Director of Public Prosecutions v "A" (A Child)

[2001] WASC 2

DIRECTOR OF PUBLIC PROSECUTIONS -v- "A" (A CHILD) [2001] WASC 2

Reported Decision:	(2001) 23 WAR 331
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 2
Case No:	CIV:1657/2000	Heard:	4 DECEMBER 2000
Coram:	ROBERTS-SMITH J	Delivered:	11/01/01
No of pages:	19	Judgment Part:	1 of 1
Result:	Application dismissed
PDF Version

Parties:	DIRECTOR OF PUBLIC PROSECUTIONS "A" (A CHILD)
Catchwords:	Application for declarations Children's Court Order staying proceedings on complaint Whether error of law Whether declaration that order wrong in law should be made Criminal law Withdrawal of complaint after ruling excluding evidence Subsequent presentation of fresh complaint Proceedings stayed by President of Children's Court Whether error of law
Legislation:	Children's Court of Western Australia Act 1988 (WA), s 19B(4)(c), s 43
Case References:	Biggs v Director of Public Prosecutions (1997) 17 WAR 534 Director of Public Prosecutions v His Honour Judge G D Lewis (1997) 1 VR 391 House v The King (1936) 55 CLR 499 Jago v District Court (NSW) (1989) 168 CLR 23 Lorkin (1995) 82 A Crim R 196 Miller v The Queen; unreported; SCt of WA; Library No 7945; 7 November 1989 R v Jell ex parte Attorney General (1991) 1 Qd R 48 R v Jemeleita; unreported; SCt of WA; Library No 950720; 19 December 1995 R v Lam (1998) 100 A Crim R 188 R v Stuart & Finch (1974) Qd R 297 Regina v Sang (1980) AC 402 Ridgeway v The Queen (1995) 184 CLR 19 Rozenes v Beljajev (1994) 126 ALR 481 Sankey v Whitlam (1978) 142 CLR 1 Williams v Spautz (1992) 174 CLR 509 Craig v South Australia (1995) 184 CLR 163 Rozenes v His Honour Judge Kelly [1996] 1 VR 320

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DIRECTOR OF PUBLIC PROSECUTIONS -v- "A" (A CHILD) [2001] WASC 2 CORAM : ROBERTS-SMITH J HEARD : 4 DECEMBER 2000 DELIVERED : 11 JANUARY 2001 FILE NO/S : CIV 1657 of 2000 BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS

Plaintiff

AND

"A" (A CHILD)
Defendant

Catchwords:

Application for declarations - Children's Court - Order staying proceedings on complaint - Whether error of law - Whether declaration that order wrong in law should be made

Criminal law - Withdrawal of complaint after ruling excluding evidence - Subsequent presentation of fresh complaint - Proceedings stayed by President of Children's Court - Whether error of law

Legislation:

Children's Court of Western Australia Act 1988 (WA), s 19B(4)(c), s 43

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr E Balodis
Defendant : Mr H N H Christie

Solicitors:

Plaintiff : State Director of Public Prosecutions
Defendant : Legal Aid of Western Australia

Case(s) referred to in judgment(s):

Biggs v Director of Public Prosecutions (1997) 17 WAR 534
Director of Public Prosecutions v His Honour Judge G D Lewis (1997) 1 VR 391
House v The King (1936) 55 CLR 499
Jago v District Court (NSW) (1989) 168 CLR 23
Lorkin (1995) 82 A Crim R 196
Millar v The Queen, unreported; SCt of WA; Library No 7945; 7 November 1989
R v Jell ex parte Attorney General (1991) 1 Qd R 48
R v Jemielita, unreported; SCt of WA; Library No 950720; 19 December 1995
R v Lam (1998) 100 A Crim R 188
R v Rogers (1994) 181 CLR 251
R v Stuart & Finch (1974) Qd R 297
Regina v Sang (1980) AC 402
Ridgeway v The Queen (1995) 184 CLR 19
Rozenes v Beljajev (1994) 126 ALR 481
Sankey v Whitlam (1978) 142 CLR 1
Williams v Spautz (1992) 174 CLR 509

Case(s) also cited:

Craig v South Australia (1995) 184 CLR 163
Rozenes v His Honour Judge Kelly [1996] 1 VR 320

(Page 3)

1 ROBERTS-SMITH J: At approximately 1.00 am on 28 February 1999, the complainant was a passenger in a car being driven North along Marmion Avenue at Marmion. He was employed by a security firm contracted to provide security and surveillance for the Education Department of Western Australia. He and a fellow officer had been doing a routine patrol at Marmion Primary School when they responded to a call to attend Carine Senior High School.

