The Queen v Leece, John David
[1996] FCA 268
•22 APRIL 1996
C A T C H W O R D S
CRIMINAL LAW - Crown appeal against order for stay of first two counts in an indictment - whether order for stay should have been made at the request of the Crown - effect thereof
APPEAL - Crown appeal against order for stay of first two counts in an indictment - whether order made by consent
PRACTICE AND PROCEDURE - whether order for stay of first two counts in an indictment is a final or interlocutory order - whether leave to appeal necessary
Crimes Act 1900, s.30
Federal Court of Australia Act 1976, ss. 24(1A), 30A
R v McGraw (1991) 66 CC (3rd) 517
Doney v The Queen (1990) 171 CLR 207
Rogers v Curnow (1976) 22 SASR 204
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 676
Miki Shoko Co Ltd v Merv Brown Pty Ltd (1988) ATPR 40-858
Vink v Shering Pty Ltd (No 1) (1991) ATPR 41-064
The Queen v Davies (unreported, Wilcox, Burchett and Hill JJ, 23 June 1995)
Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35
Williams v Spautz (1992) 174 CLR 509
Jago v District Court of NSW (1989) 168 CLR 23
Barton v The Queen (1980) 147 CLR 75
Walton v Gardiner (1993) 177 CLR 378
Ridgeway v R (1995) 129 ALR 41
R v Smith & Ors (1994) 73 A Crim R 384
McPherson v Brown (1975) 12 SASR 184
Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439
R v Tait and Bartley (1979) 24 ALR 473
Everett v The Queen (1994) 181 CLR 295
Wade v Hunter (1949) 336 US 684
United States v Jorn (1971) 400 US 470
Illinois v Somerville (1973) 410 US 458
Regina v McAnish and Cook (1973) 15 CCC (2d) 494
Regina v Middlesex Quarter Sessions (Chairman); ex parte Director of Public Prosecutions [1952) 2 QB 758
In re Harrington [1984] AC 743
Benson v Northern Ireland Road Transport Case [1942] AC 520
King v Wilkes (1948) 77 CLR 511
Duchess of Kingston's Case (1774\6) 20 Howell St Tr 355
Davern v Messel (1984) 155 CLR 21
Haynes v Davis [1915] 1 KB 332
Regina v Lawson and Slavnik (1975) Crim LQ 287
Re Bond (1936) 66 CCC 271
Regina v Riddle (1979) 100 DLR (3d) 577
Flatman v Light [1946] KB 414
United States v Di Francesco (1980) 449 US 117
Green v United States (1957) 335 US 184
Carsey v United States (1967) 392 F 2d 810
Rogers v The Queen (1994) 181 CLR 251
Gilchrist v Gardiner (1891) 12 NSWLR (L) 184
Mann v Jacombe (1960) 78 WN (NSW) 635
Poole v The Queen [1961] AC 223
R v Saunders [1983] 2 Qd R 270
R v Jell; ex parte Attorney-General [1991] 1 Qd R 48
Castanho v Brown and Root (U.K.) Ltd [1981] AC 557
R v Ferguson; ex parte Attorney-General [1991] 1 Qd R 35
Clyne v NSW Bar Association (1960) 104 CLR 186
Connelly v Director of Public Prosecutions [1964] AC 1,254
Reg. v. Jewitt [1985] 2 SCR 128
Moevao v Department of Labour [1980] 1 NZLR 464
Bradshow v Vaughton (1860) 30 LJCP 93
Tunnicliffe v Tedd (1848) 5 CB 553
R v Holder (1983) 3 NSWLR 245
Rohde v Director of Public Prosecutions (1986) 161 CLR 119
Williams v The Queen (1986) 161 CLR 2778
R v Sneesby [1951] QSR 26
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Barrow v Bankside Agency Ltd [1996] 1 WLR 257
Tampion v Anderson (1973) 48 ALJR 11; 3 ALR 414
Double Jeopardy, M.L. Friedland, (1969)
Trial by Jury, Sir Patrick Devlin, (1956)
The Effect of a Nolle Prosequi in Relation to the Action for Malicious Prosecution, G.P. Donovan, (1939) 12 ALJ 457
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
THE QUEEN v. JOHN DAVID LEECE
No. ACT G20 of 1995
CORAM: Gallop, Burchet and Hill JJ.
PLACE: Canberra
DATE: 22 April 1996.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G20 of 1995
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND:JOHN DAVID LEECE
Respondent
CORAM: Gallop, Burchett and Hill JJ.
DATE: 22 April 1996
PLACE: Canberra
MINUTES OF ORDER
THE COURT ORDERS THAT:
(1) The appeal be allowed;
(2)The orders made by Higgins J. staying the prosectuion on counts one and two in the indictment be set aside.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G20 of 1995
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND:JOHN DAVID LEECE
Respondent
CORAM: Gallop, Burchett and Hill JJ.
DATE: 22 April 1996
PLACE: Canberra
REASONS FOR JUDGMENT
GALLOP AND HILL JJ: The Crown appeals to this Court from the judgment of a judge of the Supreme Court of the Australian Capital Territory ordering a stay of further proceedings in that Court in respect of two counts in an indictment presented against the respondent, John David Leece ("the accused").
The first of the counts stayed charged that the accused had:
"... made a threat to Kelly [sic] Lesley Buttriss to kill the said Kelly Lesley Buttriss intending the said Kelly Lesley Buttriss to fear that the threat would be carried out or being reckless whether or not the said Kelly Lesley Buttriss would fear that the threat would be carried out and made the threat without lawful excuse and in circumstances in which a reasonable person would fear that the threat would be carried out."
The second count alleged further:
"...THAT on the 16th day of July 1993 at Canberra aforesaid John David Leece assaulted Kerry Lesley Buttriss."
There were, in addition, three other charges, namely:
"...THAT on the 16th day of July 1993 at Canberra aforesaid John David Leece wilfully and unlawfully damaged property, to wit, two windows and one gyprock wall belonging to the Australian Capital Territory.
AND FURTHER THAT on the 16th day of July 1993 at Canberra aforesaid John David Leece wilfully and unlawfully damaged property, to wit, one telephone belonging to Telecom Australia a public authority under the Commonwealth.
AND FURTHER THAT on the 16th day of July 1993 at Canberra aforesaid John David Leece used a dangerous weapon, to wit, a Berretta single-barrel 12 gauge shotgun serial number 52366 that had been modified otherwise than in accordance with the authority of the Registrar of Weapons."
As the circumstances which led to the stay being granted are relevant to the submissions for the accused, it is necessary to set them out in some detail.
The accused had been committed for trial on five counts following proceedings in the Magistrates Court of the Territory. Before the indictment had been presented and the accused arraigned, counsel for the accused raised three complaints concerning the indictment. Two of those complaints are irrelevant to what subsequently happened. The third complaint went to the joinder of counts in the indictment.
There were two prongs to the attack. The first, which was dealt with summarily, depended upon whether in excess of three counts had been inserted in the same indictment against the accused for any number of distinct offences of the same kind committed against the same person. There were not. The second attack depended upon the common law power of the Court to quash an indictment containing more than one count if the Court was of the view that the indictment was unfair to the accused.
Counsel for the accused submitted to his Honour that the multiple counts in the indictment created prejudice to the accused because evidence that could be led in respect of counts three, four and five (which related to damage alleged to have been caused by the accused to certain property after the events with which the first two counts were concerned), might enable a jury to draw an inference prejudicial to the accused in respect of the first two counts.
In the course of exploring this submission, the Crown volunteered an outline of the evidence which it proposed to lead on the first two counts by reference both to the transcript of the committal proceedings and a proofed statement from Ms Buttriss. His Honour had both these documents before him.
As summarised by his Honour, the evidence which the Crown prepared to lead was to the following effect.
It was alleged that the accused's wife, Ms Buttriss, had been aware that the accused had been in possession of a rifle before 16 July 1993. She had disabled it in December 1992 and the accused was aware of that fact in January 1993. After indicating that the relevance of these facts was not entirely clear, his Honour continued:
"On 16 July 1993, at about 9.30am, the accused awoke in an upset state caused by some sort of dispute concerning his employer. He had been unable to obtain some sort of a tax rebate to which he considered he was entitled.
He left home at about 9.45am. About 2.00pm he returned home. He told his wife that he had been 'at the pub getting pissed'. Indeed, his appearance was consistent with his statement. Ms Buttriss made him a sandwich. The accused repeated that he was still 'pissed off' about not being paid $58.00 by the Taxation Department. He said, after eating the sandwich, that he intended to return 'to the pub'. She advised him that she was going out to pay some bills. She did so.
She was frightened of the accused at this time ..."
