Barac v. Director of Public Prosecutions; Barac v Stirling [2007] QCA 112

Director of Public Prosecutions (Queensland) for the respondent in Appeal No 8166 of 2006

Queensland Police Service Solicitor for the respondent in Appeal No 8165 of 2006

[1] McMURDO P: I agree with Keane JA's reasons for dismissing the appeal.

[2] The transcript of the committal proceedings in the Brisbane Magistrates Court of 17 March 2004, relating to the charges to which the appellant indicated he would plead guilty if the prosecution did not proceed with the trafficking, supply and production charges, included the following:

"BENCH: ... Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charges or enter any plea?

DEFENDANT: Nothing just now, yes, please, your Honour.

BENCH: Right. Thank you. Alright. So he'll be committed for sentence."

[3] The magistrate's statement that the appellant would be committed for sentence and his subsequent committal of the appellant for sentence are inconsistent with s 113 Justices Act 1886 (Qld) if the appellant did not plead guilty. For that reason, I have now obtained and listened to the tape recording of that part of the committal proceedings transcribed above. This confirmed the correctness of the transcript: the appellant did not plead guilty at his committal proceedings and was mistakenly and wrongly committed for sentence.

[4] The appellant contends that the prosecution's pursuit of him on charges which the prosecution initially agreed to drop has caused him such prejudice that the public interest in conducting criminal proceedings fairly necessitates a permanent stay of the proceedings now brought against him so as to avoid an abuse of process. As the primary judge recognised in her reasons,[1] the fact that the appellant has not entered a plea of guilty to any charge as a result of his now defunct agreement with the prosecution is a powerful indicator against that contention. Her Honour's conclusion, that the public interest did not require a stay of the prosecution of the present charges now brought against the appellant, was well open on the evidence.

[5] JERRARD JA: In this appeal I have read Keane JA's reasons for judgment and proposed orders, and respectfully agree with those. Counsel for the appellant did not suggest that the learned trial judge was in error in any way in that judge's analysis of the law and applicable principles, or that the judge had failed to take into account any relevant consideration, or had taken an irrelevant one into account. Accordingly, counsel was forced to the submission that the only available outcome, of the exercise of the discretion to order a stay, was to stop the prosecution. In a case where the appellant did not suggest that he had lost any previously available ground or basis for contesting the charge of trafficking, and in which his prospects of a fair trial are not affected, it is impossible to argue that a stay is the only appropriate result. That would have been an outcome very favourable to the appellant, absent evidence of any actual prejudice to him.

[6] KEANE JA: The appellant has been charged with trafficking in dangerous drugs. Committal proceedings are pending against him in the Magistrates Court at Southport. The appellant applied for a stay of those proceedings on the ground that the proceedings are an abuse of process of the court. Separate applications were brought: one against Mr Stirling, the police officer responsible for bringing the charges against the appellant; and the other against the Director of Public Prosecutions ("the DPP"). The learned primary judge refused the appellant's applications for a stay. On appeal to this Court, the appellant seeks to argue that the learned primary judge erred in refusing the order sought by the appellant.

[7] Before discussing further the issues which arise on the appeal, I will briefly summarise the circumstances which gave rise to the application and the learned primary judge's reasons for refusing the relief sought by the appellant.

[8] The appellant was originally charged with a number of drug offences. In particular, he was charged with unlawfully trafficking in a dangerous drug between 1 January 1998 and 10 March 2003. He was also charged with a number of counts of unlawful possession, production and supply of dangerous drugs.

[9] These charges were scheduled for a committal hearing on 17 March 2004. Prior to that date, an agreement was reached between the DPP and the appellant whereby the DPP would offer no evidence on the trafficking, supply and production charges at the committal and the appellant would consent to being committed for sentence on the possession charges and would agree that his possession of the drugs was for a commercial purpose rather than merely personal use.

