TR v Director of Public Prosecutions

[2020] NSWSC 255

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

TR v Director of Public Prosecutions [2020] NSWSC 255

Hearing dates:

3 March 2020

Date of orders:

20 March 2020

Decision date:

20 March 2020

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Extend time for the plaintiff to appeal to 29 August 2019.

 

(2) Grant leave to the plaintiff to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

 

(3) Appeal dismissed.

 (4) Summons dismissed.

Catchwords:

CRIMINAL PROCEDURE - Stay of proceedings - inherent power to prevent abuse of process - appeal from decision of Children’s Court where stay refused - case involving assault of police officers by a minor - where officers on sick report at time of hearing - where adjournment refused - where prosecutor withdrew charges - withdrawn charges later relayed when officers available to give evidence - whether an abuse of process - whether withdrawal and relaying of charges was designed to circumvent refusal of adjournment - importance of fair trial for the plaintiff - where prosecutor’s withdrawal of charges found to be bon fide by the Magistrate - where public confidence in administration of justice not eroded

  APPEAL - from Children’s Court - by leave - where necessary to show question of law involved - where prerogative relief also sought – whether Magistrate asked the right question - no error of law - summons dismissed

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) s 33
Crimes (Appeal and Review) Act 2001 (NSW) s 53
Criminal Procedure Act 1986 (NSW) s 208
Supreme Court Rules 1970 (NSW) Pt 51
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Barton v The Queen (1990) 147 CLR 75
Director of Public Prosecutions v “A” (A child) [2001] WASC 2
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302; (2012) 222 A Crim R 286
Fox v Attorney-General (NZ) [2002] 3 NZLR 62
Jago v District Court of NSW (1989) 168 CLR 23
L v Director of Public Prosecutions [2003] NSWSC 1246
Meagher v Stephenson (1993) 30 NSWLR 736
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v His Honour Judge C.F McLouglin and Cooney, ex parte, the Director of Public Prosecutions [1988] 1 Qd R
R v YL [2004] ACTSC 115
Ridgeway v R (1995) 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
The Queen v Glennon (1992) 173 CLR 592
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 361 ALR 23
Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10
Walton v Gardiner (1993) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509

Texts Cited:

Nil

Category:

Principal judgment

Parties:

TR (Plaintiff)
Director of Public Prosecutions (First Defendant)
Children’s Court of NSW (Second Defendant)

Representation:

Counsel:
S Lawrence (Plaintiff)
F Veltro (First Defendant)
Submitting appearance (Second Defendant)

  Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Plaintiff)
Office of the Director of Public Prosecutions NSW (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2019/269343

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Children’s Court of NSW

Jurisdiction:

Civil

Citation:

Nil

Date of Decision:

25 June 2019

Before:

Magistrate Williams

File Number(s):

2019/110242

Judgment

1. By a summons filed 29 August 2019 the plaintiff seeks an order in the nature of certiorari quashing an order of the Local Court which refused an application for a stay of proceedings, and a declaration that the withdrawal and subsequent reinstatement of charges against the plaintiff was an abuse of process. The plaintiff seeks, in the alternative, leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review Act) 2001 (NSW) (“CARA”), an order pursuant to s 55(3)(a) setting aside the order, and for an order that the charges be permanently stayed as an abuse of process.

2. The police prosecutor was originally named as the first defendant, but the defence of the proceedings has since been taken over by the Director of Public Prosecutions (NSW). The plaintiff joined the Children’s Court of NSW as a second defendant contrary to Pt 51B r 10(3) of the Supreme Court Rules 1970 (NSW). Nothing turns on that for the purposes of the appeal, but I shall refer to the DPP simply as the defendant.

3. The decision of the Magistrate was made on 26 June 2019. That means that the appeal under the CARA is out of time and needs an extension of time under Pt 51B r 6 of the Supreme Court Rules. The defendant does not oppose an extension of time. The application for prerogative relief was filed within the time provided in Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW).

The offending

4. A little after 8:30pm on Friday 13 April 2018 the plaintiff and three other girls were seen arguing and physically fighting as they left a platform at Wollongong railway station, with the altercation continuing on the footpath outside the station in Railway Parade. This conduct gave rise to the charge of affray, (seq 1).

5. At about 8.40pm officers attached to the Police Transport Command (Senior Constable Alderton and Senior Constable McDonald) arrived and pursued the plaintiff as she and some of the other girls attempted to flee. Police stopped the plaintiff and took hold of her upper left arm and began to inform her she was under arrest. The plaintiff started to pull away, spun around, and with her right closed fist punched Senior Constable Alderton’s bottom right lip. This conduct constituted the charges of resist officer in execution of duty (seq 2) and assault police officer in execution of duty, (seq 3).

6. Senior Constable McDonald assisted in restraining the plaintiff with handcuffs. The plaintiff continued to struggle, kick at police and yell obscenities. As she was being carried to the police vehicle the plaintiff spat into Senior Constable McDonald's right eye (assault police officer in execution of duty - seq 4). The plaintiff also kicked Senior Constable Paul’s legs and spat on his shoulder (assault police officer in execution of duty - seq 6).

