Criminal law - Application for stay - Source of power to stay summary charges heard in the Supreme Court - Charges of breaching a supervision order made under the Dangerous Sexual Offenders Act 2006 (WA) - Parallel investigation of the accused over the death of a person he is alleged to have been with when contravening the supervision order - Whether the continuation of the summary charges will result in an unfair trial

Criminal Procedure Act 2004 (WA), s 75, s 76

Dangerous Sexual Offenders Act 2006 (WA), s 21, s 23, s 40A, s40B

Evidence Act 1906 (WA), s 8

1 JENKINS J: Henry Allen has applied for a stay of 10 charges brought against him for allegedly contravening a supervision order pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) s 40A(1) (the summary charges).

2 By the same written application he has applied for a stay of the application by the Director of Public Prosecutions for Western Australia (the DPP) for a detention order made under the DSO Act s 23 (the contravention proceedings).

3 At the commencement of the hearing of the applications I decided that although there was a similar factual basis for each of the applications, the applications for the stay of the summary charges and the contravention proceedings should be heard and determined separately. This is because the prosecution of the summary charges and the contravention proceedings are separate and distinct matters.

4 These are my reasons for decision in respect of the application to stay the summary charges. My reasons in respect of the application to stay the contravention proceedings are published separately.

5 On 12 July 2013, the WA Police charged Mr Allen with 10 offences. Each offence is pursuant to the DSO Act s 40A(1) and some of the charges are worded identically. To differentiate each charge I set out below the charge number, wording and particulars of each charge. The particulars are worded as positive assertions as this is how the DPP has provided them but I am aware that at this stage they are only allegations.

On 5 July 2013 at Fitzroy Crossing being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by being in possession of, using, or under the influence of alcohol.

(a) The offence occurred on Friday, 5 July 2013 at the Fitzroy Crossing Rodeo Showgrounds, between about 3.00 pm and sometime before sunset, when it started to become dark.

(b) [Mr Allen] was in possession of cans of alcohol, namely beer and a drink containing rum. In his interview with police conducted around 10.39 pm on 11 July 2013 (the VRI), [Mr Allen] referred to the cans including Emu (ie Emu Export), rum and Four X beer.

(d) Mr Allen was under the influence of alcohol. (In the VRI, he admitted he was drunk).

On 5 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by remaining in a place where alcohol was being consumed.

(a) The offence occurred on Friday, 5 July 2013 at the Fitzroy Crossing Rodeo Showgrounds, between about 3.00 pm and sometime before sunset, when it started to become dark.

(b) During that period, [Mr Allen] remained within the Fitzroy Crossing Rodeo Showgrounds.

(c) The Fitzroy Crossing Rodeo Showgrounds had a temporary liquor licence. Alcohol was being consumed at the showgrounds. A person, other than [Mr Allen], who was consuming alcohol, (namely beer) at the showgrounds was [the deceased].[1]

On 5 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by being in possession of, using, or under the influence of alcohol.

(a) The offence occurred on Friday, 5 July 2013 at the accused's residence at 231 Henwood Place, Fitzroy Crossing, during the evening.

(b) [Mr Allen] was in possession of two cartons of beer (Emu Export and VB).

(c) [Mr Allen] drank a substantial amount of beer. He shared the two cartons of beer with [the deceased].

(d) [Mr Allen] was under the influence of alcohol. (In the VRI, he admitted that he was drunk).

On 5 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by remaining in a place where alcohol was being consumed.

(a) The offence occurred on Friday, 5 July 2013 at [Mr Allen's] residence at 231 Henwood Place, Fitzroy Crossing, during the evening.

(b) It is a requirement of his supervision order that [Mr Allen] not remain in any place where alcohol is being consumed or, if such a place is his approved address, withdraw from that part of the residence in which any such consumption is taking place. (emphasis added)

(c) [Mr Allen] remained in that part of the residence in which [the deceased] was consuming alcohol at the same time he was consuming alcohol.

Between 5 July 2013 and 7 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by failing to make full disclosure regarding his past offending and the current order to a person to whom he commenced a sexual relationship.

(a) The offence occurred in the period from the evening of Friday, 5 July 2013 to the night of Saturday, 6 July 2013, or the night of Sunday, 7 July 2013, at [Mr Allen's] residence at 231 Henwood Place, Fitzroy Crossing.

