Police v Rankin; Police v Roberts

Factual Background 6The applicants were two of a group of protesters at a CSG mining site near the small hamlet of Glenugie between Grafton and the sea. I have not been provided with a copy of the facts for each matter, however I gather from the submissions that one of the applicants was sitting on the road, and the other had locked himself onto something with a view to making his removal more challenging should he decide not to move when requested. There were many others on the road protesting. Some moved when asked. Others remained and were arrested. Each of the applicants was arrested and charged with two offences.1 The first was the offence Hinder Police pursuant to s 564C of the Crimes Act 1900. The second was pursuant to r 236(2) of the Road Rules 2008: "A pedestrian must not unreasonably obstruct the path of any driver or another pedestrian" 7They were arrested and taken to Grafton Police Station. They were released on police bail some hours later, which required them not to return within 3km of the protest site, and to appear in court on the listing day of their matter. 8There were many others arrested around the same time as this and at other sites. Some refused to enter their bail and were remanded bail refused. Others refused to enter the police bail and were released once they appeared at court on a variation of bail. Many pleaded guilty, and were dealt with by way of s 10 dismissal, s 10 bond or fine. A significant number pleaded not guilty. The applicant Roberts resides at Bentley, approximately 150km from Grafton. He has appeared in court to answer his bail on at least three occasions. The applicant Rankin resides at Engadine which I believe is a suburb in Sydney. This is approximately 650km from Grafton. He has appeared in court to answer his bail on four occasions.

Procedural Background 9On 11 March 2013 all not-guilty matters were listed before me for mention to set a date for hearing at Grafton Local Court, a brief having been served in most. A proposal was put by the prosecution and defence: rather than listing all matters for hearing, the suggested agreed plan by both parties was that two of these cases, those of the applicants, would be set down for hearing on a test-case basis. This was because the issues in these cases were typical of the issues in other cases. There were a large number of witnesses required for both the prosecution and defence case, and for listing reasons, they were set down for hearing as a special fixture at Maclean Local Court on 9 and 10 July for two days hearing. Nothing else was listed for hearing as these matters were most likely to go ahead. With the exception of the matters of Medek, Giallard and Zable, and where defendants pleaded guilty, all other matters arising from this protest, and a later protest at Doubtful Creek, were adjourned awaiting the determination of the test cases. 10In the meantime, there were three other cases set down for hearing, those of Mr Medek, Mr Giallard and Mr Zable. They were set down for hearing earlier than the test matters as they were only likely to take two hours in total, and thus could be allocated a sooner hearing time. They were heard on 7 May 2013. In both these cases the charges were dismissed, and the issues traversed those of the applicants' test cases. Accordingly, it is important to revisit those cases. 11Mr Medek's case went first. He too was charged with the same offences as those in the test cases. Senior Sergeant Huxtable was for the prosecution, and Mr Bolt for the defence. The defence focussed their cross-examination on two aspects - the lack of compliance by the informant with s 201 of Law Enforcement Police Responsibilities Act 2002 (LEPRA), and the lack of any motor vehicles actually being present at the time of the arrest. 12On both issues the evidence was clear and uncontroversial. The informant, an officer from the specialist Public Order and Riot Squad (who had travelled to the protest site from Sydney, and had travelled to Grafton Court for the hearing from Sydney) had not complied with s 201 in both technical and substantive ways. In particular, he had not warned the defendant that if he did not move he could be arrested. Whilst I do not have a transcript of the judgment I gave, I made it clear that such a direction was crucially important in a protest situation because there are those who may not want to get arrested, and would use such a warning as an opportunity to comply. Given that breach of s 201, I was not satisfied that the informant was acting in the execution of his duty, and that charge was dismissed. The legal basis of that determination is well established by authority of the High Court and the Supreme Court of New South Wales: the High Court considered this issue specifically in Coleman v Power and Ors [2004] HCA 39 per McHugh at [118]. This was applied in NSW in the case of Semaan v Poidevin [2013] NSWSC 226. 13Incidentally, the latter case has now been successfully appealed by the DPP (Poidevin v Semaan [2013] NSWCA 334), however the principal issue of import to this case was reinforced by the Court of Appeal at [118]: The Crown Advocate, who appeared for the applicant, accepted that "in the execution of his or her duty" meant "in the lawful execution of his or her duty". That approach was correct, and accords with what McHugh J said (of the materially identical Queensland counterpart to s 546C) in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [117] that "It is not part of an officer's duty to engage in unlawful conduct." 14On the second issue, the evidence was not contentious that the actions of the defendant did not block any vehicles, as the mining rig and trucks were still some miles away, and the police were seeking to clear the road prior to their arrival. Accordingly, the traffic matter was also dismissed. This decision was given ex tempore, and the prosecution have not appealed. 15The prosecution conceded that in relation to Mr Zable and Mr Gaillard the same issues arose and tendered the brief in both matters. Senior Sergeant Huxtable conceded that in both cases s 201 of LEPRA had not been complied with and there were no vehicles present to be obstructed. The charges were dismissed. 16Costs were not sought by the defence. Senior Sergeant Huxtable agreed to look at all the other matters in the light of the findings of the court in the Medek matter. As a result, some of the defendants pleaded guilty in the preceding weeks, and in the other matters the defence made representations to have the charges withdrawn. 17In the Local Court, charges are usually withdrawn following representations to the Regional Commander. These are made in writing, and involve consultation with a local senior prosecutor, and the informant. This usually takes approximately six weeks. 18The defence made representations with respect to the applicants' cases at the invitation of Senior Sergeant Huxtable, and the basis of the representations were that LEPRA had not been complied with. A copy of the representations is an attachment to the affidavit of Mr Bolt, Solicitor. The Patrol Commander wrote back to the applicants' lawyers on 4 July 2013 stating that the charges were to be withdrawn. The letter specifically refers to the "H number" which corresponds with the two charges for each of the applicants in these matters. The prosecution did not notify the court of this decision. 19As a result of that letter, Mr Wykeham, a Solicitor in the employ of Mr Bolt, notified the defendants that their charges were to be withdrawn. He also called off witnesses, and counsel, Mr Cochrane. 20On Friday 5 July 2013 (when the test cases had been set for the following Tuesday and Wednesday) Mr Bolt received a telephone call from Senior Sergeant McMahon, who informed him of a fresh charge. He informed Mr Bolt that he was driving up from Sydney to take carriage of the matters. Mr Wykeham of Mr Bolt's office then sought a copy of the new CAN from the police, but despite requests on 5 July 2013 and 8 July 2013, none were provided. Until their arrival at Maclean Court on 9 July 2013 the applicants did not know the particulars of the new charge that they would be facing, and despite their best efforts had not been able to obtain a copy from the police. 21That is unsurprising because, the fresh charge was not laid electronically until 8 July 2013, the day before a two-day hearing, for offences which had allegedly occurred on 7 January 2013. There is a six-month limitation period on traffic matters. So the fresh charge was laid on the very last possible day.

