Burrell v The Queen

[2005] HCATrans 103

[2005] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S237 of 2004

B e t w e e n -

BRUCE BURRELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 9.32 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR D.G. DALTON and MR P. YOUNG, for the applicant.  (instructed by Legal Aid commission of New South Wales)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the issue for special leave focuses entirely on the extent to which by control of the use of its own processes the court may nonetheless indirectly have a fundamental effect upon the way in which the Executive, discharging its responsibilities usually uncontrolled by the court, certainly outside the court in relation to the prosecution of crime.  The argument put below and the argument which we would seek to put in this Court were we granted special leave embraces and does not seek to qualify what has been described in this Court on several occasions as the fundamental importance of preserving that distinction.  However, the way in which we would attempt to put the existence of error of a dire kind in terms of consequences for my client arises as follows. 

It is, on the one hand, both rhetorically and as a matter of doctrine, well established that it is for the Executive, uncontrolled or uninfluenced by the impartial judiciary, to decide whether to prosecute and indeed, upon what charges and with what evidence.  It is of equal cardinal and well‑established status that it is for the court, and not the Executive, to apprise itself of threatened unfairness in the procedures about to be undertaken and to control those procedures and, in extreme cases, to halt them in order to prevent the destruction or damage to the public confidence in the administration of criminal justice which would result from being forced at the Executive behest to participate in an unfair process.

Between those two equally well‑established principles, there must be some accommodation because the Executive discretion whether to prosecute, and if so, how, obviously runs into direct collision with the judicial responsibility to control threatened unfairness before the judiciary in the event of a prosecution continuing in a particular fashion.  The way in which the court, in our submission, would regard that reconciliation is as one to be done gingerly, case by case, and not by reference to a principle pronounced in the same broad and general terms as the two principles I have already referred to.

This case is offered by us to the Court as one in which, both by reason of the individual questions of justice for my client, but also for the possibility of this Court being able to pronounce on the appropriate reconciliation in an important area.  What is the importance of the area?  It falls out as follows.  As this Court has remarked in a number of cases, the device or conduct of a nolle prosequi is sufficiently ancient not necessarily to have an entirely rational explanation of all its aspects.

However, one thing is clear, that a nolle prosequi can be granted for reasons which vary enormously, from an apprehension of weakness in the Crown case through to what might be called, almost, dictates of convenience in terms of the running of a hearing or the assembly of evidence.  That is, it is clear that a nolle prosequi may, subject to the special circumstances that obtained in this case as a result of acts of public administration of importance in this case, a nolle prosequi may result either from a position in which the Crown concedes a lack of reasonable prospect of conviction or where a Crown concedes no such thing, indeed may be adamantly of the view to the opposite effect, but regards the hearing as likely to miscarry in some way related to its conduct of the prosecution. 

Into that broad area of possibilities – of opposite possibilities – all culminating in simply a nolle prosequi, into that comes the public administration of which your Honours read in this application book, namely the so-called guidelines by the Director for the understanding of the public, for the understanding of those members of the profession concerned not only with prosecution but also with defence of criminal allegations and also for the guidance of his and his staff’s exercise of discretion.

Those guidelines, together with what I will call the letter accompanying the nolle prosequi in this case, amount in effect to a statement that in this case, and in relation to the guidelines one can add in cases of this kind of which this is an example, the nolle prosequi has been entered by reason of an assessment of the adequacy or appropriateness of the evidence in terms of the public interest to secure conviction of crime but also to secure fair trial and proper use of public resources taking into account the burden of a criminal trial on all accuseds and that this case by public administration of the most solemn kind – we do not say that the Director makes law, but he does speak officially – both general and particular, both guidelines and the letter, in this case the nolle prosequi was identified as one which proceeded on the basis that it would not be an appropriate exercise of prosecutorial discretion on the basis of the material which by then had been through the mill, not only of Executive assessment, but also of judicial rulings in relation to admissibility. 

Now, in that context, it can be seen that this is not a case of a kind which has been well and truly dealt with by pronouncements in this Court already.  In particular, it cannot be said therefore, that this is a case which ought to be dealt with simply by saying, as has been said so often before in a way we would not seek to challenge, that the conduct of a prosecution is a matter for the Executive and that the judiciary must not intermeddle for fear of losing its requisite impartiality. 

