DPP v Tuteru

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0030

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
SIMIONA TUTERU	Respondent

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JUDGES:	BEACH, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2023
DATE OF JUDGMENT:	17 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 188
JUDGMENT APPEALED FROM:	DPP v Tuteru (Ruling No 3) [2023] VSC 93 (Justice Lasry)

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CRIMINAL LAW – Interlocutory appeal – Five indictments filed – Manslaughter charges discontinued – Respondent ultimately faced charge of fail to comply with duty under the Heavy Vehicle National Law (Victoria) – Application for permanent stay granted – Trial judge held maintenance of manslaughter charges a glaring and oppressive misuse of Court process – Whether opportunity for summary hearing lost – Whether fundamental alterations made to prosecution case – Whether any future trial would be oppressive – Whether trial judge mistook facts, failed to regard relevant considerations and had regard to irrelevant considerations – Whether ruling unreasonable or plainly unjust – Leave to appeal granted – Appeal allowed – Permanent stay order set aside.

Criminal Procedure Act 2009, s 168.

Barton v The Queen (1980) 147 CLR 75; Clark v The Queen (2016) 258 A Crim R 511; House v The King (1936) 55 CLR 499; Jago v District Court of New South Wales (1989) 168 CLR 23; Maxwell v The Queen (1996) 184 CLR 501 and Williams v Spautz (1992) 174 CLR 509; considered.

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Counsel
Applicant:		Mr B M Ihle KC with Ms K Crennan
Respondent:		Mr D Hallowes SC with Ms A Beech
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Holman Webb Lawyers

BEACH JA
WALKER JA
TAYLOR JA:

Introduction

The respondent is charged on indictment (the ‘Indictment’) with a single charge of failing to comply with a duty under s 26C of the Heavy Vehicle National Law (Victoria) (‘HVNL’) pursuant to s 26F of the HVNL.
He was, in April 2020, a supervisor at Connect Logistics Pty Ltd (‘Connect Logistics’), a trucking company. The HVNL imposed upon him a duty to ensure, so far as was reasonably practicable, the safety of his decision making associated with the use of a heavy vehicle on the road. The charge alleges that on 22 April 2020 the respondent knew that Mohinder Singh, one of the truck drivers he supervised, was unfit to drive. Despite that, the respondent allowed Mr Singh to drive a heavy vehicle. In so doing, the applicant alleges that the respondent was reckless as to the risk to individuals posed by Mr Singh operating a heavy vehicle when he was unfit to do so.
The risk eventuated when Mr Singh fell asleep at the wheel while driving the heavy vehicle on the Eastern Freeway at Kew and the vehicle collided with two police cars and a Porsche that had been intercepted by four police officers. Those police officers were killed as a result of the collision.
The respondent was charged in August 2020. The Indictment, filed on 10 February 2023, was the fifth indictment filed by the Director of Public Prosecutions in the Supreme Court in this matter. Earlier indictments had charged four charges of manslaughter, as well as multiple charges under the HVNL.[1] On 28 October 2022 the DPP discontinued the manslaughter charges.
[1]The background relating to each of the indictments is considered in detail below.
On 3 March 2023 the trial judge stayed the Indictment.[2] His Honour held that ‘the Court’s processes have been, at a minimum, used oppressively and unfairly by the Director of Public Prosecutions at various stages of this case.’[3]
[2]DPP v Tuteru (Ruling No 3) [2023] VSC 93 (Lasry J) (‘Ruling’).
[3]Ruling, [71].
In short, his Honour found the DPP’s oppressive misuse of the Court’s processes to be a consequence of several matters:
(a)The continuation of four charges of manslaughter against the respondent for a period exceeding twelve months in circumstances where it ‘must have been known there was no viable case to be made against the accused’.[4]
(b)The consequential effect of that continued manslaughter prosecution, namely that the HVNL charge(s) were necessarily prosecuted in the Supreme Court rather than by way of a summary hearing in the Magistrates’ Court.[5]
(c)Alterations to the prosecution case made on several occasions, which his Honour termed ‘fundamental’ because they substantially expanded the factual area on which the HVNL charges were based and, in the final formulation, introduced tendency evidence and asserted a reliance of the respondent’s knowledge of Mr Singh’s psychological condition, in addition to his fatigue, as the basis upon which he was unfit to drive.[6]
(d)The late disclosure of interviews conducted under the HVNL.[7]
[4]Ruling, [71].
[5]Ruling, [72].
[6]Ruling, [73].
[7]Ruling, [74].
His Honour also considered as a relevant matter the delay in the trial occasioned by the DPP’s handling of the proceeding, which he said would otherwise ‘likely’ have been ‘heard summarily in the Magistrates’ Court two years ago’.[8] However, his Honour held that ‘the delay in this case is not on its own a significant reason for ordering a stay’.[9]
[8]Ruling, [83].
[9]Ruling, [76].
His Honour further found that the history of the proceeding, in combination with the ‘present state of affairs’, which required the determination of several pre-trial issues before the trial could be heard, ‘brings this case within what was being contemplated by Deane J in Jago and has created a situation where it is necessary to protect the integrity of the Court’s processes by staying the indictment.’[10]
[10]Ruling, [78].
His Honour found that the continued prosecution of the single remaining HVNL charge (even if remitted to the Magistrates’ Court pursuant to s 168(1) of the Criminal Procedure Act 2009 (‘CPA’) and confined to fatigue as the basis upon which Mr Singh was unfit to drive) would, because of its history, still amount to an abuse of process by bringing the administration of justice into disrepute. This finding also appeared to involve a finding that it was impossible for the respondent to have a fair trial according to law.[11]
[11]Ruling, [79]–[81].
One the one hand, his Honour’s reasoning suggests he made the following findings:
(a)that the present case came within the principle articulated by Deane J in Jago, namely that pre-trial default or impropriety on the part of the prosecution can in some circumstances ‘be so prejudicial to an accused that the trial itself is made an unfair one’;[12]
(b)that ‘it would be unfair for a trial to continue’ on the expanded charge given what had occurred previously, despite recording the applicant’s submission that the impending trial could be a fair trial; and
(c)that the manner in which the DPP had proceeded meant that ‘the unfairness which would be brought upon the accused’ outweighed the public interest in the disposition of significant criminal matters.
[12]Jago v District Court of New South Wales (1989) 168 CLR 23, [601]; [1989] HCA 46 (‘Jago’).
On the other hand, it is possible to read his Honour’s reasons as being directed only to the unfairness of the pre-trial processes, rather than the trial itself. That is, that his Honour concluded that the continuation of the proceedings was oppressive, rather than concluding that a future trial would necessarily be unfair. When considering alternative remedies to a stay, the judge considered remedies such as an order for costs and an order remitting the charge to the Magistrates’ Court to be heard summarily. It is to be noted that those remedies would address some of the pre-trial unfairness identified by the judge and that they are not directed to the fairness of any trial ultimately held. Indeed, his Honour plainly intended to deal with the late introduction of tendency evidence and the late disclosure of the interviews and expert witness reports by way of pre-trial rulings. Any unfairness those matters might have occasioned at trial could have been dealt with by orders excluding evidence.
On 9 March 2023 the trial judge certified, pursuant to s 295(3)(b) of the CPA, that his decision to stay the Indictment was of sufficient importance to the trial to justify it being determined on interlocutory appeal.
On 10 March 2023 the DPP filed a notice of application for leave to appeal articulating the following grounds:
Ground 1 – Errors of Fact
1.   The learned trial Judge erred in making findings of fact in circumstances where those findings were not open on the materials before the Court, namely:
1.1.That the DPP maintained the manslaughter charges for ‘more than one year’ in circumstances where she ‘must have been known’ that there was no viable case against the Accused.
1.2.That the absence of explanation for the decision to discontinue the manslaughter charges – and the sentiment that the DPP did not feel that was called for – was expressive of an attitude of:
(a)indifference to, and
(b)a lack of respect for,
the Court.
1.3.That but for the charges of manslaughter the matter would have been dealt with in the summary jurisdiction.
1.4.That it was ‘likely’ that, but for the manslaughter charges having been pursued, the matter would have been heard two years earlier.
1.5.That the charges of manslaughter having the effect of requiring the matter be dealt with in the Supreme Court demonstrates:
(a)the kind of impropriety that was discussed by the High Court in Williams v Spautz; and/or
(b)an abuse of the Court’s processes by the DPP.
1.6.That the stayed indictment ‘fundamentally altered’ the case against the Accused by including reliance on a new alternative factual basis for Mohinder SINGH’s unfitness to drive.
1.7.That the Court’s processes have been, at a minimum, used oppressively and unfairly by the Director of Public Prosecutions at various stages of the case.
1.8.That to allow the prosecution of the matters against the Accused would:
(a)amount to an abuse of Court’s processes;
(b)bring the administration of justice into disrepute.
Ground 2 – Failing to Have Regard to Relevant Considerations
2.   The learned trial Judge erred in failing to have regard to considerations that were relevant to the decision to stay the indictment, namely:
2.1.that the decision as whether to:
(a)institute and/or
(b)maintain,
a criminal prosecution for a charge lies solely within the discretion of the prosecuting authority, here the DPP, and
2.2.that decision is not amenable to actual or de facto review by the Court.
Ground 3 – Having Regard to Irrelevant Considerations
3.   The learned trial Judge erred in having regard to considerations that were irrelevant to the decision to stay the indictment, namely:
3.1.The discontinuance of the manslaughter charges against the Accused by the DPP.
3.2.That the DPP declined to provide the Court or the Accused with an explanation as to the reasons for her decision to discontinue the manslaughter charges.
Ground 4 – Error in Ordering a Stay
4.   The learned trial judge erred in his decision to permanently stay the indictment.
For the reasons that follow, we would grant leave to appeal, allow the appeal and set aside the interlocutory decision granting a permanent stay.

