which they give to the accused, viz. the need for the Crown witnesses to give their evidence on oath, the opportunity to cross-examine, to present a case and the possibility that the magistrate will not commit. Mr. Shand submits that the same purpose can be achieved by the supply of particulars and the delivery of copies of proofs of evidence. This is the course which is followed when the Crown decides to call at the trial a witness whose depositions were not before the magistrate. But it is one thing to supplement the evidence given before a magistrate by furnishing a copy of a proof; it is another thing to deprive the accused of the benefit of any committal proceedings at all. In such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath; (2) the opportunity of cross-examining them; (3) the opportunity of calling evidence in rebuttal; and (4) the possibility that the magistrate will hold that there is no prima facie case or that the evidence is insufficient to put him on trial or that there is no strong or probably presumption of guilt. (at p99)

41. The deprivation of these advantages is, as the judges observed in Fazzari and as Fox J. noted in Kent (1970) 17 FLR 65 , a serious departure from the ordinary course of criminal justice. Moreover, it is one which, if it takes place at all, takes place rarely. One of the few occasions on which it occurred in New South Wales was in R. v. Woolcott Forbes (1944) 44 SR (NSW) 333 , when an ex officio indictment was filed. Though there was no preliminary examination, there had been a variety of proceedings concerning the accused and matters related to the trial and there had been two sets of extradition proceedings relating to the charges for which he was tried. More recently, ex officio indictments have been filed in Queensland and Western Australia: Reg. v. Judge Grant Taylor; Ex parte Johnson Unreported; 30 November 1979. ; and Reg. v. District Court Judges; Ex parte Booy Unreported; 12 July 1979. . (at p100)

42. Although the Administration of Justice (Miscellaneous Provisions) Act 1938 abolished criminal informations in the United Kingdom, it excluded "informations filed ex officio" by the Attorney-General (s.12). Despite this, we are told that the last occasion on which a trial took place on such an information without a preliminary examination in England was in 1911 in R. v. Mylius The Times, 2 February 1911. when Sir Rufus Isaacs laid an ex officio information charging the accused with a criminal libel on King George V in asserting that he had committed bigamy. (at p100)

43. We are not impressed by the argument that because in the distant past the courts proceeded to hear trials on ex officio indictments without benefit of a preliminary examination, it necessarily follows that we should take the same course today or that there is no element of injustice in forcing an accused to trial without such an examination. It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. For us to say, as has been suggested, that the courts are concerned only with the conduct of the trial itself, considered quite independently of the committal proceedings, would be to turn our backs on the development of the criminal process and to ignore the function of the preliminary examination and its relationship to the trial. To deny an accused the benefit of committal proceedings is to deprive him of a valuable protection uniformly available to other accused persons, which is of great advantage to him, whether in terminating the proceedings before trial or at the trial. (at p101)

44. It is for the courts, not the Attorney-General, to decide in the last resort whether the justice of the case requires that a trial should proceed in the absence of committal proceedings. It is not for the courts to abdicate that function to the Attorney-General, let alone to Crown Prosecutors whom he may appoint. We need to recall that the commencement of prosecutions is in very many cases left to Crown Prosecutors. It is quite impossible for an Attorney-General to deal personally with the question except in a minority of cases and then in accordance with advice tendered to him by officers who are acquainted with the materials. If the courts were to abdicate the function, there is the distinct possibility that the ex officio indictment, so recently awakened from its long slumber, would become an active instrument, even in cases in which it has not been employed in the past, notwithstanding the vigorous criticism which has been directed to it and the assertions of commentators that it was appropriate for use only in a very limited category of cases. (at p101)

45. However, in deciding whether the trial on the Bounty indictment should proceed in the absence of a preliminary examination, we have to determine where on balance the interests of justice lie. We must have regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused. The nature of the charge (as in Mylius The Times, 2 February 1911. ) or some other exceptional circumstance may justify the suggested departure from the ordinary course of criminal justice. The reasons given by the Attorney-General to the magistrate through Mr. Hughes Q.C. for dispensing with the committal proceedings on the Bounty indictment centre very largely on the desirability of bringing the case to trial with the least possible delay, a very long time having elapsed since the informations were initially laid in April 1974 and since extradition proceedings were first initiated in Paraguay in November 1974, and the difficulties associated with securing attendance of overseas witnesses at committal proceedings and at a trial, both of which are estimated to take a long time. (at p101)

46. On the other hand, the principal offence charged in the Bounty indictment is that of conspiracy to cheat and defraud. The problems associated with the offence of conspiracy are well known. They are not diminished in this case by the nature of the particulars which have been supplied by the Crown. The facts alleged are complex and, on the face of it, much is to be said in favour of the submission by Gruzman's counsel that committal proceedings are needed to clarify some elements in the case, particularly the suggestion that more than conspiracy is alleged. (at p102)

