Director of Public Prosecutions (SA) v B [1998] HCA 45; 194 CLR 566; 155 ALR 539; 72 ALJR 1175

Director of Public Prosecutions (SA) v B [1998] HCA 45; 194 CLR 566; 155 ALR 539; 72 ALJR 1175 - HCA 1998 case summary — Zoe

[71]

1. The foundation of jurisdiction point: Did the questions of law, purportedly included in the case stated, arise "at the trial" of the respondent so as to enliven the power of the Full Court to consider and determine those questions (and thus of this Court to hear an appeal from its orders)? > > 2. The jurisdiction points: If so, was the appeal to this Court otherwise beyond jurisdiction upon the ground that it (a) was not from a judgment, decree, order or sentence of the Supreme Court of a State within s 73(ii) of the Constitution [63]; (b) invoked the exercise of non-judicial power by the Court, whether in the provision of an advisory opinion or otherwise[64]; or (c) presented for determination a question in which the respondent had no real interest and which was wholly hypothetical. > > 3. The deprivation of jurisdiction point: Upon the announcement by the prosecutor that the appellant entered a nolle prosequi in respect of the indictment charging the respondent with certain offences did the court conducting the trial lose jurisdiction to make any order save for the discharge of the respondent upon that indictment? > > 4. Refusal of nolle prosequi point: If not, was it within the power of the primary judge, either as a matter of the procedures followed or as a substantive matter of law, to decline to accept the nolle prosequi whether upon the ground of protecting the court from abuse of process or to prevent oppression and injustice to an accused or otherwise? > > 5. The judicial review point: Was the challenge to the exercise by the appellant of his statutory discretion "to enter a nolle prosequi ... in appropriate cases"[65] susceptible to judicial review and, if so, was the procedure which took place before the primary judge, and the power which he purported to exercise explicable as an instance of judicial review? > > 6. The constitutional point: If, on its true construction, the Director of Public Prosecutions Act 1991 (SA) ("the DPP Act") conferred on the appellant a power to enter a nolle prosequi which could not be refused by the court to which it was presented although it amounted to an abuse of process, was the section conferring such power invalid as a purported diminution of the power of the court to operate as a court within the meaning of Ch III of the Australian Constitution? Or was it invalid to the extent that would otherwise bring the court into disrepute by leaving it powerless to prevent an abuse of process? > > 7. The form of the questions point: Having regard to the determination of the foregoing points were the questions reserved in the case stated otherwise so objectionable in form that this Court should decline to answer them?

[74]

1. There was no relevant dispute about the facts. Nor did either party contest the entitlement of this Court to go beyond the stated case to the recorded transcript of proceedings before the primary judge or the notations on the Court file in order to understand the case stated[66]. > > 2. Although the conduct of interlocutory proceedings prior to the "rearraignment" of the respondent was uncontested, neither party suggested that any special statutory provisions under which such "pre-trial" proceedings are heard in South Australia threw any light upon the meaning of the phrase "at the trial" in s 350(1a) of the Act as it then stood. I am content to proceed on that assumption. > > 3. A number of concessions were made for the appellant which became common ground: > > (a) that under the law of this country, a court has jurisdiction to protect itself (and those who invoke its process) against abuse of the process of the court. The appellant contended that this jurisdiction continued only during the conduct of a trial and not after the trial was concluded, as he submitted had happened in this case, by the entry of a nolle prosequi; > > (b) that a court would have jurisdiction to stay subsequent proceedings, brought after entry of a nolle prosequi, where a revival of a prosecution of an accused in such proceedings would, in the circumstances, amount to an abuse of the court's process; and > > (c) that the entry of the nolle prosequi in this case had not been made by the Attorney-General or by the appellant pursuant to any prerogative power but solely pursuant to the DPP Act 1912 and in terms of the statutory power there conferred upon the appellant[67]. > > 4. For the respondent, who relied upon the power of the primary judge, as a judge of the Supreme Court, to review the lawfulness of the prosecutor's decision to enter the proffered nolle prosequi, it was eventually accepted that the procedures for judicial review of that decision, required by the Rules of the Supreme Court of South Australia, had not been followed[68]. The parties usual to proceedings for judicial review of such decisions were not given notice. However, it was suggested that this did not matter in the context of a collateral attack on the legality of the appellant's decision, at least in a trial conducted in the Supreme Court where the legality of the decision was critical to the proceedings[69]. > > 5. It was accepted by both sides that differing views might be held, as a matter of fact, about the correctness of the response of the primary judge to the circumstances which had arisen before him. Reservations in this regard were noted in the Full Court. Mullighan J expressly stated that "the resolution of the issues raised by this case stated [should not be] interpreted as approval by this Court of the manner in which the learned trial judge exercised his discretion"[70]. However, whether because that issue was taken to raise only a question of fact or otherwise, it was not argued before the Full Court. Nor was it contested in this Court. The matter proceeded on the footing that the tender of the nolle prosequi was either itself an abuse of process, or the first step in an abuse of process, as the primary judge concluded. The question then presented was whether, in such circumstances, there was nothing which the primary judge could do but accept the entry of the nolle prosequi or whether the judge was entitled to refuse to accept it and to require that the trial proceed.

