Woods v Porter [2018] ACTSC 161

2. The plaintiffs are to pay the first defendant's costs.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Pleas - Magistrates Court Act 1930 (ACT), s 54 - whether Magistrate required to deal with charges laid in circumstances where the prosecution sought to withdraw them

Director of Public Prosecutions Act 1983 (Cth) ss 6, 9

Director of Public Prosecutions Act 1986 (NSW) s 7

Magistrates Court Act 1930 (ACT) ss 54, 113, 114, 208, 219B

Ayles v the Queen [2008] HCA 6; 232 CLR 410

Beckett v New South Wales [2013] HCA 17; 248 CLR 432

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 36

Canham v ACT Magistrates Court [2014] ACTSC 14; 9 ACTLR 84

Director of Public Prosecutions, South Australia v B [1998] HCA 45; 194 CLR 566

DPP v A (a child) [2001] WASC 2; 23 WAR 331

Feeney v The Queen [2014] ACTCA 1; 284 FLR 81

Gregg v O'Connor (Unreported, Supreme Court of New South Wales, Sully J, 6 September 1991)

Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265

Magaming v The Queen [2013] HCA 40; 525 CLR 381

Mayen v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435

R v YL [2004] ACTSC 115; 187 FLR 84

Malcolm Stewart Woods (Plaintiff in SC 470 of 2017)

Maria Therese Mathews (Plaintiff in SC 473 of 2017)

Michael Porter (First Defendant in SC 470 of 2017; SC 472 of 2017; SC 473 of 2017)

Chief Magistrate Lorraine Anne Walker (Second Defendant in SC 470 of 2017; SC 472 of 2017; SC 473 of 2017)

W Abraham QC with A Avery-Williams (First Defendant)

Commonwealth Director of Public Prosecutions (First Defendant)

SC 470 of 2017; SC 472 of 2017; SC 473 of 2017

Case Title: The Queen v Maria Mathews, Philip Mathews, and Malcom Woods

1. These three applications for judicial review each concern whether the Chief Magistrate erred in refusing to enter a plea of guilty in respect of each plaintiff to charges that came before the Magistrates Court on 10 November 2017. Her Honour instead allowed the first defendant (the informant, a member of the Department of Defence) to withdraw the charges. Each of the plaintiffs asserts that the Chief Magistrate erred in doing so.

2. Although there are three separate proceedings, they were dealt with together because they arise from a common set of facts. The first defendant was the only active defendant on the applications. The second defendant has properly filed a submitting appearance in each proceeding.

3. In 2016, each plaintiff was charged, pursuant to an information and summons (numbers CC 40797-8 of 2016, CC 40799 of 2016 and CC 40800 of 2016, according to the submissions of the first defendant), with offences against s 134.2(1) of the Criminal Code (Cth), being to dishonestly obtain a financial advantage from another person by deception (original charges). Each offence carried a maximum penalty of 10 years' imprisonment. The charges related to conduct between 2009 and 2012.

4. In 2017, the plaintiffs and the Commonwealth Director of Public Prosecutions (CDPP), who had taken over the conduct of the prosecutions on behalf of the first defendant, entered into plea negotiations. The plaintiffs and the first defendant appear to have reached the point in their discussions of agreeing in principle to pleading guilty to lesser charges, because in anticipation of such pleas, on 8 November 2018, the CDPP filed charges pursuant to information and summons numbers CC 41816 of 2017, CC 41817 of 2017 and CC 41818 of 2017 for offences under s 135.1(1) of the Criminal Code (Cth) (second charges). The nature of those offences were the 'doing of anything with the intention of dishonestly obtaining a gain from another person', where 'that other person is a Commonwealth entity'. The second charges carried a maximum penalty of 5 years' imprisonment and in that way are regarded as lesser charges under s 134.2(1) of the Criminal Code (Cth).

5. However, no agreement was then reached on a Statement of Facts for the second charges in respect of any of the plaintiffs. This case is perhaps a cautionary tale for those negotiating on pleas to attempt to traverse and agree upon such details before taking the formal step of filing further charges.

6. In any event, on 10 November 2017, two days after the second charges had been filed, the plaintiffs' solicitor sent an email to the court below, stating the following:

...as the facts cannot be agreed the CDPP have withdrawn the plea offer and the matter will need to proceed to full defended hearing on the original charges.

7. It was in this context that the parties attended the listing on the afternoon of 10 November 2017 before the Chief Magistrate.

8. The reasoning of the Chief Magistrate is captured at various parts of the transcript on 10 November 2017. It is first relevant to set out how the events unfolded before her Honour:

Mr Pirrie: Good afternoon, Your Honour. I appear with Mr Sheridan-Smith to prosecute in this matter.

