LM v Childrens Court of the Australian Capital Territory

[2014] ACTSC 26

LM v CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY and THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE ACT

[2014] ACTSC 26 (24 February 2014)

ADMINISTRATIVE LAW – certiorari – plaintiff claims that Magistrate fell into jurisdictional error – review of decision to refuse to grant a stay of proceedings – where breach of the Human Rights Act2004 (ACT) was established but Magistrate found no prejudice to the plaintiff from the breach – plaintiff asserted that Magistrate erroneously considered prejudice a pre-requisite for granting a stay of proceedings – not established that plaintiff directly raised argument for consideration in the proceedings under review – where error was to be implied from reasons of the Magistrate – not satisfied that Magistrate fell into jurisdictional error.

HUMAN RIGHTS – whether a breach of the Human Rights Act 2004 (ACT) could amount to an abuse of process – depends on meaning of “unlawful” in s 40B of the Human Rights Act2004 (ACT).

Director of Public Prosecutions Act1990 (ACT)
Human Rights Act 2004 (ACT) ss 20, 21, 22, 40B, 40C

Craig v South Australia (1995) 184 CLR 163
Jago v District Court of New South Wales (1989) 168 CLR 23
Nona v R [2013] ACTCA 39
Moti v The Queen (2011) 245 CLR 456
Rogers v The Queen (1994) 181 CLR 251
Russell v Pangallo [2012] ACTMC 4

SC 504 of 2013

Judge:             Master Mossop
Supreme Court of the ACT

Date:              24 February 2014

IN THE SUPREME COURT OF THE     )
  )          No.  SC 504 of 2013
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:  LM

Plaintiff

AND:CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND:THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE ACT

Second Defendant

ORDER

Judge:  Master Mossop
Date:  24 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The application dated 19 December 2013 is dismissed.
2. There is no order as to costs.

Application

1. The plaintiff is a minor.  She seeks an order in the nature of a writ of certiorari to quash a decision of the Childrens Court on 8 November 2013.  In that decision the Court refused the plaintiff’s application for a permanent stay of proceedings.  The plaintiff claims that the decision of the Childrens Court is affected by jurisdictional error and hence seeks that it be quashed.  The plaintiff also seeks an order in the nature of a writ of mandamus compelling the Childrens Court to determine her application for a permanent stay.  In her originating application an order to the effect of a writ of prohibition was also sought but that was not pressed.

Proceedings below

1. By application in proceeding dated 27 August 2013 filed in the Childrens Court, the plaintiff had sought a permanent stay of the proceedings in relation to the charge of recklessly inflicting grievous bodily harm brought against her.  The background to that application is set out in a summary of the facts found by the magistrate for the purposes of determining the application and set out in his decision as follows:

(a)     On 21 February 2013, the young person was served with a summons for a charge of assault occasioning actual bodily harm identified as CH1576 of 2012 (the “First Charge”). The offence allegedly occurred on 11 August 2012. The summons was returnable on 15 March 2013. Mr Robertson appeared with the young person on a duty basis on that day and the matter was adjourned to 22 March 2013 to finalise the young person’s instructions and for the young person to make an application for legal assistance.

(b)Representations were sent by Mr Robertson to the office of the Director of Public Prosecution on 20 March 2013.

(c)On 22 March 2013, the matter was adjourned to 28 March 2013 to permit the prosecution time to consider the young person’s representations.

(d)Mr Robertson received a response to the representations on 27 March 2013. He was unable to confer with the young person to finalise her instructions prior to the 28 March 2013 mention in Court. In the circumstances, the matter was adjourned to 15 April 2013 for mention.

(e)The victim impact statement of the complainant was signed on 3 April 2013.

(f)The young person did not attend Court on 15 April 2013. She was due to give birth soon. The Court adjourned the matter to 27 May 2013 for mention.

(g)On 27 May 2013, the young person appeared in Court and a plea of guilty was entered to the First Charge. The matter was listed for sentence on 11 June 2013 at 10:00am. Mr Robertson says that nothing was said by the prosecution to indicate that the prosecution was “not accepting the plea of guilty to the charge of assault occasioning actual bodily harm”.

