Harkness v Banks (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03122

ZENAAN HARKNESS	Plaintiff
v
BENJAMIN BANKS	First Defendant
and
DIRECTOR OF PUBLIC PROSECUTIONS	Second Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Third Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2024
DATE OF JUDGMENT:	18 November 2024
CASE MAY BE CITED AS:	Harkness v Banks (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 709 (First Revision 19 November 2024: n 71)

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ADMINISTRATIVE LAW — Judicial review — Director of Public Prosecutions took over private prosecution commenced by plaintiff and withdrew charges — Plaintiff seeking judicial review of decision to withdraw charges — Director contends prosecutorial decision to withdraw charges not amenable to judicial review — Where proceeding involves a constitutional matter of which notice has been given under Judiciary Act 1903 (Cth) s 78B — Friends of the Court appointed as contradictor — Held decision insusceptible of judicial review.

CONSTITUTIONAL LAW — The judiciary — Supervisory jurisdiction of State Supreme Courts — Supervision of the exercise of executive power for jurisdictional error — ‘Principle of unreviewability’ — Whether Supreme Court of Victoria’s supervisory jurisdiction extended to judicial review of prosecutorial decision to withdraw criminal charges — Held that it did not — Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii) — Judiciary Act 1903 (Cth) s 78B(1) — Constitution Act 1975 (Vic) Part IIIA — Maxwell v The Queen (1996) 184 CLR 501 — Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr S Bunce	Gallant Law
For the Second Defendant	Mr A Pound SC, Solicitor-General for Victoria, with Ms K Brown and Ms J Vogan	Abbey Hogan, Solicitor for Public Prosecutions
For the Third Defendant	No appearance
Friends of the Court	Ms F Gordon KC with Mr S Rajanayagam and Ms M Jackson

HER HONOUR:

In June 2022, the Director of Public Prosecutions decided to take over a private prosecution commenced by Zenaan Harkness against Benjamin Banks in the Magistrates’ Court of Victoria. At a committal case conference on 16 June 2022, the Director was represented by a solicitor from the Office of Public Prosecutions, who advised the magistrate that she was instructed to withdraw all of the charges. The magistrate then struck out the charges on the basis that they had been withdrawn.

In this proceeding, Mr Harkness seeks judicial review of the Director’s decision to withdraw the charges against Mr Banks. He seeks orders setting aside the orders of the Magistrates’ Court made on 16 June 2022, or alternatively an order requiring the Director to continue or recommence the prosecution. The Director contends that the decision is not amenable to judicial review, relying on the High Court authority of Maxwell v The Queen,[1] and two decisions of this Court.[2]
[1](1996) 184 CLR 501 (Maxwell).
[2]Stefanovski v The Magistrates’ Court of Victoria [2004] VSC 313; Walsh v DPP (Vic) [2005] VSC 469, [64].

The proceeding was listed for trial on 28 September 2023. On the same day, Mr Harkness applied by summons for orders vacating the trial date, to enable him to serve notice of this constitutional matter on the Attorneys-General of the Commonwealth and the States, as required by s 78B(1) of the Judiciary Act 1903 (Cth) (s 78B notice).

After hearing argument on the summons, I was persuaded that the proceeding does involve a constitutional matter, related to whether a decision of the Director to withdraw criminal charges is amenable to judicial review. My reasons for that conclusion are set out in Harkness v Banks.[3] In short, I considered that there was a question how, or whether, the principle that a prosecutorial decision to withdraw charges is not amenable to judicial review could be reconciled with the constitutionally-protected jurisdiction of the State Supreme Courts to supervise the exercise of executive power for jurisdictional error.[4]
[3][2023] VSC 588.
[4]Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [98]–[99] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ) (Kirk); Likiardopoulos v The Queen (2012) 247 CLR 265, [4] (French CJ) (Likiardopoulos).

I adjourned the trial to a date to be fixed, and made directions for Mr Harkness to file and serve a s 78B notice in relation to the following constitutional question:

Does the constitutionally-protected supervisory jurisdiction of the Supreme Court of Victoria extend to reviewing for jurisdictional error a decision of the Director of Public Prosecutions to withdraw criminal charges in a proceeding taken over by the Director under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic)?

No Attorney-General chose to intervene in the proceeding. The Director briefed the Solicitor-General for Victoria to appear on her behalf at the hearing of the constitutional question, while Mr Harkness continued to represent himself. In those circumstances, the Director suggested that the Court may be assisted by the appointment of counsel as Friends of the Court to act as contradictor.

The Court made a request for assistance through the Victorian Bar Pro Bono Scheme, which was accepted by Frances Gordon KC, Shawn Rajanayagam, and Melinda Jackson. They subsequently prepared written submissions and appeared at the hearing of the constitutional question. I am deeply grateful to each of them for their willingness to assist the Court, and for the quality of their assistance.

For the reasons that follow, I have concluded that the constitutional question must be answered ‘no’.

Director of Public Prosecutions

Part IIIA of the Constitution Act 1975 (Vic) provides for the office of Director of Public Prosecutions. The Director is appointed by the Governor in Council, under s 87AB of the Constitution Act. A person appointed as Director holds office for a term of at least 10 years,[5] and may only be removed from office by the Governor in Council on the address of both Houses of Parliament.[6] The Director is entitled to the same salary and pension as a judge of the Supreme Court.[7]
[5] Constitution Act 1975 (Vic), s 87AB(2).
[6]Constitution Act, s 87AE.
[7]Constitution Act, ss 87AC(1), 87AF.