(b) [Mr Allen] had sexual intercourse with [the deceased] on the nights of 5 and 6 July 2013. Therefore, during that period, he had a sexual relationship with her.

(c) [Mr Allen] did not make any disclosure to [the deceased] regarding his past sexual offending or the current supervision order.

On 6 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by remaining in a place where alcohol was being consumed.

(a) The offence occurred on Saturday, 6 July 2013 at The Crossing Inn, Fitzroy Crossing from 2.30 pm. [The accused's presence on those premises was captured on a CCTV recording.]

(b) The Crossing Inn was a place where alcohol was being consumed. [Mr Allen] was with [the deceased], who was consuming alcohol while they were on the premises. He remained in The Crossing Inn for a period of time while he also consumed alcohol.

On 6 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by being in possession of, using, or under the influence of alcohol.

(a) The offence occurred during the evening of Saturday, 6 July 2013 at [Mr Allen's] residence at 231 Henwood Place, Fitzroy Crossing.

(b) [Mr Allen] was in possession of cans of VB beer.

(d) [Mr Allen] was under the influence of alcohol.

On 6 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by remaining in a place where alcohol was being consumed.

(a) The offence occurred on Saturday, 6 July 2013 at [Mr Allen's] residence at 231 Henwood Place, Fitzroy Crossing, from 10.00 pm.

(b) Alcohol was being consumed in the lounge room of those premises by [the deceased] and Jack Murray. They drank VB beer from cans. Mr Murray had about six cans.

(c) [Mr Allen] remained in the lounge room, also consuming alcohol, for at least an hour and a half.

On 7 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by being in possession of, using or under the influence of alcohol.

(a) The offence occurred on Saturday, 7 July 2013 at the accused's residence at 231 Henwood Place, Fitzroy Crossing, from about midday.

(b) Two blocks (cartons of 30 cans) of beer, namely Emu Export and VB, were brought to [Mr Allen's] residence by Jack Murray, who had offered to shout the accused beer the next day when he was at [Mr Allen's] house on the evening of Saturday, 6 July 2013.

(c) [Mr Allen] took possession of and drank several beers from the blocks supplied by Mr Murray.

(d) He continued to drink with others until about 3.00 pm, when the beer finished.

(e) By that stage he was under the influence of alcohol.

On 7 July 2013 at Fitzroy Crossing, being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by remaining in a place where alcohol was being consumed.

(a) The offence occurred on Sunday, 7 July 2013 at [Mr Allen's] residence at 231 Henwood Place, Fitzroy Crossing, from about midday.

(b) Several people came to [Mr Allen's] home and consumed the beer that had been brought there by Jack Murray. They were Jack Murray, Johnny Bilgin, Peter Lindsay Claire, Clayton James Menham and Jack Shane McHale. This occurred over a period of at least three hours until the beer was finished.

(c) [The deceased] was also present and drinking beer.

(d) [Mr Allen] remained in the presence of the others while they were drinking.

6 Mr Allen submits that the prosecution of the summary charges ought to be stayed on the ground that he will be at a gross forensic disadvantage in defending the summary charges because of the direct or derivative use that the police and prosecuting authorities may make of his defence to the summary charges or evidence he may give during the course of the trial of the summary charges in the investigation of, and his prospective prosecution for, an offence related to the death of the deceased.

7 Further, he says that his ability to elect to give evidence at the trial of the summary charges will be significantly fettered by the real risk that any evidence he may give may impinge upon his right not to incriminate himself in any unlawful conduct relating to the death of the deceased.

8 Mr Allen submits that there is nothing a trial judge could do to relieve against the unfairness. Thus, he submits the prosecution of the summary charges ought to be stayed on the ground that it is in the interests of justice to do so in order to prevent an unfair trial and an abuse of process.

9 On 4 December 2009, his Honour Justice Hasluck found Mr Allen to be a serious danger to the community and his Honour placed Mr Allen on a supervision order: Director of Public Prosecutions (WA) v Allen [2009] WASC 360. However, due to accommodation problems, Mr Allen's five year supervision order did not commence until 16 March 2010.

10 Mr Allen is an indigenous man who was born at Louisa Downs in the eastern Kimberly region in Western Australia. It was proposed that during the period of the supervision order he would reside in a community in the region around Halls Creek and Fitzroy Crossing or at another address approved in advance by a community corrections officer.

