Supreme Court of SA|1995-01-19|Before: King CJ

GABBY RONA v DISTRICT COURT OF SOUTH AUSTRALIA AND STATE OF SOUTH AUSTRALIA DIRECTOR OF PUBLIC PROSECUTIONS v DISTRICT COURT OF SOUTH AUSTRALIA AND GABBY RONA No. SCGRG 94/1478, SCGRG 94/1485 Judgment No. 4922 Number of pages - 13 Criminal law and procedure (1995) 63 SASR 223 [1995] SASC 4922 (19 January 1995)

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1) MOHR(2) AND OLSSON(3) JJ

CWDS Criminal law and procedure - jurisdiction, practice and procedure - Stay of proceedings - failure of DPP to comply with directions made and undertakings and assurances given at status conferences - such failure may amount to abuse of process - assurance that trial would proceed on Information for False Pretences - date fixed for trial on that basis - filing of fresh Information before trial for Fraudulent Conversion

Counsel for Plaintiff/Defendant Gabby Rona: Ms L Powell

Solicitors for Plaintiff/Defendant Gabby Rona: Caldicott and Co

Counsel for Plaintiff DPP/ Defendant State of South Australia/ Intervener Attorney-General: Mr J J Doyle QC with Dr N A

Solicitors for Plaintiff DPP/ Defendant State of South Australia/ Intervener Attorney-General: DPP (SA)

JUDGE1 KING CJ These actions for judicial review raise an important question as to the power of the court to enforce its procedures, and in particular its case management procedures, on the Director of Public Prosecutions.

On 22 July 1992 an Information was laid in the Adelaide Magistrates Court against the accused charging him with four counts of false pretences. The charges arose out of the alleged payment to the accused by four investors of money for the purpose of obtaining shares in a company, Sy Quest International Ltd. On 15 February 1993 a further Information was laid in the Adelaide Magistrates Court charging the accused with four counts of fraudulent conversion of the moneys allegedly paid by those persons. The latter Information was subsequently dismissed for want of prosecution and on 11 March 1993 the accused was committed for trial in the District Court on the original Information for false pretences. On 8 April 1993 the Director of Public Prosecutions filed in the District Court an Information containing the four counts of false pretences.

A status conference was held on 27 April 1993 in accordance with Rule 6 of the District Court Criminal Rules. The Director of Public Prosecutions and the accused were represented by counsel. Counsel for the prosecution, Mr Powell, stated categorically that "the counts laid and the nature of the counts will be those that the Crown will proceed on" although amendments might be sought as to the detail of the cheques. That was said in answer to a specific question by the judge as to whether the Crown was proceeding on the Information as laid. The conference was adjourned. The status conference resumed on 25 May 1993. Counsel for the defence expressly asked whether the charges would remain the same with particular reference to whether they would be false pretences or fraudulent conversion. The answer of counsel for the DPP was categorical, "The charges remain as they are." The judge ordered "the Crown to file and serve any further statements of witnesses it proposes to rely on at trial, no later than 12 July 1993 and the Crown is to attend to any amendment to the Information on or before the same date". Her Honour listed the trial for 7 September 1993.

These directions were not complied with. By letter dated 30 July the DPP sent copies of statements of persons as "potential witnesses in the trial in this matter". Other statements were supplied and no amendment was made to the Information.

On 31 August 1993 the DPP sent to the accused's solicitors a facsimile copy of a new Information in the District Court alleging four counts of fraudulent conversion to the same effect as those contained in the second Information in the Magistrates Court. On 2 September the accused filed an application to stay the proceedings on the grounds:- (1) that the case for the defence was materially prejudiced as a result of the unavailability of an intended witness Jack Newman due to his extradition to the United States; and (2) that the filing of the new Information was in breach of caseflow management principles.

The case was not reached on 7 September as no judge was available to try it. At a subsequent status conference a date was set, 8 February 1994, for the hearing of the application for a stay of proceedings.

At the hearing of the application for a stay, Judge Lunn in the District Court was told that the reason for the new Information was that the charges contained therein were considered to be the most appropriate. A case was stated for the opinion of the Supreme Court as to certain matters, but the Full Court declined to entertain it. When the matter came back to Judge Lunn he rejected the unavailability of witnesses as a ground for a stay of the proceedings. The learned judge held, however, that "the District Court does have power to stay a criminal proceeding where the prosecutor has acted contrary to directives given at a status conference in the implementation of the Court's caseflow management system". His Honour made an order "imposing a permanent stay on count 4 of the ex officio Information, but refusing the application to stay the Information in respect of counts 1, 2 and 3".