History of the proceedings

It is necessary to outline the history of the proceedings in some detail.
The collision on the Eastern Freeway, detailed above, occurred on 22 April 2020. Various prosecutions followed.
On 11 March 2021 Mohinder Singh pleaded guilty to four charges of culpable driving causing death on the bases that he negligently drove a motor vehicle and whilst under the influence of a drug of dependence to such an extent as to be incapable of having proper control of it. Mr Singh also pleaded guilty to trafficking cannabis, methylamphetamine and 1,4-Butandediol and possessing Diazepam. His initial total effective sentence of 22 years’ imprisonment with a non-parole period of 18 years and 6 months[13] was reduced on appeal to a total effective term of 18 years and 6 months with a non-parole period of 14 years and 6 months.[14]
[13]R v Singh [2021] VSC 182 (Coghlan JA).
[14]Singh v The Queen [2022] VSCA 178 (Emerton ACJ, Kyrou and T Forrest JJA).
Charges under the HVNL have been laid against Connect Logistics and three individual employees of Connect Logistics in New South Wales.[15]
[15]It was the agreed position of the parties that the NSW charges were to be heard and determined summarily in the NSW Local Court.
The respondent was arrested on 1 August 2020. Following interview he was charged with four counts of manslaughter and admitted to bail by a magistrate that same day. The Hand-Up Brief was served on the respondent on 28 September 2020. It disclosed four charges of manslaughter and 11 charges under s 26F of the HVNL. Six of the HVNL charges related to the Eastern Freeway collision[16] and the remaining five to the respondent’s supervision of various other drivers who had on other occasions allegedly driven in excess of their maximum allowable hours or not taken sufficient rest breaks.
[16]Those charges related to the four deceased police officers, Mohinder Singh and Richard Pusey (the driver of the Porche that had been intercepted) being placed at risk.
Mr Singh was sentenced on 14 April 2021. He provided a statement to police on 4 May 2021. The prosecution advised the respondent on 12 May 2021 that Mr Singh would be a witness against him.
In answer to a specific request made by the respondent’s lawyers, on 5 May 2021 the prosecution clarified that while it alleged that the collision was caused by a combination of fatigue and impairment resulting from Mr Singh’s methylamphetamine use, it was alleged that the respondent knew or ought to have known that Mr Singh was suffering from fatigue, but not that he was impaired from drug use.
The committal proceedings against the respondent commenced on 17 May 2021 and occupied some five days. Mr Singh was separately cross-examined on 14 July 2021. The respondent applied for a discharge that same day. On 15 July 2021 the respondent was committed to stand trial. A post-committal directions hearing was held in the Supreme Court on 28 July 2021.
On 22 September 2021 an indictment (‘first indictment’) was filed containing four charges of manslaughter and four charges under s 26F of the HVNL. A summary of prosecution opening was also filed. The case against the respondent was put as follows:
[95]It is the prosecution case that the accused knew or ought to have known that Singh was fatigued and not in a fit and proper state to drive. By allowing Singh to drive in the condition he was in, the accused is responsible for the deaths of the 4 police members. (CHARGES 1, 3, 5, 7 – MANSLAUGHTER)
[96]In the alternative, the accused is charged with failing to comply with his duty in that he caused or encouraged Singh to drive a fatigue regulated heavy vehicle knowing that Singh was fatigued and unfit to drive, in breach of his duties, which exposed the four police members to the risk of death or serious injury and was reckless as to the risk. (CHARGES 2, 4, 6, 8 – S.26f HEAVY VEHICLE NATIONAL LAW – FAIL TO COMPLY WITH DUTY (CATEGORY ONE))
On 20 December 2021 the respondent applied for the indictment to be severed as between the manslaughter and HVNL charges. That severance was granted on 23 December 2021.
On 7 February 2022 an indictment (‘second indictment’) containing four charges of manslaughter and another indictment (‘third indictment’) containing four charges under s 26F of the HVNL were filed. Other than the fact of appearing in separate documents, the contents of the second indictment and third indictment reflected the joint charges that had appeared in the first indictment. A summary of prosecution opening accompanied each of the second indictment and third indictment. That pertaining to the second indictment reproduced paragraph 95 of the first summary of prosecution opening cited above. That pertaining to the third indictment reproduced paragraph 96 of the first summary of prosecution opening cited above.
Also on 7 February 2022 the trial of the respondent in relation to the second indictment was listed to commence on 3 October 2022. Pre-trial issues concerning the admissibility of evidence, as well as other issues, were heard and determined between 3 and 14 October 2022.
On 19 October 2022 the trial judge raised issues with the manner in which the prosecution put its case. His Honour summarised that situation in the Ruling as follows:
I raised a number of issues about the case and the manner in which it had proceeded to that point. I expressed the view that manslaughter by criminal negligence is a criminal offence of some complexity and identified a number of concerns I had about how the case would proceed. I outlined the elements of the offence and noted that the elements of the offence and an analysis of the existence of a duty of care and the breach of the duty of care do not appear anywhere in the prosecution opening. Indeed, the prosecution opening did not refer to ‘negligence’ at all.
It is beyond doubt that the accused and the Court were entitled to have the Crown explain the case and disclose how the elements of the offence would be proved. So, much is provided for in the [CPA] and s 182(2) provides:
(2)The summary of the prosecution opening must outline –
(a)the manner in which the prosecution will put the case against the accused, and
(b)the acts, facts, matters and circumstances being relied on to support a finding of guilt.
I, then, made it clear that the prosecution should rewrite the prosecution opening, analysing the evidence by reference to the elements of the offence and when that exercise had been undertaken, the defence should respond.
In response to my ex tempore ruling, the prosecutor said that she would amend the summary of prosecution opening to comply with what might be described as the usual requirements.[17]
[17]Ruling, [24]–[27] (citations omitted).
At a mention of the matter on 28 October 2022 the prosecution announced the discontinuance of the second indictment. The exchange between the Crown prosecutor and his Honour was as follows:
HIS HONOUR:        … Well, [Prosecutor], I gather that the matter’s not proceeding.
[PROSECUTOR]:    No, Your Honour, I announce a discontinuance in relation to Indictment L1182967A. The B indictment will be proceeding, and we’d seek a trial date for that matter.
HIS HONOUR:        When was Mr Tuteru charged, first, with manslaughter.
[PROSECUTOR]:    2020 I believe. August, 2020.
HIS HONOUR:        So he’s had that hanging over his head since then.
[PROSECUTOR]:    He has.
HIS HONOUR:        And now the Crown are announcing that the matters are not proceeding.
[PROSECUTOR]:    Yes, Your Honour.
HIS HONOUR:        Is the court and the public to be favoured with an explanation as to how this has occurred?
[PROSECUTOR]:    I don’t propose to go into the reasons why, Your Honour, a discontinuance has been entered now.
HIS HONOUR:        Well there are inferences that can be drawn, bearing in mind that the last time we met, we met so that I could express my concern about the way in which the case had been formulated, and at that stage the result of that was going to be that it was going to be reformulated. I take it that the result of that attempted reformulation is that the Crown have finally worked out they don’t have a case, is that right?
[PROSECUTOR]:    I wouldn’t say that’s right, Your Honour, but I’m instructed to enter the discontinuance.
HIS HONOUR:        Does the director not feel that, given the public interest in this case, that some explanation is called for?
[PROSECUTOR]:    No, Your Honour. I’m instructed not.
HIS HONOUR:        I can’t compel you to give one, I suppose. This is most unsatisfactory. For this to have occurred in this way for charges, such serious charges, to have been laid in 2020 and now in October 2022 for the court to be told that the charges are not proceeding and the director does not propose to give any explanation as to why that is, I think is unsatisfactory. I won’t say what Mr Tuteru’s thinking, that’s a matter for [defence counsel] I suppose, I will invite him in a moment to say anything he wants to say. But a lot of time has been spent, I’ve just looked back over the chronology of the appearances in this court since I severed the indictment and the issues which have arisen, and that’s all been time wasted. Hasn’t it.
[PROSECUTOR]:    Yes, Your Honour.