[78]

When the legislation was read a second time in the House of Assembly, the government expressed the view that the amendment would allow the same issues to be canvassed as in an appeal by the accused[75]: > > > "[I]t acknowledges that just as in the case of the trial of an accused who is found guilty, there may be errors of law in summing up of the trial judge or other matters which deserve consideration by the Full Court or other appeal courts, in the same way such considerations may arise when an accused person is acquitted ... while the accused person should certainly not again be put at risk, the Crown should be given the opportunity in some way to have the disputed matters of law dealt with by an appeal. So, it was said that it could be done in the way proposed." > > > > Section 350(1a) is a beneficial procedure, adopted by Parliament to permit courts to give "authoritative decisions on questions of criminal law for the better administration of justice"[76]. A narrow construction of "arising at the trial" in the sub-section would frustrate the achievement of that purpose. Such a construction should therefore be avoided. The fact that the question of law reserved on the application of the appellant did not strike either the primary judge or the Full Court as falling outside the ambit of "the trial" is not, of course, determinative. Oversights can occur, even in such a fundamental matter as jurisdiction. But the approach taken by their Honours is open unless there is imposed on s 350(1a) of the Act a jurisprudence concerning the commencement of "the trial" which was developed for quite different purposes than those which s 350(1a) was designed to advance. The procedures of stated cases have been notoriously technical. They have presented many questions concerning the last moment at which a judge may be asked to reserve a question of law for the opinion of a higher court[77]. The fact that the Attorney-General or the Director of Public Prosecutions may now, by statute, reserve any question of law after a trial at which a person is acquitted assists in defining the purpose of the sub-section. It suggests that the question of law concerned need not have been raised expressly at the trial. This was the view taken by Cussen J in R v Turnbull[78] of a like provision in Victorian legislation[79]. He considered: > > > > "[I]f there was an existing point of law which arose on the materials at the trial, and which might have been taken, it can be said to have arisen at the trial, although no contention as to it had been raised there, and although the judge's attention had not been directed to it at the trial." > > A similar opinion was reached by several of the judges of the English Court of Criminal Appeal in R v Mellor[80], including Lord Campbell CJ[81], Cockburn CJ[82], Coleridge J[83] and Martin B[84]. Whilst others took a narrower view, I find the reasoning for a broader approach more consonant with the purposive construction of the provisions and the balance of authority. Particularly is this so in relation to an exceptional statutory provision which permits a prosecution challenge to a legal ruling which led to the acquittal of the accused. > > > 2. The approach which I favour is also one which is more realistic when it is remembered that a provision such as s 350(1a) is now to be construed in the context (of which Parliament was presumably aware) of extensive interlocutory determinations in Australian criminal proceedings. These can affect the conduct of a subsequent trial and concern questions of law expected to arise in the trial. Their earlier determination may govern the way in which the whole trial is conducted. A narrow view would require that such preliminary rulings of law, affecting the trial, must be ignored, and the facility for their legal correction after the acquittal of the accused completely lost, although s 350(1a) of the Act was clearly enacted with the general purpose of avoiding such disadvantages for the proper administration of criminal justice. > > > > 3. In the present case, it is highly artificial, in the continuous dialogue between the trial judge and counsel placed before this Court, to draw a line in the proceedings of that day at the point at which the respondent was rearraigned and required to plead: disregarding all that happened before that moment for the purpose of deciding whether the contested question of law arose "at the trial". It is sometimes important, for particular purposes, to decide precisely when a trial commenced; for example, to determine whether a new statutory regime will apply to it[85]. In South Australia it has been held that, ordinarily, a criminal trial commences "when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury"[86]. The point of commencement appears to have been even later at common law[87]. However that may be, such considerations are of little relevance to the meaning of the disputed phrase as it appears in s 350(1a). There, the question in issue is not the delineation of events for the application of a particular legislative regime, the introduction of different procedures or the attachment of new and different rights. It is the provision of the facility for the consideration of a question of law which, having arisen in a concluded trial, may arise again and requires authoritative curial determination. It is a mistake to apply to such a context decisions reached in different contexts for quite different purposes. > > > > 4. It would be unacceptably artificial to treat the prosecution's tender of no evidence (referred to in the case stated) separately from the events which are also there described and which preceded that course. If the appellant is correct, the primary judge had no authority to refuse to accept the nolle prosequi tendered by him. If that be right, and if there was no jurisdiction in the judge except to discharge the respondent, all that followed in the purported "trial" was, as a matter of law, completely unauthorised. There was no power in the judge to grant the application to reinstate the request for trial by judge alone. There was no power to rearraign the respondent. There was no power to conduct the abbreviated trial. Nor was there power to find the respondent not guilty on all counts. A clearer case of questions of law "arising at the trial" could hardly be imagined. The narrow view would construe the section as if it empowered the court to "consider and determine any question of law reserved after the commencement of the trial". But that is not what s 350(1a) says. If the transcript of the actual exchanges between the primary judge and counsel at the trial may be used to remove any suggested ambiguity of the case stated, it is worth recalling that the primary judge, after the rearraignment, prefaced his verdicts with the phrase "In those circumstances". The "circumstances" referred to were clearly the decision of the prosecutor to tender no evidence at the trial. That event can itself only be understood by reference to the immediately preceding refusal of the judge to "accept a nolle prosequi".