[10] On 17 March 2004, the DPP offered no evidence on the trafficking, supply and production charges and the appellant consented to the hearing proceeding by way of a "hand-up" of the statements of evidence relied upon by the prosecution in relation to the possession charges. Although the appellant did not enter a plea of guilty to the charges, he was (irregularly) committed for sentence to the Supreme Court.

[11] On 10 June 2004, the DPP presented an indictment in the Supreme Court against the appellant in relation to the possession charges. In December 2004, the appellant's solicitors informed the DPP that the appellant had arranged to attend upon a psychologist for the purpose of obtaining a report for use at the sentence hearing in relation to the possession charges. That report was obtained on 18 January 2005.

[12] On 28 June 2005, the appellant was charged with unlawfully trafficking in a dangerous drug between 30 June 2000 and 10 March 2003. The decision to bring this charge was made by the DPP after consideration of a report of a forensic accountant in relation to the appellant's financial affairs.

[13] In an affidavit filed by way of response to the appellant's application for a stay, the DPP, Mrs L J Clare SC, deposed that, as a result of the new evidence which was brought to her attention, she formed the view that:

"the introduction of the new evidence was likely to transform the allegations into a clear case of trafficking making the proposed plea to lesser charges inadequate to reflect the gravity of the provable conduct of the applicant."

[14] Mrs Clare said that the decision to reverse the earlier decision to discontinue the prosecution of the appellant on trafficking charges was made pursuant to a policy of the DPP "that a decision to discontinue a prosecution will not be reversed unless significant new evidence emerges and it is in the interests of justice to do so".[2]

[15] Pursuant to s 10 of the Director of Public Prosecutions Act 1984 (Qld), the DPP has taken over the conduct of proceedings in respect of the new trafficking charge.[3] It is, therefore, unnecessary to deal separately with the merits of the appeal in which Mr Stirling is the respondent.

[16] At the outset, it should be noted that the learned primary judge was asked by both sides to deal with the application on the footing that the application was not premature. When one speaks of "abuse of process", one is necessarily speaking of abuse of the processes of a court. In the present case, the preliminary hearing into the strength of the charges had not occurred and, of course, no indictment had been presented. There may be, as the learned primary judge appreciated,[4] a question as to whether the processes of any court, in the relevant sense of that term, are involved at all prior to the holding of a committal hearing.[5] In the event, it was not necessary at first instance, or on appeal, to address this question.

[17] The learned primary judge approached the exercise of the discretion to stay proceedings on the basis that the public interest in the prosecution of crime should be impeded only where, for exceptional circumstances, the prosecution cannot proceed fairly.[6] The learned primary judge concluded that any risk of unfairness in the determination of the new trafficking charge was obviated by undertakings given to the court by the DPP.[7]

[18] In this regard, the undertakings offered by the DPP were in the following terms:[8]

"1. '(a) that in any prosecution of the accused/applicant on either the possession charges, a charge of trafficking or any cognate charges, the Crown will not rely upon any statement which the accused/applicant or his legal representatives have to this point made in either the Magistrates Court or the Supreme Court.

(b) that on the committal proceedings on the charge of trafficking, if requested by the applicant, the prosecution will call any witness whose statement is contained in the police brief in support of either the possession charges or the charge of trafficking and make those witnesses available for cross-examination ([7] affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006);'

1. 2. '(a) that the Crown will not lead or use against the accused/applicant any statement which has to this point been made by his legal representatives whether oral or written including anything contained in any letter from his legal representatives;

(b) that the Crown will not lead or use against the accused/applicant evidence of any statement made to Dr Nielssen by the accused/applicant or any statement made by Dr Nielsen on behalf of the accused/applicant ([9] affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006; transcript of application hearing 30 June 2006, p 48).'"