47. It is, however, premature to arrive at a final conclusion on the materials before us. Essentially the case has been argued on the footing that the facts will be examined later in the event that the Court is found to have power to quash the indictment or to stay proceedings. At this stage it is sufficient to say that the Supreme Court has power to stay proceedings on the information until a preliminary examination takes place. Whether such a stay should be granted depends upon a weighing up of the relevant interests which are at stake - on the one hand, the accuseds' interest in obtaining a fair trial, and on the other hand, the Crown's interest in bringing the accused to trial on serious charges which will require to be proved by the testimony of overseas witnesses. (at p102)

48. We have earlier expressed our reservations about the challenge to the Harbourside indictment. In theory at least, the Supreme Court also has power to stay proceedings on this indictment. But the trial judge seems not to have considered it. Further, as we have been informed by counsel that the whole of the available evidence, except perhaps that of Sir Peter Abeles, was tendered to the magistrate, the only prejudice sustained by the accused is that they were denied the possibility that the magistrate would hold that there was no strong or probable presumption of guilt. As such a finding would not have prevented the Attorney-General from filing his ex officio indictment, though it might have carried some weight with him, the trial judge would not be justified in staying the proceedings until the magistrate made his finding. We think that we should infer that the Attorney-General made his decision to prosecute, knowing that the evidence before the magistrate had been taken, and with knowledge of that evidence. The circumstances do not in our opinion disclose that there has been an abuse of process in relation to the Harbourside indictment or that the accused have suffered such prejudice as to warrant a stay of proceedings on that indictment. (at p102)

49. We do not find it necessary to deal with submissions which were designed to show that the Supreme Court in its Equity Division was without jurisdiction or power to grant relief. Our conclusion that the Attorney-General's decision to prosecute is not examinable disposes of the case for equitable relief by way of declaration or injunction. Relief by way of stay of proceedings is a matter for the Supreme Court in its Criminal Law Division. (at p103)

50. In the result we would dismiss the Bartons' appeal against the order dismissing the Equity proceedings (No. 53 of 1980). We would allow the other two appeals to the extent to which they relate to the motion to stay proceedings on the Bounty indictment and we would remit the matter back to the Supreme Court of New South Wales in its Criminal Law Division to decide whether a stay should be granted. (at p103)

STEPHEN J. I have had the advantage of reading the joint judgment of Gibbs and Mason JJ. I agree that, for the reasons there stated, the filing of an ex officio indictment by the Attorney-General is not subject to judicial review but that the courts do have a power to postpone or stay the trial on such an indictment where necessary to ensure that the accused receives a fair trial. (at p103)

2. One of the appellants' contentions is that an essential pre-condition of a fair trial is that it should be preceded by committal proceedings. For this proposition they rely upon the decision of Fox J. in Reg. v. Kent; Ex parte McIntosh (1970) 17 FLR 65 , upon Reg. v. Martin (1884) 10 VLR 343 and upon the unreported decision of the New South Wales Court of Criminal Appeal in Reg. v. Fazzari Unreported; 8 December 1977. . In Kent's Case there had been no prior committal proceedings and Fox J. discharged the accused; in Martin's Case dicta are said to lend support to the appellants' contention; the same is said of Fazzari's Case. (at p103)

3. The view adopted in Kent's Case, that it was open to a court to review the action of the Attorney-General in filing an ex officio indictment, has been shown by my brothers' joint judgment to be erroneous. That view appears to me to have infected all that his Honour did in that case, vitiating the authority of other aspects of the decision. (at p103)

4. I do not read Martin's Case (1884) 10 VLR 343 as providing any support for the appellants' proposition. The accused was presented upon a charge different from that on which he had been committed for trial. Higinbotham J., in denying any limit to the power of the Attorney-General to present for trial on any charge, postulated, as an extreme example, committal on a charge of perjury followed by presentment for murder. Were "such a monstrous course" to be adopted, his Honour said that the trial judge would have "ample powers to interfere in the prisoner's behalf, as by postponement, or calling on the Crown to elect between its charges" (1884) 10 VLR, at p 346 . I do not understand his Honour as saying more than that by such a postponement the prisoner might be given time to prepare his defence to the new charge. That is certainly what Williams J., the other member of the Court who delivered reasons for judgment, had in mind: he said that such a situation could be met "by a postponement to enable him to prepare another defence". To suggest such a course denies rather than supports the view that failure to charge the accused at the committal proceedings with the same crime as that for which he is later indicted calls for a stay until after fresh committal proceedings; all that his Honour thought necessary was to grant sufficient time to prepare another defence. (at p104)

