Police v Rogers
[2022] ACTMC 6
•21 March 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Rogers |
Citation: | [2022] ACTMC 6 |
DecisionDate: | 21 March 2022 |
Before: | Chief Magistrate Walker |
Decision: | See [43] - [46] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – means of brining proceedings to an end – implied powers of the Magistrates Court – finality in litigation – application to withdraw charges subject to court’s leave – court obliged to intervene where withdrawal results in abuse of process |
Legislation Cited: | Crimes Act 1900 (ACT) Director of Public Prosecutions Act 1900 (ACT) Human Rights Act 2004 (ACT) Magistrates Court Act 1930 (ACT) Prosecution of Offences Act 1985 (UK) Summary Procedure Act 1921 (SA) |
Cases Cited: | Ayles v The Queen [2008] HCA 6; 232 CLR 410 D’Ort-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Director of Public Prosecutions v Shirvanian (1998) 102 A Crim R 180 Neil v County Court of Victoria [2003] VSC 328; (2003) 40 MVR 265 Police v Rogers [2017] SASC 193; 90 MVR 236 R v Kent (1970) 17 FLR 65 R v Phipps; ex parte Alton [1964] 2 QB 420 R v YL [2004] ACTSC 115; 187 FLR 84 Tunnicliffe v Tedd (1849) 136 ER 995 Woods v Porter [2018] ACTSC 161; 333 FLR 269 |
Texts Cited: | Crown Prosecution Service (‘CPS’) (UK) Legal Guidance: Termination of Proceedings (Including Discontinuance), 2019 Director of Public Prosecutions, “Prosecution Policy of the Australian Capital Territory”, 2021 Gleeson, Murray, Sir Maurice Byers Lecture “Finality” [2013] NSWBarAssoc News 50, Journal of the NSW Bar Association 331 |
Parties: | Nathanael Holdsworth (Informant) Gail Rogers (Defendant) |
Representation: | S Saikal-Skea (ACT Director of Public Prosecutions) T Taylor (Hugo Law Group) |
File Number(s): | CC 2360 of 2021 CC 2361 of 2021 |
CHIEF MAGISTRATE WALKER:
The issue before me is what power the Director of Public Prosecutions (‘the Director’) has to withdraw proceedings in the Magistrates Court, and with what consequences. It arises in the context of the prosecution of Ms Gail Rogers for two charges of common assault pursuant to s 26 of the Crimes Act 1900 (ACT) (‘Crimes Act’) alleged to have occurred on 28 February 2021. The charges are summary only; the maximum penalty for each is two years imprisonment.
Background
Ms Rogers was arrested by police and refused bail, after which she was charged before the court on 1 March 2021, pursuant to what is referred to as a bench information or charge. I should say that I know little of the facts of the case, apart from that detailed in the Director’s submissions, as that that was not necessary for consideration of this application. I do note that it is common for bail to be refused by the police in matters of family violence, with little regard to the seriousness of the allegations.
Bail was not opposed by the Director and was granted by the court subject to conditions, with the defendant remanded to appear on 23 March 2021. On that date, Ms Rogers entered a plea of not guilty and the matter was listed for a one day hearing in October 2021. It was also listed for earlier mention dates in March and May respectively, to canvass the issues of variation to Ms Roger’s bail conditions and readiness for hearing.
On 18 May 2021, the initial hearing date was vacated, and the matter relisted for a three-day hearing to commence on 8 December 2021. Ms Rogers was and remains privately represented and Counsel was instructed to appear. There were a number of mentions in relation to the issue of bail not directly relevant to determination of this issue but relevant to the issue of costs which is in dispute in these proceedings.
On 19 November 2021, the matter was relisted at the request of the parties to vacate the hearing. It was on this occasion that the manner in which the prosecution was to conclude arose.
The Director applied for leave to withdraw the charges. The defendant applied for costs. An issue arose as to whether costs could be awarded in the context of a withdrawal of the charges, having regard to the provisions of s 244 of the Magistrates Court Act1930 (ACT) (‘Magistrates Court Act’) which relevantly makes provision for costs to be awarded to a defendant if the information in criminal proceedings is dismissed or the court otherwise “makes an order in favour of the defendant”.