[82]

In Saffron v The Queen[96], the Court held that the decision of the Court of Criminal Appeal of New South Wales, given upon a question reserved under s 5A(2) of the Criminal Appeal Act (NSW) did not result in a judgment, decree, order or sentence within s 73 of the Constitution. The reason given for that conclusion was that such decision could not "affect the rights of the person who has been acquitted, or his liabilities"[97]. It was in the nature of an advisory opinion[98] from which an appeal would not lie. Over the years, doubts were expressed about the correctness of this holding[99]. In Mellifont v Attorney-General (Q), the Court overruled Saffron, there being but one dissenting voice[100]. The ruling was explained as resting on a return to the basis of the prohibition against advisory opinions, viz the inadmissibility of the making of declarations of law "divorced from any attempt to administer that law"[101]. A provision permitting the correction of errors of law that have taken place in an actual criminal trial, made for the purpose of preventing their repetition in future such trials, did not have the prohibited quality. Such proceedings were stamped as an exercise of the judicial power. They came from a decision which was a judgment or order within the meaning of s 73 of the Constitution. They were made in the course of providing authoritative decisions on questions of criminal law for the better administration of justice. No persuasive reason of law or policy existed as to why an appeal from such decisions, formulated, as in this case in an order of the court concerned, should not fall within the words "judgments, decrees, orders" in s 73 [102]. In a bold stroke, in Mellifont, the Court swept aside past authority which suggested that no appeal lay to it from answers given to a special or stated case where those answers did not actually determine the parties' rights[103]. The Court expressly contemplated the application of its holding to the case of an acquittal where, as here, the ruling on the reference had no legal consequence for the acquittal[104]. The majority stated that the constitutional construction which they preferred did not rely on the fact that, in Mellifont, "it was foreshadowed to the applicant that a fresh indictment would be presented against him"[105].