5. In Fazzari Unreported; 8 December 1977. the absence of prior committal proceedings on the charge in respect of which the accused was later tried weighed heavily with the Court of Criminal Appeal in quashing the conviction. There was, however, another important factor, the denial of a separate trial. As Yeldham J. put it:
"The absence of any committal proceedings in relation to that charge . . . constituted, in my view, a serious procedural irregularity. This irregularity taken with the denial of a separate trial in respect of that charge, gave rise to a miscarriage of justice".
The two other members of the Court, while strongly critical of the absence of any relevant committal proceedings, also relied upon the fact of joint trial, regarding these two factors in conjunction as requiring that the appeal be allowed. (at p104)

6. The fair trial of an accused does not, in my view, require as an essential prerequisite that it should be preceded by committal proceedings. The contrary view would place a significant practical qualification upon the Attorney-General's unexaminable power to file ex officio indictments, a power which applies to ex officio indictments generally without distinguishing between those filed after discharge by a committing magistrate and those filed in the absence of any committal proceedings. It is one thing freely to acknowledge that power while retaining for the courts the not inconsistent duty of ensuring that in each individual case the accused has a fair trial; it is quite another to treat the Attorney-General's power as never properly exercised in the absence of prior committal proceedings. (at p104)

7. Their absence will, however, always call for a careful evaluation by the trial court of all the circumstances, lest the consequent prejudice to the accused should be such as to have deprived him of a fair trial. Committal proceedings are an important part of the protection ordinarily afforded to an accused in the criminal process and for the accused to be deprived of them necessarily puts a court upon enquiry. (at p105)

8. To assess what weight a court, in making its evaluation, should give to the absence of committal proceedings requires some analysis of the detriments which their absence occasions to an accused. The most obvious detriment is the loss of the opportunity of being discharged by the committing magistrate. However, in evaluating the extent of this detriment, three factors play their part. First, failure to commit never guarantees, although it no doubt makes it very likely, that no trial will follow: the Attorney-General always retains the power to file an ex officio indictment notwithstanding discharge. Indeed, a case of so unusual a nature as to cause an Attorney-General to file an indictment without prior committal may well be just the sort of case in which, had there instead been prior committal proceedings resulting in discharge, the Attorney-General would nevertheless have proceeded on indictment. Secondly, although the outcome of committal proceedings is of importance, their primary function is not that of a contest between parties; the relative infrequency with which the accused tenders evidence demonstrates this. Thirdly, as in the case of the present Bounty indictment, the evidence which the Crown proposes to tender at the trial may, when application is made for a stay of the trial, be then seen to be such as to make it most unlikely that on any committal proceedings the Crown would fail to make out a prima facie case against the appellants. (at p105)

9. These factors may, and in the present case do, mean that loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused. (at p105)

10. An accused also loses the opportunity of gaining relatively precise knowledge of the case against him and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross-examination. A court, in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effect of the first two of these losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence. But the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown's evidence. It is likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused. (at p106)

11. The considerations which, on an evaluation, weigh on the other side of the scales, lending weight to the Crown's opposition to a stay, will no doubt be as various as are the circumstances of each case. Each will require separate assessment, their combined weight then being balanced against the detriments to the accused. However in the balancing process the existence of the Attorney-General's right to file an ex officio indictment without prior committal proceedings must not be lost sight of. Its existence means that the mere absence of committal proceedings, although necessarily involving loss of the opportunity to cross-examine Crown witnesses before the trial, will not of itself suffice as grounds for a stay. However, circumstances which make that loss particularly prejudicial to the accused must weigh heavily in favour of a stay. (at p106)

12. What I have said above is, of course, primarily directed to the present case, concerned with New South Wales procedures. It may be that somewhat different considerations will apply in other States, particularly where there exist committal procedures different from those which apply in New South Wales. (at p106)

13. Because argument on these appeals concentrated upon questions of principle rather than upon any evaluation of the balance of competing interests, I agree that the appropriate course in the case of the Bounty indictment is remission to the Criminal Law Division of the Supreme Court of New South Wales, as proposed in the joint judgment of Gibbs and Mason JJ. In the case of the Harbourside indictment I regard remission as unnecessary. This Court can readily enough itself conclude that in that case the trial should not be stayed. The accused have already had the opportunity of full cross-examination of all but one of the Crown witnesses and the evidence led by the Crown at the aborted committal proceedings appears to have been such as to make their discharge by a committing magistrate improbable. (at p106)

