Lisha Maya (a pseudonym)[1] v Director of Public Prosecutions
[2019] VSCA 117
•29 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0027
| LISHA MAYA (a pseudonym)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | MAXWELL P, BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 April 2019 |
| DATE OF JUDGMENT: | 29 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 117 |
| JUDGMENT APPEALED FROM: | DPP v [Maya] (Unreported, County Court of Victoria, Judge Meredith, 13, 19 February 2019) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Application for review of refusal to certify – Applicant charged with intentionally causing injury, recklessly causing injury –Charges triable summarily – Evidence of mental impairment – Charges filed in Magistrates’ Court – Summary jurisdiction granted – Applications by prosecutor to transfer matter to committal stream refused – No review of Magistrate’s decision sought – Direct indictment filed in County Court in respect of same charges – Whether County Court proceeding should be permanently stayed – Summary jurisdiction of Magistrates’ Court properly invoked – Unfairness to applicant – Circumvention of Magistrates’ Court’s jurisdiction – Abuse of process – Appeal allowed – Permanent stay granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 5, 23, Criminal Procedure Act 2009 ss 28, 29, 30, 96, 156, 159, 161, 162, 295(3), 296(1), Public Prosecutions Act 1994 ss 3, 22, 45C.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms F H Todd with Mr T Schocker | Stary Norton Halphen |
| For the Respondent | Ms R Harper | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA
WEINBERG JA:
Summary
The applicant (‘LM’) is charged with intentionally causing injury to her two-year-old son. In the alternative, she is charged with recklessly causing injury. The offending is alleged to have occurred between 12 and 22 September 2017.
LM was charged with these offences on 31 January 2018. Both are indictable offences triable summarily.[2] The prosecution filed the charges in the summary stream of the Magistrates’ Court.
[2]Criminal Procedure Act 2009 s 28(1) (‘CPA’).
On 30 May 2018, the prosecution applied to have the case removed from the summary stream into the committal stream, with a view to LM being committed to stand trial. The application was opposed by counsel for LM. The magistrate refused the application and granted summary jurisdiction under s 29(1) of the Criminal Procedure Act 2009 (‘CPA’). On 15 October 2018, the prosecution again applied to have the matter transferred to the committal stream. The magistrate again refused the application.
In February 2019, the Director of Public Prosecutions filed a direct indictment in the County Court in respect of the same two charges. On 13 February 2019, LM applied to the County Court for a stay of the prosecution on indictment, on the ground that it was an abuse of process. The judge rejected that application. On 19 February 2019, his Honour also refused a defence application to certify the decision under s 295(3) of the CPA.
LM now applies under s 296(1) of the CPA for review of the judge’s refusal to certify. For reasons which follow, we would uphold that application, grant leave to appeal, set aside his Honour’s ruling and, in its place, order that there be a permanent stay of proceedings on the indictment.
In short, the filing of the direct indictment was an abuse of process. The jurisdiction of the Magistrates’ Court had been properly invoked under the provisions of the CPA. There having been no challenge to the decision to grant summary jurisdiction, LM was entitled to insist on having the charges heard and determined in that jurisdiction. To use the power of direct indictment to commence a new proceeding, on the same charges but in a different court, was an abuse of the process of that court.
Factual background
The alleged offending occurred in the following circumstances. LM was breastfeeding her son in an effort to put him to sleep. When he would not settle, she left the room and obtained a knife from the kitchen. She then held her son down and cut him several times to the neck.
Both Victoria Police and the Department of Health and Human Services were subsequently informed of the injury to the child. On 15 November 2017, LM made a ‘no comment’ record of interview.
As already mentioned, LM was charged on 31 January 2018 and the charges were filed in the summary stream of the Magistrates’ Court. After an initial mention, the matter was adjourned to 30 May 2018 to enable a psychiatric report to be obtained.
On 12 May 2018, Dr Andrew Carroll, a forensic psychiatrist, provided a report in which he concluded that LM had been mentally impaired at the time of the alleged offending, within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMI Act’). The defence provided the report to the prosecution, with an accompanying invitation to withdraw the charges. That invitation was not taken up.