In the Ruling, his Honour expressed the following view concerning the absence of an explanation for the discontinuance of the second indictment:
I was informed that no explanation would be provided to the Court and that the Director did not feel that one was called for. The indifference to, and lack of respect for, the Court that attitude expresses is significant. In my opinion, there was never a viable case of manslaughter against the accused and that realisation obviously dawned on the prosecution when confronted with the need to particularise it. There can be no other reason why this course was taken.[18]
[18]Ruling, [29] (citations omitted).
At the mention on 28 October the prosecution was ordered to file an amended opening with respect to the third indictment by 11 November 2022.[19] The matter was adjourned for further mention on 5 December 2022.
[19]The prosecutor informed his Honour that a fortnight or so was required to ‘firm up’ the opening in relation to the third indictment in light of his Honour’s comments regarding the opening relevant to the second indictment.
On 10 November 2022 the brief concerning the prosecutions of Connect Logistics and three of its senior employees in NSW was disclosed to the respondent.
On 11 November a further indictment (‘fourth indictment’) was filed containing two charges of failing to comply with a duty under s 26F of the HVNL. The charges were expressed to be for conduct occurring between 16 September 2019 and 22 April 2020. It was accompanied by an amended summary of prosecution opening containing the following paragraphs:
[207]It is the prosecution case that the accused failed to comply with his duty in that he asked, directed, required or permitted drivers including Singh to drive a [fatigue regulated heavy vehicle (‘FRHV’)] knowing that they were fatigued and unfit to drive, in breach of their duties, which exposed the four police members to the risk of death or serious injury or illness, and was reckless as to the risk (CHARGE 1 – s 26F HEAVY VEHICLE NATIONAL LAW – FAIL TO COMPLY WITH DUTY (CATEGORY ONE))
[208]It is alleged that the accused had a duty under s 26C of the Act as he was an operator or scheduler for the vehicle and was thus a party in the chain of responsibility for a heavy vehicle as per the HVNL. His role included scheduling the transport of any goods and scheduling the work times of the vehicle’s driver.
[209]The duty established by s 26 of the Act was to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle. ‘Transport activities’ is defined as contracting, directing or employing a person to drive the vehicle and scheduling the transport of goods.
[210]The accused was directing drivers including Mohinder Singh, to drive a vehicle and in particular, directing them where and when to drive. The accused also scheduled the transport of goods, all being conduct which falls within the definition of ‘transport activities’.
[211]The accused’s conduct related to the safety of the party’s transport activities. As a supervisor of the driver, the accused had authority to prevent Singh from driving a heavy vehicle. This conduct is at the heart of the safety of the transport activities, that is, only allowing persons fit to drive heavy vehicles to do so, so as to minimise the risk to the public.
[212]The accused never followed up Singh’s failure to provide a pre-employment medical examination report which may have revealed his drug dependency and general unfitness to drive.
[213]Without limiting the general duty set out in s 26C HVNL, specifically each party in the chain of responsibility must eliminate risks to the public and where not possible to eliminate, minimise risks. In this case, driving a heavy vehicle always carries a risk to the public however it can be minimised by complying with the law and regulations, specifically in this case, fatigue management procedures.
[214]Further, each party in the chain of responsibility must ensure the party’s conduct does not directly or indirectly cause or encourage the driver of the heavy vehicle to contravene this law. It is an offence against the HVNL to drive a fatigue regulated heavy vehicle while impaired by fatigue. In this case, the conduct of the accused in asking, directing, requiring or permitting Singh to drive while impaired, caused Singh to contravene the Act.
[215]It is alleged the accused, in his role as supervisor, allowed a fatigued and therefore unfit person to drive a heavy vehicle, and that conduct exposed individual road users to the risk of death or serious injury or illness.
[216]It is alleged the accused was reckless by allowing drivers including Singh to drive in an unfit state, knowing that a particular harmful consequence would probably result from his conduct. Given the accused had worked in this heavy vehicle transport industry his entire working life, he was well aware of the risks of driving a heavy vehicle while fatigued, particularly in the context of knowing how regulated fatigue management is in the logistics and trucking industry. The reason for intense regulation is directly related to the grave risks posed when a person drives a heavy vehicle while fatigued.
[217]There was no reasonable excuse for the accused to engage in this conduct. Further, Connect Logistics had an arrangement with Onsite Recruitment whereby a replacement driver could likely be found with an hour’s notice. Indeed, there was a real and previously canvassed option of the accused driving in Singh’s place or indeed another driver completing the shift. There was no imperative for Singh or the other drivers to drive and there was no reasonable excuse for asking, directing, requiring or permitting him to do so.
[218]The risk was ultimately realised in the collision on the Eastern Freeway at Kew where, as the consequence of an unfit, fatigued and drug affected driver colliding with a number of stationary cars, the 4 police members were killed.
[219]The accused is charged with a further offence (CHARGE 2 – S 26F HEAVY VEHICLE NATIONAL LAW – FAIL TO COMPLY WITH DUTY (CATEGORY ONE)) in relation to asking, directing, requiring, scheduling or permitting drivers to drive when they had driven excessive hours and had not had requisite breaks.
[220]It is alleged that the accused had a duty under s 26C of the Act as he was an operator or scheduler for the vehicle and was thus a party in the chain of responsibility for a heavy vehicle as per the HVNL. His role included scheduling the transport of any goods and scheduling the work times of the vehicle’s driver.
[221]The duty established by s 26C of the Act was to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle. ‘Transport activities’ is defined as contracting, directing or employing a person to drive the vehicle and scheduling the transport of goods.
[222]The accused was directing drivers including Mohinder Singh, to drive a vehicle and in particular, directing them where and when to drive. The accused also scheduled the transport of goods, all being conduct which falls within the definition of ‘transport activities’.
[223]The accused’s conduct related to the safety of the party’s transport activities. As a supervisor of the driver, the accused had authority to prevent Singh from driving a heavy vehicle. This conduct is at the heart of the safety of the transport activities, that is, not permitting drivers to drive FRHVs in excess of their legislated hours and without requisite breaks, so as to minimise the risk to the public.
[224]Without limiting the general duty set out in s 26C HVNL, specifically that each party in the chain of responsibility must eliminate risks to the public and where not possible to eliminate, minimise risks. In this case, driving a heavy vehicle always carries a risk to the public however it can be minimised by complying with the law and regulations, specifically in this case, eliminating excessive hours and enforcing rest breaks.
[225]Further, each party in the chain of responsibility must ensure the party’s conduct does not directly or indirectly cause or encourage the driver of the heavy vehicle to contravene this law. It is an offence against the HVNL to drive a fatigue regulated heavy vehicle in excess of prescribed hours and without taking breaks. In this case, the conduct of the accused in asking, directing, requiring, scheduling or permitting drivers to drive while impaired, caused those drivers to contravene the Act.
[226]It is alleged the accused, in his role as supervisor, allowed drivers to drive a heavy vehicle in breach in excess (sic) of their legislated hours and without taking breaks, and that conduct exposed individual road users to the risk of death or serious injury or illness.
[227]By asking, directing, requiring, scheduling or permitting Singh to drive on the 21^st April 2020 without taking appropriate rest breaks, the accused then asked directed, required, scheduled or permitted him to drive again on 22^nd April 2020, within 24 hours of the breaches.
[228]It is alleged the accused was reckless by allowing drivers including Singh to drive in excess of their permitted work or rest hours, knowing that a particular harmful consequence would probably result from his conduct. Given the accused had worked in this heavy vehicle transport industry his entire working life, he was well aware of the risks of driving a heavy vehicle while in excess or work or rest hours (sic), particularly in the context of knowing how strictly legislated this area of the logistics and trucking industry is. His knowledge of the risk is apparent in his falsification of driving records. The reason for intense regulation is directly related to the grave risks posed when a person drives a heavy vehicle in excess of permitted hours or without breaks leading to fatigue and unfitness to drive.
[229]The accused failed to comply with his duty pursuant to section 26C in that he failed to implement reasonably practicable measures to provide and maintain a safe working environment and failed to ensure scheduling of drivers fell within legislative operating limits for work and rest hours:
[230]The risk was ultimately realised on 22 April 2020 when the 4 police members were killed as a result of the accused asking, directing, requesting, scheduling or permitting drivers to drive in excess of their permitted work and rest hours.
In response to the fourth indictment and amended opening a further defence response was filed on 25 November 2022 raising numerous issues including duplicity, insufficient particularisation and improper joinder.
On 5 December 2022 orders were made as to the hearing of pre-trial issues and a trial date of 13 February 2023 fixed.
On 8 December 2022 the respondent’s lawyers raised written questions with the OPP as to the manner in which the fourth indictment was put. A response was requested by 16 December 2022. On 14 December 2022 the OPP replied that a response was not possible by 16 December, but would be forthcoming by 23 December 2022.
On 20 December 2022 the prosecution disclosed an expert report written by Professor Dawson, prepared for the NSW prosecutions and dated 30 March 2022. On 22 December 2022 the prosecution disclosed a further expert report relating to the NSW matters, written by Professor Williamson and dated 12 December 2022.
On 23 December 2022 counsel briefed to prosecute[20] sent an email to the respondent’s legal representatives indicating that the charges in the fourth indictment would be refined and simplified and that an expert opinion would be obtained with respect to some issues that would be before the jury.
[20]Who was different from the Crown Prosecutor with carriage of the matter to the time the fourth indictment was filed.
On 19 January 2023 the respondent filed submissions in support of an application for a permanent stay of the impending trial.
On 24 January 2023 the prosecution filed a notice of intention to call additional evidence, being the 30 March 2022 report of Professor Dawson. On 6 February 2023 the prosecution filed an addendum report from Professor Dawson, prepared specifically in relation to the respondent.
On 10 February the Indictment was filed. The particulars of the single HVNL charge alleged that the respondent knew that Mr Singh was ‘unfit for duty and/or affected by fatigue’. The Indictment was accompanied by a summary of prosecution opening which contained the following paragraphs, also making plain that the alleged knowledge of the respondent as to the unfitness of Mr Singh to drive extended beyond fatigue:
[162]It is alleged that the accused had a duty under Section 26C of the Act as he was a scheduler for the vehicle and was thus a party in the chain of responsibility for a heavy vehicle as per the Heavy Vehicle National Law. His role included controlling or directing the use of a vehicle, scheduling the transport of any goods and scheduling the work times of the vehicle’s driver.
[163]The duty established by Section 26C of the Act was to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle. The accused directed Mohinder Singh to drive a vehicle and, in particular, directed him when and where to drive. The accused also scheduled the transport of goods, both of these constituting conduct that falls within the definition of ‘transport activities’.
[164]The accused’s conduct related to the safety of his transport activities in relation to the vehicle. As a supervisor of the driver, the accused had authority to prevent Singh from driving a heavy vehicle. This conduct is at the heart of ensuring the safety of the accused’s transport activities. That is, only allowing persons who are fit to drive to operate heavy vehicles in order to minimise the risk to the public.
[165]As Supervisor, it is alleged that the accused allowed a fatigued and therefore unfit person to drive a heavy vehicle. In doing so, he exposed individuals to the risk of death or serious injury.
[166]It is alleged that the accused was reckless by allowing Singh to drive in an unfit state and that he knew that there was a probability of a danger of serious injury or death.
[167]It is alleged that the experience of the accused over many years (his entire working life) in the heavy vehicle transport industry, placed him in a position where he was well aware of the risks of driving a heavy vehicle while fatigued and/or unfit to drive.
[168]There was no reasonable excuse for the accused to engage in this conduct. Further, Connect Logistics had an arrangement with Onsite Recruitment whereby a replacement driver could likely be found with an hour’s notice. Indeed, there was a real and previously canvassed option of the accused driving in Singh’s place or indeed another driver completing the shift. There was no imperative or necessity for Singh to drive and there was no reasonable excuse for asking, directing, requiring or permitting him to do so.
[169]Sadly, the risk was ultimately realised in the collision that occurred a short time after the accused asked, directed, required or permitted Singh to drive the truck. As a consequence of driving in a fatigued and/or unfit state, Singh’s truck collided with a number of stationary cars and the four police members. Those actions led to the deaths of the police officers.
[170]In addition, and on the same basis, the actions of the accused also exposed Singh to the risk of death or serious injury. He was reckless as to that risk. In some ways, the risk posed to Singh was greater given that he was the driver of the truck in the circumstances alleged. His exposure to the risk commenced the moment he started to drive. It was also a risk that could have eventuated without the involvement of other road users, vehicles or other persons (such as pedestrians). Any collision involving the truck (such as with a tree, building or other object) would have realised the risk Singh was exposed to by the conduct of the accused.
[171]Therefore, it is the prosecution case that the accused failed to comply with his duty in that he asked, directed, or required Singh to drive a fatigue related (sic) heavy vehicle knowing that Singh was fatigued and/or unfit to drive. That was in breach of the accused’s duty. Consequently, and without a reasonable excuse, the accused exposed the four police members and Singh to the risk of death or serious injury and he was reckless as to that risk. [Charge 1 – Section 26F Heavy Vehicle National Law – Fail to Comply with Duty (Category One)].
The final paragraph of the summary of prosecution opening stated that the prosecution intended to rely upon the evidence of the respondent’s alleged multiple breaches of safety duties under the HVNL between 2 November 2019 and 25 March 2020, summarised in the opening, as tendency evidence and that a tendency notice would be filed as soon as practicable.
On 13 February 2023 his Honour heard the application for the permanent stay. The Ruling granting the stay was given on 3 March 2023.