7. The plaintiff was conveyed to Wollongong Police Station. Police subsequently attempted to remove the plaintiff from the vehicle. She was yelling and kicking the door of the police vehicle. The plaintiff said to Senior Constable Simpson, "I'm gonna fuckin hurt you, you dumb fat slut. I'm gonna spit on you. You're gonna feel my spit on you, you fat skank." The plaintiff was removed from the vehicle and taken to the custody area. She continued to thrash at police yelling "You fat slut, I'm gonna hurt you, fuck I'm gonna rape you, you're gonna pay, fuck you." As her handcuffs were removed, the plaintiff grasped, scratched and punched Senior Constable Simpson's arms causing redness and bruising to her left forearm and a shallow laceration and scratching to her right arm, (assault police officer in execution of duty - seq 7).

8. Whilst in the custody dock, the plaintiff removed a mobile phone from her pants. Senior Constable Murkin entered the dock and asked the plaintiff for the phone which she refused to hand over. After being refused a second time, Senior Constable Murkin attempted to remove the phone from the plaintiff’s hands. The plaintiff proceeded to punch Senior Constable Murkin to the head with her fist about six or seven times, (assault police officer in execution of duty - seq 5). During this assault the plaintiff damaged the spectacles worn by Senior Constable Murkin, (destroy or damage property - seq 8).

9. As a result of the assaults, two officers, Senior Constable Murkin and Senior Constable Simpson were placed on long term sick report, and were consequently unavailable to give evidence at the hearing listed on 4 July 2018.

10. According to JusticeLink the plaintiff was bail refused in respect of the eight charges laid 13 April 2018.

The withdrawal of the charges

11. On 29 May 2018 the eight matters were fixed for hearing on 4 July 2018.

12. Given the unavailability of Senior Constable Murkin, on 13 June 2018 Senior Constable Alderton sought the advice of Sergeant Gilmore, Illawarra Children's Court Team Leader. She recommended that the charges involving that officer be withdrawn, because if they were to be dismissed the police would not be able to re-commence the prosecution once Senior Constable Murkin was fit to give evidence. Approval was given by Chief Inspector James to withdraw the two charges.

13. On 22 June 2018 Senior Constable Alderton sought approval to withdraw the charge involving Senior Constable Simpson due to her unavailability to give evidence, with a view to recommencing the proceedings when she was fit to give evidence. That approval was given.

14. An application by the police to vacate the hearing date due to the unavailability of the two police officers to give evidence was filed on 14 June 2018 and listed on 19 June 2018. Magistrate Williams refused the application on the ground that the plaintiff was on remand and his Honour did not want the hearing to be delayed.

15. On 4 July 2018 the charges in sequences 5, 7 and 8 were "Dismissed - Withdrawn". Either earlier at that listing on 4 July 2018 or at the previous listing on 19 June 2018 the police prosecutor, when indicating an intention to withdraw the charges, also indicated to the Court and the plaintiff’s solicitor at the time that the police may wish to reinstate the charges at some time in the future after the officers returned from sick leave.

16. The hearing of the remaining five matters followed the withdrawal of the three charges. The JusticeLink entries indicate that those five offences were proven, the matters then being stood over for sentence to 17 July 2018, and the plaintiff remained bail refused on those five matters. On 17 July 2018 she was sentenced to good behaviour bonds without conviction under s 33(l) of the Children (Criminal Proceedings) Act 1987 (NSW). By that time, the plaintiff had already spent approximately three months in custody.

Re-charging of the plaintiff

17. On 5 April 2019 Senior Constable Alderton re-charged the plaintiff with the three offences that had previously been withdrawn, the CANs being returnable before Port Kembla Children's Court on 19 June 2019.

18. On 13 May 2019 the plaintiff’s solicitor, Mr Healy, caused a subpoena to produce to be issued by the Children's Court at Port Kembla. It was directed to the Commissioner of NSW Police Force Subpoena Section, and called for all documents concerning the withdrawal of the three charges and their subsequent re-laying. These documents were subsequently produced and made available. They disclosed what appears at [12]-[13] above.

Application for a stay

19. On 13 June 2019 an application to stay the prosecution as an abuse of process was filed. That application was heard 25 June 2019 and was refused.

20. According to JusticeLink the prosecution has been stood over for mention on 31 March 2020.

21. At the application for a stay, the parties had available a disc containing what was said at the time the prosecutor withdrew sequences 5, 7 and 8. It was accepted, however, that during that day the matter had been earlier mentioned, although the disc of the recording of those matters was not available.

The Magistrate’s judgment

22. For ease of reference only, I will attach paragraph numbers to the Magistrate’s judgment. In his judgment the Magistrate said this about the unrecorded matters:

[3] … And I have a recollection that the prosecution also indicated on the record - either on the day of the vacation of the hearing date or at some stage during the day on the day of the hearing - that the prosecution intended to withdraw those charges, but may consider reinstating them when those officers returned to work. …

[4] [4] … MR HEALY fairly says that he doesn’t take issue with me making those findings on the record, because they go - erm, they are, as I say, matters which I recall, which the Sergeant recalls, … . Ultimately, my determination in this matter doesn’t turn on whether the Sergeant said, at the time, that they proposed to reinstate the charges or not, though it is a matter which certainly assists the prosecution’s case.