2 They drove North up Marmion Avenue, passing through the intersection of Beach Road. Shortly thereafter the complainant was struck in the head by a rock which had been thrown at the car and which came through the open passenger side window. The rock was about the size of a baseball. He suffered serious injury as a consequence.

3 By a complaint dated 19 March 1999 issued out of the Joondalup Children's Court, the defendant ("A") and another juvenile ("G") were jointly charged that on 28 February they had unlawfully assaulted the complainant, thereby doing him bodily harm contrary to s 317 of the Criminal Code (WA).

4 Both A and G had been separately interviewed by investigating police officers and their interviews had been recorded on video tape. The content of the interview with G implicated both himself and the defendant; in his interview A made no admissions, but did give some answers which were capable of lending some inferential support to the prosecution case in so far as they apparently put him at the scene at the relevant time.

5 Both defendants entered pleas of not guilty and the trial was listed to be heard for two days in the President's Court of the Perth Children's Court to commence on 30 August 1999 as a joint trial.

6 About 27 August the prosecution served the defendant's counsel with 17 prosecution witness statements which, as a result of an administrative error on the part of the prosecution, had not previously been served.

7 When the case was called before the President on 30 August, the prosecution sought, and was granted, leave to amend the charge to one of unlawfully causing grievous bodily harm contrary to s 297 of the Criminal Code. This amendment was apparently based on the availability of additional medical evidence. No objection was taken to it, but counsel for the defendant sought an adjournment of the trial on the basis of the late service of the prosecution statements. That application was granted and

(Page 4)

the case was re-listed for a three day trial to commence on 19 October 1999.

8 However, counsel for both defendants had previously given notice of objection to the admissibility of the video tape interviews and a voir dire was held in relation to those on 30 August. Her Honour gave her ruling on the voir dire on the following day, holding that the interview with the defendant should be excluded in the exercise of her discretion, but that the interview with G was admissible and no basis for its exclusion in the exercise of her discretion had been shown. The trial proper was then adjourned to 19 October.

9 On 14 October, the two defendants were brought back before the President and counsel for the Director of Public Prosecutions ("the Director") informed her Honour that having regard to the outcome of the voir dire in respect of the interview with A and to the DPP Prosecution Policy Guidelines, the prosecution was seeking to withdraw the charge against A and intimated a fresh complaint would be laid in respect of G alone. Counsel who then appeared for the Director put it this way:

"Your Honour having reviewed the evidence against (A) and in regard to your Honour's ruling on the voir dire that was held and bearing in mind the DPP Policy Guidelines it’s the Crown's [sic] view that the charge against (A) be withdrawn.

It is the Crown's intention to lay a fresh charge against (G) alone with regard to a charge of grievous bodily harm …"

10 Her Honour queried whether any counsel had any objection to that course and noted no objection was taken to it.

11 The trial of the new complaint against G commenced on 19 October and on 22 October her Honour found him guilty and recorded a conviction.

12 On 11 November 1999, a fresh complaint was issued out of the Perth Children's Court against A, charging him that on 28 February 1999 he unlawfully did grievous bodily harm to the complainant.

13 On 17 February 2000 the President ordered there be a permanent stay of proceedings in respect of that complaint.

14 By originating summons dated 7 June 2000, the Director sought declarations in the following terms:

(Page 5)

"1. Her Honour Judge French, President of the Children's Court of Western Australia erred in law in determining that it would offend the Court's sense of justice to allow proceedings commenced on complaint number 5978 issued out of the Perth Children's Court and sworn 11 November 1999 alleging that (A) unlawfully did grievous bodily harm to GREGORY LOMAS to continue, and that exceptional circumstances did exist that the court should order a permanent stay of the said proceedings.

2. (A)'s application for a permanent stay of the proceedings commenced by the said complaint should have been refused."

