TR v Director of Public Prosecutions

1. [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. [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. [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

1. [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).

2. [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).

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).

4. [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).

5. [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).

6. [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.

7. [10]

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

The withdrawal of the charges

1. [11]

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

2. [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.

3. [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.

4. [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.

5. [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.

6. [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

1. [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.

2. [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

1. [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.

2. [20]

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

3. [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

1. [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:

2. [23]

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

3. [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.

4. [25]

   His Honour then said:

Grounds of appeal

1. [26]

   The grounds of appeal are these:

2. [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

1. [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).

2. [29]

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

3. [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.

4. [31]

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

5. [32]

   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.

6. [33]

   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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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

1. [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.

2. [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):

3. [41]

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

4. [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:

5. [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]):

6. [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].

7. [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):

8. [46]

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

9. [47]

   In Moti the plurality said at [10]:

10. [48]

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

11. [49]

    In Strickland, Edelman J said:

12. [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 v Carroll (2002) 213 CLR 635; [2002] HCA 55 Gaudron & Gummow JJ said at [73]:

13. [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

1. [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.

2. [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].

3. [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.

4. [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.

5. [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.

6. [57]

   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:

7. [58]

   Section 208 of the Criminal Procedure Act provides:

8. [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].

9. [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:

10. [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.

11. [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.

12. [63]

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

13. [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):

14. [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.

15. [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.

16. [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.

17. [68]

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

18. [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:

19. [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.

20. [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.

21. [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.

22. [73]

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

23. [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.

24. [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.

25. [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.

26. [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

1. [78]

   Accordingly, I make the following orders:

   1. (1)

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

   2. (2)

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

   3. (3)

      Appeal dismissed.

   4. (4)

      Summons dismissed.