COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DEBELLE MULLIGHAN NYLAND
CWDS
Criminal law - jurisdiction, practice and procedure - prosecution - criminal law and procedure - nolle prosequi - whether the court has power to refuse to accept entry of a nolle prosequi - whether power is subject to limitations - power in court exists but may only be exercised in rare or exceptional circumstances. Director of PublicProsecutions Act, 1991ss7, 9, referred to. Rona v District Court of South Australia (1994) 63 SASR 233; R v Saunders (1983) 2 Qd R 270; R v Jell, ex parte Attorney-General (1991) 1 Qd R 48; R v Lorkin (Court of Criminal Appeal, 6 October 1995, unreported), applied. Williams v Spautz (1992) 174 CLR 509; Jago v District Court (NSW) (1989) 168 CLR
23; Walton v Gardiner (1993) 177 CLR 378; Maxwell v R (1996) 135 ALR
1; Barton v R (1980) 147 CLR 75; Goddard v Smith (1794) 6 Mod 261, 87 ER 1008; 11 Mod 56, 88 ER 882; re Seidler (1986) 1 Qd R 486; R v Doyle
(1988) 2 Qd 11434; R v Ferguson; ex parte Attorney-General (1991) 1 Qd R 35; R v Mellifont (1992) 64 A Crim R 75; Rv Swingler (Court of Criminal Appeal, 30 August 1995, unreported); R v Kellett (1856) 1 VLT
5, discussed.
HRNG ADELAIDE, 24-25 October 1995 #DATE 28:6:1996
Counsel for prosecutor: Ms W Abraham with Ms P Barnett
Solicitors for prosecutor: P J L Rofe QC
Counsel for defendant Baenisch: Mr W Braithwaite
ORDER
JUDGE1 DEBELLE J
1. This case stated raises the important question whether the Court has power to refuse to accept the entry of a nolle prosequi. Although the matter was touched on by the Full Court in Rona v District Court of SA (1995) 63 SASR 223 which is discussed later in these reasons, there is no reported decision in this State which directly deals with the question.
2. The case was stated by Mohr J pursuant to s350(1a) and s351 of the Criminal Law Consolidation Act 1935 on the application of the Director of Public Prosecutions following the acquittal of an accused person. The relevant events are set out in the case stated by Mohr J, which is set out below. The parties are described as "the complainant" and "the accused" instead of stating their names.
"1. By Information filed by the Director of Public Prosecutions in
the District Court of South Australia on the 28th November 1994,
the accused was charged with one count of Indecent Assault, one
count of Unlawful Sexual Intercourse with a Person Under 12, one
count of Attempted Unlawful Sexual Intercourse and three counts of
Unlawful Sexual Intercourse.
2. The particulars of the charges against the accused were as
follows:
First Count - Indecent Assault
Particulars:
That between the 1st January 1990 and the 10th October 1990, at
Elizabeth Grove, he indecently assaulted the complainant, a
person of the age of about 9 years.
Second Count - Unlawful Sexual Intercourse with a Person Under
12
Particulars:
That between the 1st January 1990 and the 10th October 1990 at
Elizabeth Grove, he had sexual intercourse with the complainant,
a person of the age of about 9 years, by causing her to perform
an act of fellatio upon him.
Third Count - Attempted Unlawful Sexual Intercourse with a
Person Under 12
Particulars:
That between the 1st September 1990 and the 10th October 1990 at
Elizabeth Grove, he attempted to have vaginal sexual intercourse
with the complainant, a person of the age of 9 years.
Fourth Count - Unlawful Sexual Intercourse
Particulars:
That between the 8th March 1993 and the 31st December 1993 at
Elizabeth South, he had sexual intercourse with the complainant,
a person of the age of 12 years, by causing her to perform an
act of fellatio upon him.
Fifth Count - Unlawful Sexual Intercourse
Particulars:
That between the 1st February 1994 and the 1st March 1994 at
Elizabeth South, he had vaginal sexual intercourse with the
complainant, a person of the age of 12 years.
Sixth Count - Unlawful Sexual Intercourse
Particulars:
That between the 1st May 1994 and the 2nd June 1994 at Elizabeth
South, he had vaginal sexual intercourse with the complainant, a
person of the age of 12 years.
3. The accused was first arraigned in the District Court of
South Australia on the 28th November 1994.
4. The trial of the accused was listed to commence on the 10th
July 1995. On this date I was notified by the prosecutor of the
non-attendance of the alleged complainant and her mother.
5. An application was made by the prosecutor to have the matter
taken from the trial list. I refused this application.
6. The prosecutor then entered a nolle prosequi on behalf of the
Director of Public Prosecutions. I refused to accept the nolle
prosequi.
7. I then invited counsel for the accused to make an application
for trial by judge alone. Such an application was made and I
granted the accused a trial by judge alone.
8. The accused was then re-arraigned and pleaded not guilty to
all of the counts on the Information before the court. I invited
the prosecution to tender no evidence. The prosecutor adopted
this course.
9. I found the accused not guilty of all of the counts on the
Information.
10. Pursuant to s.350(1a) of the Criminal Law Consolidation Act,
1935, I now reserve for the consideration of the Full Court the
following questions of law:
(1) Do I have the power to refuse to accept a nolle prosequi
entered by the Director of Public Prosecutions? and
(2) If the answer to the first question is yes, are there any
limitations to the exercise of that power?"
3. Although para6 states that the prosecutor entered a nolle prosequi, it is clear that he was not permitted to do so. Obviously, Mohr J intended to state that the prosecutor sought to enter a nolle prosequi.
4. The power of the Director of Public Prosecutions to enter a nolle prosequi is provided in s7(1)(e) of the Director of PublicProsecutions Act, 1991 which states:
"Section 7(1): The Director has the following powers: ...
(e) To enter a nolle prosequi or otherwise terminate a prosecution
in appropriate cases."
5. The power to enter a nolle prosequi has long existed as one of the powers available to an Attorney-General in relation to prosecutions. The effect of s7(1) is to vest the same power in the Director of Public Prosecution. Section 7(1) does not divest the Attorney-General of the power. Section 7(2) provides:
"The Attorney-General may, by notice in the Gazette, transfer to
the Director any powers or functions of the kind referred to
above, or any power to consent to a prosecution, vested in the
Attorney-General by an Act passed before the commencement of this
Act."
6. Section 7(1) expressly grants the powers therein listed and is not dependent upon s7(2) for its efficacy and operation. The power of the Attorney-General to enter a nolle prosequi appears, therefore, to be unaffected by s7.
7. An understanding of the nature of power to enter a nolle prosequi as it had been exercised by the Attorney-General will assist in dealing with the questions asked in the case stated. The Attorney- General can authorise the entry of a nolle prosequi in criminal proceedings pending in any court other than a court of summary jurisdiction. The decision to do so is one facet of the prosecutorial discretion and cannot be reviewed by a court. The entry of a nolle prosequi brings the trial to an end. Although the entry of a nolle prosequi operates as a stay sine die of the proceedings, it is not a pardon. It does not prevent a fresh information being laid for the same offence. So, in Gouriet v Union of Post Office Workers (1978) AC
435 at 487 Viscount Dilhorne said:
"The Attorney-General has many powers and duties. He may stop any
prosecution or indictment by entering a nolle prosequi. He merely
has to sign a piece of paper saying that he does not wish the
prosecution to continue. He need not give any reasons.... In the
exercise of these powers he is not subject to direction by his
ministerial colleagues or to control and supervision by the
courts."
8. That is a very brief summary. I turn to a more detailed examination.
Historical Background 9. The power of the Attorney-General to enter a nolle prosequi is of long standing. In Goddard v Smith (1794) 6 Mod 261, 87 ER 1008; and 11 Mod 56, 88 ER 882, the Master of the Crown Office gave evidence that a nolle prosequi was entered on an indictment for the first time in the sixteenth year of the reign of Charles the Second, when Sir Francis North was Attorney-General. Its use in proceedings on an information was well established in the 17th century and instances of its use have been traced to the 16th century. Professor Edwards notes an earlier instance referred to by Coke in his Fourth Institute when in 1555 informations were preferred against thirty-nine members of the House of Commons "for departing without licence contrary to the King's inhibition in the beginning of the Parliament". The proceedings were later terminated by the Attorney-General tendering a nolle prosequi. See Nolle Prosequi, (1958) Crim LR 573 and Edwards, the Law Officers of the Crown (1960), 227-237 ("Edwards I") and his later work The Attorney General, Politics and the Public Interest (1984) 444-466 ("Edwards II"). (The article in the Criminal Law Review was published anonymously but Professor Edwards discloses that the author was Mr G E Dudman, the then Legal Secretary of the Law Officers' Department.) I am indebted to Mr Dudman and to Professor Edwards for the overview of the history and operation of this procedure. I acknowledge also assistance from Mr Peter McDermott Nolle Prosequi - The Law and Practice in Queensland (1993) 17 Crim LJ 319.