(h)When the matter came before the Court on 11 June 2013, the Court ordered that a pre-sentence report be obtained. The matter was adjourned to 22 July 2013 at 11:30am for sentencing. Mr Robertson says that, again, nothing was said by the prosecution to indicate that the prosecution was “not accepting the plea of guilty to the charge of assault occasioning actual bodily harm”.

(i)At 6:29pm on Thursday 18 July 2013, Mr Robertson was advised by the prosecution that a fresh charge of recklessly inflicting grievous bodily harm - identified as CH824 of 2013 (the “Second Charge”) was to be laid against the young person on 22 July 2013.

(j)On 22 July 2013, the young person did not appear at Court. The magistrate directed that a warrant issue for her arrest but that it lie in office until 12 August 2013 when the matter was again listed for mention.

(k)On 12 August 2013, the young person appeared and was charged with recklessly inflicting grievous bodily harm. A plea of not guilty was entered. The plea of guilty was maintained for CH1576 of 2012. The matter was adjourned to 24 October 2013 for case management hearing.

(l)On 27 August 2013 the application for a permanent stay of proceedings on the Second Charge was filed.

(m)On 6 September 2013 the application came before the Court and was adjourned to 17 October for hearing. Directions were made for delivery of written submissions or an outline of argument and for service of notices on the Attorney-General and the Human Rights Commissioner.

(n)No case management took place on 24 October 2013 pending the outcome of the stay application.

(o)Mr Robertson has received information from the lawyer for the young person’s co-accused to the following effect:

(i)On 12 July 2013, the co-accused was found guilty of two counts of assault occasioning actual bodily harm arising from the same facts.

(ii)The prosecution attempted to tender the victim impact statement from the complainant however, this was objected to and the statement was not admitted.

(iii)The matter proceeded to sentencing on a count of assault occasioning actual bodily harm. The co-accused was found guilty of both charges, and without recording a conviction was released on two eighteen month good behaviour orders with conditions that she be on probation for twelve months and comply with the supervision of the Director-General for twelve months.

1. I will adopt his Honour’s shorthand and refer to the charges as the First Charge and the Second Charge.

1. The application was heard by the magistrate on 17 October 2013 and his Honour gave a written decision on 8 November 2013.

1. After setting out the facts which I have reproduced above, his Honour dealt with the three arguments put by the plaintiff. The plaintiff argued that there had been breaches of sections 21(1), 22(2)(c), 20(3) of the HR Act 2004.

1. Section 21(1) states the right to a fair trial. In rejecting the plaintiff’s claim that there was a breach of that right his Honour said (at [10]):

Mr Robertson for the young person went on to make a general reference to prejudice resulting from delay but was unable to particularise precisely what prejudice would flow. To the extent that matters such as fading memory and the degradation of evidence fall under that general description it is pertinent to note that the Second Charge arises out of the same set of facts as the First Charge. That is not necessarily a complete answer but in the absence of particularisation of what is asserted as prejudice, I am not satisfied that the applicant is prejudiced, and against the background of the undertaking given by the Director, I am not satisfied that a hearing on the Second Charge would be unfair. It follows that I am not satisfied that any contravention of section 21(1) has occurred.

The undertaking of the Director referred to in this passage was an undertaking not to place any reliance upon the entry of a plea to a lesser charge as being in any way relevant to establishing guilt on the more serious charge.

1. Section 22(2)(c) of the HR Act is the right to be tried “without unreasonable delay”. His Honour found, consistently with the decision of the Court of Appeal in Nona v R [2013] ACTCA 39 that for the purposes of s 22, delay was to be measured from the time the plaintiff was served with a summons requiring her to attend court. His Honour found that even putting the plaintiff’s case at its highest by adopting the date of the First Charge as the start date for calculating delay, given the steps which were taken, the practical and legal requirements for them to be taken and having regard to so much of the passage of time which is fairly attributed to the young person, a delay of 10 months was not unreasonable and hence there was no contravention of s 22.

1. Section 20 of the HR Act is specifically directed at children in the criminal process. It includes in s 20(3) that “A child must be brought to trial as quickly as possible.” His Honour determined that the starting point for the running of time for the purposes of s 20(3) should be, in the present case, the date when she was served with a summons for the First Charge. As to the meaning of “as quickly as possible” his Honour recorded that he was largely unassisted by submissions of the parties on that question but, having referred to a number of authorities, concluded that it should be given a meaning equivalent to “with all reasonable expedition of which the circumstances allow”. His Honour said (at [54]):

Such a meaning does impose a higher obligation than one requiring that an outcome be achieved or a result occur “without unreasonable delay”. I see the obligation to act as quickly as possible as connoting an obligation to give something priority and to take positive steps to expedite completion, albeit within what circumstances prevail or will allow. An obligation to do something without unreasonable delay on the other hand may be met by allowing the ordinary course of events to transpire and requiring only that unnecessary or unusual delay be avoided.

