R v SE & ORS

District Court of NSW|2022-11-07

Mr D Grippi (SE) Ms A Francis (RL) Mr T Krayem (RT) Mr T Ryan (JW) File Number(s): 2021/01066; 2020/15278; 2020/15274; 2020/15279

Judgment

The Accused SE, RL, RT and JW stood trial before me sitting as a judge alone on an indictment containing the following counts:
Count 1 alleged that on 29 September 2020 at Mount Lambie, being in company with each other and with a MH, they robbed LC of $550,000 being the property of LC and at the time of the robbery, inflicted grievous bodily harm upon him. Count 2 alleged that on the same date and place as Count 1, and again whilst in company with each other and a MH, they took and detained LC without his consent and with the intention of committing a serious indictable offence, namely, robbery. RT faced a third count on the indictment being that between 29 September 2020 and 2 November at Kellyville, he dealt with the proceeds of crime, namely, being he purchased a Mazda BT50 for an amount $17,000 cash, knowing that it was the proceeds of crime.
On Day 11 of the trial and prior to the conclusion of the Crown Case, the Crown Prosecutor announced that the Director of Public Prosecutions had directed that there be no further proceedings taken in respect of the 4 Accused; (T.313).
I then heard argument as to the effect of the Crown Prosecutor informing the Court of the Director's determination. The Crown's position was that the trial was at that point in time concluded and the Court had no power to proceed with the trial to verdict, or to require the Crown to conduct the trial to verdict. The position of the Accused was that the trial had not concluded and that the Court had the power to require the Crown to conduct the trial to verdict. Ultimately I ruled that the trial concluded upon the Crown Prosecutor informing the Court of the Director's direction. I gave short reasons for that conclusion on 18 November 2022 and indicated I would provide detailed reasons at a later point in time. These are those reasons.

An Overview of the Crown Case essentially derived from the Crown's opening and Crown's Case Statement

As opened by the Crown, the allegations in Counts 1 and 2 were based on an allegation that all the Accused were involved in a joint criminal enterprise.
In opening the Crown Case to me, the Crown Prosecutor said the following about the evidence the Crown proposed to call from the Complainant, Mr LC: I expect that your Honour will hear evidence from the complainant, whose name is LC, that he lived at the relevant times in Western Australia, that he was a truck driver employed by one MD. I expect that your Honour will hear from Mr LC that he had worked for that company for about one year before the commission of these offences. He drove a red Freightliner brand truck and he drove this truck on every delivery. Some time in early 2020 I expect your Honour will hear evidence from Mr LC that he delivered a bobcat from Kewdale in Western Australia to the suburb of Schofields in New South Wales. The company that received that delivery was the company M and E Bobcat Worx Proprietary Limited. It's the Crown case that the director of that particular company is MH. At the time the Bobcat was delivered, the complainant was given a hooded jumper bearing the details M and E Bobcat Worx Proprietary Limited. That jumper, I expect you will hear evidence of and see photos of, is a hooded jumper, black with blue sleeves. You'll hear evidence from the complainant, I expect, that he kept that jumper in the cabin of his truck. I should say at this point that the complainant provided two statements to the police and it's not in dispute in this trial that those statements were provided under inducement. He had done, that is the complainant Mr LC, had done two previous trips from Perth to New South Wales on behalf of Mr D. I expect your Honour will hear from him that he had taken an amount of money and exchanged it for drugs on each of those occasions. One of those exchanges had occurred somewhere outside of Wagga Wagga and the other one was somewhere on the Bells Line of Road in the Blue Mountains. I expect your Honour will hear from Mr LC that he did not know the name of the person he was supposed to meet on each occasion but he described - can describe and I expect your Honour will hear evidence about this that the male he met was of Caucasian appearance, in his mid‑50s, six‑feet tall with a slim build, dark hair. He didn't know this person's name but he, Mr LC, refers to that person as "old mate". On a previous occasion, that is prior to the date of the offences, old mate attended with another male person who the complainant will describe, I expect, as being 5 foot 7 inches tall, of muscular build, shaved head, a number of tattoos, aged in his 30s, late 30s or early 40s. On this particular occasion, the complainant took apart the differential housing on the truck and provided the male, old mate, with bags of money and was given ten small packages, each of which was around the same size as a bag of sugar. On Friday 25 September 2020, the complainant met Mr Dat the workshop in Western Australia. The complainant was given an amount of money by Mr D; $600,000 cash. According to Mr LC, who will give evidence to this effect, I expect, he was told by Mr D that old mate, the male known as "old mate", was coming from Sydney to meet Mr LC and he, that is Mr D, and old mate were trying to think of a place to stop and meet. The complainant Mr LC suggested a truck stop on the Great Western Highway at Mount Lambie. Mr LC, I expect, will give evidence that once he had received the cash from Mr D, he took apart the differential housing on the truck using a rattle gun and socket wrench to take that off, and put 12 or so vacuum‑sealed bags of cash into the differential housing. That is the $600,000 was split between these vacuum‑sealed bags and put inside the differential housing. Mr LC then reassembled the differential housing, otherwise known as the diff, and he then left Perth and headed towards Sydney in the Freightliner truck. That journey took a number of days, as your Honour might expect, and he stopped a number of times throughout the journey. (T135-136)
After the Complainant had arrived in NSW and was in the truck parked in Mt Lambie, the Crown case was that he was attacked, robbed of the majority of the money secreted in his truck and that the offences alleged in counts 1 and 2 on the indictment were committed. The Crown Case was that each of the Accused was, as part of a joint criminal enterprise, involved in the attack and robbing of the Complainant. The Complainant did not purport to identify any of the Accused as being his attackers, but clearly his evidence was very important to the Crown Case. As opened to me, the Crown Case against each of the Accused was a circumstantial one. The Complainant's evidence was important in the Crown case as it was part of the evidence the Crown relied upon to prove the robbery, the infliction of grievous bodily harm during the robbery and of the detention required for the proof of counts 1 and 2. While, as I say, the Complainant did not give identification evidence in relation to any of the Accused, the Crown relied upon observations he made of the physical description of his attackers, of things they said, observations about their clothing and of motor vehicles used by them as part of its circumstantial case.