Her Honour: Thank you.

Mr Pappas: May it please Your Honour, I appear on behalf of each of those named defendants. They are in court, seated in the front row, ... There are some fresh charges before the court. Matters 41816, 41817, 41818. Each of those charges [are] returnable at 2.15pm today. They're all dated 8 November. ... I hold instructions on behalf of each of these defendants to plead guilty to those charges. And I formally enter those pleas on their behalf.

Her Honour: All right. I'll take the pleas from the defendants, Mr Pappas. In each case, I've got an information summons and a bench sheet. Let me just look at what will be the appropriate form in which to put the charge. ...

Mr Pirrie: Your Honour, could I indicate that the prosecution don't accept the plea in relation to those matters. Mr Pappas has just announced that without any reference to me. Those charges were filed in anticipation of a plea hearing today. There have been discussions and negotiations with the parties. The charge was agreed upon. I don't want to go into the discussions and negotiations, other than to say the charges were agreed upon, and there has been a failure to meet minds in relation to other matters.

And it was a package proposal, and in order to assist with the plea, the charges were filed, but the original charges weren't withdrawn. The original charges still exist. These charges were filed in addition to the original charge with a view to a plea proceeding today. Now, so we weren't aware until Mr Pappas stood up that he proposed to plead to those charges. In fact, the indications were that the matter hadn't resolved at all and we were proceeding to a contested hearing, that was the last correspondence we had with the defence.

9. The Chief Magistrate then asked Mr Pirrie what he proposed to do with the three new charges, and Mr Pirrie stated that he would seek to have those charges withdrawn and proceed with the original charges as filed.

10. The Chief Magistrate's exchanges with Mr Pappas record her reasoning process towards the ultimate conclusion. Her Honour first dealt with the prosecutorial discretion:

Her Honour: ...we're talking about a prosecutorial discretion, Mr Pappas. And my understanding, [on] a common law basis, and I don't pin this to a legislative base at the moment, is that the prosecution has the right to withdraw charges up until a plea has been entered. And then the court might have something to say about that.

11. Mr Pappas relied upon s 54 of the Magistrates Court Act 1930 (ACT) (Act), which was in the following terms:

The court must hear and decide an information if both parties to the information appear personally or by lawyers or anyone else appearing for them.

12. The Chief Magistrate was not satisfied that s 54 of the Act addressed the issue, and said it did not bind the Magistrates Court in relation to the issue before it.

Her Honour: I hadn't charged the defendants, Mr Pappas. That's the first point.

Mr Pappas: No. The information charge is the offence.

Her Honour: No. They're to be charged in court, Mr Pappas. They weren't [charged]. ...

Mr Pappas: ... I just want to make it plain that my position is on behalf of these people that they answer the information, they appear in person, I appear on their behalf. And on their behalf, I indicate they plead to the offences which are charged.

Her Honour: Mr Pappas, you'd understand also that the Supreme Court has recently given direction that pleas are to be taken from defendants in person. Which was the reason I was about to put the charges which had not yet been put to your clients. This proceeding will not proceed by way of [sleight] of hand.

14. The parties have subsequently suggested that the Supreme Court authority to which the Chief Magistrate was referring may have been Mayen v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435 (Mayen) at [101]-[107] and also possibly Feeney v The Queen [2014] ACTCA 1; 284 FLR 81 (Feeney) especially at [6], [12] and [47].

15. The exchanges then turned to ss 6 and 9 of the Director of Public Prosecutions Act 1983 (Cth) concerning the functions and powers of the Director respectively. The transcript then records:

Mr Pappas: I don't doubt the existence of that power. The question is how that is achieved, and that's my point. It can't be achieved simply by withdrawing the information. It can be achieved in another way. The director has undoubtedly got the power to, as it were, enter a nolle prosequi in the Supreme Court or offer no evidence in this court. Simply withdrawing the information, though, is contrary to what the [Act] requires to happen, in my respectful submission.

Her Honour: I disagree. Had a plea, in fact, been entered, I would take a different view. There being no plea entered in respect of these matters, I'm satisfied it is open to the Commonwealth director to withdraw the charges, and now I mark them withdrawn.

16. The applications were brought by way of judicial review under s 34B of the Supreme Court Act 1933 (ACT) and r 3554 of the Court Procedures Rules 2006 (ACT), rather than an appeal, because the nature of the decision made by the Chief Magistrate does not fall within any of the matters listed in either ss 208 or 219B of the Act.