[19] The learned primary judge carefully reviewed the authorities which have discussed the power of the court to stay a prosecution as an abuse of process. Her Honour concluded her consideration of the cases in the following terms:[9]

"These cases exemplify the principle that a stay should be granted only in rare circumstances, when the continuation of proceedings would be a misuse of the court process in that it would involve the use of that process in a manner giving rise to injustice (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 30 per Mason CJ).

Consideration of the public interest in the fair conduct of proceedings against an accused person necessitates an examination of the applicant's assertion that he has been prejudiced by the conduct of the respondents.

(a) He consented to a full hand-up committal on the possession charges, so forgoing his rights at committal to have witnesses give evidence orally and be cross-examined. Although he indicated to the DPP that he would plead guilty to the possession charges on the basis that he had possession of the drugs for a commercial purpose, he has not entered plea of guilty to any charge (See footnote 38 respondent's outline of argument) and the Magistrate erred in committing him for sentence rather than trial (s113 Justices Act 1886 (Qld)).

(b) He arranged to attend upon Dr Nielssen, informed the DPP of his intention to do so and in due course supplied the DPP with a copy of the report in which Dr Nielssen has set out the history the applicant gave him about past drug use and involvement in the world of illicit drugs.

(c) His counsel submitted that for a considerable time he was led to believe and organised his life on the basis that the matter had been resolved, but this is somewhat of an overstatement, given that he has not entered any pleas.

In considering whether this is one of those exceptional cases which would justify a stay, it is proper to consider whether there is some other avenue for redressing this prejudice. The undertakings proffered by Mrs Clare in her affidavit ([9] affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006) were proffered to the Court by her senior counsel. Senior counsel for the applicant had adverted to the possibility of derivative use of the contents of Dr Nielssen's report, but that was overcome when senior counsel for the DPP informed the Court of his instructions to expand the undertakings to undertakings not to 'lead or use' that material. In my view those undertakings are now an adequate response to the assertions of prejudice.

In all the circumstances, this is not a case in which the committal proceeding on the second trafficking charge should be permanently stayed or otherwise restrained."

[20] The appellant does not dispute the learned primary judge's conclusion that the appellant can expect to have a fair trial of the new trafficking charges. Rather, the appellant argues two points: first, that the appellant would, nevertheless, be prejudiced by the DPP being allowed to resile from the agreement; and, secondly, that considerations of the public interest require that the DPP be held to the agreement. I will discuss these points in turn.

[21] It is to be emphasised that, as the learned primary judge concluded, this is not a case where an accused person will be jeopardised by evidence which could not have been adduced against him or her but for the agreement from which the prosecution seeks to resile. In this respect, this case can readily be distinguished from cases such as

R v McDonald,[10] R v Georgiadis[11] and R v Mohi[12] upon which the appellant seeks to rely.

[22] As to the first of the appellant's submissions, the appellant points to the steps he has taken on the faith of the agreement, including incurring expenditure which will be wasted and organising his life on the basis that he would be sentenced only on the possession charges.

[23] These kinds of disadvantage are not the prejudice which is the concern addressed in the authoritative statements of the circumstances in which the discretion to stay proceedings has been held to arise. Thus these kinds of prejudice were not mentioned by Fitzgerald P in his description in R v Johannsen & Chambers[13] of the various circumstances in which the discretion may arise.

[24] The kind of prejudice which has been regarded as enlivening the discretion to stay a prosecution is that prejudice which detracts from the prospects of a fair trial.[14] A person accused of crime is put to expense and is made to undergo stress in every prosecution. Sometimes that expense is increased and the stress is exacerbated by inefficiency, and even on occasion incompetence, on the part of those charged with the responsibility of presenting the case for the Crown. It has never been said that these circumstances, alone and without more, justify a stay of proceedings. The strong public interest in the conviction and punishment of serious offences may be displaced by "the paramount public interest" that the administration of criminal justice proceed fairly in a case where a prosecution is pursued for an improper purpose or with no prospects of success;[15] but in a case where a decision not to prosecute has been reversed simply because the prosecution believes that stronger evidence has become available to it, the paramount public interest is not engaged. In such a case, absent some real and incurable adverse effect upon the accused's prospects of a fair trial, a mere change of mind on the part of the prosecution is not, of itself, a sufficient basis for ordering a stay of proceedings. As Wilson J said in Barton v The Queen,[16] in cases where the defect in procedure said to prejudice an accused person involves no more than prosecutorial inefficiency, the defect must be "... of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".[17]

