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The arraignment and fixing a date for the retrial of the accused be stayed pending receipt by the Director of Prosecutions [DPP] of advice from an independent, appropriately qualified source that such retrial is justified on the basis of first an examination of the previous trial transcript having appropriate regard to the relevant evidence, its probative weight, and its sufficiency and thereafter, as and if appropriate, to the published DPP guidelines being 3.17 and following respecting a decision by the DPP as to a retrial.

5. The applicant relies upon the affidavit of Mr Hugh Selby affirmed on 4 February 2020. The following summary of events, after the discharge of the jury, is taken from that affidavit.

6. On 17 December 2019, Mr Selby (who had appeared as counsel for the applicant at the trial) wrote to the DPP. In that correspondence, Mr Selby noted that the judge who had presided at the trial had “…made it clear that coming back for another trial was not a good plan.” Mr Selby pointed to potential difficulties for the prosecution in any retrial.

7. On 18 December 2019, the DPP responded by referring Mr Selby to the Prosecution Policy of the ACT (Prosecution Policy), and in particular to ss 3.17 and 3.18. The DPP noted that prosecutorial decisions are not susceptible to judicial review (referring to Maxwell v R (1996) 184 CLR 501 (Maxwell)). The DPP said that neither the comments of the trial judge, nor those of Mr Selby himself, were of any particular assistance in applying the Prosecution Policy. The DPP said that assertions as to witness credibility, or additional relevant evidence, would only be of assistance if they are both substantiated and address the relevant Prosecution Policy. This response from the DPP concluded by stating that the representations made on 17 December 2019 by Mr Selby were not accepted. However, the DPP invited a further representation addressing ss 3.17 and 3.18 of the Prosecution Policy, including any supporting evidence.

8. On 26 December 2019, Mr Selby took up that invitation. Mr Selby submitted that having regard to the transcript of the trial, and his attached submissions, continuation of the prosecution would be an embarrassment. Mr Selby’s submissions included details of matters adverse to the credit of FI (the complainant). Mr Selby also made submissions as to the statement of the investigating police officer. Mr Selby’s submission raises a doubt on the admissibility of the applicant’s recorded interview with police. Mr Selby made the point that the information supporting the challenge to the recorded interview had only become available to Mr Selby after the trial. Mr Selby also criticised the fact that a record of a pretext telephone call was played to the jury twice, when it was not necessary for that to have been done. Finally, Mr Selby expressed dismay that neither the police nor the DPP’s office had spoken to FI’s treating psychiatrist about delusions and confabulations. Mr Selby requested prompt consideration of his representation.

9. The response from the DPP in evidence is not dated. It must have been sent some time on 26 or 27 December 2019. In substance, it addressed the matters set out s 3.17 of the Policy as follows:

The reason the trial ended, that is, whether the jury was unable to agree or other reason; I note the jury were unable to reach a unanimous verdict on counts 1,2, 6-8 representing all sexual intercourse without consent charges, finding the accused not guilty of the violence charges alone. Whether or not another jury would be in any better or worse position to reach a verdict; Implied in the verdict is that at least some jurors were satisfied beyond reasonable doubt of the guilt of the accused, albeit not all of them. Applying this test, another jury would neither be in a better nor worse position, so this test appears at best neutral other than to note that some of the jurors were satisfied beyond reasonable doubt. The seriousness of the alleged offence; The alleged offences are amongst the most serious personal offences in the criminal calendar. The cost to the community and the cost to the accused; Given the accused was represented pro bono on the first occasion, there appears to have been little or no cost to the accused to date. You have indicated the second trial will also be pro-bono, however even if this were not the case, it would effectively be the first trial funded by the accused. I consider the cost of retrial to the community to be no greater or lesser than a normal trial. Whether the accused has spent time in custody; It could not be said that the accused has spent significant if any time in custody, such that any sentence imposed by a finding of guilt would be effectively served. The views of the victim. It is noted the complainants evidence is recorded minimising further harm. That aside, the complainant desires the matter to proceed.

10. On 27 December 2019, Mr Selby wrote further to the DPP. Mr Selby expressed disappointment at the decision to continue with the prosecution. He argued that the DPP was required to consider the matters in ss 1.5, 2.4, 2.6 and 2.7 of the Prosecution Policy. He asserted that the decision was made here without either a review of the evidence or consideration of the issues he had raised. Indeed, Mr Selby asserted that the matter was the subject of a “pre-judgement”. Mr Selby argued that the DPP must have contacted FI to obtain her views before receiving his representation dated 26 December 2019. Mr Selby suggested that such a course fettered the decision-making to be exercised in the circumstances. Mr Selby suggested that the only proper course now open to the DPP was to send the trial transcript, and the correspondence about a retrial to a senior, well regarded, criminal trial advocate interstate to obtain advice as to whether the prosecution should continue.