The accused instituted an action for judicial review in this Court seeking an order in the nature of certiorari quashing the order and a declaration that the judge "was wrong in law in imposing a stay of one count but refusing to stay the remaining three counts on the ex officio information". The Director of Public Prosecutions also instituted an action for judicial review seeking an order in the nature of certiorari quashing the judge's order and an order in the nature of mandamus directing the District Court to try count 4 according to law.

The District Court is created by statute, namely the District Court Act, and its jurisdiction and powers are conferred by the statute. It is unable to draw upon "the well of undefined powers which is available to the Supreme Court" (Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 per Dawson J at pp16-17) by reason of section 17 of the Supreme Court Act. There is no doubt, however, that the District Court has power to stay criminal proceedings, permanently if necessary, to prevent abuse of its process; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, whether that power is regarded as inherent in the Court by reason of its being a court of justice (Jago's case per Mason CJ at p26) or as implied by the grant of jurisdiction in section 9 of the District Court Act (Grassby v The Queen (supra) per Dawson J at pp16- 17).

That the power of a Court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. Although the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial, Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, which is strictly speaking a distinct rubric from that of abuse of process, and with preventing the prosecution of proceedings brought for an improper purpose, Williams v Spautz (supra), "it is not possible to state exhaustively all the categories of abuse of process" Jago v District Court of New South Wales (supra) per Brennan J at p47. The underlying principle was stated in wide terms in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz (supra) at p520:- "As Lord Scarman said in Reg v Sang [1979] UKHL 3; (1980) AC 402, at p455, every court is 'in duty bound to protect itself' against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of

criminal proceedings. Richardson J referred to them in Moevao v Department of Labour (1980) 1 NZLR 464, at p481 in a passage which Mason CJ quoted in Jago [1989] HCA 46; (1989) 168 CLR 23, at p30. 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."

The remedy may be granted where "the prosecutor can be said to have manipulated or misused the rules of procedure"; R v Derby Crown Court ex parte Brooks (1985) 80 Cr App R 164 at p168, R v Horsham Justices ex parte Reeves (1982) 75 Cr App R 236, R v Brentford Justices ex parte Wong (1981) 73 Cr App R 67.

Case management rules are now essential equipment for courts exercising criminal jurisdiction, just as they are for Courts exercising civil jurisdiction. What I said concerning civil jurisdictions in United Motors Retail Limited v Australian Guarantee Corporation Limited (1992) 58 SASR 156 applies also to criminal jurisdictions. At p158 I said:- "It is also essential to the case management system, and to the orderly disposal of the business of the court, that parties proceed to trial on the day fixed for trial except in extraordinary circumstances."

At p160 I said:- "It cannot be overemphasised that the capacity of courts to provide expeditious justice in the face of heavy workloads, depends upon the maximum utilisation of the court's resources. This can only be achieved by the orderly processing and disposal of cases in accordance with the now recognised principles of case flow management. Where a court has adopted those principles, it is perfectly entitled to insist that the parties proceed with interlocutory applications, pre-trial conferences and trial of the action, on the dates fixed for those purposes."

The case management rules are designed to ensure, inter alia, that the cases for the prosecution and the defence are prepared, that all necessary amendments are made, that necessary notices are given and that statements of any additional prosecution witnesses are supplied to the defence, in good time before trial so that the trial will proceed on the day fixed and the time allocated for the trial will not be wasted. It is essential to the proper management of cases that both the Director of Public Prosecutions and the accused comply with the directions which are given, carry out undertakings made and adhere to assurances given, at the status conferences held in accordance with those Rules. Only in that way can a trial be accorded which is fair to both parties without waste of the limited public resources committed to the court system. The Court must therefore insist on the parties including the DPP acting in that way. Only thus can 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" and prevent the "erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice"; Williams v Spautz (supra) at p520.

I consider therefore that the conduct by the Director of Public Prosecution of a prosecution other than in accord with the procedural directions given by the Court or the undertakings and assurances given to the Court, may amount to an abuse of the process of the Court and found the jurisdiction to stay the proceedings. If that were not so the DPP would be immune from the case management regime and "(t)he power of a court to control its own process and proceedings", Jago v District Court of New South Wales (supra) per Gaudron J at p74, would be defeated.

In the present case the assurances of counsel for the DPP that the prosecution would proceed on the false pretences Information were unequivocal and repeated at successive status conferences, on the second of which occasions counsel for the defence expressly adverted to the alternative of fraudulent conversion. The judge's directions were explicit. The Information which was fixed for trial on 7 September was the false pretences Information.

