R v Lowrie [1997] QCA 434

In a footnote to that statement their Honours, after citing Clyne v. New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201; Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75 at pp.96, 107, 116 and Jago re: District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 said:-

"Although the term `inherent jurisdiction' has acquired common usage in the present context, the question is strictly one of the power of a court to stay proceedings. That power arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings."

In their joint judgment (still at p.518) the above 4 members of the High Court said:-

"The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair."

There can be no doubt that White J was called on to exercise this jurisdiction. She exercised it against the appellant. Thus, White J who was sitting in the Trial Division made the order from which appeal is brought. In my view a right of appeal to this Court lay from that order (s.69(1) Supreme Court of Queensland Act of 1991).

I add a reference to Director of Public Prosecutions (Queensland) v. Wentworth (Appeal No.4118 of 1996 - judgment delivered 10.09.1996) - it is mentioned in footnote 24 in the reasons of Davies JA.

This was a case relied on by Ms Dick counsel for the appellant. There a judge of the Trial Division of this Court had stayed a second indictment against Wentworth. Wentworth had already pleaded guilty to a number of charges and the sentencing process was en train but not completed at the time the second indictment was presented.

The Director appealed to this Court (before sentencing concluded) - there was no contest as to the trial judge's jurisdiction to stay - the appeal was on the basis that the discretion to stay was wrongly exercised.

This Court's judgment did not discuss the matter of its jurisdiction to entertain the appeal - it seems to have assumed that it did have that jurisdiction.

I mention also Drozd and Director of Public Prosecutions (Appeal No.10 of 1993) - the second case mentioned in footnote 24 in the reasons of Davies JA - another case where this Court entertained an appeal against a decision of a judge of the Trial Division of this Court refusing to stay an indictment. The applicant had sought a stay as a means of achieving the result that two proposed additional Crown witnesses should be cross-examined in further committal proceedings.

It is true that the matter of this Court's jurisdiction to entertain the appeal is not mentioned in the judgments of the members of this Court.

Nevertheless Wentworth and Drozd are two cases where this Court has heard and decided appeals against decisions of a judge of the Trial Division who in one case stayed a second indictment and in the other case declined to stay proceedings on an indictment.

The High Court in the footnote to Williams v. Spautz to which I have referred has gone to the trouble of pointing out that in a case such as the present the question is strictly one of the power of a court to stay proceedings. In that same footnote it has cited three of its earlier authorities.

I consider it important to bear in mind the role of the court when called on to exercise its power to stay proceedings.

In Connelly and Director of Public Prosecutions (1964) AC 1254; Lord Devlin dealt with a submission by the Solicitor-General that the danger of abuse of a court's process is a matter for the Crown. He said ((1964) AC at p.1354):-

"But in his submission the danger of abuse is a matter for the Crown; the Crown itself may be trusted not to abuse its powers and if a private prosecutor is abusing his, the Attorney-General can interfere by means of a nolle prosequi.

The fact that the Crown has, as is to be expected, and that private prosecutors have (as is also to be expected, for they are usually public authorities) generally behaved with great propriety in the conduct of prosecutions, has up till now avoided the need for any consideration of this point. Now that it emerges, it is seen to be one of great constitutional importance. Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused."

This passage emphasises the role of the court on an application to stay an indictment for abuse of process. Any court dealing with such an application stands squarely between the Executive and the citizen accused and the latter relies on the court to discharge what Lord Devlin called its "unescapable duty to secure fair treatment" for him or her with respect to those who think otherwise.

I find a decision that this Court which in most cases is the ultimate court of appeal in Queensland has no power to entertain before trial on indictment an appeal by an accused from a refusal by a judge of the Trial Division to stay an indictment for alleged abuse of process, is both very surprising and unacceptable.

If no such appeal lies it follows that the accused person will be obliged to undergo trial (perhaps lengthy and costly) on the indictment (the stay of which has been refused) and if convicted may then appeal to this Court (which has undoubted jurisdiction to entertain such appeal) with one of the grounds of appeal being that the learned trial judge wrongly refused or dismissed the application to stay. Of course if not convicted and the learned trial judge wrongly refused the stay the accused will needlessly have endured a trial and incurred expense, possibly very considerable.