Accordingly, the defendant invited the Director to offer no evidence, the effect of which is that the charges would be dismissed. Such a dismissal clearly enlivens s 244. This course was refused. The defendant invited the Court to refuse to grant leave to the Director to withdraw the charges or, in the alternative, to make an award of costs in any event. The parties were invited to make submissions as to these issues.
The Director’s submissions
The Director asserted that no unfairness arose from withdrawal of the charges and that there was no statutory power to award costs following withdrawal.
The Director referred to the functions of the Director of Public Prosecutions pursuant to the Director of Public Prosecutions Act 1900 (ACT) (‘DPP Act’). The Court was referred to subs 6(1)(k) empowering the Director to cause proceedings, including prosecutions for summary offences, to be brought to an end. The Director noted that, contrary to indictable matters in the Supreme Court, the vehicle by which the Director could bring proceedings to an end in the Magistrates Court is not proscribed by legislation. The Director sought to draw an analogy between the entering of a nolle prosequi at common law and withdrawal of proceedings in the Magistrates Court, relying on the observations of McWilliam AsJ in Woods v Porter [2018] ACTSC 161 (‘Woods’) to the effect that there was no good reason to distinguish between a nolle prosequi, withdrawal of charges or decision made by the Director under the statutory power to terminate prosecution.
The Director further relied on comments of Her Honour in Woods to the effect that the Director’s decision to enter a nolle prosequi is not susceptible to judicial review noting, however, that the court retains a discretion in respect to the continuation of criminal proceedings where necessary to prevent an abuse of process or to ensure a fair trial.
The Director addressed the issue of costs noting that the Magistrates Court power to award costs is limited by relevant statutory provisions. Section 244 was potentially relevant if the court made “an order in favour of the defendant”. The Director submitted that this was a discretionary power that did not apply when the Director had withdrawn a charge as that outcome did not amount to an order in favour of the defendant.
The Director addressed a submission made by the defendant that a charge could not be withdrawn following the entry of a not guilty plea, by virtue of the operation of s 114 of the Magistrates Court Act which specifies the procedure to be adopted in the event the defendant “does not admit the case”. The Director submitted that this section is to be applied if the information is to be determined but not so as to prevent the charges being withdrawn. If the charges are withdrawn, s 114 has no work to do. In so far as there is an inconsistency between s 114 and the statutory functions of the Director, the Director submitted that any inconsistency should be resolved in favour of the prosecutorial discretion.
The prosecutor further submitted that s 114 was not enlivened because the court had not commenced hearing evidence. In support of this proposition, the Director highlighted that following the entry of a plea of not guilty, a number of other courses are open to the court, such as committal, or dismissal pursuant to the mental health provisions of the Crimes Act.
The Director, noting that there was no obligation to disclose reasons for the exercise of discretion to apply for leave to withdraw, nonetheless did so. It was asserted that there were reasonable prospects of conviction on the available evidence in this matter but that it was not in the public interest to proceed as it would require two young children to give evidence. This made it appropriate to apply for leave to withdraw the charges rather than offering no evidence.
The Director, accepting that a withdrawal allowed at least theoretically for charges to be brought again in the future, submitted that, if at a future date, charges were brought again, and the defendant thought that an injustice arose, she could apply for a stay of proceedings on the basis that further prosecution amounted to an abuse of process. At that point, the defendant could rely on her right to be tried fairly without unreasonable delay pursuant to the Human Rights Act2004 (ACT).
Defence submissions
The defendant’s primary position is that a grant of leave to withdraw the charges is an order in favour of the defendant, allowing an award of costs to her. Alternatively, the defendant submitted that the proper course in this matter was for the Director to offer no evidence and the Court to dismiss the charges.
The defendant submitted that leave to withdraw might be granted in some instances in which the defendant is not prejudiced, particularly if the defendant consented to the withdrawal. However, in the circumstances of this case, withdrawal would be unfair. Withdrawal was sought for an improper purpose, that is to circumvent the defendant’s application for costs.
