Wills v Trenerry [1999] NTSC 2

On 26 February 1997, the applicant appeared as defendant before his

Worship, Mr Lowndes SM, who refused an application from the prosecution

to adjourn the hearing of the matter and refused leave to withdraw the

charge. The prosecutor advised that the prosecution would offer no

On 5 March 1997, Senior Sergeant Trenerry laid an information against the

applicant which stated, omitting some formal parts, as follows:

"that Simon Wills on the 7th day of May 1995 at Darwin in the

AND THAT the said unlawful assault, involved the following

that the said Warwick Ian Bott suffered bodily harm

Contrary to Section 188(2)(a) of the Criminal Code."

On 14 July 1997, Mr Goldflam, counsel for the applicant, appeared before

his Worship Mr Wallace SM, and applied on behalf of the applicant for the

"Trenerry information" to be struck out, on the ground that the applicant

was autre fois acquit. On 15 July 1997, Mr Wallace SM, ruled that the

applicant was not autre fois acquit because issue was not joined on the

information laid by Sergeant Hayward. Mr Wallace SM held that the order

made by Mr Lowndes SM to dismiss the information was not on the merits

and accordingly s133 of the Justices Act had no application to Mr Lowndes

On 11 August 1997, Mr Goldflam appeared on behalf of the applicant in the

Court of Summary Jurisdiction before his Worship, Mr Gillies SM. On

behalf of the applicant, Mr Goldflam applied for the proceedings pursuant to

the information laid by Sergeant Trenerry to be permanently stayed, on the

On 3 September 1997, his Worship Mr Gillies SM, refused the application.

Mr Gillies SM ruled that a magistrate did not have the power to stay the

The applicant then made his application to this Court.

This Court "has the inherent power to stay or postpone a trial where such is

necessary to prevent an abuse of process or to ensure that an accused

receives a fair trial" (Breedon v The Queen [1995] NTSC 124; (1995) 124 FLR 328 per Angel J

at 333; see also Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; R v Haslett (1987)

[1987] NTSC 68; 90 FLR 233).

The decision whether or not to grant a stay involves balancing the interest

of the accused with the interests of the community.

Section 14(1)(b) of the Supreme Court Act 1979 (NT) provides as follows:

In addition to the jurisdiction conferred on it elsewhere by this

has, subject to this Act and to any other law in force in the

Territory, in relation to the Territory, the same original jurisdiction, both

civil and criminal, as the Supreme Court of South Australia had in relation

to the State of South Australia immediately before 1 January 1911;"

This in effect gives the Supreme Court a supervisory jurisdiction to prevent

In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393 Mason CJ, Deane and

"... 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. 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 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.

In Jago v. District Court (NSW), at least three of the five members

of the Court clearly rejected ,,the narrower view that a courts power

to protect itself from an abuse of process in criminal proceedings ,,is

limited to traditional notions of abuse of process. Mason C.J.

considered that a court, ,,whose function is to dispense justice with

impartiality and fairness both to the parties and to the community

which it serves, possesses the necessary power to prevent its

processes being employed in a manner which gives rise to

I adopt with respect the comments of Angel J in Breedon v The Queen

"The power to grant a permanent stay of criminal proceedings is

one to be exercised only in the most exceptional circumstances:

Barton (at 95, 116); Jago (at 31, 34); Williams v Spautz (1992) 174

CLR 509 at 529. An applicant for a permanent stay must

demonstrate more than a subjective sense of unfairness; he must

show the prosecution is brought for a predominant ulterior or

improper purpose: Williams v Spautz (at 529), or delay such that he

can not receive a fair trial, that is, that any trial would necessarily be

unfair: Jago (at 34, 49-50, 78), or that the continuation of the

proceedings would be so unfairly and unjustifiably oppressive as to

constitute an abuse of process: Walton v Gardiner (at 392, 395). In

short, the applicant must demonstrate one of the statutory grounds set

out in s339 of the Criminal Code or an abuse of the courts procedure

by reason of the institution of the criminal proceedings or the taking

I also adopt the following principals a set out by Ormrod LJ in R v Derby

Crown Court; Ex parte Brooks (1984) 80 Cr App R 164 and quoted by

Priestley J in Watson v Attorney-General for New South Wales (1987) 8

NSWLR 685 (CCA) at 6999 referring to a decision of Ormond LJ in R v

Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164 at 168-169:

".... The power to stop a prosecution arises only when it is an abuse

of the process of the court. It may be an abuse of process if either

(a) the prosecution have manipulated or misused the process of the

court so as to deprive the defendant of a protection provided by the

law or to take unfair advantage of a technicality, ...."

The information laid by Sergeant Trenerry does not constitute an "autre fois

acquit" at common law nor under the provisions of s18 of the Criminal

Code. The dismissal of the original "Hayward" information was not "on the

merits" after issue was joined between the parties (Ward v Hodgkins [1957]

VR 715 at 719; Potter & Potter v Liddy (1984) 14 A Crim R 204 at 208.

The applicant filed an affidavit sworn 17 October 1997 in support of his

application. Mr Wills deposes to the fact that on the date he attended Court

for the hearing of the charge on 26 February 1997 it was his intention to

enter a plea of not guilty. He had in attendance at Court, three witnesses

who were eye witnesses to the event and who he had asked to give evidence

in the proceedings. Mr Wills provides details in his affidavit of the

difficulty he would have in arranging for those persons to attend Court

again. Ms Fraser, for the respondent, accepted that there is an obligation on

the Crown to put all relevant evidence before the Court and accepted the

Crown obligation to call the witnesses referred to by the applicant, provided

they can give relevant evidence. The allegation is a serious one involving as

it does an allegation that a security officer at a Darwin night club committed

an act of assault upon a patron of the night club. In balancing the interest of

the accused with the interests of the community, I do not consider there to

be any unfairness in allowing the Crown to proceed w ith the information as

I agree with the submission made by Ms Fraser, counsel for the Crown

which is the respondent in these proceedings, that the relaying of the

information is a proper exercise of the prosecutorial discretion. It is the

function of the executive to decide when a prosecution should commence,

proceed and be terminated. It is not the function of the courts to interfere in

the exercise of that executive function and such an interference is only

justified in the most extraordinary and exceptional of cases (Jago v District

Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 36-39).

I did not consider this to be an extraordinary or exceptional case such as to

justify the interference of the Court in the exercise of the prosecutorial

For these reasons I refused the application by Mr Goldflam on behalf of the

applicant for either a prohibition under O56.01 of the Supreme Court Rules

Because the matter was listed before the Court of Summa ry Jurisdiction

within a few days after the hearing of this application and the parties were

anxious for an answer to the application before the Supreme Court, I

announced the decision at the conclusion of the hearing of the application on

17 October 1997 and advised I was prepared to provide written reasons.

Counsel for the respondent has now requested written reasons for decision