L v Johnson and the Director of Public Prosecutions

[2003] NSWSC 1246

CITATION:	L v Johnson & the DPP [2003] NSWSC 1246
HEARING DATE(S):	22 October 2003, 19 November 2003
JUDGMENT DATE:	22 December 2003
JUDGMENT OF:	Hidden J at 1
DECISION:	See para 21
CATCHWORDS:	LOCAL COURTS - Summary prosecution by DPP - charges withdrawn, later reinstated - willingness of complainant to give evidence - no fresh evidence - suggestion of ulterior motive in complainant - delay - whether proceedings an abuse of process
PARTIES :	L (plaintiff) Paul Johnson (1st defendant) Director of Public Prosecutions (2nd defendant)
FILE NUMBER(S):	SC 11004/2003
COUNSEL:	M Thangaraj (plaintiff) I Bourke (2nd defendant)
SOLICITORS:	Russell McLelland Brown (plaintiff) Solicitor for Public Prosecutions (2nd defendant) Crown Solicitor (submitting appearance 1st def)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Monday 22 December 2003

11004/03 – L v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

1 HIS HONOUR: The plaintiff is charged with three counts of aggravated indecent assault upon his stepdaughter. The hearing of the charges is pending at the Wollongong Local Court, where it is intended that they be dealt with summarily. On 25 March 2003 a magistrate dismissed his application for a permanent stay of the proceedings. He has appealed to this Court pursuant to Pt 5 of the Justices Act, 1901 (since repealed). As the order appealed against is an interlocutory one, he requires this Court’s leave to do so: s 104(4) of the Act. Alternatively, he seeks orders of a prerogative nature. Given the view I have formed of the matter, it is unnecessary to examine the distinction between the various forms of relief sought.

2 From the outset the Director of Public Prosecutions has had the conduct of the proceedings in the Local Court. The Director has been joined in the proceedings in this Court as the second defendant. The first defendant is the magistrate, on whose behalf the usual submitting appearance has been entered.

3 The three offences are alleged to have been committed between 1992 and 1996. The complainant first approached the police in early 1997 and the plaintiff was charged on 25 April that year. However, on 17 July 1997 the complainant made a further statement to the police in which, although she did not resile from her allegations, she said that she did not wish to give evidence. This was said to be because of developments in her personal life at that stage and a desire to get on with her life. She was fifteen years old at this time. As a result, with the consent of the plaintiff, the charges were withdrawn on 7 October 1997.

4 It seems that over the ensuing years the relationship between the plaintiff and his wife, the complainant’s mother, soured to the extent that he obtained an interim apprehended violence order against her in May 2002. In July of the same year she sought an interim apprehended violence order against him, which was refused. Shortly thereafter the complainant asked the police to reactivate the indecent assault charges against the plaintiff, and on 23 July she herself obtained an interim apprehended violence order against him, based upon her fears about his reaction to this development. On the following day her mother sought another apprehended violence order, also raising the complainant’s allegations and expressing her own fears about the plaintiff’s reaction. On this occasion she was successful.

5 On 1 August 2002 the complainant made a further statement to the police, saying that she was then prepared to give evidence because she was older and better able to cope with the proceedings. On 15 October 2002 fresh informations were laid, instituting the Local Court proceedings with which I am now concerned.

6 Both in the Local Court and in this Court the plaintiff was represented by Mr Thangaraj of counsel. Before the magistrate he argued that the prosecution should be stayed as an abuse of process, and also because the fairness of the proceedings would be prejudiced by delay. As to abuse, he argued that there was no additional evidence justifying the laying of fresh informations, and that it should be inferred that the complainant sought to resuscitate the matter for the ulterior motive of assisting her mother in her apprehended violence proceedings against the plaintiff. He acknowledged that this was a novel basis upon which to contend that proceedings were an abuse of process, but he argued that the categories of abuse are not closed.

7 In dismissing the application, the magistrate noted that in cases of this kind there is often a substantial delay between the time when the offences are alleged to have been committed and the time when the defendant is charged, and that that delay is a matter to which a court must have regard in determining whether the charges have been proved. He also observed that the plaintiff had the six month period between April 1997, when he was first charged, and October 1997, when those charges were withdrawn, to consider the complainant’s allegations and prepare his defence. It was not suggested that there had been “calculated and unreasonable delay on the part of the prosecution”: Jago v District Court (NSW) (1989) 168 CLR 23, per Deane J at 57. As his Worship saw it, the Director had done no more than bring the matter before the Court once it became apparent that the complainant was prepared to give evidence. In all the circumstances, he concluded that the delay had not occasioned the plaintiff such prejudice as to warrant staying the proceedings.

8 On the question of abuse of process, his Worship noted that the withdrawal of the charges did not finally dispose of them. As he put it, “There was no real finality to a withdrawal of the informations.” He added that presumably, with the benefit of legal advice at the time, the plaintiff would have been aware of that fact. He made no finding about the complainant’s motivation for seeking to have the charges reactivated. He said that, while her motivation might be a matter bearing upon her credibility to be pursued in cross-examination, it was not relevant to the determination of the application for a stay.

9 His Worship concluded his reasons in this way:

“Motive of the complainant, in the Court’s view, has nothing to do with an abuse of the Court’s process. Recharging the defendant after an earlier withdrawal does not prevent a fair trial and is not, in the Court’s view, an abuse of process …”

10 Mr Thangaraj’s submissions in this Court centred upon the withdrawal of the charges and the circumstances of their reinstatement. It was against that background that he mounted the challenge to his Worship’s approach to the delay, which it is convenient to deal with first. He relied upon the observation of Mason CJ in Jago (at 33) that “it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged”. However, that observation must be read in its context. The Chief Justice was there speaking about the “balancing process” involved in the “test of fairness”, noting that “the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial …“ (also at 33). His Honour went on to say (at 34) that “a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay only will accordingly be very rare…”. In the present case his Worship undertook that balancing process, and the conclusion at which he arrived was clearly open to him.

11 Mr Thangaraj also referred in this context to the decision of Roberts-Smith J of the Supreme Court of Western Australia in DPP v A (2001) 117 ACrimR 551. That was a case in which a judge of the Children’s Court ordered a permanent stay of a prosecution upon a charge which had previously been withdrawn. An application by the Director of Public Prosecutions to the Supreme Court for declaratory relief was refused. Mr Thangaraj argued that one of the reasons for that outcome was the delay in re-charging the defendant, said in that case to be a matter of months rather than years, as in the present case. However, Mr Thangaraj’s argument springs from a misapprehension of para 56 of the judgment of Roberts-Smith J. What his Honour was there referring to, as an additional discretionary reason for refusing the relief sought, was the delay between the order staying the prosecution and the institution of the Supreme Court proceedings.

12 Otherwise, Thangaraj contended that the magistrate had failed to deal with the case as a new category of abuse of process and, in particular, had fallen into error in two respects: a) finding that the charges could be re-instated in the absence of new evidence; and b) failing to investigate the complainant’s motive in seeking their re-instatement.

13 For the first of those propositions, Mr Thangaraj replied upon some dicta of Kirby J in DPP (SA) v B (1998) 194 CLR 566, an appeal from a decision of the Full Court of South Australia. The case was concerned with the question whether a trial judge could refuse to allow a prosecutor to enter a nolle prosequi in circumstances where, on the day fixed for the trial, vital prosecution witnesses were unavailable. For present purposes the outcome of that appeal need not concern us. However, Kirby J recognised that there might be circumstances in which the entry of a nolle prosequi, or the re-agitation of the proceedings after the entry of a nolle prosequi, might amount to an abuse of process “or an unacceptable departure from fairness to the accused” (at 602-3). His Honour then said (at 603):

It would still be open to the accused, in the event of a fresh prosecution, to argue that the circumstances in which the nolle prosequi was entered involved an abuse of process or a departure from fair trial requirements. In this way, the intervention of the courts would be reserved to cases where intervention was strictly necessary. There would then be proceedings in a court which could properly be the subject of a stay order directed at the process initiated by the new indictment. Short of refusing to accept the entry of a nolle prosequi, a judge could properly make plain an opinion that, in the absence of significantly new evidence, the commencement of fresh proceedings would constitute an abuse of process. (footnote omitted)

14 Mr Thangaraj placed particular reliance upon the last sentence of that passage. However, his Honour’s observations must be understood in the context of the type of case with which the Court was dealing. In no sense was he enunciating a principle that charges, once withdrawn, could be re-instated only if fresh evidence became available.

15 DPP v A (supra) was a not dissimilar case. The prosecutor had withdrawn a charge against the defendant in the course of proceedings in the Children’s Court because, as a result of an evidentiary ruling, it was apparent that the prosecution must fail. Later, when the same evidence became available in admissible form, the prosecution sought to proceed against the defendant in respect of the same charge. The primary judge stayed the proceedings permanently and Roberts-Smith J upheld her decision, finding no error in the exercise of her discretion.

16 The difference between those cases and the present case is obvious. There is no suggestion that the Director sought to withdraw the charges against the plaintiff in 1997 because of any perceived weakness in the prosecution case. Clearly, it was the question of the complainant’s preparedness to give evidence which governed both the withdrawal of the charges and their subsequent reinstatement. Of course, the complainant could have been compelled to give evidence in 1997 but, given the delicate nature of matters such as this, it is entirely understandable that the Director chose not to proceed at that stage. Equally, one can understand that the plaintiff may well have assumed that the withdrawal of the charges was the end of the matter and that this chapter of his life was closed. Unfortunately, as his Worship rightly observed, that withdrawal was not a final disposition of the proceedings: Lay v Cleary (James J, unreported, 23 February 1993).

17 As to the complainant’s motive, Mr Thangaraj submitted that it was a matter about which the magistrate had to make a finding for the purpose of deciding the application. I should note his complaint that his Worship had regard to the statements of the complainant to which I have referred, even though they have not been tendered at the hearing of the application and he had foreshadowed to the solicitor representing the Director that they would be objected to unless she were available for cross-examination. The complainant was not present at the hearing and, in the course of argument, his Worship observed that Mr Thangaraj’s submission that her motive was ulterior was unsupported by evidence “without her in the witness box”.

18 It does seem that the magistrate dealt with the matter with a measure of informality which might not have been appropriate if the complainant’s motive were a significant issue to be determined. In my view, however, his Worship was correct in finding that it was not. While acknowledging her obvious interest in the outcome of the proceedings, she was a witness, not the prosecutor. While her preparedness to give evidence no doubt influenced the Director’s decision to re-institute the prosecution, that decision was the Director’s, not hers. Of course, Mr Thangaraj does not contend that there is any ulterior motive on the Director’s part.

19 This is not to suggest that in cases such as this the prosecutorial decisions of a public authority should be at the whim of a complainant. Nor is it to deny that, in the decision of such an authority to withdraw charges or to lay them afresh, the public interest is paramount. There may be cases in which the combination of delay and the complainant’s behaviour is such that it would not be responsible to re-institute a prosecution and to do so would amount to an abuse. This, however, has not been shown to be such a case.

20 I should refer briefly to Mr Thangaraj’s reliance upon the decision of Hamilton J in Rapson v Wright (Hamilton J, unreported, 29 May 1998). In that case his Honour permanently stayed a Local Court prosecution, having found that the police officer who carried out the administrative task of laying the informations was a nominal informant, acting at the instance of other police officers who had decided to launch the prosecution for an ulterior purpose. That case is entirely distinguishable from the present case, in which there can be no doubt that the Director exercised an independent discretion in re-instituting the proceedings.

21 This is an unusual case, but one in which the magistrate applied relevant principles in arriving at a discretionary decision which was fairly open. I would refuse leave to appeal under Part 5 of the Justices Act and I would dismiss the other claims for relief. If necessary, I shall hear the parties on costs.

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Last Modified: 12/23/2003