10. The origin of the procedure is not clear. It has been suggested that an information was akin to an action instituted by the Sovereign acting through the Attorney-General and the entry of a nolle prosequi operated in the same way as the discontinuance of a civil action: Dudman, Nolle Prosequi (supra) at 574. Its extension to proceedings on an indictment probably amounts to no more than the successful assertion by the Attorney-General of the Sovereign's authority. There is a kind of logical basis for the procedure in that it is in principle reasonable that the proceedings instituted in the name of the Crown should be subject to termination at the will of the Crown: Dudman at 274, Edwards I at 227.
11. Speaking generally, the power of the Attorney-General to enter a nolle prosequi was utilised in the Australian colonies and it now exists in all Australian States and Territories. In some jurisdictions, the procedure is now regulated by statute: see, for example, Criminal Code (Qld) s563, Criminal Code (Tas) s350, and Criminal Code (WA) s581. The legislation in Queensland and Western Australia is in almost identical terms. In South Australia, common law principles regulate the procedure.
12. In recent years, the exercise by courts of their inherent jurisdiction to prevent abuse of process has raised questions as to the extent to which the courts will give effect to the entry of a nolle prosequi. Before examining that issue, it is convenient to note the principles regulating the law and practice concerning the entry of a nolle prosequi.
1. At common law, the power to enter a nolle prosequi is vested
only in the Attorney-General or in counsel acting on his
authority: R v Rowlands (1851) 17 QB 671; R v Beveridge (1909) 9
SR(NSW) 676. In South Australia, by virtue of the Director of
Public Prosecution Act, the power is also vested in the Director
of Public Prosecutions or by a person to whom the Director has
delegated the power pursuant to s6A of the Director of Public
Prosecutions Act. In England the power of the Attorney-General
can, on limited occasions, be exercised by the Solicitor-
General, for example, if the office is vacant or the Attorney-
General is unable to act owing to absence or illness: Law
Officers Act 1944 s1. In the absence of any express statutory
authority in the Solicitor-General Act 1972 of this State, it
would appear that the Solicitor-General cannot authorise the
entry of a nolle prosequi.
2. It is a corollary of the proposition just stated that
prosecuting counsel do not themselves have power to enter a
nolle prosequi. They may only do so on the authority of the
Attorney-General or the Director of Public Prosecutions: R v
Dunn (1843) 1 Car &; K 730; 174 ER 1009; R v Allen (1862) 1 B&S;
850; 121 ER 929. However, as just noted, the Director of Public
Prosecutions may delegate the power to a suitable person. In
Queensland and Tasmania the power may be exercised by counsel
for the prosecution: s563 of Criminal Code (Q), s350 of Criminal
Code (Tas).
3. A nolle prosequi can be entered at any time after the
indictment or information has been signed and before verdict: R
v Dunn (supra); R v Colling (1847) 2 Cox CC 184; R v Sneesby
(1951) St R Qd 26; R v Economou (1989) 51 SASR 421; R v Heald
(1979) Tas R 185. It may be entered before arrangement: R v
Radford (1951) Tas SR 1 (the headnote of that decision does not
appear to be correct). However, it is not possible to enter a
nolle prosequi before the indictment has been proffered or the
information has been laid. If after committal for trial, the
Director of Public Prosecutions is of the opinion that there is
no ground for putting the person committed upon trial for any
offence, he may so certify in accordance with s276 of the
Criminal Law Consolidation Act 1935. In some rare instances a
nolle prosequi has been entered after verdict and before
sentence. In 1951, Sir Hartley Shawcross, then Attorney-General,
entered a nolle prosequi to the whole indictment after an
illogical verdict of a jury in a prosecution arising out of an
unofficial dock strike: Edwards I at 232-233. The passage in
Edwards I at 233-234 repays reading containing an account of
another and amusing instance of the exercise of the power in
what Professor Edwards fairly calls an "unparalleled situation".
4. The practice in this State by which a nolle prosequi has been
entered has been marked by informality. Prosecuting counsel
usually announces that he has been authorised by the Attorney-
General (or since the Director of Public Prosecutions Act, by
the Director) to enter a nolle prosequi. The information would
then be endorsed by the Clerk of Arraigns or the Judge's
Associate to the effect that a nolle prosequi had been entered.
There is no prescribed form for the endorsement. The practice
differs in form but not in substance in other States. In
England, the practice is for the indictment or information to be
returned to counsel for the prosecution who then endorses the
indictment or information "Let a Nolle Prosequi be entered in my
name in the case of the above named, whose trial at ....... on
charges of ......... now stands adjourned, in order to discharge
all further proceedings therein AND FOR SO DOING THIS SHALL BE
YOUR WARRANT": see Nolle Prosequi (1958) Crim LR 573. Until the
indictment is found and the fiat endorsed on it, the proceedings
cannot be stayed: R v Wylie, Howe and McGuire (1919) 83 JP 295.
In Queensland, the practice in England is followed. Thus, when
the Crown wishes to enter a nolle prosequi, the prosecutor asks
for the indictment to be returned by the trial judge. Counsel
then endorses on the indictment a note to the effect that the
Crown declines to proceed further upon the indictment. The
indictment is then returned to the Court with the result that
the accused is discharged in respect of that indictment. In
Tasmania, the announcement may be made orally or in writing: R v
Carnes (1976) Tas SR (NC) 1 and that may be the position in
other States. It seems that in Victoria and Western Australia it
is a common practice to hand up a written memorandum: R v
Swingler (Court of Criminal Appeal, 30 August 1995, unreported);
R v Lorkin (Court of Criminal Appeal, 6 October 1995,
unreported, per Malcolm CJ). In New South Wales the procedure is
to make a simple entry or memorandum on the papers which is
initialled by the Attorney-General: Gilchrist v Gardner (1891)
12 LR(NSW) 184, 188; R v Howard (1992) 29 NSWLR 242, 248. No
particular formality is required but it is necessary that the
decision is clearly and distinctly communicated to the Court: R
v Beveridge (1909) 9 SR(NSW) 676. The differences in practice
are matters of mechanics only and do not affect questions of
principle.
5. Once a nolle prosequi has been entered, the Court can no
longer proceed with the trial of those matters charged in the
indictment to which the nolle prosequi relates: R v Sneesby; R v
Ferguson; ex parte Attorney-General (1991) 1 Qd R 35. The trial
is at an end and the only task for the Court is to discharge the
accused.
6. It will be noticed that the endorsement in England is in the
form of a stay which postpones the proceeding sine die. It seems
that it is possible for the Crown later to proceed on the
original indictment or information: Edwards II, 444. The usual
practice is to issue a fresh indictment or information: Edwards
II (supra). In Queensland, s563 of the Criminal Code requires a
fresh indictment or information: Re Seidler (1986) 1 Qd R 486
and R v Doyle (1988) 2 Qd R 434.
7. The entry of a nolle prosequi is no more than a statement
than that the prosecution is unwilling then to proceed with the
prosecution. It is not in law or in fact an official act by the
executive amounting to a promise or representation that the
accused will not be presented again on the same charge: R v
Swingler. It is not tantamount to an acquittal: Davis v Gell
(1924) 35 CLR 275 at 287. It is a termination of the proceedings
without an adjudication and it neither creates a bar to a
subsequent suit nor will it support a plea of autrefois acquit:
Broome v Chenoweth (1946) 73 CLR 583, per Dixon J at 599; Poole
v The Queen (1961) AC 223. See also R v Ridpath (1712) 10 Mod
152 at 153; 88 ER 670 at 671 where it was held that entry of a
nolle prosequi did not bar a fresh indictment charging the same
offence. Thus, it is possible to bring a fresh information and
for the Attorney-General or Director of Public Prosecutions to
proceed ex officio on a fresh information: R v Mitchell (1848) 3
Cox CC 93. To like effect, see Gilchrist v Gardner.