The suggestion was put in argument that the trial on that date could have been aborted by the DPP exercising his right to enter a nolle prosequi on the false pretences Information leaving him free to proceed subsequently on the fraudulent conversion Information. It is not necessary to decide the question in this case as a nolle prosequi was not entered, but I would not wish to be taken to accede to the proposition that the entry of a nolle prosequi necessarily and in all circumstances deprives the Court of the power to control the proceedings before it by empanelling a jury and taking a verdict.

It is true, of course, that the traditional view has been that a nolle prosequi may be entered at any time before verdict and that the decision to do so cannot be called in question by the Court, R v Allen (1862) 1 B and S 850, R v Comptroller-General of Patents (1899) 1 QB 909 per Smith LJ at 914. It is noteworthy, however, that the current position in England, where the prosecution does not wish to proceed with a prosecution, is to place the accused in charge of a jury, and, upon the prosecution tendering no evidence, to direct a verdict of not guilty. "It appears, however, that the current practice is to confine the exercise of the power almost entirely to cases where, after the indictment has been signed, it is found that the accused is unlikely ever to be fit to stand his

trial (so that it is not possible to place him in charge of the jury with the object of bringing the proceedings to an

end with a formal verdict of not guilty). In short, a power which was previously exercised largely (but not, of course, exclusively) in order to enable the Crown to present a fresh indictment is now exercised largely for the purpose of disposing of an indictment which would otherwise remain on the file"; Nolle Prosequi (1958) Crim LR 573 esp at p578.

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 (1983) 2 Qd R 270 the court refused to act on a nolle prosequi entered during trial and directed an acquittal. In R v Jell (1991) 1 Qd R 48, 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. There may of course be valid reasons why a nolle prosequi should be accepted even during trial. A vital witness may be incapacitated or there may be suspected witness tampering causing a vital witness to change his story. Other examples can readily be imagined. Where, however, there are no such reasons and the power to enter a nolle prosequi is used in a manner which would operate oppressively to the accused or would amount to defiance of procedural directions given by the court, there must be a serious question as to whether the court may not protect its process from abuse by declining to accept the nolle prosequi.

Even if a nolle prosequi were accepted in such circumstances, there would remain in the court the power to stay any future prosecution in respect of the same conduct, if that prosecution amounted to an abuse of process. It seems to me therefore that the supposed absolute right of the DPP to have a nolle prosequi accepted in all circumstances, even if it exists, does not assist in determining whether there was power in the District Court to stay the Information for fraudulent conversion.

I think that the attempt by the DPP to depart from the unequivocal assurances given at the status conference that the Information on which the accused would go to trial was the false pretences Information, by proceeding on the Information for fraudulent conversion, was in the circumstances an abuse of the process of the Court which gave rise to a power in the Court to stay proceedings on that Information.

The learned judge, however, stayed only one of the counts and refused to stay the other three counts. In the course of his reasons, His Honour spoke of "a discretion to impose sanctions". It is apparent that he approached the matter on the basis of punishing the DPP for his departure from his assurances, regarding the staying of one count only as an appropriate sanction. I think that that approach discloses an error of law. The power is to prevent proceedings which amount to an abuse of process, not to punish non compliance with case management procedures and directions. The abuse of process may arise from failure to comply with the case management rules or with directions made or undertakings or assurances given at status or pre-trial conferences, but the power to stay must be used for the purpose of prevention of the abuse not merely as a punishment for non-compliance. The question to which the learned judge should have directed his attention is whether proceeding on the fraudulent conversion Information would be an abuse of process and whether in the circumstances those proceedings should be stayed. There is no power to stay proceedings simply as a sanction or punishment.

A question was raised as to whether the error of law could be said to be on the face of the record so as to meet the requirement for jurisdiction to make an order in the nature of certiorari. The error appears on the face of the written reasons for the decision. In this state the record of the courts in most cases consists not only of the pleadings and the order but also of the transcript of evidence, and often argument, and the reasons for judgment. All these records are available for the examination of a court exercising judicial review jurisdiction. The question of what constituted the record of other courts in other eras has no relevance to the task of this Court when exercising judicial review. Technical arguments as to what constitutes the record should have no place in our procedures. This Court should examine whatever has been recorded of the proceedings under review in order to ascertain whether an error of law has been disclosed.

The error of law which has been disclosed in the present case, must result in the quashing of the order. The Application for the Stay of Proceedings must be remitted to the District Court to be heard and determined according to law.