After commenting that evidence of the state of mind of Ms Buttriss, unsupported by other evidence, might not have been admissible, his Honour continued:
"However, she returned home about 6.00pm. The accused was not there. About 7.50pm she heard a crashing noise outside. She went to investigate. She discovered that the accused was in the process of driving his motor vehicle through the rear gates of the premises without first opening them.
The accused alighted from the car and staggered towards the laundry. There was a further crashing sound. Apparently, he crashed into and upset the garbage bin. ... He was, at this time, swearing and yelling. He entered the house via the laundry. There was nothing except general drunken displeasure at the world at large being conveyed at this time."
Ms Buttriss proceeded, as best she could given their condition, to close the rear gates. She had in mind that their dogs might escape if the gates were not closed. She also had in mind to tidy the yard where rubbish had been scattered. As she was closing the rear gates, she heard the back door slam. She saw her husband standing outside the door near or under a fernery. The following exchange took place:
He said to her: What are you doing?
She said:It's me John. I'm closing the gate.
He said (loudly): Come here, come here. We've got to talk.
She said (also
loudly):Hang on, I'm closing the gate. I've got to close the gates. I'll talk to you in the morning, when you're sober.
He said:Come here, I'm going to end this now.
At this point Ms Buttriss observed that there was an object which resembled a gun in his left hand. It had a 90 degree bend in it. He then said, 'Come here, I'm going to fix you once and for all'.
She then heard a metallic clicking noise and fled. Ms Buttriss feared, at that point, that the accused had a gun and might discharge it at her.
Police later attended the house. They found the accused in fact had a sawn-off single-shot shotgun. Police also found some unused shotgun shells. There had been a single blast fired within the house which had been aimed, it seems, at the telephone.
In the course of discussion concerning the evidence which the Crown proposed to adduce, his Honour questioned whether the words, said to have been used by the accused, constituted a threat within the meaning of s30 of the Crimes Act 1900 ("the Act"). That section provides:
"Where
(a)a person makes a threat to another person to kill that other person or any third person:
(i)intending that other person to fear that the threat would be carried out; or
(ii)being reckless whether or not that other person would fear that the threat would be carried out; and
(b)the threat is made:
(i)without lawful excuse; and
(ii)in circumstances in which a reasonable person would fear that the threat would be carried out;
the first mentioned person is guilty of an offence punishable on conviction, by imprisonment for ten years."
Section 30 stands in contrast to s31 of the Act which provides for a similar offence where the threat is "to inflict grievous bodily harm". His Honour also questioned at an early stage in the recital of the evidence whether the use of the words "Come here, I'm going to fix you once and for all" and the demonstrating of the gun constituted a common assault. His Honour expressed the view that the authorities were dead against such a submission.
In the debate that followed between his Honour and counsel for the Crown, his Honour reiterated the view that he could not see from the evidence either an assault or a threat to kill. Initially his Honour said that he could not rule on that until he heard the evidence. Counsel for the accused then indicated that subject to a ruling by his Honour, the accused would plead guilty to the remaining three counts, reiterating that he
did not want an indictment in the terms presented to be read to the jury on account of the prejudice that might be sustained by the accused.
His Honour then expressed the view that if no other evidence were adduced the words used would not constitute a threat to kill. The Crown then sought an adjournment to assess its position in respect of the indictment. After the adjournment, counsel for the Crown asked whether his Honour was making a formal ruling. To this his Honour replied, "do you want me to make a formal ruling?"
Counsel for the Crown indicated that a formal ruling would be desirable. His Honour then said:
"Yes. Well, I will make a formal ruling that in my opinion the evidence proposed to be led by the Crown, as outlined by Mr Madden, either as given in the transcript - by reference to the transcript in the Magistrates Court upon which the committal proceedings were based or as outlined by reference to a statement of the complainant - as I will call her - would not constitute a threat to kill within the meaning of section 30 ...".
His Honour offered to elaborate on that and counsel for the Crown indicated that the Crown would wish reasons to be published at a later stage.
After a further short adjournment, counsel for the Crown said:
"Your Honour, the Crown presents the indictment and invites your Honour, in view of the previous ruling, to stay counts one and two, and invites the Court to arraign the accused on counts three, four and five."
His Honour then asked counsel for the accused whether he was content with that course and received an affirmative answer.
Subsequently his Honour published reasons. In those reasons his Honour indicated that counsel for the accused had raised a question as to whether, if proved, the facts set out in his Honour's judgment which had been quoted earlier, would found a prima facie case for an offence against s30 of the Act. As the previous narration makes clear, at no time did counsel for the accused raise the matter.
In his published reasons his Honour reviewed a number of authorities, including authorities in Canada, and particularly R v McCraw (1991) 66 CC (3rd) 517 where Cory J (at 525) said:
"... the nature of the threat must be looked at objectively, that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in the light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.
The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?"
The appeal proceeded on the basis that with one exception what was said in McCraw sufficiently expressed the relevant test to be applied to a charge under s30. The exception is that the Canadian Criminal Code is concerned with the making of a threat which may either be to cause death or to cause serious bodily harm. Section 30, on the other hand, is concerned only with a threat to kill. Accordingly the reference in McCraw to "threat of serious bodily harm" would need to be read as "threat to another person to kill that other person or any third person".
In his Honour's published reasons his Honour stated the question for him to decide as being whether it was open to him to construe the words and conduct attributed to the accused as a "threat to kill". After correctly stating that that question would depend upon what the accused's posture, conduct and words conveyed, his Honour continued:
"However, there was no indication from the alleged conduct of the accused that he was expressing an intention to kill Ms Buttriss. In the circumstances alleged by the Crown, it is not possible so to construe what was said. It is at least equally likely that the words would convey to the reasonable bystander, an intention to cause serious bodily harm short of death.
If there had been a history of threats expressed in part as the accused expressed himself on 16 July 1993 so as to supply a meaning 'I'm intending to kill you', the element missing in the circumstances alleged of an expression of an intention to kill, the Crown would have had a prima facie case."
It was for this reason his Honour wrote that he had ruled:
"... that the Crown case, if it conformed to Mr Madden's expressed expectations, would be insufficient to make out a case under s30 of the Crimes Act. I stayed further proceedings on that count accordingly."
To that point in the written reasons no reference was made to the second count alleging assault. This his Honour dealt with in the next and last paragraph of the judgment in the following terms:
"The Crown, in consequence, invited me to stay the count alleging assault. There having been no presentation of the weapon or a threat to use it by discharging it at Ms Buttriss, it was conceded that count would have no prospects for success in the circumstances. It was stayed also."
THE CROWN'S SUBMISSIONS ON THE APPEAL
For the Crown, the Director of Public Prosecutions submitted that his Honour had erred in granting a stay on both counts. It was submitted that in a case such as the present a stay should only be granted where the Crown's case was "foredoomed to fail". Alternatively, it was submitted that if the correct test to be applied was to determine whether or not the accused had a case to answer, that test, as enunciated by the High Court in Doney v The Queen (1990) 171 CLR 207 at 214-5, had not been applied.
Finally, it was submitted that whichever test should be applied, the present was a case which should have gone to a jury to determine in the light of the evidence actually presented whether the accused was guilty as charged. It may be noted that counsel for the accused had foreshadowed to his Honour the making of an application that there was no case to answer, but no such application could be made unless the Crown's evidence had been led. This had not yet occurred. In any event it was submitted that a no case to answer submission would have failed and that the question whether in all the
circumstances the words and conduct of the accused constituted a threat to kill was a question open to be put to the jury.
THE SUBMISSIONS FOR THE ACCUSED
In oral submissions on the appeal (not contained in the outline of written submissions presented) counsel for the accused submitted that there was no right in the Crown to appeal. It was submitted that what had happened was that "consent judgment" had been entered which made an appeal as a matter of law inappropriate. It was submitted that both the making of the ruling by his Honour and the stay had been applied for by the Crown rather than by the accused. Accordingly, the Crown could not appeal against orders it had itself sought.
The question of whether it would have been open to a jury on the evidence outlined, had it been represented, to find that there had been a threat to kill was ultimately but faintly argued. It was indeed conceded that it would have been open to the jury to convict the accused on the second count of common assault.
Counsel for the accused also conceded that it was the duty of a trial judge to bring to the attention of the Crown his view that a charge could not succeed on evidence which the Crown proposed to adduce. However, it was submitted that in such circumstances the proper course for the Crown was to file a nolle prosequi in respect of the counts in the indictment which could not succeed or, alternatively, to attempt to proceed with the trial after arraignment, notwithstanding the view that had been expressed by the trial judge. The gravamen of the submission, not always apparent, was that the Crown could not adopt the alternative of asking his Honour to stay the proceedings so far as the impugned counts were concerned, thereby giving to itself a right to appeal to this Court, a right which would not have been available to the Crown had a no case to answer submission been successful or had the matter proceeded to trial and the accused been acquitted.