8. At common law the decision of the Attorney-General to enter a
nolle prosequi cannot be called into question by the courts: R v
Prosser (1848) 11 Beav 306, 50 ER 834; R v Allen (1862) 1 B&S;
850, 121 ER 929; R v Comptroller-General of Patents (1899) 1 QB
909. In the early development of the procedure, there had been
some decisions where the Court heard argument on the question
whether the proceedings ought to be terminated: see, for
example, R v Guerchy (1765) 1 B1.W 545 but at least since R v
Dunn in 1843 courts in England have not questioned the exercise
of the power to enter a nolle prosequi. These decisions are in
conformity with the principle that the courts cannot examine the
exercise by the Attorney-General of his common law power to
grant or refuse a fiat in connection with a relator action:
Gouriet v Union of Post Office Workers at 488; Barton v The
Queen (1980) 147 CLR 75 per Gibbs ACJ and Mason J at 90-91. The
Attorney-General is, of course, answerable politically in the
Parliament but, as Professor Edwards notes in his first work at
230-231, he has not been able to discover any question or debate
on the floor of the House of Commons in this century in respect
to the exercise of the authority to enter a nolle prosequi by
the Attorney-General in England. Similarly, Mr Dudman notes that
the Attorney-General's exercise of the power has never been
called into question in Parliament in modern times. He adds
((1958) Crim LR at 582):
"It would be wrong to infer either that parliamentary control is
ineffective or that his exercise of the power has been beyond
criticism; but it would not, perhaps, be unfair to suppose that
there has been no use of it amounting to such an interference
with the due processes of law as to call for the intervention of
Parliament."
Professor Edwards adopts this commentary, adding that members of
the House of Commons have not been so backward in questioning
vigorously instances in other areas where the Attorney-General's
fiat has been granted or withheld in controversial
circumstances: Edwards I at 232, where he also refers to
criticism of the improper use of the procedure in cases where it
has been suggested that the correct course was to offer no
evidence and obtain a directed verdict of acquittal.
9. The principle that courts have no jurisdiction to review the
exercise of the power to enter a nolle prosequi has been
followed in Australia: Barton v The Queen (supra); Maxwell v The
Queen (1996) 135 ALR 1, per Dawson and McHugh JJ at 8-9, per
Gaudron and Gummow JJ at 26. See also R v Williams (1936) QWN 3
and R v Kokles (1936) QWN 22, both being cases where a
conviction was quashed after the trial judge had refused to
allow a Crown Prosecutor to enter a nolle prosequi and the
accused was subsequently convicted; and R v Sneesby; R v Jell;
ex parte Attorney General (1991) 1 Qd R 48. Consistent with this
principle, the Attorney-General cannot be required to give
reasons for the entry of a nolle prosequi: R v Carnes.
13. Although the principle that the Court has no jurisdiction to review the exercise of the power to enter a nolle prosequi has been reaffirmed as recently as 1995 in R v Lorkin courts in Queensland and Western Australia have exercised their inherent jurisdiction to prevent abuse of process and have refused to permit the entry of a nolle prosequi.
14. The capacity to dispose of technically imperfect proceedings by resort to the entry of a nolle prosequi has a virtually limitless capacity to enable the Crown to meet all kinds of difficulties in the course of a trial. In his second work, Professor Edwards suggests (at 446) that this has been recognised by Crown Prosecutors in England whose policy is to apply to withdraw the charges or to tender no evidence. Writing in 1984, he summarised the use made of the procedure in these terms (Edwards II at 445-446):
"Until quite recently there was a body of authoritative opinion
that maintained that, in practical terms, the entry of a nolle
prosequi was confined to two categories of cases, first, to
dispose of technically imperfect proceedings instituted by the
Crown, and, secondly, to put a stop to oppressive but
technically impeccable proceedings instituted by private
prosecutors. Both of these categories find support in the
reported case law but the emphasis seems to be shifting towards
an even more restrictive interpretation of the grounds upon
which the Attorney-General might properly use his common law
powers of nolle prosequi. Recent practice on the part of
Attorneys-General suggests adherence to a policy of confining
the exercise of the power to cases where, after the indictment
has been signed, it is found that the accused, for reasons of
ill-health or other medical reasons, is unlikely ever to be fit
to stand his trial and there is no other way of disposing of the
indictment. Such situations would arise, for example, if the
accused was known to be suffering from a terminal disease or
where the prospect of undergoing the trial might well be
regarded as oppressive. Accordingly, the Attorney-General in
such cases has authorised the entry of his nolle prosequi
without occasioning a ripple of comment.
No longer is it thought justifiable, at least in English law, to
dispose of technically imperfect proceedings instituted by the
Crown by resort to the nolle prosequi procedure. The advantages
that formerly accrued to the prosecution in this fashion were
theoretically unlimited, permitting the Crown to meet procedural
objections with the utmost equanimity. A sense of injustice was
inevitably associated with the use of the Crown's prerogative
powers to these ends and thus the policies of the Crown's
prosecutors have shifted towards either seeking the leave of the
court to the withdrawal of the charges or in offering no
evidence and thereby ensuring a directed verdict of acquittal.
From the point of view of the defendant the latter procedure is
to be preferred, since his discharge in these circumstances is a
reality not a fiction and the erasure of the indictment from the
court's active file is proof that the proceedings in question
have been permanently and irrevocably terminated." (The footnote
references in this passage have been omitted.)
15. It appears that the present practice in England accords with Professor Edwards' assessment: see Blackstone Section D.2 at 951-952. Decisions in Australian courts indicate that in this country resort is had to the procedure in a wider variety of instances. Before examining those decisions, it is convenient briefly to note the jurisdiction to prevent abuse of process.
Preventing Abuse of Process 16. The inherent jurisdiction of a superior court to prevent abuse of process is well settled: Connelly v Director of Public Prosecutions
(1964) AC 1254; R v Humphrys (1977) AC 1; Clyne v NSW Bar Association
(1960) 104 CLR 186; Barton v The Queen (1980) 147 CLR 75 at 96, 107, 116; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz
(1992) 174 CLR 509, 518-520; Walton v Gardiner (1993) 177 CLR 378 at 393-395; and Moevao v Department of Labour (1980) 1 NZLR 464. The jurisdiction exists equally in civil and criminal proceedings. In criminal proceedings, the power of a court to protect itself from abuse of process is not limited to traditional notions of abuse of process or to defined or closed categories: Jago per Mason CJ at 28 and per Gaudron J at 74. The power may be exercised as and when the administration of justice requires: Jago per Gaudron J at 74. The jurisdiction will be exercised to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair: Barton v The Queen at 95-96; Williams v Spautz at 518. In this context, the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial falls within the concept of abuse of process: Williams v Spautz at 518-519.
17. The jurisdiction to order a stay of proceedings or make some order to prevent an abuse of process will not be exercised lightly. There are policy considerations which must be weighed when dealing with an application to grant a stay or for some other order to prevent an abuse of process. Those policy considerations were articulated by Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz at 519- 520:
"It is of fundamental importance that, unless the interests of
justice demand it, courts should exercise, rather than refrain
from exercising, their jurisdiction, especially their
jurisdiction to try persons charged with criminal offences, and
that persons charged with such offences should not obtain an
immunity from prosecution. It is equally important that freedom
of access to the courts should be preserved and that litigation
of the principal proceeding, whether it be criminal or civil,
should not become a vehicle for abuse of process issues on an
application for a stay, unless once again the interests of
justice demand it. In the United States, great weight has been
given to these factors: see Rosemont Enterprises Inc v Random
House Inc (1966) 261 F Supp 691, 696-697.
These factors have considerable force. There is a risk that the
exercise of the jurisdiction to grant a stay may encourage some
defendants to seek a stay on flimsy grounds for tactical
reasons. But that risk and the other policy considerations
already mentioned are not so substantial as to outweigh
countervailing policy considerations and deter the courts from
exercising the jurisdiction in appropriate circumstances.
As Lord Scarman said in Reg v Sang (1980) AC 402, 455, every
court is 'in duty bound to protect itself' against an abuse of
its process. In this respect there are two fundamental policy
considerations which must be taken into account in dealing with
abuse of process in the context of criminal proceedings.
Richardson J referred to them in Moevao v Department of Labour
(1980) 1 NZLR 464, 481 in a passage which Mason CJ quoted in
Jago (1989) 168 CLR 30. The first is that the public interest in
the administration of justice requires that the Court protect
its ability to function as a court of law by ensuring that it
processes are used fairly by State and citizen alike. The second
is that, unless the Court protects its ability so to function in
that way, its failure will lead to an erosion of public
confidence by reason of concern that the court's processes may
lend themselves to oppression and injustice. As Richardson J
observed (1980) 1 NZLR at p.482, the court grants a permanent
stay:
'in order to prevent the criminal processes from being used for
purposes alien to the administration of criminal justice under
law. It may intervene in this way if it concludes ... that the
Court processes are being employed for ulterior purposes or in
such a way ... as to cause improper vexation and oppression.'"