The office of Director was first created in Victoria by the enactment of the Director of Public Prosecutions Act 1982 (Vic) (1982 Act). Before then, prosecutions for indictable offences were authorised by the Attorney-General, the Solicitor-General, or a Crown prosecutor. A key purpose of establishing an independent office of Director was to remove prosecutorial decision-making from the political process.[8]
[8]Victoria, Parliamentary Debates, Legislative Assembly, 18 November 1982, 2096 (Mr Cathie).

The 1982 Act was repealed and replaced by the Public Prosecutions Act 1994 (Vic). In 1999, the provisions of the Public Prosecutions Act concerning the appointment, remuneration, and removal of the Director were removed and placed in the Constitution Act.[9] The purpose of this change was to strengthen the independence of the position of Director.[10]
[9]Public Prosecutions (Amendment) Act 1999 (Vic).
[10]Public Prosecutions (Amendment) Act 1999 (Vic), s 1(c); Victoria, Parliamentary Debates, Legislative Assembly, 25 November 1999, 558 (Mr Hulls). Part IIIA of the Constitution Act may only be repealed, altered, or varied with the approval of a majority of electors voting at a referendum: Constitution Act, s 18(1B).

The Public Prosecutions Act continues to provide for the functions, powers, and responsibilities of the Director.

Section 10 provides that the Director is responsible to the Attorney-General:

(1) The Director is responsible to the Attorney-General for the due performance of his or her functions and exercise of his or her powers under this or any other Act.
(2) Subject to this Act, nothing in subsection (1) affects or takes away from the authority of the Director in respect of the institution, preparation and conduct of proceedings under this or any other Act.

The functions of the Director are set out in s 22. By s 22(1)(b)(ii), one of those functions is, if he or she considers it desirable to do so, to take over and conduct any proceedings in respect of any summary or indictable offence.

Section 24 provides:

Matters to which Director must have regard
In the performance of his or her functions the Director must have regard to—
(a) considerations of justice and fairness; and
(b) the need to conduct prosecutions in an effective, economic and efficient manner; and
(c) the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime.

Section 25(2) provides that nothing in the Public Prosecutions Act affects or takes away from the power of the Attorney-General to enter a nolle prosequi in criminal proceedings.[11]
[11]A nolle prosequi is a formal notice of abandonment or withdrawal of a criminal charge, the equivalent of a notice of discontinuance in a civil proceeding.

As provided in s 26(1), the Director has established guidelines for the prosecution of offences, which are set out in the Policy of the Director of Public Prosecutions for Victoria (Director’s Policy). In relation to private prosecutions, the Director’s Policy provides:

59.The DPP will take over and discontinue a private prosecution if:
·     there is no reasonable prospect of a conviction; or
·     the prosecution is not in the public interest.
60.A private prosecution will not be in the public interest if it is vexatious, malicious or an abuse of process.
61.The DPP will take over and conduct a private prosecution if:
·     there is a reasonable prospect of a conviction; and
·     the prosecution is in the public interest; and
·     there is a need for the DPP to conduct prosecution.
62.In determining whether there is a need for the DPP to conduct the prosecution, the DPP will have regard to:
·     the seriousness of the offences
·     the complexity of the prosecution
·     whether the private prosecutor is legally represented
·     the cost to the private prosecutor of bringing the proceeding
·     any submissions to the DPP made by the private prosecutor or the accused
·     the views of any victims other than the private prosecutor.

Section 45C provides that, before making a ‘special decision’, the Director must hold a meeting of the Director’s Committee to consider the decision. The Director’s Committee is constituted by the Director, the Chief Crown Prosecutor, and a Crown Prosecutor or other lawyer, depending on the nature of the special decision.[12] The purpose of the meeting of the Director’s Committee is to provide advice to the Director in relation to the special decision.[13] The term ‘special decision’ is defined in s 3(1), and includes a decision to discontinue a prosecution in relation to a charge where the Director has been advised against discontinuing the prosecution or that the charge should be proceeded with.[14]
[12]Public Prosecutions Act, s 45D(1).
[13]Public Prosecutions Act, s 45C(2).
[14]Public Prosecutions Act, s 3(1) (definition of ‘special decision’, (e)).

If the Director makes a special decision contrary to the advice of the other two members of the Director’s Committee, he or she must submit to the Attorney-General a statement in writing setting out the decision and the reasons for it, and the Attorney-General must cause the statement to be tabled in Parliament.[15] The outcome of a trial cannot be challenged for failure to comply with the special decision procedure.[16]
[15]Public Prosecutions Act, ss 45F, 45G.
[16]Public Prosecutions Act, ss 47, 49.

In this case, the Director decided, in accordance with paragraph 59 of the Director’s Policy, that there was no reasonable prospect of a conviction and so the charges would be withdrawn. The Director’s decision to withdraw the charges was not a special decision.

Section 46 provides that the Director is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the exercise of a power or the performance of a function or duty under, or in connection with, the Public Prosecutions Act. Any such liability attaches instead to the State.[17]
[17]Public Prosecutions Act, s 46(3).

Director’s submissions

The Director submitted that the constitutional question must (as a matter of precedent) and should (as a matter of persuasive authority and principle) be answered ‘no’. Her central propositions were:

(a) First, High Court authority both before and after its decision in Kirk v Industrial Court (NSW)[18] establishes that the exercise of a prosecutorial discretion to withdraw charges is not examinable by way of judicial review. Following Kirk, the High Court has continued to express the principle of unreviewability by reference to its underlying constitutional considerations.

(b) Second, as a matter of constitutional principle, the unavailability of judicial review in respect of a decision to withdraw charges does not conflict with the constitutionally protected supervisory jurisdiction of the Supreme Court. Such a conclusion would extend Kirk in two ways. It would extend the scope of the protected supervisory jurisdiction beyond that which existed at Federation, and would extend the principle beyond its current operation as a limit on State legislative power.