On 30 May 2018, the matter came back before his Honour, Magistrate Tan, at a summary case conference. At that time, the prosecution was being conducted by Victoria Police.[3] The prosecutor applied to have the matter uplifted into the committal stream. Counsel for LM opposed the application. After hearing full argument, his Honour refused the prosecution application and granted summary jurisdiction. He adjourned the matter for a contest mention to be held on 15 August 2018.
[3]See Kirsch v Dolman (2001) 123 A Crim R 331, 336–7.
On 26 July 2018, LM’s representatives were notified that the Director of Public Prosecutions had taken over the conduct of the proceeding.[4] On 15 August 2018, at the contest mention, the prosecution renewed its application to have the matter uplifted to the committal stream. A different magistrate was presiding and he adjourned it to be dealt with by Magistrate Tan.
[4]See Public Prosecutions Act 1994 s 22(1)(b)(ii) (‘PPA’).
On 15 October 2018, there was a special mention before Magistrate Tan. The prosecutor applied to amend the charge sheet, so as to request a committal proceeding.[5] Once again, counsel for LM opposed the application. His Honour refused the prosecution application and the matter was adjourned to a contest mention on 16 January 2019.
[5]CPA s 6(4).
On 20 December 2018, the prosecution notified LM’s representatives that it was intending to seek the withdrawal of the charges in the Magistrates’ Court, so that a direct indictment could be filed in the County Court. On 16 January 2019, there was a second contest mention before a different magistrate. The prosecution applied to withdraw the charges but, once again, the sitting magistrate decided that the application should be heard by Magistrate Tan. It was adjourned for that purpose to 20 February 2019.
In the meantime, the Office of Public Prosecutions contacted the Registry of the County Court and asked for the matter to be listed so that the direct indictment could be filed. On 13 February 2019, the matter came before his Honour Judge Meredith. LM’s representatives applied to stay the prosecution on indictment on the basis that it was an abuse of process. That application was rejected.
The special mention in the Magistrates’ Court took place on 20 February 2019 before Magistrate Tan. His Honour adjourned the hearing of the prosecution’s withdrawal application to 17 June 2019.
As matters stand, therefore, there are two parallel proceedings on foot with respect to the same criminal charges. We deal first with the jurisdiction of the Magistrates’ Court.
Jurisdiction of the Magistrates’ Court
As mentioned earlier, both of the offences with which LM is charged — intentionally causing injury and recklessly causing injury — fall within the scope of s 28(1) of the CPA and, hence, are eligible for summary hearing and determination. Under s 28(1), a charge for an eligible offence:
may be heard and determined summarily by the Magistrates’ Court, if s 29 is satisfied.
Section 29 of the CPA relevantly provides as follows:
29When an indictable offence may be heard and determined summarily
(1)The Magistrates’ Court may hear and determine summarily a charge for an offence to which section 28(1) applies if—
(a)the court considers that the charge is appropriate to be determined summarily, having regard to the matters in subsection (2); and
(b)the accused consents to a summary hearing.
…
(2)For the purposes of subsection (1)(a), the Magistrates’ Court must have regard to—
(a)the seriousness of the offence including—
(i)the nature of the offence; and
(ii)the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii)whether the offence forms part of a series of offences being alleged against the accused; and
(iv)the complexity of the proceeding for determining the charge; and
(b)the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c)whether a co-accused is charged with the same offence; and
(d) any other matter that the court considers relevant.
Section 30 of the CPA relevantly provides as follows:
30Procedure for indictable offences that may be heard and determined summarily
(1)The informant or the accused may apply for a summary hearing under section 29(1).
(2)Without any application under subsection (1), the Magistrates’ Court may offer a summary hearing under section 29(1).
(3)An application for, or an offer of, a summary hearing may be made at any time before the Magistrates’ Court determines whether to commit the accused for trial.
Note
Section 6(4) provides that an informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily.
(4)If an application for a summary hearing is made before the hearing of any evidence, the Magistrates’ Court may seek from the prosecutor or, if the informant is appearing in person, the informant and he or she must give—
(a)an outline of the evidence which will be presented for the prosecution; and
(b)any other information which the court considers relevant—
for the purpose of enabling the court to determine whether to grant a summary hearing.
(5)Any statement made by the prosecutor or informant under subsection (4) is not admissible in evidence in any subsequent proceeding in respect of the charge.
(6)If the Magistrates’ Court grants a summary hearing, the hearing and determination of the charge must be conducted in accordance with Part 3.3.