15 No point is taken in these proceedings about the propriety of the course followed by the prosecution in withdrawing the complaint against the appellant and treating that as equivalent to the presentation of a nolle prosequi. That course was followed in reliance upon the provisions of s 19B(4)(c) of the Children's Court of Western Australia Act 1988 ("the Act"), which directs the Children's Court to hear and determine a charge of an indictable offence against a child who is being dealt with in that Court as if the hearing were a trial on indictment and the Criminal Code is expressed to apply to the proceedings with such modifications as circumstances require. For the purposes of this application, therefore, I proceed on the basis of the same assumption, namely that the withdrawal of the complaint may be treated to all intents and purposes as the presentation of a nolle prosequi. The real issue here, of course, is about what happened after that.

16 There is no dispute about the evidentiary situation.

17 The prosecution case against the defendant was not a strong one even were the video recording of his interview with the police to be admitted. It was common ground that without that evidence the prosecution had no case against him. It was because of that appreciation and on that basis that the prosecutor sought her Honour's leave to withdraw the complaint following her ruling that the video recording would not be admitted.

18 In her reasons for decision on the case against G, her Honour concluded (at 144):

"I am satisfied beyond reasonable doubt that on the 28th of February this year the defendant together with a juvenile

(Page 6)

offender who is not before the court at this stage, agreed to throw rocks together at a car travelling down Marmion Avenue. that car turned out to be the vehicle in which Mr Lomas was a passenger.

One of the rocks thrown by either the defendant or his juvenile co-offender was projected through the open passenger window and struck him on the left-hand side of his jaw and caused him grievous bodily harm by shattering some of his jaw bones and causing the serious injuries he sustained.

Because the defendant and the co-offender were acting together, the defendant is criminally responsible for the injuries caused to Mr Lomas whether those injuries arose as a result of the blow from the rock thrown by him or by the rock thrown by his co-offender. There will be a conviction recorded in relation to the charge of grievous bodily harm before me."

19 The reference to the "co-offender" was a reference to the defendant, but of course he had not been a party to that trial and none of those findings were findings against him.

20 On 18 November 1999 G made a statement to the police in which he described having been at a party in Marmion with a group of friends on 28 February 1999. He said he left the party around 12.30 am with a large group of people and he named a number of them, including the defendant. He said they walked to the underpass on Marmion Avenue near McDonalds in Duncraig. He then continued:

"I cannot remember who started the conversation but there was an agreement between (the defendant) and myself to throw a rock across the road at a car travelling along Marmion Avenue.

I selected a limestone rock from the ground. (The defendant) and I went to the top of the embankment and we both stood behind a railing which is back from the road and faces east across Marmion Avenue.

We waited for a car to come along.

As I saw the car approaching, we waited and as I saw it coming into view, I threw the rock in my hand at the oncoming vehicle.

(Page 7)

I saw (the defendant) run down the embankment and through the underpass with me.

I later went home with a group of friends."

21 This statement apparently reflected the content of what G had said in his interview to the police and his evidence on his own trial. There was nothing either new or surprising in it to the prosecution.

22 Although in the course of submissions to her Honour on 14 February concerning the application by the defendant for an order staying the second complaint against him, his counsel did contend that the only reasonable inference open from the course taken by the prosecution in withdrawing the earlier complaint was that it had been withdrawn on the basis the prosecution was going to get access to G's evidence at some future time, and the prosecution against the defendant could then be re-initiated, it was, I think, in the end (and it was certainly the case before me) that no suggestion to that effect was being made. The matter was finally approached before her Honour as it was before me on the basis that the prosecution had sought leave to withdraw the initial complaint simply because of its appreciation that following the ruling made by her Honour, the prosecution had insufficient evidence even to make out a case for the defendant to answer. There is no suggestion that there was in the contemplation of the prosecution at that time, an intention nor even a possibility, that once G had been dealt with, a fresh complaint would be issued against the defendant and G would be called by the prosecution in support of it.

23 In her ruling on the application on 17 February 2000, French P encapsulated the prosecution submissions as being that there was nothing to enliven the inherent jurisdiction of the court because there was no delay, no abuse of process, no evidence that the fresh proceedings had been commenced through any ulterior motive, and no unfairness or injustice to the defendant (ruling, p 6).

24 While her Honour accepted the delay was not significant compared to the extended delay in authorities such as Jago v District Court (NSW) (1989) 168 CLR 23 and R v Jell ex parte Attorney General (1991) 1 Qd R 48; she said it is nonetheless also the case that delay in terms of a juvenile offender must be seen in a different time frame and in conjunction with issues as to certainty and the finality of proceedings. Her Honour expressly found there was no evidence of any kind of ulterior motive nor entrapment by the prosecution - the issue was simply one of a

(Page 8)

decision that had been altered or a change of mind after the completion of the case in relation to the defendant's co-accused.

