Brazel v Magistrates' Court of Victoria
[2018] VSC 48
•13 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03756
| GREGORY JOHN BRAZEL | Plaintiff |
| v | |
| MELBOURNE MAGISTRATES’ COURT | First Defendant |
| - and - | |
| DOMINIC TRIMBOLI | Second Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 January 2018 |
DATE OF JUDGMENT: | 13 February 2018 |
CASE MAY BE CITED AS: | Brazel v Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2018] VSC 48 |
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CRIMINAL PROCEDURE – Application by informant to withdraw charges in Magistrates’ Court – Whether the Magistrates’ Court has jurisdiction to refuse application discussed.
COURTS AND TRIBUNALS – Procedural fairness – Magistrate refusing to hear from accused in opposition to informant’s application to withdraw charges – Failure to afford procedural fairness – Matter remitted for rehearing.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | — | — |
| For the Second Defendant | Mr B Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
By originating motion filed 19 September 2017, Gregory Brazel, (‘the plaintiff’), seeks ‘Certiorari quashing the order of the Melbourne Magistrates’ Court made on 26 July 2017 in case number D13069614 and remitting those matters back to the Melbourne Magistrates Court to be heard according to law’. The ground of the application is that ‘the [first] defendant erred in striking out the proceedings without the consent of the plaintiff’.
I take the application to be for relief in the nature of certiorari to quash the decisions below and remit the proceeding to the Magistrates’ Court for hearing and determination according to law.[1]
[1]See Supreme Court (General Civil Procedure) Rules 2015 r 56.01(1).
Procedural background
On 4 September 2013, the second defendant (‘the informant’) commenced criminal proceedings alleging that the plaintiff committed the offence of obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 on four occasions: twice on 25 March 2011, and once each on 14 April 2011 and 2 May 2011. On the plaintiff refusing to consent to the charges being heard and determined summarily, the proceeding continued in the committal stream in the Magistrates’ Court, and solicitors from the Office of Public Prosecutions took over the management of the proceeding on behalf of the informant. A filing hearing was held on 13 November 2013.
After a number of adjournments, the committal hearing took place on 21, 22 and 24 July 2014. On 24 July 2014, the plaintiff was committed to stand trial in the County Court on three of those charges after one charge was withdrawn.
The first directions hearing in the County Court occurred on 25 July 2014, where the proceeding was listed for trial on 16 March 2015.
At the final directions hearing on 11 December 2014, the plaintiff foreshadowed a number of pre-trial applications. After a number of listings were vacated, the pre-trial argument occurred before Judge Ryan in the County Court over nine sitting days from 16 March 2015 to 1 April 2015. The trial was relisted to commence on 1 June 2015.
On 1 June 2015, Judge Ryan heard sworn evidence from Dr Mohamed Mosa and the trial was adjourned to 28 August 2015 because the plaintiff was suffering from a medical condition.
On 6 July 2015, one of the central witnesses for the prosecution case (one of the alleged victims) died (‘the deceased witness’).
On 28 August 2015, the plaintiff was awaiting surgery, and the trial was further adjourned to 28 September 2015.
The surgery, for which the plaintiff had been waiting, occurred in the week before 28 September 2015, and so the trial was further adjourned to 22 February 2016. The County Court was informed on 28 September 2015 that funding from Legal Aid had been refused because the proceedings could have been dealt with in the Magistrates’ Court. The plaintiff sought an order for representation pursuant to s 197 of the Criminal Procedure Act 2009, which was listed for 18 November 2015, and then relisted for 28 January 2016. The application was subsequently withdrawn, and the plaintiff obtained privately funded representation.
By letter dated 11 February 2016 to the Office of Public Prosecutions and the County Court, the plaintiff advised that the private legal firm, which he had engaged, was closing and he would not be represented at the trial.
At a mention on 15 February 2016, the plaintiff indicated that he would be making an application to have the proceeding transferred to the Magistrates’ Court.
That application was made on 22 and 23 February 2016 and, on 23 February 2016, the County Court (Judge Ryan) ordered that the hearing of the alleged offences be transferred to the Magistrates’ Court, setting a date for hearing of 9 March 2016. Victoria Legal Aid provided funding for that and subsequent hearings in the Magistrates’ Court.
On 9 March 2016, the charges were listed for hearing in the Magistrates’ Court on 8 June 2016.
At a special mention hearing on 2 May 2016, the hearing date was vacated, and the charges were relisted for 6, 7 and 8 December 2016.
On 21 July 2016, the prosecution applied to vacate those hearing dates because the informant was to be overseas. The hearing was brought forward to 19, 20 and 21 October 2016.