17. The plaintiffs contend the Chief Magistrate made the following legal errors:

(a) Misapprehension of the Chief Magistrate's jurisdiction in relation to the second charges (Ground 1);

(b) Acting contrary to s 54 of the Act (Ground 2);

(c) Failing to deal with the second charges in accordance with law (Ground 3);

(d) Error in holding that the plaintiffs could not plead guilty to the offence via his or her counsel (Ground 4); and

(e) Error in holding that the plaintiffs were required to answer the second charges personally (Ground 5).

18. These grounds form the issues for determination on judicial review. Although there was passing reference to a denial of procedural fairness in the written submissions of the plaintiffs, the issue was not one of the grounds articulated in the applications and was not argued during the hearing.

19. The acceptance of a guilty plea involves an exercise of prosecutorial discretion. The independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what: Maxwell v The Queen (1996) 184 CLR 501 (Maxwell) at 534 per Gaudron and Gummow JJ, cited in Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 (Likiardopoulos) at [37] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

20. The prosecutorial discretion was explained by Gaudron and Gummow JJ in Maxwell at 534 as follows (emphasis added and citations omitted):

The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as "the prosecutorial discretion". ...

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

21. To similar effect, in Magaming v The Queen [2013] HCA 40; 525 CLR 381 (Magaming) Gageler J stated at [68] (emphasis added):

It is undesirable for there to be close curial involvement in prosecutorial processes since the courts are a forum where criminal judgment is administered. Such processes necessarily incorporate a decision as to whether a particular charge is to be laid, and in some circumstances whether a particular charge, having been laid, is to be proceeded with.

22. In Ayles v the Queen [2008] HCA 6; 232 CLR 410 (Ayles), Kiefel J (as her Honour was then) (with whom Gleeson CJ and Heydon J agreed) said at [71] (emphasis added):

In Director of Public Prosecutions (SA) v B Gaudron, Gummow and Hayne JJ referred to the fundamental importance of the line drawn between the decision whether to institute or continue criminal proceedings, the province of the executive, and decisions directed to ensuring a fair trial and the prevention of abuse of the court's processes, the province of the courts. In Maxwell v The Queen Dawson and McHugh JJ pointed out that, save where it is necessary to a fair trial or the prevention of abuse, courts in Australia do not purport to exercise control over the institution and continuation of criminal proceedings. In Barton v The Queen it was said that it ought now be accepted that certain decisions involved in the prosecution process are insusceptible of judicial review. They include the decision whether to lay or prosecute a particular charge. In Maxwell v The Queen the refusal of the trial judge to accept a plea, which the prosecution would accept, was considered to be of the nature of a review.

23. The reference by Kiefel J to Director of Public Prosecutions, South Australia v B [1998] HCA 45; 194 CLR 566 (DPP (SA) v B) was to a case where the trial of the respondent had not begun. The prosecutor sought to enter a nolle prosequi (a formal notice of abandonment or discontinuance of the prosecution), but the trial judge declined to receive it. The passage referred to by Kiefel J was to the majority's statement at [21]:

The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance. ...

24. Having referred to the passages in Maxwell at 534 and 513-514, the majority then stated at [22]:

The accused's trial not having begun and the decision being a decision about whether to continue a prosecution, the question whether to do so was a matter which fell within the province of the executive. It was not a question which arose at the trial of an accused. And the trial not having begun, no question could arise whether the entry of a nolle prosequi constituted an abuse of process.

25. Although the facts in the present case concerned the withdrawal of the charges as opposed to the formal entry of a nolle prosequi, I cannot see any reason why the same principles would not apply. This is because the announcement of a nolle prosequi simply brings proceedings on the indictment to an end and does not bar a fresh indictment and a trial on that fresh indictment: see Beckett v New South Wales [2013] HCA 17; 248 CLR 432 (Beckett) at [3] (and the cases there-cited) and [43].

26. The decision of Beckett was about a different issue, being the consequences for a subsequent action for malicious prosecution. However, the High Court had cause to consider whether there was any difference between a nolle prosequi and the exercise of a power under s 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW) to terminate the prosecution of proceedings. The majority held at [53] that there was no principled reason to distinguish a prosecution terminated by the entry of a nolle prosequi or a direction by the Director of Public Prosecutions under the statutory power from other forms of termination falling short of acquittal.