23. The Magistrate went on (at [6]-[7]) to quote paragraphs [19]-[21] of Jago v District Court of NSW (1989) 168 CLR 23.

24. His Honour then noted (at [8]) that he had refused an application to vacate the hearing date because, at the time, the plaintiff was 13 or 14 years old and was bail refused on the matters charged. His Honour considered at the time that the matters needed to be progressed quickly. His Honour noted that the prosecution was in a difficult position because two of its witnesses were unavailable. He said there was no issue of double jeopardy and no issue of the mere re-laying of the charges.

25. His Honour then said:

[9]   The prosecution, uh sorry, the applicant’s submissions hinge around the concept of delay in combination with the proposition that, if an adjournment had been, asked, sought in relation to these two (sic) charges only, for the twelve months or so that passed between the hearing of the charge and the re-laying of those which were withdrawn, then I wouldn’t have granted it. That is an interesting submission, and it’s put on the basis that the Court shouldn’t be allowing the Prosecution to circumvent the operation of other provisions of the Criminal Procedure Act and matters of law. What I’m fundamentally looking at is not some punitive and retrospective approach to actions taken by the Prosecution in the past, but to the fundamental question of jurisdiction that’s enlivened by the issue of an abuse of process.

[10]   All things being equal, it is the fundamental duty of the Court, which is seized of competent jurisdiction, to resolve all matters brought by the parties before it in the usual way. … That is the Court’s most fundamental function. In an exceptional case, the conduct of the Prosecution, or other circumstances, may demonstrate that the, um, process is so far from the understood standards of fairness that it would amount to an abuse of process. I’ve already referred to the decision of Jago about the unusual nature of that remedy in the extreme circumstances that, entertain, enliven that jurisdiction.

[11]   Merely sending a message to the prosecuting authority or to the community in some other way is not a function of the Court when determining a question of an abuse of process. It is to consider whether, at its heart, the trial of the accused could be fair. And so it seems to me that, whilst it is a matter that I ought take into account, the fact that I may have taken a certain position on an adjournment application - and, frankly, I don’t know what position I would’ve taken; it would depend on ail of the evidence at the time - um is not a matter which is demonstrative of an abuse of process in and of itself. And in this case, in combination with the delay, which has been referred to, it is not a matter which elevates this case to one of an abuse of process.

[12] … It is really a matter where, as I’ve said, the application is based on a concern to regulate the use of withdrawing of charges for adjournment purposes. I accept, on the basis of factual findings that I've already made, that the Prosecution withdrew the charges bona fide because the witnesses were on sick report and the Prosecution was unable to get them to Court. The only evidence that I have is from the Bar Table that, firstly, Mr Healy cross-examined one of those witnesses in December of this year, and secondly, the Sergeant says that witness returned to work in around February this year. And it has taken a little time to progress since then, but time in the order of six or so months is not an inordinate delay, noting - as the Court said in Jago - that there is not a constitutional right to a speedy trial, although it is always to be advanced if at all possible, particularly with young people.

[13]   I am sensitive to the fact that TR is young; that she has already been to a hearing for these matters generally, though not for these charges specifically; and that her life has moved on since that time. But, as I’ve already indicated, to find that a matter is an abuse of process is an extreme step, that the Court says - er, in which the Court says that it will essentially refuse to exercise its most fundamental jurisdiction to resolve the charges which have been brought before it. That is an exceptional remedy; this is not an exceptional case. The explanation for why the charges didn’t proceed on a different day and did proceed on today - inaudible - have proceeded since, is one which does not amount to an abuse of process.

[14]   In the decision of L v DPP, an unreported decision of the Supreme Court of New South Wales 2003, NSWSC 1246, propositions were put to the Court that, where a complainant in a sexual assault matter had decided before trial that she didn’t want to proceed and then later - some considerable time later - decided she then did want to proceed, it was not an abuse of process to re-lay the charge that was withdrawn. That is, it seems to me, not greatly different from the present case. All these matters turn on questions of degree and the amount of time that’s passed, amongst other things. But there is, in principle, a similarity between that case and this. It is the case, the Court said at paragraph 19, that “there may be cases in which the combination of delay and the complainant’s behaviour is such that it would not be responsible to reinstitute a prosecution and to do so would amount to an abuse of process”, and I agree; there may be such cases. But here, when the Prosecution acted in good faith, the witnesses were injured and were unable to attend, they later became able to attend and within not the quickest time, but a not inordinately delayed time - noting that the matter had to progress through advice, through the chain of command - the charges were reinstated. I’m satisfied that this is not in the realm of the extreme case required to demonstrate an abuse of process. The application is dismissed.

Grounds of appeal

26. The grounds of appeal are these:

(i)   The learned Magistrate erred in not determining whether the withdrawal of the proceedings was designed to frustrate the court determining the matter and whether this amounted to an abuse of process.

(ii)   The learned magistrate erred in holding that the applicable question on the application for a permanent stay was whether a fair trial was possible, rather than determining whether there had been an abuse of process.

(iii)   The Magistrate erred in not permanently staying the proceedings as an abuse of process.

27. These grounds are, of course, directly referable to the statutory appeal, but they also serve to identify what is said to be the error of law on the face of the record.

The plaintiff’s submissions

28. The plaintiff submitted that there was an error of law on the face of the record in that the Maigstrate failed to apply the correct test by holding that it was necessary for the plaintiff to demonstrate that her trial would be unfair. The plaintiff submitted that what was involved in the grounds of appeal were questions of law only, which entitled her to appeal from an interlocutory order under s 53(3)(b).

