R v Ratcliff, Stanfield & Utting - [2007] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v RATCLIFF, STANFIELD & UTTING
[2007] SASC 297
Reasons for Ruling of The Honourable Justice Nyland
10 August 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Applicants charged with criminal defamation - finding of no case to answer at committal - ex officio information filed by DPP - application to quash or dismiss proceedings - whether DPP empowered to lay ex officio information - whether laying ex officio information for minor indictable offences in superior court amounted to abuse of process - applicants deprived of right to summary trial - applicants filed election for trial before judge and jury in superior court - election not withdrawn before conclusion of committal hearing - not an abuse to be tried in accordance with election - whether non compliance by DPP with s 257 CLCA as to consent to prosecution invalidated proceedings - consent proved - applications dismissed.
Criminal Law Consolidation Act 1935 s 257 and s 275; Summary Procedure Act 1921 ss 5, 103(2) and 105; Supreme Court Rules 1992 r 8, and r 9; Director of Public Prosecutions Act 1991 s 4 and s 7; Juries Act 1921 s 7, referred to.
Question of Law Reserved (No 3 of 1995) (1996) 66 SASR 450; O'Neill v R (1989) 53 SASR 1; Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509; Burgoyne v Earle [1999] WASCA 154; Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355; Dever v Creevey; ex parte Creevey (1993) 1 QR 32; Schulz v Virgin (1996) SASR 94, discussed.
Barton v The Queen (1980) 147 CLR 75; Duffield & Dellapatrona v R (1992) 28 NSWLR 638; R v Maitland [1963] SASR 332; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Basha (1989) 39 ACrimR 377, considered.

R v RATCLIFF, STANFIELD & UTTING
[2007] SASC 297
NYLAND J:

This is an application by Malcolm Barry Stanfield (Stanfield) and Wendy Utting (Utting) to quash or dismiss proceedings.
Background:
In order to understand the argument in this case, it is necessary to set out some of the background to this application. Stanfield and Utting, together with Craig Ratcliff (Ratcliff) were charged on an information filed in the Magistrates Court at Adelaide with the offence of criminal defamation, contrary to the provisions of s 257 of the Criminal Law Consolidation Act 1935 (CLCA). The matter was designated as a minor indictable offence.
Counts 1 to 4 of that information charged Utting and Stanfield jointly with an offence committed on 1 April 2005. Count 5 charged Utting only with an offence on the same date, and Count 6 charged Stanfield only with an offence on that date. Counts 7, 8 and 9 all related to Ratcliff and alleged offences committed on 4 August 2004, 12 August 2004 and 10 March 2005. The information required each of them to appear in the Magistrates Court on 5 October 2005 at 9.30 am. The information bears the endorsement “I, Geraldine Davison – Acting Director of Public Prosecutions for the State of South Australia, hereby consent to the institution of these proceedings pursuant to s 257 of the Criminal Law Consolidation Act 1935”.
Each of the defendants appeared in court on the return date when proceedings were adjourned to 15 November 2005 for mention only. On that date, defence counsel were provided with a number of statements of witnesses. The matter was thereafter adjourned to 9 December 2005 for the defendants to indicate whether any or all of them would elect for trial in a superior court, pursuant to s 103(2) of the Summary Procedure Act 1921 (SPA).
On 9 December 2005, the matter again came on for hearing in the Magistrates Court. On that date an election was filed by Utting in which she elected for trial in the District Court of South Australia. Counsel who appeared on behalf of Ratcliff and Stanfield indicated that they too might file election forms. The matter was then adjourned to 20 February 2006. Thereafter there were some further delays in the course of which consideration was given to the possibility of a judicial officer, other than a magistrate, presiding over the preliminary examination of the matter.
The matter eventually came on for hearing before a District Court judge, sitting as a magistrate, on 31 July 2006. Each of the defendants was represented by counsel. At the commencement of the proceedings, the prosecution was granted leave to amend Counts 5 and 6 on the information, as a result of which Stanfield and Utting were jointly charged with each of those offences, as well as the other four.