14. I concur in the orders proposed in the joint judgment of Gibbs and Mason JJ. (at p106)

MURPHY J. These appeals are not concerned with the appellants' guilt or innocence, but solely with important questions of procedure. The answers to which are, in my opinion, clear. I agree generally with Wilson J. (at p106)

2. The Attorney-General for New South Wales can issue an ex officio indictment although there has been no previous committal proceeding. The decisions on this point are conclusive. (at p107)

3. The Attorney-General is not examinable in any court for alleged absence of good faith or for considering extraneous matters in filing an indictment. In Commonwealth Life Assurance Society Ltd. v. Smith (1938) 59 CLR, at p 539 the majority of the court referred to "a general rule which prevents imputations in one proceeding against the justice of another proceeding already pending or of a judical determination still standing" and cited the statement by Willes J. in Gilding v. Eyre (1861) 10 CB (NS) 592, at p 604 (142 ER 584, at p 589) that:
"It is a rule of law, that no one shall be allowed to allege of a still depending suit that it is unjust. This can only be decided by a judical determination, or other final event of the suit in the regular course of it. That is the reason given in the cases which established the doctrine, that, in actions for a malicious arrest or prosecution, or the like, it is requisite to state in the declaration the determination of the former suit in favour of the plaintiff because want of probable cause cannot otherwise be properly alleged." (at p107)

4. Where a criminal charge has been preferred by either the Attorney-General, another official, or a private person, it is not open to the defendant to commence proceedings in another court alleging that the charge has been laid in bad faith, or on account of extraneous considerations or other such ground. The equity proceedings were bad and should have been summarily dismissed. (at p107)

5. Every court hearing criminal proceedings has power to control those proceedings in order to avoid injustice; where necessary, it may stay proceedings. In McInnis v. The Queen (1980) 143 CLR 575 , I expressed the view that a court should do so until legal representation was provided for an accused who could not afford it, at least in serious cases. Trial by jury without previous committal proceedings can and should be stayed until the accused has been given discovery by proper particulars and notice of the evidence to be tendered against him. But this does not entitle any court to decline to proceed on an indictment filed by the Attorney-General until there have been committal proceedings. This would be to deny in substance the Attorney-General's right to file an ex officio indictment. (at p107)

6. In several Australian cases, observations have been made on the desirability of committal proceedings (see Reg. v. Kent; Ex parte McIntosh (1970) 17 FLR 65 ; Reg. v. Fazzari Unreported; N.S.W. Court of Criminal Appeal; 8 December 1977. ). There were no committal proceedings in England for several hundred years until 1933. The grand jury met in private and heard evidence in the absence of the suspect who was not notified and therefore had no opportunity to hear, let alone examine, witnesses. The Attorney-General is the successor in New South Wales to the grand jury. He can file indictments for all offences (felonies as well as misdemeanours). The desirability of committal proceedings in modern times is doubtful, at least in certain kinds of cases. A trend has developed in New South Wales in which conspiracy, fraud, and various corporate charges become delayed because of committal proceedings which go on for months or years. These are often interrupted with excursions into the Supreme Court for rulings on points of law or procedure. This not only tends to improperly frustrate prosecutions, but also can result in embarrassment and oppression to defendants. While I do not criticise the magistrates who unfortunately have to preside over them, such committal proceedings have become a disgrace to the administration of criminal justice in New South Wales. (at p108)

7. The Law Reform Commission of Canada in 1974 recommended the abolition of the committal proceeding, describing it as a cumbersome and expensive vehicle for obtaining discovery, which could be achieved by procedures specifically designed for that purpose (see J. Seymour, Committal for Trial, an Analysis of Australian Law together with an Outline of British and American Procedures, Australian Institute of Criminology (1978)). It also proposed that the function of screening out those cases where there is no prima facie evidence of guilt be dealt with by a simple motion procedure based on the statements of evidence supplied to the accused. This procedure could be applied generally, not merely in indictable cases. In Scotland there are no committal hearings like those in New South Wales; committal for trial is on the ex parte motion of the prosecutor. In New South Wales (but not in other parts of Australia), the committal procedure requires an oral presentation of the evidence of all witnesses. As Seymour concluded, at p. 109, "It does seem a little late in the day to proclaim the indispensability of the oral hearing. In each jurisdiction except New South Wales it is possible for a defendant to be committed for trial on the basis of written statements. In four States this can be achieved without magisterial consideration of the sufficiency of the evidence. The view that all cases should be screened before a jury trial takes place now commands less support than it did." (at p109)

