Director of Public Prosecutions (Commonwealth) v Fuller and Cummings (No 2) No. SCCRM 95/426 Judgment No. 6083 Number of Pages 6 Criminal Law

[1997] SASC 6083

IN THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON J

Criminal law - applications for leave to appeal under s352 of the CriminalLaw Consolidation Act from order dismissing so-called Dietrich applications - whether applications competent - consideration of definition of the phrase "issue antecedent to trial" - reference to Hansard - whether special reasons exist why it would be in the interests of the administration of justice to grant leave - leave granted. Dietrich v The Queen (1992) 177 CLR 292; Walton v Gardiner (1993) 177 CLR 378; Devine v Solomjczuk (1983) 32 SASR 538; Workers Rehabilitation & Compensation Corporation v Lu (1995) 183 LSJS 193; WorkCover Corporation (SA) v Summers (1995) 65 SASR 243; Owen v State of South Australia (1996) 66 SASR 251, applied.

ADELAIDE, 26, 28 February 1997 (hearing), 25 March 1997 (decision)

#DATE 25:3:1997

#ADD 1:4:1997

Applicant Michael John Fuller:

Counsel: Mr K V Borick with him Mr G B Hevey

Applicant Joseph Patrick Cummings:

Counsel: Ms B J Powell Qc with her Mr J D Edwardson

Respondent DPP (Cwlth):

Counsel: Mr P J Rice

Solicitors: DPP (Cwlth)

1. In earlier applications, Michael John Fuller and Joseph Patrick Cummings sought orders that the information laid against them be stayed or quashed on the ground that they were indigent persons charged with serious offences who through no fault on their part were unable to obtain legal representation. The information contains twenty-two counts. It included seventeen joint counts, eight alleging that the applicants as directors of a public company fraudulently applied property thereof, contrary to the provisions of s189 of the Criminal Law Consolidation Act, and nine alleging improper use of their position as directors to gain advantage, contrary to the provisions of s229(4) of the said Act. Five charges against the applicant Fuller alone included two further counts under s189, and three further counts under s229(4). The information was laid on 12 March 1996. On 7 February 1997 I dismissed the applications which were clearly prompted by the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292. They now apply for leave to appeal from my decision.

2. The applications are made pursuant to s352 of the Criminal LawConsolidation Act. The present s352 was inserted by s6 of the Criminal Law Consolidation (Appeals) Amendment Act 1995 No 90 which came into effect on 4 January 1996. Section 11 states that it applies only in respect of informations laid on or after that date. So far as is relevant, s352 states: "352 (1) Appeals lie to the Full Court as follows:

(a) ...

(b) if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision -

(i) as of right, on any ground that involves a question of law alone; or

(ii) on any other ground with the leave of the Full Court;

(c) if a court makes a decision on an issue antecedent to trial that is adverse to the defendant -

(i) the defendant may appeal against the decision before the commencement or completion of the trial with the leave of the court of trial (but leave will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);

(ii) the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.

(2) ..."

3. "Issue antecedent to trial" is defined in the Amendment Act as follows: "'issue antecedent to trial' means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court"

4. Mr Rice, counsel for the DPP (Commonwealth), argued that the application for leave to appeal was incompetent as I had not made a decision on "an issue antecedent to trial". Whilst he acknowledged that the judgment of Brennan J (as he then was) in the Dietrich case was a minority one, he relied on the following passage in the judgment at p324: "To grant an indefinite adjournment in cases where there is no abuse of the process of the courts is inconsistent with their constitutional duty. Nor can a refusal to exercise criminal jurisdiction be justified on the ground that the unfairness flowing from the absence of legal representation amounts to an abuse of process. Although unfairness is characteristic of an abuse of process, not every case of unfairness amounts to an abuse of process. None of the cases in this Court goes so far. To the contrary, Jago v. District Court (N.S.W.) (1989) 168 CLR
23 and Reg. v. Glennon (1992) 173 CLR 592 show that it is erroneous to equate the two concepts. When the criminal jurisdiction is invoked for the purpose it is designed to serve, there is no abuse of process. The jurisdiction must be exercised in a way that prevents unfairness as far as possible, but it must be exercised. As a matter of constitutional duty, the courts cannot indefinitely adjourn a trial to force the provision of legal aid."

5. It is true that very many of the authorities relate to situations where there was unfairness because there were defects in the bringing of the proceedings themselves. However, it seems to me that a majority of their Honours in Dietrich shared a broad view of what may amount to an abuse of process. See the judgments of Mason CJ and McHugh J at p298, Deane J at p331, Toohey J at p357 and Gaudron J at p365. I also refer to Walton v Gardiner
(1993) 177 CLR 378. In their joint judgment, Mason CJ, Deane and Dawson JJ said at pp393-395:"In Jago v. District Court (N.S.W.) (1989) 168 CLR 23, at least three of the five members of the Court clearly rejected 'the narrower view' that a court's power to protect itself from an abuse of process in criminal proceedings 'is limited to traditional notions of abuse of process' (ibid, at p28 per Mason CJ). His Honour quoted, with approval, the following remarks of Richardson J. of the New Zealand Court of Appeal in Moevao v. Department of Labour [1980] 1 NZLR 464, at p481: 'public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.'

Deane J. expressed a similar view in his judgment in Jago (1989) 168 CLR, at p58:

' The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years of a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in the case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.'In her judgment in Jago (ibid at p74), Gaudron J. stressed that the power of a court 'to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.' Her Honour added the comment (ibid at p74) 'that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand'. Subsequently in her judgment (ibid at p77), her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings. It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v. Spautz (1992) 174 CLR 509 at pp519-520. When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition (ibid at p520, see, in particular, the approving reference to the judgment of Richardson J. in Moevao v. Department of Labour [1980] 1 NZLR 464 at p482)."