Counsel for Utting also applied for separate committal proceedings from Ratcliff. That was supported by counsel for Stanfield. There was further argument as to that matter, in the course of which the issue arose as to whether Ratcliff and Stanfield had each elected to be tried in a superior court. That issue was resolved on 2 August 2006. The preliminary examination thereafter proceeded on the basis of each of the defendants having so elected.
On 3 August 2006, the prosecution tendered no evidence with respect to Count 9 on the information which related to Ratcliff and that charge was dismissed. On 15 August 2006, the District Court judge ruled that Utting and Stanfield had no case to answer on Counts 1 to 6 on the Magistrates Court information and that Ratcliff had no case to answer on Count 7. She did, however, commit Ratcliff for trial in the District Court in respect of Count 8 and remanded him to appear for arraignment in that court on 18 September 2006.
On 14 September 2006, an ex officio information directed to 18 September 2006 sessions of the District Court was filed by the Director of Public Prosecutions (DPP). That information alleges seven counts of criminal defamation. Count 1 alleges an offence by Ratcliff on 12 August 2004 and Counts 2 to 7 jointly charge Stanfield and Utting with defamation arising out of events occurring on 1 April 2005. That information bears the signature of “S Pallaras, Director of Public Prosecutions” but does not bear any endorsement pursuant to s 257 CLCA as previously appeared on the Magistrates Court information.
On 18 September 2006, the defendants were arraigned in the District Court. No pleas were taken as counsel for Utting indicated that a Rule 8 application would be filed and at the same time counsel for the DPP indicated that an application would be made for the matter to be removed to the Supreme Court. On or about 25 September 2006 the DPP filed an application for the transfer of the proceedings to the Supreme Court. That order was eventually made on 25 January 2007.
The defendants subsequently appeared in the Supreme Court for arraignment on 5 March 2007 but no pleas were entered. The arraignment was then adjourned to 13 March 2007 to enable the filing by the defendants of foreshadowed applications pursuant to Rules 8 and 9 of the Supreme Court Rules 1992.
On 1 March 2007, Ratcliff filed an application that he be granted a separate trial from Stanfield and Utting. He also sought an order that his election for trial before a judge and jury in the District Court be withdrawn and that the charges against him be remitted to be heard before the Magistrates Court of South Australia.
On 5 March 2007, Utting filed an application that the proceedings against her be dismissed or quashed. On 7 March 2007, Stanfield filed a similar application seeking an order that the proceedings against him be dismissed. The grounds relied upon by Utting and Stanfield in support of their respective applications are identical and are as follows:
1.The prosecution is not entitled to lay an ex officio information for minor indictable offences.
2.The court lacks jurisdiction.
3.The charges have been dismissed.
4.The proceedings are an abuse of the process of court.
On 13 March 2007, the defendants were re-arraigned in the Supreme Court. Ratcliff pleaded not guilty to Count 1 on the information, being the charge on which he was committed for trial. An order was also made that the applications by each of the defendants be listed for argument on 11 April 2007.
The matter was unable to proceed on that date, however, due to the failure of the defendants to comply with orders as to the filing of outlines of argument by the required date. The matter was eventually set down for hearing on 30 May 2007, although the application filed by Ratcliff was adjourned to await the outcome of the applications to quash proceedings filed by Stanfield and Utting.
On the hearing of the argument with respect to the Rule 8 applications, Mr Mancini appeared for Utting and Mr Reeves appeared for Stanfield. Mr Hinton QC with Ms Matteo appeared for the DPP. Mr Reeves did not make any submissions on behalf of Stanfield, but adopted the argument presented by Mr Mancini on behalf of Utting. At the commencement of argument, Mr Mancini indicated that he relied on three grounds to support his application to quash or dismiss the proceedings, namely:
1.    The absence of power in the DPP to lay an ex officio information;
2.    The laying of the information in the circumstances of this case amounted to an abuse of process; and
3.    Non-compliance by the DPP with s 257 CLCA which requires the consent of the DPP for the institution of proceedings as to criminal defamation.