11 On 3 January 2012, Mr Allen was convicted and fined in the Halls Creek Magistrates Court for two counts of breaching the supervision order.

12 On 3 January 2013, Mr Allen was convicted in the Halls Creek Magistrates Court for eight counts of breaching the supervision order on various dates from 26 June 2012 to 23 November 2012. He was sentenced to 6 months and 1 day's imprisonment which was suspended for 7 months.

13 Sometime after that, Mr Allen was given permission to reside in a house at 231 Henwood Place, Fitzroy Crossing. Nobody else lived at the house.

14 On Monday, 8 July 2013, the police commenced an investigation into the death of the deceased who had been found dead early that morning by Mr Allen in his home at Fitzroy Crossing. The deceased was an indigenous woman who usually lived at the Noonkanbah community but she had been staying for a couple of weeks before her death with relatives in Fitzroy Crossing.

15 In the course of that day, a written statement was made by Mr Allen which related his movements and those of the deceased between Friday, 5 July 2013 and the morning of 8 July 2013 when he found the deceased dead in his house. Statements were also obtained from a number of other people who had contact with Mr Allen and the deceased that weekend.

16 There is information in Mr Allen's statement and those of the other witnesses to the effect that Mr Allen and the deceased had been drinking alcohol and socialising together and with others between 5 and 7 July 2013. In his statement Mr Allen also said that he had sex with the deceased over the weekend. However, he did not admit assaulting her or being involved in her death.

17 Between 4.50 pm and 10.29 pm on 11 July 2013, Detective Sergeant Mark Williams from the Major Crime Squad in Perth and Detective Senior Sergeant Brett Braddock from Broome police interviewed Mr Allen at the Fitzroy Crossing police station. That interview related to the deceased's death. At the commencement of the interview, Detective Sergeant Williams stated that part of the police investigation involved Mr Allen's arrest as a suspect for the offence of murder. No time and date is given for the arrest but there is material in the interview to enable me to infer that Mr Allen had been in custody since the evening of Tuesday, 9 July 2013.

18 Mr Allen was cautioned before he was interviewed. During the interview Mr Allen admitted to socialising, drinking alcohol and having sex with the deceased over the weekend before she died. He denied assaulting her prior to her death. He said that the deceased slept with him on his bed on the evening of Sunday, 7 July 2013 but in the middle of the night she had left his bedroom and he thought she may have gone out to find more alcohol or another man. He said that he was at home sleeping when she came to his house, probably in the early hours of Monday, 8 July 2013. She wanted to come into his bedroom to sleep but he refused to allow her to do so. Instead, he gave her some blankets to use to sleep in another area of his house. When he woke up in the morning, he found her lying in the living room. She was dead. He suggested that some other people had assaulted the deceased before she came to his house. The State does not intend to rely on the first interview in the prosecution of the summary charges or the contravention proceedings.

19 At 10.39 pm a second electronically recorded interview commenced between Mr Allen and two different police officers. This interview was conducted by an officer who called himself 'Anthony', a detective with the major crime squad in Perth, and an officer named as 'Jeremy'. 'Anthony', as I too will call him, told Mr Allen that he wanted to speak to him about his dangerous sex offender supervision order. Mr Allen was cautioned and he was then asked questions about the content of the supervision order. Following that he was asked questions about what he had done or omitted to do which may have breached the order. Mr Allen acknowledged that he was not allowed to drink alcohol on the supervision order but that he had drunk alcohol on Friday, 5 July 2013 and Saturday, 6 July 2013 at the local rodeo. He also admitted to drinking alcohol at home on Sunday, 7 July 2013. He acknowledged that he had sex with a girl on the same Friday night and that he had not told her that he was a dangerous sexual offender and on a supervision order. He said that he forgot to tell her because he had his 'mind on drink'. He said he also had sex with her on the same Saturday. The second interview concluded at 11.40 pm. The State alleges that the girl Mr Allen had sex with was the deceased.

20 Mr Allen's home was forensically examined by police officers. He was also subject to an intimate forensic examination. These forensic examinations related to the investigation into the deceased's death.

21 Mr Allen has not been charged with any offence relating to the deceased's death. However, the DPP and the police are awaiting the results of detailed post mortem investigations and forensic investigations before deciding whether or not to charge Mr Allen with such an offence. I was told that a decision whether or not to charge Mr Allen may not be made for some 2 3 months from the hearing of the stay application. However, the decision has still not been made.