11. The DPP responded briefly to the effect that the matter was closed.

Submissions of the Applicant

12. The applicant submitted that the DPP was required to evaluate the evidence relevant to the charges against him. That required a review of the trial evidence. Mr Selby submitted that the DPP frankly refused to conduct such a review. Moreover, Mr Selby said that the DPP fettered his discretion by prematurely seeking the views of FI as to a retrial. In order to avoid bringing the administration of justice into disrepute, Mr Selby submitted that the Court should stay the prosecution until the DPP obtains independent advice as to whether a retrial is appropriate.

13. Reference was made by Mr Selby to the decisions in Maxwell and Barton v R (1980) 147 CLR 75 (Barton). Mr Selby said that the proposition that prosecutorial decisions are not amenable to Court supervision is qualified where there is a need to prevent an abuse of process or to ensure a fair trial.

14. The applicant relied particularly on the decision of the High Court of Australia in Strickland v Commonwealth DPP [2018] HCA 53 (Strickland). In Strickland, the conclusion that the Australian Crime Commission lead investigator had acted unlawfully in providing information to the Australian Federal Police and the Commonwealth DPP and the finding that those actions caused the appellants irretrievable forensic disadvantage in defending themselves, resulted in the majority upholding the primary judge’s decision to permanently stay the prosecutions.

15. The applicant relied on a number of extracts from the judgments in Strickland to argue that the continued prosecution of this case would “offend the integrity and functions of the Court” and bring the administration of justice into disrepute. By reference to the analysis of Edelman J, Mr Selby said that pursuing a retrial would amount to an abuse of process. The underlying reason for this is the asserted failure of the DPP to have fully examined the evidence, including the evidence in the trial in December 2019, in order to properly discharge his prosecutorial function. It was submitted that this inference should be drawn from the contents of the communications between the DPP and Mr Selby in December 2019. No evidence was tendered to counter that inference. Mr Selby relied on the principles in Jones v Dunkel (1959) 101 CLR 298 to support his submission.

16. In response to a question from the Bench, Mr Selby said that the applicant was not seeking to have an independent person decide whether the prosecution should continue. He was simply seeking to ensure that the DPP obtained independent advice before making that decision. In seeking that relief, the applicant was concerned to ensure that the proper functioning of the Court was not abused. The applicant was not attempting to interfere with the exercise of the prosecutorial discretion.

Submissions of the Respondent

17. Counsel for the respondent, Ms Janackovic, submitted that the application should be dismissed. The respondent argued that the authority to make decisions in relation to the prosecution of criminal proceedings was vested in the DPP and that those decisions are not susceptible to judicial review; Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 (Jago) per Gaudron J at 77; Maxwell per Brennan J at 38 and per Gaudron and Gummow JJ at 534. Ms Janackovic relied on a series of subsequent High Court decisions which approved of the principles stated in Jago and Maxwell.

18. That is not to say that the respondent argued that the Court was prevented from staying proceedings in circumstances where the Court was satisfied that there was an abuse of its process. On the contrary, the respondent accepted that, as stated by Dawson and McHugh JJ in Maxwell:

… 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.

19. Ms Janackovic highlighted the difference between the decision to continue the prosecution and the continuation of the prosecution. It was submitted that the former relates only to the decision-making process of the DPP, whereas the latter related to the integrity of the process of the Court. This distinction was said to be clearly exemplified in the matter of R v Joyce [2003] NSWCCA 84 (Joyce), and referred to by Gibbs ACJ and Mason J in Barton at 95-6.

20. The respondent submitted that the power to stay this prosecution would only be engaged if the applicant could demonstrate that the continuation of the matter would constitute an abuse of the Court’s process which would result in unfairness to the applicant. Examples of matters where a conditional stay of a prosecution was ordered were:

(1) Where an accused facing serious criminal charges could not obtain legal representation due to lack of funding;

(2) Where the Crown had failed to provide proper particularisation of charges; and,

(3) Where the Crown was in breach of the requirement for full disclosure such that the accused was unable to obtain a fair trial.