29. The plaintiff submitted that the question of law can be stated as follows:

Is it necessary for a criminal accused seeking a permanent stay of proceedings on the basis that a matter has been withdrawn (and then reinstituted) to avoid an adverse order, to show that any trial will be unfair before a stay can be granted?

30. The plaintiff submitted that in cases where oppression is relied upon as the basis for abuse of process, it is not necessary to show that the trial process itself will be unfair. Reference was made to Walton v Gardiner (1993) 177 CLR 378 at [24] to [25]; Ridgeway v R (1995) 184 CLR 19 at [33] to [35] and Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 361 ALR 23 at [249]. In that regard the plaintiff submitted that she relied upon a limb of abuse of process that rests upon the need to maintain public confidence in the administration of Justice, and that whether there is such an abuse of process is not determined by examining the question of whether a fair hearing or a fair trial is possible.

30. The plaintiff submitted that the institution of a multiplicity of court proceedings can be oppressive and therefore an abuse of process.

31. The plaintiff submitted that the position was similar to cases involving the entry of a nolle prosequi and cases which have held that there has been an abuse of process from such an entry.

32. The plaintiff submitted that where the prosecutor seeks an order to vacate an adjourned criminal proceeding, is unsuccessful and then elects not to appeal or re-agitate that order by seeking to put additional material, it is necessarily an abuse of process to withdraw a charge to avoid the consequences of that adverse order by way of reinstituting the proceedings at a later time. That was the matter which the Magistrate should have focused on, it was submitted, rather than weighing things up to see if there was an affront to justice in a more global sense.

The defendant’s submissions

34. The defendant pointed to the acceptance by the plaintiff’s lawyer at the application for a stay before the Magistrate that no allegation of impropriety or bad faith on the part of the police was suggested. In that regard, the defendant pointed to what the Magistrate recorded in his reasons that, when the Prosecutor sought to withdraw the charges, he said that he may consider reinstating the charges when the police officers returned to work.

35. The defendant submitted that the Magistrate was alive to the issue on the application which was concerned with regulating the use of withdrawing charges for adjournment purposes. In that way, the defendant submitted, the Magistrate’s decision was not simply on the basis that the plaintiff was prevented from having a fair trial. In any event, the defendant submitted, the only potential oppression or prejudice to the plaintiff was said to be that the plaintiff was young and ought to be able to put these matters behind her once the charges were withdrawn.

36. The defendant submitted that the withdrawing and re-laying of charges was authorised by s 208 of the Criminal Procedure Act 1986 (NSW) and it was open to the Magistrate to find that doing so did not amount to an abuse of process.

37. The defendant submitted that the only reason the adjournment was refused was because the plaintiff was in custody bail refused and, if the matter was to proceed, it had to proceed quickly, particularly given her young age. The defendant submitted that the offences were serious and there remained substantial public interest in having those offences dealt with.

38. The defendant submitted that the question of whether the charges were withdrawn to circumvent the refusal of the adjournment is a mixed question of law and fact. In those circumstances, the plaintiff cannot appeal to his Court, nor is certiorari available, because either remedy requires a question of law alone or an error of law.

Legal principles

39. The following principles may be derived from cases, principally in the High Court of Australia, which have considered the concept of abuse of process and a stay of proceedings.

40. First, the Court has a prima facie obligation to exercise its jurisdiction. In Jago v District Court of NSW Gaudron J said (at p. 76):

The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised.

41. In Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50, the plurality said at [11]:

Of particular relevance to the present case is the observation of the plurality in Batistatos, to which reference was made in Dupas v The Queen, which emphasised that the power to stay proceedings for abuse of process applies to civil and criminal proceedings "with somewhat different emphases attending its exercise". In Dupas, this Court reiterated that the power "exist[s] to enable the courts to protect themselves and thereby safeguard the administration of justice". But the Court emphasised that, in considering whether to grant a stay, there is a "need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial ... as a permanent stay is tantamount to a continuing immunity from prosecution".

42. In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20, the plurality cited with approval at [17] passages from a judgment of McGrath J, giving the reasons of the New Zealand Court of Appeal in Fox v Attorney-General (NZ) [2002] 3 NZLR 62:

In our system of government, the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of Executive Government rather than the Courts. That allocation of the function recognises the governmental interest in seeing that justice is done and community expectations that criminal offenders are brought to justice are met.

After noting that the decision by a public official to prosecute involves the exercise of a public power, McGrath J continued:

The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court's own function of responsibility for conduct of criminal trials.

43. Most recently, in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions, the judgment of Kiefel CJ, Bell and Nettle JJ said (at [106]):

Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.

44. Secondly, and coupled with the first principle is the notion that it is only in exceptional cases that a stay will be granted: Jago at pp.31 and 76; Dupas at [33]; Strickland at [62], [100], [106], and [248]; The Queen v Glennon (1992) 173 CLR 592 at 605; Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [136].

45. Thirdly, it is clear that the categories of abuse of process which might result in a stay extend beyond the initiation of proceedings for an ulterior and improper purpose. In Rogers v The Queen (1994) 181 CLR 251 Mason CJ said (at pp. 255-256):

[3]   … The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories (Hunter v. Chief Constable (1982) AC at 536 per Lord Diplock.). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.