[25] It may be, of course, that the expenditure of funds in reliance upon an assurance that matters will proceed in a particular way will produce a situation of impecuniosity which would itself adversely affect the accused's prospects of a fair trial.[18] But it is not suggested that this is such a case.

[26] For the sake of completeness, I should mention that the appellant also points to the circumstance that he has lost the opportunity to cross-examine the Crown witnesses on the possession charges at a committal hearing. But the second of the undertakings proffered by the DPP serves to answer this complaint.

[27] As to the appellant's second point, it is certainly true that, as Gaudron J said in Ridgeway v The Queen,[19] the grant of a stay of proceedings may sometimes be necessitated by "considerations that bear on public confidence in the administration of justice" quite apart from the question of prejudice to the accused. Nevertheless, it is simply not the case that there is an absolute rule that the Court must grant a stay to prevent the prosecution from resiling from an agreement of the kind in question.

[28] The appellant did not seek to dispute statements of high judicial authority which emphasise that a discretion, of the kind conferred on the DPP by s 10 of the Director of Public Prosecutions Act, is to be exercised in the public interest and is not apt to be fettered by rules such as those whereby the law of contract vindicates commercial promises.[20]

[29] In speaking of judicial control of abuse of process, it is clear that one is not discussing the application of a rule of law, but, rather, the proper exercise of a judicial discretion in relation to which the preservation of public confidence in the administration of justice is an important consideration. In this regard, the decisions of the High Court in Jago v The District Court of New South Wales[21] and Walton v Gardiner[22] clearly establish that a determination whether to stay a criminal prosecution as an abuse of process is a discretionary decision 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."[23]

[30] The appellant submitted that, although the learned primary judge had not erred in any particular in her understanding of the law or the facts, nevertheless, her Honour's conclusion was so plainly unreasonable that it is clear that the discretion miscarried in this case.

[31] The appellant placed considerable reliance upon the decision of the Court of Criminal Appeal in Williamson v Trainor,[24] and especially upon observations by Dowsett J in that case.[25] In relation to that case, the learned primary judge said:[26]

"Williamson v Trainor ([1992] 2 Qd R 572) was an appeal against a conviction for assault occasioning bodily harm. On the first day of the trial in the Magistrates Court the prosecution requested an adjournment, which was refused. The accused opposed the adjournment because his witness was about to leave the State. The matter was stood down, and in the course of the break the accused, at the prosecutor's request, signed an agreement that he would not seek costs and 'the Crown ... agreed not to proceed further with the ... charge' (Williamson v Trainor [1992] 2 Qd R 572 at 576). The prosecutor then informed the magistrate that no evidence would be presented and the accused was discharged. No costs order was sought. A few months later the accused was charged, tried and convicted of the same offences. The accused's witness was not available at the second trial.

The Court of Appeal allowed the appeal, overturned the conviction and stayed the proceeding for abuse of process. Ambrose J (with whom Derrington J agreed) said it would be unconscionable to bring the second proceeding after representing that the Crown would not proceed with the charge (Williamson v Trainor [1992] 2 Qd R 572 at 579). His Honour found that public confidence in judicial processes would be eroded if those processes were 'used in an unconscionable manner designed to or having the effect of placing difficulties in the way of an accused person defending himself (Williamson v Trainor [1992] 2 Qd R 572 at 582)'. Fairness in criminal proceedings is an important consideration: it is in the interests of the public and the accused. Emphasis was placed on the fact that the accused's inability to call his witness, caused by the prosecution's conduct in bringing about the delay. This prejudiced the accused's ability to procure a fair trial, which was enough to render the proceedings an abuse of process (Williamson v Trainor [1992] 2 Qd R 572 at 582).