A relevant procedural history of the trial

In order to understand the context in which the Crown announced to the Court the Director's direction and the nature of the argument that then ensued, it is necessary to set out in a little detail the trial's procedural history.
The trial date of 7 November 2022 was allocated to the trial on 19 November 2021. In accordance with the Practice Notes and directions of this Court there were a number of readiness hearings and call-overs after the trial date was set. On 2 and 3 November 2022 I dealt with an application by the Commissioner of Police for certain orders under the Court Suppression and Non-publication Act 2010, in relation to a witness referred to as Witness A. I delivered a judgment on 3 November 2022 making the orders that were sought.
After 4 pm on Friday 4 November, 2022, being the last working day before the commencement of the trial, the Crown filed a notice of motion seeking that the witness Mr LC give his evidence via Audio-Visual link from Western Australia.
On 7 November 2022, the trial proper commenced against the four accused and they each entered pleas of not guilty. A fifth accused, a MH, did not appear for his trial and a bench warrant issued for his arrest. The Crown did not seek that the trial against the remaining four accused be adjourned. Each Accused sought a judge alone trial, to which the Crown consented and I made an order that the Accused be tried by judge alone. Upon that occurring the Crown Prosecutor sought an adjournment until the Wednesday 9 November, 2022, to negotiate and prepare what I was told were agreed facts. I was told by the Crown Prosecutor that the Crown no longer proposed to call Witness A in the trial.
On 7 November 2022 I also commenced to hear the Crown's application to have the Complainant give evidence via AVL from Western Australia. The Crown wished to call evidence from the Complainant himself via AVL on that application, however, could not make contact with the Complainant that day. I listed the further hearing of that application for noon on 8 November 2022.
On 8 November 2022 I proceeded to deal with some short objections to certain evidence the Crown wanted to lead in the trial, before returning to the Crown's AVL application in relation to the Complainant which was opposed by all of the Accused. At T 129.44 I announced my decisions in relation to the evidentiary objections that had been raised by defence counsel and I announced that I refused the Crown's application that the Complainant give evidence via audio visual link. I indicated that in the course of the trial, I would publish reasons for those decisions. I then asked the Crown Prosecutor if he was in a position to open the Crown case and he responded: CROWN PROSECUTOR: Given in particular the result of the AVL application, I'm asking if your Honour would permit me to open the case tomorrow. For two reasons. One, I'd like to - obviously I have - I'm instructed but I'd like to be across the arrangements that are going to now need to be made for Mr LC to travel here, to ensure his attendance here as soon as possible, obviously. And related to that, the need for him to receive some legal advice. Secondly, as I indicated yesterday, I think - and perhaps it was this morning, I apologise for my memory - but my learned friends have indicated to me that there is a substantial amount of evidence that can be tendered by way of consent. There are some question marks regarding some of that evidence and the potential for additional evidence to be so tendered. I would like the opportunity if your Honour would give it to me to discuss those matters with them so that we - that is, the Crown - can be in a position tomorrow to open and then commence with some evidence, whether that be way of a tender bundle or whether that be through the calling of some witnesses. As I apprehend it, there won't be very many witnesses that will need to be called for cross-examination. But it may be subject to further discussions that the Crown will need to call some further witnesses besides those half a dozen or so. The idea of all of this of course is to shorten the proceedings as a whole without the need for, you know, dozens of witnesses coming and giving evidence and so forth.
I granted the Crown the adjournment that was sought to the following day, 9 November 2022. I noted that for reasons associated with one of the Accused's counsel it was not possible to sit in the trial after lunch on the 9th. There was no suggestion from the Crown Prosecutor that my reasons for refusing the application that the Complainant give evidence via AVL were required urgently.
When I came on the bench at 10 am on 9 November 2022, after informing me that the officer in charge of the case was unwell, the Crown Prosecutor said: "Secondly, your Honour, and of more importance, is the fact that the Crown needs some time to address an urgent issue that has arisen. I can't say what it is because it is privileged, but I can say that depending on the determination of that issue, it may be that the trial does not proceed. I am asking your Honour for the trial initially to stand for one hour to enable that issue to be explored and I hope resolved. If it is not resolved within the hour, then obviously I will advise your Honour and my learned friends of that come 11 o'clock and we'll see what position we're in. Whether it's the case that the Crown needs some further time or whether the trial can proceed in the meantime. I don't mean to be cryptic, your Honour, I apologise for not being able to be more frank about it, but it is an issue of privilege. But I can say that its determination will affect whether or not there is a trial at all, and I just need some time to deal with that issue before I go any further, which includes an opening address.