Absence of Power in DPP to lay ex officio information:
There is no dispute that the office of the DPP is a creature of Statute. It was created by s 4 of the Director of Public Prosecutions Act 1991 (DPP Act). That Act came into force on 6 July 1992. As a creature of Statute, the DPP does not possess inherent powers. All powers vested in that position are either expressly conferred or necessarily implicit in any conferral of power by Statute. The powers of the Director are set out in s 7 of the DPP Act as follows:
Powers of Director:
(1) The Director has the following powers:
(a)to lay charges of indictable or summary offences against the law of the State;
(b)to prosecute indictable or summary offences against the law of the State;
(c)to claim and enforce, either on behalf of the Crown or other persons, civil remedies that arise out of, or are related to, prosecutions commenced by the Director;
(d)to take proceedings for or in relation to the confiscation of profits of crime;
(da)to institute civil proceedings for contempt of court;
(e)to enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases;
(f)to grant immunity from prosecution in appropriate cases;
(g)to exercise appellate rights arising from proceedings of the kind referred to above;
(h)to carry out any other function assigned to the Director by any other Act or by regulation under this Act;
(i)to do anything incidental to the foregoing.
(2) 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.
(3) A person who has power to consent to a prosecution, or to allow an extension of the period for commencing a prosecution, for an offence of a particular kind under the law of the State may, by notice in the Gazette, delegate that power to the Director.
(4) A delegation under subsection (3) -
(a)is revocable by subsequent notice in the Gazette; and
(b)does not prevent the person from acting personally in a matter, but, once a decision on a particular matter has been made by the Director in pursuance of a delegation, the delegator is bound by that decision.
(5) A document apparently signed by the Director and stating that the Director consents to a particular prosecution or that the Director allows a specified extension of the period for commencing a particular prosecution is to be accepted, in the absence of proof to the contrary, as proof of the fact so stated.
(6) Where an information or complaint charging an offence is apparently signed by the Director or a person acting on the Director's authorisation, the information or complaint will, in the absence of proof to the contrary, be taken to have been duly signed by or on behalf of the Director.
(7) In any legal proceedings, the Director may appear personally or may be represented by a member of the staff of the office who is a legal practitioner or by counsel or solicitor (including the Crown Solicitor or the Solicitor-General).
(8) Details of any notices published under this section must be included in the Director's annual report.
As can be seen s 7 does not include any express power for the DPP to lay an ex officio information in either the District or Supreme Courts. Mr Mancini accordingly submitted that the power to lay an ex officio information had been retained by the Attorney-General in the exercise of his prerogative, and that had been unaffected by the introduction of the DPP Act or any other legislation.
Mr Mancini supported that submission with reference to a number of cases which discuss the exercise of the ex officio power[1], including Question of Law Reserved (No 3) of 1995[2]. In that case, Debelle J, (with whom Mulligan J and I agreed) discussed the background to the entry of a nolle prosequi, that also being a power which historically was vested in the Attorney-General. That power was specifically transferred to the DPP by s 7(1)(e) of the DPP Act but, as Mr Mancini pointed out, no similar provision provided for the transfer to the DPP of the power to lay an ex officio information. Mr Mancini also referred to the lack of mention of any proposal to transfer that power in either the second reading speech in Hansard, in which the Attorney-General introduced the proposed Bill for the establishment of the office of the DPP, nor in the subsequent debate on the Bill. Mr Mancini argued, therefore, that that strengthened his submission that the power of the Attorney-General to lay an ex officio remained unaffected by the passing of the DPP Act.
[1] eg Barton v The Queen (1980) 147 CLR 75; Duffield & Dellapatrona v R (1992) 28 NSWLR 638 and R v Maitland [1963] SASR 332
[2] (1996) 66 SASR 450
Mr Hinton conceded that the DPP Act did not expressly confer power on the director to lay an information ex officio. He submitted, however, that the power to do so was necessarily implicit in the provisions of s 275 CLCA, which is concerned with the laying of informations in the Supreme or District Courts. That section was amended on the same day as the DPP Act came into operation, to substitute “Director of Public Prosecutions” for “Attorney-General”, and now reads as follows:
275 Information may be presented in the name of the Director of Public Prosecutions
(1)Any person may be put upon his trial at any criminal sessions of the Supreme Court or District Court, for any offence, on an information presented to the Court in the name and by the authority of the Director of Public Prosecutions.
(2)Every rule of law and enactment for the time being in force in the State relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information so presented.
