Phong v Attorney-General for the Commonwealth

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

DATE: 7 SEPTEMBER 2001 (ORDERS MADE 31 AUGUST 2001)

BEAUMONT J: 6 On 31 August 2001, the Court ordered that this appeal be dismissed, indicating then that reasons for judgment would be published later. These are my reasons.

Introduction 7 This is an appeal against an order of a Judge of the Court dismissing, for want of jurisdiction, an application for judicial review made in the following circumstances. 8 In his application for judicial review, the appellant applied to the Court for declaratory and injunctive relief and for the issue of a writ of habeas corpus, upon the grounds stated in his affidavit sworn on 31 May 2001. In his affidavit the appellant described, relevantly, the following as background to his claim: · The appellant is held in Port Phillip Prison awaiting trial in the County Court in Melbourne later this month upon an indictment ("the 2001 Indictment") filed by the second respondent, charging the appellant with the offence specified in s 233B(1)(d) of the Customs Act 1901 (Cth) in that, between 14 September 1995 and 8 December 1995, the appellant was knowingly concerned in the importation into Australia of prohibited goods viz narcotics, being heroin, of not less than a commercial quantity. · The appellant was arrested in Hong Kong on 17 February 1996 and taken into custody pursuant to a provisional warrant of arrest issued under s 6(1)(b) of the Fugitive Offenders Act 1967(Hong Kong). The warrant recited that there was evidence that the appellant was accused of the offence of being knowingly concerned with the importation of heroin into Australia. · On 12 December 1997, the appellant was brought to Australia in custody. He was subsequently tried and convicted at the County Court at Melbourne upon an indictment ("the 1998 Indictment") filed by the second respondent charging the appellant with the offence specified in s 233(1)(b) of the Customs Act in that, between 14 September 1995 and 8 December 1995, he knowingly imported into Australia prohibited goods, viz narcotics, namely heroin, of not less than a commercial quantity. An offence under s 233(1)(b) is more serious than an offence under s 233(1)(d). · The appellant applied to the Court of Criminal Appeal of the Supreme Court of Victoria for leave to appeal against his conviction. On 29 January 2001, the Court of Appeal allowed his appeal, ordered that his conviction be quashed and his sentence set aside; and that there be a new trial upon a charge of the offence specified in s 233B(1)(d). By s 568(2) of the Crimes Act 1958 (Vic) it is provided that the Court of Appeal may "quash [a] conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had". (Emphasis added.) · The appellant claimed that features of the extradition process, including breach of the "speciality" rule, demonstrated that his arrest, detention, extradition and prosecution were illegal and an abuse of process. 9 In his application for judicial review, the appellant sought to invoke several heads of jurisdiction, namely: statutory jurisdiction (Judiciary Act 1903 (Cth), s 39B(1), s 39B(1A)(c); Federal Court of Australia Act 1976 (Cth), ss 21 and 23 (see below)); the Court's accrued jurisdiction; and the Court's inherent jurisdiction. 10 The relevant legislative schemes will be more fully explained below, but their central provisions may be noted here. Section 39B(1) of the Judiciary Act 1903 (Cth) ("the Act") provides that, subject to ss 39B(1B) and (1C), the Court's original jurisdiction includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. Section 39B(1A)(c) provides that the Court's original jurisdiction also includes jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Section 21 of the Federal Court of Australia Act empowers the Court to make declarations of right. Section 23 empowers the Court to make orders, and to issue writs, as the Court thinks appropriate. 11 In his application, the appellant claimed the following specific relief: · A declaration that, by virtue of the provisions of ss 11(1) and 42 of the Extradition Act 1988 (Cth) and of the Extradition (Hong Kong) Regulations 1997 (Cth) (see below), the first, second and third respondents ("the Respondents") are not entitled to cause or permit the appellant to be proceeded against, sentenced or detained (with a view to carrying out a sentence), except for an offence against s 233B(1)(d) of the Customs Act ("the specified offence") or a lesser offence (Application, Claim 1). Section 11(1) of the Extradition Act provides for the modification of that Act, in relation to certain countries, by regulation. Section 42 provides for a rule of "speciality". The Extradition (Hong Kong) Regulations provide (Reg 5) that the Extradition Act applies in relation to Hong Kong, subject to the Agreement for the Surrender of Accused and Convicted Persons between the Governments of Australia and Hong Kong ("the Surrender Agreement"), set out in Schedule 1 of the Regulations. That Agreement itself makes provision (Art 18) for a particular rule of speciality (see further below). · A declaration that the Respondents, or one or more of them, caused or permitted the appellant to be proceeded against, sentenced and detained for an offence other than "the specified offence", in that the appellant was charged, convicted, tried, and sentenced for an offence against s 233B(1)(b) of the Customs Act (Application, Claim 2). (It will be recalled that an offence under this provision is more serious than an offence under s 233B(1)(d).) · A declaration that the appellant's extradition was a nullity, or an abuse of the process under the Extradition Act (Application, Claim 3). · A declaration that the Respondents were not entitled to detain the appellant or to proceed upon the 1998 Indictment unless, in accordance with the speciality rule provisions of s 42 of the Extradition Act and Regulations, he had been given an opportunity to leave Australia (Application, Claim 4). · A declaration that the 2001 Indictment is a nullity, or an abuse of the process under the Extradition Act (Application, Claim 5). · A declaration that the appellant has been unlawfully detained since his arrest (Application, Claim 6). · A declaration that, by reason of the contravention of the speciality rule enacted in s 42 of the Extradition Act andArt 18of the Surrender Agreement, the Respondents do not have any right or power to proceed against the appellant for the offence charged in the 2001 Indictment (Application, Claim 7). · A writ of habeas corpus (Application, Claim 8). · A declaration that the appellant is entitled to an opportunity to leave Australia within forty days following his release (Application, Claim 9). · An injunction restraining the Respondents from proceeding upon the 2001 Indictment (Application, Claim 10). · Damages for false imprisonment (Application, Claim 11).