[18](2010) 239 CLR 531.

The Director prefaced these two arguments by submitting that the unreviewability principle has ‘constitutional dimensions’, and reflects the separation between the executive prosecutorial function and the judicial function of determining guilt or innocence.[19] The Director submitted that prosecutorial discretions remain the subject of political, rather than legal, accountability, although the office of the Director is now independent from the political process. She cautioned against eroding the principle of unreviewability, which is related to the separation of powers and the institutional integrity of the courts.
[19]Referring to Maxwell, 534 (Gaudron and Gummow JJ); Magaming v The Queen (2013) 252 CLR 381, [68] (Gageler J) (Magaming).

Precedent for the principle of unreviewability

The High Court authority referred to by the Director commenced with Barton v The Queen,[20] a case concerning the validity of indictments filed by the Attorney-General for New South Wales under s 5 of the Australian Courts Act 1828 (UK). The High Court held that the Attorney-General’s decision to file the indictments was not examinable by the courts. The majority approach and reasoning in Barton was said to make clear that the exercise of executive discretions about who is prosecuted for what (which must include a decision to cease a prosecution) is unreviewable by the courts.
[20](1980) 147 CLR 75 (Barton).

The Director placed particular reliance on the judgment of Gibbs ACJ and Mason J, which rejected the proposition that the court could review the decision as an exercise of statutory, rather than prerogative, power.[21] After reviewing relevant English authority, Gibbs ACJ and Mason J held that Parliament had intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General in England.[22] Their Honours explained:[23]

It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.

[21]Barton, 90–6 (Gibbs ACJ and Mason J), with whom Stephen, Aickin, and Wilson JJ relevantly agreed: Barton, 103 (Stephen J), 109 (Aickin J), 109–10 (Wilson J).

[22]Barton, 94 (Gibbs ACJ and Mason J).

[23]Barton, 94–5 (Gibbs ACJ and Mason J).

The next case in the line of authority relied on by the Director was Maxwell, which concerned whether a sentencing judge had power to reject a plea of guilty entered by the accused and accepted by the prosecution. In three separate judgments, the High Court held that there was no such power.

The Director referred to the much cited passage from the judgment of Gaudron and Gummow JJ:[24]

The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as “the prosecutorial discretion”. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s 394A of the Act.
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.

[24]Maxwell, 534 (Gaudron and Gummow JJ) (citations omitted).

The reasons of Dawson and McHugh JJ were to like effect, with the additional pragmatic reason for the unreviewability of prosecutorial discretions that ‘the court would seldom have the knowledge of the strengths and weaknesses of the case on each side which is necessary for the proper exercise of such a function’.[25] The Director also referred to the reasoning of Toohey J that ‘the court cannot insist that the Crown proceed with a particular charge’.[26]
[25]Maxwell, 513 (Dawson and McHugh JJ).
[26]Maxwell, 525 (Toohey J).

The Director submitted that Barton and Maxwell, individually and together, established that a decision to cease a prosecution is not reviewable by the Courts. She went on to refer to subsequent decisions of the High Court, after its decision in Kirk, that were said to have developed the principle of unreviewability to reflect its ‘constitutional dimensions’. The Director argued that these cases established that the principle of unreviewability serves the indispensable constitutional purpose of preserving the independence and impartiality of the courts.

The first of these decisions was Likiardopoulos v The Queen,[27] where the question was whether the appellant should have been tried as an accessory to murder in circumstances where the prosecution had accepted pleas of guilty to lesser offences from the alleged principal offenders. The High Court dismissed the appeal. The majority held that the prosecution’s acceptance of the proffered pleas of guilty involved an exercise of prosecutorial discretion which, for the reasons explained by Gaudron and Gummow JJ in Maxwell, was insusceptible of judicial review.[28] Chief Justice French agreed with the majority’s conclusion and reasons, but with the reservation that prompted the constitutional question in this proceeding.[29]
[27](2012) 247 CLR 265.
[28]Likiardopoulos, [37] (Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[29]Likiardopoulos, [1]–[4] (French CJ).

In relation to that reservation, the Director drew attention to the following observations of the Chief Justice:

(a) The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations, including the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings;[30]

(b) These considerations support the proposition that ‘in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review’;[31] and

(c) The modern statutory character of prosecutorial decision-making did not lessen the significance of the impediments to judicial review of such discretions created by these constitutional and practical considerations.[32]

[30]Likiardopoulos, [2] (French CJ), citing Jago v District Court (NSW) (1989) 168 CLR 23, 39 (Brennan J).

[31] Likiardopoulos, [3] (French CJ), referring to Maxwell, 534 (Gaudron and Gummow JJ).

[32]Likiardopoulos, [2]–[4] (French CJ).

The second post-Kirk decision referred to by the Director was Elias v The Queen,[33] which concerned a claimed common law principle that required a sentencing judge to take into account in mitigation of sentence that there was an appropriate ‘less punitive offence’ on which the prosecution could have proceeded.[34] The High Court unanimously held that there was no such principle, for reasons including that it would be inconsistent with the recognised ‘separation of prosecutorial and judicial functions, which in this country has a constitutional dimension’.[35]
[33](2013) 248 CLR 483 (Elias).
[34]The principle was said to have been stated by the Victorian Court of Appeal in R v Liang (1995) 124 FLR 350.
[35]Elias, [33].