[100]

1. To the extent that some features of the Attorney-General's nolle prosequi have been carried over to the statutory power afforded to the appellant, most earlier legal authority suggests that no power or discretion to refuse the entry of a nolle prosequi exists in a court. In such respects, the act being that of the executive government, a court was conventionally viewed as wholly passive: having no functions save to conclude the hearing and discharge the accused[134]. At least in South Australia, where there was no procedure of handing back the paper indictment for endorsement, there was no immediately following action which the trial court was obliged to take. Just as the Crown had an unfettered right to commence criminal proceedings, it traditionally had an unfettered right to conclude them. One way of doing so, where the indictment had been found and presented to a court, was by entry of a nolle prosequi. The use in the DPP Act of the term of art suggested that the essential features of a nolle prosequi by the Director remained the same. One of these was that a decision to enter a nolle prosequi was previously not reviewable by the courts. > > 2. A reason of principle for adhering to this approach may be sought in the removal of the courts from involvement in prosecutorial decisions. Although not universal this is considered desirable in our legal tradition for the independence and manifest impartiality of the courts[135]. The restraints proper to the courts in this connection are acknowledged by recent decisions of this Court[136]. Adherence to that principle and a general refusal to invade decisions derived, historically, from the Crown's prerogative[137], were urged as reasons of legal authority, policy and principle for rejecting the existence of the power which the primary judge asserted in this case. > > 3. The procedural difficulties of declining to accept the entry of a nolle prosequi were also emphasised. If the Crown refused to proceed with its process, a court could scarcely take over the role of the prosecutor. It would ill-become a court to insist that a person be prosecuted and to require that evidence be tendered against that person if the prosecutor declined to do so. Either the matter would proceed to an inadequate or half-hearted prosecution or no evidence would be called or the judge would be placed in the intolerable position of calling evidence in a way inappropriate to a criminal trial as conventionally conducted in this country. Moreover, once the prosecutor had announced an intention not to proceed on the indictment before the court, the remedy of a stay of proceedings, at least if directed to proceedings upon that indictment, would be futile. There would be no point of providing a stay given the announced intention not to proceed upon the indictment anyway. > > 4. Further practical difficulties arise from a purported refusal to accept a nolle prosequi. In the present case, the respondent's trial, if it had begun at all, was in its earliest phase. Cases can arise where a nolle prosequi is proffered at an advanced stage in a trial. Indeed, these are the cases in which the worst suggested abuses of process could potentially arise. A case where a jury's request for redirection may have signalled a likely verdict unfavourable to the prosecution; one where the case has gone badly for the prosecution; one where the prosecutor has taken the risk of proceeding without a witness whose evidence, in retrospect, appears vital[138]. But allowing trial judges to refuse to accept a nolle prosequi places a heavy burden upon them. Because a prosecutor cannot be required to give reasons for the decision to proffer a nolle prosequi, a court may often be unaware of the complex considerations which have resulted in this course, even in the midst of a trial. If the court refuses to accept a proffered nolle prosequi, the possibility of a guilty verdict in a trial by jury cannot be excluded[139]. > > 5. To hold that the court has no power to prevent the entry of a nolle prosequi, including by a statutory office-holder such as the appellant, does not leave the courts entirely without remedy where further prosecution would constitute an abuse of process or an unacceptable departure from fairness to the accused[140]. It would still be open to the accused, in the event of a fresh prosecution, to argue that the circumstances in which the nolle prosequi was entered involved an abuse of process or a departure from fair trial requirements. In this way, the intervention of the courts would be reserved to cases where intervention was strictly necessary. There would then be proceedings in a court which could properly be the subject of a stay order directed at the process initiated by the new indictment[141]. Short of refusing to accept the entry of a nolle prosequi, a judge could properly make plain an opinion that, in the absence of significantly new evidence, the commencement of fresh proceedings would constitute an abuse of process. The purported assertion of a power to refuse the entry of a nolle prosequi would therefore ordinarily, be unnecessary. As in this case, refusing the entry of a nolle prosequi might punish the Crown for inadequate preparation in ensuring the attendance of its witnesses (and send a signal for other like cases). But it might do so at a price of denying the community's interest in having serious criminal charges heard on their merits and, if proved, those found guilty punished according to law[142].