21. It was submitted by Ms Janackovic that contrary to the above examples, the applicant has not pointed to any reason as to why he would not receive a fair retrial. Furthermore, the applicant has not shown that the retrial was doomed to fail. The fact that the jury was unable to come to a unanimous decision in relation to the five counts itself demonstrates that the charges have substance.

22. In relation to the decision in Strickland, Ms Janackovic submitted that the decision of Kiefel CJ, Bell and Nettle JJ to order the stay of proceedings necessarily relied on the finding that the unlawful actions of the lead investigator had caused an “incurable” prejudice to the accused’s right to a fair trial. Edelman J saw the unlawful conduct of the lead investigator as requiring either the complete destruction of the evidence thus obtained and the quarantining of each investigator and prosecutor engaged in the matter to that stage, or the granting of a permanent stay.

23. On the other hand, each of Gageler and Gordon JJ, in dissent, concluded that a permanent stay was not required. They separately concluded that remedial procedural steps could be taken to ensure that the accused was given a fair trial.

24. The circumstances of Strickland were, it was submitted, fundamentally distinguishable from those here.

25. Ms Janackovic submitted that no basis was demonstrated for a conditional stay and the application should be dismissed.

Consideration

26. It is not controversial that the function of instituting and conducting the prosecution of indictable offences is vested in the DPP and his/her delegates. The Director of Public Prosecutions Act 1990 (ACT) relevantly provides:

6 Functions (1) The director has the following functions: (a) in relation to indictable offences: (i) instituting prosecutions on indictment or summarily; (ii) conducting prosecutions on indictment or summarily, whether instituted by the director or not; (b) in relation to the commitment of persons for trial in respect of indictable offences: (i) instituting proceedings; (ii) conducting proceedings, whether instituted by the director or not; ... 17 Delegation by director The director may delegate the director’s functions to a member of staff of the office.

27. In relation to a decision to terminate a prosecution s 7 provides:

7 Prosecutions on indictment … (6) Where a person is under commitment or has been indicted for an indictable offence, the Attorney-General or the director may decline to proceed further in the prosecution of the offence and may cause the prosecution to be brought to an end. …

28. The DPP has published a policy in relation to prosecution decisions, namely the Prosecution Policy. That document does not have legislative effect. A copy of it was tendered by the applicant. It became Exhibit “A1”. The parties referred to the following provisions of the Prosecution Policy:

1.5 The purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a court what the prosecution considers to be credible evidence relevant to what is alleged to be a crime. Accordingly, prosecutors have strikingly been called “ministers of justice”. A prosecutor represents the community: as Deane J has observed, he or she must “act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one”. 2.4 The decision to prosecute can be understood as a two-stage process. First, does the evidence offer reasonable prospects of conviction? If so, is it in the public interest to proceed with a prosecution? 2.5 The initial consideration will be the adequacy of the evidence. A prosecution should not be instituted or continued unless there is reliable evidence, duly admissible in a court of law, that a criminal offence has been committed by the person accused. This consideration is not confined to a technical appraisal of whether the evidence is sufficient to constitute a prima facie case. The evidence must provide reasonable prospects of a conviction. If it is not of sufficient strength any prosecution would be unfair to the accused and a waste of public funds. 2.6 The decision as to whether there is a reasonable prospect of a conviction requires an evaluation of how strong the case is likely to be when presented in Court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact. The prosecutor should also have regard to any lines of defence which are plainly open to or have been indicated by the accused, and any other factors which are properly to be taken into account and could affect the likelihood of a conviction. 2.7 The factors which need to be considered will depend upon the circumstances of each individual case. Without purporting to be exhaustive they may include the following: (a) Are the witnesses available and competent to give evidence? (b) Do they appear to be honest and reliable? (c) Do any appear to be exaggerating, defective in memory, unfavourable or friendly towards the accused, or otherwise unreliable? (d) Do any have a motive for being less than candid? (e) Are there any matters which may properly form the basis for an attack upon the credibility of a witness? (f) What impressions are the witnesses likely to make in court, and how is each likely to cope with cross-examination? (g) If there is any conflict between witnesses, does it go beyond what might be expected; does it give rise to any suspicion that one or both versions may have been concocted; or conversely are the versions so identical that collusion should be suspected? (i) Are there any grounds for believing that relevant evidence is likely to be excluded as legally inadmissible or as a result of some recognised judicial discretion? (j) Where the case is largely dependent upon admissions made by the accused, are there grounds for suspecting that they may be unreliable given the surrounding circumstances? (k) If identity is likely to be an issue, is the evidence that it was the accused who committed the offence sufficiently cogent and reliable? (l) Where several accused are to be tried together, is there sufficient evidence to prove the case against each of them? Retrials 3.17 Where a trial has ended without a verdict, prompt consideration should be given to whether or not a retrial is required. Factors to be considered include: (a) the reason the trial ended, that is, whether the jury was unable to agree or other reason; (b) whether or not another jury would be in any better or worse position to reach a verdict; (c) the seriousness of the alleged offence; (d) the cost to the community; (e) the cost to the accused; (f) whether the accused has spent time in custody; (g) the views of the victim. 3.18 Where two juries have been unable to agree upon a verdict, a third or additional trial will be directed only in exceptional circumstances.

