Stolpe v The Queen

[1993] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S85 of 1992

B e t w e e n -

OWEN STOLPE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

Stolpe 1 20/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 9.33 AM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:  May it please the Court, I appear with my

learned friend, MR S.J. ODGERS, for the applicant.

(instructed by Brennan Blair & Tipple)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR F.D.L. HOLLES, for the Crown.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions.

MR NEIL:  Your Honours, our submissions are set out in the

application book. Could I indicate to the Court

that one matter about which we complain is the fact
that the Court of Criminal Appeal really did not
see the impact of the problem. What has happened here is that the police have brought a charge and there has been no committal. There has been a

discharge of the defendant at committal in
circumstances where it is open to the magistrate to

commit for any offence available on the evidence.

Then the police, dissatisfied with that, seek from

the Attorney General an ex officio indictment for a
charge on the same facts but a different legal

charge.

DAWSON J: But what is the difference between 178A and

178BA?

MR NEIL:  Your Honour, one is fraudulent misappropriation of

monies collected or received and the other is

obtaining money by deception. In substance, we

would have thought not all that much difference, in

the general ballpark, although the Court of

Criminal Appeal assumed there was some greater

degree of difference. The Attorney General

declined to provide an ex-officio indictment, but

the police, dissatisfied with that decision, simply

brought about another committal proceeding and had

the appellant, to use the words of the ordinary

layman, dragged through the courts again.

In our submission this involves not merely

inefficiency, as described by the Court of Criminal

Appeal at page 16 of the appeal book where judgment, said:

I think it may be right to say that the fact

that two sets of committal proceedings have

been held indicates some inefficiency on the
part of the prosecuting authorities but I fail

altogether to see in what has happened any

impropriety at such a level as to justify the

relief claimed.

Stolpe 2 20/5/93

The judge before whom the stay

application came had said, as appears in the appeal

book at page 11 line 25:

he was inclined to think there was some

evidence of improper motive on the part of the prosecution in relation to the bringing of the

second committal proceedings, and third, that

he thought the procedure adopted by the

prosecution in having the committal

proceedings was from a common sense point of

view somewhat oppressive.

DAWSON J:  Was any application made for the entry of a

nolle?

MR NEIL:	I do not believe so.
DAWSON J:	Then the Attorney General must have signed the

indictment.

MR NEIL:  I have to check that point. I think in

New South Wales the Director of Public Prosecutions

signs the indictment, Your Honour.

DAWSON J: Whoever does, did.

MR NEIL: Yes. But Your Honour - - -

DAWSON J: Well, that being so, of what relevance are the

committal proceedings?

MR NEIL:  A fair assumption can be made that it is treated

as part of the ordinary process once there is a

committal, that the indictment goes forward to

trial - somebody signed it.

DAWSON J:  Not necessarily.

MR NEIL: In the ordinary course, Your Honour.

DAWSON J: Yes. But you say this was not the ordinary

course.

MR NEIL: Yes. Because the ordinary course should have

stopped at the end of the first committal. You see

it appears at page 14 - this is the evidence - the

solicitor, line 15, had a discussion with the

relevant detective and he said:

We want to show you that the second committal

is just a rehash of the first one. The

detective replied, "You betcha. We are going again just because the first magistrate threw the first one out".

Stolpe 3 20/5/93

DAWSON J:  What I am getting at is if you had applied for a

nolle and it had been considered and rejected and

therefore the Director of Public Prosecutions had

signed the indictment and it went ahead, you could

not complain, could you?

MR NEIL: Well, we may not have been able to complain,

Your Honour, but that is not what the situation is.

DAWSON J:  The situation is an indictment was signed.

MR NEIL: Yes, now the question, Your Honour, is: firstly,

at the time of the Court of Criminal Appeal hearing

there was some doubt on the law as to whether

antecedent actions, or behaviour, could be said to

ground a stay. That seems to be no longer a

problem, there is power. The trial judge had

thought he did not have power, or the judge in the

district court had thought he did not have power.