18. The factors to be balanced were identified in Jago and reiterated by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (supra) 395- 396. They include the requirement of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. It is relevant to note the comments of Brennan J in Walton v Gardiner (supra) at 407:
"But where a perceived unfairness results from a lawful exercise
of power conferred by statute, the mere unfairness does not
empower the court to set aside the exercise of the power."
19. Although His Honour dissented in the result, the principle has relevance in this context.
20. The inherent jurisdiction to prevent abuse of process was reaffirmed in Maxwell v The Queen. In that case the High Court had to consider whether the prosecution was entitled, with the leave of the Court and before sentence, to withdraw its acceptance of a plea of guilty to a lesser charge made pursuant to s394a of the Crimes Act1900 (NSW) which authorises the Crown to accept a plea on a lesser charge. In each of the reasons for judgment, reference was made to the fact that the courts of this country do not purport to interfere with the prosecutorial discretion in respect of institution or continuation of criminal proceedings save where it is necessary to do so to prevent abuse of process: per Dawson and McHugh JJ at 8-10, per Toohey J at 18-19, and per Gaudron and Gummow JJ at 25-26. As Gaudron and Gummow JJ emphasised (at 26):
"The integrity of the judicial process - particularly, its
independence and impartiality and the public perception thereof -
would be compromised if the courts were to decide or were to be in
any way concerned with decisions as to who is to be prosecuted and
for what."
21. The decision in Maxwell v The Queen is entirely consistent with the views expressed in Barton v The Queen and the other decisions already mentioned.
22. Since at least 1983, courts in Queensland and Western Australia have applied these principles and have refused to permit the entry of a nolle prosequi in circumstances which would cause oppression or unfairness. A review of the decisions shows that the power is exercised only in exceptional circumstances. The Queensland Decisions
23. The first reported decision to examine the extent of the Court's powers to refuse the entry of a nolle prosequi was R v Saunders (1983) 2 Qd R 270. In that case a ruling was made in the course of a criminal trial excluding evidence which the Crown sought to lead. The trial judge stated that he intended to direct a verdict of acquittal. After an adjournment, the Crown Prosecutor sought the return of the indictment so that he might enter a nolle prosequi. The trial judge (Shepherdson J) refused to return the indictment for entry of the fiat. Instead, he directed the jury to return a verdict of acquittal.
24. Shepherdson J gave detailed reasons for his decision to direct an acquittal. He was influenced to a large extent by the fact that the only evidence against the accused was a fabricated tape recorded conversation. Having noted that the entry of a nolle prosequi would not constitute an acquittal and that the evidence against the accused had been fabricated, he stated that she was entitled to an acquittal. In his view, the prosecution had constituted an abuse of process and the accused was entitled to be free from any stigma flowing from the prosecution. Referring to the decision of the House of Lords in Connelly and of the High Court in Barton v The Queen, he held that the Court had a duty to protect a citizen from oppression or prejudice which would result from an abuse of process. He distinguished Sneesby on the ground that the decisions in Connelly and in Barton v The Queen had altered the practice which had hitherto prevailed to allow the Crown to enter a nolle prosequi at any time before verdict. In his view, the power of the Crown to enter a nolle prosequi was subject to the Court's inherent jurisdiction to prevent abuse of its process and, in particular, to the inescapable duty referred to by Lord Devlin in Connelly (at 267) to secure fair treatment for those who come before the Court. Recognising that, so soon as he received the nolle prosequi into his hands, his jurisdiction to prevent a nolle prosequi was gone (see R v Sneesby), he declined to return the indictment to enable the prosecutor to enter the nolle prosequi. Another instance of a directed acquittal is R v Coward (No 3) (1953) QWN 40.
25. The issues were again considered in Re Seidler. The applicant had been charged on a summons with stealing a switchboard, the property of the respondent hospital, his employer. A nolle prosequi was entered at his trial. Subsequently, the respondent charged the applicant with two disciplinary offences pursuant to the Hospitals Act. The offences were proved and he was dismissed. He sought a declaration that the entry of a nolle prosequi constituted an acquittal. He failed. In the course of his reasons, Carter J referred to the practice in England as outlined by Professor Edwards in his two works and noted that, apart from the fact that s563 of the Criminal Code (Qld) prevents the re-activation of the original information, the practice in Queensland accorded with that in England. Having noted the power of the Court to prevent abuse of process and the decision in R v Saunders, Carter J then held that a nolle prosequi did not constitute an acquittal, that there had been no abuse of process, and that there were no grounds for interfering with the decision instantly to dismiss the applicant.
26. The next examination of the issue in Queensland was in R v Doyle, a decision of the Court of Criminal Appeal. The accused had been charged on an indictment with twelve counts of misappropriating property. He pleaded not guilty. After the jury had been empanelled, the trial judge ruled that certain evidence in the nature of confessions was inadmissible. The evidence was critical to the Crown case. Counsel for the Crown then asked that, should the Judge rule that on the balance of the evidence there was no case to answer, the indictment be returned to him with respect to all but two counts. Counsel for the Crown properly stated that he did so in order to preserve the rights of the Attorney-General pending a reference pursuant to s669A of the Criminal Code (Qld) questioning the correctness of the ruling. The trial judge first directed an acquittal on the two outstanding counts and the indictment was then returned to the Crown Prosecutor for the purpose of noting the entry of a nolle prosequi on the other ten counts. The Attorney-General then appealed to the Court of Criminal Appeal which held that the confessions were admissible. The appellant was then charged again on a fresh indictment. Before the accused was arraigned, an application was made for a stay on the ground that the fresh indictment was an abuse of process. The trial judge ruled against the submission. The appellant was then tried and found guilty of six counts of misappropriation. He appealed on the sole ground that the fresh indictment was an abuse of process.
27. Connelly J referred with approval to the decision of Carter J in Seidler on the nature and effect of the entry of a nolle prosequi. After referring to Connelly and Barton v The Queen and the power of the Court to prevent abuse of process, he emphasised that the Court had no power to refuse to allow a prosecution to proceed because it considered that, as a matter of policy it ought not to have been brought. The Court could act only if the prosecution is an abuse of process and is oppressive and vexatious. He then held that there was no abuse of process. In a separate judgment, Shepherdson J agreed. Vasta J agreed with Connelly J.
28. The Court of Criminal Appeal in Queensland again examined the issues in R v Jell. The appellant had been charged with ten counts of dishonestly applying to her own use monies belonging to her employer. At the conclusion of the prosecution case, the appellant elected not to give evidence. After the Crown Prosecutor had addressed the jury, counsel for the defence submitted that there was no case to go to the jury as the money was not at the relevant time the property of the employer. The trial judge upheld the submission. The Crown Prosecutor then sought to enter a nolle prosequi in respect of each count on the indictment. The prosecutor candidly informed the Judge that he wished to obtain the opinion of the Court of Criminal Appeal whether the trial judge's ruling was correct and, in the event that the Crown was held to be right, to present a fresh indictment. The trial judge refused to return the indictment for that purpose observing that the trial had gone its full length. He directed a verdict of acquittal.
29. The Attorney-General referred to the Court of Criminal Appeal, among other things, the question whether the trial judge was entitled to refuse to allow the Crown Prosecutor to enter a nolle prosequi. The Court unanimously answered in the affirmative.
30. All members of the Court affirmed that courts do not ordinarily interfere in the prosecutorial function involved in entering a nolle prosequi. Each noted that, as a general rule, the power is exercised with propriety and caution. By this time, the High Court had delivered its judgment in Jago v District Court (NSW). The members of the Court relied on Jago as well as on Connelly, Humphrys and Barton v The Queen and held that the Court could refuse the entry of a nolle prosequi to prevent an abuse of process but only in rare or exceptional cases. Macrossan CJ expressed his reasons in these terms at 53:
"The fact that in the usual case the power to enter nolle
prosequis is exercised with propriety and caution by prosecutors
so that no question of abuse arises, obscures the underlying
reality that if ultimate control over the effect of the use of
the power upon the course of trials is conceded by the courts to
the prosecution, then the power to control abuse of process is
substantially surrendered. I think that the correct answer is
that there is no restriction upon the right of the prosecutor to
enter a nolle prosequi, that is no restricting arising from the
nature of the prosecutor's power. There is no lack of plenitude
in the essential characteristics of the power itself. However
while this unlimited power is one that the courts will
recognise, nevertheless the judge who conducts the trial and
determines its course may, in an extreme case, refuse to return
the indictment to the prosecutor on his request. I would uphold
the court's possession of this power.