DOES THE CROWN HAVE A RIGHT OF APPEAL?
It must be said at the outset that the course which the proceedings took before his Honour was rather unusual. His Honour was never asked, on behalf of the accused, to rule that upon the evidence intended to be presented by the Crown there was no prima facie case to answer. His Honour was requested to rule upon the question whether the multiple counts charged caused prejudice to the accused but did, in fact, not make such a ruling. Indeed, it seems that the question which his Honour posed for himself, whether the words and conduct of the accused on the evidence were capable of constituting a threat to kill, was one initiated by his Honour rather than by either counsel.
The ruling which his Honour made could appropriately be described as hypothetical in that, of itself, it could do no more than alert the Crown to the fact that his Honour was of the opinion that the evidence was insufficient to make out a case under s30 of the Act. It cannot be said that the Crown asked his Honour to make a ruling in those terms, even if it is correct to say that the Crown ultimately asked his Honour to make a "ruling".
It is a misnomer, in the present circumstances, to say that the making of an order by his Honour staying the proceedings in respect of the two counts was an order made by consent. It is true that the Crown asked his Honour to make an order staying the proceedings consequent upon the ruling, but it is equally clear that in so doing the Crown was not consenting to a stay as such. It was the Crown's contention that the evidence to be adduced was sufficient to make out a case under s30 of the Act. Not surprisingly, however, counsel for the accused consented to a stay, but that fact of itself does not make the stay a consent order.
The question whether a particular order amounts to a consent order from which no right of appeal lies will often be a difficult one, even in civil proceedings where the question will more usually arise. The relevant authorities are summarised in the judgment of Zelling J in Rogers v Curnow (1976) 22 SASR 204 where they are described (at 206) as "not easy to follow and mostly very ill-reported".
The test adopted by Zelling J, equally relevant to the present case, is to determine whether the order arose by reason of a bargain between the parties or whether it arose by "mere acceptance by the appellant of an order offered by the Court". The latter is here the case and the order does not in such a case amount to an order made by consent.
The situation with respect to the count alleging assault perhaps stands in a slightly different position. The view expressed by his Honour that the evidence was insufficient to amount to a common law assault was expressed somewhat earlier in the proceedings when not all of the evidence had been narrated by counsel for the Crown. No "formal ruling" was made in respect of the assault count. However, a fair reading of the transcript indicates that his Honour had expressed a clear view that a case of assault could not be sustained. Such a clear expression of view puts the assault count in no different position to that of the count under s30 of the Act.
Although the course taken by the Crown of asking his Honour in the circumstances to make an order staying counts one and two was unusual, it does not follow from that, in the circumstances, that the Crown was obliged to take one of the other two courses suggested by counsel for the accused. The suggestion that inviting his Honour to make a stay was tantamount to putting the accused in double jeopardy cannot really be sustained. The accused was never arraigned on the first two counts, nor was he tried upon them. He was never acquitted.
Section 404 of the Act empowers a trial judge who would have power to direct the jury to return a verdict of acquittal to discharge the jury from returning a verdict and to record a verdict of acquittal in respect of that offence. Section 404 reads:
"404. (1) Where, on the trial of a person for an offence against this Act or any other law of the Territory, the Judge would have power to direct the jury to return a verdict of acquittal in respect of that offence, the Judge may, instead of giving such a direction, make an order:
(a)discharging the jury from returning a verdict in respect of the offence; and
(b)recording a verdict of acquittal in respect of that offence.
(2) An order under subsection (1) shall, for all purposes, have the same effect as a verdict of acquittal returned by a jury."
The trial judge had that power at the accused's trial. Additionally and alternatively, he had the power to direct the jury to return a verdict of acquittal in respect of any counts in the indictment.
Both courses involve an acquittal, either by the Judge or by direction by the jury. In such a case the Crown has a right to submit for the determination of a Full Court of this Court any question of law arising at or in connection with the trial pursuant to s30A of the Federal Court of Australia Act 1976, which reads:
"30A.(1)Where:
(a)a person has been tried on an indictment in the Supreme Court of the Australian Capital Territory; and
(b)the person has been acquitted in respect of the whole or any part of the indictment;
the Attorney-General or the Director of Public Prosecutions may, within 6 weeks after the conclusion of the trial, or within such longer period as the Court, on sufficient cause being shown, allows, submit for the determination of a Full Court any question of law arising at or in connection with the trial.
(2)The Full Court shall hear and determine the question.
(3) A determination made by the Court under this section does not invalidate or affect any verdict or decision given at the trial.
(4) Any person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory is entitled to be heard in the proceedings to determine the question.
(5) If it appears that a person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory does not propose to be represented in the proceedings to determine the question, the Attorney-General or Director of Public Prosecutions, as the case requires, shall instruct counsel to argue the question on the person's behalf.
(6)A person shall not publish:
(a)a report of a submission made under subsection (1); or
(b)a report of proceedings under this section that discloses the name or identity of any person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory.
(7)A contravention of subsection (6) is punishable as a contempt of the Court."
As we have already stated, the accused was never acquitted either by order of the Judge pursuant to s404 of the Act or by a directed verdict of acquittal by the jury. Hence the Crown's right of appeal pursuant to s30A of the Federal Court of Australia Act 1976 does not arise.
What then is the Crown's right to have this Court review the orders of the trial judge to stay counts one and two in the indictment? By its supplementary notice of appeal, the Crown has purported to appeal as of right against the orders of the trial judge made on 23 February 1995. No point was taken on behalf of the accused about the Crown's right to appeal against his Honour's orders. Accordingly, no argument was presented to the Court about the process adopted by the Crown of purporting to appeal to this Court as of right.
No appeal lies from a judgment that is an interlocutory judgment unless the Court or the Judge gives leave to appeal (s24(1A) Federal Court of Australia Act 1976). By definition (s3) "judgment" means a judgment, decree or order, whether final or interlocutory, or a sentence. It is at least arguable that the orders made by the trial judge staying the prosecution of grounds 1 and 2 in the indictment were not, either individually or in the aggregate, a final judgment. It is questionable whether the orders finally determined the rights of the Crown and the accused. The legal effect of the orders was to stay the prosecution of counts 1 and 2 in the indictment as an abuse of process. The stay of each count did not involve the issue of whether the accused was guilty or not guilty of those counts. It could be argued that the stay merely set up a procedural bar to the prosecution of those counts.
The test of determining whether a judgment is final or interlocutory is whether the judgment finally determines the rights of the parties. The test looks to the legal effect and not the practical consequences of the judgment (Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; 34 ALR 449; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; Miki Shoko Co Ltd v Merv Brown Pty Ltd (1988) ATPR 40-858; Vink v Schering Pty Ltd (No 1) (1991) ATPR 41-064). The application of this test means that a judgment must be treated as interlocutory for the purposes of s24(1A) where it does not in a legal sense finally determine the rights of the parties at issue in the proceedings.
The question whether an order staying the prosecution of an indictment is a final or interlocutory order has apparently not been the subject of any prior consideration in this Court. We note, for instance, that in the recent case of The Queen v Davies (a decision of a Full Court (Wilcox, Burchett and Hill JJ) delivered on 23 June 1995) the Crown purported to appeal as of right from an order of the Supreme Court of the Australian Capital Territory permanently staying 14 charges brought in the Magistrates Court of the Territory. The order made by the Supreme Court in that case in relation to proceedings in the Magistrates Court was an interlocutory order in the sense that it did not finally determine the rights of the prosecutor and the defendant in the Magistrates Court.
In Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 the High Court, comprising Gibb, Mason and Murphy JJ, held that a stay ordered on the basis that it was an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings was a final order. The Court distinguished Tampion v Anderson (1973) 48 ALJR 11, a decision of the Privy Council where a stay had been granted on the ground that the action was frivilous, vexatious and an abuse of process of the Court and in which it had been held that there had been but an interlocutory judgment, reserving for later consideration the correctness of the Privy Council decision.
The matter was not the subject of argument before us. In these circumstances it is perhaps undesirable to decide whether the present case should be distinguished from one where the stay was ordered because of the operation of the doctrine of estoppel. Rather, if leave be necessary it should be granted and the appeal decided on the merits.
Accordingly, we are of the view that subject to leave being granted as foreshadowed, the Crown was entitled to appeal and that the order for stay could not properly be described as a consent order. Some comments should be made on the remaining submissions of the Crown.