Maclean Local Court 22On 9 July 2013, Senior Sergeant Huxtable rose and withdrew the original charges. The defence said that they had no objection to the charges being withdrawn, and that they had intended to make no application for costs, but that in the light of what they anticipated was about to occur, that their position on costs was now reserved. 23A different prosecutor rose, Senior Sergeant McGrath. He stated that a single further charge had been laid against each of the test case defendants (the present applicants), and all other remaining defendants of "attempt block road". Mr Cochrane of Counsel for the defendants said that he had got wind that this may occur, which is why he had attended court. He indicated that his solicitor and his clients had not been served the fresh charge, which he believed may be out of time. He wanted to see the fresh CANs, including proof of the date on which they had been filed. The prosecution wanted to press on with the matters but conceded that would not be possible. The defence sought an adjournment. The basis of this adjournment application was that this was effectively the first time these matters were before the court, that the defence witnesses had been called off on the basis that the charges were to be withdrawn, that the defence needed to investigate whether the charges were in time (being laid on the last day of the six month limitation period), to get instructions, and to undertake research on the issue of attempting a summary offence. The prosecution had not served the defence team or the applicants the new charges, and also had not notified the court. 24I granted the adjournment, and ordered costs against the prosecution for the day in the sum of approximately $2,000. 25The costs issue is, as discussed below, of import. It shows that the defendants have privately engaged and retained solicitors and counsel to represent them in the original matters and the fresh charges. It can be inferred that they have already, as a result of the mentions, representations, conferences, briefing, obtaining statements and advising on the original matters, incurred significant expense. Whether the police compensate them for those expenses, or they suffer that loss as they had intended on the withdrawal of the original matters, is not yet determined. The current status is that they are responsible for those costs. I have not heard an application for those costs. The defence would have the significant hurdle of the onus on the defence under s 214 of the Criminal Procedure Act 1986. 26It is worth noting that on 12 July 2013 Mr Wykham requested copies of the fresh charges from the prosecutor's office at Lismore, Grafton police station, and the brief handling manager at Coffs Harbour. He did not receive copies of the fresh charges. He then wrote to the Local Area Commander at Coffs Harbour requesting a copy of the charges and evidence of when they were filed. He did not receive a copy of the fresh charges until 5 August 2013. 27I also took some time to consider the court's position in relation to the fresh charges. I directly asked Mr McGrath as to why the fresh charge had been laid, especially given the minor nature of the charge, the delay, the waste of court time for the days set aside, the withdrawal of the previous charges and the expense of having witnesses and defendants attend court. His answer was one word: "instructions". 28I should add that it is not usual for this court to challenge the prosecution so bluntly as to the reason for a prosecution. That is not a matter which commonly concerns the court. However, where two days of precious court time is wasted by prosecutorial manoeuvring, at the time I thought it a valid enquiry. 29Eventually, once the prosecution actually served a copy of the fresh CAN to the defence solicitors, this stay application was made by the applicants in relation to the fresh attempt charge. 30The fresh charge in relation to the applicant Roberts reads (verbatim): "Between 9.50 am and 11.30 am on 07/01/2013 at GLENUGIE. did travel on a road, to wit, The Avenue, Glenugie, and did unreasonably obstruct the path of a driver the said Allan Roberts being a pedestrian. attempt to commit" 31The fresh charge in relation to the applicant Rankin is for relevant purposes the same.