As the application will, in my judgment, now have to be determined on its merits in the District Court, it is important to make the point that the existence of the power to stay resulting from the abuse of process, does not imply that the power must be exercised. A judgment has to be made as to what the interests of justice require. There must be a balancing process taking into account the interests of fairness to the accused in having the basis upon which his trial was to take place adhered to, the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business and "the community's expectation that persons who are charged with offences are properly brought to trial" Mellifont (1992) 64 A Crim R 75 at p80.

In my opinion there should be an order in the nature of certiorari in both actions quashing the order of Judge Lunn for a permanent stay and remitting the application for the stay to the District Court to be heard and determined according to law.

I would not make the declaration sought by the accused.

JUDGE3 OLSSON J It was reiterated in the joint judgment of four members of the High Court in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 518 that it is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. The judges cited with approval a dictum of Lord Morris of Borth-y-Gest in Connolly v Director of Public Prosecutions (1964) AC 1254 at 1301 to the effect that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction - a court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and defeat any attempted thwarting of its processes.

The majority went on to comment that, although the term "inherent jurisdiction" has acquired common usage, the question is strictly one of the implied power of a court to stay proceedings. "That power arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings." It is the exercise of such type of power, in the instant case, which is placed in question in the present proceedings.

Whilst the authorities disclose discernible classes of cases in which a power of stay has been exercised, that is not to say that the classes of case in which it may be exercised are closed. Such a conclusion would necessarily be at odds with the very conceptual nature of the power itself. At the end of the day it becomes necessary to consider the individual factual scenario in question in the particular case.

It may, however, fairly be said that, in general, the power to stay criminal proceedings arises as a weapon to meet two broad categories of situation.

The first is where it may fairly be said that the prosecution, or mode of prosecution, of proceedings is contemplated in such a manner as to make them an instrument of oppression which will result in an unfair trial. (See for example the authorities adverted to in Jago v The District Court of New South Wales and Others [1989] HCA 46; (1989) 168 CLR 23.)

The second is essentially based on policy aspects, which do not necessarily focus upon an end result being an unfair trial, in the traditional sense of that expression. The majority judgment stressed that the concept of the duty of a court to protect itself against an abuse of its process gives rise to what it described as "two fundamental policy considerations". Their Honours described them in these terms (at 520):- "... 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."

More often that not cases falling within the second category are those which evidence proceedings which have been brought for what are perceived to be a collateral purpose and which evidence an improper act of misuse. However, it is certainly not strictly confined to such situations.

As Staughton LJ accepted in Regina v Croydon Justices, ex parte Dean (1993) QB 769 at 777, the circumstances in which abuse of process can arise are very varied and extend to prevention of misuse of the procedure of the court in a way which, although not inconsistent with the literal application of its procedural roles, would otherwise bring the administration of justice into disrepute among right thinking people.

Much the same concept is to be seen in Moevao v Department of Labour (1980) 1 NZLR 464 at 482, where Richardson J commented:- "The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the court 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. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court."

In Regina v Croydon Justices, ex parte Dean, Staughton LJ referred to a variety of examples of situations in which Courts had exercised the power to stay in situations of that type. There is no need to retraverse the same ground.

It seems to me that there is considerable force in the submission of counsel for the respondent Rona that, at the end of the day, what is involved is a concept akin to that articulated in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, albeit in a quite different context. There is a need to balance competing public policy considerations - in this case the constitutional right of the Director of Public Prosecutions to present and prosecute informations against accused persons, on the one hand, and, on the other, the obligation of the Court to protect its ability, effectively, to function as a court of law.

It is a matter of public notoriety that, in recent times, when funding available to the courts to fulfil their high public functions has steadily been reduced, it has become critical that they manage - and be able efficiently to manage - their judicial and other resources in such manner as assures to those who come before them in their criminal jurisdictions that their cases will be disposed of in a timely and orderly manner, so as to ensure that they will not suffer undue prejudice, in the broadest sense of that word.

As to this it is unnecessary to do other than cite the following excerpts from the judgment of Gleeson CJ (presiding over the Court of Criminal Appeal) in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1993) 29 NSWLR 487 at 493-494, with which Sheller JA and Badgery-Parker J agreed:- "... the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories ... The appellant argues that, even if it be accepted that Cripps J had a discretionary power to exclude Mr Ritchie's additional evidence, it was wrong of his Honour to refuse to allow an adjournment (which would have cured the prejudice resulting from failure to comply with the directions) by reference to the consideration that to adjourn the matter would have impeded the efficient dispatch of the business of the court. ... I would emphatically reject the appellant's submissions on this point. Far from being an extraneous consideration, the regard which Cripps J had to the requirements of the efficient dispatch of the business of the court was entirely proper, and in keeping with modern principles of case management. The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase of the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of judges to have regard, in controlling their lists and cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs. There are a number of Practice Notes issued in relation to the business of the Supreme Court making that perfectly clear. The flow of cases through the courts of this State is now managed by the judiciary, and not left to be determined by the parties and their lawyers.