The Court of Criminal Appeal assumed that he did

have power but said on no view of the facts could

this cause a problem.

In our submission, if there has been an

antecedent, an earlier set of behaviour that is

oppressive, the court not only has 'power, but in

our submission should, or at least there should be

very serious consideration given to staying a trial

even if subsequently in what we would submit would

be the ordinary course of events following the

second committal, the authorities have signed an

indictment.

MASON CJ: But the question is, to what extent was it

oppressive?

DAWSON J: If, for example, the Attorney General had filed

an ex officio indictment under 178BA after the

defendant had been discharged at the committal, you

would not say that would be oppressive, would you?

MR NEIL:  We probably would, but we certainly cannot do

anything about it.

DAWSON J: All that has happened in addition to that, there

have been additional committal proceedings.

Admittedly there is some expense involved in that

and there is some degree of disadvantage anyway,

but can you say it is oppressive?

MR NEIL:  Oh yes, Your Honour, because you should not have

to have two. In England - especially as a fair

assumption can be made, we would submit, that the

Attorney General refused this on good policy

grounds. We do not know what, but he may well have

refused, one can imagine, because, "Look, we do not

want to put this man through this again. The

Stolpe 20/5/93

police should have got their act together. It is

unfair, it is not warranted in the public interest.

I will not agree." This case involves an

arrogation of power by the police to themselves.

DAWSON J: But, you see that is what I cannot understand.

He declined to file an ex officio indictment but, not having to do so, he or his delegate signed an indictment.

MR NEIL: Well, Your Honour, in our submission one can

clearly see that an ex officio application is made,

it is refused. There is a committal. Presumably

the view is then taken, "Well, so be it, there has

been a committal, there is nothing to suggest that

there is anything out of the ordinary" and later

simply putting forward the case by way of

indictment. In our submission, the trial should

not be allowed to proceed simply because they have

got away with having two committals and there is an

automatic signing of an indictment thereafter. In

England - - -

DAWSON J:  I hope it is not automatic.

MR NEIL: Sorry?

DAWSON J:  I hope it is not just automatic.

MR NEIL: Well, one would hope not but it is far more likely

to be the case, we would submit, where there has

been a committal and where an ex officio is sought,

where everyone knows that is - and that has been

described in this Court itself as an exceptional

procedure. In the authorities that we mention, in

England in particular, in the case of the Grays

Justices which is in (1982) 1 QB 1239, the

authorities are considered and there is not a case

quite like this.

DAWSON J: But in any event in England, the procedure is

different, you cannot indict a person unless he has
been committed.	The committal proceedings are an

integral part of the prosecution.

MR NEIL: Well, Your Honour, there has been consideration of

similar problems in England - none on all fours.

But as pointed out at page 1244 and 1245 in Grays,

there is reference to a number of other cases where
the prosecution had brought, in effect, multiple
committal proceedings. In one case the Brentford

Justices, Ex parte Wong, there is reference to the

fact that it was sent back to the magistrates to

consider whether or not they ought to prevent this

occurring.

Stolpe 5 20/5/93

The court in this case pointed out that in

addition to the fact the information had been laid
before a decision to prosecute had been taken, what

happened there the prosecutor had X months to

decide to prosecute. He filed an information as a

protective measure and then made his decision after

the time had elapsed that he would prosecute. It

was said that it should go back to the magistrates

to consider whether that was unfair.

Lord Justice Donaldson had made it clear in his judgment that were it a matter for him he would

unhesitatingly exercise his discretion against the

prosecution.

MASON CJ: But that was a case in which no decision to

prosecute had been taken, but nonetheless an

information was laid.