Legal Issues 32It is agreed by both parties that the Local Court has the power to stay proceedings: DPP v Shirvanian (1998) 44 NSWLR 129 at 135 per Mason J. It is often stated by the higher courts that there are discernible classes of cases in which a power of stay has been exercised, but that the classes are not closed and that it is necessary to consider the individual factual scenario in the particular case: Hunter v Chief Constable of West Midlands [1981] UKHL 13. There are two broad categories of cases where there is a power to stay. The first is where the prosecution of proceedings are oppressive and thus unfair. The second is where there is an abuse of process that the court ought to protect itself from. These two categories are not exclusive, and clearly overlap - the cases in respect of the second category, also include reference to an erosion of public confidence in the courts where the conduct of one party leads to oppression and/or injustice. In essence the question to ask is whether the procedure would bring the court into disrepute among right thinking people. 33A passage oft-quoted in the leading cases relating to stay in criminal prosecution is from the New Zealand case of Moevao v Department of Labour [1980] 1 NZLR 464. Richardson J commented at 482: The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It is done so in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the court processes are being employed for ulterior purposes or in such a way (for example through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes abuse of the processes of the court. 34Thus the courts will intervene where a criminal prosecution is instituted for a collateral purpose. In Williams v Spautz (1992) 174 CLR 509 a university professor instituted a private criminal prosecution which was stayed on the basis that it was instituted primarily to advantage negotiations in seeking reinstatement of his employment. 35In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ also referred to the passage from the judgment of Richardson J with approval. Their Honours made the following remarks at 392 which are of general application: 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. 36The onus is on the applicant, and it is a particularly heavy one: Williams v Spautz (1992) 61 ACrimR 43 at 519 and 529. As was said in R v Mohi [2000] SASC 384 at [29]: The critical question is whether the interests of justice demand that the power to stay the prosecution be exercised. The fairness of a trial is only one factor of many which bear upon those interests. The onus of satisfying the court that an abuse exists lies upon the party alleging it. That onus is a heavy one and the power to grant a permanent stay "is one to be exercised only in most exceptional circumstances" (Williams v Spautz at p 529.) 37The onus on the applicant is on the balance of probabilities; however, the onus is higher than the civil standard, in that the court must be actually persuaded, rather than one inference being stronger than the other: Brown v NSW Trustee and Guardian [2012] NSWCA 431 at [52].

