GAD v DPP

Director of Public Prosecutions (Queensland) for the first respondent

Queensland Police Service Solicitor for the second respondent

**[1] McMURDO P: The appeal should be dismissed for the reasons given by Keane JA.

[2] KEANE JA: On 14 January 2003 the appellant and his de facto wife, JK, were arrested and charged by police with possession of dangerous drugs, utensils and firearms. The appellant was also charged with the offence of supplying methylamphetamine. The appellant was charged with five indictable offences and two summary offences.

[3] On 9 August 2005 the charges against the appellant and JK were the subject of committal proceedings in the Southport Magistrates Court. On that day, agreement was reached between the police prosecutor and Mr Nyst, the lawyer acting for the appellant and JK, that the police would offer no evidence in relation to the charges against JK if the appellant entered a plea of guilty to all the charges then before the Magistrates Court. The police prosecutor offered no evidence against JK; and the appellant pleaded guilty to the charges and was committed to the Supreme Court for sentence.

[4] On 10 April 2006 the appellant was charged with various offences including trafficking in methylamphetamine and producing methylamphetamine between

1 January 2000 and 14 January 2003. He was also charged with five other indictable offences in the same terms as the five original charges for the indictable offences. I shall refer to these seven charges as "the new charges". The second respondent is the police officer who charged the appellant.

[5] The first respondent intends to enter a "no true bill" in relation to the charges of indictable offences to which the appellant pleaded guilty on 9 August 2005. The first respondent has elected, pursuant to s 10 of the Director of Public Prosecutions Act 1984 (Qld), to prosecute the new charges.

[6] The new charges are presently awaiting a committal hearing in the Magistrates Court at Southport.

[7] The first respondent intends to rely upon the facts relating to the five original indictable offences as some of the particulars of the trafficking and production charge.

[8] In April 2007 the appellant sought an order from the Supreme Court of Queensland granting a permanent stay of the proceedings pending in the Magistrates Court on the ground these proceedings constitute an abuse of process. In this regard, it was said that the bringing of the new charges against the appellant is contrary to the terms of the agreement of 9 August 2005.

[9] The learned primary judge dismissed the appellant's application. Her Honour held that the pursuit of the new charges does not involve breach of the agreement of

9 August 2005; and that, even if the new charges were being pursued in breach of the agreement, there was no prospect of any prejudice to the appellant's right to a fair trial such as might warrant the stay of the proceedings in the public interest.[1] In this Court the appellant seeks to challenge her Honour's conclusions on each of these issues.

[10] The appellant seeks to suggest that the change in the attitude of the prosecuting authorities occurred because an important witness is now willing to co-operate in the prosecution against the appellant. On the appellant's behalf it is sought to present the appellant's case against the respondents as one in which the prosecuting authorities have repented of, and reneged upon, the bargain made on 9 August 2005 in a way apt to prejudice the appellant's right to a fair trial of the new charges.

[11] Since the ultimate foundation for the appellant's contentions is the proposition that the pursuit of the new charges "sets at nought" the agreement of 9 August 2005, it is convenient to turn immediately to a consideration of the terms of that agreement. In doing so, one may make an assumption in favour of the appellant that the agreement of 9 August 2005 should be regarded as if it were made on behalf of the first respondent.**

[12] The genesis and terms of the agreement appear sufficiently from the following passage from the reasons of the learned primary judge:

"On 9 August 2005 committal proceedings were held at the Southport Magistrates Court relating to the charges against the applicant and [JK]. Constable Myee King (now Acting Senior Constable Arandale) was the police prosecutor. The applicant and [JK] were represented by a solicitor, Mr Christopher Nyst. A number of prosecution witnesses were required for

cross-examination. There is disagreement between Mr Nyst and Constable Arandale and Detective Gough about the sequence of certain events relevant to this application. No deponent was required for cross-examination and it is not germane to this application that the resolution of these disputed recollections be determined.

Detective Gough deposes that during the luncheon adjournment whilst he was giving evidence he was approached by Mr Nyst on the basis that if the applicant pleaded guilty to the matters with which he had been charged would the prosecution withdraw the charges against [JK]. Detective Cameron, who was the arresting officer, was present during the conversation. Detective Gough sought to have the prosecutor involved in the conversation. Constable Arandale recalls that Detective Gough approached her and told her of Mr Nyst's offer on behalf of his clients. She then approached

Mr Nyst who, she deposes, asked if an offer of the kind recalled by Detective Gough would be acceptable to the prosecution. She recalls that Detective Cameron agreed to this course. The prosecutor then approached her officer-in-charge for instructions. She was instructed that she could accept the offer made by Mr Nyst on behalf of his clients. The prosecutor spoke to Mr Nyst who was with the applicant and told him that the offer that the applicant plead guilty to all charges against him was acceptable and the charges against

Mr Nyst has a different recollection as to who initiated the offer. He deposes that the offer was made to him by the prosecutor

'In terms that if the applicant entered a plea of guilty to all charges before the Magistrates Court at Southport, the PPS [Police Prosecutions Service] would offer no evidence in relation to all charges against [JK]'. Para 6 affidavit of Christopher Stephen John Nyst filed

'It was my understanding of discussions with the prosecutor, that the 'deal' was intended to finally dispose of all drug-related charges against the applicant for the period 1 January 2000 to 14 January 2003.'"[2]

**[13] The learned primary judge ignored Mr Nyst's evidence of his understanding of the effect of his discussions with the police prosecutor. Her Honour's approach in this respect was entirely orthodox. The opinion of a party to an agreement as to the effect of the terms in which the agreement was made is of no assistance in the task of determining the meaning of the agreement. That task requires an objective determination of what the terms of the agreement mean rather than a study of what each of the parties subjectively intended to achieve. So much is established by the decisions of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales,[3] Ermogenous v Greek Orthodox Community of SA Inc[4] and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd.[5]

[14] The actual terms of the agreement were clearly established by Mr Nyst's own evidence of what was said to the Magistrate after the discussions had occurred:**

"Const King [now Arandale]: Your Honour, my friend and I have had further discussions in relation to the charges before the Court. As a result of our discussions and discussions between my friend and his client, prosecution, your Honour, are offering no evidence in relation to all charges against [JK], on the proviso that [GAD] pleads guilty to all charges before the Court.