8. Committal procedures apply only to indictable offences which are a small proportion of all criminal cases. In recent years, there has been a marked trend in Australia to turn indictable offences into summary ones, and in the creation of new offences, to make them summary rather than indictable. This trend is undoubtedly influenced by the fact that procedure by way of indictment (apart from ex officio indictments) involves committal proceedings. The trend to replace indictable offences by summary ones seriously erodes the institution of trial by jury, which is the most important safeguard for the liberties of the people. It would be much better to abandon committal proceedings and to protect an accused by discovery (particulars and notice of evidence and a simpler screening process) than to allow trial by jury to be undermined further. (at p109)

9. The appeals should be dismissed. (at p109)

AICKIN J. In these appeals I have had the advantage of reading the joint reasons for judgment prepared by Gibbs and Mason JJ. I agree with those reasons and the conclusions which follow therefrom. There is nothing which I can usefully add. (at p109)

2. I also agree with the orders which they propose. (at p109)

WILSON J. I have had the advantage of reading the reasons for judgment prepared by Gibbs and Mason JJ. The history of the case and the circumstances in which it comes to this Court are there set out. With respect, I adopt their Honours' review of the early development of the relevant law, and I agree with their conclusions to the effect that: (a) the decision of the Attorney-General to file an ex officio indictment is not subject to judicial review, and that consequently the appeal from the decision of O'Brien J. in the Equity Division of the Supreme Court of New South Wales and from his refusal to accede to the motion to quash the indictment should be dismissed; and (b) the courts may postpone or stay the trial on any indictment in circumstances where such action is necessary to prevent an abuse of process and ensure a fair trial for the accused person. However, I am unable to agree with their Honours that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. In particular, I am unable to conclude that there is any ground in the present case on which O'Brien J. could properly have granted a stay of proceedings on the Bounty indictment until such time as committal proceedings were held, and would therefore dismiss the appeals from this decision also. In the case of the Harbourside indictment, Gibbs and Mason JJ. concluded that the circumstances do not disclose an abuse of process notwithstanding that the action of the Attorney-General denied to the accused the possibility that the magistrate would hold that there was no strong or probable presumption of guilt. Of course, in the light of the reasons which I am about to attempt to expound, I agree fully with that conclusion. (at p110)

2. Before I pass to a consideration of the question of abuse of process, I wish to make an observation in further support of the conclusion that the exercise of the discretion conferred by the statute to file an indictment is not open to review. Gibbs and Mason JJ. have indicated the scope of that discretion by reference to the well-known decisions of this Court in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746 and Browning's Case (1947) 74 CLR 492 . I find strong additional support for the conclusion in recalling the special nature of the power in question, and its historical context. It is clearly a statutory power. It exceeds the customary prerogative power of the Attorney-General in respect both of the range of offences to which it applies, and of the repository of the power. It extends to all indictable offences, thus including felonies within its reach, and it may be exercised by persons, other than the Attorney-General, authorized by the Governor to do so. Nevertheless, it is a very distinctive type of statutory power, retaining in its relationship to the process of criminal justice something of the nature of a prerogative power. As such, it is a power which does not lend itself to supervision by the courts, including those courts whose jurisdiction relates to the trial of proceedings so initiated. If I may say so with respect, there is much wisdom in these words of Lord Dilhorne in Reg. v. Humphrys (1977) AC, at p 26 :
"A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not hink it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval."
In this regard, Lord Salmon, in the same case, although in vigorous disagreement with Lord Dilhorne in relation to another point, said (1977) AC, at p 46 :
"I respectfully agree . . . that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that as a matter of policy, it ought not to have been brought."
cf. also Gouriet v. Union of Post Office Workers (1978) AC 435, at pp 487, 490 . (at p111)