On 19 October 2016, the matter came on for hearing before Magistrate Wallington and the plaintiff entered a plea of not guilty. Counsel for the prosecution, Mr Porceddu, summarised the prosecution case and proposed to call Mr Kenyon as the first witness. Mr Kenyon was in prison in Queensland and, as a result of time differences, was not available to give evidence by video link immediately. In the meantime, the prosecution made an application to have the evidence of the deceased witness at the committal hearing ruled admissible under the Evidence Act 2008. When Mr Kenyon became available on the video-link, he turned his back on the camera and refused to be sworn or otherwise co-operate. The matter was adjourned for further hearing to the following day.
On 20 October 2016, Magistrate Wallington refused the application to have the committal evidence of the deceased witness ruled admissible under the Evidence Act 2008. However, her Honour agreed to allow further written submissions to be filed with respect to the admissibility of the deceased’s committal evidence. The prosecution applied for the hearing to be adjourned to permit the informant to make enquiries of Mr Kenyon and consider the position of the prosecution. Counsel for the plaintiff consented to the adjournment.
At the special mention, on 12 December 2016, the Magistrate indicated that she would listen to the recording of the deceased witness’s evidence at the committal and reconsider her ruling. The contest was relisted for hearing on 24 July 2017.
On 1 May 2017, Magistrate Wallington reconsidered her ruling, with respect to the admissibility of the deceased’s statement, and ruled that the cross-examination of the deceased witness at the committal hearing could be admitted as evidence. The prosecution said that Mr Kenyon had agreed to give evidence and it was ready to proceed with the hearing. Magistrate Wallington said that she was not available until 26 July 2017. She gave the plaintiff the option of having the matter referred to another magistrate; but the plaintiff stated he wished to proceed with the hearing before Magistrate Wallington. The matter was adjourned for hearing on three days, being 26, 27 and 28 July 2017.
The instructing solicitor for the prosecution wrote to the plaintiff’s then solicitor asking whether an earlier offer made by the plaintiff, which offer was to pay to the alleged victims the disputed amounts, on the charges being discontinued, was still open. On 11 July 2017, the plaintiff’s solicitor advised that the past offer was no longer open.
On 12 July 2017, the informant’s solicitor informed the plaintiff’s solicitor that the prosecution intended to withdraw the charges.
On 26 July 2017, the proceeding was listed before another magistrate (‘the Magistrate’) — not Magistrate Wallington. Mr Porceddu appeared for the prosecution and Mr Podmore appeared for the plaintiff. It is necessary to set out the transcript of the hearing that day, with respect to this matter, in full. After the matter was called, the matter initially proceeded in the absence of Mr Brazel for a period of approximately 2 minutes:
HER HONOUR: That’s not a matter before me, that’s before Ms Wallington, isn’t it?
MR PORCEDDU: Your Honour, it might be – I’d be making an application to withdraw the charges.
HER HONOUR: Where is Mr Brazel?
MR PORCEDDU: He’s in custody, your Honour, as I understand it, and he is here.
HER HONOUR: Are you bringing him up or what’s going on?
MR PODMORE: Your Honour, there’s a bit more to this matter than meets the eye …
HER HONOUR: [Interrupting] Am I interested? Do I need to know?
MR PODMORE: Um he’s a very special prisoner, in a sense …
HER HONOUR: [Interrupting] I know he’s very special. Are you saying you don’t want him brought up? He doesn’t want to come up? If that’s the case, that’s sweet with me.
MR PODMORE: No …
HER HONOUR: [Interrupting] Please note that I have about 35 cases in here today, if I sound stressed it’s because I am.
MR PODMORE: Indeed, your Honour …
HER HONOUR: [Interrupting] Don’t waste my time is what I’m saying.
MR PODMORE: Thank you, your Honour. The matter today is listed for a three-day hearing before Magistrate …
HER HONOUR: [Interrupting] Are you making a costs application?
MR PODMORE: Your Honour, could I have the matter stood down …
HER HONOUR: [Interrupting] No, what is the issue? Because if there’s an issue I'll put it in another court where someone’s got time to deal with it.
MR PODMORE: The issue is, your Honour, the Crown are making application to withdraw the charges and it’s my understanding that Mr Brazel is opposing withdrawal of the charges.
HER HONOUR: Get him up here. The application can be made.
MR PORCEDDU: Thank you, your Honour.
HER HONOUR: Just get him up here and I’ll deal with everything else in the meantime.
MR PODMORE: Thank you, your Honour.
HER HONOUR: He doesn’t have a basis in law to oppose the charges. If they’re not before the court, they’re not before the court.
MR PODMORE: Indeed, your Honour.
HER HONOUR: I’m sorry, Mr Prosecutor, I don’t know your name.
MR PORCEDDU: Your Honour, may name is Mr Porceddu.
HER HONOUR: Thanks Mr Porceddu, I should have remembered that, I’m so sorry.
MR PORCEDDU: No, no, that’s all right.
After Mr Brazel was brought to Court, the matter then proceeded for a period of approximately 1 minute as follows:
HER HONOUR: Here’s Mr Brazel.