McHUGH J:   How do you distinguish this case from that situation?  What is there about these guidelines and this letter that distinguishes those cases, bearing in mind that no office holder can fetter the exercise of a statutory power by making statements about how he or she will or will not exercise it?

MR WALKER:   In the same way, in quite different circumstances but drawing in aid the same fundamental principle, as in Rogers there had been a tender of alleged confessions ‑ ‑ ‑

McHUGH J:   You are trying to upset me, referring to Rogers. 

MR WALKER:   I have the book open at page 280, your Honour, but reasons before and after that page would be called in aid.  But in Rogers, the act of the prosecution in tendering in the later case in relation to the later charges, the different charges, the same confession, can be seen to be a paradigm of the act of the Executive through the prosecutor which is said to be beyond the control of the court.

McHUGH J:   Yes, but in Rogers the majority held that because there had been a judicial determination that the confession was not voluntary.

MR WALKER:   Without an estoppel.  Nothing in the nature of an issue estoppel.

McHUGH J:   No, the majority said it was an abuse of process for the prosecution to do it.

MR WALKER:   And that is my answer.

McHUGH J:   But that was after a judicial determination.

MR WALKER:   But, your Honour, that is my answer to your question.  It was not because it had been a judicial determination, but because that being the particular history in relation to that material which the prosecution was now tendering, it held out, to quote from Justices Deane and Gaudron, either the scandal of conflicting decisions or, as we would prefer to put it, the jeopardy to public confidence in the administration of justice, particularly where ‑ ‑ ‑

McHUGH J:   But that is by judges.  The majority took the view and you have one judge holding that there was an involuntary confession and then another judge holding that the confession was voluntary – conflict.

MR WALKER:   But again, without any issue estoppel or anything in the nature of that.

McHUGH J:   Well, that is right but the majority said that was an abuse of process, but this is different.  This is a long way removed from that.  You have a Director of Public Prosecutions who says, “In my view, on the present state of the evidence, this case should not go for trial”.  Now you say he cannot change his mind.

MR WALKER:   No, we do not say he cannot change his mind.  His guidelines and the letter contain within them the statement to the public about the principled rather than arbitrary basis upon which a change of position may occur and that is the importance of this case in terms of the test of engendering and maintaining rather than jeopardising public confidence in the administration of criminal justice.

McHUGH J:   Well, supposing that a detective in charge of the investigation said to the press, “We think X is a suspect but on the present state of the evidence we are not prepared to charge him”.  Does the same principle that you contend for apply to that statement or does it only apply to the DPP?

MR WALKER:   In the circumstances of this case I rely, and rely only on, that which is said by the statutory officer charged with manifesting the Executive will in relation to prosecution and that is, most certainly, not the police.  It is the DPP.

McHUGH J:   But the problem from your point of view is, as we have said more than once, the administration of justice does not start until proceedings are commenced. 

MR WALKER:   Quite.  Proceedings are well and truly commenced in the sense of the ‑ ‑ ‑

McHUGH J:   In Rogerson, for instance, the Court said it is the laying of the charge.  In James v Robinson the Court held there could be no contempt until the accused had been charged.

MR WALKER:   It is a contextual matter entirely, though.  In Rogers there was a statutory question that needed to be answered about the special procedure of answering a question where the formal act of arraignment turned out to be the division between fresh and salt water.  In other circumstances it is clear, including in relation to contempt, that the ambit of criminal proceedings may not appropriately be seen as simply commencing with a formal arraignment, for example, a minute or two before the commencement of the first day’s proceedings in court.

McHUGH J:   No, it is the laying of the charge.

MR WALKER:   And in this case, in our ‑ ‑ ‑

McHUGH J:   In Roger Rogerson’s Case did not we all say - I certainly did - that the police investigation was not part of the administration of justice?

MR WALKER:   Yes, but this is not a case that involves the simple police investigation at all, indeed that is peripherally incidental to any of the facts that arise in our case.  This is a case where there is no question that the criminal proceedings are well and truly on foot as they were when the nolle prosequi was entered, obviously.  It is the relation between what happened then, the context in which it was then said, and what is now happening, which is that which renders it first, entirely a matter of control of proceedings by a court and second, not a matter which falls foul of the distinction between pre-proceedings investigation and post proceedings matters for which the court is directly responsible.