The Ruling

Although some reference has been made to parts of his Honour’s Ruling, it is convenient to set out in full the paragraphs under the heading ‘Conclusion’:
This is not simply a case where the Director has “struggled to comply with case management procedures”. In my opinion, the Court’s processes have been, at a minimum, used oppressively and unfairly by the Director of Public Prosecutions at various stages of this case. Continuing four charges of manslaughter against the accused for more than a year in circumstances where it must have been known there was no viable case to be made against the accused is, I consider a glaring and oppressive misuse of the Court process. There is, among other things, a requirement that before an indictment is filed, some assessment is made of the evidence to satisfy the decision makers that there is a realistic prospect of conviction.
The charges of manslaughter also had the effect of requiring the matter to be dealt with in this Court rather than a summary hearing for the alleged offences against the HVNL. In my opinion, the history of that aspect of the case demonstrates the kind of impropriety that was discussed by the High Court in Williams v Spautz, though the facts of that case were significantly different from this one. While the Court in that case was concerned with the institution or maintenance of criminal proceedings for an improper purpose, the misuse of the Court process in this case also raises the need for the Court to ensure that it protects its ability to function as a Court of law and avoid erosion of public confidence by lending the Court’s processes oppression and injustice.
In relation to the HVNL charges, the DPP has fundamentally altered the case on several occasions including by substantially expanding the factual area the charges were based on. The DPP has also fundamentally altered the case concerning the HVNL charges in the third indictment,[21] introducing for the first time, the concept of tendency evidence and, further, by asserting a reliance on knowledge by the accused, not just of Singh’s fatigue, but his psychological condition.
[21]That is, the Indictment.
In relation to disclosure, there was a failure at the earliest opportunity to disclose the interviews conducted under s 570A of the HVNL.
If the trial was to proceed, there are a series of pre-trial issues to be dealt with include the conduct of a s 198B voir dire and a debate about tendency to name but two issues.
As the chronology reveals, there has been a delay and [defence counsel] relies on that, but it should be said that the delay in this case is not on its own a significant reason for ordering a stay. There is, for example, no obvious forensic disadvantage from that delay and in the present circumstances the length of it is not unusual.
As [defence counsel] stated in the accused’s written submissions:
Nearly three years after the alleged conduct, the accused has still not been enlightened as to the way the case against him is put. Three iterations of the indictment against him have not clarified the Crown case and now the accused is told to expect a fourth. Nearly three years into this prosecution, disclosure continues to roll in, without explanation. And most recently, the accused is told to stand by and wait for an expert report to explain presumably to explain to him where his criminality lies. This woeful state of affairs is exceptional and warrants this Court’s intervention.
This history, and the present state of affairs, in my opinion brings this case within what was being contemplated by Deane J in Jago and has created a situation where it is necessary to protect the integrity of the Court’s processes by staying this indictment.
It is effectively argued by [the prosecutor] that the situation is now that a ‘fair’ trial could proceed on the basis of the newest indictment. In the DPP’s written submissions, it was further argued that:
Whilst not conceded, if there have been deficiencies or shortcomings on behalf of the Crown, they have now been addressed. If, beyond that or because of that, there are implications that flow to the applicant in defending the case against him (which is also not conceded) they are matters that can be remedied by the Court, short of granting a stay.
[The prosecutor] did not identify the potential remedies. It might have been open to argue that prior unfairness I have summarised could be remedied by way of orders for costs and remedies of that kind. I might even have reconsidered my earlier indication that the proceeding would not be transferred to a lower Court. I assume it is open for the charge to be remitted to the Magistrates’ Court to be heard and determined summarily under s 168(1) of the [CPA].
However, none of that would properly address the history of this case and that even the new indictment now includes reliance on a new alternative factual basis for Singh’s unfitness for duty. Even on that basis, in my opinion, it would be unfair for a trial to continue on that expanded charge, given all that has come before, and that the filing of a fifth indictment, even if it were confined to fatigue at this stage, still amounts to an abuse of process by bringing the administration of justice into disrepute.
Dealing with this application is a weighing process. I am acutely conscious of the public interest in significant criminal matters being disposed of. This, of course, may be less significant than it was given the failure to proceed with charges of manslaughter. Nonetheless, however, I assess that such public interest in the disposition of the matter would not be sufficient to outweigh the misuse of the Court’s process and the oppression to the accused.
It would now be oppressive to proceed with a Supreme Court trial on the fourth indictment given that if it were not for the DPP’s handling of the proceeding, and the resultant abuses of the Court’s process, the accused would have likely had charges heard summarily in the Magistrates’ Court two years ago. This is not merely a situation of wasted costs being incurred by the accused.
Stress, anxiety and uncertainty is a common burden for those charged with serious criminal offences. However, in this case, it is made substantially worse by the manner in which the manslaughter charges were dealt with, the changes in the HVNL charges I have summarised, and a failure to properly prepare and disclose the case. It is not only the effect on the accused that is significant. It is whether what occurred is conducive to undermining public confidence in the integrity and fairness of the process.
At some point, the Court must draw a line in order to protect its processes from the prospect of ongoing abuse. The manner in which the DPP has proceeded means that the unfairness which would be brought upon the accused now outweighs the substantial public interest of the community in having those who are charged with criminal offences brought to trial. Proceeding to trial on the current indictment would unduly risk the administration of justice being brought into disrepute as well as further unfairness and oppression.
In my view, and more directly, to continue this matter would be an abuse of process given the previous history of the matter. Allowing the prosecution to continue would bring the administration of justice into disrepute and nothing short of a permanent stay could remedy the situation. I will, therefore, make orders accordingly.[22]
[22]Ruling, [71]–[85] (citations omitted).