In addition to the examples provided by Thomas J in his reasons
of instances in which the right to enter a nolle prosequi could
involve abuse of process, I would add one further example
although any list obviously cannot be exhaustive. The jury after
one or more requests for redirection, may have so signalled
their likely verdict that an unscrupulous prosecutor might seek
to avoid it by entering a nolle prosequi even at that late
stage."
31. Thomas J referred to Barton v The Queen and reaffirmed the distinction between the jurisdiction of the Court to prevent, for example, by stay, proceedings by an Attorney-General which were an abuse of process and the absence of a jurisdiction to examine the exercise of a prerogative discretionary power by the Attorney-General. His Honour expressly noted the unwillingness of the Courts to examine the merits of the exercise of the power leaving it to Parliament to be the arbiter of any abuse of power. He identified the power to refuse to return the indictment to the prosecutor to enter the nolle prosequi as an aspect of the exceptional power discussed in Connelly, Humphrys, Barton and Jago to prevent abuse of process. His Honour then characterised the entry of a nolle prosequi in the final stage of a trial as "an abortion of that trial and a unilateral preservation of rights by one party - the Crown." The power of the Court to prevent the entry of a nolle prosequi when it was plainly intended to be a means of enlivening an almost dead prosecution and where the further prosecution must be regarded as an oppressive abuse, he said, was simply an aspect of the Court's duty to control its own process and to ensure that an accused person receives a fair trial. He approved the reasons of Shepherdson J in R v Saunders.
32. After noting that many factors might bear upon the decision to enter a nolle prosequi, Thomas J concluded that even the desire to obtain a decision on an Attorney-General's reference on the issues at the trial was not in itself a sufficient reason for the nolle prosequi. He concluded at 64:
"The prospect of subjecting an accused person sequentially to a
trial, a termination of it by nolle prosequi at the death when
the Crown receives an adverse legal ruling, a reference to the
Court of Criminal Appeal and the provision of an opinion by that
Court, and another trial on the same basis if the Crown was
entirely correct in the first place, or upon a varied basis if
that seems open after obtaining the further opinion, is an
unattractive one. Speaking generally, I think it preferable that
the community and the legal system suffer the occasional
unjustified acquittal than that accused persons face a barrage
of legal procedures upon their counsel successfully raising a
point. Obviously there is a question of degree involved, and I
am speaking only of points which arise when it may fairly be
said that the accused person has had his trial. Generally
speaking, a trial judge ought not to prevent the entry of a
nolle prosequi at any stage of the trial unless its entry is
plainly a vehicle of extreme oppression.
Speaking of the present circumstances, the learned Crown
Prosecutor candidly avowed his purpose in seeking to enter the
nolle prosequi to be the bringing of further proceedings in the
Court of Criminal Appeal and then bringing a further prosecution
if it were open. The Crown case was in disarray, and had been
based on an oversimplified and erroneous view of the legal
effect of the relevant dealings. It was not suggested that there
were any special executive considerations of the kind listed
above that could not properly be shared with the court. It is
sufficient to say that it was open to the learned trial judge to
act as he did."
33. In a separate judgment Lee J agreed with Macrossan CJ and Thomas J stating that the jurisdiction should be exercised only in rare cases. To summarise, the Court held that it had jurisdiction to refuse to accept the entry of a nolle prosequi but that the remedy should be rarely used. Macrossan CJ confined the exercise of the jurisdiction to "an extreme case", Thomas J spoke of it as a power to be exercised "only in exceptional cases" and Lee J confined it to "rare cases".
34. Counsel for the Crown had submitted that it was premature for the trial judge to use the power to order a stay before the prosecution had actually initiated further proceedings. In his submission, the time for considering the question of the appropriateness of staying the proceedings should be determined only after the commencement of the further proceedings. Thomas J did not think that the power was so limited, asserting that the power of the Court to stay is immediately activated, if the entry of the nolle prosequi is plainly the first step in the revival of a prosecution the continuation of which must be an abuse of process. The power would be exercised by the Court withholding the return of the indictment to the prosecutor or to forestall the prosecutor from informing the Court under s563 of the intention not to proceed by insisting upon first giving a ruling that will prevent abuse of process. This question was again examined in R v Lorkin, which is noted a little later.
35. The question of refusing to permit the entry of a nolle prosequi was soon revisited in R v Ferguson, a decision delivered one week after R v Jell by a differently constituted Court of Criminal Appeal in Queensland. The accused had been arraigned on three counts of indecent assault of a male. He pleaded not guilty. At the close of the Crown case, the trial judge announced that he proposed to stop the case, apparently for absence of satisfactory evidence of lack of consent. Counsel for the Crown asked for the return of the indictment intimating that he intended to enter a nolle prosequi. His purpose was to refer the ruling of the trial judge to the Court of Criminal Appeal and, if a satisfactory decision was obtained, to issue a fresh indictment. Counsel for the accused submitted that the trial judge should direct an acquittal. Counsel for the accused pressed the application for the return of the indictment and intimated that, if the Court were against him, he would wish to hand up a nolle prosequi in a form which he handed to the Judge. The document was marked as an exhibit. The trial judge refused to act on the nolle prosequi and directed an acquittal. The Court approved the principles as stated in R v Saunders and R v Jell.
36. The principles in R v Jell have since been reaffirmed in Queensland in Williamson v Trainor (1992) 2 Qd R 572 and R v Mellifont
(1992) 64 A Crim R 75, although neither decision concerned the question whether the Court would refuse to accept a nolle prosequi. The most recent affirmation of the principles in Queensland is re Morris; ex parte Attorney-General (Court of Appeal, 15 March 1995, unreported).
37. R v Mellifont is an instance where a nolle prosequi was entered and the application for a stay was made when a fresh information was presented. At the first trial, after the jury had been empanelled, about a month was spent on a voir dire and argument on questions of law. The trial judge made findings and rulings which favoured the applicant. The trial judge did not direct an acquittal because the prosecutor indicated the Attorney's intention to obtain the opinion of the Court of Criminal Appeal on the matters determined at the voir dire hearing. The Court of Criminal Appeal reversed the rulings of the trial judge and he was ordered to proceed with the trial according to law. The High Court confirmed this view: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289. On the fifth day of the resumed trial, after the evidence had concluded, the question of materiality of the alleged perjury was determined by the trial judge. He found in favour of the applicant and again applied wrong principles. The Court of Criminal Appeal confirmed that the trial judge had erred. The prosecution was permitted to enter a nolle prosequi. The issue was whether a trial under the fresh indictment would result in double jeopardy of such nature as to warrant the exercise of the Court's discretion to order a stay. A stay was ordered. Western Australia Follows Suit
38. The Court of Criminal Appeal in Western Australia has recently examined these issues in R v Lorkin, an appeal by the Crown against a directed verdict of an acquittal. The accused had been charged with stealing property on 26 March 1993 including goods belonging to one Bond. The indictment was dated 1 December 1993. The trial was due to commence on 1 March 1995. On 28 March 1995 the Crown applied for an adjournment because of the unavailability of two witnesses including one named Bond. The Court was told that Bond was in the United States of America and it was not known when he would return. He was said to be a principal witness and the Crown could not proceed without him. The other witness could not be found. Attempts to serve subpoenas had been made only a very short time, a week or so, before the trial was due to commence. The application for an adjournment was opposed on the ground of delay to proceedings which had already been unduly delayed. The application for the adjournment was refused. When the trial began on 1 March 1995, the prosecution sought to enter a nolle prosequi. Counsel for the accused sought an undertaking from the prosecutor that, in the absence of any new evidence, the Crown would not file a fresh indictment. In the absence of such an undertaking, counsel for the accused submitted that the Court should not receive the nolle prosequi and direct an acquittal. Counsel for the Crown refused to give the undertaking. Applying the reasoning in R v Jell, the trial judge refused to accept the nolle prosequi. After further submissions, a jury was empanelled. Counsel for the Crown then informed the Court that the Crown would not be calling any evidence and the trial judge then directed an acquittal which the jury returned. The Crown appealed on the ground that the trial judge did not have jurisdiction to decline to accept a nolle prosequi. In the alternative, if he did have jurisdiction, it was submitted that he ought not to have refused the entry of the nolle prosequi. Further, it was contended that the trial judge had erred in refusing to grant the adjournment.