Note
Sections 112A to 113D of the Sentencing Act 1991 provide for maximum penalties in the Magistrates’ Court.
As already noted, at the time when the charges were filed in the Magistrates’ Court, the prosecution was being conducted by Victoria Police. It was they who filed the charges in the summary stream of that Court, on the initiative of the prosecution.
As noted earlier, on 30 May 2018 the prosecution applied to Magistrate Tan to have the proceeding uplifted into the committal stream and listed for a filing hearing. The application was opposed. His Honour enquired whether the prosecution might instead withdraw the charges and re-issue them in the committal stream. The prosecutor indicated that he wished to persist with the uplift application.
There is no transcript of the argument on that application but, according to an uncontested summary of proceedings provided to the Court (‘the summary’),[6] the prosecutor made submissions to the following effect:
[6]The summary was set out in the submissions filed in the County Court on behalf of LM.
·the matter was too serious to be heard in the Magistrates’ Court;
·the defence of mental impairment had been raised;
·if the mental impairment defence succeeded, the only option open to the Magistrates’ Court would be to discharge LM, under s 5(2) of the CMI Act;
·the matter was too serious for LM to be simply discharged, having regard to:
(i) the nature of the injuries sustained by the child;
(ii) the age of the child;
(iii) the aggravating features of the offence; and
(iv) LM’s alleged post-offence conduct.
The prosecutor pointed out — correctly — that the Magistrates’ Court had a discretion under s 29(1) of the CPA whether or not to grant a summary hearing. Attention was drawn to s 29(2)(d), which requires the court to have regard to ‘any other matter that the court considers relevant’.
During the course of the application, the prosecutor read out the summary of the alleged offending. His Honour then enquired as to whether LM had any prior criminal history and was told that she did not. When his Honour enquired as to the nature of the child’s injuries, he was supplied with photographs.
Having heard full submissions from both parties, his Honour ruled that he would grant summary jurisdiction and that the prosecution application to uplift the matter would be refused. As recorded in the summary, his Honour said:
On balance when I look at the nature of the charges, which are ordinarily heard in the Magistrates’ Court, and I look at the nature of the injury there, and it’s the best available evidence in relation to what was the nature of the injury. Notwithstanding the fact that there’s obviously the aggravating feature here given the age of the complainant or the alleged victim here, I think that … [having regard to] those factors in section [29][7] of the Criminal Procedure Act that this matter can be appropriately heard here in the Magistrates’ Court. So the application to uplift the matter on the existing charges will be refused.
[7]The summary suggests that his Honour referred to s 28 of the CPA but the context makes clear that the intended reference was to s 29.
It was common ground in this Court that the Magistrate’s decision to grant summary jurisdiction was amenable to challenge either under s 109 of the Magistrates’ Court Act 1989 or under O 56 of the Supreme Court (General Civil Procedure) Rules 2015. No such challenge has been brought.
The second uplift application before Magistrate Tan was made on 15 October 2018. As noted, on that occasion the prosecution applied to amend the charge sheet so as to include a request for a committal proceeding. The inclusion of such a request in a charge sheet is expressly provided for by s 6(4) of the CPA.
As on the previous occasion, the Magistrate enquired whether the prosecution might instead withdraw the charges and re-issue them in the committal stream. Once again, the prosecutor elected not to take this course. The prosecutor submitted that the second application did not involve re-litigating the same question as on 30 May. It ‘at least formally, was different in law’. It was submitted that LM would suffer no injustice and that, if the application were granted, the matter could proceed expeditiously following a filing hearing. Moreover, to amend the charge sheet in the manner sought would be quicker than withdrawing and re-issuing the charges and would therefore mitigate any prejudice to LM.
According to the summary, counsel for LM submitted that the granting of this second application would cause an incurable injustice to LM. While the formal legal basis of the application might be different, the Court would inevitably be called upon to rule on the same issues in substance as had been litigated on 30 May 2018. Counsel pointed out that, if the prosecution were dissatisfied with the previous ruling, it could have sought appellate review in the Supreme Court but this had not been done.
It was neither just nor appropriate for the discretion under s 29 to be re-opened, given that there was no change in the nature of the case. Defence counsel drew particular attention to s 30(6) of the CPA, which provides:
If the Magistrates’ Court grants a summary hearing, the hearing and determination of the charge must be conducted in accordance with Part 3.3.