Dowsett J made this comment, which was pressed on the court in the present application:

'Nothing is more likely to bring the judicial process into disrepute than to permit either the Crown or the police force to resile from such an agreement (Williamson v Trainor [1992] 2 Qd R 572 at 583).'

His Honour's statement must be read in context, in particular the prejudice the Crown's conduct caused to the accused's ability to obtain a fair trial. The circumstances in that case are very different from those in the application presently before the court: as I shall explain shortly, the present applicant's ability to obtain a fair trial has not been compromised."

[32] It can be seen that the circumstances of Williamson v Trainor were such that the second prosecution of the accused in that case was indeed apt to undermine public confidence in the administration of justice. The Court of Criminal Appeal was of the view that the court below, which convicted the accused, had been mired in the attempt by the prosecution to secure a conviction of the accused without affording him the opportunity of a fair trial. The observations of Dowsett J cited above are to be seen in that light. Dowsett J went on to say:[27]

"I consider that the subsequent proceedings constituted an abuse of process. I agree that the appeal should be allowed and the conviction and subsequent orders set aside. Such an order is within the power conferred upon the Court by s 668E(1) as the abuse inevitably resulted in a miscarriage of justice."

[33] Dowsett J was clearly concerned to characterise the proceedings which led to the conviction as "an abuse of process" which "inevitably resulted in a miscarriage of justice" within the meaning of s 668E(1) of the Criminal Code. Section 668E(1) of the Criminal Code, not the discretion to prevent abuse of process, was the source of power to which Dowsett J referred. It is, in my respectful opinion, quite wrong to attribute to his Honour support for the radical proposition that a reversal by the Crown, in good faith, of a decision to discontinue a prosecution must necessarily be regarded as undermining public confidence in the administration of justice, and, therefore, as an abuse of process.[28]

[34] It is also important to emphasise that, in this case, the DPP's decision to pursue charges of trafficking against the appellant was made on the footing of an honest judgment that the availability of new evidence of serious crime was sufficient to warrant a reversal of the previous decision. Whether the strong public interest in the proper punishment of crime warranted the reversal of the earlier arrangement was a matter for decision by the DPP. The decision to prosecute is a matter exclusively for the DPP as the prosecuting authority established by law for that purpose.[29] There is no occasion for a court to impede or interfere in the exercise of the prosecutorial function unless and until "[c]ourt processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression".[30] There is no suggestion that the decision by the DPP in this case was made otherwise than in good faith. Both at first instance and on appeal the appellant disavowed any allegation of bad faith against the DPP. And the undertakings offered by the DPP will ensure that court processes, if and when they are ultimately engaged, will not operate to cause the appellant improper vexation or oppression.

[35] Public confidence in the administration of justice might well be lessened to a greater degree by the DPP deciding to allow a criminal, whose guilt of serious crimes was now believed by the prosecuting authority to be demonstrable, to escape responsibility for his crimes than it would be lessened by a supine adherence to an agreement made at a time when necessary evidence was not available. In saying this, I am, of course, making no comment upon the strength of the prosecution case against the appellant. Indeed, the strength of that case has not yet been tested at a committal hearing. I am concerned simply to emphasise that it is important to keep steadily in view, both the multi-faceted nature of the public interest in maintaining confidence in the administration of justice, and the exclusivity of the role of the DPP as the officer of the executive government charged by law with the prosecution of serious offences.[31]

[36] Finally, it is to be emphasised that the decision of the learned primary judge involved the exercise of a judicial discretion. Questions of degree and balance may be involved in the determination of whether any particular proceedings brought by the DPP should be stayed as an abuse of process. But to say that is simply to confirm that one is here concerned with the exercise of a judicial discretion rather than the application of absolute rules.