39. The Court of Criminal Appeal was unanimous in holding that the trial judge was correct in refusing the adjournment on the ground that the Crown had been guilty of "abject failure" in taking steps to determine the availability of its witnesses before the status conference when the trial dates were fixed or, failing to take similar steps to secure their attendance after the trial date had been fixed. However, the Court was divided (Malcolm CJ and Kennedy J, Murray J dissenting) on the question whether the refusal to accept the tender of a nolle prosequi was correct.
40. Malcolm CJ, with whom Kennedy J agreed, acknowledged the principle that the courts do not have jurisdiction to review the exercise of the discretion to enter a nolle prosequi. However, he applied the reasoning of Gibbs ACJ and Mason J in Barton v The Queen to the effect that, although the courts did not control the Attorney-General's discretion to commence or discontinue criminal proceedings, the courts will control those proceedings to ensure that the accused receives a fair trial. He decided to follow the decisions in Queensland in R v Jell and R v Ferguson which he believed to be consistent with developments in Australia, New Zealand and the United Kingdom concerning abuse of process. He identified the question as being whether it was within the inherent power or jurisdiction of the Court to decline to accept the tender of the nolle prosequi on the ground that it was necessary to prevent an abuse of process and to avoid unfairness and prejudice to the accused. He held that the circumstances of the case were sufficiently exceptional to justify the trial judge refusing to accept the nolle prosequi. In his view the presentation of the nolle prosequi was an attempt to preserve a future right of the prosecution which, in the circumstances of that case, constituted an abuse of process.
41. Murray J decided that the decisions in R v Jell and R v Ferguson should not be followed. In his view, s581 of the Criminal Code in Western Australia obliged the Court to accept the nolle prosequi, terminate the proceedings, and discharge the accused. His Honour then turned to examine the inherent jurisdiction of the Court to prevent abuse of process. He said that it was not correct to conclude that the entry of a nolle prosequi constituted an abuse of process. That conclusion, he said, ignored the fact that the only effect of a nolle prosequi was to terminate the proceedings and relieve the accused of the need to answer the charge against him. The proper time to determine whether the proceedings constituted an abuse of process was upon the presentation of a fresh indictment.
Two Decisions in Victoria 42. In R v Swingler, the Court of Appeal in Victoria had to consider an appeal from a refusal to grant a stay of proceedings, where the accused was prosecuted in respect of the same conduct the subject of charges which had been the subject of a nolle prosequi entered eight years earlier. It was not necessary for the Court to deal with the circumstances in which the Court might refuse to allow a nolle prosequi to be entered. It made the following observations:
"There are many reasons why the prosecuting authority might
choose to enter a nolle prosequi which are quite inconsistent
with an intention on its part to forego further proceedings for
the same charge. Those reasons might have as much to do with the
availability or capacity of prosecution witnesses as they do
with the formation of a view of the strength of the case against
the accused. ...
It would, in our view, place an intolerable fetter on the
exercise of this valuable power (i.e. the prosecutor's power to
enter a nolle prosequi) if the court were readily to accede to
an application that its processes were being abused for no
reason other than that an accused was re-presented on a charge
in respect of which a nolle prosequi had previously been
entered.
We do not say that there can never be a case where the exercise
of the power to make presentment on a charge in respect of which
a nolle prosequi has previously been entered will amount to an
oppressive exercise of prosecutorial power and thus an abuse of
the court's process. The categories of 'abuse cases', as has
often been said, are never closed. We are not, however,
satisfied that this is such a case."
43. In R v Kellett (1856) 1 VLT 5 it was held that the Attorney- General had no power to enter a nolle prosequi after the Crown had closed its case. The accused in that case contended that the Court should have directed an acquittal. The reasons of the Court are briefly reported. The decision appears to have been founded on the fact that the prosecutor was seeking to keep alive a prosecution which had gone badly.
The Position in South Australia 44. I conclude this overview of the decisions in Australian courts with a reference to two decisions in this Court. In R v Economou
(1989) 51 SASR 421 Matheson J had to consider a number of questions arising out of the entry of a nolle prosequi. It was not necessary for the purposes of that decision to examine whether the Court had the jurisdiction to refuse to permit the nolle prosequi to be entered. The present issues were, however, mentioned in Rona v District Court of South Australia (1994) 63 SASR 223. In that case, the Court held that the power to stay proceedings to prevent abuse of process was not a means to punish non-compliance with caseflow management procedures and directions. An argument was advanced on behalf of the Director of Public Prosecutions that the difficulties in that case might have been avoided by the entry of a nolle prosequi which would leave the Director free to proceed subsequently on a fresh information. It was not necessary to decide the issue but King CJ (with whom Mohr and Olsson JJ agreed) expressed the view that he was inclined to follow the decision in R v Jell. After noting the traditional view that a nolle prosequi may be entered at any time before verdict, King CJ said at 228:
"It may be that the development in Australia of a deeper
understanding of the inherent power of the criminal courts to
prevent abuse of their processes leads to the conclusion that
the courts have power to act in a way which achieves what is now
achieved by practice in England, by refusing to act on a nolle
prosequi where to do so would permit an abuse of process. In R v
Saunders (1983) 2 Qd R 270 the court refused to act on a nolle
prosequi entered during trial and directed an acquittal. In R v
Jell; Ex parte Attorney-General (1991) 1 Qd R 48, the Full
Supreme Court held that a trial judge has a discretion to refuse
to accept a nolle prosequi if to do so would be an abuse of
process.
If the reasoning and decision in Jell (supra) are sound, and
they certainly accord with my sense of justice, there is no
reason why the same should not apply where the trial has not
begun but the date for trial has been fixed in accordance with
the regular procedures of the court. When the accused appears
for trial on that date, the interests of justice may demand
that, if the prosecution does not wish to proceed and there is
no valid rason why the accused should remain exposed to
prosecution in respect of the alleged conduct, there be a
verdict of not guilty by direction. There may of course be valid
reasons why a nolle prosequi should be accepted even during
trial. A vital witness may be incapacitated or there may be
suspected witness tampering causing a vital witness to change
his story. Other examples can readily be imagined. Where,
however, there are no such reasons and the power to enter a
nolle prosequi is used in a manner which would operate
oppressively to the accused or would amount to defiance of
procedural directions given by the court, there must be a
serious question as to whether the court may not protect its
process from abuse by declining to accept the nolle prosequi."
45. The circumstances which will give rise to an abuse of process where it is sought to enter a nolle prosequi are varied. It is for that reason that I have recited, at perhaps too great a length, the facts and reasons in most of the reported decisions in this country.
46. There is, therefore, a substantial body of judicial opinion in this country to the effect that, in the exercise of the inherent jurisdiction to prevent abuse of process, the Court may in exceptional cases refuse to accept the entry of a nolle prosequi. The cases in which it will do so have been characterised as extreme, exceptional or rare. The choice of epithet should not obscure the fact that the jurisdiction is one which courts will be slow to exercise.
47. There will be occasions where it would be proper to allow the entry of a nolle prosequi. Some were identified by King CJ in Rona v District Court of South Australia. In R v Catanzariti (Court of Criminal Appeal, 18 October 1995, Judgment No S5298, unreported) it was held that there was no abuse in filing a new information where there had been no previous directions about any time limits for amendments.
The Competing Arguments 48. There is a good deal of force in the view of Murray J in R v Lorkin that the proper time to consider the question of abuse of process is not at the entry of a nolle prosequi but on the presentation of a fresh indictment or information. The jurisdiction of the Court to stay an information as an abuse of process applies in circumstances which differ from the entry of a nolle prosequi. To stay an information is to prevent the accused from being tried on the charges in that information. The entry of a nolle prosequi terminates the proceedings on the information. The accused has no further need to answer or deal with the charges in that information. It is difficult, therefore, to equate the termination of the proceedings with an abuse of process.
49. Further force is given to this conclusion by the fact that the Director of Public Prosecutions may decide to proceed no further with the prosecution so that a fresh information is not presented. If a fresh information is presented, the Court will then be just as able as it was before to consider whether the entry of the nolle prosequi and the fresh information constitute an abuse of process. In some respects, the Court might then be in a better position. There might have been undue delay in laying the fresh information or some other relevant event has occurred.