Again, at that point in time, there was no suggestion by the Crown Prosecutor that the Crown required my reasons for refusing the application that the Complainant give evidence via AVL. I acceded to the Crown's request that the matter stand and stood the matter down until 11.15 am. When I returned to the bench, for the first time the Crown Prosecutor indicated that he had been directed by "Director's Chambers" that the trial be stood over to the following day and that I provide reasons for why I had refused the Crown's application that the Complainant give evidence via AVL. I refused the Crown's application that the trial stand over to the following day and required the Crown Prosecutor to open the Crown's Case, which he proceeded to do, followed by brief openings on behalf of the Accused SE and RL. After that occurred the trial was adjourned to the following day at 11am, and I indicated that once I delivered the reasons why the AVL application had been refused, the trial would not be adjourned and was to proceed.
On 10 November 2022 when I came on the bench I published written reasons for my refusal of the Crown's application that the Complainant give evidence via AVL. After providing those reasons, the Crown asked for the matter to stand for 10 minutes as he was waiting on a fresh notice of motion and affidavit in support in relation to a further application that the Complainant give evidence via AVL as circumstances had changed.
I declined to further adjourn the trial and required the Crown to call evidence in the trial proper. Two short witnesses were called and the Crown then agitated its second application to have the Complainant called via AVL. That application proceeded by way of the calling of further evidence. Over the lunch break my associate was notified by the Crown that the Crown sought to withdraw the further application.
I granted the Crown leave to withdraw the application, and the Crown informed me that a decision had been made by the Crown not to seek to attempt to appeal my decision that the Complainant not give evidence via AVL. The Crown then said it would make an application for an arrest warrant for the Complainant. The Crown was not in a position to make that application, nor did the Crown have a further witness to call in the trial. I was informed (T193) that only 3 further witnesses, including the Complainant, would be called in the Crown case. The Crown sought a further adjournment. I granted the Crown the adjournment sought but informed the Crown Prosecutor that I would be unlikely to grant any further adjournments.
On Friday 11 November 2022 the Crown pursued its application that an arrest warrant issue for the Complainant. I granted the Crown's application but directed that the warrant was not to be executed before 5 pm on the day of issue and directed that if my associate received from the Crown on or before 5 pm, an email indicating that the Complainant was prepared to come to Sydney and was booked on a flight from Perth to Sydney such that he would be available to give evidence the following Monday at 10 am, I would revoke the warrant.
On 11 November the Crown then tendered in its case what was described as an agreed tender bundle. That bundle which was approximately 600 pages was marked exhibit 1 in the trial proper. The position of all of the Accused in relation to that bundle was that it was "provisionally relevant subject to what Mr LC will say, making it relevant; " (T216). My associate received an email from the Crown advising that the Complainant had agreed to come to Sydney and was booked on a relevant flight from Perth.
On Monday 14 November 2022 the Crown Prosecutor confirmed to me that the Complainant was available to give evidence but that there was "an issue concerning his legal advice". The issue about the position of the Complainant and his ability to give the evidence the Crown had indicated it wanted to lead from him had been raised with the Crown Prosecutor on a number of occasions prior to that point, by both counsel for the Accused and myself, as had the issue of the Complainant receiving appropriate independent legal advice. See for example: T.68-70; T127- 129; T.134.
After further discussion with the Crown Prosecutor and counsel for the Accused, I stood the issue of the position of the Complainant down to 2 pm that day at the Crown's request. At 2 pm the Crown Prosecutor informed me that the Crown had made contact with the Western Australian Police and was endeavouring to "obtain something in writing with respect to Mr LC' position"; T.234. I then dealt with a suppression application made by the Commissioner of Police in relation to the Complainant and I also dealt with an objection under s.18 of the Evidence Act made by the de-facto partner of the Accused RT. The issue of the Complainant giving evidence was adjourned to the following day.
On that day I was informed by the Crown Prosecutor's instructing solicitor that on the previous day the Complainant had been admitted to hospital and had just been discharged. I was also informed that the Crown Prosecutor himself was ill and unable to attend court. I proceeded to finalise my hearing of the notice of motion by the Commissioner of Police which I had commenced the previous day. On the Crown's application the trial was adjourned to 16 November 2022.
On 16 November the original Crown Prosecutor was still unwell and a new Crown Prosecutor appeared. I published my reasons in relation to the objection I heard the previous day under s.18 of the Evidence Act. The Crown Prosecutor indicated that the Crown proposed to continue with the trial, but requested time to conference the Complainant and I stood the trial down to 11.30 to allow that to occur.