25 Given the fact that the case had been listed for trial on 30 August, and that although the trial was not completed that day because the actions of the prosecution forced an adjournment, nonetheless there had been a voir dire as to the admissibility of the video records of interview, and in the circumstances it was her Honour's view that the trial process had commenced. The relevance of this was to do with her Honour's observation (ruling, p 8) that while the Crown has power to file a nolle prosequi at any time prior to a case going to the jury, it is unusual for that to be done during the course of a trial after a decision has been made regarding the admissibility of evidence sought to be tendered by the prosecution, or indeed, after a submission of no case to answer has been upheld. Her Honour described the usual course in those circumstances being for a directed acquittal, or in the Children's Court jurisdiction, for the complaint to be dismissed. In this context her Honour noted the comments of Malcolm CJ in Lorkin (1995) 82 A Crim R 196 at 215:

"There may, of course, be a valid reason why a nolle prosequi should be accepted even during trial. The example given is where a vital witness may be incapacitated or where there may be suspected witness tampering causing a vital witness to change his story. Other examples can readily be imagined."

26 As her Honour observed, there is an inference from that comment that it is an unusual procedure.

27 Later, in relation to the circumstances before her, French P made the following observation (at 8):

"However it was not contemplated at the time that the complaint would be resurrected on the basis of the evidence of the co-accused that was not then available to the prosecution. It is to be noted that the practice of conducting a voir dire regarding the admissibility of vital pieces of evidence prior to the trial date has resulted in the practice of withdrawing charges rather than having them dismissed. A voir dire prior to the trial avoids delay and inconvenience to the court, the prosecution, the defence and the witnesses. With the consequences that have arisen in this case it is unlikely that this practice would continue."

(Page 9)

28 In the end it was the combination of the particular circumstances of the case which led her Honour to the conclusion that to allow the proceedings to be re-commenced under the fresh complaint would offend the court's "sense of justice" and that in such exceptional circumstances a permanent stay of the proceedings should be ordered. Her Honour described the circumstances in the following way:

"As at 31 August and when leave was sought on 14 October and at all times prior to the conclusion of the prosecution evidence in the case in relation to the co-accused, the prosecution was of the opinion, that it did not have a prima facie case. It is arguable that that was always the case even before the video record of interview was ruled inadmissible. No direct admissions were made in that video record of interview and it was the prosecution's submissions that the significance of the video was that an incorrect version of the events of that evening had been given by (the defendant).

The prosecution could not call a co-accused to give evidence as part of its case at that time and, of course, the video record of interview of the co-accused which did implicate (the defendant) could not be used against a co-accused in the course of a joint trial.

However, by withdrawing a complaint and issuing a fresh complaint, the prosecution thwarts this quite proper consequence of a joint trial, the effect of the rules of evidence and the decision of this court in relation to the admissibility of the video record of interview. It effectively deprives this defendant of his right to be tried in the circumstances and in the manner that was available to him at the time the matter came on for trial.

It is quite a different situation than an issue of the availability of a witness or a matter of evidence coming to light after a decision has been made to withdraw a prosecution. The evidence in this case is not new. It is available only because of the withdrawal of the complaint and not as an incident of the fact that the proceedings have been delayed and re-issued.

In this case it is the fact of the withdrawal of the complaint following a decision of the court regarding the admissibility of evidence that constitutes an exceptional circumstance. As was

(Page 10)

pointed out by the defendant's counsel, if an application was made to have separate trials and adjourn the trial of this defendant until after his co-accused's trial in order to be able to call the co-accused as a prosecution witness it would have been vigorously opposed and would not have succeeded. The prosecution chose to charge these two co-accused jointly and the matter proceeded at all times as a joint trial. The prosecution was well aware of the nature of the co-accused's evidence because it was substantially the same as it was in the video record of interview." (emphasis added)

29 It is true, as was contended on behalf of the prosecution, that pursuant to s 581 of the Criminal Code, the Crown may advise the court that it will not further proceed on any indictment then pending in the court and that there is nothing in s 581 which prohibits the Crown from presenting another indictment at a later time, charging an accused with the same or a similar offence arising out of the same or similar facts (R v Lam (1998) 100 A Crim R 188; Millar v The Queen, unreported; SCt of WA; Library No 7945; 7 November 1989). Nor could it be said to be inappropriate for the Crown to present a nolle prosequi against an accused when faced with a change in its case such that to proceed further would be unfair or oppressive: R v Jemielita,unreported; SCt of WA; Library No 950720; 19 December 1995. But it is not the filing of a nolle prosequi (or in this case the withdrawal of the complaint on the same basis) that is in issue here.