50. In addition, it has been repeatedly affirmed that the courts, whose ultimate task may be to determine the guilt or innocence of an accused person, should not become closely involved in executive procedures concerning a prosecution: Williams v Spautz per Deane J at 548; see also Barton v The Queen at 94-95; Ridgeway v The Queen (1995) 69 ALJR 484, 516. The principle must apply with even greater force where the accused is being tried by judge alone. There is a greater ability for the Court to avoid becoming involved in the exercise of the prosecutorial discretion when dealing with an application for a stay. There may be occasions when the entry of a nolle prosequi is made for reasons which either cannot or should not be disclosed to the Court. Although, as a general rule, there will be little difficulty in counsel for the prosecution informing the trial judge of the reasons for the decision, there may be occasions when proper grounds exist for refusing to provide that information. If the trial judge presses the issue, there is the risk that he or she will become too involved in the exercise of the prosecutorial discretion. As a general rule, therefore, it is preferable for the Court not to refuse entry of the nolle prosequi leaving it to the accused to apply for a stay should a fresh information be laid.
51. As Macrossan CJ and Thomas J pointed out in Jell, it is possible to identify instances which would constitute an abuse of process justifying the courts in refusing to permit the entry of a nolle prosequi. The instances they noted were:
(i) where the jury by a request for redirection may have so
signalled their likely verdict that an "unscrupulous prosecutor"
might seek to avoid it by entering a nolle prosequi even at that
late stage (at 54);
(ii) where the case has gone badly for the prosecution and it is
conceivable that it might turn out better in a subsequent trial
(at 62). The decision in R v Kellett appears to be another
instance where the prosecutor was seeking to keep alive a case
which had gone badly;
(iii) where the prosecutor has taken a risk by proceeding
without a witness who was then not available and whose evidence
it was hoped would be covered by some other witness who did not
come up to proof, so that the prosecutor feels the accused will
unfairly escape conviction (at 62); and
(iv) where the Crown case does not disclose the commission of
the offence alleged in the indictment.
52. These are all obvious instances of an abuse of process. As Macrossan CJ remarked in Jell, "any list obviously cannot be exhaustive". But, it does not necessarily follow, that the appropriate time for the Court to intervene is when the attempt is made to enter the nolle prosequi. In all of the decisions in Queensland and Western Australia, except R v Saunders, which is an extreme case, it would have been possible to have prevented an abuse of process by staying the fresh indictment.
53. The arguments for the Court refusing to permit the entry of a nolle prosequi are less compelling. Should a fresh information be laid, it might be unjust to require the accused to return on a later occasion and argue the question of a stay. In addition, there is a risk of an accused incurring unjustified public odium if a trial is stopped at the eleventh hour because it is going badly and a fresh information is not later presented. It is, however, not possible to envisage all instances which lead to an abuse of process. It is not desirable, therefore, that there should be any hard and fast rule. For these reasons it might be concluded that, although the preferred course is for the Court not to refuse the entry of a nolle prosequi, it should have the power to do so in rare or exceptional cases.
54. The decisions in Jell and Ferguson were the result of prosecutors seeking to challenge unfavourable rulings in the course of the trial and wishing to preserve the charges against the accused pending the decision of the Court of Criminal Appeal. Until mid-1989 it was possible in Queensland to refer a question of law to a Court of Criminal Appeal but only after an acquittal: s669A(2) of the Criminal Code. Amendments s669A(2) in 1989 permit such references after the entry of a nolle prosequi. The procedure has been criticised: Mackenzie, Section 669A(2) of the Criminal Code - Appeal or abuse of process?: Queensland Law Society Journal, February 1991, 41; McDermott, Nolle Prosequi - The Law and Practice in Queensland (1993) 17 Crim LJ 319, 336-337. In South Australia, a question of law may be referred by the Attorney-General or Director of Public Prosecutions to the Court of Criminal Appeal after an acquittal: s350(2)(b). It is also possible for a trial judge to reserve a question of law for determination by the Court of Criminal Appeal either during or after the trial: s350(1). That power is in the hands of the trial judge. There does not, therefore, appear to be the same capacity as in Queensland for the prosecution to enter a nolle prosequi for the purpose of seeking the decision of the Court of Criminal Appeal during a trial.
Controlling a Statutory Power 55. Despite the force of those factors which point to the conclusion that a court should not refuse to permit the entry of a nolle prosequi, there is a further factor which tips the balance in favour of the Court having jurisdiction to do so in exceptional cases. Although his decisions are not amenable to a review by the courts, the Attorney-General is, nevertheless, answerable in the Parliament for his decisions. The Director of Public Prosecutions is not answerable in the same way. He is not a member of the Government. He exercises his discretion independently of the Attorney-General and free from any direction or control by the Attorney or any other Minister of the Crown: s9 of the Direction of Public Prosecutions Act. The courts are, therefore, the only available avenue of reviewing the exercise of the Director's discretion. (The Attorney-General may, after consultation with the Director, give directions and furnish guidelines to the Director in relation to the carrying out of his or her functions but such guidelines or directions must be published in the Gazette and are liable to scrutiny by the Parliament: s9(2) and (3). Such directions or guidelines may not be published if, in the opinion of the Attorney- General, disclosure may be prejudicial to an investigation or prosecution, although they must be later published as soon as practicable after the matter has been determined: s9(4).)
56. The fact that the exercise by the Attorney-General of his power to enter a nolle prosequi is not reviewable by the courts is an instance of the unwillingness of the courts to review the exercise of other prerogative powers: see Wheeler, Judicial Review of Prerogative Power
(1992) 14 Sydney LR 432, 433-434. The enactment of s7(1)(e) is not an enactment of a prerogative power in legislative form as in Barton v The Queen, where the institution of ex officio indictments by the Attorney-General was authorised by s5 of the Australian Courts Act 1828 (9 George IV c.83): cf Coutts v The Commonwealth (1985) 157 CLR
91, per Wilson J at 99-100. The prerogative power of the Attorney- General to enter a nolle prosequi, if that is how it is correctly described, is preserved by s7(2). The office of Director of Public Prosecutions is a statutory office and the powers are vested by statute in the office holder to enable the statutory office to function. The exercise of those powers is reviewable by the courts: cf Gaudron and Gummow JJ in Maxwell v The Queen at 25.
57. Further, the Director's power is the creature of a statute which expressly provides that the power to enter a nolle prosequi or otherwise terminate a prosecution is to be exercised "in appropriate cases": s7(1)(e) of the Director of Public Prosecutions Act. The requirement that the power be exercised in appropriate cases is a provision which differs from the Criminal Codes in Queensland, Western Australia and Tasmania. Section 7(1)(e), therefore, provides a criterion by which to determine whether it is appropriate to permit the entry of a nolle prosequi. The only avenue available to determine whether the power is being exercised in an appropriate case is the courts. If the courts do not have jurisdiction, there is no means by which an abuse of the power of the Director of Public prosecutions to enter a nolle prosequi can be checked.
58. For all of these reasons, the Court should have jurisdiction to refuse to permit the entry of a nolle prosequi. But the fact that the Court may refuse the entry of a nolle prosequi should not be understood as suggesting that the Court will be ready to exercise that power. There are limitations on the exercise of the power. It will be exercised to prevent an abuse of process, unfairness or injustice but only in rare or exceptional circumstances. Beyond that, it is undesirable to seek to prescribe any formula to deal with the infinite variety of facts and circumstances which might be presented to a trial judge. Generally speaking, the Court will have regard to the questions affecting the broader public interest as they have been identified in Jago and in subsequent decisions of the High Court. The factors which cause the courts to be slow to exercise the jurisdiction in respect of the Attorney-General's power to enter a nolle prosequi apply with equal force. The Court must be careful that it does not allow its desire to do justice to induce it to interfere with the prosecutorial discretion.
59. Similarly, it is undesirable to seek to list the circumstances when it is proper to permit a nolle prosequi. The Court will have regard both to the stage in the trial at which the prosecution seeks to enter a nolle prosequi and the reasons for that course. In cases where an adverse ruling is obtained at an early stage of the trial on the question of law, say, on a voir dire examination and the prosecution does not seek a nolle prosequi merely for the purpose of improving its case, the Court might be the more disposed to permit the entry of the nolle prosequi: Doyle, Ferguson. Where an application has been made because of the unavailability of material witnesses, the Court would, I think, be slow to prevent the entry of a nolle prosequi since the question whether there has been an abuse of process can be examined on application for stay of proceedings when the fresh indictment for information is presented. The decision to refuse to permit the entry of the nolle prosequi in this case was open to serious question. The issue was not argued on the case stated. I agree with the views expressed by Mullighan J on this issue.
