(iii) By a local government council, or certain statutory authorities, with respect to particular kinds of offences (ss13(3), (4), (5), (5A) and (5B)).
11 The general principle that any person may institute proceedings for a criminal offence has, from time to time, been the subject of statutory modification with respect to particular offences, requiring the consent of a government official to the institution of proceedings. In a context such as the present, the general purpose to be served by such a provision is to prevent frivolous or vexatious proceedings. (See eg Rich J in McDonnell v Smith (1918) 24 CLR 409 at 411, adopted by the Court at 412, applied by Malcolm CJ in Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223 at 229. See also Berwin v Donohoe (1915) 21 CLR 1 at 24 per Isaacs J).
12 Such statutory provisions have been construed so as to authorise consent granted in general terms. (See eg Berwin v Donohoe supra at 26; R v Cain [1976] 1 QB 496 at 500-503; R v Bacon & Cox [1973] 1 NSWLR 87 at 94-95 esp 95A; Traveland Pty Limited v Doherty (1982) 63 FLR 41 at 47-48 and 49; Water Board v Environment Protection Authority (1994) 83 LGERA 174 at 179).
13 Question 3(i) in the Stated Case refers to Pearlman J's finding that the relevant decision was not reviewable by the Court. In the course of her judgment her Honour appeared to distinguish this issue from another legal issue which had arisen before her when she said in par [16] of her judgment:
"This issue falls for determination upon whether the proper construction of s13(1) calls for the Director-General to be satisfied of a prima facie case before he issues a consent, and whether, in any event, his decision to issue a consent is reviewable by the Court."
14 The words "in any event", adopted by her Honour from the submission on the part of the Prosecutor before her Honour, suggest a distinction between the two issues.
15 Her Honour considered the question of whether or not the Director-General had to be satisfied that a prima facie case existed in pars [17]-[20] of her judgment at the end of which she said:
"20 I have concluded, for these reasons, that the consent of the Director-General is not open to challenge on the ground that he was required to be satisfied of a prima facie case, because, to the contrary, his discretion is unconfined."
16 Her Honour went on in par [21] to address the second issue with the following introductory sentence:
"21 However, Mrs Kelly, appearing for the prosecutor, contended that, in any event, the Director-General's consent is not reviewable by the Court."
17 Pearlman J referred in par [23] to English authorities which suggested some scope for judicial review "in rare or limited circumstances". Her Honour went on to note at [24]:
"But even if there was a limited right of review as the English cases suggest, there are no exceptional circumstances alleged in this case to ground such a review."
18 Mrs J Kelly who appeared for the Prosecutor submitted that this Court should not answer the first question. She said that the critical finding that her Honour made was that the Director-General's decision was not open to review on the ground that he was required to be satisfied of a prima facie case. That matter, she submitted, was not a question stated by Pearlman J for consideration by this Court. Mrs Kelly sought to characterise her Honour's finding that the Director-General's decision was not reviewable as "obiter".
19 Mr J Glissan QC, who appeared for the Defendant in this Court, submitted that there were circumstances in which the decision of the Director-General to give consent was reviewable and accordingly the question actually asked by her Honour should be answered "Yes". Mr Glissan QC, however, appeared to accept that the other matter addressed by her Honour was not the subject of any question in the Stated Case and submitted that if the Applicant succeeded in relation to the question asked, then the matter should be remitted to the Land and Environment Court for argument on the issue of whether or not the section requires the Director-General to be satisfied of a prima facie case. Why the Court should do this in circumstances where her Honour had already heard and determined this very matter against the Defendant, was not made clear.
20 In this Court, both the Prosecutor and the Defendant proceeded on the basis that the issue of whether or not the Director-General was obliged to determine whether there was a prima facie case before giving consent, was not encompassed within question 3(i). The proposition that an unadorned statutory requirement of consent was restricted in this way has been rejected on a number of occasions. (See eg Goldsborough & Co v MacMahon (1887) 8 NSWLR 118 at 122; Oates v Attorney-General (Commonwealth) (1998) 156 ALR 1 at 7 line 5 and 8 line 10; sub nom Oates v Williams (1998) 84 FCR 348 at 354E and 355F. This issue was not considered by the High Court in Attorney-General (Commonwealth) v Oates (1999) 164 ALR 393 at [35]).
21 As the Court did not receive submissions on this issue it is not appropriate that we deal with it. This does, however, pose a difficulty because the only ground for "review" suggested before Pearlman J, or in this Court, was based on the proposition that no prima facie case had been presented to the Director.
22 The proceedings before her Honour were not proceedings for the judicial review of a decision by the Director-General to give consent to the prosecution. The proceedings before her Honour were concerned with whether or not the summons should be struck out as an abuse of process. One basis for the claim made was that:
"The written consent of the Director-General of the prosecutor was defective in that the Director-General could not have been satisfied that there was a prima facie case against the defendant." [14]
23 The submission made to her Honour on behalf of the Prosecutor was made in the form that "the Director-General's consent is not reviewable by the Court". This submission was, in my opinion, misconceived. No part of the proceedings before the Land and Environment Court constituted in any form a "review" of the decision to grant the consent. The matter before that court was an application to strike out the summonses as an abuse of process. Insofar as the submission, which her Honour appeared to accept, suggested that the Court's power to control abuse of its process could not be exercised on the basis of a defect in the consent process, then, in my opinion, the submission went too far.
24 As Gibbs ACJ and Mason J said in Barton v The Queen (1980) 147 CLR 75 at 94-95:
"It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue."
25 The significance of the distinction between decisions involved in a prosecution process and issues concerned with the abuse of a court's process has been emphasised by Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 579, where their Honours said at [21]:
"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 court's processes (which are the province of the courts) is of fundamental importance."
26 Their Honours went on to quote an extract from the judgment of Gummow and Gaudron JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534 where their Honours identified a number of "decisions involved in the prosecution process" which their Honours concluded were "of their nature insusceptible of judicial review". It may well be that decisions relating to consent to prosecute pursuant to a statutory requirement of such consent, should be added to their Honours' list. It is not necessary or desirable to determine that in this case.
27 However, nothing in the reasoning in Maxwell or DPP (SA) v B restricts the scope of considerations relevant to the exercise by the Court of a power to control abuse of its process. It may be that, in an appropriate case, a defect in the process of seeking consent could be relevant to the exercise of such a jurisdiction by a court. However, nothing in the submissions in this Court suggests any defect of a character relevant to abuse in this case.
28 It is not apparent that any issue of "review" of the decision to grant consent arose either "at" or "in reference to" proceedings within the meaning of s5AE(1) of the Criminal Appeal Act, in the matter before her Honour, namely the alleged abuse of process. It is not desirable to determine this issue in the absence of any submissions by the parties.
29 The only alleged defect in the consent process raised before Pearlman J, or in this Court, concerned the presence or absence of a prima facie case. Her Honour has rejected the materiality of this allegation by a ruling that has not been challenged and which does not arise on the Stated Case. In these circumstances, question 3(i) is hypothetical and it is undesirable for this Court to answer it in the abstract.