Seriousness of the Offence 38The respondent prosecution submits at paragraph 42 that there is little room for consideration of the nature of the fresh charges laid: The prosecution do not agree that the ultimate question in this case involves consideration of the seriousness of the alleged offending conduct. The seriousness of the offences in question is for these purposes irrelevant. The focus is on preventing an abuse of the courts processes and/or unfairness to an accused. In this context the court would no more sanction such an abuse in the case of murder than it would for an allegation pursuant to the innocuous r236 of the Road Rules 2008. 39The use of the word "innocuous" is telling. It means "harmless" and serves to emphasise the minor nature of the charge, let alone an attempt of same. 40The defence takes a different view at paragraph 37: Given that the test in this application is a balancing one, as the seriousness of the alleged criminal conduct falls, so too does the nature and extent of oppressive or other abusive conduct that will be required before a stay is the appropriate remedy. 41In my opinion the defence view is correct, although I could find no authority either way. Perhaps that is because the reported decisions are generally on serious criminal matters. However, there is some authority that points in the direction of the defence submissions. In Rogers v R (1994) 181 CLR 251 at 5, Mason CJ described the balancing test as follows: ...the requirement of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice. (my emphasis) 42In considering the balancing test, the public interest in prosecuting crime is different in proceedings of different types. Thus the public interest in the conviction of perpetrators of offences of violence or serious property crime, will be much greater than prosecuting a person for failing to indicate. This also accords with general principal. In a case where the prosecution seeks an adjournment as a key witness is not present, the court weights up a number of factors. Not adjourning the matter will mean that the prosecution case will fail and the charges will be dismissed - a result with the same effect as a permanent stay. One of the key factors that the court looks to is the seriousness of the allegations against the defendant. Similarly, when the court is considering the admission of illegally or improperly obtained evidence under s 138 of the Evidence Act 1995 the court considers the seriousness of the case, in accordance with common law principals. Again, the failure to allow the evidence may lead to the charges being dismissed - a result with the same effect as a permanent stay. In each of these examples - adjournments and admissibility - the court is exercising discretion, and the seriousness of the offence is a key factor to consider in the exercise of that discretion. In my view, this application also requires a discretionary decision, and the seriousness or innocuousness of the charge is similarly a key factor. 43Not only is this case minor, it is appropriate to look at the likely penalty if the applicants were found guilty. Obviously, the maximum penalty is a fine. However, the court would need to further take into account some additional factors that would mitigate any penalty. Firstly, the applicants have spent a significant amount on costs on matters where the charges have been withdrawn. They may or may not recover these. Second, the applicants were on bail for some six months for charges that were withdrawn. Third, the applicants reside at Bentley and in Sydney. According to the papers, they have travelled to court on several occasions to meet their bail conditions. Fourth, the penalty for an attempt offence will generally be less than for the substantive offence.2 Fifth, the prosecution have delayed prosecuting the current matters for six months. Sixth, the applicants were advised that the charges were to be withdrawn, and then had to face other matters which certainly took them and their legal representatives by surprise. Seventh, each of the applicants was arrested, taken back to Grafton police station and then released on bail. In other cases submissions were made about the time in custody being taken into account, and in some of those the processing and release was delayed for many hours. Eighth, the applicants would have a legitimate expectation that their penalty would be somewhat less than the others who have been penalised for the more serious offence of resist police. 44I note that pursuant to the State Debt Recovery Office Fixed Penalty Handbook, a breach of this Road Rule carries a fine of $67 if dealt with by a ticket. Innocuous indeed. 45Each of these factors would tend to indicate that the applicants would be unlikely to be fined an amount anywhere close to the maximum penalty. So, not only are the charges minor, the likely penalty even assuming convictions are likely to be insignificant. In my view this is a key factor in determining whether a stay ought be granted.

Wasted Court Time 46The prosecution had two days of hearing time set aside for them to prove their case. They did not notify the court that the charges were to be withdrawn. They did not notify the court that a fresh charge was to be laid. Their attempt to have the fresh charge litigated at Maclean was futile, as the defendants had relieved their witnesses, and rightly required time to research the unique new charges laid. 47The courts are not the protectors of the public purse, but it is appropriate that the court considers its resources in determining a stay. The prosecution is under an obligation to comply with the Chief Magistrate's practice direction (Local Court Practice Note Crim 1 at 6.1 and 6.2) with respect to vacating a hearing date, and they did not. That requires the prosecution to make an application to vacate prior to 21 days prior to the hearing. If an unforeseen circumstance arises within that 21 days, then the application is to be made no later than the next working day. The purpose of this direction is obvious - if the prosecution do not notify the court of their intentions to vacate a hearing then court time is thrown away. I travelled from Ballina Court solely for this hearing. The court staff came from Grafton. It is worth remembering that people sit in prison awaiting a hearing day in the local court and they, as well as alleged victims, are among those who suffer as a result of this sort of manoeuvring by the prosecution. 48The case of Gaby Rona v District Court of South Australia and Ors (1995) 63 SASR 223 is most persuasive on this issue. In that case, the South Australian DPP had failed to comply with a practice direction, and accordingly the matter could not proceed to trial. The trial judge stayed the proceedings. His decision was overturned on appeal and the matter remitted, on the basis that his orders were clearly to punish the DPP, rather than applying the correct criteria on a stay application. However, the Supreme Court emphasised that court management of its resources was an appropriate matter to consider in a stay application. King CJ at [15] found: I consider therefore that the conduct by the DPP of a prosecution other than in accord with the procedural directions given by the court or the undertakings and assurances given to the court may amount to an abuse of process of the court and found the jurisdiction to stay the proceedings. If that were not so, the DPP would be immune from the case management regime and the power of a court to control its own process and proceedings, Jago v District Court of NSW per Gaudron J at P74, would be defeated. 49At [22] King CJ found: I think that the attempt by the DPP to depart from the unequivocal assurances given at the status conference that the information on which the accused would go to trial.....was in the circumstances an abuse of the process of the court which gave rise to a power in the court to stay proceedings on that information. 50Earlier in this judgement I referred to the balancing process required. At [26] King CJ found that part of that process involves consideration: ...(of the) integrity of the case management system and all that it implies for the efficient and just disposal of criminal business and the community's expectation that persons who are charged with offences are properly brought to trial. 51My conclusion on this issue is that the prosecution have wasted significant court resources in their conduct of this matter, and that this is a factor in weighing up whether to stay the proceedings. It ought be noted that the defence also have an obligation in these circumstances to have notified the court. However, primary responsibility rests with the prosecution given that they are the initiators of the original proceedings, it was their decision to withdraw those proceedings, and to institute the fresh proceedings.

