Langtree v Trenerry & ors [1999] NTSC 97

the basis that the proceedings amount to an abuse of process.

In the event that the plaintiff is found guilty of one or other of the charges

of unlawful damage he will become what has been described as "a third

striker" for the purposes of the Sentencing Act (NT). By virtue of s 78A of

that Act, when dealing with such a person, "the court must record a

conviction and order the offender to serve one term of imprisonment of not

less than 12 months" in respect of that offence or those offences.

For present purposes the circumstances of the offending are described by the

"At approximately 4.00 am on the morning of Saturday 20 February

1999 the plaintiff was ... with three friends when they stopped at the

Nightcliff jetty car park, Casuarina Drive, Nightcliff NT.

The [plaintiff] walked over to Florde Coombs who was talking with a

small group of friends nearby. The [plaintiff] said to the group

words to the effect of ,,you mob staring at me or what, you want to

After an altercation and assault on another the plaintiff approached

Coombs and kicked him on the knees with his right leg and punched

him with a closed fist to the right side of Coombs head, str iking

above the ear. Coombs got into the drivers seat of his vehicle, a

white Holden Commodore sedan NT526066. The plaintiff smashed

the drivers side front window of the vehicle. The glass from the

window cut Coombs right elbow causing it to bleed. The plaintiff

then punched Coombs in the face several times with his fists closed.

The plaintiff then chased the victim Ricky Juzuf who was about to

enter his vehicle, a green Mazda 323 Hatchback NT reg 513197. As

the plaintiff ran past the open door of the victims vehicle he kicked

the drivers side door window and shattered the glass. Ricky Juzuf

apprehended that he would be struck by the plaintiff. He was able to

As a consequence of those incidents the plaintiff faces the charges of

unlawful damage to each of the vehicles along with one count of unlawful

assault involving circumstances of aggravation in relation to the victim

Florde Coombs. Notwithstanding the submissions of the plaintiff to the

contrary it is clear that both the assault and unlawful damage charges are

Following the laying of those charges the solicitor for the plaintiff wrote to

the Officer in Charge, Summary Prosecutions, requesting that the charges of

unlawful damage to property against the plaintiff be withdrawn. That

request was refused and the Director of Public Prosecutions directed that the

prosecutions for unlawful damage to property proceed.

The plaintiff complains that the Director has given no reasons for the

decision that the plaintiff should be prosecuted for the charges of unlawful

damage which, upon a finding of guilt, will lead to him being imprisoned for

a period of 12 months in addition to any period of imprisonment imposed for

The plaintiff says that the Director of Public Prosecutions did not have

regard to or did not comply with the guidelines issued by the Director under

s 25 of the Director of Public Prosecutions Act and, in particular, the

the youth, age, intelligence, physical health, mental health or

whether the prosecution would be perceived as counter

productive, for example, by bringing the law in to disrepute,

whether the consequence of any resulting conviction would be

the likely outcome in the event of a finding of guilt having

regard to the sentencing options available to the court,

the necessity to maintain public confidence in such basic

I note in passing that s 25(3) of the Director of Public Prosecutions Act

provides, in relation to such guidelines, that "an act or omission of the

Director... shall not be called in question or held to be invalid on the

grounds of a failure to comply with a statement issued under this section."

It was submitted that if the plaintiff were to plead guilty to the charges of

unlawfully damaging property, or if the plaintiff was found guilty of one of

those charges, then the court would have no option other than to impose a

period of imprisonment which the plaintiff said would be "manifestly

disproportionate" to the alleged unlawful conduct of the plaintiff. It was

therefore submitted that the plaintiff was "effectively deprived of a proper

opportunity to plead guilty because of the disproportionate penalty he would

In the circumstances the plaintiff submitted that the commencement and

continuation of the proceedings was an abuse of process and sought orders

that the proceedings in respect of those matters be permanently stayed or,

alternatively, that the decision of the authorities to lay a complaint charging

the plaintiff with those offences and seeking to proceed to trial in relation to

It was the submission of the plaintiff that in the circumstances of this

matter, which the plaintiff said were "special", the decision to prosecute for

unlawful damage to property and the decision to continue the proceedings

were reviewable and capable of being quashed. In this regard the plaintiff

pointed to a number of English authorities where the exercise of the

Reference was made to R v Constable of the Kent County Constabulary and

Anor, ex parte L (1993) 1 All ER 756. In that case it was held that the

discretion of the Crown Prosecution Service to continue or to discontinue

criminal proceedings against a juvenile was subject to judicial review by the

High Court. However it was said that this is so only where it could be

demonstrated that the decision had been made regardless of, or clearly

contrary to, a settled policy of the Director of Public Prosecutions which had

been formulated in the public interest, such as a policy of cautioning

juveniles. It is interesting to note that in that case Watkins LJ said (at 770):

