If there was a power to require the Crown to proceed to verdict after the DPP had directed no further proceedings on the indictment
- On 18 November 2022 when I announced my decision that the trial had come to an end upon the Crown Prosecutor informing the Court of the DPP's direction that there was to be no further proceedings, I indicated that if I was wrong about that conclusion, I considered that this was one of those extreme, exceptional or rare cases, as referred to in the interstate authorities, where I would have required the Crown to proceed with the trial to verdict.
- My reasons for expressing that view are as follows: Given the way the Crown opened its case, without the evidence of the Complainant, it is almost a certainty that the Crown case would fail against all of the Accused, on all of the counts on the indictment. There can be no doubt that the Complainant was central to the Crown's case. While against two of the Accused there were some implicit admissions made on listening devices placed in their cells when they were arrested, the admissions, even coupled with other forensic evidence, without the evidence of the Complainant, would not have been sufficient to sustain a conviction against any of the Accused.
- The Crown had ample opportunity, both prior to and during the trial, to obtain relevant indemnities or immunities from relevant interstate authorities to protect the Complainant from the use of the evidence it sought to adduce from him, which potentially exposed him to prosecution in those other states, in particular, Western Australia and South Australia. The failure of the Complainant to be protected in those states from possible prosecution for serious indictable offences based on his own evidence was an important reason why I declined to require him to give evidence under s.128 of the Evidence Act. (See the judgment I delivered on that issue on 17 November 2022).
- The procedural history of the trial, which I earlier set out at some length, on the balance of probabilities, leads me to conclude that the decision to direct that there be no further proceedings on the indictment was in effect a tactical decision to deny the Accused the advantage of an acquittal. I note in that regard the Court was only informed of the Director's direction after it had ruled that it would not require the Complainant, in the interests of justice to give evidence, there had been no attempt to appeal that decision, and the Crown's application to effectively abort the trial had been unsuccessful.
- In coming to that conclusion, I have not drawn any inference against the Crown because the Director decided not to waive her privilege in relation to the reasons why she decided to direct that there be no further proceedings. I have drawn the inference I have from the state of the evidence before me and the procedural history of the trial.