Finally, counsel submitted that the decision made on 30 May 2018 substantially affected LM’s ‘rights, duties and expectations’. In the absence of error of law, which had not been suggested, she was entitled to certainty.
His Honour again refused the prosecution application and, according to the summary, did so for the following reasons:
·the application could not now be granted without causing injustice to LM;
·it would be necessary to re-consider the s 29 issues, and there was no basis for doing so;
·the prosecution had had the option on the first occasion of seeking an amendment to the charge sheet but had not done so, and it would be unjust to permit that to occur now;
·LM was entitled to certainty and — given the decision of 30 May 2018 —to a summary hearing;
·to amend the charge sheet now would constitute unfairness to LM measured in ‘cost, time, reasonable expectations and procedural fairness’.
Again, there has been no challenge to that ruling. As indicated earlier, what remains outstanding before the Magistrates’ Court is an application by the prosecution to withdraw the charges against LM, the hearing of which has been adjourned to 17 June 2019.
The power to file a direct indictment
The power of the Director of Public Prosecutions to file a direct indictment is undoubted. It is conferred by s 159 of the CPA, which is the successor to s 353 of the Crimes Act 1958. It provides as follows:
159 DPP or Crown Prosecutor may file an indictment
(1)Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the DPP may file an indictment.
(2)An indictment may be filed at any time, except where otherwise provided by or under this or any other Act.
…
(3) An indictment must—
(a)be in writing; and
(b)be signed by the DPP or a Crown Prosecutor in the name of the DPP; and
(c) comply with Schedule 1.
Other relevant provisions of the CPA are ss 96, 156, 161 and 162, which provide as follows:
96 When a committal proceeding must be held
A committal proceeding must be held in all cases in which the accused is charged with an indictable offence, except cases where—
(a) a direct indictment is filed; or
(b) the charge is heard and determined summarily.
…
156 Nothing in Chapter affects certain powers of DPP
Nothing in this Chapter affects the power of the DPP—
(a)to file an indictment against a person for an offence if, on a committal proceeding conducted in relation to a charge for that offence, the Magistrates' Court ordered the person to be discharged on the charge; or
(b)to discontinue a prosecution under section 177, or not to take within the period prescribed by section 163 any step mentioned in that section, in relation to a charge on which a person was committed for trial.
…
161 Direct indictment commences criminal proceeding
The filing of a direct indictment commences a criminal proceeding.
Notes
1See the definition of direct indictment in section 3. This includes an indictment filed after the Magistrates' Court declines to commit an accused for trial in respect of the offence charged in the indictment or a related offence.
162Filing of any other indictment does not commence criminal proceeding
The filing of an indictment other than a direct indictment does not commence a new criminal proceeding against the accused.
Section 3 of the CPA provides the following definition of ‘direct indictment’:
direct indictment means an indictment filed against an accused—
(a)who has not been committed for trial in respect of the offence charged in the indictment or a related offence; or
(b)whose prosecution for the offence charged in the indictment or a related offence—
(i)was discontinued under section 177; or
(ii)was the subject of a nolle prosequi; or
(iii)resulted in an acquittal within the meaning of Chapter 7A and the prosecution of the offence charged in the indictment may only proceed if the Court of Appeal gives authorisation under section 327O;
Section 22 of the PPA sets out the functions of the Director. The relevant functions are:
·to institute proceedings in respect of any indictable offence;[8] and
·to take over and conduct any proceedings in respect of any summary or indictable offence.[9]
[8]PPA s 22(1)(a).
[9]Ibid s 22(b)(ii).
The only express reference in the PPA to direct indictment is in pt 8, which establishes what is called the ‘Director’s Committee’. That Committee must be convened before the Director makes a ‘special decision’,[10] of which there are several types.[11] The first is a decision to file a direct indictment against a person for an offence (except in circumstances which are not presently relevant). The Act provides that ‘direct indictment’ has the same meaning as in the CPA.[12]
[10]Ibid s 45C.
[11]Ibid s 3(1) (definition of ‘special decision’).
[12]Ibid (definition of ‘direct indictment’).
Decision at first instance
According to the written submission filed on behalf of LM in this Court, the arguments advanced before the judge in support of the stay application posed a number of questions, to the following effect:
1.Why did the Director invoke the direct indictment procedure?