MR NEIL:  Yes, Your Honour. Yes. Then the decision was

made later once the time had elapsed. Then,

Your Honour, at page 1247 there is this reference

to a passage in the Horsham judgment, at line D:

The suggestion now of course is that he should

face yet a second batch of proceedings.	To
grant such an indulgence would, in my

judgment, encourage poor preparation with a

resultant waste of time and money. To allow

prohibition in this case should bring home to

the prosecution the desirability of following

the advice which appellate courts have given

again and again. The prosecution must direct

its energies to the simplification of cases

they desire to present ..... I would allow this

application and order the relief sought on the

grounds that the prosecution's conduct in

seeking to bring on again what were basically

the same charges, although simplified and

shortened, is vexatious and oppressive and can

therefore be properly categorized as an abuse

of the process of the court.

Could I hand to Your Honours a photocopy of

the decision of this Court in Barton v R, this is

32 ALR 449 - I have provided my learned friend with

a copy.

MASON CJ:  It is reported in the Commonwealth Law Reports,

is it not?

MR NEIL: Yes, I am sorry, Your Honour. I asked for

photocopies and I have been provided with these

photocopies. I do apologize, Your Honour. I will

not go into detail, but this judgment surveys the

history of the common law prerogative power to lay

an ex officio indictment and deals with committal

proceedings and at page 461, dealing with a case

Stolpe 6 20/5/93

where there was no committal, there is reference

to, at the end of the page at line 45:

On the contrary, they show that the principal

purpose of that examination is to ensure that

the accused will not be brought to trial

unless a prima facie case is shown or there is

sufficient evidence to warrant his being put

on trial or the evidence raises a strong or

probable presumption of guilt. For this

reason, apart from any other, committal

proceedings constitute an important element in

the protection which the criminal process

gives to an accused person.

The scope of this protection is

diminished to some extent by the circumstance

that the Attorney-General can file an ex

officio indictment after the magistrate has

found that there is no prima facie case or

after he has discharged the accused ..... But in

general, once the magistrate has so found,

that is an end of the matter, this case being

a rare exception to the general rule.

Then, the next paragraph is important:

Lord Devlin in The Criminal Prosecution

in England was able to describe committal

proceedings as "an essential safeguard against

wanton or misconceived prosecutions" ..... This

comment reflects the nature of committal

proceedings and the protection which they give

to the accused, viz the need for the Crown
witnesses to give their evidence on oath, the
opportunity to cross-examine, to present a

case and the possibility that the magistrate

will not commit.

DAWSON J: But, (a) the position is different in England -

if he is not committed he cannot stand trial; not

so in New South Wales.

MR NEIL: Yes, Your Honour, but that passage - - -

DAWSON J:  And the protection which is afforded is by

ensuring that the evidence is marshalled and there
to be considered. But the decision to prosecute is
the decision of the Director of Public

Prosecutions.

MASON CJ:  And that is what Barton recognizes.

MR NEIL: Indeed, Your Honour, but that passage refers to -

that is not referring to the English situation,

it is referring to here in Australia that one of

the protections involved in committal proceedings

Stolpe 7 20/5/93

is the possibility that the magistrate will not

commit. In our submission, there has been a

fundamental change between the relationship between

the citizen and the police and the Crown - to the

detriment of the citizen, to the increase of police

power, and to the setting aside, or reducing, the

Crown's role that was traditionally an exception in any case.

If every time there is a prosecution and it

fails at committal level and the police are

dissatisfied, they could use this as a precedent to

just simply bring another proceeding, or they could

just ignore the decisions of the Attorney General.

One would have thought that the pragmatics are that

somewhere, it has not happened yet, if an Attorney

General decides not to grant an ex officio

indictment there would be some government mechanism

whereby the Police Minister would see that the

police did not go off and simply reinstitute

proceedings. But in the absence of any such

arrangements, in our submission, it is for the

courts to deal with these matters.

MASON CJ: Is it your proposition that if a magistrate

refuses to commit, it automatically constitutes
oppression if the defendant is recharged in
relation to offences when those charges could have

been the subject of amendment in the initial

committal proceedings - without more, that that

constitutes oppression?

