Appellant v First Respondent

2 On 13 July 2020, a solicitor employed with the Office of Public Prosecutions ('OPP') wrote to the appellant seeking copies of any sworn statements, documents or photographs, and any other evidence on which the appellant intended to rely to prove the charges, to enable an assessment of whether the Director of Public Prosecutions ('the Director') would seek to take over the prosecution.

3 On 20 July 2020, the appellant provided to the OPP documents comprising 51 pages including a statement from him concerning the allegations. In a covering letter, the appellant acknowledged the power of the Director to take over the prosecution. He added:

All I ask is that you diligently consider the merits of my case and in the event that I have not persuaded you to agree that these crimes took place, take the time to consult with me again to cover the possibility that I have failed to communicate my contention concisely enough.

For I see the OPP as my saving grace - for the DPP to extend a hand and then slap me down - let's just say I'd be far better off if you had of left me sitting at 'rock bottom', reliant on no one else but myself to keep surviving with the debilitating injuries that the accused has inflected (sic).

4 Without any further notice to the appellant, on 3 August 2020, the officer within the OPP wrote to the appellant and advised him that '[a]fter careful consideration of all the materials... the Director has decided that there is no reasonable prospect of conviction on any of the charges... and therefore the Director will take over the prosecution of the charges and make application to the [m]agistrate to discontinue the charges.' The appellant was advised that a barrister would appear at the Magistrates' Court at a mention on 28 October 2020 to withdraw the charges and that although he was not required to attend he could do so if he wished.

5 On 21 August 2020, counsel appeared for the Director and advised the magistrate that the Director had taken over the prosecution and withdrew all of the charges. The magistrate then struck out each charge. A record of the order of the Court records the following:

6 On the record of order, the appellant's name appears in a box alongside the description 'Informant, Plaintiff, Complainant or Applicant'. The Director's name or title does not appear on the order.

7 On 23 November 2020, the appellant filed in this Court a notice of appeal from the order of the magistrate under s 272 of the Criminal Procedure Act 2009 ('CPA'). The questions of law set out in the notice of appeal are:

1. Was the Magistrate misled by the Office of the public prosecutor (sic) into believing that a directive to enter a nolle prosequi was issued by the Attorney-General (Public Prosecutions Act (Vic) 1994 s 25)?

2. Did the Director of Public Prosecutions comply with s24 (C) (Public Prosecutions Act (Vic) 1994) before deciding to withdraw serious charges under the Crimes Act (Vic) 1958, without first appropriate consideration to the concerns of the victim/informant?

8 Part 4 of the Public Prosecutions Act 1994 sets out the functions and powers of the Director. Relevantly, s 22 provides that the functions of the Director include:

(1)(b) if he or she considers it desirable to do so -

(i) to institute, prepare and conduct any committal proceeding under the Criminal Procedure Act 2009;

(ii) to take over and conduct any proceedings in respect of any summary or indictable offence;

(iii) on behalf of the Crown, to assist a coroner or to instruct legal practitioners assisting a coroner in any inquest under the Coroners Act 2008.

...

9 Section 24 stipulates the matters to which the Director must have regard in the performance of her functions in the following way:

In the performance of his or her functions the Director must have regard to -

(a) considerations of justice and fairness; and

(b) the need to conduct prosecutions in an effective, economic and efficient manner; and

(c) the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime.

10 Finally, s 25 preserves a power in the Attorney General in respect of prosecutions by providing:

(2) Nothing in this Act affects or takes away from the power of the Attorney-General to enter a nolle prosequi in criminal proceedings.

11 Section 272 of the CPA, which founds the jurisdiction of this Court in the present proceeding provides:

(1) A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.

(2) If an informant who is a police officer wishes to appeal under subsection (1), the appeal may be brought only by the DPP on behalf of the informant.

(3) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.

(4) A copy of the notice of appeal must be served on the respondent in accordance with subsection (5) within 7 days after the day on which the notice of appeal was filed.

(5) A copy of the notice of appeal must be served -

(a) personally on a respondent who was the accused in accordance with section 391; or

(b) on a respondent who was the informant in accordance with section 392.

(6) An appeal under subsection (1) does not operate as a stay of any order made by the Magistrates' Court unless the Supreme Court otherwise orders.

(7) An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1).

(8) The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

(9) After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.

(10) An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Magistrates' Court, may be enforced as an order of the Supreme Court.

(11) The Supreme Court may provide for a stay of the order or for admitting any person to bail as it considers appropriate.

12 The respondents contend that there are two matters at the threshold that mean that the appeal is incompetent, in the sense that it cannot come within the scope of s 272 of the CPA. First, they contend that the decision of the magistrate to strike out the charges is not a final order and therefore no appeal can be brought under s 272. Second, they contend that once the Director took over the prosecution, the appellant was no longer a party to the prosecution for the purposes of s 272.

13 The appellant submits that the order was a final order in that it brought the charges to an end and was, in substance and effect, 'the end of the road'. He submits that once the magistrate had struck out the charges there was nothing more that could be done and the charges had come to an end.

14 On the second issue, he contends that he remains a party and that the order made by the magistrate identifies him as such.