2.Was the purpose to circumvent the grant of summary jurisdiction on 30 May 2018, and the refusal of an application to amend the charge sheet on 15 October 2018?
3.Was the purpose to defeat LM’s entitlement to a discharge upon a finding of not guilty on the grounds of mental impairment?
4.Was the purpose in essence to circumvent the operation of s 5(2) of the CMI Act?
5.Was this purpose appropriate in the light of (what was said to be) the clear legislative intention that a person in LM’s circumstances be discharged if the mental impairment defence were made out?
6.Did the chronology of the Director’s attempts to remove the case from the Magistrates’ Court amount to abuse of process and/or ‘unacceptable oppression’?
7.Would the charges in the Magistrates’ Court necessarily be withdrawn on the prosecutor’s application?
8.Was it oppressive to allow two prosecutions to continue in different courts relating to the same events?
9.If improper purpose or oppression were established, was it appropriate for the County Court to allow its jurisdiction to be used for such purposes?
The submissions for the Director supported the filing of the direct indictment, on the basis that:
·the offending was particularly serious;
·there was no prejudice to LM, because she had been on notice that a direct indictment would be filed;
·any prejudice to LM was a matter of form rather than substance;
·if the defence of mental impairment succeeded, the Magistrate had only one option (discharge), whereas the County Court had three options (unconditional discharge, non-custodial supervision order, custodial supervision order);[13]
·the County Court was the appropriate jurisdiction given:
(i) the nature of the injuries sustained by the child;
(ii)the age of the child;
(iii)LM’s alleged post offence conduct; and
(iv)the issue of community protection, said to be raised by the fact that LM was again pregnant.
[13]CMI Act s 23, pt 5.
In his ruling, the judge referred to the police summary of the alleged offending and noted that, if the mental impairment defence succeeded, the Magistrates’ Court would be obliged to discharge LM.[14] In the County Court, on the other hand, a range of powers would be available:
which involve supervision of the mother and what might be viewed as the imposition of treatment and/or therapeutic components of that supervision, as well, of course, as punitive aspects.[15]
[14]Ibid s 5(2).
[15]See ibid ss 23–4.
His Honour said:
The power [of the Director] to charge, file an indictment and proceed is revealed by various authorities to be of a broad nature … the breadth of the discretion that … the Director has with respect to the selection of charges and the institution of proceedings … is rooted in the fundamental proposition of the separation of powers.
His Honour here referred to Maxwell v The Queen,[16] Jago v District Court of New South Wales[17] and Barton v The Queen.[18] He quoted the statement from the judgment of Gaudron and Gummow JJ in Maxwell, to the effect that certain decisions involved in the prosecution process — including decisions whether or not to prosecute, to enter a nolle prosequi and to proceed by direct indictment — were ‘insusceptible of judicial review’.[19] He also noted, by reference to Jago and Barton, the power of the court to control its own processes to ensure a fair trial.
[16](1996) 184 CLR 501, 534 (‘Maxwell’).
[17](1989) 168 CLR 23, 28, 38 (‘Jago’).
[18](1980) 147 CLR 75, 94–6.
[19]Maxwell (1996) 184 CLR 501, 534.
In conclusion, his Honour said:
[I]n the circumstances here, I am not satisfied that the filing has been done for an improper purpose, is unjustifiably oppressive or would bring the administration of justice into disrepute. It seems to me the existence of the power to directly indict may carry with it the potential for an overlap to some extent of proceedings in a lower court.
…
It is difficult to envisage [that] proceedings occurring in this court, a competent, independent court, possessed of an increased range of powers, including the making of orders having a therapeutic component in the case of a finding of mental impairment, could be seen to be oppressive or bring the administration of justice into disrepute.
Consideration
Under Australian law, the decision of a prosecuting authority to commence a prosecution is, like the associated power to discontinue a prosecution, unreviewable by the courts. As the judge correctly observed, the immunity of such decisions from judicial review has been confirmed in a series of decisions of the High Court.
What was significant about the Court’s decision in Barton, however, was the unanimous holding that, once a prosecution had been instituted, the conduct of the proceeding was under the court’s control and that, if necessary, the court would exercise its power to prevent an abuse of process. Gibbs ACJ and Mason J said:
It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice.[20]
[20](1980) 147 CLR 75, 95–6.
