Criminal Law - Jurisdiction practice and procedure - Adjournment, stay of proceedings or order restraining proceedings - Stay of proceedings - Abuse of process - In general - Whether power to prevent abuse may be exercised by order of stay of proceedings by a magistrate.

Grassby v R [1989] HCA 45; (1989) 168 CLR 1, applied.

Lillico v McKenna & Ors [1995] TASSC 32; (1995) 5 Tas R 147; R v O'Loughlin [1971] 1 SASR 219, followed.

Edebone v Allen [1991] VicRp 100; [1991] 2 VR 659; Barton v R [1980] HCA 48; (1980) 147 CLR 75; R v Sloan (1988) 32 A Crim R 366; Miller v Ryan [1980] 1 NSWLR 93, discussed.

Criminal Law - Jurisdiction practice and procedure - Adjournment, stay of proceedings or order restraining proceedings - Stay of proceedings - Abuse of process - In general - Proper exercise of the discretion - Police prosecutor advised case not to proceed but changed mind - Whether this was an abuse of process.

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378, applied.

Judgment Number: [2002] TASSC 44

1 By complaint No 32681/99 made on 17 December 1999, the applicant alleged that on 16 December 1999, the respondent committed two assaults contrary to the Police Offences Act 1935, s35(1), and one trespass contrary to the same Act, s14B(1).

2 The complaint came on for hearing before a magistrate on 20 April 2000. The applicant and the respondent were represented by counsel. Counsel for the latter told the learned magistrate that he was seeking an order that there be a permanent stay of proceedings. The application was adjourned for full argument. That took place on 30 May 2000. All the material facts were put to the learned magistrate by consent and no oral evidence was called. At the conclusion of argument, the learned magistrate reserved his decision. It was not handed down until 17 October 2001, one year and four and a half months later. There appears to be no explanation for the extraordinarily long period of time between the conclusion of the hearing and the delivery of judgment. The point reserved was a preliminary point. It involved no complex factual or legal issues. The judgment should have been delivered within a matter of weeks at most. Such a long delay is unconscionable and has the tendency to bring the justice system into disrepute.

3 The order of the learned magistrate was that "each charge in the complaint is dismissed". This motion to review that order was filed on 29 October 2001.

4 Some time prior to February 2000, there were either discussions or correspondence between the respondent and a police officer or officers about the incident which gave rise to the making of the complaint. By letter dated 14 February 2000, the Deputy Commissioner of Police, Mr J Johnston, wrote to the respondent advising (inter alia):

"The final decision relating to any prosecution resulting from the incident is a matter for [Superintendent Tully's] decision".

5 On 2 March 2000, the respondent's then solicitor, Mr McMillan, spoke to a police officer in the Launceston Prosecuting Section of Tasmania Police. There was no evidence of what was said but the fact of the conversation and its content may be inferred from the following facsimile sent by Mr McMillan on the same day:

We refer to the conversation between Mr O'Sullivan and Mr McMillan earlier today. Our clients instructs us that in the event of the prosecution against him in relation to the assault involving Mr Miller is withdraw, that he will not be seeking costs.

Please confirm whether the prosecution will now be withdrawn."

6 It appears that the day before those discussions and the sending of that facsimile, the respondent spoke to Superintendent Tully. On 3 March 2000, the Superintendent wrote to the respondent as follows [formal parts omitted]:

"I refer to my discussions with you on 1 March 2000 concerning charges against you of Assault and Trespass.

Having considered a number of issues I have decided to withdraw those charges.

This decision should not be seen as an indication that I prefer one party's word over the other. Rather, it is a recognition that there is little if any independent evidence to corroborate either version.

I note your commitment not to provoke or instigate any disputes in the future."

7 The next step was a letter from Mr McMillan to Mr O'Sullivan of the Launceston Prosecution Section dated 10 March 2000, in the following terms [formal parts omitted]:

"Would you please advise us in writing that on the return date, which will be the 13th March 2000, that no evidence will be offered.

We confirm our advices to you that in the event of your so doing, our client will not be seeking costs."

8 However, the response, dated the same day, and written by Mr Miller, senior legal officer for the Tasmania Police, and counsel for the applicant, stated [formal parts omitted]:

"I refer to your facsimile transmission of even date to Sergeant J O'Sullivan. I have been asked to consider whether this prosecution should proceed. I hope to complete that task shortly. The Prosecution will seek a further adjournment of the complaint on 13 March 2000.

Tasmania Police seek to interview Mrs Hodgetts and Heath and Todd Hodgetts in respect of the events of 16 December 1999. Could you please advise whether they are will to participate in an interview."

9 There followed a short exchange of acrimonious correspondence between Mr McMillan and Mr Miller which need not be set out. It concluded with Mr Miller's written advice on 17 March 2000 that "Tasmania Police will proceed with this prosecution".