Just when you thought your day was not going to get any worse.
Look at these chairs. I can’t work.
Good morning, Mr Brazel.ACCUSED: Your Honour.
HER HONOUR: Mr Porceddu, you have an application?
MR PORCEDDU: I have an application, your Honour, to withdraw the charges in respect of Mr Brazel.
HER HONOUR: Thank you. In respect of Mr Brazel’s matters all charges are marked withdrawn. Are there any other applications?
MR PODMORE: There’s no application for costs, your Honour, no. Could it be noted that Mr Brazel opposes the withdrawal of the charges?
HER HONOUR: There is no legal basis for any opposition to the application to withdraw the charges. If the charges are before me the matters are simply marked withdrawn. I don’t have anything before me. Thank you, Mr Brazel, you’re excused.
ACCUSED: Your Honour, I object to that…
HER HONOUR: [Interrupting] Yes thank …
ACCUSED: [Interrupting] I know I’m represented by counsel but I have not had the opportunity to speak to counsel this morning.
HER HONOUR: There is nothing before the court, Mr Brazel, thank you, you’re excused, thank you.
ACCUSED: It’s unacceptable.
MR PODMORE: As your Honour pleases.
HER HONOUR: Thank you.[2]
[2]The transcript has been corrected after reference to the audio tape of the hearing.
Each of the three Notices of Order Made dated 25 October 2017 in respect of each of the charges, omitting formal parts, reads:
COURT ORDER
Struckout
- Withdrawn
Plaintiff’s submissions
The plaintiff’s evidence in support of this proceeding included the following:
(a) In May 2011, shortly after the alleged commission of the offences, the plaintiff was transferred to a management unit at Port Phillip Prison, and he ‘was informed that the sole reason for the transfer was that ... [he] had been suspected of committing criminal offences.’
(b) He has continued to be held in management units since 2011 and authorities have refused to return him to the general prison population. He has been told by the prison authorities that, ‘unless there is a finding in this matter, he will remain in the management unit’.
The plaintiff filed written submissions running to 68 pages. He acknowledged in those submissions not being legally trained and hoped his submissions were nonetheless of assistance. The language of those submissions was clothed in metaphor and the submissions were, at times, opaque and meandering. The submissions included many criticisms of the prosecution, which, as I explained to him, are not relevant to the current application. The relevant propositions put forward by the plaintiff can, however, be summarised in the following way:
(a) The plaintiff has a right to a fair trial.
(b) The hearing on 26 July 2017 ought not to have been presided over by the Magistrate because:
(i) the hearing was part-heard before Magistrate Wallington;
(ii) the proceeding was brought on before the Magistrate without the plaintiff’s consent;
(iii) Magistrate Wallington had signed the gaol order which caused the plaintiff to be brought to Court that day; and
(iv)the Magistrate was biased or there was a reasonable apprehension of bias.
(c) The Magistrate ought not to have permitted the prosecution to withdraw the charges:
(i) without the plaintiff’s consent, or without hearing from the plaintiff about why he did not consent to the charges being withdrawn;
(ii) when the Magistrate was stressed and was aware that the proceeding was not in her list;
because:
A. the proceeding was part-heard before Magistrate Wallington;
B. the failure to have the charges finally determined means he ‘cannot require his removal from the [management] regime that he is currently held under, due to the fact that he has not been exonerated of the charges’;
C. the Crown had withdrawn the charges only because they knew there was no evidence to lead in support of them; and
D. the Magistrate lacked jurisdiction to permit the withdrawal of the charges because the proceeding was part-heard before Magistrate Wallington.
In support of the proposition that the hearing was part-heard before Magistrate Wallington, the plaintiff referred to the hearing held nine months earlier where he had been ‘arraigned’, had pleaded not guilty, there had been legal argument about the admissibility of the committal evidence of the deceased witness, and a prosecution witness had been called, but had refused, to give evidence.
Informant’s submissions
Mr Kissane QC, on behalf of the second defendant, submitted as follows:
(a) The power to withdraw charges was not exercised in this case pursuant to s 177 of the Criminal Procedure Act 2009. That section, which resides in pt 5.4 of that Act (in ch 5, which is entitled ‘Trial on Indictment’) provides:
177 DPP may discontinue a prosecution without adjudication
(1)The DPP may discontinue a prosecution for an offence against an accused by—
(a) announcing the discontinuance in court; or
(b) filing in court written notice of the discontinuance, signed by the DPP.
(2) A prosecution may be discontinued—
(a) at any time except during trial;
(b)whether or not an indictment against the accused has been filed.
(3)If an indictment has not been filed against the accused, the written notice referred to in subsection (1)(b) must be filed in the court to which the accused has been committed for trial.
(4)If a discontinuance of prosecution is announced in court, written notice of the discontinuance, signed by the DPP, must be filed in court as soon as practicable after the announcement.