MR NEIL:  We would say that, Your Honour, because it is open

to the magistrate to commit on any charges - you

do not even have to necessarily amend the charge.

The prosecution can say, "Look, at the end of our

committal proceedings we have not shown that

charge, we have shown this, please commit." And if they do not urge or succeed in obtaining that, then if they have made a mistake and have not got

themselves properly apprised of their own case, it

run this properly". It is very oppressive to have	is oppressive to then say, "Well, we did not quite
multiple litigations.

DAWSON J: If that is oppressive, what is oppressive is the

second set of committal proceedings, and a court

has power to stay those. A magistrate may not, but

the court does and that is the point at which you
claim oppression. But it is very difficult to see

how a prosecution which is founded on the evidence

can be oppressive in itself, merely because there

was a second set of committal proceedings.	You
have got past that stage then.

MR NEIL:  The Grassby case appears to preclude the

magistrate from making the decision.

Stolpe	20/5/93
DAWSON J: That is right.
MR NEIL:	The question is whether or not, even if you can

have a fair trial isolated by itself, there is a

power to stay because of some prior oppression.	We
say - - -

DAWSON J: It seems to me there are two things one could

have done. One could have applied to stay the

committal proceedings, to a superior court, or if

those committal proceedings had resulted in a

committal for trial there could have been an

application for a nolle. But once you get to the

trial stage - I am not saying it could not happen -

it is very difficult to see why a mere second set

of committal proceedings make the actual trial

oppressive.

MR NEIL: They do not, Your Honour, but the law now is that

if there has been some prior oppression that it is

considered sufficient in the question of public

interest to prevent what would otherwise be a fair

trial going ahead, then the court should intervene.

DAWSON J:  I will put it another way. It is difficult to

see how it makes the actual trial oppressive.

MR NEIL:  I am not saying it does, Your Honour. We are

saying that this should not be allowed to happen,

and the judge thought he did not have power to deal

with the issue, but he clearly made it clear that

he was worried. The Court of Criminal Appeal

assumed he had power, absenting any question of the

new trial being unfair, but said on no view of the

facts would this be a problem. We say they simply

missed the point entirely.

It is as if we never had a case before the

Court of Criminal Appeal, and to describe it as

inefficiency, when the English courts are, at least

in this arena - there might be different facts in

there but at least they take it seriously. I am

not saying that the Court of Criminal Appeal did

not take it seriously, but they failed to take it

seriously enough, they just simply missed the

point.

Our point is this, with respect, that special

leave should be granted so this matter can go back

to the judge and he can decide whether what would

seem to be his provisional views are still to be

maintained. It is not a case of the new trial

likely to be.	We do not mount that argument, Your
Honour.	We say that you should not have police

going around saying "You betcha, we are just going

to put him up again, even where we cannot get an ex

officio indictment". In a broad sense of the term

Stolpe 9 20/5/93

it is a constitutional issue involving the powers

inter se of the police, the citizen and the

Attorney General in our community.

MASON CJ: Yes, but you say that the Court of Criminal

Appeal, or the Court of Appeal, missed the point,

but really the decision hinges on the paragraph at

the top of page 15 where Mr Justice Priestley drew

a distinction between the English cases in which a

stay had been granted where, obviously in his view,

there was a very strong element of oppression

arising from the circumstance that repeated

committal proceedings on the same charges had been

involved, and then he proceeded to point out what

was involved in the present case. So that there

was an acceptance that the court could grant a stay

in an appropriate case where there was significant

and strong oppression.

MR NEIL:	When one looks at the English cases, some of them were considered in the case of delay of only about two years, some of them were considered in cases of
more than one committal - but not four or five or
six. When one analyses them, it is not quite correct to say that they show, in some cases, eight
or nine and a horrible series of committals. The
courts over there have come in at a much earlier
stage that would be implied from the strict words
of that paragraph.  We say that the courts in
England would at least have been troubled by this
matter, as was the judge below.