WHETHER A STAY SHOULD HAVE BEEN GRANTED
The importance, in the interests of justice, that persons charged with criminal offences be tried for those offences has been expressed by the High Court in a number of decisions: Williams v Spautz (1992) 174 CLR 509 at 519; Jago v District Court of New South Wales (1989) 168 CLR 23 at 33 per Mason CJ, at 46-7 per Brennan J, at 61 per Deane J and at 72 per Brennan J. Similar observations appear in Barton v The Queen (1980) 147 CLR 75 at 94-5 and 110-111. It is for this reason that the High Court has emphasised that the undoubted power of the Court to stay proceedings should only be exercised in the most exceptional circumstances.
Underpinning the power of the Court to stay proceedings is the requirement that the Court intervene where those proceedings constitute an abuse of process. As Brennan J said in Jago (at 46-7):
"An abuse of process occurs when the process of the Court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process."
An example of a circumstance where the process of a criminal trial will be incapable of serving the purpose it is intended to serve will be where the proceedings are such that "they can clearly be seen to be foredoomed to fail": Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393. Similar language was used in that case by Brennan J with whom Toohey J agreed (at 411) when his Honour spoke of proceedings "which will inevitably and manifestly fail". Reference may also be made to Williams v Spautz (supra at 526) and Ridgeway v R (1995) 129 ALR 41 at 56 per Mason CJ, Deane and Dawson JJ and at 65 per Brennan J.
Once it is accepted that the grant of a stay is an exceptional remedy, it will follow that it would only be in the rarest of cases, and the present is not such a case, that a stay would be granted upon the basis that the evidence proposed to be led by the Crown will not support a conviction. Counsel's research has revealed only one reported case in Australia where the question has been discussed, namely, R v Smith & Ors (1994) 73 A Crim R 385.
In that case the Victorian Court of Criminal Appeal set aside orders made by the trial judge staying proceedings. After pointing out that the concept of abuse of process underlies the power of the Court to grant a stay, Brooking J said (at 388):
"Process is not abused merely because it is employed without success. The very function of the courts is to hear and determine claims, sound and unsound, and to filter out those which are unsound, not (saving extreme cases, where a stay or other summary order may be appropriate) by declining to deal with them in the usual way, but by hearing and determining them. The same fundamental doctrines govern the rules of pleading and procedure in civil and criminal cases and the Court has inherent power to see that its process is not abused by civil or criminal proceeding without reasonable grounds ... Time and again it has been said that it is only in exceptional circumstances that a proceeding, civil or criminal, will be stayed on the ground that it constitutes an abuse of process ...".
In the same case, Byrne J (at 404) said:
"... the power to order a permanent stay of a criminal proceeding before the Court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution."
Later (at 407-8) his Honour said:
"... it will be a rare case indeed where a prosecution will be shut out of court for some evidentiary shortcoming. This is particularly the case where the shortcoming is not that certain essential facts cannot be proved, but rather that it is not legitimate to draw an essential inference from proved facts. The drawing of inferences is a function particularly within the sphere of competence of the jury ... [U]nless the applicant can satisfy the trial judge at the outset that, on any view of the evidence, it is plain beyond argument that no reasonable jury could accept the Crown hypothesis the application must fail."
The question whether the words used by the accused in the context in which they were used, including the demeanour of the accused, the manner in which the words were spoken and other surrounding circumstances, cannot be determined from an examination of the printed word in a transcript or statement of evidence. There may be a case where it could be said that on no view of the surrounding circumstances could words used by an accused constitute a threat to kill. But that is not the present case. The present was not a case of which it could be said prior to evidence being led that the proceedings were foredoomed to fail or must inevitably fail. The fact that the words used by the accused as they appeared on paper were equally capable of being seen as a threat to kill as well as merely conveying to a reasonable bystander an intention to cause serious harm really emphasises the point. The manner in which the words were spoken would have some relevance. Whether the words alleged to have been used in the context in which they were said to have been used did constitute a threat to kill could only be determined once the Crown's evidence had been adduced. Whether, at the end of the Crown case, there was a case to answer and whether the test in such circumstances set out in Doney v The Queen differs from the test to be applied in determining whether proceedings should be stayed is not a matter for consideration here.
It was submitted that the test in Doney v The Queen was a lesser test than should be applied in a case where an application to stay proceedings had been made. In Doney the Court said (at 214-5):
"... If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
As presently advised, we doubt that the test so expressed differs greatly from the test relevant to applications to stay. The difference, however, in the present case is that where a verdict is directed the evidence has at least been presented. In the present case, all that his Honour had before him was an outline of the evidence by the Crown, the depositions below and statement of Ms Buttriss. His Honour did not have the advantage of hearing Ms Buttriss give her evidence in chief and hearing from her the manner in which the words alleged to have been uttered by the accused were said.
In so far as his Honour was of the view that a stay of the assault charge should have been granted because the facts as outlined could not support a conviction of common assault, his Honour, in our view, was in error: McPherson v Brown (1975) 12 SASR 184 and see also Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444.
His Honour was admittedly in error in coming to the view expressed in his written reasons that counsel for the accused had raised the question whether on the facts raised, if proved, a prima facie case for an offence against s30 of the Act would be made out. This, as we have endeavoured to illustrate, is clear from the transcript. It was an error on his Honour's part to "rule", as his Honour did, that the evidence proposed to be led was not capable of constituting a threat to kill within the meaning of s30 of the Act. The same can be said of the expression of opinion given by his Honour on the assault charge, to the extent that a "ruling" was intended. In these circumstances, even if the actual application for a stay in consequence of the rulings was made by the Crown, his Honour erred in acceding to it. The underlying basis for a stay was not present. The error is not made good by the fact that the Crown then asked his Honour to stay the proceedings in respect of the first two counts, which request was acceded to.
In the circumstances, we would allow the appeal and set aside the orders staying the proceedings in respect of both the first and second counts.
It was pointed out during the course of the appeal that the first count, in any event, suffered the defect that it combined two separate and alternative charges in the one count, namely, that the accused either intended Ms Buttriss to fear that his threat would
be carried out or that he was reckless as to whether or not Ms Buttriss would fear that the threat would be carried out.
When that was pointed out, the Crown agreed that the count was bad, but neither party asked the Court to do anything about the duplicitous count. No application was made to strike it out. Where a count is bad for duplicity, the courses open to the Crown are either to seek leave to amend the count or to elect which of the offences in the count it will prosecute. In relation to the duplicitous first count, the Crown can adopt one of those alternatives at the subsequent trial of the accused. It would not be appropriate for this Court to strike the count out in the absence of any application to do so. It is appropriate to leave it to the Crown either to seek leave to amend or elect when the prosecution is resumed.
The orders we make, therefore, are:
(1)The appeal be allowed; and
(2)The orders made by Higgins J. staying the prosecution on counts one and two in the indictment be set aside.
I certify that this and the preceding twenty-three pages are a true copy of the reasons for judgment herein of their Honours Justices Gallop and Hill.
Dated:22 April 1996
Associate
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) ACTG 20 of 1995
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:JOHN DAVID LEECE
Respondent
CORAM: Gallop, Burchett & Hill JJ.
PLACE: Canberra
DATE : 22 April 1996
REASONS FOR JUDGMENT
BURCHETT J.:
This is a very strange proceeding. The Crown appeals (there is a question whether it requires leave) from an order that was made at its own request. That order stayed the prosecution of two counts of an indictment. Some fundamental principles of criminal law are involved, but first, I must take some time to explain how the Crown came to ask for the order to which it now objects.
When the respondent appeared for trial before a judge and jury in the Australian Capital Territory, counsel for the Crown handed up to the Judge a proposed indictment containing five counts. A preliminary objection to the joinder of the
final three counts with the first and second counts was argued in the normal way, before the jury was empanelled or a plea taken. The essential point raised on behalf of the respondent was that the first count charged him with the making of a threat to kill a person, intending that person to fear that the threat would be carried out or being reckless whether she would so fear, without lawful excuse and in circumstances in which a reasonable person would fear that the threat would be carried out, while the second count charged assault arising out of the same alleged threat; whereas the remaining counts referred to violent and illegal conduct of the respondent that occurred after the person threatened had fled, when the respondent, who was drunk, discharged a fire-arm into a telephone set and apparently caused wanton damage to other property. The fire-arm had been illegally modified. Counsel contended that evidence of the subsequent events would be either irrelevant, or at least far more prejudicial than relevant, in relation to the first and second counts, so as to make joinder of the additional counts unfair. He did not raise any argument going to the sufficiency of the evidence to prove any of the counts, but his argument of unfairness necessarily required him to outline the facts to be put forward in the Crown case, as revealed by the evidence at the committal hearing. Otherwise there could have been no consideration either of the extent to which the evidence relating to the final three counts might possibly be relevant to the other two, or of the question of prejudice arising out of that evidence. It was pointed out that the alleged threat was not in express terms a threat to kill, but required interpretation in the light of all the circumstances. This, of course, explained counsel's concern to limit the circumstances that would be before the jury, and to exclude subsequent events. In the course of making it clear that there was a real issue whether a threat to kill was involved, counsel added:
"I mean, if she gives the same sworn evidence here as she did below I will obviously be making a submission to your Honour at the end of the Crown case."