[4]   Williams v. Spautz ([1992] HCA 34; (1992) 174 CLR 509) is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression (ibid. at 520, endorsing Moevao v. Department of Labour (1980) 1 NZLR 464 at 482.). In Walton v. Gardiner ((1993) 177 CLR 378 at 395.) it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. In that case, Mason CJ, Deane and Dawson JJ stated that the inherent jurisdiction of a superior court to stay its proceedings for abuse of process (ibid. at 393.):

“extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness".

Their Honours went on to say (ibid.):

"(P)roceedings 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 had already been disposed of by earlier proceedings".

[5]   Statements to the same effect have been made by the House of Lords (Hunter v. Chief Constable (1982) 1 AC at 536.) and the New Zealand Court of Appeal (Moevao v. Department of Labour (1980) 1 NZLR at 481.). These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v. Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations ((1993) 177 CLR at 395-396.). Those considerations, which reflect the two aspects of abuse of process outlined above, include (ibid. at 396.):

"the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice".

46. In the same case, McHugh J said (at 286-287):

[16]   Inherent in every court of justice is the power to prevent its procedures being abused (Hunter v. Chief Constable of the West Midlands Police [1981] UKHL 13; (1982) AC 529 at 536.). Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1)   the court's procedures are invoked for an illegitimate purpose;

(2)   the use of the court's procedures is unjustifiably oppressive to one of the parties; or

(3)   the use of the court's procedures would bring the administration of justice into disrepute.

Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. In Walton v. Gardiner ((1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process "extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave three examples of such an abuse of process (ibid.). One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings (See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath (1889) 14 App Cas 665.) is the paradigm example of such a case.

47. In Moti the plurality said at [10]:

As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW), "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories". In Ridgeway v The Queen, Gaudron J stated that the power extended to proceedings that are "instituted for an improper purpose", "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment". In Williams v Spautz, the plurality distinguished between "abuse of process in the sense of proceedings instituted and maintained for an improper purpose" and "abuse of process [that] precluded a fair trial". In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute".

48. In Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Mason P (with whom Beazley JA agreed) said at p.134:

Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding

an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally:

see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited” [1995] Crim LR 864.

49. In Strickland, Edelman J said:

[248]   A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court. The latter category, which can be conveniently described as protecting the "integrity of the court", is the concern of these appeals.

[249]   "Abuse of process" may not be the best language to describe the category where the focus is upon the integrity of the court generally rather than its particular processes. The rationale for this category has been described in various ways. The rationale has been described as being "a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law". It has been described as avoiding "an erosion of public confidence". It has also been described as arising where a trial would bring the administration of justice into disrepute. Each of these verbal formulations attempts to capture a concern for the systemic protection of the integrity of the court within an integrated system of justice. The possibility of an unfair trial, or a degree of unfairness in a trial, may be a factor contributing to that concern. But an unfair trial is not a prerequisite for a permanent stay in this category.

50. Fourthly, although the decision to stay proceedings is said to discretionary, the discretion is not at large. Whether a stay should be granted is bound up with a finding of abuse of process. In R vCarroll (2002) 213 CLR 635; [2002] HCA 55 Gaudron & Gummow JJ said at [73]:

The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.

51. Fifthly, fairness to an accused is not the sole criterion when a court decides whether a criminal trial should proceed: Jago at p.30; Williams v Spautz (1992) 174 CLR 509 at p.521; Dupas at [37]. However, fairness is a significant consideration where vexation or oppression is alleged: Walton v Gardiner at p 396; Shirvanian at p 134; Rogers at [4], [5] and [16]. It may also be a concern within the context of protecting the integrity of the court: Moti at [57]; Strickland at [249]; R v YI [2004] ACTSC 115 at [88].

Determination

52. Somewhat ironically for the issue to be determined in the present case, the Court of Appeal has said that it may be an abuse of process to bring proceedings for prerogative relief when there is a statutory appeal route available: Meagher v Stephenson (1993 30 NSWLR 736 at 737-8; Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [8]; Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302; (2012) 222 A Crim R 286 [3]-[6]. While no point was taken by the DPP about the relief claimed, the authorities indicate that if relief is available via the statutory route, then that is the relief which ought to be given. I shall, therefore, first consider the matter under s 53 of the Crimes (Appeal and Review) Act. The grounds of appeal must involve a question of law alone, and leave needs to be given.

53. The DPP raises what is essentially a preliminary question of whether the grounds of appeal involve a question of law alone. The submission is that, the issue of whether the prosecution withdrew the charges to circumvent the refusal of the adjournment, is a mixed question of law and fact. However, that is not an issue I have to determine because the Magistrate accepted that the prosecutor withdrew the charges bona fide. Further, the plaintiff in the Local Court noted in her written submissions that no allegation of knowing impropriety or bad faith on the part of the Police was suggested. The plaintiff’s submission was that an abuse of process could still occur despite a lack of bad faith: Director of Public Prosecutions v “A” (A child) [2001] WASC 2 at [24] and [35].