Third, the Director referred to the High Court’s decision in Magaming v The Queen,[36] an appeal from a conviction for a people-smuggling offence under the Migration Act 1958 (Cth) that carried a mandatory minimum sentence of five years’ imprisonment. One of the issues on appeal was whether the prosecution had impermissibly exercised judicial power by choosing to charge that offence, instead of another available offence for which no minimum penalty was prescribed. The majority held that it had not,[37] citing Maxwell, Likiardopoulos, and Elias for the proposition that it ‘is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences’.[38]
[36](2013) 252 CLR 381.
[37]Magaming, [39] (French CJ, Hayne, Crennan, Kiefel, and Bell JJ).
[38]Magaming, [20] (French CJ, Hayne, Crennan, Kiefel, and Bell JJ), citing Maxwell, Likiardopoulos, [2]–[4], Elias, [34]–[35].

In a separate judgment, Gageler J addressed the distinction between judicial power and prosecutorial discretion:[39]

Chapter III of the Constitution therefore reflects and protects a relationship between the individual and the state which treats the deprivation of the individual’s life or liberty, consequent on a determination of criminal guilt, as capable of occurring only as a result of adjudication by a court. That adjudication quells a controversy, to which the individual and the state are parties, as to the legal consequences of the operation of the law on the past conduct of the individual. …
That understanding of the nature and incidents of the determination and punishment of criminal guilt underlies the reasons which have generally been given in Australia for treating executive decisions made in the prosecutorial process as ordinarily insusceptible of judicial review, an insusceptibility recently described as having “a constitutional dimension”.[40] Thus, “[i]t has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced”.[41] The same general perception of undesirability of close curial involvement in prosecutorial processes has applied to a question about whether a particular charge is to be laid, as well as to a question about whether a particular charge, having been laid, is to be proceeded with.[42] The main reason generally given is that the court’s review of such an exercise of prosecutorial discretion would compromise the impartiality of the judicial process by involving a court in an inquiry into a forensic choice made by a participant in a controversy actually or potentially before the court.[43] A complementary reason often given is that a court’s control over its own hearing and determination of whatever charge might in fact be laid and proceeded with in the exercise of prosecutorial discretion means that “the court has other powers to ensure that a person charged with a crime is fairly dealt with”.[44]

[39]Magaming, [67]–[68] (Gageler J). Justice Gageler dissented in the result, but agreed with the majority on the issue of prosecutorial discretion.

[40]Citing Elias, [33].

[41]Citing Barton, 94–5 (Gibbs ACJ and Mason J).

[42]Citing Maxwell, 534 (Gaudron and Gummow JJ).

[43]Citing Maxwell, 534 (Gaudron and Gummow JJ), Likiardopoulos, [2] (French CJ), [37] (Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

[44]Citing Barton, 95 (Gibbs ACJ and Mason J), Elias, [35].

The Director also referred to subsequent cases in which the High Court,[45] the Victorian Court of Appeal,[46] and the New South Wales Court of Appeal[47] had applied the principle of unreviewability and repeated the underlying rationale for the principle.
[45]Barbaro v The Queen (2014) 253 CLR 58, [47] (French CJ, Hayne, Kiefel, and Bell JJ); A-G (NT) v Emmerson (2014) 253 CLR 393, [63] (French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ); James v The Queen (2014) 253 CLR 475, [37] (French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ).
[46]Baker v DPP (Vic) (2017) 270 A Crim R 318, [39]–[43] (Tate JA, with whom Maxwell P and Beach JA relevantly agreed); Maya v DPP (Vic) (2019) 60 VR 276, [44]; Chaarani v The Queen (2020) 61 VR 353, [58]–[59], [84]–[86]; DPP (Vic) v Currie (2021) 65 VR 61, [63]–[69]; Hines v The King [2023] VSCA 168, [24]–[28]; DPP (Vic) v Tuteru [2023] VSCA 188, [79], [82]–[83], [126] (Tuteru); Bogan v The Estate of Peter John Smedley (Deceased) [2023] VSCA 256, [118].
[47]Ozgen v The Queen (2021) 291 A Crim R 408, [66] (Leeming JA, with whom Price and Hamill JJ relevantly agreed).

No conflict between unreviewability and Kirk

The Director’s second proposition was that there is no tension between the principle of unreviewability and the High Court’s decision in Kirk. She identified several factors to make good that proposition.

First, the Director submitted that the scope of the constitutionally protected supervisory jurisdiction of the State Supreme Courts is limited by reference to the scope of their jurisdiction at Federation.[48] This was confirmed in the recent decision of Kaldas v Barbour,[49] in which the New South Wales Court of Appeal held that the Supreme Court’s entrenched supervisory jurisdiction did not extend to granting a bare declaration.[50]
[48]Referring to Kirk, [98]–[100] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[49](2017) 107 NSWLR 341 (Kaldas).
[50]Kaldas, [176]–[196] (Bathurst CJ), [361] (Basten JA), [380] (Macfarlan JA).

The Director contended that it was no part of the jurisdiction of the Supreme Courts at the time of Federation to review the exercise of prosecutorial discretions, in particular decisions to withdraw charges. The authorities show that by the 19th century it was well-established that these decisions were not examinable by the courts.[51] For that reason alone, the Director submitted, there is no tension between the principle of unreviewability and the High Court’s decision in Kirk.
[51]Referring to R v Prosser (1848) 11 Beav 306 [50 ER 834] (Prosser); R v Allen (1862) 1 B & S 850 [121 ER 929] (Allen); Barton, 89–93 (Gibbs ACJ and Mason J).