1. In the absence of evidence to explain what took place within the Director’s office between April 2013 when the extent of the complainant’s injuries came to its attention and July 2013 when the plaintiff was notified of the Second Charge, his Honour concluded that the plaintiff had not been brought to trial on the Second Charge as quickly as possible and hence that there was a breach of s 20(3) of the HR Act 2004.

1. His Honour then concluded his reasons with the statements which are central to the determination of this application as follows:

58. What are the consequences of that finding? Accepting, as I have been invited to do for present purposes that the Office of the Director of Public Prosecutions is a public authority, section 40B stands as a statement of principle that it is unlawful for the Director of Public Prosecutions to act in a way incompatible with a human right. Neither that section nor any other in the Human Rights Act 2004 (ACT) provides expressly for the remedy sought by the young person by way of a permanent stay of proceedings. The express power to grant relief in section 40C is given only to the Supreme Court.

59. I have already determined that no prejudice to the young person flows from the delay. Against that background this is not a matter where the proper application of principle supports the granting of a permanent stay as a common law remedy.

60.  For the reasons given the young person’s application is refused.

Proceedings in the Supreme Court

1. The originating application seeking orders in the nature of prerogative writs was filed on 19 December 2013.

1. On 14 January 2014 Refshauge ACJ refused an application for a stay of proceedings in the Childrens Court.  

1. The proceedings were first before me on the 7 February 2014 and were listed for hearing on 21 February 2014.  On that date I reserved my decision until 24 February 2014.

Summary of submissions

1. The plaintiff relies only upon ground 1 of her originating application which alleges that:

the first defendant erred by jurisdictional error by finding that only the Supreme Court could provide relief pursuant to section 40C of the Human Rights Act 2004 and that the first defendant did not have jurisdiction to order a permanent stay of the proceedings.

1. On that basis the plaintiff seeks the order quashing the decision and an order in the nature of mandamus directing the Court to determine the application for a stay in accordance with law. 

1. The plaintiff relies upon the finding by the magistrate below that the plaintiff’s right pursuant to s 20(3) of the Act – that she “be brought to trial as quickly as possible” – had been breached by the circumstances of the laying of the Second Charge. The plaintiff submits that in considering the appropriate remedy for that breach the magistrate fell into jurisdictional error. The plaintiff relies upon a passage at paragraph 58 of the judgment in which the Court said:

“Neither [S 40 B] nor any other [section] in the Human Rights Act 2004 (ACT) provides expressly for the remedy sought by the young person by way of a permanent stay of proceedings. The express power to grant relief in section 40C is given only to the Supreme Court.”

1. The plaintiff submits that the Court found that the only power to grant relief for a breach of a Human Rights Act 2004 (HR Act) right was given to the Supreme Court.  She submits that this constituted jurisdictional error because the Act provided that it was open to a person to rely upon their rights under the Act in other legal proceedings including proceedings in the Childrens Court.  In support of that proposition the plaintiff relies upon Russell v Pangallo [2012] ACTMC 4 at [21], [26].

1. In oral submissions the plaintiff’s argument was refined.  Counsel for the plaintiff submitted that in dealing with the matter in the way he did at paragraph 59, his Honour wrongly perceived his jurisdiction to be limited to what were described as Jago considerations, namely, a permanent stay based upon unfairness arising to the accused person (see Jago v District Court of New South Wales (1989) 168 CLR 23). Counsel submitted that such an approach involved a jurisdictional error because it involved a failure to recognise that a stay based on abuse of process was not limited to circumstances where prejudice or unfairness of any ultimate trial could be demonstrated. He submitted that an abuse of process could arise without demonstrated prejudice simply from the fact of unlawfulness under the HR Act. Although counsel pointed out the references to abuse of process in the application made to his Honour and the written submissions below, because the transcript of what occurred before the magistrate was not in evidence it is not possible to say how the matter was argued before his Honour.