Applicant’s Contentions

The first three proposed grounds advanced by the applicant allege specific errors of the kind identified in House v The King,[23] namely that his Honour mistook the facts, failed to take into account material considerations and allowed irrelevant matters to guide or affect him. The fourth ground argues not only aggregation of these errors – but the further category of House error – that his Honour’s Ruling is unreasonable or plainly unjust. Thus the applicant argued the grounds compendiously.
[23](1936) 55 CLR 499; [1936] HCA 40 (‘House’).
The applicant contends that the refusal of the prosecutor on 28 October 2022 to provide his Honour with a reason for the withdrawal of the manslaughter charges was a matter of considerable significance to his Honour in granting a permanent stay of the Indictment. The applicant argues that this is relevant to the application in three ways. First, the withdrawal of the manslaughter charges was a matter for the executive and not the judiciary. The Director’s decision to indict or discontinue an indictment is not amenable to judicial review (Ground 2). Second, it followed that his Honour was not entitled to infer that the refusal to provide him with an explanation ‘reflected an indifference to and lack of respect for the Court’ (Ground 1.2). Third, that impermissible inference infected his Honour’s analysis of the remainder of the facts (Ground 1) and unduly influenced his decision to stay the Indictment (Grounds 3 and 4).
That is, his Honour found not that it should have been known by the Director that there was no viable case of manslaughter but rather that that must have been known (Ground 1.1).[24] His Honour concluded that continuing the manslaughter charges for more than a year in those circumstances was ‘a glaring and oppressive misuse of the Court process’.[25] Further, his Honour found impropriety of the kind ‘discussed by the High Court in Williams v Spautz[26]’ by that oppressive continuation of the manslaughter charges because it had the effect of requiring the HVNL charges to be dealt with in the Supreme Court rather than in a summary hearing (Grounds 1.3 and 1.5).[27]
[24]Ruling, [71].
[25]Ruling, [71].
[26](1992) 174 CLR 509; [1992] HCA 34.
[27]Ruling, [72].
The applicant argued that it was never conceded that the manslaughter charges were not viable and there were potentially many reasons why the charges were discontinued. A finding of impropriety on the part of the prosecution was not open to his Honour.
Insofar as it was the HVNL charge that was stayed, the applicant submitted that the basis for his Honour’s Ruling should be understood to be oppression, attributed to past prosecutorial conduct, rather than any incurable unfairness of the prospective trial. The applicant submitted that when properly analysed, there was nothing oppressive in the conduct of the prosecution. There had been no abuse of process and any trial of the Indictment would not bring the administration of justice into disrepute (Grounds 1.7 and 1.8).
The committal charges numbered in the dozens. Following the committal of the respondent to the Supreme Court, the first indictment confined the charges to four charges of manslaughter and four alternative charges under the HVNL. On the respondent’s application, the first indictment was severed. During the hearing of that application, the respondent indicated his willingness to undergo, if necessary, two trials based on the same facts. The manslaughter charges then fell away entirely. The change in the HVNL prosecution as between the third indictment and the Indictment does not concern evidence or the elements of the charge, but a particular. The particular as to the respondent’s knowledge of Mr Singh’s unfitness to drive was expanded to include his psychological state as well as fatigue. The evidence of Mr Singh’s methylamphetamine use and bizarre behaviour has been detailed in every version of the Summary of Prosecution Opening. Similarly, the evidence the prosecution intended to rely upon as tendency evidence with respect to the Indictment has previously been detailed.
The applicant submitted that there is nothing oppressive about these changes to the prosecution case. The changes have all been to the advantage of the respondent except for the enlargement of the particular and the intended use of certain evidence as tendency evidence. If there was any impermissible unfairness in either or both of those matters, remedies far short of a permanent stay were open to his Honour (Ground 1.6).
Insofar as the HVNL charges were before the Supreme Court, at least from the time that the first indictment was severed, the applicant argued that it was open to the respondent to seek to have that matter remitted to the Magistrates’ Court. Notably, the respondent’s counsel had indicated that the respondent preferred the matter to remain before his Honour. The applicant submitted that in any event it was not inevitable that the matters would have been remitted for summary hearing and it was not open to find that the matter would have been dealt with two years ago (Ground 1.4).

Respondent’s contentions

The respondent contends that each of the four proposed grounds are flawed. In general terms the respondent submitted the following. The opinions and findings of his Honour detailed in ground 1 were demonstrably open. In any event the ground erroneously focuses on the state of mind of the Director without providing any meaningful defence of her conduct. Ground 2 invites this Court to engage in prohibited reasoning. Ground 3 is a complaint about weight attributed by the trial judge to a relevant factor rather than consideration of an irrelevant factor. The applicant cannot demonstrate under ground 4 that the Ruling is unreasonable.
With respect to the detail of the first proposed ground, the respondent submitted that it first needed to be determined whether the impugned findings of his Honour were findings of fact and then, whether those facts were material to the ultimate decision.
It is argued that the finding the subject of ground 1.1 was open to the trial judge. There was no difference in the evidence available to the prosecution as between the time the first indictment was filed and date the manslaughter charges were discontinued. There was no suggestion that anything material had changed with respect to whether the prosecution was in the public interest. Accordingly, it was open to his Honour to find that ‘it must have been known’ to the prosecution that the charges were always unviable. His Honour’s criticism was that the prosecution failed to undertake an appropriate assessment of its case before the first indictment was filed, rather than that the prosecution was instituted and maintained as a knowing and deliberate miscarriage of prosecutorial discretion.
With respect to ground 1.2, the respondent argued that if the manslaughter charges had been discontinued on a basis other than the perceived weakness of the prosecution case, there was no reason for the failure to give an explanation to the court. Further, the response by the prosecutor on 28 October 2022, ‘I wouldn’t say that’s right, Your Honour’ (reproduced at paragraph 28 above), did not convey that his Honour had made an incorrect assumption about the reason for discontinuing the manslaughter charges. Rather, it was an indication that the prosecution did not intend to convey a reason for the discontinuance. His Honour’s finding that the prosecution’s conduct amounted to ‘indifference to, and lack of respect for, the Court’ was therefore open.
The respondent argues that ground 1.3 is founded on an inaccurate interpretation of the Ruling. The finding was not that but for the manslaughter indictment, the HVNL charges would have inevitably been heard in the Magistrates’ Court. Rather, it was that the manslaughter charges denied the respondent the opportunity to seek a summary hearing in circumstances where there was a very real possibility that summary jurisdiction would have been granted. A similar argument is made in response to the related ground 1.4. It is contended that the case progression has taken two years as a direct result of the applicant ‘chopping and changing’ the prosecution case.
With respect to ground 1.5, the respondent submits that it was open for his Honour to find that the maintenance of the manslaughter charges for more than 12 months was oppressive. However the respondent argues that the finding that that oppression amounted to ‘the kind of impropriety that was discussed by the High Court in Williams v Spautz’ because it required the HVNL offences to be dealt with in the Supreme Court did not impute to the prosecution a deliberate and knowing miscarriage of prosecutorial discretion. Further, the respondent made plain that he did not make such an imputation. The respondent contends, in respect of ground 1.7, that properly understood, his Honour’s conclusion of impropriety related to the entire history of the proceedings rather than the ‘manslaughter era’ and it was open to his Honour to find that the conduct of the applicant had amounted to an oppressive and unfair use of the Court’s processes.
The respondent argues in respect of ground 1.6 that his Honour was entirely correct to find that the Indictment ‘fundamentally altered’ the case against him. There had never been any suggestion that Mr Singh’s unfitness to drive extended beyond fatigue to encompass psychological unfitness. The prosecution has not served an expert report concerning psychological fitness. Further, the intended use of certain evidence as tendency evidence is another fundamental alteration in the prosecution case.
The respondent argues that ground 1.8 attacks findings of law rather than findings of fact. In any event, his Honour was correct to find that the future trial on the Indictment would be oppressive. While it was open to have the matter remitted to the Magistrates’ Court, the respondent had faced a Supreme Court indictment for two years and remittal would involve further delay. The prosecution had also fundamentally altered its case against the respondent in that time. In short, the prosecution’s conduct had been so oppressive that it was an abuse of the Court’s processes and it would bring the administration of justice into disrepute to try the respondent on the Indictment. His Honour’s finding of oppression was based on the prosecution’s conduct to date, and did not amount to a finding that the trial of the Indictment would be unfair.
With respect to ground 2 the respondent argues that his Honour approached his task cognisant of the division between the role of the prosecution and the role of the Court.
With respect to ground 3, the respondent argues that the applicant has mischaracterised the underlying basis for the judge’s decision. It was not the discontinuance of the manslaughter charge that formed the basis for his Honour’s order. It was the fact that the manslaughter charge ‘was there all the way along’. The respondent also submitted that the judge’s reference to a lack of explanation for the discontinuance was not a matter that made any material difference to his Honour’s ultimate conclusion.
With respect to ground 4 the respondent argues that an ‘umbrella’ ground should not shelter a number of discrete complaints. Further, even if any of the discrete errors are established, they are insufficient to warrant intervention by this Court. Consequently, his Honour’s Ruling is neither unreasonable nor plainly unjust.