Mr Hinton argued that the fact that the only amendment to s 275 was to insert the name of the DPP in lieu of the Attorney-General, suggested that it was intended that pre-existing procedures relating to the laying of informations continue in force, but that they now vested in the DPP. He submitted that s 275 did not appear to place any limit on the power of the DPP to lay an information, as would be the case if the right to lay an ex officio information had been retained by the Attorney-General. That submission appears to be consistent with the comments of Perry J in O’Neill v R[3], as in the course of considering an application to stay an ex officio information on the grounds that it was an abuse of process, Perry J referred to s 275 CLCA and commented (at 7):
The exercise of the discretion of the Attorney-General to lay an information … now finds expression in s 275 of the Criminal Law Consolidation Act, ‘for any offence’ …
[3] (1989) 53 SASR 1
Mr Hinton further contended that, properly construed, s 275 CLCA had no application to proceedings other than those before the District and Supreme Courts upon the presentation of an information. Section 275(1) and (2) CLCA did not pick up the preliminary examination regime contained in SPA. Further, those sections presumed the existence of an ex officio power to institute proceedings in the District or Supreme Courts independent of that regime.
To support his argument as to the interpretation of s 275 CLCA, Mr Hinton referred to the history of the development of criminal prosecutions in this State. It is useful to recite that history, and the conclusions to be drawn from it, as are set out in Mr Hinton’s outline of argument as follows:
4.1.1 Historically criminal prosecutions were commenced in one of three ways:
· by presentment - this was where notice was taken by the grand jury of any offence from their own knowledge and without any bill of indictment being laid before them;
· by indictment - this was a written accusation that a person or persons had committed a felony or misdemeanour. Once the accusation was preferred it then fell to the grand jury to inquire as to whether the person or persons accused should be put upon trial.
· by information - this was the written instrument used by the sovereign to pursue its own suits or where it appeared as the nominal prosecutor. In each instance the information was filed by the Attorney-General (and at one stage the Coroner could do so as well).
Importantly, where an information was preferred it was not the subject of an inquiry before the grand jury. The function of the grand jury was performed by the law officers of the Crown.
See James Stephen, Commentaries on the Laws of England (1880, Vol IV) Chapter XIV page 357; Blackstones, Commentaries on the Laws of England (1966 Reprint) Book Four, Chapter 23.
4.1.2 In time the common means of proceeding was by way of indictment although the Crown retained power to lay an information.
4.1.3 The history of s 275 of the CLCA can be traced back to Act No.10 of 1852. That Act abolished the grand jury in South Australia. Prior to 1852 trials by jury in South Australia had been conducted in the same manner as jury trials in England: see Act No.12 of 1843 ss II. Importantly, section XXXIII of Act No.12 of 1843 provided that no person could be put upon trial in the Supreme Court on any indictment unless the bill of indictment was first presented to the grand jury and the grand jury had found it to be a true bill. The same section preserved the right of the sovereign’s Attorney-General or Advocate General to file informations ex officio.
4.1.4 With the abolition of the grand jury in 1852 the method of prosecuting by way of preferring an indictment in the Supreme Court was also abolished. Thereafter, all criminal prosecutions in the Supreme Court were to proceed on information presented to the court in the name and by the authority of Her Majesty’s Advocate or Attorney-General: See Act No. 10 of 1852.
4.1.5 Whilst s 2 of Act No.10 of 1852 abolished the grand jury it retained the power to proceed on Information. Further it retained the process that was followed after a true bill had been found and applied it to the new procedure.
‘2.And be it Enacted, That any person may be put upon his trial at any Criminal Session of the Supreme Court, for any crime or offence whatsoever, upon an information presented to the said Court, in the name and by the authority of Her Majesty’s Advocate or Attorney-General in the same manner as heretofore upon indictment returned by a Grand Jury; and every provision of the common law, and Acts of Parliament, and of Ordinances, for the time being in force within the said Province relating to indictments, and to the manner and form of pleading thereto, and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information to be so presented as aforesaid.’
Section 2 of Act No.10 of 1852 is the predecessor of s275 CLCA. It was first enacted in its current form in 1876: See the Criminal Law Consolidation Act, 1876, Act No.38 of 1876, s 334.