It is not in doubt, therefore, that the court in which a prosecution is commenced by way of direct indictment can intervene in the proceeding on the ground of abuse of process. The most recent edition of Ross on Crime lists decisions from across Australia on applications for a stay of an ex officio indictment as an abuse of process.[21] In three of the cases cited, a stay was granted.[22] In three other cases, the stay application was refused.[23]
[21]Mirko Bagaric, Ross on Crime (Thomson Reuters, 8th ed, 2018) 797.
[22]Ibid, citing R v Siugzdinis and Mauri (1984) 32 NTR 1; R v Haslett (1987) 50 NTR 17; R v Gagliardi and Filippidis (1987) 45 SASR 418.
[23]Ibid, citing Ex parte Johnson and Edwards [1980] Qd R 387; R v Breen (1990) 67 NTR 15; Christianos v DPP (1992) 9 WAR 345.
None of these authorities addresses a question of the kind which arises here. There are, however, several cases which deal indirectly with the — not altogether dissimilar — question of whether it is within the inherent (or implied) power of the court to decline to accept the filing of a nolle prosequi, even before the trial has commenced, if it is necessary to prevent an abuse of process, and to avoid unfairness and prejudice to the accused.
In R v Lorkin[24] the Crown appealed against a verdict of acquittal returned by a jury by direction of the trial judge. The trial was due to commence on 1 March 1995. On the preceding day, the Crown applied to adjourn the trial because of the unavailability of two witnesses, one of them being the principal witness in the case. The Court was told that he was in the United States and it was not known whether or when he would return. The Crown’s application was opposed on the ground of injustice to the accused, given that the proceedings had already been considerably delayed.
[24](1995) 15 WAR 499 (‘Lorkin’).
When the case was called on, counsel for the accused informed the trial judge that he had come from Melbourne to defend his client. He had been told for the first time that the Crown intended to file a ‘nolle prosequi’. Responding to the prosecutor’s submission that the power vested in the Executive to file a nolle prosequi was not judicially reviewable, defence counsel submitted that a jury should be empanelled and a verdict taken. It was said that the nolle prosequi was simply a procedural device designed to defeat refusal of the Crown’s application for an adjournment, and so constituted an abuse of process. The judge acceded to the defence submission, holding that the nolle prosequi was being presented merely as a mechanism to preserve a future right of prosecution, and in order to subvert his Honour’s refusal to grant an adjournment.
On the appeal, Chief Justice Malcolm accepted that the courts could not review the exercise of the prerogative power to enter or refuse a nolle prosequi. He referred to Jago,[25] and Walton v Gardiner.[26]The Chief Justice also referred to Jell; Ex Parte Attorney-General[27] where the very same issue had arisen in Queensland, in circumstances where a trial judge had ruled that there was no case to go to a jury. The prosecutor sought to enter a nolle prosequi at that stage, preventing the judge from directing the jury to acquit. The Court of Criminal Appeal held that the trial judge had acted correctly, in refusing to accept the nolle prosequi, on the basis that the Court had an inherent jurisdiction to prevent an abuse of process, and thereby, in the exercise of that power, to prevent unfairness to an accused.
[25](1989) 168 CLR 23.
[26](1993) 177 CLR 378, 393–5.
[27][1991] 1 Qd R 48 (‘Jell’).
Chief Justice Malcolm noted that just over a week after the judgment in Jell had been delivered, a differently-constituted Court of Criminal Appeal in Queensland delivered judgment in Ferguson; Ex Parte Attorney-General,[28] approving the decision in Jell. Both Jell and Ferguson were approved in Lorkin. Kennedy J agreed with the Chief Justice. Murray J, in dissent, would have allowed the Crown’s appeal.
[28][1991] 1 Qd R 35 (‘Ferguson’).
The position in South Australia is much the same. In Question of Law Reserved on Acquittal,[29] the prosecutor sought to file a nolle prosequi after the trial judge refused to grant the Crown an adjournment. The judge declined to accept the nolle prosequi. The Court of Criminal Appeal held that his Honour had the power to refuse to do so, though emphasising that such a power should be exercised in rare or exceptional circumstances, and in order to promote the integrity of the process of the Court.
[29](1996) 66 SASR 450.