54. To the extent that ground 1 seeks to have this Court reach a different view from the Magistrate that the prosecutor acted bona fide in withdrawing the charges, that ground would involve a mixed question of law and fact. The plaintiff accepted in submissions made to the Magistrate that no allegations of impropriety or bad faith were made. The plaintiff should not be entitled to withdraw from the position taken before the Magistrate. If the prosecutor acted bona fide, the withdrawal could not have been designed to frustrate the court determining the matter. If that is what ground 1 does, leave should be refused.

55. The only reference made to ground 1 in the submissions on behalf of the plaintiff was in oral submissions where it was said that the Magistrate erred at the outset in identifying the wrong question. That wrong question was said to be whether the hearing or trial could be a fair one. If that is what ground 1 is directed to, it is the same point as ground 2, expressed a different way. In the circumstances, I consider that I should regard ground 1 as involving a question of law alone.

56. In my opinion, ground 2 involves a question of law alone. To the extent that ground 3 is derivative of ground 2 alone, it also involves a question of law alone. On the assumption I have made about ground 1, the issue raised in grounds of appeal is an important one, and for that reason leave should be given to argue those grounds. In doing so, I will not go behind the Magistrate’s determination that the prosecutor’s action in withdrawing the charges was made bona fide.

52. It is clear from the plaintiff’s written submissions in the Local Court (at paragraph 19) that she maintained that there were two matters which made out an abuse of process. The first was the withdrawal and re-laying of charges where an appeal was available. The second was the delay in re-laying the charges especially where there was a juvenile on remand. During the hearing of the application, the following exchange occurred:

HIS HONOUR: So your submissions fundamentally boil down to delay, do they, is that it?

MR HEALY: Essentially, my submissions are that if the Prosecution had asked for an adjournment of a year on the basis that, uh, these officers were sick, it would have been refused; and that section 208 shouldn’t be used to essentially strip the Court of the power to decide whether matters should be brought before the Court or not.

58. Section 208 of the Criminal Procedure Act provides:

208   Dismissal of matter if matter withdrawn

(1)   If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.

(2)   The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.

59. This section is somewhat analogous in summary proceedings to the entry of a nolle prosequi in proceedings on indictment. Indeed, as noted earlier, the plaintiff sought to argue that principles concerning abuse of process where a nolle prosequi had been, or was about to be, entered were equally applicable to s 208: for example, in YL at [85]–[89].

60. In YL, the Crown Prosecutor brought to court a nolle prosequi signed by the DPP. Pre-trial matters, including the compellability of the complainant who was a child, and the admissibility of prior representations of the child, were argued. Crispin J ruled against the Crown on those matters making an acquittal likely. The Crown sought to enter the nolle prosequi with the stated intention of seeking leave to appeal against the rulings. Crispin J, in refusing to permit it to be entered said:

[62]   The attempt to enter a notice purportedly issued under s 7(6) of the DPP Act to decline to proceed further and bring the prosecution to an end was clearly made with the intention of aborting the trial so that otherwise inevitable verdicts of acquittal could be avoided and the Crown would have the opportunity to consider the possibility of obtaining leave to test any of my rulings on appeal. I was concerned at the adoption of this approach, which I understood to be without precedent in this Territory and after some debate asked the Crown Prosecutor to arrange for the Director to appear personally to deal with the issue.

…

[85] Furthermore, the use of a nolle prosequi followed by such an application would effectively circumvent the provision in s 37S of the Supreme Court Act, preventing any decision on a reference appeal from again exposing the accused to conviction for the same offences.

[86]   In any event the Director was unable to say whether he would apply for leave to test any of the rulings. He was obliged to contend that he was entitled to enter a nolle prosequi for the purpose of keeping his options open until I had given reasons and he had had the opportunity of reviewing the transcript and considering his position.

[87]    Thirdly, in my opinion, the entry of a nolle prosequi in these circumstances clearly constituted an abuse of process. The accused, like any other person facing criminal charges in this country, was entitled to verdicts of acquittal if the Crown failed to prove her guilt to the requisite standard at her trial. Notwithstanding that entitlement, it remained open to the Director to enter a nolle prosequi if of the view that the charges should not be maintained. However, it was not appropriate for this procedure to be used as a means of aborting the trial because it had gone badly for the prosecution and it hoped to do better in a subsequent trial, even if those hopes were dependent upon a vague hope of ultimately obtaining favourable rulings on appeal.

[88]   As I said during the course of argument, that would be as unfair as allowing a sporting team to cancel a match because it was losing and hoped to do better next time. I am conscious of John Stuart Mill’s lamentation that “even instructed Englishmen speak and act as if they regarded a trial as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play.” (quoted by Jeremy Bentham, Rationale of Judicial Evidence, Specially applied to English Practice, Vol 5, London, Hunt & Clark, 1827 at 318). The public interest in the effective administration of criminal justice should never be overlooked. However, fairness is an indispensable requirement of the criminal justice system in any civilised society and the game analogy is widely used in discussion of such issues (see, for example, Firak, N L , ‘Ethical Fictions as Ethical Foundations: Justifying Professional Ethics’ (1986) 24 Osgoode Hall L J 35, at 56, Curtis, C P, Law Large as Life, Simon & Schuster, New York, 1959, at 1181 & Cardoza, B N , ‘Faith and a Doubting World’, Selected Writings of Benjamin Nathan Cardoza, ed by Hall, M E , Matthew Bender, New York, 1947, 99, at 101). The analogy may perhaps be of value in pointing to the minimum standard of fairness that a person accused of a criminal offence and at risk of being sent to prison is entitled to expect. It would plainly be unfair for one party to be permitted to come to court intending to continue with the trial only if rulings were made in its favour and to use a pre-signed document to stop the proceedings if they were not.                  (emphasis added)

61. I note, first, that Crispin J appears to have determined the abuse of process on the basis of fairness (at [88]). Nevertheless, the particular circumstances leading to the application to enter the nolle prosequi in that case mean that it has little application to the circumstances of the present case. For one thing, pre-trial procedures had advanced to the point where the rulings meant that an acquittal was likely. Justice Crispin’s remarks at [87]–[88] and his approach to the issue must be seen in that light.