22 On 12 July 2013, Mr Allen was charged with the summary charges and he appeared before a magistrate. The charges were adjourned to the Fitzroy Crossing Magistrates Court on 17 July 2013. Mr Allen was remanded in custody on the charges.

23 The summary charges were subsequently referred to the Stirling Gardens Magistrates Court.

24 On 17 July 2013, a summons was issued under the DSO Act s 21(2)(a) requiring Mr Allen to appear in this court for it to determine the contravention proceedings. On 26 July 2013, Mr Allen appeared in the Supreme Court pursuant to that summons.

25 On 30 July 2013, the summary charges were transferred to this court. On 12 August 2013, Mr Allen appeared before his Honour Justice McKechnie in respect of the summary charges and the contravention proceedings. Both matters were adjourned for the hearing of the applications to stay both matters.

26 Mr Allen's solicitors have received materials from the prosecution by way of disclosure in respect of both the summary charges and the contravention proceedings. The material includes the statements which were obtained by the police following the death of the deceased, including Mr Allen's written statement, and his electronically recorded interviews.

Statutory provisions relating to the summary charges

27 The summary charges were laid under the DSO Act, s 40A(1) which states:

40A Offence of contravening supervision order

(1) A person subject to a supervision order who, without reasonable excuse, contravenes a requirement of the order commits an offence.

40B Procedure on some charges of offences under s 40A

(1) Except as provided in this section, the procedure applicable to and in relation to a charge of an offence under section 40A(1) is the procedure applicable to and in relation to a charge of any other simple offence.

(4) If proceedings on a charge of an offence under section 40A(1) against a person in relation to certain conduct, and proceedings commenced under Part 2 Division 4 in respect of the person in relation to the same conduct, are in progress at the same time -

(a) if a court of summary jurisdiction is dealing with the charge, it must, on an application made by a police officer or the DPP, transfer the charge to the Supreme Court; and

(b) the DPP must prosecute the charge in the Supreme Court; and

(c) a judge of the Supreme Court must deal with the charge summarily under the Criminal Procedure Act 2004 as if it were a prosecution of a simple offence in a court of summary jurisdiction, but -

(i) no fees shall be charged by the Supreme Court for or in respect of any act or proceeding that relates to the prosecution; and

(ii) the Supreme Court cannot order a party to the prosecution to pay another party's costs of or relating to the prosecution, except under the Criminal Procedure Act 2004 section 166(2); and

(d) any findings of fact by the Supreme Court in the proceedings on the charge may be used in the proceedings under Part 2 Division 4; and

(e) if the person is convicted of the charge, the sentencing of the person may be adjourned until after the proceedings under Part 2 Division 4 are concluded; and

(f) if the Supreme Court fines the person for the offence, the court may make an order under the Sentencing Act 1995 section 9 in respect of the fine.

The Supreme Court's power to stay criminal proceedings

28 In Director of Public Prosecutions (WA) v Pindan [2012] WASC 13, I considered this court's inherent power to stay criminal proceedings. Relevantly, I said [16] [27]:

In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, the High Court considered whether private prosecutions for criminal defamation ought to be stayed because they had been brought for improper purposes. All members of the court agreed that Australian superior courts have power to stay both civil and criminal proceedings.

In their joint reasons, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:

'The first is that 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. The second is that, 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 (520).'

In Moti v The Queen [2011] HCA 50, the majority of the High Court described these two considerations as a basic proposition [53] and [57].

In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, the High Court considered the power in the context of a proposed stay of disciplinary proceedings against several doctors.

The High Court did not see any material difference between the circumstances which would constitute an abuse of process in the disciplinary tribunal and the circumstances which would constitute an abuse in a superior court. However, the majority noted that the concept required some adjustment in its application to the disciplinary tribunal to reflect that the jurisdiction of the tribunal was essentially protective and the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners (395 396).

The majority of the High Court held that the power to stay proceedings as an abuse of process was not confined to cases where the court is satisfied that the hearing would necessarily be unfair or the proceedings had been brought for an improper purpose. The majority said that the power of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, may be converted into instruments of injustice or unfairness. The majority gave the following examples of such categories of cases:

(1) Proceedings which are foredoomed to fail;

(2) Proceedings in a court which is clearly an inappropriate forum to entertain the proceedings; and

(3) Proceedings which sought to litigate a new case which has already been disposed of by earlier proceedings.