3. But, of course, these dicta do not touch the question of alleged abuse of process which is at the heart of the motions to stay the trial until committal proceedings have been held. I come now to that question. As I have already indicated, I am unable on the materials before us to discern any basis on which it can be said that to proceed to trial on the Bounty indictment would constitute an abuse of the process of the court. I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with in the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. A defect of this kind will ordinarily reside in the nature and content of the charge or charges contained in a particular indictment in the circumstances of the case. I find it more difficult to conceive of an abuse of process arising in cases based, not on a criticism of the charge itself, but on procedures that either have been or are proposed to be followed. These matters, of course, can have an important influence on the fairness of the trial, but they are matters in respect of which an accused can be protected by appropriate decisions of the trial judge bearing on the conduct of the trial. Since preparing this opinion my attention has been drawn to a recent decision of the House of Lords in the case of Reg. v. Sang (1980) AC 402 , in which some of their Lordships discuss the role of the judge in the criminal process in terms which are relevant to the issues raised in this case. Lord Scarman says (1980) AC, at pp 454-455 :
"The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority. He neither initiates nor stifles a prosecution. Save in the very rare situation, which is not this case, of an abuse of process of the court (against which every court is in duty bound to protect itself), the judge is concerned only with the conduct of the trial . . .".
The pertinent considerations include the following:
(a) It is not suggested before O'Brien J. or before us that the material contained in the statements of the witnesses which the Crown proposes to call does not amount to a prima facie case against each of the appellants.
(b) None of the appellants has been tried on any other offence arising out of the same facts. The case therefore bears no resemblance to the hypothetical situations which were under discussion by their Lordships in the House of Lords in Reg. v. Connelly (1964) AC 1254 (where Connelly, having had his conviction for murder quashed, was tried for robbery arising out of the same facts), and Reg. v. Humphrys (1977) AC 1 (where Humphrys, having been acquitted of driving while disqualified, was subsequently tried for perjury). Even in these cases, the later proceedings were not found to constitute an abuse of process, but some of their Lordships were able to conceive of an abuse in cases where an attempt was made to expose an accused person unnecessarily to successive trials on different offences arising out of the same circumstances. I do not see any warrant in the speeches of their Lordships in either of these cases for the proposition that for the Crown to proceed to trial on an ex officio indictment is an abuse of process merely because a committal proceeding has not been held.
(c) The course that has been followed is wholly consistent with the statute. The conduct of committal proceedings is not an essential condition precedent to the filing of an indictment. It would be remarkable, therefore, if the absence of such proceedings were to deprive that action of any practical effect.
(d) The committal proceeding is a procedure designed to facilitate the administration of criminal justice. It serves this purpose in two ways: in the first place, it marshals the evidence that is tendered on behalf of the informant in deposition form, a form which enables it to be perpetuated and be available for use at the trial in the event of the witness being dead or otherwise unavailable; in the second place, it requires the magistrate to be satisfied that the evidence establishes a prima facie case before the accused person is committed to stand trial: Reg. v. Epping and Harlow Justice; Ex parte Massaro (1973) 1 QB 433 .

(e) Although it will ordinarily do so, a committal proceeding is not designed to aid an accused person in the preparation of his defence: Moss v. Brown (1979) 1 NSWLR 114 . This is borne out by the established fact that the prosecution has a discretion as to the evidence it will tender in the committal proceedings. It is not obliged to produce all the evidence upon which the Crown may rely at the trial: cf. Ex parte Massaro.
(f) The result of the committal proceedings is not binding on the Attorney-General. If a person is committed for trial on one offence, the indictment may, in the discretion of the Attorney-General or other authorized officer, allege a different offence, or more than one offence. If the magistrate, believing that the evidence tendered by the informant does not constitute a prima facie case, discharges the accused person, the Attorney-General may nevertheless file an indictment: see R. v. Baxter (1904) 5 SR (NSW) 134 ; R. v. Durnin (1945) QWN 35 ; R. v. McConnon (1955) Tas SR 1 .
(g) Committal proceedings are quite distinct, both in fact and in law, from proceedings by way of trial on indictment. The Attorney-General or Crown Prosecutor will seldom control the institution or conduct of committal proceedings. In most cases, the informant will be a member of the police force, exercising a judgment and responsibility which is his, and his alone. In some cases, a private citizen may be the informant. Even if, as may be the case here, the Attorney-General happens also to be the Minister responsible for the Corporate Affairs Commission and consequently in a position to influence a decision to institute committal proceedings, that responsibility is quite distinct from his historic role in the initiation of a trial on indictment: cf. Edwards: Law Officers of the Crown, pp. 177 et seq. The notion seems somewhat surprising that a court may stay a trial on an indictment signed by the Attorney-General until some other proceeding is pursued for which he normally would have no responsibility.
(h) The fact that the power to indict without prior committal proceedings has rightly been sparingly used in past years cannot make its use an abuse of process per se. Indeed, one cannot rule out the possibility that with changing circumstances there may be justification for the power to be resorted to with greater frequency. The advent of corporate crime, given the increasing complexity of company structures and transactions, may make the task of prosecution a difficult, lengthy and costly one. Given the mobility of business and professional people in modern times, a prosecutor may face enormous difficulties in getting witnesses together for the necessary time for both a committal proceeding and a trial. In such a case, a decision in particular circumstances to proceed by way of ex officio indictment may be the only decision consistent with the sensible and efficient administration of justice. It must then be recognised, of course, that the accused person will have been denied the advantage that a committal proceeding would have afforded him, and the trial judge is under a duty to ensure that he be given such particulars and other material and allowed such time as will enable him to meet the charge in a fair trial. There may be other circumstances that would justify resort to this procedure, reluctant and cautious though such resort should always be; I have chosen to illustrate the point by a hypothesis that bears some resemblance to the present case.
4. It is in the light of considerations such as the foregoing that I seek an answer to the present problem. How can it be that resort to the unquestioned power to institute a trial on indictment without a prior committal proceeding is an abuse of the process of the court? It cannot be simply that the loss of some advantage which may ordinarily be enjoyed, whether or not fortuitously, by other persons accused of crime, amounts to such an abuse. That loss of advantage may be felt keenly by an accused person, but this is a very different thing from saying that he has lost the opportunity of a fair trial. With all respect to those who think differently, I am unable to comprehend how the mere absence of committal proceedings of itself could ever sustain an allegation of abuse of process. Nor, save for the decision of Fox J. in Reg. v. Kent; Ex parte McIntosh (1970) 17 FLR 65 is there any decision of which I am aware to the contrary, whether in this country or elsewhere. It has been suggestedthat in Reg. v. Martin (1884) 10 VLR 343 , Higinbotham J. considered that the trial judge may stay the trial until a preliminary examination takes place, but with great respect I do not find in the case any warrant for such a suggestion. Higinbotham J. spoke of the judge's power to postpone a trial, but I think it is clear in the context of the report that the word "postponement" was used in the sense of an adjournment so as to prevent the accused person being taken by surprise. The appellants rely also on the decision of the Court of Criminal Appeal in New South Wales in the case of Reg. v. Fazzarri Unreported; 8 December 1977. , where a conviction after trial on an ex officio indictment was set aside, and stress was laid in the judgments on the importance to an accused person of the committal proceedings. However, an important factor in the decision appears to have been the conclusion that a miscarriage of justice occurred by reason of the refusal to grant Fazzarri a separate trial. (at p114)