The Complainant was then called to give evidence. I will set out below the extent of his evidence and the discourse between myself and the witness. LC, AFFIRMED(1.09PM) Q. What is your name? A. LC. Q. How old are you? A. 44. Q. If I could take you back to September 2020, what were you working as? A. Truck driver. Q. What company were you working for? A. Carliam Pty Ltd. Q. Is that spelt C-A-R-L-A-M? A. L-I-A-M. HIS HONOUR: I'm just wondering Madam Crown whether that's really as far as it can really go at this stage. Q. Can you just - don't answer this next question. I'll just listen to what the Crown is proposing to ask you. CROWN PROSECUTOR Q. If I could take you back to the end of September, September 2020, did you go on a trip? HIS HONOUR Q. Don't answer that question Mr LC, thank you. HIS HONOUR: I think I should say some things to the witness. Q. Mr LC, as I understand it, the prosecution want to ask you to give some evidence about three trips from Perth to Sydney, okay? I don't want to know whether you did or you didn't do them, okay, at this stage. I just want to tell you the situation you're in. On what I've been told, the prosecution wants to ask you about those trips, and it expects that you'll give evidence that you were carrying, on each trip, a substantial sum of cash secreted in a truck you were driving. I expect that the prosecutor's going to want to ask you about two earlier trips, rather than initially, apart from the trip where you were shot. Do you understand? A. Yep. Q. That, as I understand what the prosecutor wants to do, is ask you about those earlier trips, and ask you to give evidence about the taking of the money from Perth to New South Wales, and as I understand it, collecting drugs and taking them back to Perth successfully. Now I don't want you to say, "Yes I did that" or "No", I'm just telling you what I expect the prosecutor wants to ask you, all right? I then expect that the prosecutor also wants to ask you about the trip that the prosecution say you made, which is the subject of this trial, the trip in late September 2020 when, as I understand it, you were attacked and shot. Now what I need to say to you is a number of things, and I want you to listen carefully. First of all, I understand, but I don't want to know what the advice is, but I just want to be satisfied that you have received some advice about the situation you're in in relation to the giving of this evidence. You've received some legal advice about that, is that right? A. Yes. Q. All right. In my view, you have reasonable grounds to object to giving evidence about those matters, the two previous trips, the trip where it is said that you were shot, because if you give that evidence, it will tend to incriminate you in relation to the commission of offences against an Australian law. So you can object to giving that evidence. Do you object to giving that evidence? A. Yes I do. HIS HONOUR: I'm of the view that the witness has reasonable grounds to object. Q. Now, there's some other things I need to now say to you. Having objected to giving the evidence, if you're willing to give the evidence, then I will provide you with a certificate under what's called section 128 of the New South Wales Evidence Act and that certificate would protect you in New South Wales legal proceedings. That is, legal proceedings, criminal proceedings, or other proceedings, brought in this State, from the use of that evidence against you in those legal proceedings. But only in this State. Do you understand that? A. Yes. Q. That certificate would not protect you in any legal proceedings that might be brought as a consequence of your evidence in Western Australia or South Australia. Do you understand what I've just said to you? A. Yes. Q. Having been told that I would give you the certificate, but the limitations of the certificate - that is, that it would only protect you in New South Wales legal proceedings, and only if you tell the truth - do you still object to giving the evidence? A. Yes. Q. I now have to determine whether it's in the interests of justice that I require you to give the evidence. So I have a power that even though you still object, I have to weigh up the interests of justice in determining whether or not I require you to give the evidence, and only if I require you to give the evidence will you be required to give it. Do you think you understand that? A. Yes.
After hearing submissions from the Crown and some assistance as to the applicable law from defence counsel, I stood the trial over to the following day to consider whether it was in the interests of justice to require the witness to give the evidence the Crown sought to adduce from him. On Thursday 17 November 2022 I ruled that it was not in the interests of justice that I require the witness to give the evidence the Crown sought to adduce from him and published written reasons for that ruling. The Crown did not seek to attempt to appeal that decision.
The Crown then made an application that I "vacate the hearing", (T.302), which I understood to be an application that I in effect abort the trial, effectively to allow the Crown to approach the Director of Public Prosecutions in Western Australia and South Australia for indemnities for Mr LC. I refused that application that day. The Crown made no attempt to appeal that decision. The Crown then sought an adjournment to obtain instructions as to the conduct of the proceedings, (T311). I allowed the Crown until 3.30 pm. When the proceedings re-commenced the Crown Prosecutor advised the Court that the Director of Public Prosecutions had directed that there be no further proceedings in respect of the four accused.
I then heard argument as to the effect of the Director's direction that there be no further proceedings against the four accused and whether I had any power to require the Crown to conduct the trial to verdict.