The defendant submitted where withdrawal of the charges was not by consent of the parties, that following entry of a plea of not guilty, s 114 of the Magistrates Court Act was enlivened and that the court was required to determine the matter before it.
If this were not so, not only would the defendant be prejudiced by being denied the costs of the proceedings, she would be otherwise disadvantaged. The defendant, an Australian Border Force employee, would be denied access to a certificate of dismissal pursuant to s 143 of the Magistrates Court Act, as has been required by her Commonwealth government employer. She would also have the uncertainty of unresolved criminal charges which may be recommenced at some future time. Granting leave would result in either an abuse of process or a serious irregularity amounting to a miscarriage of justice.
If costs are not payable, leave should therefore be refused, and the Director required to proceed pursuant to s 114 or offer no evidence.
Consideration
Section 6(1)(c) of the DPP Act authorises the Director to institute or conduct prosecutions in relation to summary offences. In this case, the Director did not institute the proceedings but conducted them from first mention. Section 6(1)(k) authorises the Director to cause such proceedings “to be brought to an end”. Unlike in the United Kingdom, the Director has no statutory power to “discontinue proceedings” (see s 23 Prosecution of Offences Act 1985 (UK)). How proceedings may be “brought to an end” is not specified at all in the DPP Act.
A review of the Director of Public Prosecutions, “Prosecution Policy of the Australian Capital Territory”, 2021 made pursuant to s 12 of the DPP Act refers broadly to considerations relevant to why a proceeding might be brought to an end but makes no reference to how that will be effected or in what circumstances. Nor does the Magistrates Court Act specifically contemplate the withdrawal of summary charges commenced by information.
However, whilst the Magistrates Court is a creature of statue, it is uncontentious that the Court has implied powers necessary to carry out its functions, in particular to regulate fairness in its proceedings: Director of Public Prosecutions v Shirvanian (1998) 102 A Crim R 180; Neill v County Court of Victoria[2003] VSC 328; (2003) 40 MVR 265. In the latter Redlich JHH, citing relevant authority, observed at 276 in the Victorian context, “a Victorian Magistrate’s implied power to prevent an abuse of the court’s process can no longer be doubted”.
Thus, the first issue to determine is whether “withdrawal” is one way in which summary proceedings in the Magistrates Court may be brought to an end.
Withdrawal with leave of the Court is certainly common practice in the Magistrates Court. Beyond practice, however, there is significant common law authority to support the availability of withdrawal of a charge as a mode of bringing proceedings to an end. That issue is addressed fulsomely in Police v Rogers [2017] SASC 193 (‘Rogers’). Peek J, in an obiter but helpful analysis of the phenomenon of withdrawal of summary charges, compares the approach in Australian States and Territories. In some instances, withdrawal is expressly permitted by statute. For example, s 69 of the Summary Procedure Act 1921 (SA) provides:
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same and shall convict or make an order against the defendant or dismiss the information, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the information to be withdrawn, upon such terms (if any) as it thinks fit.
The first part of the section is in similar terms to s 114 Magistrates Court Act which provides:
(1) This section applies if the defendant does not admit the truth of the information.
(2) The court must hear—
(a) the informant and the informant's witnesses (if any); and
(b) if the defendant wants to give evidence—the defendant; and
(c) the defendant's witnesses (if any); and
(d) if the defendant has given evidence other than about the defendant's general character—the informant's witnesses in reply (if any).
(3) Having heard each party and the evidence, the court must decide the information and do 1 of the following as justice requires:
(a) convict the defendant;
(b) make an order on the defendant;
(c) dismiss the information.
However, there is no guidance in the Magistrates Court Act as to whether withdrawal as a mode of bringing proceedings to an end is available, if it is, the effect thereof, or at what stage(s) of the proceedings it is available.
In Rogers, His Honour stated at [73]:
What I will refer to as the conventional construction of s 69 has always been as follows. First, that a withdrawal of a charge of a summary offence at any time from when it is initially laid may not be made unilaterally by the complainant but requires the permission of the presiding Magistrate. Second, that the Magistrate’s decision as to whether or not to grant such permission involves the exercise of a judicial discretion and the granting of an application may be made subject to stipulated conditions. Third, that if the Magistrate refuses permission, the prosecutor cannot be forced to proceed but instead may tender no evidence which action will lead to a formal dismissal of the proceedings with attendant orders such as orders for the payments of costs.