The majority said that determining whether criminal proceedings should be stayed:

'[f]alls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are 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.'

The power to stay criminal proceedings was again considered by the High Court in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. Gaudron J said:

'The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment" (74 75). (citations omitted)'

Her Honour's comments were cited with approval by the majority in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [14].

...

My review of the relevant principles ends with Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237. Dupas sought a stay of his criminal trial for murder based on his alleged inability to receive a fair trial because of adverse pre-trial publicity. The court approved of other cases such as R v Glennon [1992] HCA 16; (1992) 173 CLR 592 which had described cases in which a permanent stay will be ordered as 'extreme', a 'rare occurrence, and a drastic remedy to be applied in exceptional cases which might arise if there had been some conduct on the part of a prosecuting authority shown to result in prejudice to an accused in obtaining a fair trial'.

However, the Court said:

'In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".

A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the "social imperative" as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed [33] [37]. (citations omitted)'

29 In Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363, Crennan J quoted with approval Mason CJ's and McHugh J's comment in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 298 that courts have an 'undoubted power to stay criminal proceedings which will result in an unfair trial' and her Honour cited a long list of authorities supporting the existence of that power.

Use of the inherent or statutory power to stay summary charges

30 There is an issue between the parties as to whether I can exercise the inherent power of the Supreme Court to stay (permanently or otherwise) the summary charges. The DPP submits that as the DSO Act s 40B says that the procedure applicable to the summary charges is the procedure applicable to, and in relation to, a charge of any other simple offence, a judge hearing the summary charges may not exercise the Supreme Court's inherent power to stay criminal proceedings. He says that I am limited to exercising the power of the Magistrates Court to permanently stay charges.

31 In respect of criminal charges prosecuted in a court of summary jurisdiction, the Criminal Procedure Act 2004 (WA) (CPA) s 76 states:

(1) A court may at any time order that the prosecution of a charge be stayed permanently, if it is satisfied that the charge is an abuse of the process of the court.

(2) On making such an order the court -

(b) may make any orders it thinks fit, including orders as to bail and orders under Schedule 4, to ensure the accused and any witness are amenable to justice until -

(i) the time for appealing against the stay order has expired; and

(ii) any appeal against the stay order is concluded.

32 This power should be considered in conjunction with the CPA s 75 which states that a court has a general power to adjourn proceedings at any time.

33 Mr Allen says that, regardless of the provisions of the CPA, I may exercise the inherent power of the Supreme Court to stay the summary charges. The primary reason he asks me to exercise the court's inherent power is that the power under CPA s 76 is only to permanently stay; whereas the inherent power enables me to stay proceedings for any period.

34 I am of the view that I may exercise the Supreme Court's inherent power to stay the summary charges. In Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, the High Court said:

Having regard both to the antiquity of the power and its institutional importance, there is much to be said for the view that in Australia the inherent power to control abuse of process should be seen, along with the contempt power, as an attribute of the judicial power provided for in Ch III of the Constitution. However, on the trial of the appellant the Supreme Court did not exercise federal jurisdiction and no question arises respecting the validity of any State legislation denying or limiting the inherent power of State courts to control abuse of their processes in matters not arising in federal jurisdiction. (But see Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at 549550 [1] per Gleeson CJ, 552553 [10] per Gummow, Hayne, Heydon and Kiefel JJ, 591 [159] [162] per Crennan J; [2008] HCA 4.) [15].

35 In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532, 591 [159] [162] Crennan J noted the position of a State Supreme Court in the integrated court system established by the Australian Constitution and said that it exceeded the legislative power of a State to alter the character of a Supreme Court of a State so as to impair its institutional integrity. Her Honour said that a minimum requirement of independence and impartiality of a Supreme Court of a State included the capacity to administer the common law system of adversarial trials.