The problem of the strain imposed upon the court system by the increase of litigation, and the consequent change in the responsibility and attitude of judges, is not unique to New South Wales."

The learned Chief Justice elsewhere made the point that (at 492):- "It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature."

So it is that rules 5.01 and 5.03 inclusive of the District Court Rules, 1992 have been couched in the following terms:- "Caseflow Management 5.01 These Rules are made for the purpose of establishing orderly procedures for the conduct of the business of the Court in its criminal jurisdiction and of promoting the just and efficient determination of such business. They are not intended to defeat a proper prosecution or to frustrate a proper defence of a person who is genuinely endeavouring to comply with the procedures of the Court and they are to be interpreted and applied with the above purpose in view. 5.02 With the object of - (a) promoting the just determination of the business of the Court; (b) disposing efficiently of the business of the Court; (c) maximising the efficient use of the available judicial and administrative resources; and (d) facilitating the timely disposal of business at a cost affordable by the parties and the community generally; proceedings in the Court will be managed and supervised in accordance with a system of positive caseflow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects. 5.03 The system of caseflow management is directed towards achieving the disposal of the business of the Court in accordance with the following standards:- (a) That the trials of ninety per centum of the cases of persons committed for trial should commence within ninety days of their first appearance in the Court. (b) That the trials of ninety-eight per centum of the cases of persons committed for trial should commence within 180

days of their first appearance in the Court. (c) That the trials of all persons committed for trial should commence within 365 days of their first appearance in the Court. (d) That ninety per centum of all persons committed for sentence should be sentenced within sixty days of their first appearance in Court. (e) That all persons committed for sentence should be sentenced within ninety days of their first appearance in the Court."

It is not being over dramatic to say that these concepts have proved to be vital in ensuring the orderly conduct of business in the criminal jurisdiction; and that an abrogation of them would lead to disastrous practical consequences to the court and the community alike.

The succeeding rules, which bear upon the established status conference and pre-trial conference procedures, contain equally vital practical provisions which govern the procedures by means of which effective caseflow management can be a practical reality.

In the course of his judgment the Chief Justice has traversed the events which gave rise to the present proceedings. There is no need to reiterate that description.

I agree with his conclusion that, if the argument of the Solicitor General is accepted, it necessarily sounds the death knell of any pretence at further effective caseflow management in the District Court criminal jurisdiction.

In advancing his submissions the Solicitor General was constrained to go so far as contending that, just as the Director of Public Prosecutions has an unfettered constitutional right to tender a nolle prosequi at any time up to verdict - which, he says, the Court is bound to accept - so also is he entitled, in his discretion, to elect to present and prosecute such informations as he desires, save only to the extent that, in cases of demonstrated unfairness, a stay may be granted.

All that need be said in that regard is that the asserted unfettered right to tender a nolle prosequi is now open to challenge, as appears to the interesting article in that regard by Mr PM McDermott, titled "Nolle Prosequi

The Law and Practice in Queensland" (1993) 17 Crim LJ 319. I am simply unable to accept that, in relation to matters such as that now under consideration, such an unfettered right does exist
so as to oust the capacity of the Court to protect its ability effectively to function as a court of law. With respect, I agree with what is said by King CJ in that regard.

Whilst the implied power of the Court must be exercised with caution and common sense, so as to preserve a proper balance between the competing public interests involved, there is, in my view, no doubt of its existence both in relation to the Supreme Court and the District Court. The reasoning relating to the former is no less applicable to the latter.

It seems to me that, having regard to the authorities and concepts to which I have referred, the reasoning expressed by the Chief Justice in this matter is not only compelling, it is unanswerable. I agree both with it and the conclusions to which he has come.

(1993) 17 Crim LJ 319

GABBY RONA v DISTRICT COURT OF SOUTH AUSTRALIA AND STATE OF SOUTH AUSTRALIA DIRECTOR OF PUBLIC PROSECUTIONS v DISTRICT COURT OF SOUTH AUSTRALIA AND GABBY RONA No. SCGRG 94/1478, SCGRG 94/1485 Judgment No. 4922 Number of pages - 13 Criminal law and procedure

At a glance

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Judgment (64 paragraphs)

Cases Cited (13)