Abuse of Process

30 Before me, counsel for the plaintiff emphasised that the decision to withdraw the complaint against A following the ruling of her Honour was made simply because it then became apparent that there would be no prima facie case against him. Counsel went on to say that the Crown could not know the manner in which G would defend the charge brought against him, nor that not only would he implicate himself in the throwing of a stone (albeit at another vehicle), but that he would also implicate A. He submitted that nor could it be contemplated by the prosecution that in her reasons for decision the learned President would not only convict G, but also make findings that A was complicit as a co-offender. Finally, he submitted that the prosecution could not have assumed that G would be prepared to sign a statement to the police after his conviction in which he accepted that he and A had agreed to throw a stone at an oncoming vehicle. In summary, it was put that the decision by the prosecution to withdraw the complaint against A was not done to avoid the ruling made

(Page 11)

by the learned President on the voir dire - that ruling will remain and the prosecution would not seek to use that video interview in any way against A on a re-trial. The position now is, however, (as was put by counsel) that the Crown now has available to it evidence from another source that was not available to it at the time of trial and that a fresh complaint based on this new evidence in the circumstances of the case does not constitute an abuse of process.

31 For his part, Mr Christie for the defendant points out that the prosecution had made the decision to proceed by way of a joint trial initially knowing that it could not use the evidence contained in G's videotape record of interview at that trial to implicate A. He argues this is not a case as suggested by the prosecution where new evidence became available at or after G's trial. Whilst G made another statement against A on 18 November 1999, the evidence implicating A was equally available in G's record of interview.

32 Mr Christie submitted that if after the voir dire had been held and the learned President had ruled against the admission of A's record of interview, the prosecution had then attempted to resolve its lack of evidence against A by applying for severance of the joint trial and for the complaint against A to be adjourned until after G's trial, there would need to have been substantial grounds for such application to succeed: R v Stuart & Finch (1974) Qd R 297. He said it is implicit in her Honour's reasons that she would have refused to allow the complaint against A to be severed and adjourned if that application had been made after the trial process had begun, and equally, she would have refused the application for leave to withdraw the complaint if it had been suggested then that a fresh complaint would be issued following G's trial. What he identifies as the abuse of process involved in this is that the prosecution would be achieving a result which would not have been possible if the Court had appreciated the consequences of giving leave to withdraw the complaint, and he says it was on that basis that her Honour ordered a permanent stay.

33 These last submissions about what course her Honour would have taken had the prosecution sought to withdraw the complaint with a view to proceeding later do, in my view, fairly reflect what was in her Honour's mind at the time as indicated by what she actually said.

34 The Children's' Court of Western Australia is established by s 5 of the Act. It is a court of record (s 53 of the Act). The plaintiff accepts that the Children's' Court has the power in appropriate circumstances to permanently stay a complaint. That much is clear. The Court has

(Page 12)

inherent power to prevent abuses of its process and to control proceedings before it if they would constitute oppression or injustice to the accused: Jago v District Court (NSW) (1989) 168 CLR 23. In this context "injustice" may have a limited meaning although the power is not to be confined to closed categories and it may be more readily seen in criminal than civil cases (per Mason CJ ibid at 25-26).

35 In criminal cases the concept of unfairness to the accused is not confined to traditional notions of abuse of process, such as bad faith or oppression; however because the power to prevent an abuse of process is derived from the public interest (there in the context of an application for a stay on the ground of undue delay at least), fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed (Mason CJ ibid at 30-33). It is apt to ask whether the circumstance complained of is such that "… any conviction would bring the administration of justice into disrepute" (Mason CJ ibid 34).

36 It is within the inherent power of the Court to decline to accept a nolleprosequi even before the trial has commenced if it is necessary to prevent an abuse of process and to avoid unfairness and prejudice to the accused: R v Jell & Ferguson ex parte Attorney General (supra).