36 It is clear from the joint judgment in Dupas and Crennan J's comment in the Gypsy Jokers case that there is a real doubt whether State legislation which purported to limit the inherent power of this court to stay proceedings for an abuse of process would be valid. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [13] (Gleeson CJ, Gummow, Hayne and Crennan JJ). However, that is not the point for which I have referred to these cases. Rather, the point is that because of the importance of the inherent power of this court to stay proceedings which are an abuse of process, it would need very clear and unambiguous language in a statute before I would be prepared to rule that the Parliament had intended to remove or had removed this court's inherent jurisdiction and replaced it with what, arguably, would be in the case of the CPA s 76 a more limited power. The DSO Act s 40B and the CPA s 76 are not so clear and unambiguous. I do not interpret them as purporting to deprive this court of its inherent power to stay the summary charges if their continuation will result in an unfair trial.

37 I have suggested above that the CPA s 76 is, arguably, a more limited power than the inherent power. However, this is by no means certain and I make no finding in this regard. The authorities sometimes distinguish between the power to stay proceedings for an abuse of process and the power to stay proceedings to prevent an unfair trial. However, in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Deane J characterised the continuation of proceedings where the resultant trial must be an unfair one as an abuse of that curial process. He said that the continuation of proceedings to the stage of trial will inevitably infringe the right not to be tried unfairly and a court which possesses jurisdiction to prevent abuse of its processes possesses jurisdiction, at the suit of the accused, to stay the proceedings pursuant to that power (58).

38 Also in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 it was said the power to stay proceedings as an abuse of process 'extends to all those categories of cases in which the processes and procedures of the court, may be converted into instruments of injustice or unfairness' [21]. Thus, in my view, the preferable interpretation of the CPA s 76 is that it has done no more than to restate what is, in the case of the Supreme Court, the court's inherent power to stay permanently a criminal proceeding. It does not purport to limit that power to something less than is recognised by the common law and neither does it say anything about a court's power to temporarily stay proceedings.

39 Another way of analysing the position is to say that the scope of the statutory power in s 76 'must inevitably be determined by reference to the common law principles emerging from the decided cases as to what constitutes an abuse of process': Perrin v Jackson [2008] WASC 77 [68]. The decided cases indicate that an unfair trial will be an abuse of process.

40 In Batistatos the majority, when considering the fields of operation of rules of court which stated that a court may stay or dismiss civil proceedings and the inherent power or jurisdiction to stay such proceedings, referred to 'the duality of available avenues with respect to the agitation of allegations of an abuse of process' [26]. In my opinion, the inherent power and the CPA s 76 are simply two available avenues to this court when it hears a charge under the DSO Act s 40A. By enacting the DSO Act s 40B and the CPA s 76, the legislature has not closed the inherent power avenue.

Legal principles relating to staying criminal proceedings where accused may be charged with related criminal offences

41 Neither party referred me to an authority which purports to state the considerations which a court should take into account in deciding whether to accede to an application to stay summary criminal charges where an accused may be charged with a more serious criminal charge and the factual circumstances in issue in the summary criminal charges are likely to overlap with the alleged facts of the more serious criminal charge.

42 Mr Allen submits that the High Court in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 'considered a similar issue' as arises in this case. He relies on Hayne and Bell JJ's statement that:

The preceding description of the investigation, prosecution and trial of an indictable Commonwealth offence demonstrates that, at every stage, the process of criminal justice is accusatorial. It is against this background that the provisions of the ACC Act, particularly s 28(1), must be construed. If these provisions were to permit the compulsory examination of a person charged with an offence about the subject matter of the pending charge, they would effect a fundamental alteration to the process of criminal justice [118].

43 However, there are essential differences between the facts in X7 and this case. X7 is a decision on the construction of the Australian Crime Commission Act 2002 (Cth) (ACC Act) which was alleged to empower an examiner (not a judicial officer and not in a judicial proceeding in a court) to examine a person charged with a Commonwealth indictable offence and to compel the person to answer questions regarding the offence with which the person had been charged. The High Court held (Hayne, Kiefel & Bell JJ; French CJ & Crennan J dissenting) that upon its proper construction that the ACC Act does not authorise an examiner appointed by the Executive under the ACC Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence.

44 The summary charges are not an examination, compulsory or not, by the Executive. They are a criminal proceeding in a court of law. Mr Allen cannot be compelled to testify at them. Further, as they are themselves part of the criminal justice system they cannot be described, like the provisions for examination contained in the ACC Act were described, as 'effecting a fundamental alteration to the process of criminal justice'.

45 Mr Allen says that the summary charges ought to be stayed because he cannot properly defend them without infringing his right not to incriminate himself in relation to a possible criminal prosecution arising out of the death of the deceased.