(5)The DPP must serve a copy of a written notice of discontinuance that has been filed in court under subsection (1)(b) or (4) on—
(a) the accused; or
(b) if the accused is dead, on—
(i)the legal practitioner who last represented the accused, if that legal practitioner can reasonably be identified; or
(ii)the next of kin of the accused, if that person can reasonably be identified.
(6)A discontinuance of prosecution does not amount to an acquittal.
(7)An accused may be indicted on a charge in respect of which an earlier prosecution has been discontinued.
(b) The withdrawal of charges in the Magistrates’ Court is not governed by that section because it is not a trial on indictment. This case was a summary hearing of a charge that had been transferred by the County Court to the Magistrates’ Court pursuant to s 168 of the Criminal Procedure Act 2009.
(c) Section 177 codified the nolle prosequi procedure with modification (namely, permitting discontinuance before the filing of indictment, but not permitting it once the trial has commenced). Further, it was acknowledged that there is no express power in the Criminal Procedure Act 2009 for the prosecutor to withdraw charges. Mr Kissane QC relied upon Richard Fox’s text where it is stated:
Although doubts have been expressed that there exists a power to allow a withdrawal of a charge after the hearing has commenced,[3] it has been the practice of the Magistrates’ Court to permit charges to be withdrawn, either before or after commencement of the hearing, provided that both the informant and the accused agree. The withdrawal of a charge does not bar the filing of a second charge-sheet for the same offence.[4]
[3]Bishop v Cody [1939] VLR 246.
[4]Richard Fox, Victorian Criminal Procedure: State and Federal Law (Federation Press, 2015) 6.3.10 (citation in original).
(d) The power to file a charge carries with it, as a matter of statutory construction, the power to withdraw the charge filed.
(e) Ordinarily a court has no power to refuse the entry of a nolle prosequi or discontinuance, but there may be some exceptions, which must be limited to rare and unusual circumstances, and generally only where the Court would have power to stay a resumed prosecution of the offence as an abuse of process. The principle should be the same in a summary proceeding. In any event, the matters relating to his management in prison, agitated by the plaintiff, could never fall within the exception, if it existed.
(f) Although it was conceded that the Magistrate prevented the plaintiff’s counsel from making submissions, she was entitled to do so because she was ‘obliged to accede to the request to withdraw’. It was said that ‘if the magistrate had no power to refuse the application, then there was no reason for her to accord the plaintiff the right to be heard’.
(g) Even if the Magistrate had heard from the parties, on the material before this Court, the Magistrate would have been bound to strike out the charges as being withdrawn by the prosecution. In this way, it was asserted that the relief sought was futile and should be refused because, on remitter, the Magistrates’ Court would, after hearing from the parties, inevitably permit the withdrawal.
(h) The Magistrate was obliged not to hear from counsel for the plaintiff because he had conceded that the Court could not refuse the application. The informant relied on the fact that, at the conclusion of the first part of the hearing, the plaintiff’s counsel had responded to the Magistrate’s comment that ‘[the plaintiff] doesn’t have a basis in law to oppose [the withdrawal of] the charges. If they’re not before the Court, they’re not before the Court’, by saying ‘Indeed, your Honour’.
The Authorities
In R v Woodhouse,[5] the Full Court decided that a presentment for an indictable offence was not barred by the fact that the same charge had been previously withdrawn before justices of the peace who had no jurisdiction to hear the charge. With respect to the right to withdraw the charge, the Full Court said as follows:
The withdrawal, whatever was the reason, was made with the consent of the magistrates, and without any objection from the prisoner. If the prisoner had pleaded, and had insisted on the case being continued, the justices might or might not have allowed the case to be withdrawn. If they had allowed it to be withdrawn after plea much would depend upon why the prosecution did not desire to proceed. What occurred in this case amounted in reality only to striking the case out of the list.[6]
[5][1919] VLR 736 (Hood, Schutt and Mann JJ).
[6]Ibid 738.
In Bishop v Cody,[7] Lowe J similarly held that the withdrawal of an information by leave was not a bar to a further information for the same offence. His Honour considered the decision of the Full Court in R v Woodhouse and said:
There may be cases where the magistrates may as a condition of granting leave to withdraw require that no fresh information be laid, or the defendant may object to a withdrawal except on some undertaking that no further information be laid, and so it may be that the proper inference in such circumstances is that the prosecution has been abandoned and that a second information for the same offence would not lie.
[7][1939] VLR 246.
