Abuse of process and fragmentation
43 By their interlocutory applications, the primary relief sought by ASIC and the CDPP is an order permanently staying the proceeding as an abuse of process.
44 It is trite to observe that courts have the power to control their proceedings and to order a stay in an appropriate case.
45 Where a court's jurisdiction has been regularly invoked, a stay requires justification on proper grounds. The caution exercised in staying proceedings reflects what Sugerman ACJ referred to as the "fundamental principle that a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court, subject only to an exercise of judicial discretion on proper grounds": Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 (Rochfort) at 19 (Holmes and Mason JJA agreeing). Nevertheless, the doctrine of abuse of process has been recognised as being broader and more flexible than estoppel and as being "capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute": Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (Tomlinson) at [25] (French CJ, Bell, Gageler and Keane JJ).
46 The grant of a permanent stay to prevent an abuse of process has recently been said by the High Court to involve "an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system": GLJ at [3] (Kiefel CJ, Gageler and Jagot JJ). The plurality in GLJ described that ultimate decision as one of "last resort", only justifiable in an exceptional case: GLJ at [3].
47 While making an order permanently staying a proceeding will inevitably be a grave step to take, the plurality's statements in GLJ need to be understood in their context. In GLJ, the High Court was considering whether there should be a permanent stay of proceedings to vindicate a right in circumstances where the grant of a permanent stay would forever sterilise the right said to have been infringed: see GLJ at [21] (Kiefel CJ, Gageler and Jagot JJ). Cases where a stay is sought to avoid fragmentation of the criminal justice process are different. As the authorities expose, cases involving fragmentation often involve an attempt to use the civil courts to obtain relief when the point that the accused seeks to agitate falls within the ambit of the criminal justice process and should be heard and determined by the criminal courts, whether immediately or at a subsequent stage of the process (eg after committal or on appeal after conviction). As such, those cases do not involve the kind of permanent sterilisation of asserted rights with which the High Court was concerned in GLJ.
48 It should be recalled that the varied circumstances in which use of a court's processes will amount to an abuse "do not lend themselves to exhaustive statement": UBS at [1] (Kiefel CJ, Bell and Keane JJ); see also UBS at [72] (Gageler J) and GLJ at [27] (Kiefel CJ, Gageler and Jagot JJ), citing Ridgeway v The Queen (1995) 184 CLR 19 at 75; [1995] HCA 66 at [32] (Gaudron J).
49 As set out above, one class of case in which a stay (or another course not involving determining the case advanced) may be warranted is where proceeding to hear and determine the claim brought in civil jurisdiction would involve the fragmentation of criminal proceedings. The position has been stated on many occasions by the High Court. The leading statement is that of Gibbs ACJ (as his Honour then was) in Sankey v Whitlam (1978) 142 CLR 1 (Sankey) at 26, where his Honour said:
a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.
50 In Obeid v The Queen (2016) 329 ALR 372; [2016] HCA 9 (Obeid), Gageler J (as his Honour then was) referred (at [15]) to the existence of "a longstanding and general reluctance on the part of this Court in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train".
51 There are numerous other statements of the principle and cases emphasising its importance, including statements of Full Courts of this Court. For example, the principle was stated in simple terms by the Full Court in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 (Flanagan) at 187 (Beaumont, Ryan and Lindgren JJ): "The principle is well-established that criminal proceedings should not be fragmented by other courts' entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal trial".
52 Flanagan concerned an application for judicial review of decisions to apply for, and issue, a warrant, the fruits of which (records of telephone conversations) aided in the bringing of criminal proceedings. The applicants sought relief directed at preventing the Director of Public Prosecutions from tendering evidence that became available as a direct or indirect result of the impugned warrant, as well as damages for misfeasance in public office by members of the Australian Federal Police. The Full Court separately considered (at 187) whether to grant:
(a) the discretionary relief sought (being the orders for judicial review and consequential relief in the form of declarations, injunctions and other relief); and
(b) the relief as of right (being the claim for damages).
53 That first category was further divided into two sub-categories: claims that involve pure questions of law, emerging from undisputed facts, and claims involving contentious matters of fact, including questions of mixed fact and law. The former sub-category was stated to be much better suited to being heard and determined (as an exception to the fragmentation principle), as compared with the latter category, being claims that the courts will not usually entertain: at 188. In the result, the Full Court determined to address some discrete points of law but declined to address allegations of bad faith and impropriety, as well as the consequences of any such findings on the admissibility of the fruits of such conduct (at 204), and deferred consideration of the claim for damages until after the criminal trial: at 219-20.
54 The distinction between cases involving pure questions of law and cases involving contested facts, which was referred to by the Full Court in Flanagan, was also referred to by Dalton JA in Palmer Appeal (No 2). There, the fact that the civil case involved contested factual matters - cf pure questions of law, or matters otherwise suited to determination in a summary way - was cited by Dalton JA (Boddice JA and Burns J agreeing) (at [77]) as a reason why the Court ought not exercise jurisdiction in respect of the "fourth challenge" of the Palmer parties. As was observed (at [75]), where a civil proceeding involves contested facts, the period to trial, the duration of the trial, and any appeal, will all contribute to the delay in criminal proceedings being finalised.
55 The undesirability of civil courts permitting their jurisdiction to be exercised so as to give rise to the fragmentation of criminal proceedings has been confirmed, time and again.
56 In Bou-Simon v Attorney-General (Cth) (2000) 96 FCR 325; [2000] FCA 24 (Bou-Simon), the appellant had been charged with contraventions of the Corporations Law, to be tried in a state court. The Commonwealth initiated extradition proceedings in France. The appellant appealed against a decision of Emmett J in the Federal Court dismissing an application for declarations that a supplementary affidavit relied upon in support of the extradition was misleading and its provision to the French court was an abuse of process. The appellant also sought orders restraining the Attorney-General from continuing the extradition proceeding, and the CDPP from continuing the criminal proceedings. The Full Court (Black CJ, Tamberlin and Katz JJ) determined that it was inappropriate for the Federal Court to determine certain issues, on grounds of fragmentation. The Full Court observed (at [55]) that the "undesirability of fragmentation" has been stressed by the High Court (and also by the Federal Court) on many occasions, citing Yates v Wilson (1989) 168 CLR 338 at 339 (Mason CJ for the Court).
57 The Full Court in Bou-Simon drew attention to the added complications arising where a court is asked to rule on a matter which may yet be raised again by the unsuccessful party in the criminal proceeding at [55] (Black CJ, Tamberlin and Katz JJ):
The present case provides a good example of the problem. The appellant appeals from the ruling against him in a proceeding that was amended to include a challenge to the decision to prosecute him. That carries with it the prospect of a ruling in this Court on a fundamental matter which, if decided against the appellant here, could nevertheless be raised by the appellant on his trial and, in certain events, on appeal to the New South Wales Court of Criminal Appeal.
58 One of the vices of fragmentation (but not the only vice) is the potential for the accused to seek to raise the same point in multiple courts, for example by raising the point again in the criminal trial court if unsuccessful in the separate proceedings: eg Bou-Simon at [55] and [59] (dismissing the appeal against the dismissal of the challenge to the decision to prosecute, but without ruling on the matter that would be directly in issue in the criminal proceedings).
59 Other reasons for "the basic rule of restraint" were canvassed by Kirby P (as his Honour then was) (in dissent on the result) in Cain v Glass (No 2) (1985) 3 NSWLR 230 (Cain) at 235, as follows (emphasis added):
At the stage of committal, whether by declaration or otherwise, superior courts do well to limit their intervention to exceptional or special cases. This principle is well-established: [citations omitted] … It is important, therefore, to understand the rationale behind the rule of restraint. The reasons include: (1) the undesirability of discontinuity, disruption or delay in committal proceedings; (2) the superior knowledge of the committing magistrate concerning the whole facts and circumstances of the case under his consideration; (3) the undesirability of the beneficial remedies of declaration or the prerogative writs being misused to justify transfer to the superior courts of matters committed by law to the magistracy; (4) the cost, much of it borne by the public purse, of proliferating litigation, especially at an interlocutory stage, which diverts attention from the real substance of the accusations brought and concentrates instead upon peripheral and often procedural matters; (5) the undue advantage that may be given to rich and powerful defendants to interrupt and delay the operation of the criminal law in a way not so readily available to ordinary citizens; and (6) the power of the Attorney-General to present an ex officio indictment or to refuse to present an indictment, whatever the outcome of the committal proceedings.
60 Cain concerned an application by 26 prisoners involved in a committal hearing seeking the intervention of the Supreme Court of New South Wales to declare that the magistrate conducting the committal erred in law in upholding a claim of public interest immunity in respect of documents identifying witnesses the prisoners wished to call in their defence. Their application was dismissed at first instance.
61 In separate reasons concluding that the appeal should be dismissed, Priestley JA (in the majority) reasoned that no injustice would be done to the appellants by leaving them to be "dealt with by the regular course of the criminal law" as: the committal proceedings were not yet concluded, and various applications could yet be made to the magistrate; and, if committed for trial, the trial court would have the power to stay the proceedings: at 244-5. In separate reasons, McHugh JA (as his Honour then was) (in the majority) also drew attention to the question of whether there would be injustice to the appellants were the Court to decline to intervene. As will be seen, the question of injustice is a relevant consideration in the determination of the present applications.
62 The capacity of those with financial means to fragment and delay criminal proceedings by bringing collateral proceedings (such as for judicial review of decisions to prosecute) was also referred to by the Full Court of this Court in Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 (Jiang) in explaining the development of the body of case law in which courts "stressed the dangers of fragmentation of the criminal justice process, and the need for restraint on the part of civil courts in reviewing decisions taken in the course of that process": at [6]-[7] (O'Loughlin, North and Weinberg JJ). The criminal courts have the jurisdiction to, and should, determine collateral challenges, and also have the power to stay criminal proceedings conditionally or permanently, if that course is necessary to ensure a fair trial: Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [103] (Basten JA).
63 Most discussions of the law on fragmentation begin, as I have, with the judgment of Gibbs ACJ (as his Honour then was) in Sankey. But Sankey is not the last word on the principle or its ambit. For example, Gibbs CJ returned to the subject in Clyne v Director of Public Prosecutions (Cth) (1984) 154 CLR 640 (Clyne), observing (at 643) that: "This Court has in a number of cases said that it is wrong that the ordinary course of proceedings in the criminal courts should be interrupted by applications for declarations as to questions that will or may arise in the criminal proceedings: see Crouch v The Commonwealth and Sankey v Whittam; cf. Reg. v Iorlano" (emphasis added) (citations omitted). As the words emphasised make clear, fragmentation is not only an issue in respect of questions that are already live in the criminal proceedings, or that are certain to arise. As Gibbs CJ stated, the question of fragmentation extends to questions that "may arise". Other expressions have also been used to identify the nature of the necessary connection with criminal proceedings. In Hausfeld v Commissioner of Police [2018] NSWSC 1540 (Hausfeld), Fagan J referred (at [21]) to the "determination of issues which bear upon the conduct of criminal proceedings" (emphasis added).
64 Similarly, the fact that the issue in question could be raised in the course of the criminal proceedings, and an answer obtained in that forum, often features prominently in reasons explaining why a civil court has declined to address the question posed in the separate civil proceedings: eg Hausfeld at [24] (Fagan J): "For present purposes the important point is that the challenge which the plaintiff wishes to make to this warrant can be made before the trial judge."
65 Restraint does not, however, constitute abdication of responsibility, as courts continue to assert an entitlement to intervene in exceptional or special circumstances: Cain at 235 (Kirby P, as his Honour then was). The capacity of the criminal court to address the asserted issue, even at a later stage of proceedings (eg after committal for trial), is an important consideration in determining whether exceptional circumstances exist, warranting the exercise of jurisdiction: eg Cain at 245, where Priestley JA referred to the potential for the trial court to stay the criminal proceedings, after committal, if it determined it would not be fair for the trial to proceed until certain evidence had been made available; see also Jiang at [12], where the Full Court observed: "Most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts. Civil courts generally deny judicial review of such decisions on discretionary grounds" (O'Loughlin, North and Weinberg JJ). See also Frugtniet v Victoria (1997) 148 ALR 320; [1997] HCA 44 (Frugtniet) at 326-7 (Kirby J), concerning preservation of the capacity to interfere in exceptional cases.
66 Many of the authorities involve what might be described as direct, collateral attacks on rulings in criminal proceedings, or on the continued progress of the prosecution in its entirety. While it may appear that describing an attack as direct and collateral is an oxymoron, what I mean is a civil proceeding that seeks orders that directly challenge, in a civil proceeding, a ruling made in the criminal proceeding, or seek to stay the prosecution. Examples of cases of that kind include: Biggs v Director of Public Prosecutions (1997) 17 WAR 534 (in which the appellant sought, amongst other things, a declaration that the trial judge's orders setting aside the jury's verdict in the criminal proceeding were invalid); Cain (where the appellants sought to challenge the committing magistrate's ruling in relation to public interest immunity); Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development (2023) 414 ALR 26; [2023] WASCA 36 (Emanuel Exports) (where the appellant applied for review of the magistrate's decision as to the constitutional validity of the provisions under which the appellant was charged); Hutson v Australian Securities and Investments Commission [2022] QSC 243 (where the applicant sought a permanent stay of criminal proceedings and to impugn matters dealt with by the District Court); Lamb v Moss (1983) 49 ALR 533; [1983] FCA 264 (where the first respondent on the appeal sought judicial review of decisions made by the magistrate in committal proceedings); McEwan v Clark [2023] QCA 120 (where the appellant sought an order that her committal hearing be delisted and other related relief); R v Iorlano (1983) 151 CLR 678 (R v Iorlano) (involving an application for special leave to appeal from the trial judge's decision on a voir dire to exclude a statement made by the accused); and Re Rozenes; Ex parte Burd (1994) 120 ALR 193 (Rozenes) (an application commenced in the original jurisdiction of the High Court seeking to contest rulings made by the trial judge in criminal proceedings).
67 Nevertheless, not all cases in which civil courts have declined to exercise jurisdiction on grounds of fragmentation involve that kind of direct, but collateral, attack. One such case is Bell v The Queen (2020) 286 A Crim R 501; [2020] SASCFC 116 (Bell). In that case, the accused appealed against a ruling of a District Court judge dismissing his application for a permanent stay where the grounds for the application concerned the extent of, and alleged misuse of, powers of the Independent Commissioner Against Corruption (the Commissioner). By a separate originating application, the Commissioner sought declaratory relief on matters concerning the Commissioner's powers and in relation to the impugned actions. The appeal and the declaratory relief proceeding were heard and determined together.
68 The Full Court of the Supreme Court of South Australia (Kourakis CJ, Peek and Blue JJ) upheld the District Court judge's dismissal of the stay application, but declined to make the declarations sought by the Commissioner. In explaining why, the Full Court made it clear that the restraint of civil courts - in relation to what is often referred to by the rubric "fragmentation" - is not limited to circumstances where the orders sought from the civil court will have an immediate or direct impact on the criminal proceeding.
69 In Bell, their Honours observed that "civil courts exercise great caution before hearing and determining civil proceedings that raise common issues that are to be determined in criminal proceedings": at [407]. Their Honours acknowledged that the declarations sought by the Commissioner "would not directly interfere in the criminal proceeding", but would address issues that "are very closely aligned (if not identical) to those arising for decision in the criminal proceeding": at [416].
70 Bell also illustrates that another reason for caution is that the precise formulation of declarations may have unforeseen consequences in the criminal proceeding and that "[i]n general, an important factor weighing against the exercise of the discretion is that it is preferable that issues arising in the criminal proceeding be determined in the context of the criminal proceeding without the superadded complication of this Court making declarations in the civil proceeding": at [417]. Their Honours deferred addressing the application for declaratory relief until after the final determination of the criminal proceedings: at [419]. In other words, the stay was temporary, not permanent.
71 Gamage v Riashi [2023] NSWSC 390 (Gamage) is also an instructive example of a case in which the fragmentation principle was applied to dismiss a civil proceeding which did not have an immediate and direct effect on criminal proceedings. In Gamage, the plaintiff had been charged with 13 offences arising out of an investigation undertaken by the Independent Commission Against Corruption. The hearing of the charges had not yet commenced at the time the plaintiff brought proceedings seeking to obtain a copy of the application for a warrant, as he wished to mount an argument that the telephone recording of him (said to be authorised by the warrant) was improperly obtained and could not be used in the impending criminal proceedings. After setting out the authorities on fragmentation, Chen J dismissed the application and described "the fact that the challenge that the plaintiff seeks to make in connection with the warrant can be pursued in, and decided by, the Local Court" as "decisive considerations against granting the plaintiff the relief sought": at [30(1)].
72 Hausfeld, referred to above, is another example. In that case, the plaintiff sought a declaration that a search of his premises, and the seizure of items from the premises, was not lawful due to a defect affecting the issue of the warrant. He sought an order quashing or declaring the warrant to be invalid. The plaintiff also sought delivery up of items that were seized on execution of the warrant, and an injunction to restrain police from acting on or taking any further step in relation to the material seized. The active defendants issued a notice of motion seeking that the summons be dismissed as an abuse of process, the ground being that permitting the summons to be litigated would fragment the criminal proceedings, in which the plaintiff had been indicted on charges that were based on the evidence seized under the impugned warrant. As noted above, Fagan J considered that the challenge could be mounted in the criminal court and dismissed the summons. It may be noted that Fagan J also observed that there was no significant question of law alone that could be decided, which would benefit the legal profession and the administration of justice generally: at [26]. The plaintiff's delay, only challenging the warrant by the civil proceedings a year after learning of the terms of the warrant, was another reason cited in support of dismissing the summons: at [27].
73 One of the Palmer challenges referred to above also touched on the nexus with criminal proceedings not being confined to instances involving a direct impact on criminal proceedings. In Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2019] QSC 8, Ryan J referred (at [132]) to civil proceedings seeking to have "matters relevant to" decisions to be made in the criminal court attracting the fragmentation principle. While the Queensland Court of Appeal found error in aspects of Ryan J's approach in Palmer Appeal (No 1) (as discussed above at paragraphs 29-30), this particular aspect was not criticised.
74 Whether or not any particular case is exceptional, so as to warrant hearing and granting relief in an application brought separately and outside the criminal justice process, will depend on the facts of the case. In Hutson v Australian Securities and Investments Commission [2023] QCA 167 (Hutson), Mullins P (Dalton JA and Henry J agreeing) said (at [47]) that "[t]he broad test … is whether it is in the interests of justice", with the interests of justice not being confined to the interests of the defendant, but constituting "a broader question involving efficient and fair use of resources available in the criminal justice system and the interests of the administration of justice generally". Delay to criminal processes is one matter affecting the assessment of the interests of the administration of justice.
75 The decision of the Queensland Court of Appeal in Hutson is also instructive in stressing the importance of focusing on, and determining, the threshold question of whether the court should even proceed to consider the merits of an application for declaratory relief: Hutson at [61] (Mullins P, Dalton JA and Henry J agreeing). The potential for the matters in issue to be raised before the criminal court, and for any adverse pre-trial rulings to be appealed within the criminal justice system, were identified as powerful factors tending against permitting fragmentation by considering the issue in question when advanced in separate declaratory relief proceedings: Hutson at [57], [58], [62].
76 Similarly, in Obeid, Gageler J (as his Honour then was) emphasised the applicant's capacity to agitate a point in any appeal against conviction as important in determining that the case was not exceptional so as to warrant fragmentation of the trial process, once set in motion: at [22].
77 Phong v Attorney-General (Cth) (2001) 114 FCR 75; [2001] FCA 1241 (Phong) is another case in which the fact that the trial judge was fully seized of the issues that the accused sought to raise in the Federal Court - including, relevantly, a claim for an order permanently restraining the respondents from proceeding upon an indictment - was central to a conclusion that, even if the Court had jurisdiction, it should decline to exercise jurisdiction and grant judicial review, to avoid unnecessary and undesirable fragmentation of the criminal process: at [1] (Black CJ), [53] (Beaumont J) and [58] (Hely J). As Beaumont J identified, an important question is whether "an alternative remedy is available", which avoids fragmentation: Phong at [47]. See also Rozenes at 195, where Dawson J (sitting as a single judge of the High Court) identified all manner of potential events during trial which may mean the questions raised would not need to be answered, and, in any event, could be addressed on appeal from any conviction. See also Palmer Appeal (No 2), in which the Queensland Court of Appeal (Dalton JA, Boddice JA and Burns J agreeing) emphasised (at [5]) that "[t]here was no reason demonstrated why such points of legal argument or defence as the appellants wished to raise could not be determined in the criminal courts in the ordinary way" (emphasis added).
78 In considering where the interests of justice lie, consideration is given to the "practical" - and not just strictly legal - consequences of the civil court's decision on the criminal proceedings: Hutson at [54] (Mullins P, Dalton JA and Henry J agreeing). In considering the application for the claims of the Palmer parties to be set aside, stayed or struck out in what I have referred to as the "second challenge", Ryan J also had regard to the likely practical significance of the Court making declarations favourable to the Palmer parties. Her Honour observed that the Palmer parties would undoubtedly rely, in the committal proceedings, on any favourable declarations made by the Supreme Court: Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2019] QSC 8 at [132]. Her Honour considered that the Palmer parties' attempt to have the Supreme Court determine matters that are "relevant to" decisions to be made in the Magistrates Court was productive of the disrupting or fragmentation of criminal proceedings which is only to be countenanced in exceptional cases: at [132] and [136]. The attention paid to practical consequences is also reflected in the nexus between the civil and criminal proceedings, a matter to which I return below.
79 Where an application raises complaints about matters that may never transpire, that tells against there being exceptional circumstances warranting exercise of jurisdiction in a way that fragments the criminal process: Rozenes at 195 (Dawson J).
80 The principle against fragmentation clearly encompasses issues concerning procedural or evidentiary matters (eg R v Iorlano at 680 (the Court)), but it is not confined to procedural or evidentiary matters. This is illustrated by Alqudsi v Commonwealth (2015) 327 ALR 1; [2015] HCA 49 (Alqudsi). There, an accused initiated proceedings in the High Court, challenging the constitutional validity of the legislation under which he was charged and seeking to have his criminal trial in the Supreme Court of New South Wales stayed pending the outcome of his High Court challenge. The Commonwealth sought a direction in the High Court that the matter be remitted to the Supreme Court, in response to which the accused sought an order that the whole of the cause be removed from the Supreme Court to the High Court.
81 In granting a remitter to the Supreme Court, French CJ applied the conventional authorities on fragmentation; the fact that the challenge was a constitutional challenge to legislation did not factor in the analysis. His Honour said as follows at [22]-[23] (citations omitted):
[22] There is ample authority for the proposition that this Court should be reluctant to disturb the progress of pending criminal proceedings. As Kirby J said in Pan Laboratories Pty Ltd v Commonwealth:
"This Court has said on many occasions, including recently, that great restraint must be exercised by the High Court and by other courts of appeal and review before issuing orders or taking steps which may disturb or fragment the course of a criminal trial."
(footnote omitted)
His Honour also applied that principle, as the Commonwealth points out, in determining to remit proceedings in this Court to the District Court under s 44 of the Judiciary Act. Further, it is open to the plaintiff, as has been foreshadowed, to file a motion to quash the indictment in the Supreme Court. That Court could also make directions for dealing with the declaratory proceedings if they are remitted to it from this Court. Whether it would be convenient to deal with them together with the quashing motion or to deal with the pretrial motion first and make other directions in relation to the declaratory proceedings would be a matter for the Supreme Court.
[23] There are many contingencies that might shape the progress of the debate about constitutional validity in the Supreme Court. They may include an application for leave to appeal to the Court of Criminal Appeal from a decision on a quashing motion and/or an appeal in relation to declaratory proceedings, each of which might arguably lead to an application for special leave to appeal to this Court, even before the trial itself proceeds. There are other contingencies under which the constitutional point might never be reached or might become irrelevant, for example, because of an acquittal after trial. In my opinion, insufficient cause has been shown to overcome the principle against fragmentation of pending criminal proceedings by the interlocutory interventions of this Court.
See also Frugtniet, which also concerned a constitutional point, and the discussion of that case by Gageler J (as his Honour then was) in Obeid at [16]. Obeid is, itself, a further example, as the points at issue there concerned the jurisdiction of the Supreme Court of New South Wales and the validity of the criminal charge, having regard to the powers of the New South Wales Legislative Council: Obeid at [19].
82 Emanuel Exports is another case in which a court declined to consider a constitutional question. In Emanuel Exports, the appellant was facing charges in the Magistrates Court of Western Australia. In judicial review proceedings brought in respect of the magistrate's determination, the appellant contended that the state legislation penalising the conduct in question was the subject of direct inconsistency with Commonwealth law for the purposes of s 109 of the Constitution. On appeal, the Court of Appeal of Western Australia (Buss P, Mitchell and Beech JJA) declined to determine the substantive issues on fragmentation grounds. Their Honours considered (at [42]) that: "the interests of justice distinctly favoured allowing the trial to proceed on its ordinary course and leaving the constitutional question to be resolved on any appeal against a decision to convict or acquit Emanuel Exports to the extent necessary to determine that appeal."
83 The reluctance of civil courts to exercise jurisdiction when to do so would result in fragmentation does not mean that it is never appropriate for a separate proceeding to be heard and determined notwithstanding that the separate proceeding fragments the criminal process. But there are usually special circumstances when that occurs. Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 (Anderson) is one such example. In that case, the New South Wales Court of Appeal made a declaration, the day after the trial of 31 accused persons commenced, to the effect that the indictment was bad in law.
84 That course was not taken lightly. In Anderson, the President of the Court of Appeal, Kirby P (as his Honour then was), explained (at 200-2) the factors that made that case exceptional. Those factors included that the Attorney-General supported the making of a declaration and that the District Court judge made findings of fact to facilitate an application to the Court of Appeal. In respect of the judge seized of the criminal prosecution making findings of fact, Kirby P observed (at 201) that that course removed "one of the reasons for restraint", being the proper deference due to be paid to a judge in whose charge a criminal trial is placed, so as not to undermine that authority. Other reasons referred to by Kirby P were that: the trial of the 31 accused would be long and costly; there was a lack of authority on the law in question; there was reason to look afresh at the law of riot under which the accused were charged; and there were practical considerations for seeking an urgent resolution of the point of law in question. In explaining why his Honour was willing for the Court to consider the matter, amongst other considerations, Samuels JA highlighted the significance of the fact that both parties wanted the Court to pronounce upon the problem and that the trial, if it were to proceed, would take six months: at 206.
85 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 (Gedeon) is another case in which the questions arising for determination were addressed, in circumstances where none of the respondents contended that the proceedings for declaratory relief were inappropriate and a matter of considerable public interest was identified by the High Court: at [25] (the Court).
86 While the Palmer parties characterised this proceeding as one in which they seek to vindicate their rights in respect of what they allege to be an unlawful process by a public authority in relation to which they have a real interest, the CDPP's submissions questioned whether the case advanced by the Palmer parties is suitable for the grant of the relief they seek in any event, given any further use of the transcripts that may be apprehended was speculative. Both cited the High Court's decision in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth) in support.
87 In Ainsworth, the High Court considered a report tabled in the Queensland Parliament by the Criminal Justice Commission, containing adverse recommendations about certain individuals to which they had not had an opportunity to respond. Having concluded that the rules of procedural fairness were attracted, but had not been observed, the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) turned to the appropriate relief at 581-2 (citations omitted) (emphasis added):
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".
88 Here, it may be observed that the usual principles concerning declaratory relief in respect of abstract or hypothetical questions go hand in glove with the proposition that there will not be exceptional circumstances warranting a court exercising jurisdiction in a way that fragments the criminal process where the court is asked to exercise that jurisdiction in respect of matters that may not come to pass: eg Rozenes at 195 (Dawson J).