1. The Director of Public Prosecutions submits that in paragraph 59 it is self evident that in using the word “express” the magistrate actually meant “statutory” and that this statement is correct as neither the Magistrates Court or the Childrens Court has any express statutory power to grant a stay of proceedings and the HR Act does not provide any express statutory power to the Children’s Court to grant a specific remedy such as a stay.  The Director points to the decisions of the Supreme Court and Court of Appeal in relation to what is described in the Director’s submissions as a “common law stay” based on delay or an abuse of process.  These submissions were designed to demonstrate that even if there had been a jurisdictional error which required that the decision be set aside, on the findings made by the magistrate below, there was no basis for the grant of a stay and the Childrens Court would be bound to dismiss the application for a stay.

1. The Human Rights Commissioner intervened pursuant to a grant of leave under s 36 of the HR Act. The Commissioner filed submissions which contended that the magistrate had correctly identified that even though only the Supreme Court had the express power to grant a new remedy under the HR Act, the Act permitted a court or tribunal to grant a remedy that was otherwise available to it. She submitted that of the possible interpretations of s 40C of the Act, the compliance of public authorities with their HR Act obligations may be considered in any legal proceedings (including proceedings before the ACT Civil and Administrative Tribunal) and relief may be granted within the existing powers of the court or tribunal. She submitted that this was consistent with the decision in Russell v Pangallo.

Consideration

Test for jurisdictional error

1. For present purposes it is sufficient to adopt the relatively straightforward description of jurisdictional error set out in Craig v South Australia (1995) 184 CLR 163 at 177. There the judgment of the Court explains the meaning of jurisdictional error as follows:

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

How was the application put to the magistrate?

1. The application in proceedings sought a permanent stay of the proceedings in relation to the Second Charge.  The grounds for the application made to the Childrens Court identified in the plaintiff’s application in proceeding dated 27 August 2013 and the written submissions filed on her behalf alleged that the maintenance of the proceedings amounted to an abuse of process because of the breaches of the provisions of the HR Act and the potential unfairness arising from a more serious charge being brought following an admission to the less serious charge arising from the same facts.  The structure of the written submissions relied upon by the plaintiff were not conducive to clarity of analysis.  No transcript of what occurred before the magistrate was in evidence before me.

1. One of the best points for the plaintiff was that the unfairness would arise because of the potential for the prosecution to rely upon the admission of guilt to the First Charge when prosecuting the Second Charge.  However this was taken away by the written submissions filed by the Director of Public Prosecutions in which the Director undertook not to rely in any way upon the admission of guilt to the First Charge.  The balance of the written submissions of the Director to the Childrens Court suggested that it was not necessary to determine whether the Director was a public authority for the purposes of s 40 of the HR Act.  The submissions were directed to the issue of “unreasonable delay”, whether or not there had been a denial of a “fair trial” and the proposition that a stay would only be granted in exceptional circumstances.

1. Because no transcript is before me I do not know how the arguments were put orally to his Honour.  Counsel for the plaintiff has told me that his Honour was not referred to the decision in Russell v Pangallo [2012] ACTMC 4, upon the reasoning in which the plaintiff now places considerable emphasis.

Plaintiff’s first argument – power of the Magistrates Court under s 40C(2)(b)

1. The submission of the plaintiff was that in paragraph 58 the Childrens Court had approached the matter on the basis that the power to grant relief for a breach of the HR Act was given only to the Supreme Court.  I do not accept that submission.  It appears to me that at paragraph 58 the magistrate was making two points:

(a) first, that s 40B or any other provision of the HR Act does not expressly provide for relief by way of a permanent stay of proceedings;
(b) second, that an express power to grant relief is only given to the Supreme Court.

1. In relation to the first point his Honour was plainly correct. Neither s 40B or any other provision of the HR Act makes any reference to a permanent stay of proceedings. That it specifically provides for the grant of relief by the Supreme Court in general terms does not deny the clear fact that the specific remedy of a permanent stay is not referred to.

1. In relation to the second point, his Honour was also correct in saying that the express power to grant relief in s 40C is given only to the Supreme Court. I do not read his Honour as saying that courts other than the Supreme Court have no power to do anything where a breach of the Act is established. Instead I read him as making the obvious point that express powers are given only to the Supreme Court, leaving other courts or tribunal is to address breaches of the HR Act within the context of their existing powers and processes.