In R v Lorkin,[8] the Full Court of the Supreme Court of Western Australia dismissed a Crown appeal against an acquittal following the trial judge refusing to accept a nolle prosequi. The Crown had sought to enter a nolle prosequi after the trial judge had refused the Crown’s application to adjourn the trial because of the unavailability of two of its witnesses. Malcolm CJ dismissed the appeal on the basis that a tender of a nolle prosequi before a trial has commenced could be an abuse of process, which a court is entitled to refuse.[9] He further found that ‘the circumstances were sufficiently exceptional to justify the learned trial judge in refusing to accept the nolle prosequi’.[10] The Chief Justice pointed out that, although a nolle prosequi has the effect of terminating proceedings, it is the second last step because ‘the consequence of bringing proceedings to an end is to discharge the accused in respect of the proceedings on the relevant indictment. That is precisely why it is relevant to consider whether the nolle prosequi should be accepted in a particular case, having regard to its effect’.[11]
[8](1995) 15 WAR 499 (Malcolm CJ, Kennedy and Murray JJ).
[9]With whom Kennedy J agreed; Murray J dissenting.
[10]Ibid 519.
[11]Ibid 519.
In R v Jell, Ex parte Attorney-General,[12] the Queensland Court of Criminal Appeal found that the trial judge had been entitled to refuse to allow the Crown prosecutor to enter a nolle prosequi. The Crown prosecutor sought to enter the nolle prosequi after the judge had ruled that the evidence was not capable of establishing a critical element of each of the charges. All three judges found that the power was available in exceptional cases, and Thomas J explained the basis of the conclusion as follows:
The entry of a nolle prosequi at the final stages of a trial is effectively an abortion of that trial and a unilateral preservation of rights by one party — the Crown. The accused has been in the jury’s charge, but is no longer. The judge tells the jury ‘the accused is no longer in your charge, and you will not be asked for a verdict. The prosecution has ceased.’ The power of the Court to prevent this happening when it is plainly intended as a means of enlivening an almost dead prosecution, and where the further prosecution must be regarded as an oppressive abuse, is simply an aspect of the court’s duty to control its own process and to ensure that the accused receives a fair trial.[13]
[12][1991] 1 Qd R 48 (Macrossan CJ, Thomas and Lee JJ).
[13]Ibid 63. Macrossan CJ and Lee J both agreed with the reasons of Thomas J, at 64 and 65 respectively.
Macrossan CJ agreed stating that ‘the judge who conducts the trial and determines its course may, in an extreme case, refuse to return the indictment to the prosecutor on his request. I would uphold the court’s possession of this power’.[14]
[14]Ibid 53.
In Maxwell v The Queen,[15] the High Court considered an appeal against a trial judge’s rejection of a plea of manslaughter in satisfaction of an indictment for murder, where the prosecutor had elected to accept the appellant’s plea. The trial judge had referred the following questions to the Court of Appeal, which answered them in the affirmative:
1.Can the prosecution withdraw the acceptance of a plea after a plea has been accepted?
2.Has a trial judge, when a plea has been accepted by the Crown in full satisfaction of the indictment, any power to reject the plea?
[15](1996) 184 CLR 501 (Wilson, Toohey, Gaudron, McHugh and Gummow JJ).
The High Court found that the questions should be answered as follows:
Question 1: “Yes, with the leave of the Court”;
Question 2:“Yes, but, abuse of process aside, not if it involves a review of the prosecutor’s decision under s 394A of the Act”.
Dawson and McHugh JJ stated that ‘[o]ur courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.’[16]
[16]Ibid 512 (emphasis added).
With respect to the power of the Director of Public Prosecutions to enter a nolle prosequi, Gaudron and Gummow JJ said as follows:[17]
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process — particularly, its independence and impartiality and the public perception thereof — would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
[17]Ibid 534.
Later, in Ayles v The Queen,[18] Keifel J explained that Gaudron, Gummow and Hayne JJ in Maxwell v The Queen were referring to
the fundamental importance of the line drawn between the decision whether to institute or continue criminal proceedings, the province of the executive, and decisions directed to ensuring a fair trial and the prevention of abuse of the court’s processes, the province of the courts.[19]
[18](2008) 232 CLR 410 (Gleeson CJ, Gummow, Kirby, Heydon and Kiefel JJ).
[19]Ibid 432 [71].
In GKA,[20] the New South Wales Court of Criminal Appeal considered the following referred question:
Whether or not, a direction having been given and remaining in effect pursuant to s 7(2)(b) of the Director of Public Prosecutions Act [1986 (NSW)] that no further proceedings be taken against an accused on a bill of indictment found under the Act, a court may nevertheless proceed to try the accused upon that indictment.
[20](1998) 99 A CrimR 491.
Section 2 of the Director of Public Prosecutions Act 1986 (NSW) relevantly provided that the Director had the same functions as the Attorney-General in relation to directing that no further proceedings be taken against a person who has been committed for trial or sentenced.
Cole JA held that the effect of s 7(2)(b) was that, on a communication of a nolle prosequi to the court, the court was deprived of the power to further proceed with the indictment and the accused person was not entitled to have a jury empanelled or a directed verdict of not guilty. However, his Honour specifically refrained from considering any question of an abuse of process.[21]
[21]Ibid 496 (with whom Gleeson CJ and Barr J agreed).