4.1.6 The prosecution contends that s 275 purports to -
a.preserve the power of the law officers of the Crown to prosecute a person in the Supreme or District Court independent of any function akin to that formerly performed by the grand jury (i.e. to proceed ex officio), and
b.preserve in the Supreme and District Courts the mode of the conduct of proceedings that was invoked when a person was tried upon the finding of an indictment and apply the same to trial on an information laid in those courts.
4.1.7 This is reinforced by the fact that properly construed s 275 relates to what is to occur after the information has been presented. It does not purport to effect committal proceedings. This is born out historically and by the construction of s 275.
4.1.8 In particular, s 275(2) uses the conjunctive ‘and’ in the cumulative sense.
·it relates to indictments and to the manner and form of pleading thereto: historically, an accused was not called upon to plead to an indictment until the grand jury had determined that it was a true bill.
·it relates to indictments and to the trial thereon: historically, a person was not tried on an indictment until after the grand jury had determined that it was a true bill and they were put in charge of the petit jury;
·it relates to indictments and generally to all matters subsequent to the finding of the indictment: historically, when the grand jury determined that the indictment was a true bill the indictment was said to be found.
See Sir James Fitzjames Stephen, A history of the Criminal Law of England, (1883, MacMillan, London) Vol I, Chapter IX.
4.1.9 From this it follows that -
·the provision seeks only to affect the manner in which proceedings on Information are conducted in the District and Supreme Courts;
·the reference to indictments is intended and cannot be construed as incorporating Informations;
·s 275 does not pick up the preliminary examination regime;
·s 275 has an operation and is intended to have an operation independent of the preliminary examination regime.
This is consistent with and complemented by s 276 which does purport to operate where a preliminary examination has been conducted.

Mr Hinton submitted that in the light of these matters, the DPP had the power to lay an information in the District Court and Supreme Court ex officio and that the proceedings in this case had therefore been properly instituted.
Although the Attorney-General in the second reading speech, when introducing s 7 of the DPP Act, did not mention any proposal to transfer the power to lay an ex officio information to the DPP, conversely, he did not suggest that it was contemplated that any limit be placed on the power of the DPP to lay charges in either the Supreme or District courts. He said:
Clause 7 sets out the powers of the Director. The Director is given power to lay charges of, and prosecute, indictable or summary offences against the law. The Director is also empowered to take proceedings for or in relation to the confiscation of profits of crime, to grant immunity from prosecution; and to claim and enforce civil remedies that arise out of or are related to prosecutions commenced by the Director. The Director would also be able to enter a nolle prosequi and to exercise appellate rights arising from prosecutions.
The Bill provides for the Attorney-General to transfer to the Director any powers or functions of the kind to which I have referred, or any power to consent to a prosecution vested in the Attorney-General by any Act. This will allow the Director to be given responsibility for a function even if an Act vests power in the Attorney-General. Whether to give the Director these powers will be decided after consideration of each piece of legislation. An examination is being undertaken of legislation which vests power in the Attorney-General, the Crown Prosecutor or the Crown Solicitor in relation to criminal matters. Where appropriate, amendments will be made to the legislation to assign the powers to the Director.
In my opinion, s 7 clearly contemplates all powers relating to prosecutions, which were formerly exercised by the Attorney-General, being transferred to the DPP. If it had been intended to place some limitation on those powers, I would have expected that to have been specifically mentioned with reasons as to why the Attorney-General thought it appropriate to retain that particular power. I also agree with Mr Hinton’s submission that the power in the DPP to lay an information pursuant to s 275 CLCA is separate from the preliminary examination regime. It follows therefrom that it must include the power to lay an ex officio information. A retention of power by the Attorney-General to lay an ex officio information would, in my view be illogical, and inconsistent with the clear intent of Parliament in providing the DPP with the power in s 275(1) CLCA to put “any person” on trial at “any criminal sessions” of the Supreme Court and District Court for “any offence”. I am therefore satisfied that the laying the information by way of ex officio indictment in this case was within the power of the DPP.