Counsel for the Crown responded by outlining the evidence he proposed to call. He submitted "that the events after [the complainant fled] are all relevant to the state of mind she had and are relevant to the whole day's incident"; and that the evidence was also relevant to the respondent's "state of mind, his intentions, his conduct and actions at the time the threat [was] made and subsequently". It was in the discussion of these propositions that the Judge made clear his feeling that the Crown case was rather flimsy. He said: "Where are the words `I am going to kill you'?" He also ventured the remark: "On the facts as you have given them you would not be able to make out an assault case." But after some further discussion, his Honour said:
"Remember you have got a statement, I do not have one. I have just got the transcript from the Magistrate's Court. But where is it - is there evidence of the actual movement of this object which [she] thought was a gun?"
There followed a lengthy exposition of the committal evidence by counsel for the Crown, and a clear statement that he would not be relying on any evidence of any prior history of violent conduct by the accused towards the complainant, who was his wife. The Judge commented:
"Yes, I understand you are not doing that, but that is where, it seems to me, your difficulty is; that it is impossible without that history to interpret these words as a threat to kill, probably even impossible with them, even though it might be understandable, given the history, that the lady would take them that way."
At this stage, counsel for the Crown appeared to be prepared to concede the point, for he replied:
"Well, that is probably right, your Honour, the view the Crown has [sic - quaere the view the Crown has is] that anything about prior threats is prejudicial to my friend and we would not lead it."
But he went on to say that the Crown would lead evidence that the complainant "was aware of weapons in the house", and that this was "relevant to her state of mind given his [the accused's] conduct in that half hour frame" and "his whole attitude for the whole day". The Judge remarked that he had no problem with the evidence of the accused's "violent mood", but added:
"The assault and the threat to kill, I really do not see from that evidence. But that is a matter for you, whether you want to try and proceed with them
or not, I suppose, and I may be unable to rule on it until I hear the evidence."
It was at this juncture that counsel for the respondent resumed his submission, after the long interruption occasioned by the outline and discussion of the Crown case. He made it clear the ruling he sought was to the effect that "even if all those other matters are admissible, they are so prejudicial in the circumstances of this case that they would not be allowed to be presented to the jury". There was debate about the relevance of the evidence, and then his Honour turned to counsel for the Crown, saying:
"Well, Mr Madden, I do not know whether I can - what material there is upon which I could make a ruling at the moment. You have told me what the Crown case is likely to be. If that is what it is it would seem to [me] then that it would not make out a threat to kill, even if you make out the reasonableness of fear [on] the part of the victim. And I can [see] in the circumstances that it probably would be reasonable to entertain a fear, but you have got to do more than have a fear reasonably arising in the mind of someone. It has got to arise from a threat to kill."
After a brief further discussion, counsel for the Crown referred to the words alleged, "settle things, [I am] going to end this now, fix you once and for all", and the subsequent finding of a shotgun in the house (the complainant had apparently known about the existence of an inoperable rifle, but not about the shotgun), and added: "I really cannot take this much further, your Honour." The Judge replied: "No. As
I say, you simply have to have a threat." Counsel for the Crown then said:
"In your Honour's ruling is that [sic] on the transcript in the court below and what I have outlined from the statement, your Honour's ruling is that does not constitute a threat. I do not think I can put it any higher, your Honour."
To this, the Judge responded: "Well if that was all there was ... I do not think that would constitute a threat to kill."
Counsel for the Crown renewed the debate by referring to the subsequent damage done to the house (i.e. after the alleged threat), but the Judge made it clear that evidence of that kind could not overcome his problem. Counsel then asked for an adjournment "for perhaps half an hour, twenty minutes to reassess the position with the indictment." However, before the adjournment was taken, he asked: "Is your Honour making a formal ruling?" The Judge replied: "Do you want me to make a formal ruling?" to which counsel rejoined: "I would find it desirable, your Honour." The Judge then said:
"Yes.Well, I will make a formal ruling that in my opinion the evidence proposed to be led by the Crown, as outlined by Mr Madden, either as given in the transcript - by reference to the transcript - in the Magistrate's court upon which the committal proceedings were based or as outlined by reference to a statement of the complainant - as I will call her - would not constitute a threat to kill within the meaning of section 30 ... of the Crimes Act 1900. Now, I can elaborate on that if you want, Mr Madden, but ... "
Counsel for the Crown said: "Your Honour, from the point of view of the prosecution in another case, if your Honour would be prepared to do I would be most grateful, or publish reasons at a later stage." The Judge indicated that he would accede to that request (as indeed he later did), and then adjourned.
After the short adjournment, counsel for the Crown announced:
"Your Honour, the Crown presents the indictment and invites your Honour, in view of the previous ruling, to stay counts one and two, and invites the Court to arraign the accused on counts three, four and five."
To the Judge's question: "Are you content with that course?" counsel for the respondent replied: "Yes, your Honour." The order was then made. This is the stay against which the Crown now seeks to appeal.
My recital of what occurred will, I think, have made it clear that, from beginning to end, counsel for the respondent did not seek a premature ruling on the sufficiency of the evidence, nor did he ask for a stay. At one point in his submissions, he did expressly state that he would be "making a submission ... at the end of the Crown case". That, of course, would have been the proper time to do so. The Judge, too, right up to the end of a long discussion, made it clear that he was not contemplating making a premature ruling on evidence yet to be adduced. Twice, he referred to the fact that he had not yet heard the evidence. Indeed, to imagine that his Honour would, except at the express invitation of the Crown, make a ruling on the effect of the evidence, before hearing it, would be to pay scant regard to his Honour's considerable experience as a trial Judge. But the Crown has a wide discretion in relation to the prosecution of criminal proceedings, and if a Judge, in circumstances such as those of this case, is asked by counsel for the Crown to give a ruling which may plainly guide the exercise of a discretion not to pursue the prosecution on a particular count, that is a request to which, in the absence of objection, most judges would accede. I can see nothing wrong with their doing so. At any rate, it would not lie in the mouth of the Crown to complain that the Judge took a course it had actually invited him to take: cf. R v Tait and Bartley (1979) 24 ALR 473 at 477; Everett v The Queen (1994) 181 CLR 295 at 307.
In the present case, the Judge made it clear, first, that he did not think he was in a position to make a ruling, and secondly, that he only ultimately did make a ruling at the express request of the Crown. Counsel for the Crown, at the time, indicated he wanted "to reassess the position with the indictment", and his request for reasons "from the point of view of the prosecution in another case" was a plain intimation of acceptance of the views indicated by the Judge in the course of the discussion. When, after that, and after opportunity to consider the matter further during an adjournment, counsel invited the Judge, "in view of the previous ruling," to stay the two counts, this could only have been understood as a concession that the prosecution could not succeed. There was no other basis for a stay. If it had been intended in fact to challenge the Judge's views by appeal, what was said by counsel for the Crown would have been quite deceptive. I do not for a moment think there was then any such intention. It will have been observed that when he asked for reasons, counsel did not employ the usual formula indicative of an inclination to appeal, but suggested they would be useful "in another case". It must have been plain, from the remarks both of counsel for the respondent and of the Judge, that any suggestion of appeal would have led to a successful insistence on behalf of the respondent to have the trial proceed. As has been pointed out by the Supreme Court of the United States on more than one occasion, the right to a hearing before a tribunal believed to be favourable to the accused is a "valued right" (see Wade v Hunter (1949) 336 US 684 at 689; United States v Jorn (1971) 400 US 470 at 484; Illinois v Somerville (1973) 410 US 458 at 466.). Here, counsel for the Crown had himself ascertained that the Judge's view of the law, as applicable to the facts of this case, was likely to lead to a directed acquittal. Against that, there could have been no appeal - only a "moot" appeal, not affecting the accused (see s. 30A(3), Federal Court of Australia Act, 1976). It would not have been proper for the Crown to have sought to get around the provisions of the law restricting its right of appeal in this way (cf. Regina v McAnish and Cook (1973) 15 CCC (2d) 494 at 495), and it is inconceivable that the defence would knowingly have acceded to its doing so. It is true that the Crown could have filed a nolle prosequi, but for reasons I shall explain, I do not think that would have improved its position.