62. Of more significance for the present matter is the decision of the Full Court of the Supreme Court of Queensland in R v His Honour Judge C.F McLouglin and Cooney, ex parte, the Director of Public Prosecutions [1988] 1 Qd R. In that case, the District Court judge had stayed proceedings in circumstances where, it seems, an adjournment of a trial had been refused because of the unavailability of a Crown witness, a nolle prosequi was entered, and a later indictment containing the same charges was presented.

63. In giving the judgment of the Court overturning the stay, Andrews CJ (Williams and Moynihan JJ agreeing) said (at p 469):

I deem it advisable to discuss argument to the effect that the Crown in entering a nolle prosequi and later presenting an indictment containing the same counts was, having regard to the first listing of the matter, an abuse of the processes of the court. This is in effect to contend that the Crown has manipulated the processes of the court or gone behind them to obtain an advantage over the accused or to prejudice him in some way.

64. His Honour then quoted from a number of English authorities, and from Barton v The Queen (1990) 147 CLR 75, which discussed the circumstances where proceedings would be stayed for an abuse of process. The Chief Justice then said (at pp 471-2):

In R. v. Sang [1980] A.C. 402 … Lord Scarman at 455 emphasised that the concern of courts is to see that an accused person has a fair trial according to law and except in the very rare situation of an abuse of the processes of the court the judge is concerned only with the conduct of the trial. This statement has to be interpreted in the light of the public interest which is concerned with the fairness to an accused person and the public interest which is concerned with the protection of the community against the commission of criminal offences and consistently with this to see that criminals are brought to justice. What I am however concerned to emphasise it that there is an authoritative statement to the effect that the action which justifies the stay of criminal proceedings instituted in an exercise of the prerogative of the Crown will be rare indeed. I point out that in Barton’s case the decision was not one in which the High Court ordered a stay of proceedings but rather in which it held that in the circumstances the Supreme Court of New South Wales should consider in the light of the principles stated by the High Court whether a stay should be ordered in respect of some of the indictments with which argument before it had been concerned and in which a stay might allow committal proceedings to be held. The decision in no sense declared that there was an absolute requirement that committal proceedings be always held but that in the case of an ex officio indictment the power to stay or postpone proceedings depends upon a balance of the interests of the accused and the interests of the community; that it was not an essential prerequisite of a fair trial that it be preceded by committal proceedings. What ultimately emerges from the decision is that a trial without committal proceedings unless justified on strong and powerful grounds may well be considered unfair and that any stay in contemplation was simply to await the conducting of committal proceedings.

The authorities establish that the principal concern is that there be a fair trial and whether in the circumstances an accused person has been prejudiced by reason of events flowing from the actions of the prosecuting authority. It is clear enough that if there has been unconscionable delay caused either deliberately or inadvertently the result of which is to prejudice an accused person in the matter of his having a fair trial, then the court before whom the proceedings are brought has a constitutional jurisdiction to order a stay of further proceedings notwithstanding that the power of the Crown or the prosecuting authority is not subject to examination. A major concern is that once proceedings are brought in a court it has the power to regulate them so as to ensure justice. If therefore, there has been some conduct on the part of the prosecuting authority which might generally be regarded as an abuse of process, it would need to result in prejudice to an accused in his obtaining a fair trial in order to justify a stay of proceedings. Otherwise it is generally not the concern of courts to punish behaviour on the part of agents of the Crown or prosecuting authority by a stay of proceedings but rather to look to other means of guarding the effectiveness of their processes. (emphasis added)

65. I note that the Magistrate’s reasons (at [9]-[11]) in the present case echo what was said in Cooney, particularly in the emphasised passages.

66. It may be accepted that the Magistrate emphasised the importance of a fair trial to the plaintiff, but did not do so by ignoring the principle of safeguarding the administration of justice. In his judgment at [9] and [12] the Magistrate made reference to the submission and “concern” of the plaintiff’s lawyer about “withdrawing of charges for adjournment purposes”. His Honour was satisfied that they were withdrawn bona fide because the witnesses were sick.

67. His Honour (at [14]) then went on to refer to and rely on the decision of Hidden J in L v Director of Public Prosecutions [2003] NSWSC 1246, a case which his Honour correctly held was not greatly different from the present case. In L, the plaintiff was charged with three counts of aggravated indecent assault on his stepdaughter. The plaintiff was charged on 25 April 1997 but in July 1997 the complainant told the police that she did not wish to give evidence. She was then aged 15. The charges were withdrawn. In August 2002 the complainant made a further statement to the police telling them that she was prepared to give evidence because she was older and better able to cope with the proceedings. In October 2002 fresh charges were laid. The plaintiff sought a permanent stay of the new charges on the basis that they were an abuse of process, but the stay was refused by the magistrate.