37 In Lorkin (supra) an appeal by the Crown against a directed acquittal following the refusal of a trial judge to accept a nolle prosequi or to order an adjournment of the trial was dismissed. Although a trial date had been set some months in advance the Crown had not attempted to serve subpoenas until the week prior to trial at which time it was discovered that critical witnesses were unavailable. The Crown applied for an adjournment. The respondent opposed that application on the ground of injustice. The adjournment was refused on the basis the trial dates had long been agreed and allocated, that an adjournment would result an injustice to the accused and was not in the public interest and that probably the fine would be less than the respondent would incur in costs thrown away in respect of an adjournment in any event. When the case was called on the Crown sought to tender a nolle prosequi. The trial judge refused to accept it because he considered that would undermine the fundamental intent of his decision to refuse the adjournment. He accordingly directed that the case would proceed and ultimately directed the jury to acquit the respondent when the Crown called no evidence.

38 At 205-6 Malcolm CJ described the view taken by Mason CJ in Jago as "a relatively broad view of the inherent jurisdiction or power to prevent abuse of process" and added (ibid at 206) -

(Page 13)

"In Walton v Gardiner (1993) 177 CLR 378 at 393-395 the broad view of the approach to the scope of abuse of process was adopted by Mason CJ, Deane and Dawson JJ, who held that the power of the Court to stay proceedings as an abuse of process was not limited to cases where the proceedings had been brought for an improper purpose, or where there was no possibility of a fair hearing. The power extends to cases where the Court was satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness."

39 His Honour then discussed in detail the authorities relating to the presentation and effect of a nolle prosequi, in particular Jell,before turning to Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431 which as he pointed out (at 212) was primarily concerned with the question of proceedings alleged to have been instituted and maintained for an improper purpose. As the Chief Justice noted, there was no element of improper purpose in the case before him, it was rather the policy considerations referred to by Lord Scarman in Regina v Sang (1980) AC 402 at 455 which were there called in to play. Those policy considerations were first that the public interest in the administration of justice requires a court to protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike; the second was that unless the court protects its ability to function in that way its failure to do so would lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.

40 Malcolm CJ concluded (ibid 212) -

"In terms of the ultimate merits of the matter the question is raised whether, the adjournment of the trial have (sic) been refused, the use of the process to inform the Court that the Crown did not intend to proceed further on the inducement (sic) by way of nolle prosequi involved the use of a process in a way which was so unfair to the citizen as to be likely to erode public confidence in the administration of justice. In my opinion, the use of the nolle prosequi in the circumstances of this case could only serve one purpose, namely to preserve to the Director the option of presenting a fresh indictment in a situation in which, as a result of the failure of his officers to take the necessary steps to secure the attendance of witnesses, the administration of justice demanded that an adjournment be refused and that the trial be called on. In such circumstances, while there is no

(Page 14)

suggestion of any impropriety on the part of the Director or any of his officers, the effect of the nolle prosequi was to secure to the prosecution an opportunity to recommence the prosecution in circumstances where the Court was rightly of the opinion that an adjournment should be refused and a jury empanelled because any further delay in the trial would be unfair and prejudicial to the respondent."

And at 217 his Honour said:

"I have concluded that the circumstances were sufficiently exceptional to justify the learned trial Judge in refusing to accept the nolle prosequi. The only purpose to be served by the acceptance of the nolle prosequi would be to preserve the discretion of the Director to present a fresh indictment. In the circumstances the presentation of a fresh indictment would necessarily be inconsistent with the refusal of the adjournment, could only be calculated to defeat the ends of justice sought to be achieved (sic) by that refusal and would constitute an abuse of process. In my view, it is no answer to suggest that the question whether a further prosecution commenced by the presentation of a fresh indictment ought to be stayed as an abuse of process should only be considered, if and when the indictment is presented."

41 Kennedy J agreed with the Chief Justice.

42 It can readily be seen that the present case has features notably similar in some respects to those in Lorkin.

43 An application for an order that a nolle prosequi not be accepted was refused by Walsh J in R v Jemielita (supra) because his Honour was not satisfied either that exceptional circumstances had been shown or that there had been abuse of process. His Honour considered Lorkin but thought it to be clearly distinguishable. In Jemielita the circumstances in which the Crown sought to present the nolle prosequi were described by the Crown prosecutor in the following way (ibid 7) -

"On 19 October 1994, the coroner at Bunbury committed the accused for trial on a charge of wilful murder. On 1 March this year a jury convicted the accused of wilful murder. The Crown conceded the accused's appeal against that conviction because of a misdirection by the learned trial judge. The concession of the Crown had nothing to do with the sufficiency of evidence.