In my opinion, this appeal is hopelessly misconceived. And the Crown should not have leave to appeal, if leave is required, against an order which it itself invited. There was no error in the making of the order. As I have said, the invitation to the Judge to make it implied a concession that the Crown could not make out a case. Upon that concession, the making of the order could not be said to have evinced error. If the formal ruling, which also had been invited by the Crown, was not accepted, the right way to have challenged it was by the adduction of the evidence, whereupon a ruling could have been given in the circumstances contemplated by the law as giving rise to a moot appeal. The effect of what the Crown now seeks to do is to permit it to engage in "forum shopping" at its election. For if a stay can be invited in these circumstances, and then the matter proceeded with, so too, a nolle prosequi can be filed, which has the effect of a stay, and then the matter can be proceeded with later before another judge.
For the appellant, it was suggested that the course taken was a practical course which it was necessary to adopt in order to have the question determined by an appellate court. But the necessity, if there was a necessity, arose from the Crown's election to request the Judge to make a "formal ruling" in advance of the calling of the evidence. It would not be right that the Crown should be able to circumvent the law's denial to it of any avenue of effective appeal against an acquittal at a criminal trial by having a judge decide in advance of the trial (ostensibly for the purposes of the trial itself) a question relevant to a possible directed verdict; seeking a stay; and then appealing against that stay.
The rule against double jeopardy is fundamental in our law. Indeed, M.L. Friedland, in the preface to his Double Jeopardy (1969), says that the rule was propounded long before our law arose, as far back as 355 B.C., when "Demosthenes argued that `the laws forbid the same man to be tried twice on the same issue'". See too Twice in Jeopardy (1965) 75 Yale L.J. 262, n. 1. At "the core of any study of double jeopardy", Friedland also says (at 279), are problems raised by the "subject of appeals by the Crown". In his Trial by Jury (1956), Sir Patrick Devlin (as Lord Devlin then was) wrote (at 77):
"As Chief Justice Pratt said in 1724 (R v Jones (1724) 8 Mod. 201 at 208): `It was never yet known that a verdict was set aside by which the defendant was acquitted, in any case whatsoever upon a criminal prosecution.'"
Even an egregiously wrong directed verdict of not guilty could not be disturbed, and certiorari would not lie to quash it: Regina v Middlesex Quarter Sessions (Chairman); ex parte Director of Public Prosecutions [1952] 2 QB 758; In re Harrington (on appeal from Regina v Dorking Justices, ex parte Harrington) [1984] AC 743 at 753; Benson v Northern Ireland Road Transport Board [1942] AC 520 at 526-527. In the last case, at the pages cited, Viscount Simon L.C. (with whom Lord Atkin, Lord Wright and Lord Porter agreed) referred to the "extremely important and universally accepted principle of our law" that "an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court." It followed, he held (at 528), that "very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge". Taking the same view, Dixon J., in The King v Wilkes (1948) 77 CLR 511 at 516-517, after pointing out that the High Court had jurisdiction to grant special leave to appeal even from a judgment of acquittal, said:
"We should, however, be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court."
But he qualified this very strongly: "We would not, of course, go behind a verdict of not guilty", and his acceptance that the power could, though rarely, be exercised was expressed with reference to "applications by the Crown for special leave to appeal from judgments of acquittal given by courts of criminal appeal". In the Duchess of Kingston's Case (1776) 20 Howell St Tr 355 at 528, Mr Wallace, counsel for the prisoner (not, as Friedland, op. cit. at 279, states, in a rare lapse that has unfortunately found its way into the authorities in Davern v Messel (1984) 155 CLR 21 at 48-49, the Attorney-General, who was Mr Thurlow, later Baron Thurlow L.C. - see p. 372 of the report), asserted what was already by then well established as the general rule when he said: "[F]or whenever, and by whatever means, there is an acquittal in a criminal prosecution, the scene is closed and the curtain drops."
Although this principle has been expressly held to extend to a case where an acquittal was obtained "by some ruling on a point of law without the case going to the jury" (see Haynes v Davis [1915] 1 KB 332 at 335), the defence of autrefois acquit requires an acquittal, or at least what is tantamount to an acquittal (Regina v Lawson and Slavnik (1975) Crim LQ 287 at 312-315; Re Bond (1936) 66 CCC 271 at 272 - note also the dissenting judgment of Carroll J., much of which seems later to have been accepted by the Supreme Court of Canada in Regina v Riddle (1979) 100 DLR (3d) 577). It was therefore suggested that there could be no question in the present case of any defence of autrefois acquit. But, with respect, that is to miss the point. The question is not whether a particular technical defence arises, but whether it is consonant with the principles of the criminal law that the Crown should here be given leave to appeal (if that is required), or should otherwise obtain the relief sought which is discretionary in nature.
When the right question is asked, it becomes of significance that the defence of autrefois acquit is founded on a broader principle long held to be fundamental to the criminal law. That was accepted by the Supreme Court of Canada in Regina v Riddle (supra), where it was held not to matter that the plea raised did not fall within the narrow confines of the special plea of autrefois acquit. Dickson J. (as he then was), speaking for the Court (Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.), said (at 584): "The Court gives effect to the broad maxim, nemo debet bis vexari pro una et eadem causa." (Cf. Flatman v Light [1946] KB 414 at 419.) In the United States, where the double jeopardy principle is enshrined in the Constitution, "[t]he common-law is important ..., for [the] Double Jeopardy Clause [in the Constitution] was drafted with the common-law protections in mind" (United States v DiFrancesco (1980) 449 US 117 at 134). So it is of general significance that in the fundamental decision of the Supreme Court, Green v United States (1957) 355 US 184, Black J., after referring to authorities on the common law, said (at 187-188):
"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
...Thus it is one of the elemental principles of our criminal law that the Government cannot secure a
new trial by means of an appeal even though an acquittal may appear to be erroneous. ...
Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court ... has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. ... This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict."
In the United States, as I have already noted, the defendant's right protected by this principle has been held to include his "valued right to have his trial completed by a particular tribunal": United States v Jorn (supra, at 484). See also Carsey v United States (1967) 392 F 2d 810.
In Australia, the High Court has specifically decided that the rule against double jeopardy may have a broad application, not confined to the strict principles which found a plea of autrefois acquit: Walton v Gardiner (1993) 177 CLR 378. The joint judgment of Mason C.J., Deane and Dawson JJ. contains the following passage (at 398):
"[I]t is apparent that the members of the Court of Appeal were fully justified in paying regard to the notions of fairness to an accused person which underlie the common law principle against double jeopardy. Notwithstanding the Department's argument to the contrary, the substance of the complaints against the respondents in the current proceedings corresponded, to a very large extent, with the substance of the complaints against them in the proceedings which had been permanently stayed by, or as a consequence of, the orders made in Herron v McGregor in 1986. ... It is true that the absence of an earlier hearing on the merits and the
variations between personal complainants and the details of the complaints mean that, even if a strict rule against double jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it. The sense of injustice which inspires the doctrine against double jeopardy was, however, plainly present in large measure."
Importantly for present purposes, that was to treat the principle of double jeopardy as applicable to justify a stay of threatened further proceedings on the basis of an earlier stay of previous proceedings, not on the basis of any acquittal in those proceedings. That the double jeopardy principle is wider in its operation than autrefois acquit was also asserted by Deane and Gaudron JJ. in their joint judgment in Rogers v The Queen (1994) 181 CLR 251 at 277.
The question was raised whether the appellant, instead of inviting the Judge to stay the two counts, could have filed a nolle prosequi. This is an ancient procedure, still in common use today, by which the prosecution obtains the effect of a stay (the Latin words indicate that the prosecutor is "unwilling to pursue"). It has been held that the result of the entry of a nolle prosequi is to bring the prosecution to an end, although afterwards a fresh prosecution may be commenced: Gilchrist v Gardner (1891) 12 NSWLR (L) 184; Mann v Jacombe (1960) 78 WN (NSW) 635; and see the interesting article by G.P. Donovan, The Effect of a Nolle Prosequi in Relation to the Action for Malicious Prosecution (1939) 12 ALJ 457 et seq. Halsbury 4th ed vol 11(2) para 941 (see also Smith and Hogan, Criminal Law 7th ed. (1992) 16) states that the effect "is that all proceedings on the indictment are stayed and the accused, if he is in custody, is discharged but may be indicted afresh on the same charge". However, Halsbury adds in a footnote:
"It is now a common practice for the trial judge on the application of the prosecution to allow an indictment, or counts in an indictment, instead of being tried, to remain on the file marked not to be proceeded with without leave of the court or of the Court of Appeal."