Bench: Okay. Certainly. Thank you. Yes, thank you. Mr Nyst. Can I just confirm that from your position ...

Mr Nyst: I understand that the prosecution will seek to withdraw the charges against [JK] and that being so, or subject to that, I have instructions to take no further - or to release the prosecution from the agreement to call witnesses for cross-examination and understand that [GAD] will then plead guilty to the four indictable - sorry, five I think it is; possession amphetamine, possession of cannabis, possession document, possession of MDA and supply amphetamine."

**[15] It can be seen that the appellant promised to plead guilty to the original charges. That was his quid pro quo for the prosecutor's promise to abandon the charges against JK. The only quid pro quo for the appellant's pleas of guilty to the original charges was the abandonment of the charges against JK. The appellant did not obtain a promise from the police prosecutor (assuming, of course, that such a promise could bind the first respondent) that the Crown would accept the appellant's pleas of guilty to the original charges in full acquittance of all drug offences committed by him during the time covered by the original charges.

[16] No-one would suggest that the agreement would have precluded the prosecution of the appellant upon a charge of murder allegedly committed during the period of time covered by the original drug charges. There is no sensible basis for the suggestion that, nevertheless, the agreement brought about such a preclusion in relation to any drug offence with which the authorities might otherwise properly charge the appellant in the performance of their duties of law enforcement. It may be accepted that the charges originally brought against the appellant reflected the full extent of what the prosecution then realistically expected to be able to prove against the appellant in the way of drug offences. But that cannot be used as a foundation for the suggestion that the prosecuting authorities were undertaking not to seek to prove further offences against the appellant if a basis for doing so became available to them. There was nothing in the terms of the agreement, or the circumstances in which it came to be made, which could reasonably have led the appellant to understand that the prosecuting authorities accepted that their responsibility to prosecute offences should be confined in this way.

[17] Arguments based on what the appellant might have legitimately or fairly expected from the agreement all depend upon what the parties actually agreed. The agreement between the parties simply did not provide that no charges in addition to, or in substitution for, those then currently pending against the appellant would be brought against the appellant.

[18] On behalf of the appellant it was originally contended that the learned primary judge erred in failing to appreciate that "the relevant state of mind is that of the appellant and the affidavit of Mr Nyst is the best evidence of what the appellant's understanding of the 'deal' was." But the effect of the agreement does not depend on the state of mind of the appellant. To urge the contrary is to pursue a subjective theory of the interpretation of agreements which has been decisively rejected in Australia. Not surprisingly, this contention was not pressed in the appellant's written reply or in the oral argument presented on his behalf.

[19] In my respectful opinion the fundamental contention on which the appeal is based is entirely without substance. The appellant's application was rightly rejected by the learned primary judge. This conclusion makes it unnecessary to deal at any length with the other bases on which the respondents seek to support the decision of the learned primary judge.

[20] For the sake of completeness, however, it should be recorded that, notwithstanding his pleas of guilty, the appellant has not been convicted of the original charges; and, as has been said, the first respondent will not proceed in respect of these original charges. For that reason, as was acknowledged by Mr Temby QC, who appeared with Mr McCafferty of Counsel on behalf of the appellant, this is not a case where the appellant is entitled to set up a plea of autrefois convict under s 17 of the Criminal Code Act 1899 (Qld).

[21] I should also say that I am in respectful agreement with the learned primary judge that, even if this were a case where it could be said that the prosecution of the new charges was contrary to the agreement of 9 August 2005, and even if that circumstance could be relied upon against the DPP, the appellant's entitlement to a fair trial of the new charges has been in no way adversely affected by his pleas of guilty.[6] The DPP has given undertakings not to use the admissions implicit in the pleas of guilty at the trial of the new charges. In the light of these undertakings the suggestion that the appellant's right to a fair trial has been adversely affected is distinctly unrealistic.

[22] Finally, it may be noted that the first respondent contended that this Court has no jurisdiction to grant the orders sought by the appellant even if it were disposed to do so. The respondent's contention is that the power of this Court to supervise the proceedings of inferior courts and tribunals does not extend to preventing the presentation of criminal charges by the executive government, or the administrative processes involved in committal proceedings.[7] In relation to this contention, different views were taken in the Full Court of the Supreme Court of South Australia in Clayton v Ralphs and Manos.[8] It is unnecessary and undesirable to seek to resolve this difference of opinion in order to dispose of this appeal.**

[24] ATKINSON J: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the appeal should be dismissed for the reasons given by his Honour.**

[1] GAD v Director of Public Prosecutions (Queensland) & Anor, unreported, White J, BS10395 of 2006, 27 April 2007 at [28].

[2] GAD v Director of Public Prosecutions (Queensland) & Anor, unreported, White J, BS10395 of 2006, 27 April 2007 at [8] - [11].

[3] (1982) 149 CLR 337 esp at 348 - 353.

[4] (2002) 209 CLR 95 at 105 - 106 [25].

[5] [2004] HCA 52; (2004) 219 CLR 165 at 176 - 177 [36] - [41].

[6] Cf Barac v DPP; Barac v Stirling [2007] QCA 112 esp at [24], [27] - [35].

[7] Cf Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 88 - 94.

[8] (1987) 45 SASR 347 at 357 - 362, 404.