46 This submission highlights the necessity of identifying the substance of Mr Allen's right in order to then decide whether there is a real risk that it will be infringed by the continuation of the prosecution of the summary charges. In this respect there are some statements in X7 which are useful. Hayne and Bell JJ stated:

As four members of this court said in Reid v Howard, '[t]he privilege [against self-incrimination], which has been described as a "fundamental ... bulwark of liberty", is not simply a rule of evidence, but a basic and substantive common law right'. The evolution of and rationale for the privilege against self-incrimination have been described in various ways. No single explanation has achieved universal acceptance, whether in judicial decisions or academic writings. But neither the existence nor the content of those controversies can be understood as denying that the privilege is now regarded as being 'a basic and substantive common law right', and not just a rule of evidence. That is, it is not a privilege which is concerned only with the use to which answers given may be put at, or in connection with, a trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence. The accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing.

The notion of an accused person's 'right to silence' encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial [104] [105].

47 In my opinion, the continuation of the prosecution of the summary charges in the context of the possibility that Mr Allen may be charged with an offence arising out of the death of the deceased is unlikely to infringe his right against selfincrimination in respect of an alleged offence involving in the death of the deceased.

48 First, Mr Allen does not have to give evidence at the hearing of the summary charges. Secondly, if Mr Allen elects to give evidence at the hearing of the summary charges, he will not be required to answer questions tending to show that he has committed any other offence unless, relevantly, the proof that he committed such other offence is admissible at the hearing of the summary charges to show that he is guilty of one of the summary charges: Evidence Act 1906 (WA), s 8(1)(e). If Mr Allen elects to give evidence at the hearing of the summary charges it is difficult for me to apprehend why he would be required to answer a question tending to show that he has committed a criminal offence in relation to the death of the deceased. That is, I do not understand how proof that he committed an offence relating to the death of the deceased could be admissible in the summary charges hearing to show that he is guilty of an offence of contravening his supervision order.

49 In this regard, only three of the summary charges are said to have occurred on 7 July 2013 or over a range of dates which includes 7 July 2013, which is the day before the deceased was found dead in Mr Allen's home. All the other charges relate to the days prior to that date. There is no material before me to suggest that the deceased died from injuries which she received prior to 7 July 2013.

50 In respect of the charges which relate to the day before she died, FZ563/13 alleges that between 5 July 2013 and 7 July 2013 Mr Allen failed to make full disclosure regarding his past offending and his supervision order to a person to whom he commenced a sexual relationship. However, the particulars allege that Mr Allen had sexual intercourse with the deceased on the nights of 5 and 6 July 2013, not the night of 7 July 2013. Further, even if the dates over which the offence is alleged to have occurred require exploration at a trial of the issue of whether Mr Allen spoke to the deceased up to and including 7 July 2013, I cannot see how either an acknowledgement or a denial that he did so would incriminate him in respect to an offence relating to her death.

51 Charge FZ557/13 alleges that on 7 July 2013 Mr Allen contravened a requirement of his supervision order by being in possession of, using, or under the influence of alcohol. The particulars of the offence allege that Mr Allen, the deceased and others drank alcohol together at Mr Allen's home 'until about 3.00 pm'. Thus, a defence of this charge would only involve an exploration of Mr Allen's and the deceased's movements up until 3.00 pm on 7 July 2013. Again, this is not a period in which I understand it is alleged that the deceased received fatal injuries. Thus, I cannot see how a defence of this charge would involve Mr Allen incriminating himself in respect of being involved in the death of the deceased.

52 Charge FZ558/13 alleges that on 7 July 2013, Mr Allen contravened a requirement of his supervision order by remaining in a place where alcohol was being consumed. The particulars of the offence allege that the offence occurred from about midday on 7 July 2013 for a period of at least three hours and that others, including the deceased were present. Again, Mr Allen has not explained, and I do not understand how a defence of this charge would involve a breach of Mr Allen's right not to incriminate himself in regards to an offence relating to the death of the deceased. I do not understand that it is suggested that the deceased received her fatal injuries by 3.00 pm on 7 July 2013.