6. The law is now clear in this State that it is permissible to have regard to the Second Reading Speech on a Bill amending an Act of Parliament in order to ascertain the mischief at which the amendment was aimed. (See Devine v Solomijczuk (1983) 32 SASR 538; Workers Rehabilitation & Compensation Corporation v Lu (1995) 183 LSJS 193; WorkCover Corporation (SA) v Summers
(1995) 65 SASR 243; Owen v State of South Australia (1996) 66 SASR 251.) Not surprisingly, counsel for the applicants referred me to the relevant Second Reading speech in the House of Assembly (see Hansard, 15 November, 1995, p512), which included the following: "The provisions of the bill also clarify the rights of appeal by the Director of Public Prosecutions and defendants when applications are made for stay of proceedings on the basis that they constitute an abuse of process ...

A trial court may stay a trial, either permanently or until the happening of some event, on the ground that the proceedings are an abuse of the process of the court.

A permanent stay of proceedings puts an end, in effect, to criminal proceedings. A permanent stay is commonly granted on grounds of policy often associated with the conduct of the prosecuting authorities or the prospects of a fair trial. The effect may be to bring to an end a prosecution which the Director of Public Prosecutions considers to be important. The Director of Public Prosecutions has no right to appeal against a stay of proceedings. It is unsatisfactory that the unappealable decision of a single judge may constitute an insuperable obstacle to further proceedings.

The need to confer a right of appeal on the Director of Public Prosecutions against a stay of proceedings has assumed major importance since the decision of the High Court in Dietrich v R [(1993) 177 CLR 293]. In that case the High Court held that, in the absence of exceptional circumstances, a trial should be stayed where an indigent accused charged with a serious offence is denied legal representation at public expense where he or she is, through no fault of his or her own, unable to meet the cost of representation ...

Clause 6 substitutes a new section 352 in the Act giving the Director of Public Prosecutions a right of appeal against a decision of a judge on an issue antecedent to trial on questions of law alone. In addition, the Director of Public Prosecutions may seek leave to appeal on any other ground. The defendant's right of appeal against a decision on an issue antecedent to the trial is also set out in Clause 6. A defendant may obtain leave to appeal against a decision on an issue antecedent to trial. Leave can only be granted if there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before the commencement or completion of the trial.

There are differences in the rights of appeal of the Director of Public Prosecutions and the defendant because of the different effect a refusal to stay proceedings has on the Director of Public Prosecutions and the defendant. A decision adverse to the Director of Public Prosecutions puts an end to the prosecution. Whereas if an accused claims that the trial judge has wrongly refused a stay he or she can appeal against any conviction on the grounds that the trial should not have proceeded. The appeal provisions recognise that it may be inconvenient to force the defendant to wait until the trial is completed but also recognise that appeals by defendants might be used as a means of delaying the trial."

7. Miss Powell QC, counsel for Cummings, submitted that the interpretation advanced by Mr Rice would have the effect of subverting one of the real objects of the new s352. She pointed out that if Mr Rice was correct that a Dietrich application for a stay is not to be categorised as an abuse of process of the court question, such an interpretation also applied to the rights of the Director of Public Prosecution under subs1(b) of s352 and that was clearly not contemplated in the Minister's Second Reading Speech.

8. I have reached the conclusion that the applications are competent.

9. I turn now to consider whether "there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before the commencement of the trial". As to the phrase "special reasons", I refer to the remarks of King CJ in Goldsmith v Newman (1992) 59 SASR 404. At p409 he said: "The expression 'special reasons' is used in a number of statutes. It takes its colour necessarily from the context in which it is found and in particular from the purpose which the particular statutory provision is intended to serve. I do not think that much, if any, assistance can be gained from the interpretation of the expression where it is used in other contexts."

10. However, there is a useful review of the authorities discussing the phrase "special reasons" in Acre Development Pty Ltd v National Companies and Securities Commission and Another (1987) 46 SASR 238. O'Loughlin J, then a member of this Court, concluded that factual circumstances must exist "that can be classified as extraordinary, unusual or atypical".

11. In Dietrich's case, Mason CJ and McHugh J said at p351: "In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial." (My underlining.)

(See also per Deane J at pp335-336 and per Toohey J at p353, and pp356-357.)

12. In DPP (Commonwealth) v Fuller v Cummings Judgment No 6005 I ruled that the circumstances were exceptional for several reasons, including the fact that the applicants were both solicitors, and the fact that they were experienced and skilled litigants. As far as I am aware, I am the only Judge of a Supreme Court to have refused a Dietrich application for that reason. I also took into account what were then the funding caps for expensive cases as revealed in a circular letter from the Legal Services Commission of South Australia to practitioners dated 19 August 1996. Such circumstances may change, and possibly already have.

13. The trial is estimated to last at least six months. It will be costly. It will be complex. Counsel for the applicants pointed out that if they are convicted, and successfully appeal on the ground that the trial was unfair because of the absence of legal representation, a retrial would pose a further burden for the administration of justice in this State.

14. With some hesitation, I have reached the conclusion that the circumstances were sufficiently atypical to be categorised as special within the meaning of the section, and that it would be in the interests of the administration of justice to have the Full Court review my decision. Accordingly, I grant both applicants leave to appeal therefrom.

15. By way of judicial postscript, I draw attention to the absence of a definition of "court of trial". There is much to be said for that contained in s668 of the Queensland Criminal Code, namely: "The term 'court of trial' means any court from whose finding sentence or other determination a person is by this Act entitled to appeal or to apply for leave to appeal."