Now, the matter that we say renders this different and important is that there has been a deliberate act of public administration.  We draw strength rather than weakness from the fact that it is a matter of the Executive having acted, not the legislature, by which there is a public pronouncement as to the way in which the action just taken is to be understood by the public as well as by the affected parties and the way in which the public may trust and have faith in the administration of criminal justice in that particular case thereafter.

In our submission, without ever illegitimately invoking the notion of an estoppel - it would be an absurd proposition here - there is nonetheless, by reason of the Court’s repeated invocation of the test of threatened erosion of public confidence in the administration of justice, an ordinary, non-problematic expectation that the Crown will stick to statements of principle not seen by the court to be wrong – that is an essential qualification – in the administration of its peculiarly Executive function as soon as that Executive function enlivens the processes of the court and seeks to enlist the court in a process which the court supervises.

McHUGH J:   But your proposition puts the Director in a hopeless position.  The public is continually demanding to know why prosecutions are not proceeded with.  The Director publishes a statement as to why so it gives transparency to the process.  Then the Director changes his mind.  Why should he be bound in the way for which you contend?  The public would be outraged if they thought the Director, then having reconsidered the matter and other evidence, came to the view that there should be a prosecution. 

MR WALKER:   For these reasons.  This Court, in our submission, ought to take the opportunity to reinforce, that is to support and vindicate, the use by functionaries such as the DPP of measured, correct that is, unexceptionable statements, of the way in which they will exercise their functions disinterestedly and according to principle rather than by unexplained and perhaps arbitrary ad hoc decisions.

McHUGH J:   Yes, but if your argument is right the DPP has no alternative but to shut his mouth.

MR WALKER:   No, not at all because within his own guidelines and in the letter there are means by which the public interest can be served which is why the only stay for which we would now contend is the alternative case we have argued below, namely a conditional stay.  We recognise entirely what your Honour has said.  However, what your Honour has referred to in relation to the DPP, damned if he does, damned if he does not in the court of public opinion, is precisely why it is important for the courts to support, by regarding as serious and as likely to affect the public confidence in the administration of justice, solemn, official statements made by way of self‑guidance and also explanation more broadly, of the way in which the DPP decides the difficult question whether there ought to be a continuation of proceedings or not after they had already, by definition, reached the stage of being before the court. 

McHUGH J:   Well, this will be a new hazard for other office holders, particularly Ministers of the Crown, if they are going to be bound by their statements.

MR WALKER:   Passing over the general realm of the morality of some forms of political science, your Honour, what we can say is that this is peculiar to - the whole doctrine that we invoke is peculiar to the administration of justice.  This has to do with the relation between the court and the Executive at the point where the Executive says to the court roll your machinery on and the court can see that the Executive is doing something which is avowedly, as we would submit and there is a difference between the parties here, contrary to the way in which the matter was explained earlier.

Now, this is not a case where it is said that the learned Crown Prosecutor who invited my learned junior to apply for a nolle prosequi had

made a mistake either in asking that to be done in the consideration given to it or in the outcome of that consideration.  It is not said there was a mistake so that the point, with respect, powerfully made to me by Justice McHugh concerning the need for a functionary such as the DPP to be able to change his mind, ought to be seen as one which involves the correction of error.  We are not arguing against the correction of error and this case provides an appropriate vehicle because it is not a case where the Crown says even now that there was error.

For those reasons, in our submission, this is a case, exceptionally, in the course of, that is interrupting what would otherwise be the stream of criminal proceedings for this Court to interfere, not least because the point in question is one which is lost forever if it is not raised before the trial, the conditional halting of which, of course, is the whole point at issue.  May it please your Honours.

GLEESON CJ:   We do not need to hear you, Mr Solicitor.

This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales which refused leave to appeal from the decision of the Chief Judge at Common Law.  The Chief Judge at Common Law had rejected an application for a stay of a criminal prosecution in relation to alleged kidnapping and murder.

The case involves the application of settled principles to particular facts and circumstances.  It does not raise an issue suitable to a grant of special leave and we are not persuaded that the interests of justice require such a grant.  The application is dismissed.

AT 9.52 AM THE MATTER WAS CONCLUDED