MASON CJ: But if you go on you will see that His Honour

directed attention to the particular circumstances

of this case, in which the magistrate drew the

attention of the prosecuting authorities that other

charges might be open, presumably on the facts that

were adduced in evidence before him.

MR NEIL:	The prosecution should have jumped up and said,
"Please, we want to submit.  We want you to commit
on those", not go home and come back and say "Oh,
well, we are in trouble.  We are at risk, perhaps,
of a slap over the wrist.  We will start again, and
bring him through the courts again." At page 16,
line 25, Your Honour, our concern is that the Court
of Criminal Appeal says:

I am of the view that on any view of the facts

in other words, the facts that we, with respect,

submit startlingly cry out for intervention have

been seen to be of no concern. We would rather

take up the points that have been referred to and

simply say the other side of the coin is the

correct situation, the way the matter should be

Stolpe 10 20/5/93

analysed. It is a simple matter, Your Honour, yes,

but it is a very important matter.

MASON CJ:  Mr Neil, c.an you just give me some indication of

what was involved here.	How long did the committal
proceedings take?

MR NEIL:  Some days, I would have to say. Not in terms of

weeks and the like, but -

MASON CJ: Yes.

MR NEIL: They were not short.

DAWSON J: That is the first set.

MASON CJ: That is the first set of committal proceedings?

MR NEIL: Yes, Your Honour.

DAWSON J: They were said to cost $36,000.

MR NEIL:  I was not in them and neither was my good junior,

Ms Odgers.

MASON CJ:  One gets the impression if you had been in them,

Mr Neil, the outcome might have been different.

MR NEIL:  We would have won, again.

MASON CJ: Yes, but I am not sure in what respect the

outcome might have been different.

MR NEIL: Well, Your Honours, there were not insignificant

matters and the citizen has had to go through them

again when the -

MASON CJ:  And what about time span, what was the delay

between the first committal proceedings and the

second committal proceedings?

MR NEIL: Well, Your Honour, 12 May 1988 was the dismissal

of the first charges and the next one was committed

on 17 July 1989.

DEANE J: It commenced on 10 July.

MR NEIL:  Thank you, Your Honour. My impression is that

somewhere in the range of about a week or so these

committals took, I will just have to double check.

But it was not insignificant, it is not as if it

was a half a day or something like that, and he has

had to go back again. Three days, thank you, my

learned friend says, as to one.

DEANE J: What, that was the 30,000 plus one, was it?

Stolpe 11 20/5/93

MASON CJ:  The first one, was it?

MR BLANCH:  The second one, I think, Your Honours. On page

56, which is page 2 of the - I am sorry, the pages

on my book are different from the pages on my

friend's book.

MR NEIL:  The second one took three days, Your Honour. The

first one apparently had taken four days. It

appears at line 30.

DEANE J:  You do not get much for $30,000 in the

Magistrates Court of New South Wales, do you?

MR NEIL: Apparently not, Your Honour. So it is four days

and three. The scope of the question of whether

this type of matter comes within the purview of

something which, on a view of the facts, could

warrant a stay is an important matter on special

leave, and the administration of justice question

is secondly an important matter. In our respectful
submission this man should have an opportunity to
go back to the district court judge and seek to

persuade the judge to adhere to what seems to be a

provisional view and the Crown can have an

opportunity to put the other matters, so that a

citizen is not faced with this type of thing in the future. In other words - "You betcha" - the police

will all be doing it. If it please the Court.

MASON CJ:  The Court need not trouble you, Mr Blanch. The

Court is of the opinion that, in the particular

circumstances of this case, the proposed appeal

does not enjoy sufficient prospects of success to

warrant the grant of special leave to appeal.	The
application is therefore refused.

AT 9.58 AM THE MATTER WAS ADJOURNED SINE DIE

Stolpe 12 20/5/93