1. Had his Honour found, contrary to the text of s 40C(2)(b) that the Childrens Court had no power to grant any relief or make any order where a person demonstrated a breach of a right under the HR Act in proceedings before the Childrens Court then his Honour would have clearly misconceived his jurisdiction and fallen into jurisdictional error.

1. A submission that reliance upon rights under s 40C(2)(b), could only occur in Supreme Court proceedings was put by the Attorney-General in Russell v Pangallo but rejected.  I dealt with the submission as follows:

Does the Magistrates Court have jurisdiction to determine this application?

19. I understood the submission of the Attorney-General to be that the Magistrates Court had no jurisdiction to determine an application made by the defendant in so far as it relied upon s 40C of the Human Rights Act 2004.

20. In the present case the application is based on s 40C(2)(b) of the Human Rights Act2004 which provides that a person who claims to be a victim of a contravention of s 40B by a public authority may “rely on the person’s rights under this Act in other legal proceedings”. Section 40C(4) provides “the Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.” Because subsection (4) refers only to the Supreme Court, the powers in that section can only be used when the proceedings are, under subsection (2)(a), brought in the Supreme Court or where the rights are relied upon in “other legal proceedings” in the Supreme Court. Where human rights are, pursuant to subsection (2)(b), relied upon in proceedings in the Magistrates Court, no additional powers are granted to the Court under subsection (4).

21. The Attorney-General points to this fact and notes that there is nothing in s 40C that expressly permits a person to rely on human rights in proceedings before the Magistrates Court or expressly confers jurisdiction or powers on the Magistrates Court. As a consequence, he makes the submission that s 40(2)(b) is apt to refer to other proceedings in the Supreme Court which involve a different cause of action or application for relief under a different empowering law and hence not to proceedings in this Court, the Magistrates Court. I do not accept that submission. That is for two reasons. The first reason is that the text of section 40C(2)(b) refers to “other legal proceedings” and does not contain the implied qualification which the Attorney-General’s submission suggests exists. In my view, effect must be given to the general words of s 40(2)(b). That can properly be done notwithstanding the absence of specific statutory powers such as those conferred upon the Supreme Court so long as any relief based upon reliance upon human rights is within the scope of the statutory powers which are otherwise available to the Court. The second reason is that the implied qualification suggested to exist is entirely inconsistent with the intention of the legislature as expressed in the explanatory statement to the Human Rights Amendment Bill 2007, which was presented by the Attorney-General himself. That makes it clear that reliance on human rights in other legal proceedings extends to legal proceedings that are not in the Supreme Court. The explanatory statement provides:

“Paragraph 40C(2)(b) provides that a victim of an unlawful act by a public authority may also rely on human rights as part of any other legal proceeding in a court or tribunal. This may include, for example, in an action brought against a public authority under the Administrative Decisions (Judicial Review) Act 1989, or an order in a civil or criminal proceeding, a stay of proceedings or exclusion of evidence.”
Sub-section 40C(2) is modeled on section 7 of the United Kingdom Human Rights Act 1998. It is intended to enable victims of unlawful acts by public authorities to rely on human rights in legal proceedings in courts and tribunals or to institute an independent cause of action in the Supreme Court.” (underlining added)

22. Thus, consistent with the language of the legislation, the purpose of the legislature as expressed in the explanatory statement was to permit reliance upon human rights in proceedings both in the Supreme Court and in other courts or tribunals such as the Magistrates Court.

23. The Magistrates Court is an inferior court of statutory jurisdiction. Even an inferior court such as the Magistrates Court has power to stay proceedings if they constitute an abuse of the court’s process. Any inferior court does have an implied or incidental power to grant a stay of proceedings based on the principle that every grant of power carries with it everything which may be necessary and incidental to the exercise of that power: Grassby v The Queen (1989) 168 CLR 1 at 15-16; Neill v County Court of Victoria [2003] VSC 328 at [32]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134E.

24. Those powers extend to granting a permanent stay of proceedings if, due to delay, the trial would be oppressive amounting to an abuse of process: Jago v District Court of New South Wales (1989) 168 CLR 23 at 31; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 12 at 134; Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 at 552. However an abuse of process can arise for a variety of reasons: see Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 12 at 134. In Batistatos v Roads Traffic Authority of New South Wales (2006) 226 CLR 256 at 266-267, the majority judges emphasised that the categories of abuse of process are not closed. Their Honours said:

14. In Ridgeway v The Queen, Gaudron J explained (82):

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.”