15 The legal effect of an order of a magistrate striking out a charge has been the subject of a number of decisions in this Court. In R v McGowan,[4] charges were struck out by a magistrate on the basis that the court lacked jurisdiction to hear the charges. This Court subsequently held that the court did have jurisdiction. The question then arose as to whether a magistrate could set aside an order striking out the charges and reinstate them for hearing. In the course of holding that a magistrate could set aside such an order, Kaye J concluded that:

[A]n order striking out an information does not put an end to the proceedings. It is not a curial determination of the charge alleged; it is no more than a direction to remove the information from the list of matters for hearing and determination by the Court.[5]

16 That reasoning was adopted as correct by the Court of Appeal in Director of Public Prosecutions v Moore,[6] where it was held that the Supreme Court, on appeal from the Magistrates' Court, did not have jurisdiction to entertain an appeal from an order of the Magistrates' Court striking out a charge filed in the court. Batt JA (with whom Chernov and Eames JJA agreed), citing R v McGowan, said:

The general principle is that what has been struck out, whether it be an information, charge, summons, proceeding or appeal, may be restored or reinstated, because the legal effect of striking out is merely to take the subject matter out of the court lists. As the subject matter is capable of being brought on again, the order striking it out is not final.[7]

17 Based on those decisions, I am bound to conclude that the order of the magistrate striking out the charges was not a final order for the purpose of s 272 of the CPA. The order striking out the charges did not involve a determination of the charges. As a matter of legal effect it remains open for the charges to be reinstated. There has been no final determination of rights. The present appeal must be dismissed as incompetent.

18 I should also express my conclusion on the second threshold issue. The CPA does not define who a party is for the purposes of s 272. In my view, it is necessary to read s 272 in the light of and together with other statutory provisions, including s 22 of the Public Prosecutions Act 1994. The Director has the function and power to 'take over and conduct' prosecutions in certain circumstances including where the Director considers it desirable to do so. The phrase 'take over and conduct' addresses two different aspects of power. The power to take over the prosecution is a power which, once taken, has the effect of substituting the Director for the original party. It recognises both the conferral of power and the authority to conduct the litigation but also the removal of the power and status of the original party. Thereafter, the Director conducts the prosecution as a principal and not on behalf of the named party. The original party no longer has any role to play in terms of the conduct of the prosecution.

19 The second respondent submits that to contemplate that the original party would have ongoing rights as a party in respect of the prosecution would be chaotic. In my view, the problem is somewhat deeper. It would be intolerable for the person charged with the offence to face two prosecutors, each with independent powers or roles, in the same prosecution and who are potentially making different forensic decisions. That would involve a grave abuse of process and would be an absurd outcome. The same problems would arise if, once completed, the former party could initiate an appeal under s 272 of the CPA from final orders. Once the Director takes over the prosecution the original party ceases thereafter to have any rights, duties or responsibilities as a party to the proceeding.[8] I would also uphold the second ground of objection to the competency of the appeal.

20 In light of my conclusions on the two threshold questions raised by the respondents, the appeal must be dismissed.

21 In deference to the arguments made by the parties on the two questions of law raised, I would add the following.

22 On question 1, which concerned the question of whether the magistrate had been misled into thinking that the Attorney General had exercised the power in s 25 of the Public Prosecutions Act 1994, there is no evidence that the magistrate was referred to s 25, no evidence that the Attorney General had exercised or considered exercising the power in s 25, and no basis to conclude that s 25 intruded in any way in the magistrate's decision to strike out the charges.

23 Question 2 concerns compliance by the Director with the obligations in s 24 of the Public Prosecutions Act 1994 to have regard to certain matters in the performance of the Director's functions. Appeals from final orders of a magistrate on a question of law under s 272 of the CPA are associated with a number of technical rules, including those associated with defining a question of law. It is not an easy area for a non-lawyer to navigate and it can be frustrating. In my view, it is not open to use an appeal on a question of law from a final order of a magistrate to challenge the lawfulness of a different and earlier decision of the Director under s 22 of the Public Prosecutions Act 1994.[9] That is at least because they are different decisions with different legal effect and the question of law would not affect the exercise of the magistrate's powers. And because to do so would involve an impermissible indirect challenge to the lawfulness of the decision of the Director, which on present authority, cannot be the subject of judicial review.[10]

[1] Crimes Act 1958 s 18.

[2] Crimes Act 1958 s 24.

[3] Crimes Act 1958 s 31.

[4] [1984] VicRp 78; [1984] VR 1000 (Kaye J).

[6] (2003) 6 VR 430; [2003] VSCA 90 (Batt, Chernov and Eames JJA).

[7] Ibid 437 [20] (citations omitted).

[8] I put to one side the question of whether the original party may be susceptible to a costs order to that point: Stefanovski v Magistrates' Court of Victoria [2004] VSC 313 (Habersberger J) ('Stefanovski').

[9] Walsh v Director of Public Prosecutions [2005] VSC 469 (Hansen J) ('Walsh').

[10] Stefanovski [2004] VSC 313; Walsh [2005] VSC 469; Maxwell v The Queen (1996) 184 CLR 501, 534; [1996] HCA 46 (Gaudron and Gummow JJ); Likiardopoulos v The Queen (2012) CLR 265, 269-70 [2]-[4]; [2012] HCA 37 (French CJ); Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 497-8 [34]-[35]; [2013] HCA 31 (French CJ, Hayne, Kiefel, Bell and Keane JJ).