Second, the Director submitted that Kirk operates as a limit on State legislative power — in that case, the power to enact a privative clause limiting the New South Wales Supreme Court’s supervisory jurisdiction.[52] In this case, the Director does not rely on a privative clause, but on judge-made common law and the requirements of the Constitution to protect the separation of powers and the institutional integrity of the courts. For that reason, the principle of unreviewability was said to apply whether the prosecutorial power in question derives from statute or the common law.
[52]Referring to Kirk, [55], [95]–[100] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

Third, the Director submitted that there is a relationship between the principle of unreviewability and the decision in Kirk, in that both are based on the need to preserve the institutional integrity of the courts. As such, the Director argued, ‘the insusceptibility of prosecutorial discretions to judicial review can be understood as a precondition for the constitutional paradigm that was the point of departure for the decision in Kirk, rather than an exception to the rule it established’.[53]
[53]Second defendant’s outline of submissions dated 8 December 2023, [46].

For completeness, the Director sought to refute the suggestion that the unavailability of judicial review in this case would result in an ‘island of power immune from supervision and restraint’.[54] She referred to the long history of prosecutorial accountability to Parliament rather than to the courts, which now finds statutory expression in the Public Prosecutions Act. Under that Act, the Director is ultimately responsible to the Attorney-General, who is in turn accountable to Parliament.[55]
[54]Referring to Kirk, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[55]Referring to the Public Prosecutions Act, s 10.

The Director submitted that the executive’s exclusive control over prosecutorial decisions reflects the separation of prosecutorial and adjudicated functions. She argued that decisions about ‘who is prosecuted for what’ should not be second-guessed by courts, because they frequently involve a delicate balancing of competing public interest factors that are ‘unknowable’ by the courts.[56] In addition, she pointed out the burdens that would be imposed on the justice system if the exercise of prosecutorial discretions were subject to judicial review.[57]
[56]Referring to Tuteru, [75]–[76].
[57]Referring to Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report, August 2016), 75–6 [4.198]–[4.200].

Mr Harkness’ submissions

Mr Harkness submitted that the constitutional question should be answered ‘yes’ in order to preserve the institutional integrity of the courts, to uphold the rule of law, to protect the public interest in justice being seen to be done, and to preserve the stability of our institutions of government against tyranny and despotism.

Mr Harkness argued that the key passage from the judgment of Gaudron and Gummow JJ in Maxwell was not directly concerned with the jurisdiction of a State Supreme Court to supervise the exercise of State executive power, and could not reasonably be taken to apply more broadly to that jurisdiction. He said that the Director’s position — that her decision to withdraw charges is not amenable to judicial review — did not accord with the principle that a State legislature did not have power ‘to create islands of power immune from supervision and restraint’.[58] He adopted the reservation expressed by French CJ in Likiardopoulos, and said that it applied in this case so that the Director’s decision to withdraw charges is not immune from judicial review for jurisdictional error.
[58]Citing Kirk, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

According to Mr Harkness, it is fundamental to the rule of law that no one is above the law, and so any island of non-reviewable power is antithetical to the rule of law and incompatible with the separation of powers. He said that the supervisory role inherent in the jurisdiction of the State Supreme Courts is essential to closing the door on non-reviewable power and the slippery slope towards injustice, tyranny, and despotism. He gave a number of examples from history of the consequences of the unrestrained exercise of power, including the Star Chamber in England.

In his written submissions, Mr Harkness canvassed a number of other issues that were not relevant to the constitutional question. I have not had regard to those matters in determining the constitutional question.

Friends of the Court’s submissions

The Friends of the Court submitted that the constitutional question should be answered ‘yes’, on the basis of three key propositions:

(a) First, all statutory powers are subject to limits, which are enforced through the exercise of the Court’s constitutionally entrenched supervisory jurisdiction to undertake judicial review for jurisdictional error.

(b) Second, contrary to the Director’s submissions, there is no obstacle in precedent to finding that the exercise of statutory power to withdraw all charges after taking over a private prosecution is susceptible of review.

(c) Third, there is no objection in principle to making that finding. To the contrary, the absence of any other remedy, legal or political, for unlawful decisions of that kind provides a strong reason in principle to conclude that such decisions are reviewable.

At the outset, the Friends of the Court emphasised the need for a ‘cautious and restrained’ approach to answering constitutional questions, under which a constitutional question is answered only if, and to the extent that, it is necessary to do so.[59] They also pointed out that the Court is not concerned with ‘reviewability’ in some general sense, but with judicial review for jurisdictional error by the Supreme Court. For that reason, cases concerning appeals or proceedings in the criminal process should be treated with caution.
[59]Referring to Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219, [57]–[58] (Kiefel CJ, Gageler, Keane, Gordon, Steward, and Gleeson JJ); Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537, [20]–[21] (Kiefel CJ and Keane J), [115] (Gordon J).

All statutory powers have limits

The Friends of the Court argued that, by starting with the ‘principle of unreviewability’, the Director’s approach inverted the inquiry. They said that the proper approach is to start with the nature and function of judicial review, and the Court’s constitutionally entrenched supervisory jurisdiction.

The Friends’ starting point involved the following propositions:

(a) All statutory powers have limits, even statutory powers couched in open-textured language.[60]
[60]Referring to Wotton v Queensland (2012) 246 CLR 1, [10] (French CJ, Gummow, Hayne, Crennan, and Bell JJ); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [34] (French CJ, Kiefel, and Bell JJ).

(b) Judicial review is the means by which those limits on power are enforced.[61]
[61]Referring to A-G (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J) (Quin).

(c) The capacity of State Supreme Courts to supervise the exercise of State executive and judicial power ‘through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts’.[62]
[62]Citing Kirk, [98] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

(d) The constitutionally entrenched supervisory jurisdiction of State Supreme Courts protects against the existence of ‘islands of power immune from supervision and restraint’ and, in that way, serves to promote the rule of law.[63]

(e) The concept of jurisdictional error is critical to understanding the Court’s constitutionally entrenched supervisory jurisdiction.[64]

(f) The statutory limits of power are to be determined as an exercise in statutory interpretation.[65]

[63]Referring to Kirk, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ); Argos Pty Ltd v Corbell (2014) 254 CLR 394, [48] (French CJ and Keane J); City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [56] (Gaudron J).