[102]

1. The power of Australian courts to prevent and remedy abuse of their process or serious infringements of an accused person's right to fair trial is now much more clearly perceived and strongly asserted than was formerly the case. In Rona v District Court (SA)[143], King CJ put the present problem into the context of legal history: > > "It may be that the development in Australia of a deeper understanding of the inherent power of the criminal courts to prevent abuse of their processes leads to the conclusion that the courts have power to act in a way which achieves what is now achieved by practice in England, by refusing to act on a nolle prosequi where to do so would permit an abuse of process. In R v Saunders[144], the court refused to act on a nolle prosequi entered during trial and directed an acquittal. In R v Jell; Ex parte Attorney-General[145], the Full Supreme Court held that a trial judge has a discretion to refuse to accept a nolle prosequi if to do so would be an abuse of process. > > If the reasoning and decision in Jell are sound, and they certainly accord with my sense of justice, there is no reason why the same should not apply where the trial has not begun but the date for trial has been fixed in accordance with the regular procedures of the court. When the accused appears for trial on that date, the interests of justice may demand that, if the prosecution does not wish to proceed and there is no valid reason why the accused should remain exposed to prosecution in respect of the alleged conduct, there be a verdict of not guilty by direction." > > 2. Exercising such power does not, as such, constitute a novel review of the prosecutor's discretion to enter a nolle prosequi. Instead, it may be characterised as action on the part of a court to defend its own processes. It ensures that minimum requirements of a fair trial of persons accused of criminal offences are observed in the courts of this country. The inescapable duty of courts to secure fair treatment of those who are brought before them was recognised in England in Connelly v Director of Public Prosecutions[146], in New Zealand in Moevao v Department of Labour[147] and by this Court in a series of cases following Jago v District Court (NSW)[148]. Courts cannot surrender these functions to an officer of the executive government, such as a Director of Public Prosecutions. Once a person is before a court, in the sense that that court's jurisdiction has been engaged in relation to him or her, the court's protective powers are attracted. This is especially so in the case of superior courts which have large inherent powers to protect their own processes[149] which, in recent years, they have been more ready than previously to exercise. > > 3. It would be offensive to principle, at least in respect of the exercise of powers such as those conferred on the appellant by the DPP Act, to suggest that his decision to enter a nolle prosequi was beyond judicial scrutiny if, for example, it could be shown that it was exercised for a malicious purpose, corruptly or otherwise contrary to law. Not only has Parliament expressly reserved the use of the appellant's power to "appropriate cases" but it has afforded that power, in the ordinary way, to be used to achieve the proper objects of the DPP Act. A court might be slow to question the use of the power. It would be slower still to embark upon conduct which risked calling into question its own neutrality. But the submission that a court is completely powerless to defend its processes and to uphold the right of persons before it to fair trial in extreme and obvious cases is quite unconvincing. It is unnecessary, and probably impossible, comprehensively to catalogue what such extreme cases will be[150]. But a clear instance would be where criminal proceedings, in which the accused was ready for trial, were repeatedly unready because of inadequate or incompetent preparation by the prosecution. In such cases, if the prosecution were denied a further adjournment after argument of the merits, the appellant could, if his argument were accepted, procure the same result by unilateral entry of a nolle prosequi. An extreme example arose in Richards v Jamaica[151]. There, the accused was charged with murder and pleaded guilty to manslaughter. The plea was accepted by the prosecution. Subsequently, however, a nolle prosequi was entered. He was then again charged with murder, and this time convicted and sentenced to death. The United Nations Human Rights Committee found that[152]: > > "The nolle prosequi was used not to discontinue proceedings against the [accused] but to enable a fresh prosecution against the [accused] to be initiated immediately, on exactly the same charge in respect of which he had already entered a plea of guilty to manslaughter, a plea which had been accepted. Thus, its purpose and effect were to circumvent the consequences of that plea, which was entered in accordance with the law and practice of Jamaica. In the Committee's opinion, the resort to a nolle prosequi in such circumstances, and the initiation of a further charge against the [accused], was incompatible with the requirements of a fair trial within the meaning of [the International Covenant on Civil and Political Rights].