5. Again, the strong distaste which Professor Edwards shows for the practice of ex officio informations (Law Officers of the Crown, p. 267) is to be evaluated in the light of its context where he describes as "the serious disadvantage" of the practice the fact that the accused "is not apprised of the evidence upon which the Crown relies until the prosecution's case is opened, rendering infinitely more difficult than in the normal circumstances, where depositions are available, the cross-examination of witnesses and the calling of evidence in rebuttal". As we have seen, there is no longer any need for the accused to be disadvantaged in this way. The trial judge has a clear mandate to require the disclosure prior to the trial of the proofs of evidence of those persons whom the Crown proposes to call. (at p115)

6. There are recent decisions of the Supreme Courts in Western Australia and Queensland which afford no support for the proposition that proceedings on an ex officio indictment may be stayed as an abuse of process pending the holding of a committal proceeding: Reg. v. District Court Judges; Ex parte Booy Unreported; 12 July 1979. , reversing a decision of Judge Heenan (1979) 1 SR (WA) 1 ; Reg. v. Chairman of District Courts; Ex parte Johnson and Edwards Unreported; Queensland Supreme Court; 30 November 1979. (Queensland Supreme Court). (at p115)

7. The question of "abuse of process" in relation to criminal proceedings has received attention in recent times in a number of cases in Canada. They are conveniently discussed in Re Forrester and the Queen (1976) 73 DLR (3d) 736 . Quigley J. cited (1977) 73 DLR (3d), at p 740 the following passages from another recent judgment of the Alberta Supreme Court (Laycraft J. in Potter v. The Queen (1977) 1 WWR 592, at pp 595-596 :
"Whether or not jurisdiction exists to stay as an 'abuse of process' a prosecution, otherwise valid, was a question left undecided by the Supreme Court of Canada in Reg. v. Osborn (1970) 15 DLR (3d) 85 . The existence of the jurisdiction had been affirmed by the Ontario Court of Appeal in the Osborn case, and the same opinion was expressed by the British Columbia Court of Appeal in Reg. v. Rourke (1975) 62 DLR (3d) 650 . The power is to be used sparingly and only in the clearest cases. In the latter case McIntyre J.A. said (1975) 62 DLR (3d) at pp 659-660 :
'It must be remembered that the traditions of the common law have always dictated free access to the courts by private litigants, those charged with crime, and the Crown. In the exercise of discretionary power of the nature here under discussion the courts must not be allowed to become, in addition to judges of the cases presented to them, judges of what cases shall be permitted to come to them. The discretion to stay is one which should be exercised in only the most unusual cases and the case will be a rare one indeed where its use can be justified'
. . .
'It is difficult and perhaps dangerous to seek to give examples of what might constitute oppressive conduct sufficient to warrant a stay of proceedings. In Connelly v. Director of Public Prosecutions (1964) AC 1254 , and in Osborn (1969) 1 DLR (3d) 664 it was a question of multiplicity of proceedings arising out of the same event or, what is sometimes referred to as splitting the prosecution. In many of the cases it has been delay on the part of the Crown in the prosecution followed by a stay . . . and then the institution of a new proceeding on a new information after the stay.' . . .