Abuse of Process:
It is well established that superior courts possess an inherent power to prevent an abuse of their processes. In Walton v Gardiner[4], the High Court held that the court had power to stay proceedings as an abuse of process if it was satisfied that the continuation of the proceedings would involve unacceptable injustice nor unfairness. The grounds upon which a permanent stay might be granted were not limited to cases where the proceedings had been brought for an improper purpose, or where there was no possibility that the tribunal afforded the affected party a fair hearing. Mason CJ, Deane and Dawson JJ said (at 393):
[4] (1993) 177 CLR 378
In Jago v District Court of New South Wales (1989) 168 CLR 23 at least three of the five members of the Court clearly rejected ‘the narrower view’ that a court’s power to protect itself from an abuse of process in criminal proceedings ‘is limited to traditional notions of abuse of process’ Mason CJ considered that a court, ‘whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves’, possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v. Department of Labour:
‘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 the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.’
Deane J expressed a similar view in his judgment in Jago (supra) (at p 58):
“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.”
In her judgment in Jago (supra) (at p 74), Gaudron J stressed that the power of a court ‘to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands’. Her Honour added the comment ‘that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand’. Subsequently in her judgment, her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings.
It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v Spautz (1992) 174 CLR 509, at pp 519-520. When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition. (some footnotes omitted)
Although Brennan J was in dissent as to whether the proceedings had been properly stayed, his remarks are nevertheless of relevance to the present matter, as he said (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.
Further, the power to stay proceedings must only be exercised in exceptional cases as it amounts to refusal to exercise jurisdiction. As to this aspect of the matter, the High Court said in Williams v Spautz[5] (per Mason CJ, Dawson, Toohey and McHugh JJ) (at 519):
… 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, at pp 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, at p 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, at p 481 in a passage which Mason CJ quoted in Jago (1989) 168 CLR, at p 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 its 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, 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.’ (some footnotes omitted)
[5] (1992) 174 CLR 509
In this case, the defendants are charged with the crime of criminal defamation for which the maximum penalty is imprisonment for three years. Pursuant to the classification contained in s 5 SPA, those crimes are classed as minor indictable offences, that is, offences for which the maximum term of imprisonment does not exceed five years.
Mr Mancini argued that even if the DPP had the power to file an ex officio information, it was inappropriate to do so with respect to a minor indictable offence. He also submitted that such a power should not be exercised after a finding of no case to answer had been made at committal. The filing of the information in the circumstances of this case had the effect of interfering with the defendants’ right to a summary disposition of the matter, and that amounted to an abuse of process of the court. Mr Mancini also suggested that the finding of no case to answer at the end of the committal proceedings was effectively a dismissal of the charges.
I have some difficulty, however, in accepting this latter submission. The preliminary examination before a magistrate at committal does not involve any final determination of issues between the parties which would result in a plea of autrefois acquit being available to a defendant whom a magistrate refused to commit for trial. In this case, in accordance with usual procedure, there was no oral evidence given at committal, nor any findings as to matters such as credit. It is, however, unnecessary for me to resolve this particular issue as Mr Mancini indicated that he did not wish to pursue this aspect of the matter until he had obtained further and better reasons from the committal judge as to her no case finding, and primarily based his argument for stay on the prejudice to the defendants which flowed from being deprived of their right to summary disposition of their case. In addition, he complained that the interests of justice had not been maintained due to the lack of any committal hearing in respect of Counts 6 and 7 on the ex officio information.
Section 105 SPA sets out the procedure at preliminary examination. Section 105(4) SPA provides that:
A defendant who has elected for trial of minor indictable offence by a superior court may at any time before the conclusion of the preliminary examination withdraw the election … (emphasis mine)
Section 7 Juries Act 1921 deals with the rights of an accused to elect for trial by judge alone with respect to a trial before the Supreme or District courts, but s 7(2) provides that no such election may be made where the accused is charged with a minor indictable offence and has elected to be tried in the District Court.
Parliament clearly intended, therefore, that once an election had been made by a defendant, he/she would be bound by that election unless it was withdrawn in accordance with the provisions of s 105(4) SPA. This, in my view, is reasonable as it provides a defendant with ample opportunity to reconsider his/her situation before the matter is committed for trial in the superior court. I am unable to see any justification for giving a defendant a second opportunity to select the forum for trial once the matter has been committed for trial in accordance with his/her election.
