Tieken v The Queen

[1995] FCA 896

CATCHWORDS

PRACTICE AND PROCEDURE - whether Director of Public Prosecutions of the Commonwealth, having availed himself of s. 30A of the Federal Court of Australia Act, could then discontinue - construction of Order 22 rule 2 of the Rules - leave granted.

Federal Court of Australia Act 1976, ss. 25 and 30A
Federal Court Rules, Order 22 rule 2

IN THE MATTER OF A SUBMISSION PURSUANT TO SECTION 30A OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 OF A QUESTION OF LAW FOR THE DETERMINATION OF A FULL COURT OF THE FEDERAL COURT OF AUSTRALIA.

IN THE MATTER OF A TRIAL UPON INDICTMENT IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BEARING NUMBER SCC 88 OF 1992 IN WHICH THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS WAS THE PROSECUTOR ON BEHALF OF HER MAJESTY THE QUEEN AND IN WHICH JOSEPHUS TIEKEN WAS THE ACCUSED.

AG 90 of 1993

Burchett, Tamberlin and Kiefel JJ.
Canberra
23 October 1995

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )    AG 90 of 1993
GENERAL DIVISION                 )

IN THE MATTER OF A SUBMISSION PURSUANT TO SECTION 30A OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 OF A QUESTION OF LAW FOR THE DETERMINATION OF A FULL COURT OF THE FEDERAL COURT OF AUSTRALIA.

IN THE MATTER OF A TRIAL UPON INDICTMENT IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BEARING NUMBER SCC 88 OF 1992 IN WHICH THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS WAS THE PROSECUTOR ON BEHALF OF HER MAJESTY THE QUEEN AND IN WHICH JOSEPHUS TIEKEN WAS THE ACCUSED.

CORAM: Burchett, Tamberlin and Kiefel JJ.
PLACE: Canberra
DATE : 23 October 1995

ORDER OF THE COURT

THE COURT ORDERS THAT the Director of Public Prosecutions have leave to discontinue the proceedings.

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     )
DISTRICT REGISTRY                )    AG 90 of 1993
GENERAL DIVISION                 )

IN THE MATTER OF A SUBMISSION PURSUANT TO SECTION 30A OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 OF A QUESTION OF LAW FOR THE DETERMINATION OF A FULL COURT OF THE FEDERAL COURT OF AUSTRALIA.

IN THE MATTER OF A TRIAL UPON INDICTMENT IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BEARING NUMBER SCC 88 OF 1992 IN WHICH THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS WAS THE PROSECUTOR ON BEHALF OF HER MAJESTY THE QUEEN AND IN WHICH JOSEPHUS TIEKEN WAS THE ACCUSED.

CORAM: Burchett, Tamberlin and Kiefel JJ.
PLACE: Canberra
DATE : 23 October 1995

REASONS FOR JUDGMENT

THE COURT:

The Court is constituted pursuant to a direction that the Chief Justice gave under s. 25(3) of the Federal Court of Australia Act, 1976.

Having considered the matter, the Court notes that on 30 June 1994 a Full Court constituted by Gallop, Beaumont and Ryan JJ drew attention to the terms of s. 30A of the Act, and to the question whether it would be open to a Director of Public Prosecutions or Attorney-General who had availed himself or herself of that provision then to withdraw.

The Court on that occasion did not decide the point, nor was the Court referred to the terms of Order 22, rule 2 of the Rules.  We consider that Order 22, rule 2 should not be narrowly construed.  We are of the view that it does, on its fair construction, apply in this situation, and that it is entirely appropriate that the Director of Public Prosecutions should be given leave to discontinue pursuant to that rule.  He having indicated by counsel that that is what he would wish to do, the Court grants leave accordingly.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 7 November 1995

Counsel for the D.P.P.:          Mr G.C. Lalor

Solicitor instructing:           The Commonwealth Director of Public Prosecutions

Counsel for the Respondent:      Mr R.G. Thomas

Solicitor for the Respondent:        J. Pappas

Date of hearing:                 23 October 1995