10 All of this led to the application for a permanent stay of proceedings being made on 20 April 2000 and which, in turn, led to the order of dismissal being made on 17 October 2001.

11 The accepted wisdom in this State is that a magistrate, or two or more justices sitting as a court of petty sessions has or have no power to make an order permanently staying proceedings. Zeeman J so held in Lillico v McKenna & Ors [1995] TASSC 32; (1995) 5 Tas R 147. In that case, his Honour adopted the reasoning of the members of the court in R v O'Loughlin [1971] 1 SASR 219. In Clarke v Golden Egg Farm Pty Ltd 145/1998, that reasoning was common ground and applied by me. It was also common ground before the learned magistrate in this case and on the hearing of the appeal before me.

12 Those who accept those cases as setting out a correct statement of the law may be surprised to read the following paragraph in Halsbury's Laws of Australia volume 11, "Criminal Procedure", par39:

"Most authorities have determined that magistrates have power to stay proceedings on the basis of their being an abuse of process. While the power may be characterised as an inherent power of magistrates, it is better described as an incidental or implied power to prevent abuse or misuse of court process, as 'every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise'."

13 The author does not refer to O'Loughlin or Lillico but, in support of the proposition cites the following cases:

* Edebone v Allen [1991] VicRp 100; [1991] 2 VR 659;

* Barton v R [1980] HCA 48; (1980) 147 CLR 75;

* R v Sloan (1988) 32 A Crim R 366;

* Miller v Ryan [1980] 1 NSWLR 93;

* Potter v Liddy (1984) 14 A Crim R 204.

"In Victorian [sic], it is undoubted a magistrate is empowered to permanently stay the hearing of information: see Barton v R [1980] HCA 48; (1980) 147 CLR 75, a case dealing with the power of the court to govern its own procedures so as to prevent its processes from being abused; Higgins v Tobin (unreported, Nathan J, 5 November 1987) and R v Gyoerffy (unreported, Nathan J, 27 February 1989) and the authorities recited therein. The position here is to be contrasted with committal proceedings which are ministerial as opposed to adjudicative processes and also the situation in New South Wales: Grassby v R [1989] HCA 45; (1989) 168 CLR 1."

14 Unfortunately, I have not been able to gain access to the two earlier decisions of Nathan J upon which his Honour relies as authority for that proposition, but with great respect to his Honour, I do not read Barton v R as authority for the proposition that a magistrate, as opposed to a court of plenary jurisdiction, has a power to order a permanent stay of proceedings. Barton is authority for the proposition that every court has a power to prevent an abuse of its process and that superior courts may order a permanent stay of proceedings to prevent unfairness to an accused. At 96, Mason J (as he then was) refers to Mills v Cooper [1967] 2 QB 459 and cites Lord Parker CJ at 467:

"... every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court."

However, recourse to that case shows that the impugned order made by justices was a dismissal of the information and it was in that context that Lord Parker made the observations referred to.

15 Again, with respect to the author of the paragraph from Halsbury's Laws of Australia, Sloan is not authority for the proposition stated. Whilst Kneipp J did say in that case that he could see no reason why a magistrate could not order a permanent stay of proceedings, that observation was qualified by his Honour stating at 369, "I have not investigated the power of a magistrate's court in this regard, ...".

"I think that the cases I have referred to establish the proposition that every court has a right, in its discretion, to decline to hear proceedings on the ground that they are an abuse of the process of the court: see Mills v Cooper [1967] 2 QB at 467, 469_; Director of Public Prosecutions v Humphrys_ [1977] AC 1 at 26, 27, 28, 45, 46, where Lord Salmon quotes with approval Lord Parker's words in Mills v Cooper [1967] 2 QB at 467. See also, per Lord Edmund-Davies (52), 53. Where a prosecution is oppressive and vexatious it is an abuse of the process of the court: Director of Public Prosecutions v Humphrys [1977] AC 1 46,52. The discretion extends to every court, and will include a magistrate hearing committal proceedings, because, although such an inquiry is not a judicial proceeding: Ammann v Wegener (1972) 129 CLR 436, per Gibbs J, it is part of the procedure of the courts of law for the enforcement of the criminal law for the enforcement of the criminal law: Ammann v Wegener, per Barwick CJ (1972) 129 CLR 423; and see per Gibbs J (1972) 129 CLR 436, and per Mason J (1972) 129 CLR 443."

17 His Honour went on to say that he was of the opinion that the magistrate in that case did have the power to stay proceedings upon the basis that their continuation would amount to an abuse of the process of the court. However, the focus of the New South Wales Court of Appeal was on whether a magistrate had a power to prevent an abuse of process, not the form of the order that might be made to prevent it.