In Question of Law Reserved on Acquittal (No 3 of 1995),[22] the South Australian Court of Criminal Appeal considered whether a judge could refuse to accept a nolle prosequi and, if so, whether there were limitations on the power to do so. The circumstances were that the complainant and her mother failed to attend on the day fixed for trial and, after the prosecutor’s application to have the matter taken out of the list was refused, he sought to enter a nolle prosequi. The judge refused to accept it; and the prosecution tendered no evidence and the accused was found not guilty on all charges. Mullighan and Debelle JJ (with whom Nyland J agreed) both found that the court did have power to refuse to accept the nolle prosequi, but only in rare or exceptional circumstances where it is necessary to prevent an abuse of process, unfairness or injustice.[23]
[22](1996) SASR 450 (Mullighan, Debelle and Nyland JJ).
[23]Ibid 453, 472.
In R v Swingler,[24] the Court of Appeal considered an appeal against conviction on grounds including that the trial judge wrongfully refused the application for a permanent stay on the basis that the Director of Public Prosecutions had previously entered a nolle prosequi in respect of some charges. The Court dismissed the appeal, stating that:
It would, in our view, place an intolerable fetter on the exercise of this valuable power (ie the prosecutor’s power to enter a nolle prosequi) if the court were readily to accede to an application that its processes were being abused for no reason other than that an accused was re-presented on a charge in respect of which a nolle prosequi had previously been entered. We do not say that there can never be a case where the exercise of the power to make presentment on a charge in respect of which a nolle prosequi has previously been entered will amount to an oppressive exercise of prosecutorial power and thus an abuse of the court’s process. The categories of ‘abuse cases’, as has often been said, are never closed. We are not, however, satisfied that this is such a case.[25]
[24][1996] 1 VR 257 (Winneke P, Calloway JA and Crockett AJA).
[25]Ibid 265–6.
In Director of Public Prosecutions, South Australia v B,[26] the High Court considered another case where the prosecution had sought to enter a nolle prosequi after the trial judge had refused an application for adjournment on the basis of the unavailability of two critical prosecution witnesses. The trial judge reserved for the Full Court the questions of whether he had power to refuse to accept the nolle prosequi and, if so, whether there were any limitations on the exercise of that power. The Full Court answered both questions affirmatively. The High Court allowed the appeal on the basis that the section only permitted the preservation of a question ‘on the trial’; and the trial had not begun.[27] However, Gaudron, Gummow and Hayne JJ, on the question of the entry of a nolle prosequi, opined as follows:
The accused’s trial not having begun and the decision being a decision about whether to continue a prosecution, the question whether to do so was a matter which fell within the province of the executive. It was not a question which arose at the trial of an accused. And the trial not having begun, no question could arise whether the entry of a nolle prosequi constituted an abuse of process. Other considerations may have arisen (we do not say they would) if the question had been one relating to the continuation of a trial that had already begun or had been whether prosecution of a fresh information amounted to some abuse of process. But those questions did not arise here.[28]
[26](1998) 194 CLR 566.
[27]Gaudron, McHugh, Gummow and Hayne JJ; Kirby J dissenting.
[28]Ibid 580 [22] (emphasis added).
Kirby J, in a detailed judgment, held that both before and after the commencement of the trial ‘in rare and exceptional cases’, the Court would be entitled to refuse a nolle prosequi that constituted an abuse of the Court’s process.[29] McHugh J did not comment on the question.
[29]Ibid 605 and 607.
In R v YL,[30] Crispin J refused to accept a notice under s 7(6) of the Director of Public Prosecutions Act 1990 (ACT) declining to proceed further with the prosecution on the basis that he considered the notice constituted an abuse of process.[31] The circumstances were that the jury had been empaneled and Crispin J had ruled that certain statements were inadmissible. The Director confirmed that he had issued the nolle prosequi because he wanted to have the opportunity to consider testing the rulings on appeal.[32]
[30](2004) 187 FLR 84.
[31]Ibid [11].
[32]Ibid [63].
In R v SH,[33] after arraignment of the accused, the Crown lodged a notice declining to further prosecute following the complainant’s refusal to give evidence. Higgins J accepted the notice, but ordered that no further proceeding be taken without leave. His Honour noted that there was no power to review a decision not to prosecute; but he said that did not ‘prevent a Court, seized of a criminal proceeding, from acting to protect its process from abuse’.[34]
[33] (2009) 195 A Crim R 233.
[34]Ibid 235 [9].
In summary, the current state of the law appears to be as follows:
(a)After commencement of a trial, a court has power in exceptional circumstances to refuse to accept the withdrawal of the prosecution or a nolle prosequi, if it is necessary for the purpose of preventing an abuse of its processes.
(b)Prior to the commencement of the trial, a power to refuse a nolle prosequi may not exist. This proposition is based on the statement of Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions (SA) v B.[35]
[35](1998) 194 CLR 56, 80 [22].