[37] The learned primary judge weighed the considerations material to the exercise of her discretion; and, in the exercise of that discretion, concluded, on balance, that the public interest did not require the stay of the prosecution. The appellant has not demonstrated that the decision of the learned primary judge was affected in any way by error of fact or law. It is, in my respectful opinion, not open to this Court to say that her Honour's decision was unreasonable.[32]

[39] The DPP did not seek costs of the appeal. Mr Stirling sought an order for his costs of the appeal. While it is true to say that there could never have been any utility in the appeal against Mr Stirling because the prosecution has been taken over by the DPP, it is equally true that there was no good reason for Mr Stirling to incur the costs of representation on the appeal when that burden could have been borne by the DPP. I would therefore make no order as to costs of the appeal.

[1] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC No 1520 of 2006 and SC No 5174 of 2006, 29 August 2006 [42]-[43].

[2] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [10].

[3] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [11].

[4] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [15] - [16].

[5] Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565 at 567 - 568 and 575; [2005] QCA 234 at [4], [5] and [38]; cf R v Clarkson [1987] VicRp 80; [1987] VR 962 at 972 - 973; Walton v Gardiner (1993) 177 CLR 378 at 389 - 392; Miller v Ryan [1980] 1 NSWLR 93 at 109 - 110; Herron v McGregor (1986) 6 NSWLR 246 at 251 - 252.

[6] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [43].

[7] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [13], [30], [35], [42] - [44].

[8] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [13] (citations footnoted in original).

[9] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [42] - [45] (citations footnoted in original).

[11] [1984] VicRp 82; [1984] VR 1030 at 1037.

[12] [2000] SASC 384; (2000) 78 SASR 55 at 64 - 67 [43] - [48].

[13] [1996] QCA 111; (1996) 87 A Crim R 126 at 131 - 132.

[14] Walton v Gardiner (1993) 177 CLR 378 at 393 - 395; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74 - 75.

[15] R v Johannsen & Chambers [1996] QCA 111; (1996) 87 A Crim R 126 at 134.

[16] [1980] HCA 48; (1980) 147 CLR 75 at 111.

[17] See also R v Clarkson [1987] VicRp 80; [1987] VR 962 at 973; Owen v Edwards [2006] QCA 526 at [10], [34] - [35].

[18] Cf Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

[19] [1995] HCA 66; (1995) 184 CLR 19 at 75. See also R v Georgiadis [1984] VicRp 82; [1984] VR 1030 at 1037; Williamson v Trainor [1992] 2 Qd R 572.

[20] Egerton v Brownlow (1853) 4 HLC1 at 163; [1853] EngR 885; 10 ER 359 at 324; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 74 - 75; A v Hayden [1984] HCA 67; (1984) 156 CLR 532 at 553 - 556; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17 - 18; Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VicRp 85; [1990] VR 968 at 983 - 984.

[21] [1989] HCA 46; (1989) 168 CLR 23 at 30 - 34, 59 - 61, 72, 76 - 78.

[23] Walton v Gardiner (1993) 177 CLR 378 at 396.

[24] [1992] 2 Qd R 572.

[25] [1992] 2 Qd R 572 at 583.

[26] Barac v DPP; Barac v Stirling, unreported, Wilson J, SC 1520 of 2006 and SC 5174 of 2006, 29 August 2006 at [31] - [33] (citations footnoted in original).

[27] [1992] 2 Qd R 572 at 583.

[28] See also per Derrington J at [1992] 2 Qd R 572 at 573 - 574; and per Ambrose J at 582 - 583.

[29] Pursuant to s 10 of the Director of Public Prosecutions Act.

[30] R v Harris [1991] 1 HKLR 389 at 402.

[31] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96; R v Brown (1989) 17 NSWLR 472 at 478.

[32] Cf House v The King (1936) 55 CLR 499; Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194.