Relevant principles concerning the permanent stay of criminal proceedings

The legal principles concerning the power of a court to stay a criminal prosecution are orthodox. They have been comprehensively summarised elsewhere.[28] Nonetheless, it is useful to recall the following.
[28]See for example, Eastman v DPP (No 13) [2016] ACTCA 65, [35]–[43] (Osborn, Whelan and Priest JJA); Clark v The Queen (2016) 258 A Crim R 511, 514–515 [13]–[19] (Weinberg AP, Ashley and Coghlan JJA); [2016] VSCA 96 (‘Clark’).
The power to grant a permanent stay stems from a court’s inherent jurisdiction to protect the integrity of its processes where the administration of justice so requires.[29] The category of case in which a court should exercise it is not closed; the power is available whenever it would be unfair to the accused to permit the prosecution to proceed.[30]
[29]Clark (2016) 258 A Crim R 511, 514 [13].
[30]Jago (1989) 168 CLR 23, 53 (Brennan J). See also R v Dupas (No 3) (2009) 28 VR 381, 439 [229] (Weinberg JA); [2009] VSCA 202.
A permanent stay may only be granted in an ‘extreme’ or ‘exceptional’ case.[31] It is in effect a measure of last resort. However, as the High Court in Dupas v The Queen said:
Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.[32]
[31]Jago (1989) 168 CLR 23, 34 (Mason CJ), citing Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); [1980] HCA 48.
[32](2010) 241 CLR 237, 250 [35] (The Court); [2010] HCA 20 (citations omitted).
An applicant for a stay must establish that to continue a prosecution would – not could – involve unacceptable injustice or unfairness and be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[33] The term ‘abuse of process’, in a criminal context, includes not only bringing a prosecution for an improper purpose or maintaining one that is clearly foredoomed to fail, but also pursuing a criminal proceeding in a manner that is unfair and gives rise to oppression.[34]
[33]Clark (2016) 258 A Crim R 511, 514 [15] (Weinberg AP, Ashley and Coghlan JJA).
[34]Clark (2016) 258 A Crim R 511, 514–515 [19] (Weinberg AP, Ashley and Coghlan JJA).
Consequently, a permanent stay may be ordered where there are no other means to protect the integrity of the court’s processes. As Edelman J stated in Strickland (a Pseudonym) v Commonwealth Director of Public Prosecutions:
“Abuse of process” may not be the best language to describe the category where the focus is upon the integrity of the court generally rather than its particular processes. The rationale for this category has been described in various ways. The rationale has been described as being “a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law”. It has been described as avoiding “an erosion of public confidence”. It has also been described as arising where a trial would bring the administration of justice into disrepute. Each of these verbal formulations attempts to capture a concern for the systemic protection of the integrity of the court within an integrated system of justice. The possibility of an unfair trial, or a degree of unfairness in a trial, may be a factor contributing to that concern. But an unfair trial is not a prerequisite for a permanent stay in this category.[35]
[35](2018) 266 CLR 325, [249] (Edelman J); [2018] HCA 53 (‘Strickland’) (citations omitted).
Delay in a prosecution, absent evidence of resultant prejudice to the accused, is unlikely to found the grant of a stay.[36] That is so even if the delay has occasioned the loss of evidence or potential witnesses, unless that evidence or those witnesses were likely to have significant impact on the trial.[37]
[36]See generally Jago (1989) 168 CLR 23; [1989] HCA 46. See also R v Edwards (2009) 255 ALR 399; [2009] HCA 20 (‘Edwards’).
[37]Edwards (2009) 255 ALR 399, 406 [33] (‘The Court’).
The determination of a permanent stay application involves a subjective balancing of various considerations. The court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice.[38] It is to be noted here that:
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.[39]
[38]Walton v Gardiner (1993) 177 CLR 378, 395–6 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77.
[39]Jago (1989) 168 CLR 23, 49 (Brennan J).
The task of the appellate court reviewing a decision to stay a proceeding was described by the High Court in R v Carroll:
The power to stay is said to be discretionary. In this context, the word “discretionary” indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.[40]
[40](2002) 213 CLR 635, 657 [73] (Gaudron and Gummow JJ); [2002] HCA 55 (citations omitted).
That is, the matter is to be determined according to the principles in House. Those principles extend to the situation where
[i]t may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.[41]
[41]House (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

Analysis

Although the proposed grounds of appeal are interconnected, ground 1 will be considered first and addressed separately. Several of the alleged errors of fact are capable of implying a serious breach of the Director’s professional duties. Having brought this application, she is entitled to have those matters specifically addressed.

Ground 1.1 – maintenance of non-viable manslaughter charges

The success or otherwise of this ground was argued to be dependent upon whether the words used by his Honour — ‘it must have been known’ — should be read as meaning that the Director must be taken to have known for more than 12 months that the manslaughter charges were not viable, or whether they should be read as meaning that the unviability of the charges ought to have been known to the prosecution before the first indictment was filed, had proper consideration been given to the matter. In turn, the expression ‘glaring and oppressive misuse of the Court process’ was either a reference to a deliberate year-long maintenance of unviable charges or a reference to the pursuit of a prosecution launched and maintained without a proper assessment of the realistic prospects of conviction.

On the one hand, the use of the word ‘must’ (as opposed to, perhaps, ‘should’) and the characterisation of the prosecution as a ‘glaring and oppressive misuse’ are surprisingly robust descriptors if his Honour only intended to convey that the prosecution was launched in good faith but foredoomed to fail. On the other, his Honour did not use an active form of words in describing the Director’s state of mind (such as ‘the Director must have known’ or ‘she must have known’) and referred explicitly in the Ruling to the requirement for assessing the prospects of conviction before an indictment is filed.[42] Further, his Honour stated that the realisation that the manslaughter charges were not viable ‘obviously dawned on the prosecution when confronted with the need to particularise it’.[43] That statement is clearly incompatible with a finding that, for more than a year, the Director knowingly maintained unviable charges.
[42]Ruling, [71].
[43]Ruling, [29].
However, a complicating factor is his Honour’s opinion that the manslaughter charges were in fact not viable. His Honour was never called upon to provide a reasoned analysis of the viability of the manslaughter charges, as there was never any application before him that the second indictment should be stayed because the charges were foredoomed to fail. While the charges were withdrawn shortly after his Honour expressed concerns and ordered the prosecution to better particularise them, the prosecution did not concede that the charges were discontinued because it had been realised that they were hopeless. The answer of the Crown Prosecutor, ‘I wouldn’t say that’s right, Your Honour’ reproduced in paragraph 28 above was a direct response to the question asked by his Honour, ‘I take it that … the Crown have finally worked out they don’t have a case, is that right?’. While his Honour found that there could be ‘no other reason why this course was taken’[44], there are in practice several reasons why any prosecution may be discontinued. Generally, those reasons are unknowable outside the office of the Director.
[44]Ruling, [29].
Accordingly, even if his Honour is taken to have found that a proper application of the Policy of the DPP for Victoria should have revealed, before the first indictment was filed, that the manslaughter charges were not viable, and, because there was no such application of the policy, the maintenance of those charges for more than 12 months was a ‘glaring and oppressive misuse of the Court process’, that finding is problematic. His Honour did not provide a basis for his assessment of the viability of the manslaughter charges and formed a concluded view without hearing from the parties in this regard. Further, His Honour’s finding as to the reason for the discontinuance rests upon unsafe assumptions about the conduct of the prosecution, necessarily made in ignorance of all of the circumstances known only to the prosecution.
It follows that even on the most benign reading of his Honour’s Ruling, proposed ground 1.1 is made out.
Having upheld ground 1.1, we note there is an obvious difference between a finding that the Director knowingly instituted and maintained an unviable prosecution in the Supreme Court and a finding that the institution and maintenance of charges by the Director’s office was a bona fide but inept prosecution. To the extent that it is possible to read the Ruling as conveying the former, it is necessary to state that there was absolutely no basis for that finding.

Ground 1.2 – indifference and lack of respect

It is axiomatic that decisions made in the exercise of prosecutorial discretion are not amenable to review or enquiry by the court.[45] There is an important constitutional division between the executive and the judiciary with respect to the bringing, maintenance and discontinuance of criminal charges.
[45]Barton v The Queen (1980) 147 CLR 75, 91, 94 (Gibbs ACJ and Mason J); [1980] HCA 48 (‘Barton’).
In Maxwell v The Queen, Dawson and McHugh JJ said:
In R v Brown [(1989) 17 NSWLR 472] the Court of Criminal Appeal recognised the substantial practical limitations upon the power of the courts to control the exercise by prosecuting authorities – in that case the Director of Public Prosecutions – of their discretion in such matters as the choice of the offence with which an accused is to be charged or the acceptance of a plea of guilty to a particular charge. The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion is undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority. The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.[46]
[46](1996) 184 CLR 501, 513–514 (‘Maxwell’) (citations omitted).
In the same case, Gaudron and Gummow JJ said:
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.[47]
[47]Maxwell (1996) 184 CLR 501, 534 (citations omitted).
That being so, there was no duty upon the DPP to provide an explanation to the Court for discontinuing the manslaughter charges. Indeed the Director may have considered it inappropriate to do so as a matter of principle, or for reasons particular to the case and the media attention surrounding the Eastern Freeway collision. Far from displaying any inappropriate attitude towards the court, the absence of an explanation may be understood as the prosecution having regard to the well-recognised constitutional division between the Crown and the Court.
It follows that proposed ground 1.2 is made out. It was not open to his Honour to find that the Director’s attitude expressed indifference to and a lack of respect for the Court. His Honour’s characterisation of this erroneous finding as ‘significant’[48] will be revisited below.

Grounds 1.3 and 1.4 – earlier summary resolution of HVNL charges

[48]Ruling, [29].

The HVNL charges fall within the class of indictable offences that may be heard and determined summarily.[49]
[49]CPA, s 28(1)(b)(iii).
There are two stages in the proceedings of such indictable offences at which a court may make an order for summary hearing. One is in the Magistrates Court, before a determination whether to commit an accused for trial is made.[50] The other is post-committal in the Supreme Court (or County Court) at any time, except during trial.[51]
[50]CPA, s 30(3).
[51]CPA, s 168(1).
At the first of those stages an accused may apply for a summary hearing[52] or, absent such application, the Magistrates’ Court may offer a summary hearing.[53] There are two preconditions to a grant of summary jurisdiction by the Magistrates’ Court. First, that court must, having regard to a number of statutory criteria, consider that the charge is appropriate to be determined summarily.[54] Those criteria concern the seriousness of the offence, the adequacy of available sentences, whether there is a co-accused and any other matter considered relevant.[55] Second, the accused must consent to a summary hearing.
[52]CPA, s 30(1).
[53]CPA, s 30(2).
[54]CPA, s 29(1)(a).
[55]CPA, s 29(2).
The preconditions for the transfer of a matter from the Supreme Court to the Magistrates’ Court are similar. The Supreme Court must consider the charge appropriate to be heard and determined summarily, having regard to the same statutory criteria, and the accused must consent.[56] If a transfer order is made, the transferred charge must then be heard and determined summarily.[57]
[56]CPA, s 168(1).
[57]CPA, s 168(3).
In the instant case, no application or offer of summary jurisdiction was made while the HVNL charges were in the committal stream of the Magistrates’ Court. That is unsurprising given the then extant manslaughter charges, which do not fall within the class of indictable offences that may be heard and determined summarily.
The first indictment expressed the four HVNL charges as alternatives to the four manslaughter charges. During the application for severance of that indictment, the respondent submitted that he would willingly assume the burden of undergoing a second trial of the HVNL charges if acquitted of the manslaughter charges, even though both trials would have the same evidentiary basis. Since the manslaughter charges were on foot until 28 October 2022, and it could not be known whether the HVNL charges would proceed, it is unsurprising that no application to transfer the HVNL charges to the Magistrates’ Court was made. Following the discontinuance of the manslaughter charges, no application for transfer was made and no such order was possible in light of the respondent’s expressed desire for the matter to remain before his Honour.
Against that background, the impugned findings of his Honour are two-fold. His Honour said ‘[t]he charges of manslaughter also had the effect of requiring the matter to be dealt with in this Court, rather than a summary hearing’[58] and ‘the accused would have likely had charges heard summarily in the Magistrates’ Court two years ago’.[59]
[58]Ruling, [71].
[59]Ruling, [83].
Examining the language used by his Honour and reading these passages in context, his Honour did not find that it was inevitable that the respondent would have been granted summary jurisdiction in the Magistrates’ Court. Rather, but for the manslaughter charges, such a grant was more probable than not and that that grant, if given, would have been given prior to the respondent’s committal to the Supreme Court. In other words, his Honour found that the prosecution’s initiation and maintenance of the manslaughter charges deprived the respondent of the timely opportunity two years earlier to seek to have the HVNL charges heard and determined summarily.
It can be inferred from submissions made in this Court that the prosecution would have elected to initiate the HVNL charges in the committal stream in the absence of the manslaughter charges and opposed any application for a grant of summary jurisdiction. The applicant correctly points to the objective seriousness of the alleged offending, the high level of public interest in a prosecution concerning risks associated with heavy vehicles on public roads and the novel legislative regime. That said, the HVNL prosecutions in NSW were heard in the Local Court, the maximum penalty available to the Magistrates’ Court for the HVNL charges as initially brought is five years’ imprisonment and the respondent has no prior criminal convictions. It was plainly possible that, had an application been made, summary jurisdiction would have been granted.
Accordingly, it cannot be said that it was not open to his Honour to find that if the respondent had been charged only with the HVNL offences, he would have likely sought and been granted summary jurisdiction pre-committal, being two years ago.
Proposed grounds 1.3 and 1.4 are not made out.

Ground 1.5 - impropriety

The finding impugned by ground 1.5 is the judge’s conclusion that the maintenance of the manslaughter charges ‘demonstrates the kind of impropriety that was discussed by the High Court in Williams v Spautz’. This aspect of his Honour’s reasons contains several linked propositions.
(a)First, the manslaughter charges were not viable and this must (or, potentially, should) always have been known to the prosecution.
(b)Second, the prosecution nevertheless pursued those charges in the Supreme Court for more than a year.
(c)Third, that amounted to a ‘glaring and oppressive misuse’ of the Court processes.
(d)Fourth, the manslaughter charges had the additional effect of requiring the HVNL charges to be determined by the Supreme Court rather than by the Magistrates’ Court.
(e)Fifth, that history demonstrated impropriety of the kind discussed by the High Court in Williams v Spautz.
His Honour acknowledged that the facts of Williams v Spautz were ‘significantly different’, the Court there being concerned with ‘the institution or maintenance of criminal proceedings for an improper purpose’.[60] Nonetheless his Honour found that ‘the misuse of the Court process in this case’[61] required the Court to act so as to protect the integrity of its processes.
[60]Ruling, [72].
[61]Ruling, [72].
The ‘misuse’ necessitating the stay of the Indictment must be understood to be the ‘glaring and oppressive misuse’ identified in the previous paragraph of the Ruling.
It is necessary to recall the facts of Williams v Spautz. A lecturer commenced a wrongful dismissal action against a university. He later laid informations (charges) against various officers of the university alleging a number of offences, including criminal conspiracy to defame and conspiracy to injure him without justification and by illegal means. The trial judge found that the lecturer’s predominant purpose in instituting and maintaining the criminal charges was to exert pressure on the university to reinstate him and / or to agree to a favourable settlement of the wrongful dismissal action. The judge stayed the prosecutions as an abuse of process.
The ‘kind of impropriety’ discussed by the High Court in Williams v Spautz concerned situations where, ‘the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.’[62]
[62]Williams v Spautz (1992) 174 CLR 509, 526-527 (Mason CJ, Dawson, Toohey and McHugh JJ).
Brennan J held that ‘impropriety’ associated with bringing and maintaining proceedings constituted an abuse of process
when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding.[63]
[63]Williams v Spautz (1992) 174 CLR 509, 537.
Plainly, his Honour’s finding that the ‘misuse’ of the court’s process by the prosecution in the instant case demonstrated the ‘kind of impropriety’ discussed in Williams v Spautz was wrong.
Williams v Spautz concerned a private individual launching criminal prosecutions against multiple defendants in bad faith. The predominant purpose of his conduct was found to be to exert pressure on those individuals and the university with respect to his former employment at that institution. He had no interest in any returned verdict other than how it might affect his private situation. In marked contrast, in this case the Director is a statutory office holder[64] with statutory functions which include to institute, prepare and conduct on behalf of the Crown proceedings in the Supreme Court in respect of any indictable offence.[65] In the performance of those functions the Director must have regard to considerations of justice and fairness, the need to conduct prosecutions in an effective, economic and efficient manner as well as to ensure that the prosecutorial system gives appropriate consideration to the concerns of victims of crime.[66]
[64]Appointed under s 87AB of the Constitution Act 1975.
[65]Public Prosecutions Act 1994, s 22(1)(a).
[66]Public Prosecutions Act 1994, s 24.
His Honour’s finding of kindred impropriety between Williams v Spautz and the instant case is inexplicable unless the judge considered that the ‘glaring and oppressive misuse’ was deliberate, arising from the institution and maintenance of manslaughter charges in breach of the Director’s statutory obligations and for the purpose not of obtaining returned verdicts on those charges but of having the HVNL charges determined in the Supreme Court, rather than summarily. If his Honour was of that view, the evidentiary basis for that finding and the reasoning supporting it should have been clearly articulated. It was not.
Moreover, it could not have been so. There was no basis on which his Honour could find that the prosecution adopted a deliberate strategy to have the HVNL charges determined in the Supreme Court by knowingly instituting and maintaining manslaughter charges that were foredoomed to fail.
Proposed ground 1.5 is made out.

Ground 1.6 – fundamental alterations to the prosecution’s case

There is no doubt that there have been alterations to the prosecution case. So much is illustrated by the procedural history of the matter explained above. The issue raised by this ground is whether those alterations were ‘fundamental’.
It is necessary to further detail the procedural history to establish a chronology of the relevant alterations.
The first indictment, containing four charges of manslaughter and four alternative HVNL charges, was filed on 22 December 2021. Each charge and alternative charge was expressed in respect of conduct occurring on 22 April 2020 and the resulting death or exposure to risk sustained by each of the four deceased police officers. Following the grant of severance, on 7 February 2022 the second and third indictments were filed, reflecting the severed charges. These were accompanied by openings containing substantially similar allegations to the first Summary of Prosecution Opening. Noting his Honour’s comments about the then-discontinued second indictment and expressing a view to ‘firm up’ the charges against the accused, the prosecution filed the fourth indictment, accompanied by an opening, on 11 November 2022.
The fourth indictment contained two charges under s 26F of the HVNL. The charges were expressed to be for conduct by the respondent occurring between 16 September 2019 and 22 April 2020. Charge 1 concerned the respondent’s conduct in asking, directing, requiring, scheduling or permitting various drivers, including Singh, to drive FRHV when they were fatigued and unfit to drive. Charge 2 concerned the respondent’s conduct in relation to asking, directing, requiring, scheduling or permitting drivers to drive when they had driven excessive hours and had not had requisite breaks. Paragraphs 30–89 of the Summary of Prosecution Opening accompanying the fourth indictment detailed the respondent’s alleged breaches of the HVNL during each month of his employment as a supervisor at Connect Logistics, commencing September 2019 and ending in April 2020.

The Indictment, filed on 10 February 2023, contains a single charge under s 26F of the HVNL and concerned the respondent asking, directing, or requiring Singh to drive a fatigue related heavy vehicle on 22 April 2020, knowing that Singh was fatigued and/or unfit to drive. The factual basis for the respondent’s knowledge of psychological unfitness to drive is identified at paragraph 121 of the Summary of Prosecution Opening accompanying the Indictment to be the respondent’s receipt and acknowledgement of a text message from another driver on the afternoon of 22 April 2020, containing references to Singh’s (lack of) sleep. This text message is also detailed in the opening accompanying the fourth indictment. Paragraph 179 of the fourth opening alleges that ‘upon reading this message from [the driver] and its 2 references to sleep, the [respondent] was aware of not only questions as to Singh’s fitness to drive but more specifically, of his fatigue.’ The opening accompanying the third indictment also details the text message and expresses a similar allegation couched in slightly different words at paragraph 62: ‘the [respondent] was alert not only to questions as to Singh’s fitness to drive but more specifically, to his fatigue.’[67] The text message is also detailed, along with a similarly worded allegation at paragraph 65, in the first opening.
[67]Emphasis added.
Further, paragraphs 24–89 of the opening accompanying the Indictment detail, albeit more briefly than the prior opening, the respondent’s alleged breaches of the HVNL concerning the supervision of Singh and other drivers, commencing November 2019 and ending in April 2020. It is this evidence which is now sought to be led as tendency evidence in the respondent’s trial.
Finally, the opening accompanying the Indictment refers, for the first time, to the expert opinion of a Shift Work and Fatigue Consultant, Professor William Dawson. The prosecution seeks to rely on this expert at trial.
Two matters are apparent from this chronology.
First, that there have been five indictments filed does not equate with the prosecution having put its case in five different ways. The second and third indictments comprise exactly the same allegations found in the first indictment. The part of the first indictment concerning the HVNL charges together with the third indictment comprise essentially the same allegation as the present Indictment, except insofar as it is alleged that the respondent knew Mr Singh was ‘unfit for duty and/or affected by fatigue’. The fourth indictment, which persisted for two months, was materially different.
Second, the evidentiary matrix for all indictments has remained relatively static. It has been augmented by an expert report. The intended use of parts of the evidence as tendency evidence crystallised with the filing of the Indictment.
It is not accurate to describe these alterations as ‘fundamental’. Not all of the alterations have been detrimental to the respondent’s interests. Even where that has been so, the sound exercise of prosecutorial discretion involves revisiting and reconsidering a case from time to time. The present alterations are not improper or unfair in the legal sense. Further, there were measures short of a permanent stay available to the trial judge to remedy any unfairness to the respondent that may result from these alterations.
Proposed ground 1.6 is made out.

Ground 1.7 – oppressive and unfair use of the court’s processes

It is not entirely apposite to describe his Honour’s conclusion, that the court’s processes had been, at a minimum, used oppressively and unfairly by the DPP at various stages of the case, as an erroneous finding of fact. In reality, the respondent’s complaint under proposed ground 1.7 concerns the judge having made the conclusion complained of without any appropriate foundation or evidentiary basis.
It follows from what we have already said in relation to proposed grounds 1.1, 1.2, 1.5 and 1.6 that, to the extent that his Honour concluded that the court’s processes had been, at a minimum, used oppressively and unfairly by the DPP, there was no appropriate basis or evidentiary foundation for that conclusion. Moreover, it cannot be said that this conclusion was not material to his Honour’s ultimate order permanently staying the proceeding.
While proposed ground 1.7 cannot be upheld as an error of fact, the complaint that the conclusion reached by his Honour, and referred to therein, was not open, is made out.

Ground 1.8 – HVNL prosecution is an abuse of process

Similarly, his Honour’s finding that to allow the HVNL matters to proceed would amount to an abuse of process and bring the administration of justice into disrepute is a legal conclusion and not a question of fact.
Again, while proposed ground 1.8 cannot be upheld on the basis that the conclusions referred to therein are errors of fact, the complaint about the judge’s conclusions referred to are well-founded for the reasons we have already given. There was no proper basis upon which the judge could have concluded that to allow the prosecution to continue would amount to an abuse of process and/or bring the administration of justice into disrepute.

Grounds 2 and 3 – relevant and irrelevant considerations

Proposed ground 2 alleges that his Honour failed to have regard to two considerations relevant to his decision to stay the indictment. First, that the decision to institute and/or maintain a criminal prosecution lies solely within the discretion of the DPP (ground 2.1). Second, that that decision is not amenable to actual or de facto review by the Court (ground 2.2).
Proposed ground 3 alleges that his Honour had regard to two considerations that were irrelevant to his decision to stay the indictment: the discontinuance of the manslaughter charges (ground 3.1) and the DPP’s refusal to provide an explanation for that decision (ground 3.2).
These matters may be considered together.
At the risk of repetition, it is beyond doubt that decisions made in the exercise of prosecutorial discretion are not amenable to review or enquiry by the court. That, of course, does not mean that a court cannot act to protect the integrity of its processes to prevent an abuse of process by refusing to hear a criminal prosecution.
But the issue for a court presented with a stay application is the effect of the continuation of the proceeding, rather than the reason for its institution. That is so even on the narrowest conception of what amounts to an abuse of process, namely a prosecution brought for an improper purpose or maintaining one that is foredoomed to fail. In such cases the court may stay a proceeding so that it will not, and will not be seen to, lend itself to oppression and injustice. In broader conceptions of what amounts to an abuse of process, again it is the effect of the prosecution’s conduct — for example, pre-trial default or impropriety[68] that would make the future trial unacceptably unfair or oppressive — which founds the power to refuse to allow the court’s processes to be so abused.
[68]Jago (1989) 168 CLR 23, 57 (Deane J).
That is why an applicant for a stay must discharge the heavy burden of establishing that the continuation of the proceeding would, not merely could, involve unacceptable unfairness or injustice. Again, it is why successful stay applications are extremely rare.
In the Ruling his Honour did not once advert to the unreviewable prosecutorial discretion of the DPP. But his Honour did find it ‘significant’ that the DPP’s refusal to explain the reason behind the discontinuance of the manslaughter charges expressed an attitude of indifference to and lack of respect for the Court. That, coupled with his Honour’s assumption that ‘it must have been known’ that those charges were unviable, betrays a focus on decisions made entirely within the prosecutorial discretion of the DPP. The applicant’s submission that his Honour’s finding as to the disrespectful attitude of the DPP infected the analysis of the remainder of the Ruling may be accepted.
Further, his Honour found that the continuation of the HVNL prosecution would be both unfair and oppressive despite available remedies. The remedies canvassed included orders for costs, the transfer of the charge to the Magistrates’ Court and limiting the prosecution to the original allegation that the respondent’s knowledge of Mr Singh’s unfitness to drive was because of fatigue.[69] That was because those remedies would not properly address the history of the case[70] and the continuation of the trial would unduly risk bringing the administration of justice into disrepute as well as occasion further unfairness and oppression.[71]
[69]Ruling, [80]–[81].
[70]Ruling, [81], [85].
[71]Ruling, [84].
That history referred to by his Honour, as explained in the Ruling, concerns the original decision to prefer the manslaughter charges and the refusal of the DPP to explain their discontinuance after 12 months. That is, his Honour took into account matters that fall within prosecutorial discretion and that are not amenable to review by a court.
It follows that proposed grounds 2 and 3 are made out.

Ground 4 – unreasonable or plainly unjust

It follows from what we have said above that leave to appeal must be granted; the appeal must be allowed; and the judge’s orders granting a permanent stay must be set aside. It is thus not necessary for us to consider whether his Honour’s decision was unreasonable or plainly unjust. Nevertheless, had it been necessary to do so, we would have so concluded. Having examined the entire history of these proceedings for ourselves, and with great respect to the primary judge, we are unable to see any basis on which a permanent stay could have been ordered in the present case. Nothing in the material or the procedural history of this case gives rise to anything that might be described as approaching an abuse of process. Moreover, there is no basis upon which it could be said that the continuation of the prosecution against the respondent involves any unfairness, let alone any unacceptable fairness.
All of that said, we would make the following additional observations.
Imputing either bad faith or ineptitude to the prosecution absent cogent evidence of the same is both unreasonable and plainly unjust. The conduct of the prosecution in this matter may have been suboptimal and inefficient, but it was far from oppressive. It certainly did not warrant his Honour adopting an extract of the written submissions of defence counsel[72] in his Ruling, expressed in highly emotive language and containing assertions of fact that were no longer accurate at the time the Ruling was given.
[72]Ruling, [77], reproduced at paragraph 43 above.
The refinement and reconsideration of a criminal case is both commonplace and sound. Neither the past conduct of the prosecution nor the legal landscape of the Indictment rendered this an extreme or exceptional case where the trial judge could do nothing in the conduct of the trial to relieve against its unfair consequences.

Conclusion

We would grant leave to appeal, allow the appeal and set aside the order granting a permanent stay.
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[2023] VSCA 188

17 August 2023