The Primary Judge's Reasons 12 As has been noted, the primary Judge dismissed the application for want of any jurisdiction in this Court to entertain it, for the following reasons: · The parties had agreed that the jurisdictional question ought to be addressed first. On the one hand, the appellant relied, as the source of the Court's jurisdiction, upon the provisions of s 39B(1) of the Act, which confer upon the Court jurisdiction "with respect to any matter in which … an injunction is sought against any officer or officers of the Commonwealth", so that the Court had jurisdiction to decide whether s 42 of the Extradition Act had been complied with here. On the other hand, the Respondents relied upon s 39B(1C) of the Act by way of an exception to s 39B(1). Section 39B(1C) of the Actprovides that: "… at any time when: (a) a prosecution for an offence against a law of the Commonwealth … is before a court of a State …; or (b) … the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision[emphasis added]; (d) the Supreme Court of the State … in which the prosecution is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter." Section 39B(3) of the Judiciary Act defines "related criminal justice process decision", so far as is material, as follows: "related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including: (a) a decision in connection with the investigation, committal for trial or prosecution of the defendant;…." (Emphasis added.) · The Respondents contended that, in this proceeding, the appellant was a person who was a defendant in a prosecution for an offence against a law of the Commonwealth before a court of a State, who was seeking an injunction against an officer of the Commonwealth in relation to a "related criminal justice process decision". · In Clarke v Director of Public Prosecutions (2000) 99 FCR 294 ("Clarke"), Moore J held that jurisdiction under s 39B of the Actwas not properly invoked in circumstances where prohibition and an injunction were sought to restrain the Director of Public Prosecutions from maintaining a prosecution. Moore J said (at [17]): "...while the precise legal character of the act or conduct which is sought to be impugned is not entirely clear, it is nonetheless palpably clear from the application that the act or conduct concerns a decision in connection with the prosecution of the applicant which is a 'related criminal justice process decision' as defined in s39B(3) of the Judiciary Act ..." · The relief sought in Claim 10 of the application sought to restrain the prosecution of the appellant in respect of the 2001 Indictment. The learned primary Judge held that the approach of Moore J in Clarke should be followed, so that s 39B(1C) of the Act (when read together with s 39B(3) of that Act) deprived the Court of whatever jurisdiction it may otherwise have had to deal with the current application under s 39B(1). · At the same time the appellant's submission that jurisdiction under s 39B(1A) of the Act was conferred upon the Court because the application for declaratory relief and habeas corpus constituted a "matter" arising under the Extradition Act should be rejected, since s 39B(1A)(c) of the Act excluded from the Court's jurisdiction "a matter in respect of which a criminal prosecution is instituted". Section 39B(1A)(c) provides that the original jurisdiction of this Court also included jurisdiction "in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." · The application before the Court raised for consideration the validity of the prosecution of the appellant, soon to progress to the trial stage before the County Court. The words "in respect of which" suggested a connection between the "matter", that is the justiciable controversy, and the criminal prosecution. That connection, his Honour held, was undoubted in the instant circumstances. One only needed to consider the nature of the relief sought in Claims 5, 7, 8 and 9 to establish that point. It is unnecessary to consider whether the Court is deprived, as a result of the presence of the words "or any other criminal matter" in s 39B(1A) of the Act, of what jurisdiction it might have otherwise possessed.. · With respect to the Court's inherent jurisdiction to deal with an abuse of its processes, the Court does have power (as distinct from jurisdiction) pursuant to s 23 of the Federal Court Act to ensure the effective exercise of jurisdiction it otherwise possesses. But the Court does not otherwise possess inherent jurisdiction per se. In any event, Counsel for the appellant did not, the primary Judge observed, identify the processes of the Court that he alleged were being abused. · Sections 21 and 23 of the Federal Court Act, which confer power on the Court, as distinct from jurisdiction, did not assist the appellant's argument. · Accrued jurisdiction is not available where there is no arguable substantive jurisdiction to which the accrued jurisdiction can be attached. In other words, there was here, his Honour said, no relevant federal sub-stratum to provide any operation for the accrued jurisdiction.