[64]Referring to Kirk, [100] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

[65]Referring to MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [30] (Kiefel CJ, Gageler, Keane, and Gleeson JJ) (MZAPC).

From that starting point, the Friends submitted that there was nothing in the subject matter, scope, or nature of the power in s 22(1)(b)(ii) of the Public Prosecutions Act to suggest that a decision to withdraw charges after taking over a private prosecution is intended to be insusceptible of judicial review for jurisdictional error. If anything, the statutory context supports the conclusion that decisions under s 22(1)(b)(ii) are amenable to judicial review, because the privative clause in s 49 does not purport to exclude judicial review of those decisions. It would be wrong to superimpose upon the statute a ‘principle of unreviewability’, rather than engaging in an orthodox process of statutory interpretation by reference to the text, context, and purpose of the provision.

Precedent

Next, the Friends of the Court submitted that authority did not preclude a conclusion that a decision to exercise a statutory power to withdraw all charges after taking over a private prosecution is amenable to judicial review. They acknowledged that it may be difficult for a plaintiff to establish that such a decision is vitiated by jurisdictional error, but said that was different from concluding that the decision was entirely insusceptible of judicial review.

Neither of the pre-Federation cases relied on by the Director to express the position at Federation were judicial review proceedings, nor did they involve the exercise of statutory power. Both concerned the prerogative power to enter a nolle prosequi.[66] It follows that a finding that the Director’s decision here is susceptible to judicial review would involve no extension of the principle in Kirk. More fundamentally, Kirk established that the State Supreme Courts have a constitutionally entrenched supervisory jurisdiction to conduct judicial review for jurisdictional error. For that reason, the Friends submitted, answering the constitutional question ‘yes’ would be entirely consistent with Kirk.
[66]The two cases were Prosser and Allen, discussed in Barton, 89–91 (Gibbs ACJ and Mason J). See fn 51 above.

Turning to Barton and Maxwell, the Friends submitted that, read in context, neither authority supported the proposition that a decision to withdraw charges after taking over a private prosecution is never amenable to judicial review.

(a) In Barton, which was a judicial review proceeding, the High Court held that on the proper construction of the particular statute it could not examine the Attorney-General’s discretion to file an ex officio indictment.[67]

(b) Maxwell was the first time that the High Court referred to a prosecutorial decision being ‘insusceptible of judicial review’.[68] However, the case did not involve a judicial review proceeding, but was an interlocutory appeal in the context of a criminal trial where there was a question whether the primary judge could reject a guilty plea that had been accepted by the prosecution.

[67]Referring to Barton, 94 (Gibbs ACJ and Mason J).

[68]Maxwell, 534 (Gaudron and Gummow JJ).

Against the body of authority referred to by the Director in support of the principle of unreviewability, the Friends of the Court referred to:

(a) a body of authority in the United Kingdom establishing the courts’ power to review decisions not to prosecute and decisions to discontinue private prosecutions;[69]
[69]R v DPP, Ex parte C [1995] 1 Cr App R 136, 139–41 (Kennedy LJ for the Court); R v DPP, Ex parte Manning [2001] QB 330, [23] (Lord Bingham CJ for the Court) (Manning); R v DPP, Ex parte Jones (Timothy) [2000] Crim LR 858; R (Gujra) v Crown Prosecution Service [2012] 1 WLR 254; R (Gujra) v Crown Prosecution Service [2013] 1 AC 484. The Friends of the Court also referred to R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118, where a person sought mandamus directing police to reverse a policy of not prosecuting breaches of gambling legislation.

(b) a decision of the New Zealand Court of Appeal in which a decision not to prosecute was held to be amenable to judicial review;[70]

(c) Matalulu v Director of Public Prosecutions,[71] a decision of the Full Court of the Supreme Court of Fiji, in which the Full Court held that ‘there is now little or no support for the proposition that [prosecutorial] decisions are completely beyond the reach of judicial review’, while acknowledging that success on judicial review was likely to be rare;[72] and

(d) examples of Australian courts entertaining applications for prerogative writs in respect of decisions not to prosecute.[73]

[70]Osborne v Worksafe New Zealand [2017] 2 NZLR 513. While an appeal was allowed, it was accepted on appeal that the decision was amenable to judicial review: Osborne v Worksafe New Zealand [2018] 1 NZLR 447.

[71][2003] Fiji Law Reports 129 (Matalulu). The members of the Full Court included von Doussa and French JJ, who were at that time judges of the Federal Court of Australia.

[72]Matalulu, 146, referring to Maxwell, 329–30 (Gaudron and Gummow JJ), Wayte v United States (1985) 470 US 598, 607–8 (Powell J).

[73]Miller v DPP (Cth) (2005) 142 FCR 394; King-Brooks v Roberts (1991) 5 WAR 500, 515–9 (Malcolm CJ, with Pidgeon J agreeing), 520 (Rowland J); R v Commissioner of Police; Ex parte North Broken Hill Ltd (1992) 1 Tas R 99, 114–6 (Wright J).

The Friends also made the point that the authorities relied on by the Director in which the ‘principle of unreviewability’ stated in Maxwell had been applied — in particular Likiardopoulos, Elias, Magaming, and Director of Public Prosecutions vTuteru[74] — were all criminal proceedings where the court had been asked to engage with the merits of prosecutorial decision-making. None of them involved judicial review for jurisdictional error.
[74][2023] VSCA 188.