18 Potter v Liddy is authority for the accepted proposition that magistrates have a power to prevent an abuse of process, but at 209, Olsson J said:

"The judgments in O'Loughlin render it abundantly clear that all courts, be they of superior or inferior jurisdiction, possess a general jurisdiction to prevent anything 'which savours of an abuse of process' (per Bray CJ at 229). In the case of a court of summary jurisdiction that discretion may, in a proper case, be exercised by dismissing the proceedings, but not by staying them."

19 In Grassby v R [1989] HCA 45; (1989) 168 CLR 1, Dawson J discussed the nature and scope of a magistrate's power to prevent an abuse of process. At 16, his Honour observed that a court of plenary jurisdiction has inherent power and said:

"On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court."

20 Dawson J went on to say that although the powers of a magistrate may be confined by a statute, "... every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise". [My emphasis.] At 17, his Honour said:

"It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction.' There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf R v Hush: Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 at 515."

21 Having said that, Dawson J referred to the statutory powers prescribed for a magistrate hearing a committal proceeding (an administrative function) and concluded that they were such that an implied power was excluded. It seems to me that the reasoning in Grassby supports the reasoning in O'Loughlin. A magistrate has a power to prevent an abuse of process, but only by the exercise of one of the powers conferred upon him by statute, in this case, the Justices Act 1959.

22 Distilled to its essence, the material facts are that the prosecution advised the applicant that it would not proceed with the matters of complaint and the applicant agreed not to seek an order for costs if that happened. Within days of so advising, the prosecution changed its mind.

23 The reasoning of the learned magistrate that led to the making of the impugned order appears from the following passage in his reasons for judgment:

"In this case, a clear arrangement was made for apparently good cause and with stated reasons by a senior and, one assumes, very experienced police officer who had been specifically invested with the authority to do so. One party asks the Court to give effect to it; the prosecution authority has had second thoughts and wishes to turn back the clock and to ignore the assurance given and the commitment received in return.

The notion that criminal prosecutions launched in this Court can be turned 'on' and 'off' and 'on' by any prosecution authority (the role of which, as a result of a long respected and valued tradition, has been properly characterised as that of being a 'minister of justice') notwithstanding an inconsistent formal assurance as one would turn 'on' and 'off' and 'on' a tap is one that is ripe to be disabused.

The concept of abuse of process is wide-ranging. It lies in wait for anyone or any institution that seeks to misuse the Court's process and thereby create injustice.

In this case, the prosecution authority seeks to resile from an arrangement entered into apparently for good cause and with full authority and then to use the Court's process as if that arrangement had not existed.

This Court's process is not available for that purpose. It would be unjust to permit this prosecution to proceed. I emphasise that that injustice has nothing to do with the merits of the prosecution against the defendant - that was a matter that was solely within the province of prosecutorial discretion which has been determined already in the manner indicated by Acting Superintendent Tully - but the injustice of permitting a prosecution authority to resile from an assurance that it gave to a defendant. I should add that there is not the slightest suggestion that the defendant improperly conduced to the Acting Superintendent's determination."

24 The categories of what will constitute an abuse of process are not closed. See Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378. In the last mentioned case, Mason CJ, Deane and Dawson JJ said, at 392 - 393:

"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail (See, eg, Metropolitan Bank v Pooley (1885) 10 App Cas 210, at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 115, at pp 128-130). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them (See, generally, Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (See, eg, Reichel v Magrath (1889) 14 App Cas 665, at p 668; Connelly v DPP [1964] AC 1254, at pp 1361-1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1982] AC 529, at p 536) as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'."

25 None of the circumstances referred to in that passage applied in this case. There must exist exceptional circumstances before a court will dismiss or stay criminal proceedings upon the basis that their continuation will constitute an abuse of the court's process (Walton v Gardner (supra)). In Jago (supra), Mason J said at 34:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR at 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson [1987] VR at 973."

26 See also R v Davis [1995] FCA 1321; (1995) 81 A Crim R 156 at 165. However, in Williams v Spautz (supra), Mason CJ, Dawson, Toohey and McHugh JJ said, at 519:

"If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself."

27 Of course, there is no suggestion in this case of any improper purpose in the laying of the complaint, nor in the subsequent attempt to prosecute it. Williamson v Trainor [1992] 2 Qd R 572 was referred to by counsel upon the hearing of this motion. In that case, the police requested an adjournment of the hearing of a complaint on several occasions. On the last occasion the magistrate refused to grant the adjournment, but at the prosecutor's request stood the matter down for a short while. There followed a discussion between the prosecutor and counsel for the defence, the upshot of which was that the prosecution asked if the defendant would sign "an indemnity" releasing the Crown from any claim for costs if the prosecution did not proceed with the charge. The defendant agreed to this proposition and signed a document. No evidence was adduced and the complaint was dismissed. Three months later, a fresh complaint with respect to the same matter was filed. When it was called on for hearing, the defence sought a permanent stay of proceedings. By this time, the defendant had lost track of a witness who was available to him when the first complaint was dismissed.