(Page 15)

Indeed, the Court of Criminal Appeal, of which your Honour was a member, found that there was a case for the accused to answer, and on 2 June of this year the Court of Criminal Appeal ordered a retrial. On 9 November again of this year, the retrial had to be aborted due to the illness of the trial judge. By that date, one of the chief witnesses for the prosecution, Dr David Joyce, had given consistent evidence three times in the matter. On 27 November, Dr David Joyce advised the Director of Public Prosecutions as follows, …

Because of this change, your Honour, coupled with the other evidence on causation given at trial, the Crown considers that it is now unable to prove a necessary element of an offence of homicide, namely causation, beyond reasonable doubt. While the circumstances surrounding Dr Daney Russell's death may give rise to aiding a suicide, contrary to s 288 of the CriminalCode, there are significant factual difficulties with such a charge. In any event, having regard to the time which Dr Jemielita has already served in custody, the Director of Public Prosecutions has concluded that there is no sufficient public interest in proceeding further.

In those circumstances, your Honour, it can be seen, with respect, that the Crown has acted with complete propriety and, in those circumstances, I now tender a nolle prosequi to terminate all proceedings."

44 His Honour accepted that he had inherent jurisdiction to refuse to accept a nolle prosequi to prevent an abuse of process or unfairness to an accused in a general sense but noted that the power is one to be exercised only in exceptional cases. He was satisfied that the procedure followed by the Crown for the reasons given by it was entirely appropriate and had not been demonstrated in the circumstances to be oppressive, unfair or unjust; there was nothing before him to indicate in any way that the Crown was seeking to obtain an improper advantage by lodging a nolle prosequi with an improper purpose of seeking to gain time to endeavour to bring the same or some other charge at a subsequent date. He was not satisfied that exceptional circumstances nor any abuse of process had been shown. His Honour did note however that if subsequently proceedings were brought against the respondent arising out of the death of his wife either in the form laid in the indictment or some other form and it were to be then demonstrated that those proceedings flew in the face of undertakings given to the Court (or for any other reason) it would be open for the

(Page 16)

respondent to invoke the inherent jurisdiction of the Court to stay those proceedings on the grounds of abuse of process or inherent unfairness.

45 There is an immediate and important point of distinction between the present case and those of Lorkin and Jemielita. Both of the latter concerned a refusal to accept a nolle prosequi. In the present case leave to withdraw the initial complaint was granted and the complaint was withdrawn. That was equivalent to the presentation (and acceptance) of a nolle prosequi. What occurred here was that a second complaint was subsequently filed and it was the proceedings in relation to that in respect of which the stay order was made. This was therefore the further stage referred to by Walsh J and it enabled a consideration of factual circumstances pertaining to the conduct of the trial, by then known, rather than merely to be anticipated. In this regard her Honour's view of the circumstances and the fact that had the prosecution sought severance of the trials and an adjournment of that relating to A that application would have been refused, is highly apposite: it was her view that by withdrawing the complaint and issuing a fresh complaint the prosecution was thwarting what would otherwise have been the proper - and indeed intended - consequence of the joint trial, the effect of the rules of evidence and the decision she had made in relation to the admissibility of the video record of interview. It was the withdrawal of the complaint and the presentation of a fresh one in those circumstances that constituted an exceptional circumstance. She expressly referred (with apparent agreement) to the point made by the defendant's counsel that had the prosecution applied for separate trials and an adjournment of A's that would have been refused.

46 It is thus clear that, as in Lorkin, her Honour saw the course intended by the prosecution as one which would unfairly defeat the consequence of her procedural or evidentiary ruling. In R v Rogers (1994) 181 CLR 251 Mason CJ said:

"'The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law … I agree with the reasons given by Deane and Gaudron JJ for concluding that the prosecution's tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's

(Page 17)

genuine purpose to obtain the relief sought in the second proceeding. The circumstances in which abuse of process may arise are extremely varied and it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.'

See also the judgment of Deane and Gaudron JJ (at 275 and 280)."

47 Her Honour's reference to the new proceedings being such in the circumstances as to "offend the Court's sense of justice" was drawn from the following passage in the judgement of Toohey J in Ridgeway v The Queen [1995] 184 CLR 19 at 59-60 -

"There is no doubt that a court may intervene to prevent an abuse of its process in criminal as well as civil proceedings. The concept of abuse of process is not a precise one, nor can it be. It gives effect to a concern on the part of courts that may arise in a variety of circumstances but at the heart of the concept lies the legitimate power of the courts to stay prosecutions brought in exercise of the prerogative of the Crown.