However, I consider that the latter question is still open for argument for the following reasons:
(a)The statement of Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions (SA) v B would appear to be in obiter and may not have been intended to extend beyond the facts of that case. Certainly, Kirby J did not refer to the fact that his conclusion — that there was power before and after the start of the trial — was contrary to the view of the plurality. Further, I am unable to find any authority that has read the plurality’s passage as a broad statement of principle.
(b)Their Honours did not disclose a detailed analysis of why conduct prior to the commencement of the trial could not constitute an abuse of process. In this respect, I note the comments of Hayne and Bell JJ in X7 v Australian Crime Commission[36] in which their Honours noted that it is ‘the laying of a charge marks the first step in engaging the exclusively judicial task of adjudicating and punishing criminal guilt’.[37]
(d)The power of the Attorney-General to enter a nolle prosequi was not reviewable by the courts because it ‘was seen as part of the prerogative of the Crown’.[38] The analogous power of the Director of Public Prosecutions to discontinue an indictment is found in s 177 of the Criminal Procedure Act 2009. Different considerations may well apply when an informant applies to withdraw charges in a private prosecution.
[36](2013) 248 CLR 92.
[37]Ibid 138 [110].
[38]Maxwell v The Queen (1996) 184 CLR 501, 534 (Gaudron and Gummow JJ).
Decision
The hearing of the application before the Magistrate took place on the morning of 26 July 2017, in two parts. The first proceeded for approximately two minutes in the absence of the plaintiff (‘the first part of the hearing’); and the second for approximately one minute in the presence of the plaintiff (‘the second part of the hearing’).
The transcript of the hearing of the informant’s application before the Magistrate on 26 July 2017 may be summarised as follows:
(a)In the first part of the hearing, there was an exchange between counsel for the informant, counsel for the plaintiff and the Magistrate in which the Magistrate was informed that the informant was making an application to withdraw the charges and the plaintiff was opposing the application.
(b)In the second part of the hearing, the plaintiff was brought to Court and counsel for the informant made his application to the Magistrate to withdraw the charges with respect to the plaintiff.
(c)The Magistrate immediately granted the application without giving counsel for the plaintiff an opportunity to oppose the application.
(d)After stating that ‘all charges are marked withdrawn’, her Honour said in response to counsel for the plaintiff’s request that his client’s opposition to the withdrawal of the charge be noted:
There is no legal basis for any opposition to the application to withdraw the charges. If the charges are before me the matters are simply marked withdrawn. I don’t have anything before me. Thank you, Mr Brazel, you’re excused.
(e)When the plaintiff objected and stated that he had not had the opportunity to speak to his counsel, the Magistrate refused any further opportunity by stating:
There is nothing before the Court, Mr Brazel, thank you, you’re excused, thank you.
Having listened to the audio recording, in my opinion, the Magistrate’s statement ‘You’re excused’ was intended to finally terminate the hearing of the application.
The obligation on a court to afford natural justice and act fairly is undoubted. It is a feature of our system of justice that this obligation extends to all persons before a court, including those who have been convicted of the most serious crimes.[39] The content of the doctrine of natural justice or the duty to act fairly includes providing parties, whose interests are being affected, with the opportunity to be heard. In Kioa v West,[40] Mason J said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
[39]See, eg, Charter of Human Rights and Responsibilities Act2006 s 24(1).
[40](1985) 159 CLR 550, 582.
It is not in issue that the plaintiff was a person who had a relevant interest in the application of the prosecution.
The Magistrate did not afford the plaintiff natural justice. Neither counsel for the plaintiff, nor the plaintiff himself, were given any opportunity to make a submission in opposition to the application before the Magistrate declared that ‘all charges are marked withdrawn’ and asked whether there were ‘any other applications’ in circumstances where the Magistrate must have been aware that the application was opposed. The Magistrate’s refusal to give the plaintiff an opportunity to be heard was not assisted by her subsequent refusal of the plaintiff’s implicit request to have the opportunity to speak to his counsel on the basis that, as she said, ‘[t]here is nothing before the Court’.
The attitude of the Magistrate appears to be based on her belief that ‘[t]here is no legal basis for any opposition to the application to withdraw the charges’; and that, after the charges are declared as marked withdrawn, ‘I don’t have anything before me’ and implicitly that the Court has no power.