Principle

The Friends of the Court argued that there is no principled objection to answering the constitutional question ‘yes’, because:

(a) the limited nature of judicial review for jurisdictional error means that there is no necessary interference with the impartiality of the judicial process so as to justify a blanket ‘principle of unreviewability’; and

(b) the contended difficulties in subjecting the decision to judicial review are overstated, and are not a reason to find that the power to take over a private prosecution and withdraw the charges is insusceptible of judicial review altogether.

Moreover, the Friends submitted, the absence of any other remedy is a strong reason to find that the decision is reviewable for jurisdictional error.

Institutional integrity

The main reason given for treating prosecutorial decisions as immune from review is to preserve the institutional integrity of the courts by maintaining a strict separation between prosecutorial and adjudicative functions.[75] The Friends of the Court argued that the distinction between the legality and the merits of a decision lies at the heart of judicial review, as explained by Brennan J in Attorney-General (NSW) v Quin.[76] They said that, since that distinction reflects the separation of powers between the executive and the judiciary, it is difficult to see why the Court engaging in judicial review would necessarily conflict with that constitutional principle.
[75]Referring to Maxwell, 534 (Gaudron and Gummow JJ); Magaming, [68] (Gageler J).
[76]Quin, 35–6 (Brennan J). The Friends also referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40–1 (Mason J).

The Friends contrasted judicial review, which is concerned with enforcing the limits of public power, with the criminal process, which is concerned with adjudicating and punishing criminal guilt.[77] They argued that the parameters of review for jurisdictional error militate against the Court becoming too closely involved — or indeed involved at all — in the merits of a prosecutorial decision.
[77]Referring to Magaming, [67] (Gageler J).

The Friends reiterated that the authorities relied on by the Director for the ‘principle of unreviewability’ did not consider the significance of the limits on judicial review for jurisdictional error. Most of the cases were criminal appeals, not judicial review proceedings. While Barton did involve judicial review of the Attorney-General’s exercise of a statutory discretion, there was no discussion of how insusceptibility could be reconciled with the principle that all statutory powers have limits. The Friends pointed out that in subsequent decisions, the High Court had not applied any principle of unreviewability to deny judicial review of a prosecutorial decision. Rather, there is a ‘degree of evident caution’ in the Court’s statements.

Institutional competence

The Friends of the Court said that it could be accepted that the Director is principally responsible for weighing the variety of factors that may legitimately inform the exercise of a prosecutorial discretion.[78] However, they did not accept that it follows that the discretion is insusceptible of judicial review altogether. The fact that it may be difficult to discern error in such a decision is not a reason to conclude that the decision cannot be reviewed; it simply means that a plaintiff has a difficult task in discharging the onus of proving jurisdictional error.[79]
[78]Referring to Likiardopoulos, [2] (French CJ).
[79]Referring to MZAPC, [39] (Kiefel CJ, Gageler, Keane, and Gleeson JJ).

The Friends submitted that this reasoning was confirmed by the United Kingdom decision of R v Director of Public Prosecutions; Ex parte Manning,[80] in which the plaintiffs sought judicial review of a decision not to prosecute any prison officer in connection with their brother’s death in custody. The Queen’s Bench Division of the High Court of England and Wales accepted that a decision not to prosecute is susceptible to judicial review, albeit that ‘the power of review is one to be sparingly exercised’.[81] Lord Bingham CJ, giving judgment for the Court, held:[82]

It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.

[80][2001] QB 330.

[81]Manning, [23] (Lord Bingham CJ).

[82]Manning, [23] (Lord Bingham CJ).

In Manning, the decision not to prosecute was set aside for failure to take into account specific matters that should have been resolved to give an objective appraisal of the prospects of a successful prosecution. The Court expressed no view on the likely or proper outcome of the reconsideration of the decision.[83]

No other remedy

[83]Manning, [42] (Lord Bingham CJ).

The Friends of the Court noted that a complementary reason given for treating prosecutorial discretions as insusceptible of judicial review is that a court can exercise control over its own processes in hearing and determining a charge, to ensure that a person charged with an offence is dealt with fairly.[84] However, those powers are of no assistance in a case such as this one, involving a decision to withdraw charges. The Friends submitted that the absence of any form of legal redress for a person aggrieved by a decision not to prosecute is a reason to find that the decision is amenable to judicial review, as the courts in the United Kingdom have done.
[84]Referring to Barton, 95 (Gibbs ACJ and Mason J); Likiardopoulos, [37] (Gummow, Hayne, Crennan, Kiefel, and Bell JJ); Elias, [35]; Magaming, [68] (Gageler J).

This argument was reinforced by the fact that it can no longer be said in Victoria that prosecutorial decisions are subject to political accountability. The Friends pointed out that the Director is an independent statutory officer with security of tenure, who is accountable to Parliament only in the attenuated sense that she may be removed from office by the Governor in Council on the address of both Houses of Parliament.[85]
[85]Constitution Act, ss 18, 87AB(2), 87AE.

Consideration

There is a great weight of Australian authority for the proposition that prosecutorial decisions are insusceptible of judicial review. The statement to that effect in Maxwell has been applied on numerous occasions by the High Court, intermediate courts of appeal including the Victorian Court of Appeal, and single judges of this Court.[86] I accept the Director’s submission that, as a single judge of the Supreme Court of Victoria, I am bound by that authority to conclude that the answer to the constitutional question is ‘no’.
[86]The authorities are referred to at [24]-[35] above.

However, I have some reservations about that conclusion and the ‘principle of unreviewability’ propounded by the Director. I set out below my reservations, and the reasons for them, in case the question comes to be considered by a higher court.[87]
[87]See also the lucid analysis of the question in Sam Pack, ‘Judicial Review of Decisions Not to Prosecute’ (2020) 49(3) Australian Bar Review 440.