Generally, abuse of process derives from a concern that judicial process be not invoked for an improper purpose and that the process be not abused in a way that interferes with the conduct of a fair trial. There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt that the accused will receive a fair trial.

Equally, an accused may not receive a fair trial by reason of delay, for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior court to stay its proceedings on grounds of abuse of process is not confined to those situations. A stay of criminal proceedings gives effect to the view that it would 'would offend the court's sense of justice' if the accused had to stand trial in those circumstances."

48 It must be remembered that the exercise of this inherent power by her Honour was a matter of discretion. The principles applicable to an appeal from a review of an exercise of judicial discretion are well established: House v The King (1936) 55 CLR 499.
(Page 18)

49 In this case the plaintiff has not shown any specific error of law or fact. Her Honour had regard to the appropriate principles and considerations and has not been shown to have taken any irrelevant consideration into account. The order made was open to her in the circumstances - the making of it does not itself bespeak error. Indeed, my own view is that the order ought to have been made - although it is not necessary for me to go that far for the application to fail.

50 Although the foregoing conclusion is sufficient to dispose of this matter I should say something about the nature of these proceedings.

51 The application is for declarations.

52 Section 41 of the Act provides for an appeal to the Supreme Court from a decision of the Children's Court constituted otherwise than to include a judge. Section 43(1) provides that an appeal lies from a decision of the Court when constituted by or including a judge to the Full Court. Section 43(3)(b) states that in subsection (1) of s 43 "decision" has the same definition as in s 41(2). The latter defines decision as meaning -

"(a) a decision as to the jurisdiction of the Court;

(b) a decision allowing a demurrer to a complaint or arresting judgment on a complaint or quashing a complaint;

(c) a conviction or a finding whether made following a plea of guilty or an admission of the truth of any matter or following trial;

(d) an acquittal;

(e) a dismissal of a complaint;

(f) a decision to make an order under Part 7 of the Young Offenders Act 1994 dealing with a person for an offence (whether or not the person may thereafter be further dealt with for the offence);

[(g) deleted]

(h) a penalty imposed or order made consequent on any such decision, conviction, finding, acquittal, or dismissal,

(Page 19)

and whether in relation to a complaint of an indictable offence or not but not a decision relating to bail under the Bail Act 1982."

53 As Mr Balodis for the plaintiff pointed out s 688(2)(a) of the Criminal Code gives the Crown a right to appeal against a stay order made in proceedings on indictment but there is no corresponding provision in the Act.

54 This Court clearly has jurisdiction to grant declaratory relief even in respect of criminal proceedings conducted in a superior court of record such as the District Court: Sankey v Whitlam (1978) 142 CLR 1; Rozenes v Beljajev (1994) 126 ALR 481, 517-521; Director of Public Prosecutions v His Honour Judge G D Lewis (1997) 1 VR 391, 401-403; Biggs v Director of Public Prosecutions (1997) 17 WAR 534 per Kennedy J at 542-544 and Franklyn J at 549-554,

55 Counsel for the plaintiff made the point that this is not a case in which a declaration would fragment criminal proceedings. The criminal proceedings have ended pursuant to the stay order made by the learned President. I did not fully understand this submission - there would seem to be little point in an application for a declaration that her Honour's decision was wrong if it were not intended to then subsequently proceed further on the second complaint. Be that as it may, although the prospect of fragmenting continuing criminal proceedings is one which would generally be a most significant consideration militating against the grant of such relief, the power would generally be exercised only in exceptional cases whether that prospect existed or not (Biggs (supra)). Thus, exceptional circumstances must be shown before such a declaration will be made. In my view, none have been demonstrated here.

56 Delay is also relevant on an application of this kind. The initial complaint against A was withdrawn by leave on 14 October 1999. The trial of the complaint against G was heard on 22 October 1999. The second complaint was laid against A on 18 November 1999. Her Honour's ruling staying proceedings on that second complaint was made on 17 February 2000. The application for declaratory relief was not filed in this Court until 7 June 2000. There is no explanation for the delay between February and June. This delay alone would, in my opinion, preclude the exercise of my discretion in favour of the plaintiff.

57 The plaintiff's application must be dismissed.