"I have confined my views as to the availability of judicial review of

a CPS decision not to discontinue a prosecution to the position of

juveniles because, of course, the present cases involve only

juveniles. My view as to the position of adults, on the other hand, in

this respect is that judicial review of a decision not to discontinue a

prosecution is unlikely to be available. The danger of opening too

wide the door of review of the discretion to continue a prosecution is

manifest and such review, if it exists, must, therefore be confined to

very narrow limits. Juveniles and the policy with regard to them are,

In R v Inland Revenue Commissioners, ex parte Mead (1993) 1 All ER 772

Stuart-Smith LJ concluded that a decision to prosecute by a prosecuting

authority is "in theory susceptible to judicial review, albeit the

circumstances in which such jurisdiction could be successfully invoked will

be rare in the extreme". The only other member of the Court, Popplewell J,

reached a contrary view and held that there was no such jurisdiction.

I was also referred to R v Director of Public Prosecutions, ex parte C (1995)

1 Cr.App.R. 136. In that case there applied a Code for Crown Prosecutors

established under the provisions of the Prosecution of Offences Act which

was said to have been breached. The resolution of the matter turned upon

the applicable statutory provision and the Code issued thereunder..

In Australia the position would seem to be different from that which is

In Barton v R [1980] HCA 48; (1980) 147 CLR 75, Gibbs ACJ and Mason J said (at 94 -95):

"It has generally been considered to be undesirable that the court,

whose ultimate function it is to determine the accuseds guilt or

innocence, should become too closely involved in the question

See also the observations at 96 per Gibbs ACJ and Mason J, at 104 per

Stephen J, at 107 per Murphy J, at 109 per Aicken J and at 110 per Wilson J.

In Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Gaudron J said (at 77):

"The features which attend the criminal process enable the general

considerations to be refined somewhat in their application to the

grant of a permanent stay of criminal proceedings. One particular

feature relevant to criminal proceedings is that the question whether

an indictment should be presented is and always has been seen as

involving the exercise of an independent discretion inhering in

prosecution authorities, which discretion is not reviewable by the

court. Originally, the unreviewable nature of that decision was seen

as an aspect of the prerogative power vested in the office of

Attorney-General ... . More recently, the unreviewable nature of that

discretion has been seen as deriving from the nature of the subject

matter to be decided and, perhaps, the incompatibility of judicial

review with the ultimate function of a court in a criminal trial."

" ... for the moment, it should be noted that Barton reaffirms the

clear division between the executive power to present an indictment

and the judicial power to hear and determine proceedings founded on

the indictment. That division is of great constitutional importance.

It ensures that the function of bringing alleged offenders to justice is

reposed entirely in the hands of the executive branch of government

who must answer politically for the decisions which they make � not

only decisions to prosecute in particular cases but decisions relating

to the commitment of resources to the detection, investigation and

prosecution of crime generally. These are decisions which courts are

ill equipped to make and, so far as they relate to the commitment of

resources, powerless to enforce. The division of powers in the

administration of the criminal law between the executive and judicial

branches of government also ensures that the courts do not become

concerned by matters extraneous to the fair determination of the

issues arising on the indictment and are thus left free to hear and

determine charges of criminal offences impartially."

In her paper "Judicial Review of Prerogative Power in Australia: Issues and

Prospects" [1992] SydLawRw 32; (1992) 14 Sydney Law Review 432, Fiona Wheeler said (at 457):

"To the undesirability of blurring the functions of prosecutor and of

judge and the need to preserve the integrity of the criminal process

may be added the consideration that some prosecutorial decisions are

not wholly referable to personal circumstances but are informed in

part by matters of policy relating to the cost to the public of criminal

investigations and prosecutions .... it is no accident that our drug

laws are pursued more faithfully than those relating to prostitution or

homosexuality .... When such budgetary and planning matters bear

upon the institution of criminal proceedings, they would seem even

less amenable to judicial scrutiny. Although the some time presence

of this ,,policy element could not, of itself, justify judicial refusal to

review in all cases, it nonetheless weighs against judicial

intervention in conjunction with the other factors here mentioned.

In essence then, the refusal of the courts to review the manner of

exercise of the Attorney-Generals prerogative decision to prosecute

is soundly based. Nevertheless, it may still be possible to

contemplate departures from this rule in exceptional circumstances

There was no suggestion of bad faith or fraud in the present matter.