The grounds of appeal 13 The appeal is based upon the following grounds: · The primary Judge ought not to have decided that s 39B(1C) of the Act, when read together with s 39B(3), deprived the Court of whatever jurisdiction it may otherwise have had to deal with the appellant's application under s 39B(1) of that Act; · His Honour erred by deciding that the appellant's application for an injunction against the first and second respondents, as officers of the Commonwealth, was in relation to a "related criminal justice process decision" as defined by s 39B(3) of the Act; · His Honour erred by deciding that, insofar as the application was a matter arising under a law made by the Parliament within the meaning of the provisions of s 39B(1A)(c) of the Act, it was a matter in respect of which a criminal prosecution had been instituted, and was thus excluded from the Court's jurisdiction; and · His Honour erred in his consideration of the nature of the "matter" arising under the Extradition Act which was the subject of the application, by deciding that this "matter" was one in respect of which a criminal prosecution is instituted within the meaning of the provisions of s 39B(1A)(c) of the Act.

(a) The provisions of the relevant legislative schemes

14 It will be convenient to refer first to the schemes of the Extradition Act and of the Act respectively, so far as presently relevant. (Some of these provisions have already been noted.)

(i) Extradition Act 15 Extradition to Australia from other countries is dealt with by Part IV (ss 40 - 44) of the Extradition Act, relevantly as follows: · A request for surrender shall only be made by or with the authority of the Attorney-General (see s 40). · A speciality rule is enacted (see s 42). Pursuant to s 11(1) of the Extradition Act, the Regulations may modify the application of the Act in relation to certain countries. Section 42 is modified by the Surrender Agreement. Article 18(1) of the Surrender Agreement provides that, except by consent, a surrendered person shall not be proceeded against, sentenced or detained, other than for the offence in respect of which return is ordered, or for a lesser offence. 16 Part V of the Extradition Act deals with "Miscellaneous" items. "Jurisdiction of Courts" is dealt with by s 51, but not in any area which is presently relevant.

(ii) Judiciary Act 17 Part VI of the Act(ss 38 - 39B) deals with, inter alia, the conferral of jurisdiction, relevantly the conferral of original jurisdiction on this Court, as follows: · The Court has conferred upon it jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matters (s 39B(1A)). · Subject to s 39B(1B) and (1C) (see below), the Court has conferred on it jurisdiction with respect to any matter in which mandamus or prohibition or an injunction is sought against a Commonwealth officer (s 39B(1)). · If, first a decision to prosecute has (as appears to be the case here) been made by a Commonwealth officer and, secondly, the prosecution is proposed to be commenced in a court of a State or Territory (referred to for convenience hereafter as a state court) - (a) this Court has no jurisdiction with respect to any matter in which mandamus or prohibition or an injunction is sought against a Commonwealth officer; and (b) the Supreme Court of the State in which the prosecution is proposed to be commenced is invested with that jurisdiction (s 39B(1B)). · When a prosecution is, as appears to be the case here, before a state Court - (a) this Court has no jurisdiction with respect to any matter in which the person who is the defendant in the prosecution seeks mandamus or prohibition or an injunction against a Commonwealth officer "in relation to a related criminal justice process decision"; and (b) the Supreme Court of the State in which the prosecution is before a court, is invested with that jurisdiction (s 39B(1C)). · A "related criminal justice process decision", in relation to an offence, means a decision - other than, as appears to be the case here, a decision to prosecute - made in the criminal justice process in relation to the offence. It includes (inter alia) a decision in connection with the investigation, committal or prosecution of the defendant (s 39B(3)). (b) The Claims 18 Since several forms of relief were claimed by the appellant in his application, it will be convenient to consider them separately. Claim 1 19 This is a claim for a declaration, in effect, that the appellant may only be proceeded against for an offence against s 233B(1)(d) of the Customs Act or for a lesser offence. But this claim is not now, and could not ever be, controversial on any view. There is no suggestion of any other prosecution. Even if jurisdiction to entertain such a claim exists, there is no need for this Court to make any such declaration, the matter not being in issue. The claim for this declaration ought to be refused, in my opinion, at least on the discretionary ground of want of utility. Claim 2 20 This is a claim for similar declaratory relief, having a retrospective rather than a prospective (as in Claim 1) aspect. But again, in my view, there is no need, or issue, about this and hence no utility in granting the declaration sought. Claim 3 21 This is a claim for a declaration that the extradition was a nullity as an abuse of the extradition process. But, in my opinion, even if the claim had merit, as a matter of discretion, no abstract declaration of this kind ought to be granted. As Barwick CJ and Jacobs J said in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 (at 307): "[u]nless the parties are agreed on the consequences which flow from a declaration … , it is generally undesirable that a court should so declare without any orders for consequential relief". [See also University of NewSouth Wales v Moorhouse (1975) 133 CLR 1 at 9-11; Jenkins v NZI Securities Australia Ltd (1994) 124 ALR 605 at 616.] 22 In other words, the real question is whether the injunction sought in Claim 10 ought to be granted. It will be convenient to consider Claim 3 in that connection (see below). Claims 4 and 9 23 These claims for declaratory relief pick up the operation of the proviso to the speciality rule enacted in Art 18 of the Surrender Agreement. Again, in my view, there is no, and cannot be any, dispute or issue as to the application of Art 18 here, and thus no occasion exists for the grant of declaratory relief. Claims 5, 6 and 7 24 For the reasons given in respect of Claim 3, these claims for a declaration also need to be considered, if at all, in connection with Claim 10 (as to which see below), and not as free-standing claims. Claim 8 25 Similar comments may be made about the claim for habeas corpus. In other words, any such claim should be viewed in the context of, and incidental to, the claim for an order permanently enjoining the appellant's prosecution on the 2001 Indictment (that is, Claim 10). In other words, Claim 8 also is not a free-standing claim. As Deane J said in Officer in Charge of Cells, ACT Supreme Court; Re Ex parte Eastman (1994) 68 ALJR 668 (at 669): "The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity." Claim 10 26 This claim, which seeks to halt the prosecution, is important and is dealt with separately below.

Claim 11 27 It will be convenient to deal with this claim for common law damages for wrongful imprisonment after considering Claim 10.

(c) Does this Court have conferred on it jurisdiction to entertain the claim made in Claim 10 for an injunction to restrain the Respondents from proceeding on the 2001 Indictment?

28 This claim is of central significance. It falls literally within the language of s 39B(1) of the Judiciary Act (as a claim for an injunction against a Commonwealth officer), unless s 39B(1B) or (1C) is applicable. 29 The application of s 39B(1B) is conditional upon the existence of two facts: first, that a decision to prosecute has been made; and, secondly, that the prosecution is proposed to be commenced in a Court of a State. 30 On the other hand, the application of s 39B(1C) is made conditional upon the fact that a prosecution is before a state court. 31 As has been noted, the appellant is presently awaiting trial in the County Court. That being so, only the provisions of s 39B(1C), rather than (1B), could literally apply. The relevant consequence, on a literal approach, would be that this Court does not have jurisdiction to entertain the injunction sought if the claim is - "… in relation to a related criminal justice process decision … [that is to say] … in relation to an offence … a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence … [being] … a decision in connection with the investigation, committal for trial or prosecution of the [appellant]". (Emphasis added.) 32 Claim 10 seeks an order restraining the Respondents permanently from proceeding upon the 2001 Indictment. As a matter of characterisation, is this a claim for an injunction in relation to a decision (other than the decision to prosecute) in connection with the investigation etc of the appellant? 33 Taken literally, ss 39B(1C) and (3), read together, draw a distinction, in the context of a pending prosecution, between a decision to prosecute on the one hand, and a decision in connection with a decision to prosecute on the other. That is to say, it appears that the legislative intention was that s 39B(1C) should quarantine from judicial review by this Court collateral decisions made in the prosecution process, presumably leaving the decision to prosecute itself to be provided for by s 39B(1B). At the same time, as has been noted, if taken literally, s 39B(1B) cannot apply here, because the prosecution has already commenced. 34 Several questions arise in this connection. 35 The first is whether, within the exception made by s 39B(3), there was a decision (by the second respondent) to prosecute on the 2001 Indictment. 36 It will be recalled that, upon quashing the conviction, the Court of Appeal granted a new trial, exercising the power conferred upon it by the provisions of s 568(2) of the Crimes Act 1958 (Vic), which reads: "Subject to the special provisions of this Part the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had." (Emphasis added.) 37 In explaining the operation of a similar provision in Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627, the High Court (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ) said (at 630): "The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had." (Emphasis added.) 38 The nature of the appellate jurisdiction to grant a new trial was also explained in the application made to the High Court by the appellant for special leave to appeal from the judgment of the Court of Appeal. Gaudron J pointed out in argument that the Court of Appeal, in making the orders that it did in the case, did not direct the exercise of the prosecutor's discretion; rather, the purpose of the Court of Appeal's order was simply to indicate that an acquittal was not being ordered (M65/2001, Transcript of Hearing, 10 August 2001, page 5). Gaudron and Callinan JJ dismissed the special leave application for the reason that the course adopted by the Court of Appeal in the matter "did not involve any miscarriage of justice". 39 In my opinion, it follows that although the Court of Appeal granted a new trial, it remained within the prosecutor's discretion to decide whether or not to prosecute for an offence. It further follows, in my view, that upon filing the 2001 Indictment, the second respondent made a decision to prosecute, a decision literally within the terms of the exception from the exclusion from the Court's jurisdiction effected by s 39B(1C), when read with s 39B(3). 40 There is a further question. As has been seen, in Clarke it was held that there was a decision to "maintain" the prosecution and that this decision was made "in connection with" the prosecution, and thus within s 39B(1C). But there is no such decision on the facts here. The Court of Appeal has permitted a new trial, but it was a matter for the second respondent to decide whether to prosecute further or not. He decided to prosecute. That decision was evidenced by the filing of the 2001 Indictment. But there is no evidence of his making a further decision to maintain the prosecution. As the authorities on discretion (which are considered below) show, from the time the indictment was filed, the whole matter was within the control of the County Court. No other decision by the second respondent was involved or called for. 41 The next question is whether, in the present context, the approach to the interpretation of s 39B should be a literal one, or whether a broader construction should be adopted. In Chief Executive Officer of Customs v Jiang [2001] FCA 145 ("Jiang"),a broad approach to this legislation was taken by a Full Court of this Court (O'Loughlin, North and Weinberg JJ). In Jiang, much emphasis was placed upon the Second Reading Speech for the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Schedule 2 of which inserted, relevantly, s 39(1B) and (1C). The Second Reading Speech explains the objects of these as follows (Australia, Senate 2000, Debates (Hansard), 11 April 2000, p.13806): "Schedule 2 of the Bill deals with judicial review of decisions in Federal, State and Territory courts, but in the specific context of criminal prosecution. The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process, by removing the 'collateral' access of defendants to federal administrative law procedures and remedies." 42 However, in response, the appellant now invokes the line of authority that in the case of legislation which affects personal liberty, a strict construction of the statute is required: Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139; Day v The Queen (1984) 153 CLR 475 at 482; see also Frugniet v Victoria (1997) 71 ALJR 1598 at 1601 - 1602; Vella v Commissioner of Australian Federal Police (1985) 9 FCR 81. 43 In my opinion, Jiang may be distinguished for present purposes. The question there, which arose in the context of a proceeding in the civil jurisdiction of the District Court to recover, in quasi-criminal proceedings, penalties under the Customs Act 1901 (Cth), was whether such a hybrid proceedings should be characterised as "criminal". In resolving that ambiguity, the Court looked to the purpose and object of the legislation. But here, it may be said that there is no such ambiguity and that, to the contrary, the relevant language of the legislation is clear and should be interpreted accordingly. Although there is force in the view that neither ss 39B(1B) nor (1C) apply in the present circumstances so as to deprive this Court of jurisdiction, this is a difficult question of statutory interpretation which need not be resolved in the present case for the reason that the case for this Court to refuse judicial review is, in my opinion, overwhelming. 44 Finally, it should be noted that itmay be that s 39B(1A)(c) could not have any material operation here, in the light of the specific provisions of s 39B(1), qualified as they are by the divestiture of jurisdiction provided for by ss 39B(1B) and (1C) in the circumstances there specified. That is to say, it may be that the operation of these qualifications to a specific grant of power (s 39B(1)) which is applicable to the instant Claim 10, should not be liable to be circumvented by the general language of s 39B(1A)(c): see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (at 47) and Saraswati v The Queen (1991) 172 CLR 1 (at 23 - 24). Moreover, it seems that the exception to s 39B(1A)(c) is inapplicable since this Court is not asked to entertain a prosecution or other criminal proceeding. But, given my conclusions on discretion (see below), I need not pursue finally any of these difficult questions.

(d) The discretion to grant judicial review on Claim 10

45 Although the discretion was, in the alternative, relied upon below by the Respondents, his Honour did not deal with the argument, although no order was made for the determination of the Respondents' jurisdictional point as a separate or preliminary question. The Respondents have, before us, also relied upon the discretion, arguing that the Court should, in its exercise, decline to grant relief. Since his Honour did not consider this issue, it is open to us to do so: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 47 - 48. 46 In my view, there is considerable force in the Respondents' argument. 47 The Court's power to grant relief by way of judicial review, in particular a claim for injunctive and declaratory relief, is plainly discretionary. An important element of this discretion in the present context is the question whether an alternative remedy is available, viewed in the context of the frequently stated undesirable features inherent in any collateral judicial interference with the ordinary criminal process, especially the prosecutorial discretion: see Jiang at [6] - [13] and the many cases there cited. In this connection, it is pertinent to bear in mind the nature and scope of the powers of the Judge presiding over the trial of the appellant to prevent injustice and to achieve a fair trial. As Gaudron J observed in Dietrich v The Queen (1992) 177 CLR 292 (at 363 - 364): "The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial."

48 Her Honour here cited Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301-1302, 1347 ("Connelly"); Barton v The Queen (1980) 147 CLR 75 at 96, 107 ("Barton"); and Jago v District Court (NSW) (1989) 168 CLR 23 at 75 ("Jago").

49 In Connelly the House of Lords explained the power of the trial court to prevent abuses of its process and control its own procedure, including a power to prevent prosecution on successive indictments where appropriate (at 1301 - 1302, 1347, 1362). 50 In Barton, Gibbs ACJ and Mason J said (at 96): "The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial." 51 In Jago, the High Court confirmed a trial judge's power, where the administration of justice so demands, to grant a permanent stay of proceedings to avoid "presumptive prejudice" to the accused of a delayed trial. 52 By way of further example of the principle, in Walton v Gardiner (1992) 177 CLR 378 the High Court held that the Supreme Court of New South Wales' supervisory jurisdiction extended to the making of an order staying proceedings in a medical tribunal on abuse of process grounds, and that while the concept of abuse of process requires some adjustment in its application to a tribunal, the legal principles bearing upon the circumstances which give rise to the inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process provide guidance. Mason CJ, Deane and Dawson JJ said (at 392 - 393): "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness." 53 It follows, in my view, that at trial, the County Court will have the power, in any appropriate circumstance, to grant a permanent stay of a prosecution. Such a stay would be the practical equivalent of the injunction sought in Claim 10. That being so, there is no need for, or utility in, this Court granting judicial review in response to Claim 10, when the existence of the ample powers of the County Court to prevent unfairness and injustice are taken into account. 54 I would, accordingly, refuse relief under Claim 10 for discretionary reasons. (e) The common law claim for damages 55 This is a common law claim for damages for wrongful imprisonment. It is appropriate to consider it in the context of the appellant's attempt to invoke the Court's accrued, associated or inherent jurisdiction (see above). 56 In my opinion, no basis exists for attracting the Court's "ancillary" jurisdiction. This is a free-standing general law claim which, as a common law matter, has little in common with claims for judicial review. In my opinion, it is not permissible, by tacking this claim on to an application for judicial review doomed to fail for well-established discretionary reasons, to fabricate accrued or associated jurisdiction in this way.

Orders 57 For these reasons, I joined in the order made on 31 August 2001 dismissing the appeal and reserving the question of costs. If the appellant wishes to make submission as to costs, I would direct that he do so within seven (7) days of today, and that the respondents make submissions within a further seven (7) days. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

DATE: 7 SEPTEMBER 2001 (ORDERS MADE 31 AUGUST 2001)

HELY J: 58 The appellant contends that the 2001 indictment is a nullity, or is of no force or effect, or is an abuse of process under the Extradition Act, such that the prosecution in the County Court cannot be lawfully maintained. For the reasons given by Beaumont J, whose judgment I have had the advantage of reading in draft form, that issue is justiciable in the County Court, and should be determined in that Court to avoid unnecessary and undesirable fragmentation of the criminal process. The trial judge in the County Court is fully seized of that issue. 59 Hence I agree with Beaumont J, assuming this Court has jurisdiction to entertain the application, that the Court should, in the exercise of its discretion, decline to grant the relief sought for the reasons given by his Honour. 60 Both at first instance and on appeal, the respondents relied only on s 39B(1C) as excluding the jurisdiction otherwise given to the Federal Court by s 39B(1) to determine the appellant's claim for injunctive relief against an officer of the Commonwealth. 61 The respondents did not contend that the exclusion created by s 39B(1B) was of any relevance to the present proceedings. The first and third respondents accepted that the s 39B(1B) exclusion has no application to this proceeding, since s 39(1B) operates at a time when there is a prosecution "proposed to be commenced", and the prosecution based upon the 2001 indictment was commenced before the institution of these proceedings. The second respondents accepted that "the better view" is that s 39B(1C) applies, rather than s 39B(1B), as the prosecution in the County Court has commenced, and is not "proposed to be commenced". 62 It was in the appellant's interests to accept the respondent's approach to the construction of s 39B(1B), hence there has been no argument in this Court as to whether the jurisdiction otherwise given to the Federal Court by s 39B(1) is excluded in the circumstances of the present case by the operation of s 39B(1B). Rather, the argument in this Court concentrated on whether the act or conduct which the appellant seeks to impugn is a "related criminal justice process decision" for the purposes of s 39B(1C). 63 In my view, there is considerable force in the appellant's submission that the injunction which the appellant seeks is not in relation to a "related criminal justice process decision" as defined in s 39B(3). A decision to prosecute was taken and implemented by the filing of the indictment. If and insofar as Clarke v Commonwealth Director of Public Prosecutions (2000) 99 FCR 294 decides that the maintenance of the prosecution thereafter is referrable to other decisions made by officers of the Commonwealth in the criminal justice process which are "related criminal justice process" decisions, then I respectfully disagree. Sections 39B(1B) - (1F) were inserted into the Judiciary Act 1903 (Cth) by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth). The Second Reading Speech (Australia, Senate 2000, Debates (Hansard), 11 April 2000, p.13806)included the following: "Further, defendants in State and Territory Courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on State and Territories Supreme Courts. ... If the 39B jurisdiction in relation to prosecutions in State and Territory Courts were not removed from the Federal Court, and conferred instead on State and Territory Supreme Courts, the opportunity to disrupt and delay those prosecutions by repeated, unmeritorious applications to a different court system - in this case the Federal Court system - would remain. The expectation is that there will be significant advantage in requiring all decisions relating to the criminal justice process to be made in the system in which the prosecution is brought." 64 The relevant provisions of the Judiciary Act are concerned with collateral attacks on decisions made by Commonwealth officers in the criminal justice process. The appellant's complaint is that he cannot be lawfully prosecuted for the offence on which he has been indicted. The injunction which the appellant seeks is an injunction restraining the respondents from proceeding against the appellant on the 2001 indictment. The "act or conduct" (see Clarke v DPP at 299) which the appellant seeks to impugn is the decision to prosecute him and all that flows from that decision. That is not a matter which is excluded from the jurisdiction of the Federal Court by s 39B(1C)(c). 65 Section 39B(1B) is concerned with "a decision to prosecute" whereas ss 39(1C), (1D) and (1E) are concerned with "a related criminal justice process decision" which is defined in s 39(3) so as to exclude a decision to prosecute. 66 The evident reason for excluding the decision to prosecute from the notion of a related criminal justice decision in s 39B(1C) is that such decisions have already been dealt with under s 39B(1B). There would be no logic in a legislative scheme which conferred jurisdiction in the Supreme Court to grant relief in relation to a decision to prosecute in the period up to the commencement of the prosecution to the exclusion of what would otherwise be the jurisdiction of the Federal Court, but which revived the jurisdiction of the Federal Court of Australia to grant prohibition or an injunction against a Commonwealth officer in relation to that decision once the prosecution is before a state court. 67 On a literal reading, s 39B(1B) is capable of being confined in its operation to the period in which a prosecution in a court of a State or Territory "is proposed to be commenced", such that the operation of the section is spent on the commencement of the prosecution. But such a construction of the section would not promote the purpose or object underlying the Act as expressed so clearly in the Second Reading Speech in the extracts quoted above. 68 Rather the section should be construed on the basis that once a decision to prosecute has been made by an officer of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory, then thereafter the jurisdiction referred to in s 39B(1B)(a) is conferred on the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced to the exclusion of what would otherwise have been the jurisdiction of the Federal Court in that regard. That position continues notwithstanding the institution of the prosecution in the State or Territory concerned. 69 Such a construction promotes the purpose or object underlying the Act and is to be preferred to a construction that would not promote that purpose or object: s 15AA of the Acts Interpretation Act 1901 (Cth). 70 The appellant's trial is scheduled to commence on 10 September 2001, hence the Court was obliged to give its decision on the appeal as a matter of urgency. Notwithstanding the views which I have expressed it would not be appropriate for this case to be decided on a view of s 39B(1B) which was not advanced by the respondents, and which the appellant has not had an opportunity of controverting. 71 Accordingly, my concurrence in the decision of the Court announced on 31 August 2001 that the appeal be dismissed is based on my conclusion that even if the Court had jurisdiction to entertain the proceedings, the Court should, in the exercise of its discretion, decline to grant the relief sought. I agree with the directions proposed by Beaumont J with respect to costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Appellant: Mr B Monotti

Solicitor for the Appellant: Cole & Magazis

Counsel for the 1st and 3rd Respondents: Mr E Lorkin with Ms D Mortimer

Solicitor for the 1st and 3rd Respondents: Australian Government Solicitor

Counsel for the 2nd Respondent: Mr K Bell QC with Ms Rachel Doyle

Solicitor for the 2nd Respondent: Director of Public Prosecutions

Date of Hearing: 27 August 2001

Date of Order: 31 August 2001

Date of Judgment: 7 September 2001