In Poole v The Queen [1961] AC 223, the Privy Council considered the effect of the entry of a nolle prosequi under the Kenyan Criminal Procedure Code. The nolle prosequi had been entered when, at the beginning of a trial, it was ascertained that one of the jurors had a religious objection to giving a verdict. The avowed purpose was to prefer a fresh indictment so that the matter could be heard by a jury untrammelled by any such religious difficulty. But in argument it was pointed out that injustice could be caused if the filing of a nolle prosequi were followed by a later trial after a witness had left the colony, because the law provided for the reading of a deposition in such a case. Presumably, the point was that the accused would be deprived of the opportunity to cross-examine. Lord Tucker, delivering the reasons of the Privy Council, said (at 241):
"With regard to the reading of the depositions of absent witnesses, it is not to be assumed that the court will not be alert to ensure that the provisions of that section [i.e. the section permitting the entry of a nolle prosequi] shall not
be allowed to operate so as to cause injustice to an accused person as a consequence of the use of the nolle prosequi procedure by the Crown. ... The provisions of the Code should not be interpreted on the assumption that the wide powers vested in the Attorney-General may be abused by the indefinite postponement of trials by means of the use of the nolle prosequi procedure for which he would be answerable as a minister of the Crown."
Lord Tucker's words have proved prophetic. Three decisions in recent times in Queensland have affirmed the power of the court to ensure that the nolle prosequi procedure is not used in an unfair manner. Although I think the transcript indicates that, in the present case, the prosecutor actually intended to accept the ruling of the trial Judge, if that is not so, the existence of the Queensland decisions to which I shall refer may explain why the course of entering a nolle prosequi was not followed. But bearing in mind that a nolle prosequi has, as I have said, the effect of a stay, I think a distinction may have been made which should not produce any difference. The first of the decisions to which I refer was R v Saunders [1983] 2 Qd R 270 where, at the commencement of a trial, a voir dire hearing was held to determine the admissibility of a tape recording. Upon it becoming apparent that the recording, which was vital to the Crown case, was not admissible, being indeed a fabrication, the Crown sought to enter a nolle prosequi. Shepherdson J. referred to the Court's duty of protecting the citizen from oppression or prejudice which could result from an abuse of the Court's own process, and declined to accept the entry of a nolle prosequi, directing a verdict of acquittal.
The next case was R v Jell, ex parte Attorney-General [1991] 1 Qd R 48. There, counsel for the accused submitted that there was no case to go to the jury; and the judge ruled in favour of that submission, whereupon the Crown sought to enter a nolle prosequi with the acknowledged object of obtaining the opinion of the Court of Criminal Appeal as to whether the ruling was right or not, pursuant to a provision of the Queensland Criminal Code making special provision for such an appeal. The trial Judge refused to permit the nolle prosequi to be entered, and directed an acquittal. On appeal, the Court of Criminal Appeal (Macrossan C.J., Thomas and Lee JJ.) affirmed his decision. Macrossan C.J. said (at 53):
"Recent decisions of high authority have emphasised the power of the courts to control their proceedings in order to prevent abuses of process".
He considered the trial Judge, as he said at 54, "was entitled to insist on receiving the jury's verdict". Thomas J. analysed the problem in detail. He pointed out (at 58) that the entry of a nolle prosequi "is often described as a stay", but that it was "a stay effected by executive action". He drew attention to the analogy of the Attorney-General's power to decide whether to prosecute in the first place, but pointed out that even this power has been held to be subject to the control of the court "to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice": Barton v The Queen (1980) 147 CLR 75 at 95-96, cited by Thomas J. at 59. His Honour went on to say (at 62-63):
"It is the positive consequence of entering a nolle prosequi in the given circumstances which is the basis of a possible undue oppression of the accused person. The negative aspect is the halting of a particular prosecution. The present contest arises not from a desire by the prosecutor to exercise the power to halt a prosecution, but rather from a desire to use at will a procedural device to keep alive the right to prosecute the person concerned. From the accused's point of view it may be a very oppressive privilege that a particular prosecution be halted. We are not concerned in the present case with the conventional exercise of the Attorney-General's power to relieve an accused person of a burdensome prosecution. We are concerned with the potential exercise of the power for the purpose of preserving another opportunity to convict the accused person by presenting another case against him on another occasion.
Examples may be postulated. The right might be asserted when a case has gone badly for the prosecution and it is conceivable that it might turn out better on a re-run; or when the prosecutor has taken [a] risk by proceeding without a witness who was on holidays, 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; or it may occur when the prosecution has chosen to formulate a particular charge, which, after hearing the defence submissions it wishes it had not done; or where the prosecution has legally miscued and the limited powers of amendment make conviction on that trial impossible; it may be too late to amend the indictment and the prosecutor may decide that the only way in which the accused can be convicted will be to start again with another indictment framing a different charge, even though it arises out of the same facts. I do not imply that these are common occurrences, but they need to be identified as some of the less meritorious situations where a prosecutor may make a decision to enter a nolle prosequi, and when the court before which the accused person is being tried may have an entirely different perception.
Mr Sturgess submitted that it was premature for the trial judge to use the power of stay at any time before the prosecution actually launched further
proceedings. He submitted that the appropriateness of exercising the power should only be considered upon the commencement of the further proceeding. I do not think that the power is so limited. 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.
. . .
The entry of a nolle prosequi at the final stages of a trial is effectively an abortion of that trial and a unilateral preservation of rights by one party - the Crown. The accused has been in the jury's charge, but is no longer. The judge tells the jury `the accused is no longer in your charge, and you will not be asked for a verdict. The prosecution has ceased.' The power of the Court to prevent this happening when it is plainly intended as a means of enlivening an almost dead prosecution, and where the further prosecution must be regarded as an oppressive abuse, is simply an aspect of the court's duty to control its own process and to ensure that the accused receives a fair trial. In my view the decision of Shepherdson J. in R. v. Saunders [1983] 2 Qd.R. 270 was correct on the facts of that case, and his Honour correctly expressed the basis of the court's power."
It will be apparent that Thomas J. was by no means denying the appropriateness of a subsequent stay in a case where a nolle prosequi has been inappropriately filed; on the contrary, it was because a subsequent proceeding would in the circumstances be an abuse of process that the Court's power was immediately activated upon the attempt being made to enter a nolle prosequi. It will also be apparent that an argument based on this decision, given in Queensland where there is a special right of appeal following the entry of a nolle prosequi, will be a fortiori where no such special right of appeal exists. But Thomas J. made it clear (at 64) that he thought the special procedure was designed "to permit quick rulings `before a potentially false decision of law has too wide a circulation in the courts'", not "to enhance either the power to enter a nolle prosequi or to truncate the court's powers in relation to the control of criminal trials". He added:
"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."
The third judge, Lee J., drew attention to the decision in Castanho v Brown and Root (U.K.) Ltd [1981] AC 557 at 571 where it was said:
"The Court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J. and Lord Denning M.R. that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of Court."
R v Jell was applied by the majority in R v Ferguson, ex parte Attorney-General [1991] 1 Qd R 35, where again the Crown sought to enter a nolle prosequi after a trial Judge had intimated he proposed to direct the jury to acquit, and the judge declined to accept the nolle prosequi. Although he had taken a wrong view of the law in relation to the circumstances when a nolle prosequi may be entered, the majority held that his decision could not be said to have been outside his power.
The joint judgment of the High Court in Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201 contains the statement: "[E]very court has an inherent jurisdiction to stay proceedings which are an abuse of its process." That power has been the subject of repeated re-examination since then in the context of criminal proceedings. In Barton v The Queen (supra, at 95-96), Gibbs A.C.J. and Mason J. said (in a passage part of which has already been cited):
"It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial."
This principle provides a firm foundation for the Queensland decisions to which I have referred. Many of the relevant cases in the High Court of recent years contain discussions of the statements of the law made by Lord Devlin in Connelly v Director of Public Prosecutions [1964] AC 1,254. There his Lordship said (at 1,347-1,348):
"First, a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English criminal law, and I shall illustrate this with special reference to the framing of indictments. Secondly, if the power of the prosecutor to spread his case over any number of indictments was unrestrained there could be grave injustice to defendants. Thirdly, a controlling power of this character is well established in the civil law.
Under the first head I must observe that nearly the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accused. The doctrine of autrefois was itself doubtless evolved in that way. The process is still continuing, and it is easy to think of recent examples."
Lord Devlin gave (at 1,353) instances of possible abuse by the Crown and injustice to defendants which the court should restrain:
"The Crown might, for example, begin with a minor accusation so as to have a trial run and test the strength of the defence. Or, as a way of getting round the impotence of the Court of Criminal Appeal to order a new trial [at that time this could not be done in England, just as here the Crown cannot have an acquittal set aside in order to obtain a new trial] when, as in this case, it quashes a conviction, the Crown might keep a count up its sleeve."
To have a trial run and then renew the prosecution later, or to attempt to get round restrictions upon appeal designed to protect an accused against the unfairness of repeated prosecution, raised, in his Lordship's eyes, a question of abuse.