27. Further, although a court has the power to refuse to accept a nolle prosequi, that power is only exercised rarely and for the same reasons as those stated in Maxwell, namely where it is necessary to ensure a fair trial (that is, to prevent injustice) or the prevention of an abuse of process, as can be seen from the passage extracted DPP (SA) v B above and from DPP v A (a child) [2001] WASC 2; 23 WAR 331 at [36]. In this jurisdiction R v YL [2004] ACTSC 115; 187 FLR 84 (R v YL) at [67]-[76], per Crispin J, is to similar effect. His Honour went on to state his reasons for rejecting the entry of a nolle prosequi on the basis that in the circumstances before him, it clearly constituted an abuse of process (R v YL at [87] and [91]).

28. Thus, I consider it well established that whatever the means by which a prosecutor terminates proceedings falling short of an acquittal, 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: Maxwell at 512 per Dawson and McHugh JJ; Thompson v Judge Byrne [1999] HCA 16; 196 CLR 141 at [24].

29. The plaintiffs argued that the Chief Magistrate misapprehended the ambit of 'prosecutorial discretion' and concluded erroneously that the exercise of the discretion confined the jurisdiction of the Magistrates Court under the court's own statute.

30. The plaintiffs further argued that the Chief Magistrate erred in finding that the CDPP had power to withdraw the charges with or without the leave of the court below.

31. However, the legal principles set out above demonstrate that there was no error in the Chief Magistrate's decision to mark the second charges as withdrawn. The course taken by the Chief Magistrate in refraining from interfering with the prosecutor's discretion was entirely in accordance with the principles stated above in Maxwell, Likiardopoulos, Ayles and Magaming.

32. The plaintiffs have misunderstood the Chief Magistrate's reasoning. Her Honour did not conclude that the exercise of prosecutorial discretion confined the jurisdiction of the court below under its own statute. Rather, her Honour found that s 54 of the Act did not address the question. The proper construction of s 54 of the Act is addressed separately under Ground 2 below.

33. The plaintiffs relied upon the decision of Gregg v O'Connor (Unreported, Supreme Court of New South Wales, Sully J, 6 September 1991) where it was asserted that a similar situation arose, although it is not clear from the facts set out in the reasons for judgment whether any plea had been entered in the proceedings before Sully J. The magistrate in the court below had marked the relevant papers simply to the effect that the charge had been 'withdrawn'. Sully J held that this was an error and that the magistrate should have instead required from the prosecutor a clear and unequivocal statement as to whether or not the prosecutor was proposing to adduce evidence in support of the charge as laid, and having received no evidence in support of the charge, then dismissed it.

34. That decision was delivered before any of the subsequent High Court authorities set out above. It does not reflect the current state of the law. As seen from the emphasised passages in Maxwell extracted at [20] of these reasons, the prosecutorial discretion is not limited to either entering a nolle prosequi or leading no evidence. They are 'aspects' of the discretion, but they are not the only options for termination available to the prosecution and each case will depend on its own facts, including the progress of the matter and in particular whether any plea has been entered or any steps taken by the accused since the charge was laid that may result in curial intervention being required.

35. Here, the decision to proceed with the original charges and the choice not to proceed on the second charges that had been filed was not only open to the CDPP as prosecutor; it was one that, in the absence of an abuse of process (or the lack of a fair trial), was not amenable to judicial review.

36. Counsel for the plaintiffs, when appearing in the court below, was heard on the question of the withdrawal of the second charges and did not raise any possibility that the court was required to intervene in order to prevent an abuse of process or to ensure a fair trial. Indeed, it is difficult to see how any such submission could have been made in the circumstances here. As indicated by the solicitor for the plaintiffs on 10 November 2017, the parties had simply not managed to finalise the terms of any negotiations in respect of the second charges which had only been filed two days earlier in anticipation of a plea offer being accepted. The parties were thus proceeding to a contested hearing on the original charges because the plea offer had been withdrawn.

37. The question of whether the leave of the court was otherwise required did not arise. No guilty pleas had yet been entered. The statements made by Mr Pappas when he announced his appearance cannot be seen as anything more than an intention of his clients to plead guilty to the second charges, although Mr Pappas may have intended otherwise, and that is why the magistrate stated that the proceedings will not proceed by sleight of hand.

38. It cannot be the case that by counsel standing up and bundling up as part of announcing his appearance that his clients plead guilty to charges he well knows are being withdrawn (because the plea offer has been withdrawn), the court is then required to treat the matter any differently from what the position would have been had counsel for the plaintiffs simply mentioned his appearance in the usual way and the prosecutor then had the opportunity to withdraw the charges before the matter proceeded further.

40. The plaintiffs argued that because proceedings had been instituted by the laying of an information in each case, s 54 of the Act required that the charges be heard and decided.