Detriment Suffered by the Defendants 52The defendants agreed to participate in the test case on the basis that they would have their cases delayed, remain on bail, and defer an option of an early plea with the discount that may apply. This is submitted by the defence at paragraph seven, and is not contested by the prosecution. 53I note further that it is not just the applicants who have suffered delay as a result. Mr Bolt and Mr Wykham in their affidavits attest to the large number of other people who have had their cases adjourned from other courts and other protests awaiting the outcome of the test case. They too have suffered detriment as a result of the delay.

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.

72The respondent states that there has been no forensic disadvantage identified by the withdrawal of one charge and the laying of another in breach of the test case agreement. The submissions at 40 go on to state: Furthermore, it is not appropriate to describe what occurred as a promise, it is in fact not even capable of being described as a representation by the prosecution....The prosecution simply and presumably went along with what had been suggested by the applicants. To have done otherwise would have been unreasonable given the process was likely suggested informally as a way of expediting resolution. Essentially what is being suggested is that the prosecution should not have agreed to the test case process in the expectation that they would or might encounter difficulties in proving the original charges and that by so doing they had tied their hands in perpetuity. 73That submission is, in my view, in error. To participate in a test case scenario is a promise. It does tie the party's hands. There is no evidence as to who instigated the test case process. The affidavit of Mr Bolt simply states that it was agreed by Mr Cochrane of Counsel and by Senior Sergeant Huxtable. That agreement was then put by the parties to the court for its approval. The court then approved it. 74The last sentence in the quote above is confusing. If it is meant to suggest that the prosecutor erred in entering into the agreement, then that is something that can be sorted out between the Senior Sergeants. If it is meant to suggest that a test case approach, approved by the court, is simply a tactic for forensic advantage as the case ebbs and flows, I disagree. Again, by opting to put on no evidence whatsoever from the informant, the respondent is left with no evidence as to the reasoning for the apparent change of heart. 75In Mohi, the absence of a good reason was a key factor in staying the proceedings (at [48]). The prosecution in this case is expected to honour such agreements, and the failure to do so gives rise to a power to stay. 76At paragraph 41, the prosecutors submissions read: There was no written agreement setting out any terms, at best there was an indication that the cases would be "looked at" with no further explanation 77The time being referred to in that submission was after the case of Medek. However, that is not the agreement which is crucial. The important agreement is that the applicant's matters were set down for hearing on a test case basis. The prosecution lost. Whether that was because of another court case or not is irrelevant. Whether that occurred because the cases were withdrawn, or were dismissed following a hearing is irrelevant. 78At paragraph 41 the prosecution submits: In no way did any of the prosecution conduct amount to a promise that the applicants would only be charged with these offences or that the prosecution might not be amended if the need arose. 79The obvious terms of an agreement to enter into a test case are that those charged with some offences will be tried on those offences. The test cases were withdrawn because they were foredoomed to fail because they relied on the same issues as the case of Medek. After all, what is the purpose of having a test case agreement, and when the test case fails, or as in this case is withdrawn, then the prosecution does not stick to its test case agreement? Senior Sergeant McMahon's version of a test case agreement seems to be that if the cases are looking shaky then the prosecution can lay an alternative charge instead. 80The test case was not an agreement made solely by the parties. It was made in open court and was approved by the court. The whole purpose of a test case is that it is one in all in, one out all out. That is more than just an implication - it is an assurance by the parties to the court. On this basis alone I would have stayed the matter. 81That it is in open court can be important. In Bloomfield v R [1996] EWCA Crim 1801; [1997] 1 Cr App R 135, a change of mind by the prosecution about not proceeding with a charge was held to be an abuse of the court's process. In that case counsel for the Crown's statement about abandoning the prosecution was made in open court and later again to the trial judge in his Chambers. The trial judge acted upon it by making an order adjourning the further proceedings. Staughton LJ said at 143: The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice, in the presence of a judge.