The Crown's submissions

The Crown argued that upon the Court being informed by the Crown Prosecutor of the Director's direction, the Court had no jurisdiction to conduct the trial to verdict. That there was no abuse of the Court's process occurring that could be stayed, it being accepted that this Court had a power to stay proceedings to prevent an abuse of process.
The Crown drew attention to s.7(2) of the Director of Public Prosecutions Act 1986 (the DPP Act) which provides: The Director has the same functions as the Attorney General in relation to - (a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against a person who has been committed for trial or sentence.
The Crown submitted that the authorities in this State make clear that the function of the DPP contained in s.7(2)(b) of the DPP Act constitutes the function previously exercised by the Attorney General being that of the entry of a nolle prosequi. The Crown in that regard relied upon the decisions in R v Howard (1992) 29 NSWLR 242; R v GKA (1998) 99 A Crim R 491; R v Janceski [2005] NSWCCA 281 and Beckett v NSW [2013] HCA 17.
The Crown submitted that a nolle prosequi at common law could be entered at any time before verdict and need not be attended by any particular formality but must be communicated to the Court.
The Crown further submitted that once the Director's direction that there be no further proceedings was communicated to the Court, the Court had no further power to continue the proceedings except to discharge the Accused.

The Accused's' Submissions

Counsel for the Accused SE submitted that the decision in R v GKA relied upon by the Crown was factually distinguishable from the position here. It was submitted that in GKA while the Accused had been arraigned and had entered pleas of not guilty, he had not been arraigned in the presence of the jury, (it not being a judge alone trial), when the Court was informed that the "matter had been no billed". It was also submitted that GKA "concerned the effect of the entry of a nolle, not the power of a Court to refuse such an entry, and the circumstances in which the Court should refuse the entry of a nolle."
It was submitted on behalf of the Accused that the decision in GKA is of little assistance here as it concerned the effect of the entry of a nolle prosequi and not the power of a court to "refuse such an entry, and the circumstances in which the Court should refuse the entry of a nolle".
It was further submitted on behalf of the Accused that "the Court should refuse the Crown's entry of a nolle on the basis that it may amount to an abuse". It was submitted that given the procedural history of the trial, and the state of the evidence, the Court would conclude that the Crown case would fail if it proceeded to verdict and that in essence, the Crown directed no further proceedings in order to deny the Accused the protection that a verdict of acquittal would provide the Accused. The Accused argued that pursuant to the principles discussed in Jago v The District Court of New South Wales and Ors. (1989)168 CLR 23 this Court could act to prevent such an alleged abuse of the Court's processes occurring. The Accused in particular relied upon certain interstate decisions and the decision of Toner DCJ in R v RP [2016] NSWDC 10.
Counsel for the Accused RL also relied on certain passages in Barber v R [2016] NSWCCA125 at [29] and [30]. That decision concerned the discharge of a jury by a trial judge and did not concern the Director of Public Prosecutions directing that there be no further proceedings during the course of a trial. Given the context of that decision, I considered it had little relevance to the decision I was called upon to make in relation to the trial.
Counsel for JW and RT essentially adopted the submissions made on behalf of the co-accused.