15. Earlier, in Rogers v The Queen, McHugh J observed:

“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’'s procedures would bring the administration of justice into disrepute.”

His Honour added:

“Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process.”

To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.” (footnotes omitted)

25. If the continued conduct of a prosecution was declared by statute to be unlawful then it is likely that it would amount to an abuse of process. The continued conduct of the proceedings would clearly be for a purpose alien to the administration of justice under law: Williams v Spautz (1990) 174 CLR 509 at 520. (See also the comments consistent with this proposition of Lord Nicholls in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 at [35] and Lord Hobhouse at [124]-[126].)

26. Therefore I conclude that it is open to the defendant to rely upon his rights under the Human Rights Act and seek a permanent stay of proceedings on the basis that the continued prosecution of the matter breaches the defendant’s rights. Because of the absence of any general statutory remedial power such as s 40C(4), a stay of proceedings may only be granted if the threshold is met for that relief in accordance with the authorities identified above.

1. However, his Honour did not find that it was not open to him to grant relief under s 40C(2)(b). He clearly accepted that there was the power to grant a permanent stay “as a common law remedy”. As I understand it his Honour was referring to the power of the Court to grant such relief as part of its implied or incidental power, being a power which was available even to an inferior court of statutory jurisdiction such as the Childrens Court: see Russell v Pangallo at [23]-[24]. It may not be precisely correct to refer to it as a common law power in circumstances where it is an implied power derived from the statute creating the Court: see Russell v Pangallo at [23], but the point that his Honour was making was clear enough.

Plaintiff’s second argument – error in limiting consideration to prejudice

1. In relation to the plaintiff’s second argument I am not satisfied that the plaintiff has established that his Honour fell into jurisdictional error.

1. First, I am not satisfied that his Honour wrongly understood his jurisdiction to grant a stay as being limited to the circumstances akin to those in Jago, that is, only to the extent that there was prejudice attributable to the delay.  The reasons do not say that is how his Honour approached his jurisdiction and it is not apparent from anything else in his reasons that he saw his jurisdiction as being so limited. 

1. Second, as to the broader point, namely, whether his Honour wrongly considered it a precondition to the granting of a permanent stay on the grounds of abuse of process that the applicant for a stay demonstrate prejudice, his Honour does not say that explicitly. 

1. Third, in so far as the terms of paragraph 59 might be read as implicitly suggesting that where a breach of the HR Act is shown to have occurred a permanent stay will not be granted unless prejudice is shown by reason of the breach, I am not satisfied that any such implication should be drawn. 

1. These three reasons require some explanation.  If, his Honour had said explicitly in unqualified terms that a permanent stay arising from a breach of the HR Act could only be granted where prejudice was demonstrated then that would have constituted a jurisdictional error.  That is because, as I pointed out in the passage from Russell v Pangallo, the categories of abuse of process are not closed and not necessarily dependent upon the demonstration of prejudice arising out of the breach of the HR Act per se. In Rogers v The Queen (1994) 181 CLR 251 McHugh J concluded that (at 286) although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: “(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute”. The plaintiff’s argument is equivalent to saying that his Honour recognised only the second of these categories of abuse of process.

1. In addition to cases where the breach of the HR Act itself is a source of prejudice, unlawful conduct on the part of the Director of Public Prosecutions in relation to a criminal prosecution may give rise to an abuse of process not necessarily dependent upon the establishment of prejudice arising from the breach.  That may arise from the fact that there is nothing in the Director of Public Prosecutions Act1990 (ACT) which makes it clear that the Director’s power extends to engaging in conduct declared to be unlawful by the HR Act: Russell v Pangallo at [34]-[36]. Thus, a particular step in proceedings which is unlawful under the HR Act may not be able to be lawfully taken and the invocation or exercise of jurisdiction that results may be affected. Alternatively an abuse of process may arise because the unlawful conduct itself makes the prosecution or continued prosecution of the defendant an abuse of process: Russell v Pangallo at [37]-[49]. This latter situation would fall into McHugh J’s third category.