In Jago v The District Court of New South Wales (1989) 168 CLR 23 at 27, Mason C.J. referred to the general propositions stated by Lord Devlin, pointing out that Lord Pearce, too, "said that a court has a duty to stop a prosecution which `creates abuse and injustice'". After referring to the acceptance of Lord Devlin's views by the Supreme Court of Canada in Reg. v. Jewitt [1985] 2 SCR 128 and by the Court of Appeal of New Zealand in Moevao v Department of Labour [1980] 1 NZLR 464, Mason C.J. affirmed (at 31) "the general power of a court of justice to ensure fairness". See also Williamson v Trainor [1992] 2 Qd R 572. In Walton v Gardiner (supra, at 393) Mason C.J., Deane and Dawson JJ. said:
"Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings".
Their Honours recognized (at 397) that, in that case, "there had been no full hearing on the merits of the earlier proceedings", so that "the strict rule against double jeopardy" (this I take to be a reference to the autrefois defences - autrefois convict and autrefois acquit) could not apply. In Rogers v The Queen (supra, at 255) Mason C.J. said: "The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories."
It is apparent that there is a great body of authority to support the view taken in the Queensland cases which I have cited. But here, the Crown did not attempt to enter a nolle prosequi; instead, it invited the Court to stay any prosecution of the counts. When it now seeks to pursue the matter, it is seeking to take an advantage which seems to me to be quite unfair. Had the matter followed the normal course, the firmly entrenched principle would have applied that the Crown could not challenge a directed acquittal. That the normal course was not followed was in no way attributable to any action of the respondent. It was the Crown which invited the Judge to make a formal ruling, at first ostensibly for its assistance in the conduct of the case, and later, ostensibly so that it might use the ruling in a different prosecution. There was no hint of any intention to challenge the order it invited the Judge to make. If there had been, the accused would have had what Erle C.J., speaking for the Court of Common Pleas in Bradshaw v Vaughton (1860) 30 LJCP 93 at 96, called "a right to force [the prosecution] on to a conclusion", which would have been impregnable against appeal. It can hardly be doubted that the Judge would have taken the same course as the one the Queensland judges had followed under similar circumstances. Although the trial had not formally commenced, that was only because of the preliminary argument about joinder which, of course, fell away once the Crown invited the Judge to rule on the sufficiency of the evidence to establish the principal counts. Indeed, it would be to exalt formalism above any sense of reality to see a distinction in terms of fairness between the situation in this case and in the three Queensland cases. The matter was listed for hearing before a judge and jury, and both sides told the judge the preliminary argument about joinder should take place before the accused's arraignment, but the intention was that he should be arraigned immediately afterwards. It would have been entirely inappropriate for the ruling to be sought or given except for the purposes of the impending trial.
Although the technical doctrine of autrefois acquit looks to the arraignment and the placing of the accused in the charge of the jury as the commencement of his jeopardy, as I have said, the cases establish a wider doctrine than that of the technical plea. The way the matter was put by Coltman J. in Tunnicliffe v Tedd (1848) 5 CB 553; 136 ER 995 is worth remark. He said (at 560; 998): "Where a true bill is found by the grand jury, and the defendant appears to take his trial, although no evidence is offered by the prosecutor, that is still a hearing." (Emphasis added.) Much more recently, in Regina v Riddle (supra, at 590-591) the Supreme Court of Canada also viewed the matter broadly. Dickson J., speaking for that court, said:
"In my view, a criminal trial commences and an accused is normally in jeopardy from the moment
issue is joined before a Judge having jurisdiction and the prosecution is called upon to present its case in Court."
He also said:
"Speaking generally, it is not readily apparent why the Crown should have the right to decline to adduce evidence in support of its charge and then assert the irrelevance of a dismissal consequent thereon, or why the Crown should be enabled to avoid the effect of refusal of an adjournment by declining to lead evidence and laying a fresh information following dismissal of the first charge."
Each of these statements finds a ready echo in the facts of the present case. The respondent appeared to take his trial when, at the invitation of the Crown, issue was joined before the Judge on the vital question of the sufficiency of the evidence, and that occurred on the occasion of the listing of the matter for hearing, the prosecution being then required to present its case. There was no reason why an adverse ruling should entitle it not to go on, but to seek to challenge that ruling in a way for which the ordinary procedures of the trial did not provide, and to do so, not openly, but using the device of seeking a stay, by which it appeared to accept the ruling. (Cf. article cited above, 75 Yale L.J. 262 at 290.) If it is now permissible to take advantage of what occurred in the way contended for, the stay operated, as Rehnquist J., speaking for the Supreme Court of the United States, put it in Illinois v Somerville (supra, at 469) "as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case." In my opinion, if leave is required, the Court should not grant leave to appeal so as to permit such a course to be followed. Quite apart from the matter of leave, it has been held that a court with appellate jurisdiction in criminal proceedings has "an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision", and within "this ultimate discretionary field ... considerations of what has been called double jeopardy are of particular relevance": R v Holder [1983] 3 NSWLR 245 at 255-256, a passage cited with approval by Deane J. in his dissenting judgment in Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 128. I think the principle is equally applicable here.
There is a narrower basis on which the matter can be put. In Williams v The Queen (1986) 161 CLR 278, an acquittal by direction followed a decision upon a voir dire hearing as to the admissibility of certain records of interview. The statute law of Tasmania contained what Mason and Brennan JJ. described (at 301) as "jurisdiction ... of so exceptional a character", enabling the Crown to appeal against an acquittal on "a question of law alone". Gibbs C.J. (with whom on this issue Wilson and Dawson JJ. agreed) said (at 287):
"In any case, the appeal was not from the decision of the learned trial Judge on the voir dire but from the acquittal. The prosecution, having received an adverse ruling on the voir dire, offered no evidence on the trial. An acquittal in those circumstances was inevitable and if an appeal had been available it would necessarily have been dismissed."
Similarly, an appeal here would not be from the Judge's ruling on the preliminary point, but from the order he made at the invitation of the Crown staying the relevant counts. As the Crown was offering no evidence to sustain those counts, it was inevitable either that the order actually made would be made or that the jury would be empanelled and directed to return a verdict of not guilty. While this is a narrow point, I have been unable to find any authority which suggests that, where the court has a discretion, it should be exercised so as to enable the Crown to ask for a ruling on the core question in a case, and then withdraw in order to test the ruling with a view to proceeding on the same evidence before a possibly more favourable court. Before Lord Devlin had enunciated his view of the controlling powers of the court, it was thought that the Attorney-General had an uncontrolled power to enter a nolle prosequi, and then to prosecute afresh: R v Sneesby [1951] QSR 26. But, as Philp J., an authority on the criminal law, made clear in that case (at 30), this "always seemed [to him] unfair". Where it is sought to be done, not by the exercise of an executive prerogative, but by an application to the court to exercise its discretion, I think the unfairness should result in a clear rejection of the attempt. I would refuse leave to appeal, if it is required, and if it is granted or not required, I would dismiss the appeal.
However, before parting with the case, I shall address briefly the question whether leave is actually required, a question that was not argued and was left open in Smith v Reg (1994) 73 A Crim R 384 at 387, 399 and 416. In Port of Melbourne Authority v Anshun Proprietary Limited (No. 1) (1980) 147 CLR 35, the High Court considered whether an objection to competency could be maintained in respect of an appeal from an order staying an action as an abuse of process upon the principle of extended res judicata for which Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 was authority (and Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 is now authority, although as to the basis of the principle see also Barrow v Bankside Agency Ltd [1996] 1 WLR 257). The Court overruled the objection, which had been supported by the citation of Tampion v Anderson (1973) 48 ALJR 11; 3 ALR 414, distinguishing that case (at 38) on the ground that there "may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata, and Tampion v Anderson has nothing to say about a case of the latter kind." If that is the divide, it seems to me the present case falls on the side of Tampion v Anderson, not that of Port of Melbourne Authority v Anshun Pty Ltd (No. 1). For, in theory, fresh evidence might come to light, so as to enable the Crown to make out a case, not that the stay was wrongly imposed at the time it invited the Court to impose it, but that it ought now to be lifted. On that basis, the stay is clearly not final in effect. (This, of course, is not to suggest that such an application ought to succeed.) Accordingly, leave is required. As I have already said, in my opinion that leave should be refused.
I certify that this and the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.
Associate:
Date: 22 April 1996
Counsel for the Appellant: Mr T.L. Buddin with
Mr S.G. Madden
Solicitor for the Appellant: The Director of Public Prosecutions
Counsel for the Respondent: Mr F.J. Purnell
Solicitors for the Respondent: Gilpin & Associates
Date of hearing: 21 June 1995
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