Consideration of the issues raised in the submissions

I considered in arriving at the conclusion that the trial of the Accused came to an end, that I was bound by the decision in R v GKA (1997-1998) 99 A Crim R 491, a decision which, in my opinion, is consistent with observations made by the High Court in Beckett v New South Wales [2013] 248 CLR 432.
I propose, before considering those two cases further, to make some observations about the exercise of the power to discontinue proceedings upon indictment, which prior to the commencement of the DPP Act, was referred to as a power to direct a nolle prosequi and was a power which the Attorney General alone could exercise. The observations I will make do not appear to be contentious. I note at the outset that the words nolle prosequi essentially mean, "not willing to proceed"; Oxford Australian Law Dictionary 3rd Edition.
At common law a nolle prosequi could be entered at any time before verdict, but only on the direction of the Attorney General; see The Queen v Philip Lorkin 1995 WASC 543 Malcolm CJ at p.13, (I note Kennedy J agreed with Malcolm J although Murray J dissented in the ultimate result in the case). At common law the power of the Attorney General to enter a nolle prosequi has been held not to be subject to judicial review; See Lorkin at p.13 and Barton v The Queen (1980) 147 CLR 75.
At common law, the entry of a nolle prosequi terminates proceedings on indictment even though it does not prevent new proceedings being brought on a new indictment; see Beckett at [43] and [61].
It appears, consistent with the experience of this Court, that modern Australian criminal law practice in relation to a nolle prosequi has become informal; see Kirby J's observations in DPP v B (1998) 155 ALR 539 at [59]. A number of the interstate cases to which I was referred suggest that in Western Australia and Queensland there has been a more formal procedure taken. In Queensland it appears that at least in the recent past, the practice was that the trial judge was asked by the Crown Prosecutor to return the indictment so that the Crown Prosecutor can endorse on the indictment the information that the Crown declines to proceed further with the indictment. In Western Australia it appears that at least in the recent past, counsel for the Crown tenderered to the trial judge a certificate under the hand of a qualified person indicating that the Crown declined to proceed further with the prosecution.
This Court's experience is that in this State there is no formality involved in that the Court is simply informed by the Crown Prosecutor that the Director of Public Prosecutions has directed that there be no further proceedings.
I now propose to consider the Court of Criminal Appeal's decision in R v GKA in detail. In GKA, on 10 August 1995 the Accused had been arraigned on an indictment containing a number of counts alleging sexual offences. The arraignment occurred not in the presence of the jury and the Accused entered pleas of not guilty. More than two years later on 11 November 1997, the DPP ordered that there be no further proceedings taken against the Accused on those charges. On 17 November 1997, being the date fixed for the Accused's trial, the Crown Prosecutor appeared before a judge of this Court and informed him the "matter's (sic) had been no billed". Counsel for the Accused contended that the only course available to the judge was to empanel a jury and upon the Crown offering no evidence, direct a verdict of acquittal. The judge took the view that the Accused having been arraigned, the indictment was before the Court and that the proper process was for a jury to be empanelled and for the Crown to take whatever course it chose. A jury was empanelled, the Accused was arraigned before the jury and the judge directed verdicts of acquittal and the Accused was discharged.
Pursuant to s.5A(2) of what is referred to in the judgment as the Crimes Act, the DPP submitted the following question of law to the Court of Criminal Appeal: Whether or not, a direction having been given and remaining in effect pursuant to s.7(2)(b) of the DPP Act 1986 that no further proceedings be taken against an accused on a bill of indictment found under the Act, a court may nevertheless proceed to try the accused upon that indictment.
Cole JA, with whom Gleeson CJ and Barr J agreed, after setting out in full s.7 of the DPP Act said: Although the Act does not specifically say so, as the Director has power to exercise the same functions as the Attorney-General, the consequences of his exercise of those powers must be the same as the consequence of the Attorney-General exercising those powers. Section 27 DPP Act preserves the Attorney-General's distinct power to exercise each of the functions referred to in s7(2)(a)(b)(c) which I have quoted. Section 28 provides that the Director may not exercise a function contrary to the manner in which the Attorney-General has exercised that function. That preserves the Director's power to exercise a function under s7(2) where the Attorney-General has not done so.
His Honour also made the following observations after setting out some general principles concerning the concept of nolle prosequi derived from Thomas J's decision in R v Jell, ex parte Attorney-General [1991] 1 Qd R 48: Section 30 Director of Public Prosecutions Act 1986 provides: "Nothing in this Act affects any functions of the Attorney-General that the Attorney-General has apart from this Act." That may preserve the Attorney's function, and implicitly his power, to require entry of a nolle prosequi at any point of time, quite apart from the statutory consequences of s27. The power to direct a nolle prosequi is the same as one power referred to in s7(a) and 27(a) Director of Public Prosecutions Act. A determination of a "no bill of indictment" would not prevent the bringing of a further indictment. The substance of the power contemplated by s7(2)(b) and s27(b) is wider than a nolle prosequi because it constitutes a direction that no further proceedings be taken against a person who has been committed for trial or sentence. Nonetheless, the power conferred by s7(2)(b) includes a power to require entry of a nolle prosequi. It is not necessary in this proceeding to further define the scope of the power conferred by s7(2)(b).
Applying the previous decision in R v Howard & Ors His Honour held: once the Director of Public Prosecutions exercised the power under s7(2)(b) and communicated that to the Court, the court was deprived of a power to further proceed upon the current indictment. It follows that the accused person was not entitled to have a jury empanelled or a directed verdict of not guilty.
In Howard a differently constituted Court of Criminal Appeal determined: When the language of s7(2)(b) is considered in the context of the whole section, and is compared with that of s7(2)(a), it can be seen that it is sufficiently wide to cover the function of entering a nolle prosequi upon an indictment that has already been prescribed. It is not limited to that function, but that is included. It would also include giving such a direction for the purpose of clearing the way for proceedings on a different charge. Accordingly, we accept the submission that the Director had power, in the present case, to direct that no further proceedings be taken against Morgan upon the indictment presented on 2 October 1990, and that such a direction would have the same effect as the entering by the Attorney General of a nolle prosequi.
In my opinion the decision in GKA could not be clearer, once the Director of Public Prosecutions exercised the power under s7(2)(b) and communicated that to the Court, the Court was deprived of a power to further proceed upon the current indictment. Once that occurred in this trial, I was deprived of any power to further proceed on the indictment that was before me.
The decision in GKA, in so far as the jurisdiction of this Court is concerned, is clearly binding on me, although I accept the facts in that case did not involve a trial where evidence had commenced before a tribunal of fact as at the time the DPP's direction was made. I do not consider that factual difference detracts in anyway from the application of the relevant principles.
I also consider that that approach is consistent with the observations made in Beckett at [43], [45] and [61] [1] .
The plurality in Beckett at [45], in relation to the DPP Act, stated: "The power under s 7(2)(b) is in substance and effect the same as the power to enter a nolle prosequi".
In relation to the power to enter a nolle prosequi their Honours stated at [43]: The preferable view, which accords with practice, is that stated in Allen: the entry of a nolle prosequi brings proceedings on the indictment to an end without barring a subsequent prosecution on a fresh indictment.
Gageler J in Beckett at [61] similarly observed: At common law, the entry of a nolle prosequi terminates proceedings on an indictment even though it does not prevent new proceedings being brought on a new indictment.
The approach taken in GKA is, in my opinion, consistent with the approach the Courts have long taken to the concept of nolle prosequi, being that a nolle prosequi could be entered at any time prior to verdict, that the decision to direct a nolle prosequi was unreviewable in the courts and that upon a court being informed that a nolle prosequi had been directed, the proceedings on the relevant indictment were at any end.
If the Accused's argument was accepted it would, in my opinion, effectively mean that this Court possessed the power to order that the Crown continue with its case, even though the Director of Public Prosecutions had directed that there was to be no further proceedings. Leaving aside the somewhat untenable position that would place the Crown Prosecutor in, it would amount to asserting that an Accused person has a right to be tried to verdict. There is no such right, as Deane J acknowledged in Jago v District Court (NSW) 1989 168 CLR 23 at [4] when His Honour said: "no person has the right to insist upon being prosecuted or tried by the State".
In my opinion, the application of the principles derived from GKA in the manner I have, does not deprive this Court of the power to prevent the Court's processes from being used to perpetrate an abuse. Once the Court is informed that the DPP has directed that there is to be no further proceedings, there are no proceedings on foot in the Court, hence it cannot be said, in my opinion, that the Court's processes are from that point being utilised. Even on the Accused's argument, there is no abuse of the Court's process until the DPP's decision has been communicated to the Court. From that point on, in my opinion, as there is no proceeding before the Court, there is no abuse of process for the Court to prevent. The view I have arrived at on this issue is consistent with the dissenting opinion of Murray J in Lorkin.
However, should the Crown seek to present a further indictment against the Accused arising out of the same factual circumstances that were the subject of the original trial, the Court then has the power to stay proceedings on that indictment should the Court be of the opinion those proceedings are an abuse of its processes; see Jago.

Other cases referred to in submissions

I propose to say something briefly about the interstate authorities I was referred to in argument, the judgment of Kirby J in DPP v B and the decision of Toner DCJ in R v RP. My discussion of those decisions will be brief because I am not bound by them but am bound by the decision in GKA as I indicated earlier. I do not intend any disrespect to those judgments or the submissions advanced based upon them in dealing with them in a short hand manner.
Many of the interstate decisions are collected and discussed in Question of Law Reserved on Acquittal (No.3 of 1995) 66 SASR 450. Debelle J, with whom the other members of the Court essentially agreed, noted, having reviewed relevant decisions, (although none appear to be from NSW): There is, therefore, a substantial body of judicial opinion in this country to the effect that, in the exercise of the inherent jurisdiction to prevent abuse of process, the court may in exceptional cases refuse to accept the entry of a nolle prosequi. The cases in which it will do so have been characterised as extreme, exceptional or rare. The choice of epithet should not obscure the fact that the jurisdiction is one which courts will be slow to exercise.
Kirby J in DPP v B in essence adopted the approach summarised by Debelle J in his judgment in Question of Law Reserved on Acquittal (No.3 of 1995) and expressed the opinion at [65] that: ….a number of competing arguments support the proposition that, in rare and exceptional circumstances, an Australian court is empowered to refuse to accept the entry of a nolle prosequi. At least it is so empowered where tendered by a statutory office-holder such as the appellant, and where the court is convinced that, if entered, the nolle prosequi will be, or will be the first step in, an abuse of process of the court or an unacceptable infringement of the accused's right to fair trial.
In my opinion, it is clear that His Honour's conclusion was based on his opinion as to the position of the DPP being a creation of statute and that legally the DPP was in a different position to that of the Attorney General.
Earlier in His Honour's judgment [63] His Honour stated: In these circumstances, given that the power relied upon in these proceedings was a statutory one, afforded to the appellant subject to conditions established by the DPP Act [129], I would not be prepared to import into the appellant's statutory entitlement all of the hitherto unreviewable prerogative rights of the Crown formerly enjoyed by the Attorney-General. In particular, I would not accept that the incantation by the prosecutor of the words "the Crown enters a nolle prosequi" placed that decision, made under the DPP Act, beyond judicial scrutiny as to its lawfulness or beyond a judicial response necessary to defend the court from abuse of process or to ensure a fair trial.
The other members of the High Court in B, did not address the issues that Kirby J did in his judgment, and His Honour's comments are clearly obiter. Perhaps more importantly, they do not sit with the view expressed by the NSW Court of Criminal Appeal about the position of the NSW DPP and his/her functions and powers compared to those of the Attorney General prior to the enactment of the DPP Act which I set out earlier. They are also not consistent with the view of the plurality on that issue in Beckett which I also set out earlier. [I also note that DPP v B involved the South Australian DPP legislation which was not in identical terms to the NSW, although that does not appear to be central to His Honour's opinions].
In relation to Toner DCJ's decision in R v BP, I acknowledge the force of His Honour's observations about the dangers associated in allowing the Crown to "no bill" a case at a late stage of a trial, where it concedes it cannot succeed; see His Honour's comments at [37] to [40]. I note that in that case the Crown conceded to His Honour that once the Crown closed its case, given the state of the evidence, the proper course was to direct verdicts of not guilty. No such concession was made by the Crown in the current case, but I do not consider that such a concession can impact upon the nature of this Court's powers.
Toner DCJ at [19] considered that the exercise of the power in s.7(2) of the DPP Act was "subject to the power of this Court to control its processes as identified in Jago". As His Honour noted when reviewing the interstate authorities at [20], "The question is not without controversy". Toner DCJ distinguished GKA on a factual basis; see [30].
With considerable hesitation, given the respect I have for any judgment of the late Judge Toner, I have reached a different conclusion as to this Court's powers where the DPP has made a direction that there are to be no further proceedings on an indictment during the course of a trial that has commenced before a tribunal of fact.

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.

Endnote

See also Price J in Aouad v R; El-Zayet v R [2013] NSWSC 760 at [27]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2023

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