[104]

4. Although the assertion of a power such as I have mentioned, in relation to the conduct of the appellant and his delegates, undoubtedly involves a departure from the old legal authority which denied to a court any authority to refuse to accept the entry of a nolle prosequi by the Attorney-General, that refusal must itself be seen in the context of the assumptions then prevailing in the law concerning judicial examination of the exercise of prerogative powers. It must be re-examined in contemporary circumstances in the light of the beneficial developments of recent decades in the judicial review of the decisions of statutory office-holders. The endeavour to import historical prohibitions and immunities once applied in relation to the decisions of the Crown made by the Attorney-General, to the exercise of statutory powers by a statutory office-holder such as the appellant is unconvincing. It should be rejected. If it is beyond question that Australian courts have full power to prevent abuse of their process[154], they have a duty, where necessary, themselves to protect the integrity of that process[155]. It is not sufficient simply to trust, without question, the propriety of every decision of a statutory office-holder to enter a nolle prosequi. Nor is it necessarily sufficient, the matter being before a court, to leave defence of the court's process or of the accused's fair trial right to a future court, should a fresh prosecution be brought. In a given case, that might deprive an accused person of an entitlement to a verdict of acquittal. It could burden him or her unjustifiably with the odium of an unresolved criminal accusation. It could involve injustice and serious oppression. Most importantly, it could defeat the expectations of the accused, the community and the court itself that once the proceedings are before an independent court of justice no party to those proceedings can, in defiance of the court's rulings on the justice of the case, unilaterally terminate the matter. Least of all may the appellant do so given that Parliament has confined his power to enter a nolle prosequi to "appropriate cases" and those, by implication, for the purposes of advancing the objects of the DPP Act. > > 5. Where a court concludes that conduct of any party is, or if permitted would be, an abuse of its process or, in a criminal trial, diminishes the accused's right to a fair trial which is the hallmark of the criminal law of this country[156], it is for the court to fashion the remedy (if any) that is appropriate. In some cases it may be sufficient to order the expedition of any subsequent proceedings or to lay down conditions for their conduct[157]. In some cases it will be appropriate to leave the provision of relief to be decided if a prosecution is revived. But in rare and exceptional cases the court will have the power and authority to fashion an order staying further proceedings on the indictment. In other cases, particularly where the nolle prosequi is proffered at an advanced stage in the trial, the court may require the matter to proceed to verdict, at least where that is the wish of the accused and the defence of the court's process as well as fairness to the accused suggests that it is proper. Once it is accepted that a court may, in rare and exceptional circumstances, refuse to enter a nolle prosequi, although proffered for the prosecutor, it must be expected that the prosecutor would accept the judicial ruling and conform to its consequences so far as these affected the ensuing conduct of the trial. > > 6. Like the Full Court, I refrain from commenting on the appropriateness of the refusal to accept the entry of the nolle prosequi in the present case. It is enough to say, with every respect to all involved, that neither in its substance nor in its procedure is the case a model for what should happen where a court entertains a concern that entry of a nolle prosequi would constitute an abuse of process or a derogation from the accused's fair trial right. However, because the primary judge did have a power to refuse to enter a nolle prosequi proffered on behalf of the appellant, the Full Court's affirmative answer to the first question was correct. Subject to what follows, the appeal from the Full Court's order that the first question be so answered should therefore be dismissed.

At a glance

Court

Decision date

Before

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Judgment (253 paragraphs)

Director of Public Prosecutions (SA) v B [1998] HCA 45; 194 CLR 566; 155 ALR 539; 72 ALJR 1175 (23 July 1998)

Parties

Legislation Cited (18)

Cases Cited (44)