28 The Full Court of the Supreme Court of Queensland held that to permit the second complaint to proceed to a hearing would be an abuse of the process of the court. The rationale for that view was not to "discipline" the prosecution, but, as Derrington J said at 573:

"On the face of it, there would be an abuse of process by the prosecution in attempting to circumvent the refusal by the magistrate to grant it an adjournment by allowing the matter to be dismissed because it refrained from leading any evidence, only to commence fresh proceedings at its leisure. If it were to be allowed to do this, it would frustrate the considered order of the court."

29 In addition, there was unfairness to the defendant because his witness, available at the time the complaint was dismissed, was no longer available. That case is quite unlike the present matter. In Rona v District Court of South Australia & Anor [1995] SASC 4922; (1995) 77 A Crim R 16, another case referred to by counsel on the appeal, a prosecutor in the district court said to the court at status conferences on several occasions that the counts would be those set forth in the information. The prosecutor subsequently produced fresh information containing different counts. The Full Court of the Supreme Court of South Australia held that to permit the second information to proceed would be an abuse of the process of the court. The basis for that conclusion was that the prosecutor had manipulated, or misused, the court's rules of procedure. The court also said that conduct by the prosecutor that was not in accordance with the court's directions can constitute an abuse of the process of the court. King CJ expressly disowned the use of the court's power to prevent an abuse of its process in order to punish the Director of Public Prosecutions when he said, at 21 - 22:

"The power is to prevent proceedings which amount to an abuse of process, not to punish non-compliance with case management procedures and directions. The abuse of process may arise from failure to comply with the case management rules or with directions made or undertakings or assurance given at status or pre-trial conferences, but the power to stay must be used for the purpose of prevention of the abuse not merely as a punishment for non-compliance."

30 Again, that case is quite unlike the present matter. It must steadfastly be borne in mind that the court has no role to play in the exercise of the prosecutorial discretion whether to proceed with a complaint or not (Moevao v Department of Labour [1980] 1 NZLR at 464). As Lord Scarman said in R v Sang [1979] UKHL 3; [1979] 2 All ER 1222 at 1245:

"Judges are not responsible for the bringing or abandonment of prosecutions; nor have they the right to adjudicate in a way which indirectly usurps the functions of the legislature or the jury."

31 In the report of R v Townsend [1998] Crim LR 126, it is stated that the Court of Criminal Appeal (UK) said that "breach of promise not to prosecute did not necessarily and ipso facto give rise to abuse".

32 In the present case I am satisfied that the learned magistrate fell into error when he dismissed the complaint upon the basis that its prosecution would constitute an abuse of the process of the court. The essence of the basis for that order was that it would be unjust to permit the police prosecuting authority to resile from an assurance it gave the defendant and that it is an abuse to permit a prosecution to be "turned on and off". In Bloomfield v R [1996] EWCA Crim 1801; [1997] 1 Cr App R 135, a change of mind by the prosecution about not proceeding with a charge was held to be an abuse of the court's process. However, in that case counsel for the Crown's statement about abandoning the prosecution was made in open court and later again to the trial judge in his Chambers. The trial judge acted upon it by making an order adjourning the further proceedings. Staughton LJ said at 143:

"The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice, in the presence of a judge."

33 It seems to me that the applicant has suffered no injustice by reason of the change of mind. So much was conceded by his counsel on the motion to review. On 2 March 2000, he was a defendant to a complaint and expecting to appear in court to defend the matter. The next day he believed that he would not have to go to court and that the complaint would be dismissed. Fourteen days later the complainant was in the same position as he was on 2 March 2000 and nothing had occurred in the intervening period that might prejudice a fair trial on the complaint or alter the position that the respondent was in on 2 March. The respondent might well have been disappointed and/or angry about the change of heart, but he suffered no injustice as a result of it. As to the "turning on and off" of a prosecution, unlike Bloomfield, no assurances had been given by the prosecutor to a magistrate about the abandonment of the complaint. All discussions and correspondence were confined to the parties or their representatives. Complaint might be made about the police changing its mind over that two week period, but any such complaint should be confined to the police. It did not warrant intervention by the court.

34 I interpolate that there was no material before the learned magistrate to indicate, one way or the other, why there had been a change of mind. In his reasons for judgment, the learned magistrate inferred that the decision not to proceed was made for good cause, but did not draw the same inference with respect to the later decision to proceed. There was no material upon which a judgment could be formed with respect to the basis for either decision.

35 In these circumstances I have come to the clear conclusion that in some undefined way the learned magistrate's discretion miscarried and that the order from which this appeal is brought should not have been made. The appeal is allowed. The order of the learned magistrate dismissing the complaint is quashed and it is ordered that the complaint be remitted to another magistrate for hearing in accordance with law.