In this case, the defendants elected for a trial by jury and that election was not withdrawn prior to the conclusion of the preliminary examination. There cannot, in those circumstances, be any unfairness to the defendants to permit the matter to proceed before a jury in accordance with that election. Furthermore, there does not appear to be any prejudice occasioned to the defendants with respect to the conduct of the trial. As Mr Hinton pointed out in his submissions, the defendants are not prevented from making any application for determination of legal issues such as severance, or challenging the joinder of charges. If any issues arise which would require the examination of witnesses in the absence of the jury, the defendants would be entitled to apply to the judge for a Basha[6] enquiry.
[6] R v Basha (1989) 39 ACrimR 377
It is true that the ex officio information is drawn in a different form from that filed in the Magistrates Court, and technically Counts 6 and 7 have not been the subject of a committal hearing. The content of the ex officio information appears, however, to be the same as that in the Magistrates Court (and Mr Mancini did not suggest otherwise). Counts 2 to 7 with respect to Stanfield and Utting as alleged in the ex officio information, simply replicate the charges in Counts 1 to 6 of the Magistrates Court information. Accordingly, the defendants should be well aware of the issues they are obliged to confront in the course of their trial in the superior court. There does not appear to be any prejudice to them as a result of the information being framed in a slightly different form from the earlier complaint in addition to which Mr Mancini did not suggest that the prosecution had no chance of success. Accordingly, in my view, no grounds have been made out to quash the proceedings on the ground of abuse of process.
Requirement of Consent of DPP pursuant to s 257 CLCA:
Section 257 CCA relates to the crime of criminal defamation and provides:
(1) A person who, without lawful excuse, publishes defamatory matter concerning another living person -
(a) knowing the matter to be false or being recklessly indifferent as to whether the matter is true or false; and
(b) intending to cause serious harm, or being recklessly indifferent as to whether the publication of the defamatory matter will cause serious harm, to a person (whether the person defamed or not), is guilty of an offence.
Penalty: Imprisonment for 3 years. …
Section 257(4), however, states that:
Proceedings for an offence against this section must not be commenced without the consent of the Director of Public Prosecutions.
And sub-section (5) provides:
In any proceedings for an offence against this section, a certificate apparently signed by the Director of Public Prosecutions certifying his or her consent to the proceedings is, in the absence of proof to the contrary, to be accepted as proof of the Director’s consent.
In this case, the information laid in the District Court by the DPP does not bear an endorsement pursuant to s 257(4) CLCA such as appeared on the information filed in the Magistrates Court. Mr Mancini acknowledged, however, that the information had been signed by Mr Pallaras and that he was the DPP. He submitted, however, that the endorsement of the consent of the DPP was a specific procedural pre-requisite to the filing of the information and in the absence of compliance with that statutory provision, the proceedings were rendered invalid.
The authority to prosecute proceedings has been discussed in a number of cases. In Burgoyne v Earle[7], the respondent was charged with four offences relating to the unlawful possession of protected fauna. At the trial, the magistrate held that the respondent had no case to answer as the prosecution’s authority to lay the complaints had not been proved as required by s 26 of the Wildlife Conservation Act 1950 (WA). The magistrate also held that he had no authority to allow the prosecution to re-open its case to prove the authority. McKechnie J, however, allowed the appeal, and said:
There is always judicial discretion to allow the prosecution to re-open a case and this discretion should be exercised whether the issue is a procedural matter rather than one which goes to the merits of the defence.
[7] [1999] WASCA 154
In Palos Verdes Estates Pty Ltd v Carbon[8], the appellant was convicted by a magistrate of causing pollution, contrary to s 49(1) of the Environmental Protection Act 1986. On appeal, the appellant argued (inter alia) that the consent of the Minister as required by s 114 of the Act had not been proved. The Full Court of the Supreme Court of Western Australia held (inter alia):
Once an objection was taken that consent to the prosecution had not been proved, it was necessary to properly prove consent. If no objection had been taken, consent could be presumed.
[8] (1991) 6 WAR 223
Markham CJ said (at 229):
The purpose of provisions requiring the consent of the Attorney-General or a Minister to institution of a prosecution is to ensure that no-one is harassed by a frivolous prosecution, that the prosecution is sanctioned by a responsible person. See McDonnell v Smith (1918) 24 CLR 409 at 411, per Richard J.