29. The applicant asserts that the Court should infer from the communications between Mr Selby and the DPP that the latter, in effect, refused to apply ss 2.4 to 2.7 of his own Prosecution Policy in deciding to proceed with the retrial. I will return to that factual issue later in this judgment

30. The concept of abuse of process is not fixed. The authorities are replete with comments to the effect that the Courts should not define the limits of what might amount to abuse (see for example per Gaudron J in Jago at 75). Although Mr Selby was not able to refer to a case precisely on point, it is possible to hypothesise a case in which a DPP decided to prosecute a charge without having regard to the obligation to consider the relevant criteria set out broadly in s 2.4 of the Prosecution Policy. It may well be arguable that in such a case the conduct of the DPP was sufficiently oppressive to amount to an abuse of process, or an affront to the integrity of the Court.

31. In such a (hypothetical) case, assuming the evidence was available to prove such an extreme dereliction of duty, it seems to me that the Court would be entitled to examine the conduct of the DPP, even though it might relate to the making of a prosecutorial decision. It would be necessary for the Court to examine the conduct of the DPP to assess whether there was a potential for the Court process to be abused by embarking on a trial (or retrial) in those circumstances. So much might be understood by the reservation expressed by the following comments of Dawson and McHugh JJ in Maxwell at 514 (referring to the decision in R v Brown (1989) 17 NSWLR 472):

…The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion is undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority. The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.

32. However, even if such an unusual course of conduct could be established in relation to a decision of a DPP to prosecute it would, as demonstrated by the analyses of all of the separate reasons for decision in Strickland, necessarily require a consideration of the practical effect of the decision on the accused person. In the example postulated above, if on true analysis there was a reasonable prospect of securing a conviction, and it was in the public interest to proceed, could it be argued that the prosecution would be oppressive? I do not believe so.

33. In any event, I do not consider that the circumstances of this case demonstrate a dereliction of his duty on the part of the DPP which would suggest the possibility of an abuse of process. I am not prepared to draw the inference as argued by the applicant. It is clear that the DPP (probably through those of his staff responsible for conducting the prosecution) turned his mind to the criteria stated in s 3.17 of the Prosecution Policy. It seems to me that those criteria necessarily involve the more fundamental concepts stated earlier in the Prosecution Policy. Once that point is reached, any further attempt to analyse the reasons why the DPP decided to proceed with the retrial would be to stray into the area of judicial review of the DPP’s prosecutorial decision.

34. In Joyce, Dr Joyce had been charged with two counts of dangerous driving causing grievous bodily harm. The jury was unable to agree upon a verdict. The NSW DPP rejected Dr Joyce’s application to discontinue the proceedings and decided to embark on a retrial. Dr Joyce’s application for a permanent stay of proceedings was dismissed in the District Court of NSW. He applied for leave to appeal to the NSW Court of Criminal Appeals.

35. The basis for the stay application at first instance was summarised in the judgment of Hidden J (Dunford and Simpson JJ agreeing) as follows: [11]… It was said that that retrial would be an abuse of process because the Director had failed “properly and fairly” to follow his own prosecution guideline in arriving at that decision. The relevant part of that guideline is as follows: Where a trial has ended without verdict consideration should be given to whether or not a retrial is required. Factors to be considered include: • whether or not the jury was unable to agree (or the trial ended for other reasons); • whether or not another jury would be in any better or worse position to reach a verdict; • the cost of a retrial to the community and to the accused.