The plaintiff pointed to, and relied upon, the views expressed in the

judgment of Kirby J in Director of Public Prosecutions (SA) v B (1998) 72

"Having regard to the parties named and to the procedures adopted,

the suggestion that the primary judge was actually engaged in a

judicial review of the appellants decision to enter a nolle prosequi

can not be accepted. The only relevance of the suggested

susceptibility of that decision to conventional judicial review is that

it calls attention to the differentiation between decisions of the

Attorney-General exercising a vestige of the royal prerogative and

decisions of the appellant which must in every case conform to the

DPP Act. As Debelle J correctly discerned, this differentiation

affords a court different, and larger, powers of scrutiny in relation to

the appellant than were conventionally exercised by courts in relation

to decisions of the Attorney-General. Whether the latter might also

now be subject to examination by a court is a question which does

In his judgment Kirby J was dealing with the position regarding the entry of

a nolle prosequi. He noted that the power relied upon in the proceedings in

that case was a statutory power contained in the DPP Act. He observed that

he would not accept that the decision to enter a nolle prosequi under the

DPP Act was beyond judicial scrutiny "as to its lawfulness or beyond a

judicial response necessary to defend the court from abuse of process or to

In Director of Public Prosecutions (SA) v B the majority declined to answer

the questions reserved because they did not arise at the trial of the

respondent. However in the course of their reasons reference was made by

Gaudron, Gummow and Hayne JJ to Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 and

in particular the judgment of Gaudron and Gummow JJ in that case.

In Maxwell v R Gaudron and Gummow JJ said (at 534):

"The power of the Attorney-General and of the Director of Public

Prosecutions to enter a nolle prosequi and that of a prosecutor to

decline to offer evidence are aspects of what is commonly referred to

as ,,the prosecutorial discretion. In earlier times the discretion was

seen as part of the prerogative of the Crown and, thus, as

unreviewable by the courts. That approach may not pay sufficient

regard to the statutory office of the Director of Public Prosecutions

which now exists in all States and Territories and in the

Commonwealth. Similarly, it may have insufficient regard to the fact

that some discretions are conferred by statute, such as that conferred

It ought now be accepted, in our view, that certain decisions involved

in the prosecution process are, of their nature, insusceptible of

judicial review. They include decisions whether or not to prosecute,

to enter a nolle prosequi, to proceed ex officio, whether or not to

present evidence and, which is usually an aspect of one or other of

those decisions, decisions as to the particular charge to be laid or

prosecuted. The integrity of the judicial process � particularly its

independence and impartiality and the public perception thereof �

would be compromised if the courts were to decide or were to be in

any way concerned with decisions as to who is to be prosecuted and

In Director of Public Prosecutions (SA) v B (supra at 1180) Gaudron,

Gummow and Hayne JJ quoted the second paragraph set out above and

"The line between, on the one hand, the decisions whether to

institute or continue criminal proceedings (which are decisions the

province of the Executive) and on the other, decisions directed to

ensuring a fair trial of an accused and the prevention of abuse of the

courts processes (which are the province of the courts) is of

See also Pearce v R [1998] HCA 57; (1998) 72 ALJR 1416 at 1422 (par 30).

The fact that the decision to prosecute and the decision to continue with a

prosecution are made by the Director of Prosecutions rather than the

Attorney-General does not alter the position. This follows from the

observations of Gaudron and Gummow JJ in Maxwell v R (supra). See also

Von Einem v Griffin (1998) 72 SASR 110 at 133.

It follows from the above that decisions of the kind sought to be challenged

in these proceedings are insusceptible of judicial review.

The plaintiff further says that pursuit of the proceedings is an abuse of the

process of the court. The centrepiece of his argument was that, because of

the operation of the mandatory sentencing regime in the Northern Territory

in the particular circumstances of this matter, the sentence that must be

imposed upon him is "a disproportionate sentence" which "infringes the

principle of totality". It was submitted that this results in a sentence which

In Walton v Gardiner [1993] HCA 77; (1992-93) 177 CLR 378, Mason CJ and Deane and

"As was pointed out in Jago, the question whether criminal

proceedings should be permanently stayed on abuse of process

grounds falls to be determined by a weighing process 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

In R v Swingler [1996] VicRp 17; (1996) 1 VR 257 at 265 the Court of Appeal noted that the

circumstances that will lead a court to exercise the jurisdiction to stay

proceedings have been variously described as "exceptional", "rare" and as a

power which should be used "sparingly and with the utmost caution". It is a

jurisdiction which will only be exercised where it is readily apparent that it

should be exercised to prevent "prosecutorial oppression".

A distillation of the arguments presented by the plaintiff reveals, as the

defendants submitted, that the plaintiffs contention is that charges clearly

available on the uncontested facts ought not be prosecuted because they

attract the consequences of the mandatory sentencing provisions of the

Sentencing Act. The concern of the plaintiff is not that he will be tried

unfairly or that the courts processes are being abused but rather with the

consequences that the Legislature has provided will flow from a finding of

guilt in such cases. The courts processes cannot be said to be abused

simply because the court may be called upon to impose a penalty specified

As with the plaintiff in the matter of Spencer v Loadman (1999) NTSC 48

the plaintiff in these proceedings seeks orders which will enable him to

avoid the effects of the mandatory sentencing provisions in the Sentencing

Act. In that case the application was dismissed and likewise in this case it

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