In the ordinary course, one would expect that an accused person would readily consent to an application to withdraw charges. But, where the accused does not consent, as the above analysis of the authorities demonstrates, a court may only refuse to accept a nolle prosequi or, in the Magistrates’ Court, a withdrawal of charges, in exceptional circumstances. However, the Magistrate, before marking all charges as withdrawn, was obliged to hear submissions on behalf of the plaintiff as to the basis for the opposition. If she had provided that opportunity, it would have been incumbent on counsel for the plaintiff to make submissions as to the jurisdiction of the Court to refuse the application, lead any evidence in support of the application[41] and make submissions as to how, in the circumstances, the application to withdraw was an abuse of process or otherwise constituted exceptional circumstances that enlivened the Court’s jurisdiction to refuse to permit the withdrawal of the charges. Of course, likewise, the informant could have made submissions in support of the application and lead evidence about relevant matters including ‘why the prosecution did not desire to proceed’.[42]
[41]For example, to properly determine the application, it may have been necessary to ascertain as a matter of fact whether the hearing of the charges were part heard before Magistrate Wallington.
[42]R v Woodhouse [1919] VLR 736, 738 (Hood, Schutt and Mann JJ).
I reject the informant’s submission that, although the Magistrate prevented the plaintiff’s counsel from making submissions at all, she was entitled to do so because ‘the slight possibility that there is some residual power in the Court to refuse to withdraw … plainly did not arise here’.[43] Parties does not lose their right to be heard because the relief sought is unlikely to be granted or only available in exceptional circumstances.[44]
[43]Pages 5 and 6 of the second defendant’s submissions.
[44]Cf Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 519 [75] (Redlich JA).
Plainly, judicial officers are not required to listen without interruption, for indefinite periods, to submissions in support of nonsense propositions that cannot succeed. As the Court of Appeal said recently in Bodycorp Repairers Pty Ltd v Holding Redlich:
[A] judge must normally give the parties a reasonable opportunity to make submissions in support of [an] application. However, a judge need not devote unlimited time to unmeritorious arguments; this is so even if the judge’s preliminary view is that the application will be unmeritorious.[45]
[45][2018] VSCA 17 [86] (Whelan and Santamaria JJA and T Forrest AJA) citing AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236, 243 [24] (Warren CJ, Hansen and Almond AJA).
There will be a need, on occasions, to exercise some control over the conduct of the parties’ case for reasons including the avoidance of time wasting and irrelevance. As was said by the former Chief Justice of the High Court, Robert French:
Rudeness and impatience are not indicators of judicial leadership. That being said, the judicial role does require firmness and seriousness of purpose and a commitment, in the interests of all parties and the public purse, to ensure that litigation is conducted without time-wasting behaviour. There should be a very low threshold of tolerance for tactical gaming of the litigious process unrelated to its proper purposes.[46]
[46]Robert French, ‘The Changing Face of Judicial Leadership: A Western Australian Perspective’ (2017) 91 Australian Law Journal 322, 328.
Once again, that is not this case. The Magistrate could only determine whether the plaintiff’s resistance to the application was hopeless after she had heard sufficiently from the parties to enable her to determine the extent of her jurisdiction and whether the facts supported its exercise. Instead, she refused to hear submissions at all in support of the objection, and was not in any position to determine that she had no jurisdiction.
I also reject the informant’s submission that the Magistrate was entitled not to hear from the plaintiff because, at the conclusion of the first part of the hearing, the plaintiff’s counsel accepted the fact that the Court had no jurisdiction. Counsel for the informant relied upon the fact that the plaintiff’s counsel had said ‘Indeed, Your Honour’, in response to the Magistrate’s comment that ‘[the plaintiff] doesn’t have a basis in law to oppose the charges. If they’re not before the Court, they’re not before the Court’. I consider that the response of counsel for the plaintiff was nothing more than a courteous response to the Magistrate after her direction to bring the plaintiff into court so that she could deal with the informant’s application.
The plaintiff submitted that his counsel’s failure to challenge the Magistrate’s refusal to hear from him was the result of counsel being intimidated by the Magistrate. I am unable to make any finding in that regard. However, I consider that, from listening to the audio tape, it is apparent (more so than from the transcript) that the Magistrate did behave in a discourteous manner that, combined with a number of interruptions, could have intimidated the plaintiff’s counsel from challenging the Magistrate’s decision. In particular, I consider a statement such as, ‘Please note that I have 35 cases in here today, if I sound stressed it’s because I am’, does not assist to convey a impression to parties that they will be afforded procedural fairness.[47]
[47]The fact that magistrates work in a stressful environment is well established. See, eg, ‘Courtroom drama: Magistrates' cry for help as system approaches crisis point’, The Age (24 November 2017).
I propose to order the matter be remitted to the Magistrates’ Court for the informant’s application to withdraw the charges to be determined according to law.
The appropriate Magistrate to hear the matter would appear to be Magistrate Wallington; but I do not propose to so order. The Chief Magistrate may be aware of other factors which makes it more appropriate for the hearing to proceed before another Magistrate.
I propose to enter judgment for the plaintiff and order as follows:
(1)The orders of Melbourne Magistrates’ Court made on 26 July 2017 in case No D13069614 be set aside.
(2)The matter be returned to the Magistrates’ Court to be heard and determined according to law by a different magistrate.
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