Ruling on evidence from 08/05/24; see transcript p 305
Yesterday, after I had ruled that I would not permit the Crown to adduce evidence from its proposed expert witness, Mr Franklin, the Crown Prosecutor sought time to speak with those who instruct him in the trial from the Commonwealth Director of Public Prosecutions (Commonwealth DPP), as to the future conduct of the trial. As I noted in my judgment yesterday concerning the proposed evidence from Mr Franklin, the Crown had accepted in its submissions concerning the calling of Mr Franklin, that absent his evidence, the Crown case on all of the counts on the indictment would fail, in the sense that there would not be a case to go to the jury on any of the counts.
I granted the Crown Prosecutor time to consult with those who instructed him and upon returning to the bench, the Crown Prosecutor informed me that the Commonwealth DPP had declined to proceed further in relation to these proceedings.
The wording used by the Crown Prosecutor, in informing me of the decision of the Commonwealth DPP is contained in s 9(4) of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act). That section relevantly provides, "where (a) the person has been indicted on a charge of an indictable offence against a law of the Commonwealth and (b) the prosecution for the offence is being carried on by the Director, the Director may decline to proceed further in the prosecution and may, if the person is in custody, by warrant signed by the Director direct the discharge of the person from custody and where such a direction is given the person shall be discharged accordingly."
The issue then arises as to whether the trial was at an end, given the Court had been informed that the Director declined to proceed further in the prosecution. The Crown Prosecutor submitted that the Court, having been so informed, the proceedings were at an end. Counsel for the accused submitted that the Court had the power to require the Crown to close its case in front of the jury, and given the concession that had been made by the Crown that there would be no case to go to the jury, absent evidence from Mr Franklin, the jury ought to be directed to return not guilty verdicts on each of the 24 counts on the indictment.
The fundamental issue that has arisen is, what is the effect on trial proceedings when the Commonwealth Director exercises the power under s 9(4) of the DPP Act and declines to proceed further with a prosecution, in particular, where the Crown concedes that there is no further evidence it can call in the Crown case and that verdicts of not guilty would necessarily be directed given the state of the evidence.
An almost identical issue was considered by me in the decision of the R v SE & ORS [2022] NSWDC 712, although the trial in those proceedings was not as advanced in terms of the prosecution and its progression as here. The prosecution in that case was being conducted by the New South Wales Director of Public Prosecutions who exercised her power under s 7(2) of the Director of Public Prosecutions Act 1986 (NSW) which is in different terms to the power contained in s 9(4) of the DPP Act (Cth).
Section 7(2) of the DPP Act (NSW) relevantly 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 decision in R v SE & ORS also concerned a judge alone trial, not a trial by jury. I note this is a trial concerning a Commonwealth offence, where it's not possible to constitutionally hold a judge alone trial. In the decision in R v SE & ORS, I reviewed the limited authorities that I had been referred to or found on this issue, along with a number of interstate authorities and certain High Court authority.
In R v SE & ORS I found that once the Court had been advised of the Director's decision that no further proceedings were to be taken against the accused, the proceedings were at an end, and I had no power to force the Crown to continue to conduct the trial to verdict.
Mr Bhasin, who appears for the accused, argued that the current case is distinguishable from R v SE & ORS essentially, as I understood it, for the following reasons: This being a Commonwealth trial and a decision made by the Commonwealth DPP under the relevant Commonwealth statute the Court of Criminal Appeal decision in R v GKA (1998) 99 A Crim R 491, which I considered I was bound by in R v SE & ORS, was distinguishable. The decision in R v SE & ORS was made under a different statute, the power being worded in different terms, and the Commonwealth DPP statute did not equate the function of the Commonwealth DPP with that of the Commonwealth Attorney General.
It was also submitted that I should, given this is a trial of a Commonwealth offence, give greater weight to those interstate intermediate appellate Court decisions which have held that courts have a power to reject the entry of a nolle prosequi and to require a prosecution to continue to prevent what was said to be an abuse of the Court's processes. In the interest of uniformity across the various states of the Commonwealth when dealing with Commonwealth trials, as I understood the submission, I should give greater weight to those intermediate appellate Court decisions and, in effect, follow them.
Mr Bhasin laid particular emphasis on the decision of Question of Law Reserved on Acquittal (No.3 of 1995) 66 SASR 450, and the analysis by Debelle J concerning the history of the concept of a nolle prosequi, both in England and Australia, and his Honour's comment at p 469 that, "there is therefore a substantial body of judicial opinion in this country 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, rare." At pages 470 to 471 Debelle J gave examples of such cases, one of which was said to be where the Crown case does not disclose the commission of the offence alleged on the indictment. I considered the decision of Question of Law Reserved on Acquittal (No.3 of 1995) in R v SE & ORS along with other interstate authorities that were referred to me.
Due to the pressure of having a jury waiting who had not heard evidence for some little time, the time available to counsel and to myself to consider the relevant authorities has been limited. My associate found one additional decision overnight which is to the effect that in the ACT a Supreme Court Justice has followed the approach taken in Question of Law Reserved on Acquittal (No.3 of 1995). See R v YL [2004] ACTSC 115 a decision of Crispin J. Apart from that decision, I was not referred to any additional decisions to those I considered in R v SE & ORS.