The reasons prepared by Pincus JA show His Honour's concern with the effect of R v. Foster; ex parte Gillies (1937) St.R.Qd 67 and R v. Queensland Television Ltd; ex parte Attorney-General (1983) 2 Qd.R.648 which followed R v. Foster and also ex parte Maher (1986) 1 Qd.R 303 and the interpretation Kelly SPJ in that case gave to R v Foster.

His Honour has distinguished these three cases by deciding that none of them was an appeal against an interlocutory order made in relation to a trial on indictment and pointing out that two of them were contempt cases and outside that category. The third case, Maher concerned an order granting bail made after a trial had been completed and an appeal was pending.

In ex parte Maher bail had been granted under the Bail Act 1980 (as amended) and the heading to that Act read:-

"An Act to consolidate and amend the law relating to bail in or in connexion with criminal proceedings and for incidental and other purposes."

In my view Maher concerned bail granted in or in connexion with criminal proceedings and for that reason ex parte Maher is relevant and should be followed in the present case. I do not propose to repeat the extract from the judgment of Kelly SPJ quoted by Pincus JA. I note that Moynihan J (as he then was) the third member of the Full Court in ex parte Maher, agreed that the Full Court had jurisdiction to deal with the appeal for the reasons given by Kelly SPJ and Thomas J.

With the greatest respect, I do not believe that the cases of Drozd and Wentworth can be dismissed on the ground that in each of those cases the question of this Court's jurisdiction to entertain each of those appeals was not raised. The matter of staying criminal proceedings for abuse of process has been highlighted in comparatively recent past years by a number of cases in the High Court of Australia.

The principles and relevant considerations have been stated by that court. Add to those cases, the views of Lord Devlin as to the role of the court when hearing an application for such a stay (as I have earlier set out) and the importance of such applications becomes clear.

The law in this area, based as it is on the inherent jurisdiction of the court to which the application is made, is being developed by case law. Case law particularly emanating from appellate courts produces precedent and Drozd and Wentworth are precedents in this Court which cannot now be ignored although it is true to say neither case dealt with the question of jurisdiction.

In my respectful view, each of these two decisions was heard and determined without the matter of this Court's jurisdiction being raised because this Court appears to have assumed that jurisdiction was present.

Wentworth and Drozd support the view that there exists a right of appeal to this Court (in my view under s.69) from an order made by a judge of the Trial Division exercising or called on to exercise the court's inherent jurisdiction to stay a criminal proceeding for abuse of process.

In Williams v. Spautz, the four members of the court continued (at p.518-9):-

"This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.

However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.

If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is a fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. In the United States, great weight has been given to these factors (See Rosemont Enterprises Inc. v. Random House Inc. (1966), 261 F. Supp. 691, at pp.696-697.)

These factors have considerable force. There is a risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons. But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstances.

As Lord Scarman said in Reg. v. Sang [1979] UKHL 3; [1980] AC 402, at p.455, every court is `in duty bound to protect itself' against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour [1980] 1 NZLR 464, at p.481, in a passage which Mason C.J. quoted in Jago (1989) 168 CLR, at p.30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice. As Richardson J. observed [1980] 1 NZLR., at p.482, the court grants a permanent stay:

`in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression.'

Other objections to the exercising of the jurisdiction arising from the availability of other remedies in the form of contempt, malicious prosecution and the tort of collateral abuse of process have not prevailed ... ."

In the present case the material shows that the prosecution has changed its stance towards the applicant on different occasions. Initially she was charged on indictment with murder and Ross was charged with being accessory after the fact to murder. They had been so committed for trial before presentation of the indictment. The sequence of events thereafter appears from the reasons for judgment of White J pronounced on 5 March 1997. On 22 March 1996 an indictment was presented against the appellant charging her with one count of being an accessory after the fact to murder. No plea was taken by Dowsett J on that day but the Crown entered a nolle prosequi on the earlier indictment charging the appellant with murder and charging Ross with being an accessory after the fact to murder.

Committal proceedings against Ross on a charge of murdering Heathcote occurred in July 1996. The appellant gave evidence for the prosecution. During her evidence in chief, at the instigation of the appellant's solicitor, the Magistrate warned the appellant who then claimed privilege and was asked no more questions.

When the matter came before White J in 1997 the Crown sought return of the indictment charging the appellant with being an accessory after the fact to murder. After argument, White J made the first of the orders of 5 March 1997 from which this appeal is brought. In the course of her reasons on the application for a stay, White J dealt with matters said to amount to prejudice to the appellant, apart from the prejudice she will suffer if exposed once again to a murder charge.

Her Honour said that the real question was whether any unfairness accrued to the appellant by virtue of an understanding that she would only be charged with the lesser offence, that understanding apparently having existed from about 13 March 1996 to August 1996. As I understand her reasons this question was to be answered in deciding whether such unfairness, if it existed would amount to an abuse of process resulting in an unfair trial.

"It then became clear that the prosecution would not offer any indemnity to Lowrie, and some indication was given to her legal advisers that her best prospects would be an acceptance of a plea to manslaughter."

White J considered the limited evidence in chief given by the appellant at Ross's committal and also the fact that in February 1996 she had given an extensive statement to police in the hope that the prosecution would accept a plea of guilty to manslaughter. Her Honour correctly recognised that any evidence prejudicial to the accused flowing from the committal evidence and the February 1996 statement could be excluded by the trial judge. Her Honour concluded, correctly in my view, that the two orders on 5 March above set out should be made. There was and is no justification to stay the indictment charging the appellant with murder.

It is now over 2 years since Grace Madonna Heathcote was allegedly murdered. The citizenry of Cairns will wonder why the trial has taken so long to come to pass and there may well be a danger of "erosion of public confidence" in the manner in which the court's processes are being used.

In my view, it is of the utmost importance that the Trial Division exercise its jurisdiction to try the appellant and Ross.

I would grant leave to appeal against the decision to refuse the stay and dismiss the appeal.

[1] The King v. Foster; ex parte Gillies [1937] St.R.Qd. 67.

[2] Formerly s.10 of the Judicature Act 1876.

[7] Sections 39 and 40 of the Criminal Practice Act 1865; s.26 of the Supreme Court Act 1867.

[8] Sections 48-51 of the Criminal Practice Act.

[10] McPherson, "Supreme Court of Queensland" at 108 fn.158; see also fn.162 on p.109.

[13] Criminal Code Act 1899 s.10, Criminal Code s.707, Criminal Practice Rules 1900. Order X dealt with writs of error and O.IX with Crown cases reserved.

[14] [1937] St.R.Qd. 67.

[16] At 85-7 per Webb J.; 92-5 per Henchman J.

[17] [1865] U.S.S.C.Rep. (3 Wallace 495 at 513).

[18] [1986] 1 Qd.R. 303 at 304, 306-7 and 314.

[19] [1989] 1 Qd.R. 462 at 464, 469.

[20] [1983] 2 Qd.R. 648.

[21] As to bail see R. v. Malone [1903] St.R.Qd. 140 at 141; R. v. Hughes [1983] 1 Qd.R. 92; Ex parte Edwards [1989] 1 Qd.R. 139 at 142; and see also Lim v. Gregson [1989] W.A.R. 1.

[22] As Pincus J.A. has pointed out, the decisions of the Western Australian Full Court in Connell v. The Queen (No.5) (1995) 10 W.A.R. 424 and Carter v. The Queen (1994) 74 A.Crim.R. 300 take this view with respect to analogous provisions.

[23] Acts Interpretation Act 1954, s.14(2).

[24] In two decisions of this Court, Drozd v. Director of Public Prosecutions C.A. No. 10 of 1993, judgment delivered 17 June 1993 and Director of Public Prosecutions v. Wentworth C.A. No. 4118 of 1996, judgment delivered 10 September 1996, appeals against orders made on applications to stay an indictment, were dismissed but in neither case was the question of jurisdiction argued or considered.