36. The course of the argument in, and the decision of, the District Court was then summarised as follows:

[13] Argument for the applicant was directed to the two matters in the prosecution guideline bearing upon the decision to proceed to retrial: whether or not another jury would be in a better or worse position to reach a verdict, and the cost of the retrial to the community and to the applicant. Counsel for the applicant relied upon a detailed analysis of evidence in the first trial to be found in the application to the Director to discontinue the proceedings, which was before his Honour. [14] Put shortly, it was argued that the preponderance of the expert evidence favoured the proposition that the applicant’s driving was involuntary. Reliance was placed upon aspects of the applicant’s behaviour after the accident which were said to be consistent with his being in a dissociative state, and it was put that his course of driving itself was explicable by that condition, rather than by fatigue. Given the burden of proof borne by the Crown upon the issue, it was argued that a finding of guilt was unlikely and, in any event, would not withstand appellate challenge. It was also argued that there was a real prospect that the jury at a second trial would again be unable to agree upon a verdict, given that the central issue of sane or insane automatism was one of some complexity. [15] The application was supported by an affidavit of the applicant’s solicitor. Among other things, that affidavit referred in general terms to the costs which the applicant had already incurred and was likely to face in the event of a retrial, which was estimated to take some weeks. No amounts were specified and there was no evidence of the applicant’s financial position. In the course of argument his Honour summarily rejected an argument based on the likely cost to the community and the applicant of a retrial, and he made no reference to that matter in his reasons for dismissing the application. [16] His Honour accepted the written submissions of the Crown prosecutor, which he attached to his reasons. Those submissions asserted the independence of the discretion vested in prosecution authorities: Jago v District Court of New South Wales (1989) 168 CLR 23, per Gaudron J at 77, and the fact that it is only in rare cases that a court would intervene in the exercise of that discretion by the remedy of a permanent stay: Jago per Mason CJ at 34; R v Crisologo (1997) 99 ACrim R 178, per Simpson J at 190. The Crown argued that the applicant had failed to establish either of the relevant tests for a stay, that is, that the trial would be unfair: Jago, or that the prosecution would inevitably fail: Walton v Gardiner (1993) 177 CLR 378 in the joint judgment at 393, and per Brennan J at 411. [17] His Honour condensed his reasons for refusing the application in this way: …in essence what I am being asked to do is to decide by reference to the facts of the matter that a jury in a second trial would be unlikely to agree upon a verdict, and that therefore the second trial should not take place, or alternatively, and perhaps more strongly, that even if a jury were to agree and convict the accused, that on an appeal the Court of Criminal Appeal would be bound to set aside such a conviction on the grounds that, in the old language, the conviction was unsafe and unsatisfactory. None of the cases cited to me provide any practical support for taking such a course. I am, in effect, being asked to rush in where all of my angelic brothers and sisters before me have feared to tread. It is not a course I intend to take.

37. Hidden J concluded in relation to the repetition in the appeal application of the arguments put by Dr Joyce in the District Court as follows:

[19] On the material furnished in the District Court, I can detect no error in the approach taken by Dodd DCJ, either in relation to the subpoena or in the outcome of the application for a stay. The Director’s guidelines do not have the force of law and, for the purpose of the application, his Honour was not engaged in judicial review of administrative action. His only function, as the Crown Prosecutor before him had submitted, was to determine whether the retrial would be unfair or whether the prosecution case was doomed to failure. The relevant principles were restated by Dunford J in R v H [2002] NSWCCA 355 at paras 13 & 25, and there is no need to repeat them.

38. In R v H [2002] NSWCCA 335 Dunford J had said at paragraph [25]:

…The decision to prosecute the alleged offenders is a matter for the executive government, and the courts should not interfere except where such prosecution will result in a trial which is unfair: Jago v District Court of NSW (1989) 168 CLR 23, or the prosecution will inevitably fail: Walton v Gardiner (1993) 177 CLR 378 at 393, 411.

39. Although the application in Joyce had been for a permanent stay, I do not see that as a vital point of distinction. Nor do I see the age of the decision (as submitted by Mr Selby) as somehow diminishing its force. It seems to me that the circumstances in Joyce were sufficiently similar to those here for the decision to provide powerful guidance as to the correct decision in the circumstances of this case.

40. As in Joyce there is no basis for concluding that the applicant will not receive a fair trial nor can it be concluded, on the evidence as presented in this Application in Proceeding, that the prosecution is doomed to failure. In the circumstances, the applicant has failed to establish the basis for the relief he seeks.

Orders

41. The order of the Court is:

(1) The Application in Proceeding filed on 6 February 2020 is dismissed.

(2) This decision is not to be published, except to Parties, until the conclusion of the retrial.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe

Associate:

Date: