Flying Fighters Pty Ltd & Ors v Commonwealth Director of Public Prosecutions

The applicants, Flying Fighters Pty Ltd and others, sought judicial review of decisions made by the Commonwealth Director of Public Prosecutions (CDPP) to prosecute them. The dispute concerned the CDPP's decision to prosecute the applicants for alleged contraventions of the *Corporations Act 2001* (Cth) and the *Australian Securities and Investments Commission Act 2001* (Cth). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the CDPP's decision to prosecute was amenable to judicial review on the grounds of abuse of process or other grounds that would render the prosecution invalid. Specifically, the applicants contended that the prosecution was an abuse of process because it was initiated for an improper purpose, namely to exert pressure on them to settle civil penalty proceedings brought by the Australian Securities and Investments Commission (ASIC).

Gummow and Heydon JJ held that the decision of the CDPP to prosecute is not amenable to judicial review on the grounds alleged by the applicants. Their Honours affirmed the principle that prosecutorial discretion, including the decision to initiate criminal proceedings, is a matter for the executive branch of government and is generally not subject to judicial interference unless there are exceptional circumstances, such as a clear abuse of process that would render the prosecution a nullity. The Court found that the applicants had not demonstrated that the CDPP's decision was so tainted by an improper purpose as to constitute an abuse of process warranting judicial intervention. The Court therefore dismissed the application for judicial review.