We are satisfied, on the basis of the authorities set out above and in accordance with general principle, that for the present proceeding on indictment to go ahead in the County Court would work an unacceptable unfairness to LM. It would also have the consequence of circumventing, at the instance of the prosecuting authority, the lawful invocation of the summary jurisdiction of the Magistrates’ Court, and that Court’s exercise of its own statutory authority to grant a summary hearing.
We deal first with the question of unfairness. One of the most obvious advantages for an accused person of the summary hearing of a charge for an indictable offence is that there are upper limits on the punishment which the Magistrates’ Court can impose. For example, on a charge of theft, the maximum penalty is 10 years’ imprisonment[30] but the Magistrates’ Court can only impose a maximum of two years’ imprisonment.[31]
[30]Crimes Act 1958 s 74(1).
[31]Sentencing Act 1991 s 113(1).
It is not surprising, therefore, that in deciding whether to grant a summary hearing the Magistrates’ Court is required to have regard to the seriousness of the offence and whether, ‘having regard to the criminal record of the accused’, the sentences available to the Court are adequate.[32] As occurred in the present case, the Magistrate considering whether to grant a summary hearing must review the available information as to the nature of the offence(s) charged, and the criminal record (if any) of the accused, in order to decide whether the jurisdictional limits would unduly constrain the Court in dealing appropriately with the charges (if proved or admitted).
[32]CPA s 29(2)(a), (b).
As already noted, the Magistrates’ Court has only one course open to it in a case where a defence of mental impairment is made out. In such a case, the Court must discharge the accused person.[33] In the County Court, by contrast, the Court has three options available to it: unconditional discharge, non-custodial supervision order and custodial supervision order.[34]
[33]CMI Act s 5(2).
[34]Ibid ss 23–4, 26.
One of the key issues debated before the Magistrate — on both occasions when the prosecution sought an uplift to the committal stream — was the issue of whether the option of discharge was appropriate having regard to the nature of the charge. The Magistrate carefully considered the competing arguments by reference to the matters set out in s 29(2) of the CPA and was satisfied that summary jurisdiction was appropriate.
On ordinary principles, LM was entitled to the benefit of that decision unless, of course, it was overturned on appeal. The prosecution has not brought any such challenge, and the decision of the Magistrates’ Court stands. It follows, as s 30(6) of the CPA makes clear, that the hearing and determination of the charges against her must be conducted in accordance with pt 3.3 of the CPA. LM has an accrued right to a summary hearing which, on ordinary principles, would survive even a repeal of the relevant provisions.[35]
[35]Interpretation of Legislation Act 1984 s 14(2)(e); NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (1988) 14 NSWLR 685; Esber v Commonwealth (1992) 174 CLR 430, 440.
As Deane J said in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia:[36]
The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts and other public tribunals …
[36](1987) 72 ALR 1, 12–13.
The unfairness created by the filing of a direct indictment in circumstances such as these is readily demonstrated by referring to an example given earlier. Let it be supposed that an accused person was charged with theft and that, after a contested hearing before a magistrate, there was a grant of a summary hearing. In the absence of any successful legal challenge to that grant, the accused would thereafter have the assurance that the maximum sentence to which he/she was exposed was two years’ imprisonment. The fact that the Director might then, or subsequently, be of the view that the maximum of two years was inadequate, given the seriousness of the offending, could hardly justify the filing of a direct indictment the effect of which would be to expose the accused to a maximum of 10 years’ imprisonment.
Secondly, it would be wrong in principle for the County Court to proceed with a trial of charges in respect of which another court — the Magistrates’ Court — has assumed jurisdiction in exercise of its own statutory authority to do so. It is, of course, the Director who has purported to invoke the County Court’s jurisdiction but, in our view, it would be improper for that Court to allow its processes to be used to circumvent the jurisdiction of the Magistrates’ Court. There having been no challenge to the legal validity of the grant of a summary hearing, that grant must now be treated as unimpeachable.
The position would be different, of course, if the Director had a statutory power to proceed by direct indictment notwithstanding a prior grant of a summary hearing — if, for example, new information came to light suggesting that a summary hearing was no longer appropriate. There is, however, no such provision. On the contrary, as we have noted, s 30(6) of the CPA states in the clearest terms that, once the Magistrates’ Court has granted a summary hearing, the case must be conducted in accordance with pt 3.3 of that Act. There are no exceptions.
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