Similiar views were expressed in obiter statements in four of the judgments in the House of Lords in Director of Public Prosecutions v. Humphrys (1977) AC 1 . It was stated in that case that, though the power to stay proceedings exists, its exercise would be limited to rare and exceptional cases.
The Appellate Division of this court has not finally considered whether jurisdiction exists to stay proceedings for abuse of process." (at p116)

8. Quigley J. then proceeded, in his own words:

"I only wish to add that in my opinion the concept of 'abuse of process' in criminal prosecutions if available at all, is available only in those cases wherein a private prosecutor conducts the case for the informant. . . . Where however, the prosecution is conducted by the Attorney-General or his agent, then the jurisdiction to determine whether or not the prosecution shall proceed or be stayed lies with the Attorney-General." (at p116)

9. The learned judge supported his opinion with a reference to passages in the judgments of Cockburn C.J. and Blackburn J. in Reg. v. Allen (1862) 1 B &S 850, at pp 855, 856 (121) ER 929, at pp 931, 932) and the judgment of A. L. Smith L.J. in Reg. v. Comptroller-General of Patents, Designs, and Trade Marks (1899) 1 QB 909, at pp 913-914 . (at p116)

10. As I have already made clear, I am prepared to concede to the courts a jurisdiction to stay criminal proceedings when such action is necessary to meet an abuse of process. But I agree that it is a power which is reserved for use in exceptional cases, and particularly is this so when the abuse of process is alleged to flow from the exercise by an Attorney-General of a power which is granted to him by statute. As I have said, I am unable to perceive how it can be an abuse of process to wish to proceed to trial on an ex officio indictment merely because the accused person is thereby denied the opportunity of a preliminary hearing. There is no reason to suppose that such a denial will affect the fairness of the trial. (at p117)

11. However, I would not wish it to be thought from anything that I have written that a decision to proceed directly to trial on an ex officio indictment without a committal proceeding is a decision to be taken lightly, and otherwise than for serious and compelling reasons. It is clearly a decision which ought to be reserved for the consideration of the Attorney-General himself. In this, as in other aspects of the administration of the criminal justice system the courts and the community must rely heavily upon the integrity of the Attorney-General for the faithful discharge of the prerogatives and privileges of his high office, leaving his actions to be questioned, if at all, in Parliament. (at p117)

12. I have given anxious consideration to the particular submission advanced by Mr. Bannon, counsel for Mr. Gruzman. He brought some matters of fact to the attention of the Court in order to illustrate the particular prejudice to which the absence of a committal proceeding subjected his client. The prejudice was said to lie in the greater difficulty in the circumstances in pursuing a motion for a separate trial. But in the result I am not persuaded. The allegations of fact on which the charge is based have been fully particularized, and this, coupled with the statements of proposed witnesses, should provide a body of material on which the motion for a separate trial can be properly and fairly evaluated. In the event that the motion is refused, and in the light of hindsight at the end of the trial Mr. Gruzman can be seen to have suffered prejudice by reason of a joint trial, then the appropriate remedy will be available: see, e.g., Fazzari Unreported; 8 December 1977. . But even if such an unhappy course of events were to eventuate, I do not think that it could properly be attributed to the absence of a committal proceeding. (at p117)

13. I would therefore dismiss these appeals.

Orders

BARTON AND ANOTHER v. THE QUEEN AND ANOTHER
(Appeal No. 32 of 1980)

Appeal allowed in part.

Paragraph 1 of the order of the Supreme Court of New South Wales (Criminal Division) (dismissing the motions to quash the indictments) affirmed. Paragraph 2 of the order set aside and in lieu thereof order that the application for a stay of proceedings on the "Harbourside" indictment be dismissed. Remit the matter to the Supreme Court of New South Wales (Criminal Division) to decide whether a stay of proceedings on the "Bounty" indictment should be granted.

GRUZMAN v. ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES AND OTHERS

Appeal allowed in part.

Paragraph 1 of the order of the Supreme Court of New South Wales (Criminal Division) (dismissing the motion to quash the indictment) affirmed.

Paragraph 2 of the order set aside.

Remit the matter to the Supreme Court of New South Wales (Criminal Division) to decide whether a stay of proceedings on the indictment should be granted.