First, a principle of unreviewability appears incompatible with the constitutionally protected supervisory jurisdiction of a State Supreme Court to review the exercise of statutory power for jurisdictional error. The notion that a statutory office holder’s decisions are immune from review for jurisdictional error seems to me to erode the supervisory jurisdiction that is one of the ‘defining characteristics’ of a State Supreme Court.[88]
[88]Kirk, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

The jurisdiction of the State Supreme Courts at Federation clearly included jurisdiction to review the exercise of statutory power for jurisdictional error, and to grant remedies such as certiorari and prohibition to correct error. The 19th century English authorities referred to by the Director indicate that the State Supreme Courts did not have power at Federation to review the exercise of a prerogative power to enter a nolle prosequi.[89] However, the relevant decision in this case was not an exercise of prerogative or common law power. It was an exercise of statutory power, which would ordinarily be subject to judicial review. I therefore do not agree with the Director’s submission that answering the constitutional question ‘yes’ would have involved an extension of the principle in Kirk.
[89]See [38] above.

Second, there is nothing unusual about a State Supreme Court undertaking judicial review of an executive decision made by reference to complex policy and public interest considerations, some of which are not known by the Court. Supreme Courts routinely engage in judicial review of all sorts of executive decisions without compromising their independence or institutional integrity. That is because judicial review is concerned with the legality of executive decision-making, as distinct from its merits.[90] As the Friends of the Court submitted, the distinction between legality and merits reflects the separation of powers between the judiciary and the executive. There is considerable force in their argument that judicial review for jurisdictional error of the Director’s decision in this case would be consistent with constitutional principle, and not in conflict with it.
[90]Quin, 35–6 (Brennan J); MZAPC, [29] (Kiefel CJ, Gageler, Keane, and Gleeson JJ), citing Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, [39].

The Friends of the Court were correct to observe that almost all of the High Court and intermediate appellate authorities relied on by the Director to support the ‘principle of unreviewability’ involved a criminal proceeding in which the merits of a prosecutorial decision had been called into question. As one example, in Tuteru the Victorian Court of Appeal emphatically stated that ‘decisions made in the exercise of prosecutorial discretion are not amenable to review or enquiry by the court’.[91] The statement was made in the context of an appeal from the trial judge’s decision to permanently stay a criminal prosecution, where the judge had been critical of the prosecution’s decisions to bring and then discontinue more serious charges.
[91]Tuteru, [79], citing Barton, [75], [91], [94] (Gibbs ACJ and Mason J); see also Tuteru, [82], [128].

The notable exception in that line of authority is Barton, which concerned a judicial review proceeding. In that case, the High Court did not articulate or apply a principle of unreviewability. Rather, the relevant statutory provision was construed as conferring an unexaminable discretion, by reference to the particular characteristics of the provision.[92] It does not necessarily follow that s 22(1)(b)(ii) of the Public Prosecutions Act also confers an unexaminable discretion. Any statutory provision that confers prosecutorial discretion must be construed in the ordinary way, according to its own text, context, and purpose.
[92]Barton, 94 (Gibbs ACJ and Mason J).

It may be accepted that a bright line should be maintained between prosecuting and adjudicating criminal guilt, and that courts should keep well clear of decisions about who is to be prosecuted and for what. I do not doubt that the line between prosecuting and judging must be scrupulously observed in criminal proceedings.

However, different considerations arise in the supervisory jurisdiction of a State Supreme Court. Reviewing a prosecutorial decision for jurisdictional error would not draw the Court into making forensic choices about a matter that may come before it — particularly where the decision was to withdraw a charge. Rather, the Court would be asked only to determine the legality of the decision. If jurisdictional error were established, the Court could grant certiorari to set the decision aside, but would not go on to make the decision for itself. It would leave it for the prosecutor to reconsider the decision, according to law.[93]
[93]See for example Manning, [42], where the High Court expressed no opinion on the likely or proper outcome of the reconsideration of whether or not to prosecute.

Third, the idea that all prosecutorial decisions are insusceptible of judicial review does not engage with the principle that a decision affected by jurisdictional error is invalid, and is ‘regarded, in law, as no decision at all’.[94] The width of prosecutorial discretion and the range of policy and public interest considerations that may be taken into account does not dictate that the discretion can never miscarry. For example, a decision to withdraw a charge procured by bribery, a decision not to prosecute influenced by affection for the offender, or a decision to prosecute actuated by malice, would arguably all be invalid for jurisdictional error. And yet the principle of unreviewability would shield these decisions from judicial review.
[94]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [51] (Gaudron and Gummow JJ), [63] (McHugh J), [152] (Hayne J); Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, [76].

Fourth, the principle of unreviewability has the effect that the Director is an ‘island of power immune from supervision and restraint’ of the kind decried by the High Court in Kirk.[95] Unlike the Attorney-General in Barton, the Director has no political accountability. The office is truly independent from the political process, as it was designed to be.[96] In this case, involving a decision to take over a private prosecution and withdraw charges, the Magistrates’ Court’s powers to prevent an abuse of process are of no avail to Mr Harkness, who was no longer a party to the proceeding.[97] It is troubling that there is no remedy for a person in Mr Harkness’ position if the Director’s decision was affected by jurisdictional error.
[95]Kirk, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[96]See [9]-[11] above.
[97]Cf Brazel v The Magistrates’ Court of Victoria (2018) 53 VR 440.

Despite those reservations, I accept that I am bound to answer the constitutional question ‘no’. I will list the proceeding for a further hearing at a mutually convenient time to hear submissions about the orders that should follow from this answer.

[2024] VSC 709

18 November 2024