Collateral Purpose 82The defence contend at paragraphs 15 to 21 of their submissions that the prosecution has been instituted for a collateral purpose. They submit that a question arises as to whether the prosecutions are being pursued for a political aim, given the high profile issue of CSG in the community. The defence further submit that the prosecution may be as a result of embarrassment by "Sydney" over the visiting specialist unit police and their failure to comply with LEPRA. 83It is correct that the courts will not usually look behind the reason for a prosecutorial discretion. However, this is an exception to that situation. The applicants have 'fair and square' laid out their concerns relating to these matters in their submissions. Two solicitors have prepared lengthy affidavits replete with attachments to support this application. The response from the prosecution is to simply point out that there is no evidence beyond mere conjecture. To an extent that is true - there is no smoking gun that proves political interference or specialist squad intervention. However, nor have the police chosen to dispel these suggestions with any evidence, or any alternative scenario that does not involve collateral purpose. The informant has not filed any evidence to explain why the new charges have been laid, and had they, any cross-examination may have shed light on this issue. There is nothing in submissions which dispel the applicants' contentions. In particular, there is nothing from the informant to explain why his superiors determined to withdraw the charges, and he then instructed another prosecutor to run a different matter. 84In my view, the burden on the applicant relating to a collateral purpose may be shown by inference. In this case I find myself asking "what could possibly be the reason for continuing on with such an 'innocuous' charge in these circumstances?" Whilst suspicion is not enough, what else is the court to conclude when the prosecution offers no other alternative to the issues raised by the applicants? Why else would the police risk a costs order against them in the original matters which were withdrawn (which could run into the many tens of thousands of dollars), drive a prosecutor up from Sydney to run the matters, arrange police witnesses to travel from Sydney all for an 'innocuous' minor traffic matter. 85The defence is correct that the CSG issue is political, to say the least. The arrests in this case are just one set of many, and the defendants who have come before me are generally over 50 years, well educated with a fair smattering of farmers and professionals. It is in that context that the realistic suspicion of political interference arises. 86My mind has wavered on this issue. There is suspicion, and there is a lack of any other rational purpose. However, I have formed the conclusion that I am not satisfied to the requisite degree that the prosecution in the fresh matters has been launched for a collateral purpose. Accordingly, I do not take into account the matters raised by the applicants on this issue.