68. On an appeal to this Court, Hidden J said at [16]:

…There is no suggestion that the Director sought to withdraw the charges against the plaintiff in 1997 because of any perceived weakness in the prosecution case. Clearly, it was the question of the complainant’s preparedness to give evidence which governed both the withdrawal of the charges and their subsequent reinstatement. Of course, the complainant could have been compelled to give evidence in 1997 but, given the delicate nature of matters such as this, it is entirely understandable that the Director chose not to proceed at that stage. Equally, one can understand that the plaintiff may well have assumed that the withdrawal of the charges was the end of the matter and that this chapter of his life was closed. Unfortunately, as his Worship rightly observed, that withdrawal was not a final disposition of the proceedings: Lay v Cleary (James J, unreported, 23 February 1993).

69. It was suggested in that case that the magistrate should have found that the complainant had an ulterior motive in agreeing in 2002 to give evidence, being the heightening of a dispute between her mother and the plaintiff. Justice Hidden said:

[18]   It does seem that the magistrate dealt with the matter with a measure of informality which might not have been appropriate if the complainant’s motive were a significant issue to be determined. In my view, however, his Worship was correct in finding that it was not. While acknowledging her obvious interest in the outcome of the proceedings, she was a witness, not the prosecutor. While her preparedness to give evidence no doubt influenced the Director’s decision to re-institute the prosecution, that decision was the Director’s, not hers. Of course, Mr Thangaraj does not contend that there is any ulterior motive on the Director’s part.

[19]   This is not to suggest that in cases such as this the prosecutorial decisions of a public authority should be at the whim of a complainant. Nor is it to deny that, in the decision of such an authority to withdraw charges or to lay them afresh, the public interest is paramount. There may be cases in which the combination of delay and the complainant’s behaviour is such that it would not be responsible to re-institute a prosecution and to do so would amount to an abuse. This, however, has not been shown to be such a case.

70. The plaintiff sought to distinguish this case on two bases; first, that there was no application to adjourn and, therefore, no question of the circumvention of a court order; and secondly, that the charges were withdrawn by consent. As to the first, the plaintiff submitted the prosecutor in L v DPP may never have been in a position to proceed and was, therefore, not in a position to seek an adjournment. Whilst that might be true, the re-laying of the charges effectively meant that the prosecutor obtained an adjournment sine die, precisely because the withdrawal of charges (or entry of a nolle prosequi) does not prevent fresh identical charges being re-laid subsequently, subject to that not being an abuse of process. The submission is, therefore, question-begging because it still must be determined if that amounted to an abuse of process.

71. The fact that the plaintiff in L v DPP consented to the withdrawal but the plaintiff in the present did not consent does not take the matter anywhere. It would only be relevant if the consent to withdrawal is seen as an implied consent to the re-laying of the charges. Whether consent is given or not for the withdrawal, the prosecution retains the right to re-lay the charges subject to that not being an abuse of process.

72. Contrary to the plaintiff’s contention contained in ground 2 of the appeal, the Magistrate did not hold that the applicable question was whether a fair trial was possible. The Magistrate (at [9]-[11]) was cognisant of the submission by the plaintiff that the abuse of process was said to have occurred by the circumventing of the adjournment outcome and the delay which subsequently ensued. They were the bases on which the plaintiff’s solicitor put the application. The Magistrate held (at [11]) that those matters did not amount to an abuse of process. In doing so, he considered the issue of fairness to the plaintiff in respect of what had occurred. He would have been in error not to have done so.

73. The centrality of fairness to the maintenance of public confidence in the administration of justice is made clear in Moti at [57]:

The third basic proposition is that, as pointed out in the joint reasons of four members of this court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Second, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.         (footnotes omitted)

74. The plaintiff was critical of the Magistrate for considering what was described as a hypothetical situation at [11] of his judgment because, it was submitted, the abuse of process did not arise as a question of a hypothetical scenario but arose in relation to the actual adjournment application that had been made. The criticism is unfair, and does not demonstrate, as was asserted, that the Magistrate asked himself the wrong question. It was the plaintiff’s solicitor who raised the hypothetical scenario as a way of making the point that there was thereby an abuse of process. The exchange is set out at [57] above.

75. In my opinion, the Magistrate did not ask the wrong question. Nor, in terms of the prerogative relief sought did he take into account irrelevant considerations by having regard to matters of fairness.

76. In relation to ground 3, the Magistrate was not in error in refusing to stay the proceedings. He properly took into account the two bases for the plaintiff’s application. He properly took into account the principles which I have set out earlier, particularly those at [40]-[44] and [51] above. He was correct to regard L as an appropriately analogous case. His decision accords with the more closely analogous case of Cooney although he was not referred to it.

77. In my opinion, none of the grounds of appeal is made out. No error of law is shown. I note that the defendant does not seek an order for costs in the circumstances.

Conclusion

78. Accordingly, I make the following orders:

1. Extend time for the plaintiff to appeal to 29 August 2019.

2. Grant leave to the plaintiff to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

3. Appeal dismissed.

4. Summons dismissed.

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Decision last updated: 20 March 2020