60. For these reasons, the questions in the case stated should be answered: 1. Yes.
2. Yes.
JUDGE2 MULLIGHAN J
61. The issues raised by this case stated are set out in the reasons for judgment of Debelle J. I am substantially in agreement with the views expressed by him and I would answer both questions in the affirmative. I wish to add only a few observations of my own and say something about the limitations to the exercise of the power to refuse to accept a nolle prosequi.
62. The refusal to accept a nolle prosequi does not involve a review of the decision of the Director of Public Prosecutions to enter the nolle prosequi. It must be accepted that the Court does not have the power to review decisions of the prosecuting authority, whether to commence proceedings or not or to enter a nolle prosequi. However, there is a distinction between that lack of power to review and the power of the Court to control its own proceedings: Barton v The Queen
(1980) 147 CLR 75 per Gibbs ACJ and Mason J at p96 and Stephen J at p103, Murphy J at p107, Wilson J at p109. As their Honours observed, it is beyond question that the Courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The refusal to accept a nolle prosequi is not an exercise of power to review the decision of the prosecuting authority but, when exercised, of the power to protect the integrity of the process of the Court: see also R v Jell (1991) 1 QdR 48 per Macrossan CJ at pp53-54.
63. In my view, if the Court is to intervene, it may do so at the time when the prosecutor seeks to enter the nolle prosequi. Ms Abraham submitted that the time to consider whether there is an abuse of the process of the court is when a subsequent information is presented to the Court on the same factual basis, which, she contended, may never occur. However, it is not difficult to imagine circumstances in which the acceptance of a nolle prosequi would result in injustice and oppression. Examples are given by Macrossan CJ and Thomas J in R v Jell (supra) at pp53-54 and p62 respectively. It would be unconscionable that the consequence of the failure of the Crown to prove its case, namely a verdict of acquittal, could be avoided by the entry of a nolle prosequi with no subsequent information, or a later information which is stayed, so that the accused could never obtain a verdict of acquittal on the merits. I agree with Thomas J in R v Jell (supra) when he said, at p62:
"If the entry of the nolle is plainly the first step in the
revival of a prosecution whose continuation must be an abuse of
process, the court's staying power is immediately activated."
64. That is not to say that the power must be exercised at that stage. The Court may decline to do so but, in appropriate circumstances, may intervene in this way at this stage.
65. Under our present procedures an accused person comes to Court having been made aware of the change and its particularity, the evidence to be led in support of the charge and the witnesses who are to give evidence. The date and place of trial is fixed in advance. It is the expectation of the parties, the Court and the community that the trial will proceed to a conclusion on the merits and the appropriate verdict or verdicts given. It must be acknowledged that the Court must dispense justice with impartiality and fairness "both to the parties and to the community which serves" and it possesses the necessary power to prevent its processes being employed in a manner which gives rises to unfairness: Jago v The District Court (NSW)
(1989) 168 CLR 23 per Mason CJ at p28 and Walton v Gardiner (1993) 177 CLR 389 per Mason CJ, Deane and Dawson JJ at p493. In those cases as in R v Sang (1980) AC 402 at p455 and Williams v Spautz (1992) 174 CLR
509, the observations of Richardson J in Maevao v Department of Labour
(1980) 1 NZLR 464 at p481 were approved, namely that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike and that "unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of the concern that courts' processes may lend themselves to oppression and injustice. The use of a nolle prosequi to avoid the entry of the appropriate verdict or verdicts during the course of a trial would clearly constitute an injustice and, consequently, an abuse of the process of the Court. To avoid a trial by this mechanism in circumstances where the accused has come to court prepared for the trial on the appointed day, may also amount to an abuse of process: Rona v District Court of South Australia &; Anor
(1994) 63 SASR 223. As King CJ said, at pp228-229:
"If the reasoning and decision in Jell (supra) are sound, and they
certainly accord with my sense of justice, there is no reason why
the same should not apply where the trial has not begun but the
date for trial has been fixed in accordance with the regular
procedures of the court. When the accused appears for trial on
that date, the interests of justice may demand that, if the
prosecution does not wish to proceed and there is no valid reason
why the accused should remain exposed to prosecution in respect of
the alleged conduct, there be a verdict of not guilty by
direction. There may of course be valid reasons why a nolle
prosequi should be accepted even during trial. A vital witness may
be incapacitated or there may be suspected witness tampering
causing a vital witness to change his story. Other examples can
readily be imagined. Where, however, there are no such reasons and
the power to enter a nolle prosequi is used in a manner which
would operate oppressively to the accused or would amount to
defiance of procedural directions given by the court, there must
be a serious question as to whether the court may not protect its
process from abuse by declining to accept the nolle prosequi."
66. In my view, it is not appropriate that only the procedure of a stay of the trial of a subsequent information should be used to protect the process of the Court from abuse and an accused from oppression and injustice. Once there is an abuse of process, the Court should then intervene.
67. I would not want the resolution of the issues raised by this case stated to be interpreted as approval by this Court of the manner in which the learned Trial Judge exercised his discretion. It is unnecessary for present purposes to consider that matter. I merely wish to say that it should be a rare case that the discretion would be exercised against the prosecution merely because the principal Crown witness had not attended court. There may be all sorts of reasons for such non-attendance and observance of case-flow management principles should not usually prevail over principles of fairness and justice. The community has a legitimate expectation that those who have committed crime will be brought to justice and the unexplained absence of a crucial witness should not be a reason to frustrate that expectation in the usual course of events. I do not understand anything said by the Court in Rona to be contrary to that view. Usually a short adjournment should be granted to ascertain the reason for the non-attendance and to ascertain whether the witness can attend the trial.
68. I do not think it is appropriate to try and define the limitations of the power to refuse to accept a nolle prosequi. It is not difficult to acknowledge circumstances in which it may be appropriate to exercise the power. As the cases show, it may be appropriate to exercise it in order to prevent an abuse of the process of the Court. It is to be expected that the circumstances in which that may occur would be rare or exceptional, but if they exist whether to exercise the power must be considered. There may be other circumstances which may not, strictly speaking, constitute an abuse of process but which would justify the exercise of the power to prevent oppression or injustice. In my view, the boundaries of the limitation should be determined on a case by case basis.
JUDGE3 NYLAND J
69. have had the advantage of reading the reasons for judgment of Debelle J and Mullighan J and have nothing further to add. I also agree that the answers to the questions in the case stated should be: 1. Yes.
2. Yes.
- AGLC
- Question of Law Reserved on Acquittal Case Stated: R v Michael Charles Baenisch No. SCCRM 95/360 Judgment No. 5679 Number of Pages 24 Criminal Law Jurisdiction, Practice and Procedure (1996) 66 Sasr 450 [1996] SASC 5679
- Case
- [1996] SASC 5679
- Decision Date
CaseChat Overview and Summary
The Full Court's decision was based on a detailed examination of the history and operation of the power to enter a nolle prosequi, as well as the principles regulating the law and practice concerning the entry of a nolle prosequi. The court also considered relevant decisions from Australian courts, as well as decisions from the United Kingdom and other common law jurisdictions. The court found that the power to enter a nolle prosequi is vested in the Attorney-General or Director of Public Prosecutions, and cannot be exercised by prosecuting counsel. Once a nolle prosequi has been entered, the court can no longer proceed with the trial of the matters charged in the indictment to which the nolle prosequi relates.
The court further found that, in the exercise of the inherent jurisdiction to prevent abuse of process, the court may in exceptional cases refuse to accept the entry of a nolle prosequi. The cases in which it will do so have been characterised as extreme, exceptional, or rare. However, the court should be slow to exercise this power, and there are limitations on its exercise. The power will be exercised to prevent an abuse of process, unfairness, or injustice, but only in rare or exceptional circumstances. It is undesirable to seek to prescribe any formula to deal with the infinite variety of facts and circumstances which might be presented to a trial judge. The court must be careful that it does not allow its desire to do justice to induce it to interfere with the prosecutorial discretion.
The Full Court's decision provides guidance to trial judges on the circumstances in which they may refuse to accept the entry of a nolle prosequi. The court emphasised that the power should be exercised sparingly, and that the limitations on its exercise should be determined on a case-by-case basis. The decision also highlights the importance of preventing abuse of process and ensuring a fair trial, while at the same time recognising the need to respect the prosecutorial discretion.
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