I note that this approach is consistent with that detailed in the Crown Prosecution Service (CPS) (UK) Legal Guidance: Termination of Proceedings (Including Discontinuance), 2019:
Offences can be withdrawn by the prosecutor in the magistrates' court (only) at any time before adjudication by the court. If proceedings are withdrawn in anticipation that they may be re-instituted if additional evidence comes to light, this should be made clear in court.
Leave to withdraw is required. The court has complete discretion whether to grant leave. The prosecuting advocate will need to give sufficient reasons to satisfy the court that the application is a proper one. The defendant is entitled to make representations as to whether they should be entitled to an acquittal.
If proceedings are withdrawn, there is no technical bar to instituting further proceedings for the same offence at a later date. CPS policy on the re-institution of proceedings will apply to any such decision. Refer to the legal guidance on ‘Reconsidering a Prosecution Decision’ elsewhere in the Legal Guidance.
The court may refuse leave to withdraw the proceedings. If this occurs, and the prosecuting advocate is still of the view that the matter should be abandoned, then no evidence should be offered. This will result in the dismissal of the charge which should be regarded as final as any attempt to re-instate the charge is likely to fail due to the rule against double jeopardy. In all cases when termination of proceedings takes place at court, a full note should be made of what was said by each of the parties and the court.
Peek J, in Rogers, addressing what the situation in jurisdictions without a statutory provision such as s 69 observed at [82]:
…a survey of authorities clearly demonstrates that it has always been the law that if the matter of withdrawal of a complaint is not addressed by statutory provision,] a complaint can only be withdrawn after application to, and with the permission of, the presiding Magistrate. The process is one of implication of a power in a Magistrate to permit such a withdrawal rather than an assumption that complainants have carte blanche to withdraw complaints which are before the court and subject to its jurisdiction.
And at [88]:
When the relevant statute does not address the topic of withdrawal of a complaint, there may be implied a power in a Magistrate to grant leave (with or without conditions) to a complainant who applies to withdraw a complaint as a matter of judicial discretion. But that process of implication results in an implied power of the Magistrate. It has never been previously suggested that complainants are to be taken to have carte blanche power to withdraw charges as a matter of their own discretion; all of the authority is entirely against such an idea.
The point in proceedings to which a withdrawal might still be available is moot at common law. Historically, it was to the point of entry of a plea of not guilty, after which it was considered that the hearing had begun, and the matter had to be determined (Tunnicliffe v Tedd (1849) 136 ER 995; R v Phipps; ex parte Alton [1964] 2 QB 420). That current position is unclear. However, similar to nolle prosequi, the better view is that withdrawal ought to be available at any stage of the proceedings, subject to the leave of the court, granted only after consideration of the implications as to fairness of the hearing or abuse of process.
Peek J’s analysis may be thought contrary to the approach of AsJ McWilliam J in Woods in which Her Honour upheld a decision of this Court to allow the prosecutor to withdraw charges before pleas were entered. In that decision, Her Honour drew the comparison between withdrawal of charges and the nolle prosequi which brings proceedings on indictment to an end and does not bar a fresh indictment and trial of the fresh indictment. Her Honour observed, having reviewed the leading modern authorities in relation to prosecutorial discretion, at [25]:
Although the facts in the present case concerned the withdrawal of charges as opposed to the formal entry of a nolle prosequi, I cannot see any reason why the same principles would not apply.
This matter is distinguishable from Woods not as a matter of principle but rather in terms of the application of principle to these circumstances.
The very form of withdrawal, granted only on “application for leave”, necessarily implies that the prosecutorial discretion is subject to court supervision in maintaining the integrity of its own process. The authorities make it clear that such control must be exercised judicially, with regard to any objection, or indeed apparent unfairness notwithstanding the lack of objection in discrete instances of unfairness or abuse of process, determined on a case by case basis (Ayles v The Queen [2008] HCA 6, esp [71]).