As I announced earlier today, I am of the opinion that the trial came to an end when the Crown Prosecutor informed me that the Commonwealth DPP had declined to proceed further in relation to these proceedings. My very short reasons for coming to that conclusion are as follows, and I will endeavour to more fully explain those reasons when time permits.
While the wording in s 9(4) of the Commonwealth DPP Act is different to that contained in s 7(2) of the New South Wales DPP Act, it is, in my view, the source of the Director's power to inform the Court of the equivalent of a nolle prosequi. In Beckett v New South Wales [2013] HCA 17 in the joint judgment, their Honours at para 44 said, "the prosecution of indictable offences in all" and I underline all, "Australian jurisdictions is now conferred on a statutory office holder, the Director of Public Prosecutions. In each jurisdiction the Director of Public Prosecution has the power to terminate the prosecution of proceedings on indictment. In each jurisdiction, the attorney general retains the power to enter a nolle prosequi although in the majority of them the power is now sourced in statute" and there is a footnote reference 99. In the footnote to that paragraph of the joint judgment there is a reference to s 9(4) of the Commonwealth DPP Act. That, in my view, is a firm indication from the High Court that the power of the Commonwealth Director in s 9(4) is equivalent to the power the Attorney General has to enter a nolle prosequi. In that regard, I have also had some limited regard to the terms of s 71 of the Judiciary Act.
The wording used in s 9(4) is also consistent, in my opinion, with the proceedings being at an end once the Commonwealth DPP has declined to proceed further with the prosecution of a Commonwealth offence on indictment. It empowers the Director in such a situation if an accused is in custody, to discharge the accused from custody and the "person shall be discharged accordingly." I note the use of mandatory language in that phrase. That language, in my opinion, is consistent with the proceedings being at an end. It cannot be the case that the Director may discharge a person from custody upon declining to proceed further with a prosecution, that the person must be discharged from custody and that the Court can require the Crown to continue with a trial, in my view.
As I pointed out in in R v SE & Ors, both in the joint judgment and in Gageler J's, (as His Honour then was), judgment in Beckett, there was an acceptance by the High Court that the entry of a nolle prosequi brings proceedings on an indictment to an end without barring a subsequent prosecution on a fresh indictment. I accept that their Honours were not dealing with the situation that has occurred in the current trial, but accepting, as I must, that the statements in those judgments about the effect of the entry of a nolle prosequi on the proceedings is the law in Australia, the proceedings came to an end when the Crown Prosecutor advised me of the Commonwealth DPP's decision. The proceedings on the current indictment were at an end from that point in time.
I note that Beckett was handed down in 2013 and the decisions in the interstate and territorial jurisdictions that I'm aware of, which have considered that a DPP may be required by the Court to continue with a prosecution, all predate the High Court's decision in Beckett. They must, in my opinion, be read in light of the statements by the High Court as to the effect of a nolle prosequi on proceedings on an indictment. I note also that in the review of the authorities I conducted in SE & Ors, it was accepted that at common law, a nolle prosequi could be entered at any time prior to verdict.
In light of the High Court's statements in Beckett, I do not think I should follow the approach taken in Question of Law Reserved on Acquittal (No.3 of 1995) and in similar interstate intermediate appellate courts, which, in my opinion, are not consistent with the statements I have referred to in the judgments in Beckett about the effect of the entry of a nolle prosequi.
I explained in SE & Ors the practice in this State, as to how a court is advised of a Director of Public Prosecutions' decision to not continue or to decline to proceed further with proceedings, is an informal one. There can be no doubt that I was informed of the Director's decision by the Crown Prosecutor in the manner I referred to earlier. The Crown Prosecutor being careful, it would seem, to use the words in s 9(4).
Prior to hearing argument on the issue, the Crown Prosecutor handed up a document headed, "Notice of discontinuance in relation to proceedings", signed by a Deputy Director of the Commonwealth DPP, which recited the author's delegated authority under s 9(4). It was referred to as a document relating to a procedure within the Commonwealth DPP for such a document to be provided to a Court, although the Crown indicated that procedure was not uniformly adhered to.
I was not asked by counsel for the Accused to reject the document and even if I had been, in my opinion, for the reasons given, the proceedings on the indictment were already concluded before the Crown Prosecutor handed up the document. I note in passing, it is not the type of document I have seen before, nor is it prescribed in any rules of this court.
It follows for the reasons that I have given, that the proceedings on the indictment came to an end when I was told by the Crown Prosecutor of the Commonwealth DPP's decision yesterday and in my opinion, I had no power to require the Crown to close its case in the presence of the jury and as a consequence, to direct the jury to return not guilty verdicts.
If the Crown at some later stage seeks to proceed against the accused on an indictment in similar terms to the one used in the proceedings which concluded yesterday or arising out of the same factual circumstances and the accused seeks a permanent stay of those proceedings, it will be a matter for the Court hearing those proceedings to consider whether they are, given what occurred in the trial that concluded yesterday, an abuse of process, such that they should be permanently stayed. No doubt, any such Court will give careful attention to the fact that the Crown, in my opinion, which I expressed in the judgment yesterday, failed to perceive what I considered to be a somewhat obvious element of the offences it had brought against the accused and consequently, at a far too late a stage during the trial, endeavoured to adduce expert evidence to prove that element of the offences.
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Decision last updated: 24 May 2024