Director of Public Prosecutions v Patterson

[2024] VCC 1436

IN THE COUNTY COURT OF VICTORIA

 Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01818

CR 23-02373

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS PATTERSON

ADAM ROOB

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2024
DATE OF RULING:	16 August 2024
CASE MAY BE CITED AS:	DPP v Patterson & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1436

REASONS FOR RULING

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Subject:	CRIMINAL LAW
Catchwords:	Prosecution filing of Notice of Discontinuance – Notice filed after pre-trial ruling determined entirety of prosecution evidence as inadmissible -  whether court should refuse acceptance of Notice of Discontinuance – whether notice of discontinuance constitutes abuse of process.
Legislation Cited:	Public Health and Wellbeing Act 2008; Criminal Procedure Act 2009; Evidence Act 2008
Cases Cited:	DPP v Patterson & Anor [2024] VCC 487; Bunning v Cross [1978] 141 CLR; Ridgeway v The Queen [1995] HCA 66; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; Brazel v Magistrates' Court of Victoria [2018] VSC 48; R v Woodhouse [1919] VLR 736; Bishop v Cody [1939] VLR 246; R v Lorkin [1995] 15 WAR 499, Maxwell v The Queen [1996] 184 CLR 501; Ayles v The Queen [2008] HCA 6; R v GJA [1998] 99 ACR 491; R v Swingler [1996] 1VR 257; Director of Public Prosecutions (SA) v B [1998] 194 CLR 566; R v YL [2004] 187 FLR 84; R v SH [2009] 195 at ACR 233
Ruling:	Notice of Discontinuance accepted. Charges pursuant to s203 of Public Health and Wellbeing Act withdrawn.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ruddle KC with Mr L. Andrews	Office of Public Prosecution
For Accused Patterson & Anor	Mr J. Prus	Bevan-Rhys James Barrister and Solicitor
For Accused Roob	Mr S. Nayel	Bevan-Rhys James Barrister and Solicitor

HER HONOUR: 

1On 16 April 2024 I delivered a pre-trial ruling in this matter effectively rendering inadmissible the entirety of the prosecution case against
Mr Patterson and Mr Roob.  (See DPP v Patterson & Anor [2024] VCC 487) Consequently the Director of Public Prosecutions filed a notice of discontinuance in the matter.

2Defence counsel have now made application that I refuse the Notice of Discontinuance together with withdrawal of summary charges laid against their clients pursuant to s203(1) of the Public Health and Wellbeing Act. The defence seek that I instead direct verdicts of not guilty pursuant to s 206(3) of the Criminal Procedure Act in relation to the charges on the indictment and likewise dispose of charges laid pursuant to the Public Health and Wellbeing Act by directed verdicts of not guilty.

3The defence also submit that of its own volition the court should otherwise permanently stay all the proceedings, in order it says, to prevent any further abuse of its own processes.  Defence counsel, in particular Mr Nayel on behalf of Mr Roob (his submissions also being adopted by Mr Prus for Mr Patterson) submitted that all the charges faced by the accused were improperly laid.  He submitted that the evidence from the body worn camera footage clearly demonstrated the unlawfulness of police actions and the innocence of their clients.

4In my ruling I found that police had engaged in unwarranted and unlawful violence against a member of the accused’s party, a Mr Jason Reeves which led to a physical response by Mr Patterson and Mr Roob and ultimately, pursuant to s 138(1)(b) of the Evidence Act I ruled that the filmed police evidence  to be inadmissible at trial.  I also ruled the written statements of police were likewise inadmissible.  This effectively, as I have said, made inadmissible the whole of the prosecution case against Mr Patterson and Mr Roob. 

5Mr Prus, for Mr Patterson, also argued that the nature of this evidence was such that ethically the Office of Public Prosecutions had a duty to discontinue proceedings as soon as it became aware of that evidence.  He submitted that in those circumstances proceeding with any prosecution at all of Mr Patterson and Mr Roob amounted to an abuse of process, and that any Notice of Discontinuance should have been made at a much earlier stage.  Mr Prus drew on his personal experiences as a prosecutor in support of his submission, but otherwise did not rely on any authority to that effect.

6Mr Nayel submitted that I should find police had deliberately taken the action they did in order to provoke in particular, Mr Patterson into action, in order to lay charges against he, and then Mr Roob.  He submitted that on that basis the mere laying of the charges against them amounted to an abuse of process.  Both counsel also sought the opportunity to call further evidence to establish what they alleged was a preconceived plan by police to undertake certain action in the hope they could provoke Mr Patterson and Mr Roob into physical actions in response, allowing them to lay charges against both accused men.

7In support of his submission Mr Nayel particularly relied upon the High Court decision of Ridgeway v The Queen [1995] HCA 66. In that case police illegally imported heroin into Australia in order to sell it to the appellant so that he could be arrested and charged with being in possession of the illegally imported heroin. The accused was convicted at trial after the judge declined to exclude police witness or to permanently stay the proceedings on the grounds of entrapment.

8In essence the High Court ruled the evidence was inadmissible pursuant to the principles enshrined in Bunning v Cross [1978] 141 CLR (which are now statutorily encapsulated in s 138 of the Evidence Act).  Their Honours, Mason CJ, Dean and Dawson JJA permanently stayed the proceedings on the basis that without that evidence the prosecution was doomed to failure.  Their Honours Brennan and Toohey JJA who likewise held the evidence was inadmissible directed verdicts of acquittal, while Her Honour Gaudron J permanently stayed the proceedings on the grounds that they were an abuse of process.

9Mr Nayel made particular reference to the statements of Her Honour Gaudron J to the effect that criminal proceedings continued an abuse of process if they were brought for an improper purpose,  Her Honour stating at paragraph [36]:

'The critical consideration in my view is whether the offence results from the criminal acts of law enforcement agents or those that acting on their behalf'. 

10At paragraph [38] Her Honour stated:

'But what is more important is that the administration of justice is inevitability brought into question and public confidence in the courts is necessarily diminished where the illegal actions of law enforcement agents culminating in the prosecution of an offence which results from their own criminal acts'.

11Mr Nayel submitted that the unlawful violence employed by police on Mr Reeves instigated the alleged offending and was deliberately inflicted by them in the reasonable belief the accused were likely to protect Mr Reeves after he was physically attacked.  He submitted the accused had had no intention of committing any offences whatsoever even when an opportunity arose prior to those police actions, and further that the lawful response of the accused was also induced by what he described as 'persistent importunity by police for the circa 50 minutes that police stalked, intimidated, harassed, pushed and shoved the group that the accused was with as they made their way back to the cars'.

12Applying the judgment in particular of Her Honour Gaudron J, Mr Nayel submitted that the charges arose by virtue of police criminality, were therefore the result of an abuse of process and that this court on that basis should therefore proceed to the same findings and orders as had Her Honour and other members of the High Court.

13Ms Ruddle KC for the Office of Public Prosecutions submitted that in order to refuse a notice of discontinuance it must be established that that discontinuance in and of itself comprised an abuse of process, which, she also submitted did not apply in the present circumstances.

14Ridgeway of course is a leading authority on the issue of entrapment and the principles that apply in determining whether evidence has been improperly obtained.  However the High Court did not in that case concern itself with the question central to the current application,  that is, whether I should refuse to accept then Notice of Discontinuation filed by the OPP.

15There is a distinct body of law on this issue. The authorities make it clear that a court does have the power to refuse a Notice of Discontinuance in rare and exceptional circumstances. (See: eg. question of law reserved on Acquittal No.3 of 1995, a decision of the South Australian Court of Appeal [1996] 66 SASR 450)

16A useful summary of the authorities on this particular and discreet question, that is, when a court may so proceed to refuse a Notice of Discontinuance, was contained in the judgment of His Honour Reardon J in the case of Brazel v Magistrates' Court of Victoria [2018] VSC 48. In that case the accused sought to challenge the withdrawal of summary charges laid against him in the Magistrates' Court. However the magistrate declined to allow him to mount any argument on this question before accepting the withdrawal. Ultimately His Honour held that Mr Brazel should have been given that opportunity.

17His Honour referred to a number of cases relating to the question of the court's power to refuse a nolle prosequi (as it then was) or a Notice of Discontinuance as this now is.  They were R v Woodhouse [1919] VLR 736, a decision of the Full Court of Victoria and pertaining to the withdrawal of summary charges. Likewise the case of Bishop v Cody [1939] VLR 246, also a decision of the Victorian Court of Appeal deals with the withdrawal of summary charges. R v Lorkin [1995] 15 WAR 499, a decision of the Full Court in the Western Australian Supreme Court. R v Jell; ex parte Attorney-General [1991] 1 QLR 48, a decision of the Queensland Court of Criminal Appeal.  Maxwell v The Queen [1996] 184 CLR 501, a decision of the High Court. Ayles v The Queen [2008] HCA 6, another decision of the High Court. R v GJA [1998] 99 ACR 491, a decision of the New South Wales Criminal Appeal.  R v Swingler [1996] 1VR 257. Director of Public Prosecutions v South Australia VB [1998] 194 CLR 566, a decision of the High Court. R v YL [2004] 187 FLR 84. R v SH [2009] 195 at ACR 233.  I have read and had regard to all of these cases in reaching my decision.

18The Court of Appeal in Swingler stated:

'We do not say there can never be a case where the exercise of this power to make presentment on a charge in respect of which a nolle prosequi has recently been entered will amount to an oppressive exercise of prosecutorial power and thus an abuse of the court's processes.  The categories of abuse case as has often been said are never closed'. 

19Indeed I make the observation that the factual circumstances in the cases I have referred to varied considerably.  In Director of Public Prosecutions (SA) v B their Honours Gaudron, Gummo and Hang JJ at p580 of that judgment appeared to draw a distinction between the rejection of a nolle prosequi entered prior to the start of a trial and one tendered afterwards stating:

'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 is 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 where the prosecution of fresh information amounted to some abuse of process.  But those questions did not arise here'.