It is because the Court is obliged to consider the propriety of this form of bringing the proceedings to an end that it is incumbent on the Director to inform the Court in the ordinary course of the reason for the withdrawal. As Fox J in R v Kent (1970) 17 FLR 65, at 70:
“Every court which deals with criminal matters is concerned to see, not only that its processes are not being abused, but also that the accused person is being dealt with fairly, and it is salutary that prosecutors should, where appropriate, and within reasonable limits, openly state what is being done and why.”
Whether the proceedings are the prosecution of a summary matter, or an indictable matter being tried summarily in the Magistrates Court, or an indictable matter in the Supreme Court, it is within the province of the prosecutorial discretion to determine what charges are to be instituted or continued. However, if at any point a decision to terminate proceedings by way of nolle prosequi or withdrawal of charges results in an abuse of process, then the court is obliged to intervene to safeguard the integrity of its processes.
Different considerations may arise according to the stage at which the proposed termination of proceedings is to occur, although at any stage the views of the defendant should be invited and considered. Ordinarily, a withdrawal for the purpose of achieving a negotiated outcome or prior to entry of a plea of not guilty will be unlikely to result in significant detriment to a defendant. However, once a plea of not guilty has been entered and a matter listed for hearing, even if evidence has not yet been taken, the defendant has signalled their desire to have the question of guilt determined by the court. From this point onwards, it is likely that a withdrawal of charges under objection by the defendant may result in an abuse of the court process. That is because the defendant, having signalled their intent to defend the charges, is denied the opportunity to obtain an acquittal and all that flows from that.
In Woods, fresh charges had been laid in support of a negotiated outcome. However, what was thought to be the agreed outcome was not maintained by the defendant; pleas to the fresh charges had not been formally entered when the prosecution sought leave to withdraw those charges. That leave was granted on the grounds that this was an appropriate exercise of the prosecutorial discretion.
In this case, the defendant had entered her plea of not guilty and prepared to defend the case when the Director made his application to withdraw the charges. A grant of leave denies the defendant her potential acquittal and leaves her exposed to future prosecution. The fact that there may be a remedy if charges are brought at a later date is little comfort to a defendant who might find themselves embroiled in further litigation which is undesirable; see the comments of Crispin J in R v YL [2004] ACTSC 115 in which is Honour noted at [91]:
I accepted that the Director made his decision conscientiously and in accordance with his perception of the public interest. However, for the reasons I have given, I concluded that it was necessary for the Court to intervene in order to prevent the abuse of process threatened by the tender of the nolle prosequi and uphold the right of the accused to have a decision made at the end of the trial, rather than leaving her to make an application for a stay of proceedings at some stage in the future should the Director seek to file a further indictment in respect of the same charges.
Such a course, is also inconsistent with the principle of finality of litigation, see the observations Gleeson AM in the Sir Maurice Byers Lecture “Finality” [2013] NSWBarAssoc News 50, Journal of the NSW Bar Association 331, and the decision of D’Ort-Ekenaike v Victoria Legal Aid [2005] HCA 12.
A withdrawal of the charges some months after the matter had been listed for hearing also exposes the defendant to costs accrued in preparation of her defence with arguably no avenue of redress.
Thus, I am satisfied that whilst it is open for the prosecution to make an application for leave to withdraw charges at any stage of the proceedings, that application is always subject to judicial scrutiny as to its effect on the defendant in support of the integrity of the court process.
In this instance, the detriment to the defendant is such that a grant of leave is properly characterised as unfair and an abuse of process.
In light of my determination, I am not required to consider whether a withdrawal of charges generally constitutes “an order in favour of the defendant” such that the informant may be required to pay the defendant’s costs. For present purposes, I simply note that in this particular case such an order would not be entirely favourable to the defendant for the very same reasons that I find that such an outcome would constitute an abuse of this court’s process.
The application for leave to withdraw is refused. The Director is invited to either call evidence, at an appropriately adjourned occasion, or offer no evidence.
| I certify that the preceding [46] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Magistrate Walker. Associate: A Jones Date: 25 March 2022 |
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