The Vexatious Argument 87The applicants contend that the prosecution is vexatious for four different but related reasons. 88First, the applicants submit at paragraph 23 that the fresh charges are vexatious in that they are only a slight variant on the charges to be withdrawn. I do not agree. It is commonplace and not of itself vexatious for the prosecution to withdraw one charge and replace it with another. As the respondent police contend - that happens every day. 89Second, the applicants further submit at paragraphs 28 to 30 that the current charges involve the re-litigation of a matter already resolved in a prior proceeding. I do not agree. The prior proceedings were not an attempt and thus the issues to be determined are different. Further, as the respondent prosecution submissions state at 31, in this case, the defendants are actually different people. 90The applicants thirdly submit at 24 to 27 that the prosecution case is likely to fail the proximity test and is a weak case. That may be so, but a weak case is not enough. It must be foredoomed to fail. In my view it does not fall within that category but it appears to be weak and replete with hurdles. To explain the reason behind this finding it is necessary to analyse the nature of this offence with respect to the Commonwealth Code. This is a somewhat tortuous process. 91At common law a summary offence cannot be attempted: R v Bristol Magistrates Court [1998] 3 All ER 798. This is clearly a summary offence: Criminal Procedure Act 1986 s 6(c). It would be expected to follow that there is no "attempt" alternative to a charge where the offence alleged is proscribed by the Road Rules. Indeed, that expectation is strengthened by the ridiculous concept of a charge that seeks to prove "attempt cross dividing lines", or "attempt not wear seatbelt". Further, at least in my mind, there are significant logical problems with a charge of attempt an offence identified by s 236 which is a strict liability offence. However, the road rules specifically import the Commonwealth Code: 10-1 NSW rule: determination of criminal responsibility (1) Application of Commonwealth Criminal CodeSubject to this rule, Chapter 2 of the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth (the Commonwealth Criminal Code) applies to an offence against these Rules as if the Chapter were in force as a law of New South Wales. (2) Offences are strict liability offencesAn offence against these Rules is a strict liability offence for the purposes of Chapter 2 of the Commonwealth Criminal Code (as applied by subrule (1)), except where these Rules expressly provide otherwise. 92Section 11.1 of the Commonwealth Criminal Code reads: 11.1 Attempt (1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed. (2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact. (3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted. Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted. (3A) Subsection (3) has effect subject to subsection (6A). (4) A person may be found guilty even if: (a) committing the offence attempted is impossible; or (b) the person actually committed the offence attempted. (5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence. (6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence. (6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence. 93It would seem that even though the offence is a strict liability offence, the effect of the Code is that where it is charged as an attempt, the prosecution must prove intention. This conclusion is based on s 11.1(3) above and the application of s 5.2 of the Code. It also seems to be the conclusion of the High Court in R v LK; R v RK [2010] HCA 17. I note that the Commonwealth Guide to the Criminal Code produced by the Commonwealth Attorney Generals Department explains this as follows: In offences which impose absolute or strict liability, the prosecution is not required to prove fault with respect to some or all physical elements of the offence: Ch 2: Division 6 - Cases where fault elements are not required. The rule is different, when an attempt to commit one of these offences is charged: the prosecution must prove intention or knowledge with respect to each element of the principal offence.3 94Accordingly, the prosecution would have to prove that the defendants were intending to block the road when the vehicles came. It may be that recklessness will suffice: O'Meara v The Queen [2009] NSWCCA 90 at [61]. 95The prosecution would thus have to prove that the accused did an intentional act towards the commission of the offence. Blocking the road would seem to be an intentional act toward the commission of the offence. However, it seems to me that the prosecution would have real difficulties in proving that each applicant's intention at that time was to obstruct the path of the drivers. The mens rea test for attempt offences is an intention to commit the completed offence: Giorgianni v R (1985) 156 CLR 473 per Wilson, Deane and Dawson JJ at 506. The Crown must prove an intention to bring about each element of the crime alleged. Britten v Alpogut (1986) 23 A Crim R 254 at 258 per Murphy J (Fullagar and Gobbo JJ concurring). This decision was followed in R v Mai & Tran (1992) 26 NSWLR 371. The prosecution would have to exclude the rational alternative - it may have been to protest and then to move when the vehicles arrived as other protesters did. An alternative would be to prove that the defendants knew that the conduct would cause such an obstruction in the ordinary course of events. Again, that would depend on the defendant's aim and role in the protest. It would then need to prove that the offence was more than preparatory. I agree with the defence submissions at 25 that: It would be difficult to suggest that anyone standing on a road in the absence of a vehicle to obstruct could be doing more than preparing to obstruct it, if that. 96That would be a question of fact to be determined at the hearing, so the conclusion I reach is that Road Rule 236 can be charged as an attempt, and is thus magically transformed into an offence where intention must be proven. Should this matter ever get to hearing, no doubt these issues will be researched more thoroughly by the parties and the judicial officer who draws that short straw. For my part, I conclude that there are reasonable prospects that the offence is one known to law. 97I am unable to conclude with any confidence that the offence is one foredoomed to fail. The Code applies a simple test for 11.1(2). The question is simply: Was the conduct of the defendant "more than merely preparatory"? The question requires a conclusion of fact to be drawn in the light of all the circumstances of the case. 98However, in my view, my conclusion that the case is weak but not foredoomed does not lead to the conclusion that a stay cannot be made. This is not some mathematical 'tick-a-box' process - it is the entirety of the circumstances that the court must consider, and in my view the fact that the case is weak is a factor that mitigates in favour of a stay. 99The applicants fourthly submit that the fresh charge is multiple and successive prosecution. Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 (which was expressly approved by Mason CJ in Jago v District Court (NSW) (1989) 168 CLR 23 at 30) said at 482: The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court. (my emphasis) 100In this case it is my view that the proceedings are indeed vexatious successive prosecutions. By choosing not to file any evidence, it is difficult to see which "recognised purpose of the administration of criminal justice" is being applied by the prosecution in this case. 101The prosecution contend at paragraph 10 of their submissions that the attempt being formulated "late in the peace [sic]" is regrettable. In my view, it is more than that. The prosecution delayed until the last possible day to institute the proceedings. The explanation given is that the attempt charges were preferred in order to remedy a perceived legal difficulty in proving the substantive offence. In my view that submission does nothing to explain why the charging process took so long, was so late, was following an unequivocal withdrawal of the proceedings and was in breach of a court sanctioned and approved agreement. To suggest that any injustice can be ameliorated by adjournment ignores the oppressive nature of successive and repetitive charging such as this.