53 Next, I note that Mr Allen does not admit in the interviews with the police to any conduct which incriminates him in the death of the deceased. He says that she left his bedroom on the evening of 7 July 2013, denies that he let her into his bedroom again that evening, says that the last time he saw the deceased she was alive and uninjured and says that she was dead when he found her in the morning in his home. This account does not tend to implicate Mr Allen in causing the death of the deceased. Therefore, I do not believe that it can be said, on the state of the evidence before me, that the hearing of the summary charges will or is likely to 'impinge upon his right against selfcrimination' with respect to a potential charge relating to the death of the deceased.

54 I also note that Mr Allen's account of the time leading up to the death of the deceased is already known to the police and the State. It cannot be said that disclosing that account during the hearing of the summary charges will or may reveal a defence to a potential homicide charge. Mr Allen's counsel told me that there will be an objection to the admissibility of Mr Allen's statement and interviews with the police. However, I have not been told that Mr Allen wishes to provide an alternative account which may incriminate him in respect of the death of the deceased.

55 Mr Allen submits that there is a risk that police could use any testimony given by him in the prosecution of the summary charges in an indirect or derivative manner in circumstances where he could not be expected to be aware of the importance of, or impact of his testimony, in the eyes of the police.

56 I can only rely on the evidence before me. Mr Allen's account of his contact with the deceased on the night of her death has already been disclosed and is known to the police. It does not incriminate Mr Allen in respect of her death. I am unable to see how giving evidence at the hearing of the summary charges, consistent with that account, would either incriminate him or enable the police to use the evidence indirectly against him in any prosecution of an offence relating to the deceased's death.

57 Neither do I understand that entering a plea of either guilty or not guilty to the summary charges could breach Mr Allen's right not to incriminate himself in respect of a future charge relating to the deceased's death. Clearly, a plea of not guilty to the summary charges would not impinge on his right not to incriminate himself in respect of such a charge. A plea of guilty, also, would not impinge upon that right because neither the elements of the charges or the particulars to them relate to acts or omissions, which occurred at the time at which, I understand, it is said that the deceased received her fatal injuries.

58 It is also an important factor for me to take into account that the summary charges are being heard in a court of law and the judge hearing the charges will have all the power necessary to prevent an abuse of process during the prosecution. That is an added protection for Mr Allen.

59 It is within the power of the judge hearing the summary charges to disallow questions which may indirectly incriminate Mr Allen. For example, if the prosecution by its questions to witnesses and/or Mr Allen (should he elect to give evidence) relating to charge FZ 558/13 attempted to establish that not only was the deceased present but that there was a dispute between Mr Allen and the deceased, the judge will have the ability to prohibit such questions on the ground of relevance or unfairness.

60 I do not accept that the summary charges ought to be stayed simply because Mr Allen will have to defend the summary charges knowing that some steps that he takes in them or some evidence which he gives may be relevant to his potential prosecution on a charge relating to the death of the deceased. This is so, even if Mr Allen is required to answer questions which may provide some assistance to the prosecution to prove that he had an intimate relationship with the deceased in the days leading up to her death. This is because, first Mr Allen has already admitted that, and secondly, the admission of such a relationship does not incriminate Mr Allen in respect of the death of the deceased.

61 It is also true that many accused persons have to defend charges knowing that if they choose to defend the charges in a certain way or if they elect to give evidence they may acknowledge conduct which is prejudicial to them in respect of other pending charges or may render them more likely to be charged with other offences. Such decisions are forensic decisions which accused persons sometimes have to make. I have never before heard of a prosecution being stayed in order to protect an accused from such decisions. On the other hand there is a public interest in the finalisation of the summary charges, which is another factor to be taken into account against granting a stay.

62 For the foregoing reasons, I am not satisfied that there is a real risk of an injustice if the summary charges proceed when Mr Allen is being investigated for, and may be charged with, an offence arising out of the death of the deceased. I find that the continuation of the prosecution of the summary charges is not unfair to Mr Allen and, on the basis of the facts known to me, it will not result in an unfair trial. Additionally, the summary charges have not been brought for an improper purpose, they are not foredoomed to fail, the Supreme Court is not an inappropriate forum to hear the summary charges and they do not seek to litigate a case which has already been disposed of in earlier proceedings. The continuation of the prosecution of the summary charges is not an abuse of process.

63 The application to stay the summary charges is dismissed.

[1] For cultural reasons, I have not named the deceased. However, her identity is known to the parties.