57 The letter suggested that these orders were essentially what the claimant was seeking in his summons. The claimant was informed that he would be at risk as to costs if consent were not forthcoming.
58 The claimant promptly indicated that he would not accept disposal of the matter on these terms. In our view, he was justified in adopting this stance because the orders proposed by the RSPCA fell short of those claimed in his summons. More importantly, they fell significantly short of the relief to which in our view the claimant is entitled for the reasons which follow.
59 There is a further reason why these proceedings could not properly be disposed of by making consent orders. The relief sought is in the nature of prerogative relief. The claimant seeks to quash orders and a conviction which (save as to penalty and costs) brought a criminal prosecution to its culmination. The principles of open justice make it essential that the reasons for giving such relief should be stated, especially since the proceedings have to return to the District Court for disposal according to law and in accordance with the reasons of this Court (see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557). The judicial officers in the courts below are entitled to know why their orders are set aside and this cannot be inferred from the form of the orders proposed by the opponents.
60 This said, we are not required to address each and every one of the matters raised by the claimant. Some are quite groundless; some concern persons who are not parties; others are unnecessary having regard to the relief which will be given and the reasons for it.
61 In wave after wave of affidavits and written submissions, the claimant has raised an array of issues. Some are based upon a misconception as to the nature of the present proceedings, which are not proceedings by way of appeal.
62 The issues raised by the claimant include submissions as to:
¨ denial of procedural fairness in a number of respects;
¨ ostensible bias;
¨ wrongful failure to state a case;
¨ miscarriage due to the incompetence of the claimant's legal representative in the early stage of the proceedings in the District Court;
¨ allegations that police and RSPCA officers failed to comply with subpoenas;
¨ error of law on the face of the record.
63 Counsel who appeared for the second and third opponents on 26 August 1999 conceded that there had been a denial of procedural fairness in the primary judge's refusal to entertain the claimant's submissions outlining his grounds for requesting her Honour to state a case (par 46 above). This concession was properly made.
64 Counsel also accepted that there was denial of procedural fairness in the circumstances in which her Honour shut out the claimant from leading evidence in his defence (par 42 above). Again, this was a proper and inevitable concession. The claimant was prevented from advancing important evidence, in circumstances giving rise to a justifiable sense of grievance based upon the way that the prosecution had been permitted to run its case in the District Court. Quite apart from the confrontation of the prosecution witnesses that had occurred in the Local Court, it was a misunderstanding of the principle in Browne v Dunn (1893) 6 R 67 to treat that case as authority for the absolute proposition that evidence may not be called in contradiction of an opponent's case unless that opponent's witnesses were relevantly cross-examined. See Crosthwaite v City of Elizabeth (1989) 51 SASR 105 at 111; Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556; Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 at 202.
65 These matters require the setting aside of the orders made by Karpin DCJ and the staying of further proceedings in the District Court consequent upon those orders. It becomes unnecessary to consider whether relief in that nature could be justified on further bases.
66 The consent orders proposed on the second and third opponents' behalf in the solicitor's letter involve remittal to the District Court, differently constituted, of the proceedings so that they may be heard and determined according to law.
67 It is appropriate that another judge should hear any further proceedings, if only because her Honour expressed a similar view.
68 Remittal is appropriate as regards the charge of aggravated cruelty, although the second opponent would be well advised to consider whether the evidence at hand supports continuation of the prosecution. We have already indicated that the prosecution should, if requested, provide particulars as to the way in which it proposes to establish the portmanteau offence, bearing in mind that the charge spans a period of one month and having regard to the many options offered by s4(2) and (3) and s5(3) of the Act. Many of those provisions have no conceivable relationship to the facts presently established in the evidence.
69 Remittal would serve a further purpose. Whether or not the aggravated cruelty charge is pressed, the District Court can make appropriate dispositive orders covering the aggravated cruelty charge and costs generally.
70 However, remittal of the s27A charge would involve placing this Court's imprimatur upon a travesty. Out of fairness to the second opponent/informant, we decline making a finding that the laying of the charge involved an abuse of process in the sense discussed in Williams v Spautz (1992) 174 CLR 509. (The possibility of characterising the laying of the charge in this way was only raised, by the Court, very late in the second day of the hearing in this Court.) But the charge was doomed to fail on the evidence and this is enough to make the continuation of proceedings an abuse of process of a nature that attracts this Court's supervisory power to stay further proceedings on the charge (cf Ridgeway v The Queen (1995) 184 CLR 19 at 41, 43, Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134).
71 It is clear that there is no evidence to sustain the charge in its present formulation, nor any prospect that it could be reformulated in an appropriate manner. It is sufficient to point out three fundamental deficiencies (cf par 33 above). It was not the informant who made the critical requirement of the claimant that he provide his full name and residential address. Nor did the informant give the warning required by s27A(3)(a). Furthermore, the making of the requirement to a person whose name and residential address were well known to the two RSPCA officers was so patently unreasonable and oppressive that it should be concluded that the requirement had no validity in any system of law outside those considered in Kafka's novel The Trial.
72 Despite the claimant's submissions, it is inappropriate to express any view as to the lawfulness of the claimant's arrest. The issue was not before Karpin DCJ and the necessary parties are not before this Court. While the evidence in those proceedings suggests that the expressed basis of the arrest (by Mr Dymond) was the s27A offence, the question of reasonable cause for the relevant suspicion (cf Crimes Act, s352(2)(a)) has not been explored in these proceedings.
73 Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances, where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby (1982) 60 FLR 124 at 126 that:
Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.