41. As stated by the Chief Magistrate, all that s 54 of the Act requires (relevant to the present case) is for the Magistrates Court to hear and decide an information if both parties to the information appear personally or by lawyers. The section simply requires magistrates to exercise their jurisdiction: Canham v ACT Magistrates Court [2014] ACTSC 14; 9 ACTLR 84 (Canham) at [24]. It does not set the boundaries for how the jurisdiction is to be exercised.

42. For example, in Canham, Penfold J stated at [25] that in exercising the jurisdiction in respect of any information laid in the Magistrates Court, s 114 of the Act requires a magistrate to follow a specified process. In the present case, where the plaintiffs had indicated an intention to plead guilty, the process to be followed was set out in s 113 of the Act, which is in the following terms:

113 Proceeding at hearing on defendant's confession

If the defendant is present at the hearing, the substance of the information must be stated to the defendant, and the defendant must be asked if the defendant has any cause to show why the defendant should not be convicted or why an order should not be made against the defendant, and if the defendant has no cause to show, the court may convict the defendant, or make an order against the defendant accordingly.

43. However, such procedure was not required to be followed in the present case, because each information comprising the second charges was withdrawn before reaching that stage. In respect of the second charges, there was no longer an 'information' for the Magistrates Court to hear, let alone determine in accordance with the plaintiffs' intention to plead guilty and in the face of the first defendant's refusal to accept the pleas. The words of s 54 do not require the Magistrates Court to proceed to hear and decide a case no longer being prosecuted, nor do they require the Magistrates Court to accept a proffered plea of guilty.

44. Further, clear words would have been necessary before s 54 of the Act would be construed as intruding into the province of the executive. There is no express language and no necessary implication to suggest that s 54 has any operation on the prosecutorial discretion, which is a feature of the process outside a court's jurisdiction, subject to preventing an abuse of process or unfair trial as discussed above.

45. The Chief Magistrate was therefore correct to find that s 54 of the Act did not address the issue. Ground 2 has not been made out.

46. Ground 3 was that the Chief Magistrate failed to deal with the second charges 'in accordance with law'. However, the parties' submissions and the oral argument before me treated this ground as part of broader arguments in relation to the other grounds. The success of this ground rises and falls with the other issues raised on judicial review.

47. Grounds 4 and 5 may be dealt with together because they are really the same argument put different ways. The contention was that the Chief Magistrate erred in requiring the plaintiffs to answer the second charges personally, and in holding that the plaintiffs could not plead guilty to the offence via his or her counsel.

48. The plaintiffs first took issue with a comment made by the Chief Magistrate that the plaintiffs had not yet been charged. The submission was that the plaintiffs had been charged because they were each served with an information, relying on Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 36 at [39].

49. However, a fair reading of the statement of the Chief Magistrate, "I hadn't charged the defendants", in the context of what had unfolded before her Honour, was not that there was not yet any charge to answer, but that the formal procedures for stating the charge and then entering the plea to the charge under s 113 of the Act had not yet taken place.

50. What was operating on her Honour's mind can be seen from statements made in this Court, starting with Feeney at [44]:

If, ... it would be possible as a matter of current practice for a person to be committed to the Supreme Court on an indication from his or her legal representative of an intention to plead guilty, and for the person then to be sentenced in the Supreme Court on an indication also from his or her legal representative of an intention to adhere to that plea of guilty, the court could finalise the sentencing without the accused person ever having personally articulated a plea of guilty. Whether this would affect the validity of the sentencing process is a matter that need not be pursued at this point.

51. Subsequently in Mayen, Refshauge J stated at [82]:

... it appears that the weight of authority requires a plea, especially a plea of guilt, to be entered orally in the Magistrates Court directly by the defendant.

52. His Honour went on to refer to s 113 of the Act, and traced (with trademark diligence) the authorities on the point before finding at [92]:

In my view the legislation requires the defendant, if present in court, to enter a plea personally. ...

53. At [107] of Mayen, his Honour concluded, among other findings, that the Magistrates Court should comply with s 113 of the Act. The plaintiffs did not submit that Refshauge J's conclusion was wrong, and I respectfully agree with his Honour's reasoning. Accordingly, it cannot be said that the Chief Magistrate erred in similarly referring to her intention to follow the process mandated by the Act.

54. Accordingly, Grounds 4 and 5 have not been made out.

55. As the plaintiffs have not succeeded in establishing any error on the part of the Chief Magistrate, the applications will be dismissed. The first defendant seeks the payment of costs and I do not see any reason here why costs should not follow the event.

1. Proceedings SC 470 of 2017, SC 472 of 2017 and SC 473 of 2017 are dismissed.

2. The plaintiffs are to pay the first defendant's costs.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam