The Bargain Issue
54The defence contend that the prosecution have broken a bargain and that this constitutes a basis for a stay. Firstly, the defence state that the prosecution, by agreeing to the test case process, agreed to be bound by the decisions in those cases - paragraphs 9 and 31 of the applicants' submissions. Second, the applicants contend that the prosecution, in writing to withdraw the charges, agreed in effect to end the prosecution of the defendants.
55On the first issue, the prosecution submits at 34 that there was no legal obligation formed by running a test case, and lists authorities at 35 where a promise of non-prosecution followed by a prosecution has not led to a stay. Mohi is an example where a stay was granted. Each of those cases relate to where the promisee is at first a witness, and then becomes a defendant. Here, it is quite clear what the promise was, and indeed until the intervention of the laying of fresh charges, the process was running as all parties thought that it would. The case of Medek resolved the legal issues and the parties accepted the legal findings of the court. Some defendants pleaded guilty, others made representations as invited to by the prosecution, including these two applicants. It was a legitimate expectation that the prosecution would abide by the test case determination, even if the Medek matter was not expected to be the test case.
56On the second issue, the prosecution submits at 10:
...that this (the fresh charge) occurred in the context of these applicants having been notified that the proceedings were being discontinued is unfortunate.
57The wording of that submission is important in my view. There is no pretence that the applicants were notified that just some charges were to be withdrawn. The word used is "proceedings". This acknowledges that the intention was to convey that the criminal prosecution of the applicants by the police, in its totality, would cease.
58"Unfortunate" means as a result of bad luck. There was nothing unfortunate about it at all - there was a clear decision by someone other than the Local Area Commander and the senior prosecutor for this region to lay another charge, thereby reneging on a test case agreement that had been made between the parties and in the face of the court.
59In my view the two issues cannot be viewed in isolation. The adoption of a test case process does imply that the parties will accept the outcome of the decision in those cases insofar as they relate to the other cases. The test cases were dismissed following the prosecution inviting the applicants to make written representations. After Medek they were foredoomed to fail. Therefore the prosecution ought be bound by their bargain. Once that was done, and the letter was sent indicating that the charges in the test cases would be withdrawn, there existed a further implication - that a fresh charge would not be laid. As the defence correctly assert in their submissions:
At no stage before 5 July 2013 did the prosecution suggest that alternative charges may be laid, either in the event police failed in relation to r236 or s546C charges, or otherwise in the exercise of prosecutorial discretion.
60It goes without saying that there is clearly a high degree of trust between the defence lawyers and the prosecutor Senior Sergeant Huxtable. They work together on a daily basis, and the arrangement that was struck in relation to the test cases no doubt would have been kept had it been left in his hands.
61The law on this issue is somewhat obscure, as most of the cases involve the police or other prosecuting authorities in a bargain not to charge a person at all, and then charging them. In New South Wales, the matter has been considered by the Court of Appeal in Nolan v Curby [1995] NSWCA 324, a decision of Clarke JA (Powell JA and Cole JA agreeing). This case was referred to in R v Mohi [2000] SASC 384 (8 November 2000), a case referred to in submissions. In Nolan, the court referred to a number of relevant decisions, which establish the following principals.
62Firstly, the prosecution of a person who had received a promise, undertaking or representation from the police that they will not be prosecuted is capable of being an abuse of process: R v Croydon Justices, ex parte Deane [1993] 3 All ER 129.
63Second, a stay is not limited to where a defendant has provided information to the police on a promise of non-prosecution: R v Trainor (1991) 56 A Crim R 102. In that case, the prosecution sought an adjournment which was opposed by the defendant, as the defendant's key witness was about to leave the state. The court refused the application for an adjournment. The defendant agreed to a deal with the prosecution whereby if the charges were not proceeded with he would not seek costs against the prosecution. The police offered no evidence and the defendant was discharged. Dowsett J found that the bargain included a mutual intention that all proceedings would therefore be at an end, even though the agreement did not state as much, referring only to "the charge". Some months later, the defendant was charged with different offences relating to the same incident. The court stayed the prosecution, commenting:
Nothing is more likely to bring the judicial process into disrepute than to permit either the Crown or the police force to resile from such an agreement I consider that the subsequent proceedings constituted an abuse of process.
64Of course not every determination to reverse a decision by the police or the DPP would lead to such a conclusion. For example, where there is fresh evidence, one could imagine that such a decision would not be regarded as undermining public confidence in the administration of justice, and, therefore, as an abuse of process: Barac v Director of Public Prosecutions; Barac v Stirling [2007] QCA 112.
65Third, the categories of situations where a prosecution will be stayed are not closed: R v Vuckov and Romeo (1986) 40 SASR 498 at 521, where Cox J noted that cases from a number of jurisdictions:
... show on the whole a cautious but steady development in recent years of the use of a stay of proceedings on the criminal side as a remedy against prosecutorial oppression in a variety of situations. They are not all concerned with the manner of a man's trial, but extend to the question whether he should be tried at all. There can be no set categories of cases that call for the exercise of this drastic but necessary power.
66Fourth, the bargain may not relate to criminal charges, but to the giving of evidence. The Court in Croydon placed considerable reliance upon the decision of the Hong Kong Court of Appeal in Chu Piu-wing v Attorney-General [1984] HKLR 411. The Court of Appeal set aside a subpoena to a witness as an abuse of process because officers of the Independent Commission Against Corruption had previously enlisted the witness' assistance on the basis of an undertaking by the officers that the witness would not be required to give evidence. The Court observed (pp 417 and 418):
We think that there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain.
67Fifth, the bargain need not have been made to the court, but may have been made only between the parties. As the court said in Mohi at [38]:
Support for the appellant's case is also found in two Canadian decisions. In R v Betesh (1975) 30 CCC (2d) 233, contrary to an undertaking by the Federal Attorney-General that postal workers would not be prosecuted for criminal offences committed during a postal strike, a postal worker was charged by the State authorities with assault in connection with an incident that occurred during the strike. In upholding an application for a stay of the prosecution, the judge of the County Court in Ontario expressed the following opinion (p 251):
"The abuse [of the process of the Court] lies in the Crown reneging on an agreement made and presented to a Court. To renege on such an agreement constitutes an abuse of the process of the Court. The Crown is expected to honour the agreements it has made in relation to prosecutions."
To this I would add that the Crown is expected to honour such agreements whether presented to the court or otherwise...
68Sixth, a change of personnel in the prosecution ranks will not relieve the new prosecutor from the promises of the old: Mohi again at [39]:
In R v Crneck, Bradley and Shelley (1980) 116 DLR (3d) 675, Krever J of the Ontario High Court granted a stay in respect of an applicant who had given a statement following an undertaking provided by Crown counsel, who then had the conduct of the case, that the statement would not be used against her and that if the statement was consistent with the known facts, the applicant would not be tried but would be called as a witness. Subsequently a different Crown counsel determined that, contrary to the earlier undertaking, the applicant should be charged.
In granting the stay, Krever J observed that there was "considerable merit" in the proposition that to allow the Crown to renege on an agreement to extend immunity from prosecution to an applicant in return for the cooperation of that person, which cooperation was given, would undermine the administration of justice and bring the entire system of the administration of justice into disrepute. His Honour referred to the principle that agreements made by a representative of the Attorney-General after consideration and consultation with experienced police officers should be carried out. However, his Honour found it was unnecessary to decide whether such principles prevailed because he reached the view that, if the Crown was permitted to withdraw from the agreement, the conduct of the Crown would have caused serious prejudice to the applicant in her defence of the charge. His Honour concluded that the cumulative effect of the prejudice and the principle that the Crown must be expected to carry out its agreement was sufficient to bring the case within the category of "most exceptional circumstances" which justified the granting of the permanent stay.
69This point is reinforced in the judgment in the case of Mohi itself. The court accepted that there was, as a question of fact, no certainty in the position of the DPP regarding immunity from prosecution. However, that was not communicated to the defendant. Accordingly, the court found as follows at [46]:
In my opinion, it is no answer to the cumulative force of these facts to say that those concerned with the prosecution of Williams and Herbsach within the Office of the Director had not finally decided whether the applicant was to be a witness or an accused. If of any significance, the fact that consideration was first given to this issue in April 1999, but was not resolved in the mind of those making the decision until February 2000, supports the case for the applicant. From the perspective of the accused and the community, the reassurances given by the investigating officers that the applicant would not be charged were confirmed and adopted by the conduct of the Director through his officers. That adoption came in a number of forms and over a lengthy period. No change in circumstances occurred which could amount to good reason for a change in the ostensible position previously taken by the Director.
70Again, it is relevant that in the present case, the prosecution has elected to give no evidence as to why there has been a change in prosecutorial position.
71In Visser v Hodgetts [2002] TASSC 44 the defendant asked for and received a commitment to withdraw two charges of assault. Fourteen days later, the police changed their mind. The matter was not at that time set down for hearing, the charge was the same as before, there was no test case agreement, there was no wasted court time, there was no witness difficulty, there were no costs implications, there would be no delay as a result and the charges were far more serious. The prosecutor claims that this case has significant similarities to the one at hand - I disagree. It is unsurprising that a bare single promise breached would not lead to a stay.