1. An example of this kind of abuse of process analogous to a situation where the prosecution of a person involves unlawful conduct by the Director of Public Prosecutions is Moti v The Queen (2011) 245 CLR 456. In that case the facilitation by Australian officials of the deportation of the appellant, which was unlawful under Solomon Islands law, was found by the High Court to be an appropriate basis to permanently stay the further prosecution of the indictable offences with which he was charged.

1. Whether or not an abuse of process can be established as a result of a breach of the HR Act by the Director of Public Prosecutions depends to a significant extent upon what the reference to “unlawful” in s 40B of the HR Act means. Does it mean unlawful in the same way as the Crimes Act renders murder unlawful? Or does it mean unlawful in some administratively more convenient sense of being a gateway to the grant of relief as a result of the operation of s 40C? If indeed, human rights are as fundamental as the HR Act seems to treat them, then the former approach would seem appropriate although such an approach may give the Act consequences for the executive government which are unpalatable and not consequences which the legislature would have endorsed had they been expressly articulated. On the other hand, if unlawfulness merely provides a gateway to relief, how does that operate where a court other than the Supreme Court has a very limited range of relief available to it? As I said in Russell v Pangallo (at [48]), this is a fundamental and unresolved question in relation to the HR Act.

1. In a case such as the present where conduct that is unlawful is found to have been engaged in by a prosecuting authority, in essence the courts are being asked to remedy two different forms of unlawful conduct: the unlawful conduct alleged to have been committed by the criminal defendant and the unlawful conduct found to have been engaged in by the prosecuting authority.  The legislature has given no guidance as to which of these species of unlawfulness should be treated most seriously.  However, in many cases the courts will be obliged to resolve that issue and in the starkest case choose between staying criminal prosecutions or condoning breaches of human rights.  Whatever they do, a public interest will be, and will be seen to be, frustrated.  If, as is likely to be the case, the empirical result is that continuation of criminal prosecutions is favoured over prevention of unlawful breaches of human rights, then that will be an outcome reached without the legitimacy given by legislative guidance.  It will, by judicial decision lead to an erosion of status of human rights, the breach of which the legislature has determined to be unlawful.  It will avoid the necessity for the executive government to make hard decisions for which it will be politically accountable about the extent to which extra funding is provided so as to permit the arms of the executive government to comply with the additional burdens placed upon them by the requirements of the HR Act. 

1. In the present case, the material before me does not demonstrate that the submission now made, that a stay should have been considered on the basis of a breach of the HR Act even in the absence of any demonstrated prejudice by reason of the delay, was put to his Honour. 

1. In some cases the reasons given for decision or simply the circumstances of the case will demonstrate that a judicial officer has misconceived the jurisdiction being exercised.  However where proposition A is submitted to be the basis for relief and that proposition is rejected, jurisdictional error will not usually be found because the judge failed to determine whether proposition B might also be a basis for relief.

1. Similarly, where the jurisdictional error is one to be implied from the reasons given, this Court should not scrutinise an inferior court’s reasons with an eye keenly attuned to the detection of error, particularly when it cannot be shown that the party seeking relief fairly and squarely put the argument and the authority which it relies upon on the application for prerogative relief to the Court below.

1. In the present case, I am not satisfied that his Honour, in saying what he did at paragraph 59 was stating that his jurisdiction to order a permanent stay was confined only to circumstances where prejudice was demonstrated.  Rather, in my view, his Honour was simply addressing the argument that had been put in the context of the single remedy that was sought in the application.  It was clearly open to him in the light of his findings at [10] that there was no prejudice to conclude that no permanent stay should be granted, even if unlawful conduct on the part of the Director of Public Prosecutions could be the basis, without specific prejudice being found, for the grant of a permanent stay on the grounds of abuse of process. 

Orders

1. The plaintiff has failed to demonstrate that his Honour fell into jurisdictional error.  Therefore the appropriate order is that the proceedings be dismissed.  Neither the Director of Public Prosecutions nor the intervener sought any order in relation to costs.  Therefore there will be no order as to costs.

   I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

   Associate:

   Date:    24 February 2014

Counsel for the plaintiff:  S L Gill
Solicitors for the plaintiff: Legal Aid ACT
Counsel for the second defendant:                S Drumgold
Solicitors for the second defendant:              Director of Public Prosecutions
Counsel for the intervener:  N Blumer
Date of hearing:  21 February 2014
Date of judgment:  24 February 2014