The Prosecutorial Discretion 102The respondent police submit that courts have been very reluctant to intervene with prosecutorial discretion, and rely in particular on R v Brown (1989) 17 NSWLR 472 and Maxwell v The Queen (1996) 184 CLR 501 at 513 to 514. 103The prosecution is correct. However, a stay application is the one area where the court does legitimately scrutinise the prosecutorial decision making process. In Maxwell the court found at 512: It would thus appear that in England the position is now as it always has been in this country. Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial. 104In Brown, there was a plea of guilty to an offence. The sentencing judge was not happy with this, believing that the more serious charge should have stood. He stayed the proceedings on his own motion, in what appears to have been a fit of pique. The appeal court intervened, and lifted the stay. It is in this context that the High Court considered Brown in Maxwell. In the key passage, at 513 to 514, the court is careful to stress that the court does have the power, in rare cases, to stay a prosecution to protect an abuse of its process. Indeed, the court found: The court's power to prevent an abuse of its process is a different matter and the question of its exercise can only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. 105Chung v The Queen (2007) 175 A Crim R 579 is referred to by the prosecution in this context. This was a case where an abuse of process was alleged, as the charge was one of conspiracy rather than the substantive charge. The court rejected the application for a stay, and reviewed the authorities on the role of the court and the prosecution. However, review of the authorities again relates to the situation where the court is concerned with a more serious or less serious charge than the court considers correct. Further, the authorities referred to, and indeed specifically contained within the quotes referred to, acknowledge that an abuse of process is an exception to the hands-off approach. Chung is specifically not an authority for the proposition that the court no longer retains a power to stay proceedings for abuse of process where the facts of a particular case demand it.

Findings and Orders 106The defence submits at paragraph 36 that it is open to the court to find aspects of the various forms of abuse of process discussed above, and I agree with this submission. 107Given the minor nature of the offence, the clear, unequivocal and inexcusable breaking of an agreement by the prosecution, the vexations nature of further proceedings, the lack of any explanation for the delay in fresh charges, the inherent weakness of the case and the repetitive and successive nature of the ongoing proceedings, the failure by the prosecution to comply with the practice directions of the court thus leading to wasted days at Maclean, taking all of these together in my view the continuation of these proceedings is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court. 108And the fault for each of the matters referred to in the paragraph immediately above lies on the respondent police and whoever is instructing the prosecutor in relation to the fresh charges. It was perfectly clear that you couldn't interfere with the passage of a vehicle when there is no vehicle. The requirements of LEPRA are not new or difficult - just say your name and station and warn people that if they do not move they may be arrested. An agreement to run a test case and a commitment to withdraw charges is exactly that, and the courts will not stand idly by whilst promises are broken without any explanation whatsoever beyond "instructions". The Local Court is not some platform for the prosecution, where charges can be withdrawn one day and reinstated in some different form the next without any notice to the court of the vacation of the original hearings. And if police from Sydney are not happy with the actions of police on the North Coast, then that can be sorted out in a way that does not disadvantage the recipients of a promise, the court and ultimately the people of New South Wales. 109It may well be that any one or even more of these matters would not have reached the threshold required. It is the combination of each of them (excluding the collateral purpose issues) that would, in my view, lead right thinking people to the conclusion that this is not just unfair: to allow it to continue would bring the criminal law and the court itself into disrepute. 110Accordingly, I order that the prosecutions in respect of each of these defendants pursuant to r 236 of the Road Rules are permanently stayed. 111I intend to adjourn the other matters where this fresh charge has been laid until I return from leave on 9 December 3013, so that the prosecution and the defence can consider their positions on the resolution of those matters in the light of this judgment. Magistrate D Heilpern Lismore Local Court 30 October 2013

Footnotes 1 I note that my papers are confusing as to the actual charges with the applicant Roberts. It may be that he was only charged with the traffic offence. Nothing turns on this discrepancy, and I have not recalled the parties to clarify that issue. 2 Sentencing Council of NSW (2004), Whether 'attempt' and 'accessorial' offences should be included in the standard non-parole period sentencing scheme, [8.2], available at: www.sentencingcouncil.lawlink.nsw.gov.au/agdbasev7wr/sentencing/documents/pdf/attempt%20report%20(online%20version).pdf 3 www.ag.gov.au/Publications/Documents/GuideforPractitioners.pdf, 248

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