20It was certainly the case in the authorities I have referred to, that generally speaking, a trial judge's decision to refuse a nolle prosequi was upheld by superior courts in circumstances where a jury had been empanelled and a trial commenced, although not always.  Ultimately at paragraph 9 of his judgment Reardon J stated:

'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 purposes 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, Gummo and Hang JJ in Director of Public Prosecutions (SA) v B. 

21At paragraph 50 His Honour said he considered that the questions effectively were whether a trial had commenced or not or on the capacity of a court to refuse a nolle prosequi was still open as in his view the statement of their Honours in Director of Public Prosecutions (SA) v B appeared to be obiter and possibly not intended to extend beyond the facts of that case.  Nor did their Honours disclose a detailed analysis of why 'conduct prior to the commencement of the trial could not constitute an abuse of process'.

22Specifically on the question of the power of the Director of Public Prosecutions to enter a nolle prosequi, their Honours Gaudron and Gummo JJ stated in Maxwell v The Queen [1996] 185 CLR 501 at 534:

'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'.

23In the present case the Director of Public Prosecutions had the option of challenging my ruling via interlocutory proceedings in the Court of Appeal.  It did not do so.  In those circumstances, as I have said, the prosecution was left with the situation where it had no evidence available on which to proceed against either Mr Patterson or Mr Roob. 

24Defence counsel submitted that their clients were entitled to an acquittal and that the Office of Public Prosecutions should have proceeded pursuant to s 206 of the Criminal Procedure Act whereby pursuant to s 206(2), they informed the court they proposed not to lead any evidence upon which, pursuant to s 206(3), the court must direct that an entry of not guilty be made on the record in respect of the charges, this having the same effect as if it were the verdict of a jury.

25Section 177 of the Criminal Procedure Act empowers the Director of Public Prosecutions to discontinue a prosecution without adjudication noting at sub-section (6) that:

'A discontinuance of prosecution does not amount to an acquittal'.

26and at sub-section (7):

'An accused may be indicted on a charge in respect of which an earlier prosecution has been discontinued'.

27Having had regard to the cases I have outlined, while the individual circumstances varied, generally speaking the decision of a trial judge to refuse to accept a nolle prosequi or a Notice of Discontinuance was upheld in circumstances not only where the trial had commenced, but also where it was reasonably evident that the discontinuance was sought by the prosecution to buy time to revise its case and preserve prosecution capacity to recommence proceedings against the accused at a later date.

28This is not the case here.  There is now effectively no remaining prosecution case against the accused.  Nor is there any realistic possibility that these charges could be re-agitated in the future.  Any attempt to do so would undoubtedly be met with the entirely viable argument that such action in and of itself constituted an abuse of process justifying an appropriate remedy such as a permanent stay.

29Having elected not to challenge my ruling, the prosecution has, unsurprisingly in my view, proceeded by way of a Notice of Discontinuance. I am unable to discern any abuse of process in the laying of that notice. The decision by the Director of Public Prosecutions to proceed via s 177 of the Criminal Procedure Act rather than s 206 is an executive one, and entirely within the legitimate province of the Director. It involves no stratagem to rework a case against the accused in a more satisfactory manner in the future, to escape the effects of an unfavourable ruling made at trial, or to overcome a trial judge's refusal to grant an adjournment on the failure of the prosecution witnesses to attend court to give evidence (these all being circumstances underlying cases where a trial judge's refusal to accept a Notice of Discontinuance or nolle prosequi was later approved.)

30In other words, the Notice is not designed to secure an unjust or unfair advantage that might be termed an abuse of process in it of itself.

31In my previous ruling I rigorously criticised police behaviour towards
Mr Reeves, Mr Patterson and Mr Roob (and it should be clearly noted that this behaviour did not include police actions prior to the attack by Mr Reeves as asserted by Mr Nayel.) 

32I have also described that behaviour as an abuse of process and then dealt with it by ruling the prosecution case inadmissible pursuant to s 138 which concerns itself with the inadmissibility of improperly obtained evidence, that in itself being an abuse of process.

33As a result as I have said, the prosecution was left without a case against the accused and was unable to proceed against them. However aggrieved the accused may be by the actions of police, leading to their arrest and charging, that impugned behaviour was dealt with in my ruling. The decision by the Director to proceed via s 177 with the Notice of Discontinuance was, in the circumstances of the case, in my view a legitimate executive decision involving no abuse of process in and of itself, and involving none of the inherent vices discussed in the various authorities I have referred to. Nor does it bring this case into the category of cases containing the rare and exceptional features which would allow this court to reject reception of the Notice.

34Finally I do not accept the argument posited by Mr Prus which, as I have said, was not supported by any authority, nor was I able to find any authority which would support his contention that because the Notice of Discontinuance was not filed earlier, the later filing of it constituted an abuse of process which this court should deal with.  In my view were the court to interfere on the grounds that the timing of the Notice of Discontinuance was incorrect, it would be directly offending against the principles enunciated by the High Court in R v Maxwell.

35In my view the Notice of Discontinuance should be accepted and likewise, in relation to the charges laid pursuant to s203 of the Public Health and Wellbeing Act those charges should be withdrawn.  The defence application is denied.

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