In MacCarron v Coles Supermarkets Australia Pty Ltd[9] a complaint was brought against Coles for a breach of the Occupational Safety & Health Act 1984 (WA). The bringing of the complaint was authorised under a statutory delegation given at a time when the office of the commissioner making the delegation had been vacated by effluxion of time. On a no case submission, the magistrate found that there was a case to answer on the merits but dismissed the complaint on the grounds that it was not properly authorised. Nearly nine months later the Validation Act (WA) was passed. On appeal, the Full Court of the Supreme Court of Western Australia held that the granting of the consent to the institution of a complaint was not an element of the offence and the standard proof of consent was on the balance of probabilities.
[9] (2001) 23 WAR 355

In Dever v Creevey; ex parte Creevey[10], the court was concerned with proceedings for an offence against the Fair Trading Act 1989 (Qld). The Full Court of the Supreme Court of Queensland held that:
1.    Where an issue as to the existence of the requisite consent to prosecute was raised, the prosecution was obliged to prove it if its case was not to fail.
2.    Subject to questions of costs, leave would normally be granted to the prosecution to re-open its case when it had initially overlooked proof of such consent.
3.    That once proceedings had been instituted with the commissioner’s consent, they were capable of amendment provided they were not thereby converted into proceedings instituted without such consent.
4.    That in the circumstances, there was and had never ceased to be a consent of the commissioner to the proceedings against the appellant.
[10] (1993) 1 QR 32
In Schulz v Virgin[11], Walters J considered s 160 of the Health Act 1935-63 which stated that except where otherwise provided no proceedings should be instituted under the Act except by or on behalf, or with the authority of the Central Board of Health or the Local Board of Health for the particular district. A complaint for an offence against the provisions of that Act was made in a court of summary jurisdiction by a health inspector, but no evidence was adduced by the prosecution to show that the complainant was authorised to make the complaint. At the close of the case for the prosecution, counsel for the defendant submitted that the complaint should be dismissed because there was no evidence that the complainant had been authorised to institute the proceedings. No application was made by counsel for the complainant to re-open the case for the prosecution to enable the authority to be proved. The justices constituting the court, having held there was a case to answer, the defendant tendered no evidence and was convicted. On appeal, it was held:
1.    That it was necessary for the complainant to prove that he was authorised to institute the proceedings.
2.    That had counsel for the complainant applied to re-open the case for the prosecution to prove that the complainant was so authorised, it would have been proper for the justices to have granted the application.
3.    That as no such application was made that the complaint should have been dismissed for want of necessary proof.
[11] (1966) SASR 94
Section 257(4) CLCA precludes proceedings for criminal defamation being instituted without the consent of the DPP, undoubtedly for the reasons expressed by Markham CJ in Palos Verdes Estates Pty Ltd v Carbon (supra) that is, “to ensure that no-one is harassed by a frivolous prosecution”. Although the certificate referred to in sub-section (5) is not endorsed on the ex officio information, I do not consider that is fatal to the proceedings. It is necessary for the prosecution to prove that the DPP consented to the prosecution and the certificate referred to in s 257(5) CLCA is an aid to that proof. That is, however, simply a procedural requirement. In this case I am satisfied that the ex officio information was signed by Mr Pallaris in his capacity as DPP, and the defendants do not dispute that Mr Pallaris is the DPP. I am, therefore, able to infer from the fact that the DPP signed the information that he consented to it being laid. Furthermore, the proceedings in the Magistrates Court bore the requisite endorsement and for all intents and purposes are the same proceedings as are now before the court.
In any event, on 31 May 2007, subsequent to the reservation of judgment with respect to this application, a certificate was filed in this court in which the DPP certified that he had, on 12 September 2006, consented to the commencement of the proceedings against each of the defendants in accordance with s 257 CLCA. In my view, that is sufficient compliance with s 257 CLCA and the lack of certification on the information as originally filed does not render the proceedings invalid.
Conclusion:
No grounds have been established to support the applications filed by Stanfield and Utting to quash or dismiss the proceedings. Those applications are therefore refused.