Director of Public Prosecutions v B A36/1996 [1997] HCATrans 270 (3 September 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A36 of 1996

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

B

Respondent

Application for special leave to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 3 SEPTEMBER 1997, AT 4.34 PM

Copyright in the High Court of Australia

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friend, MS W.J. ABRAHAM, for the applicant. (instructed by Director of Public Prosecutions)

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MR J.A. ENGLISH, for the respondent. (instructed by Legal Services Commission of South Australia)

TOOHEY J: Yes, thank you. Mr Solicitor, you are asking for an order in this matter by way of identification of the respondent, are you, or non-identification?

MR SELWAY: Yes, your Honour, and apologise for not having raised the matter earlier. There is a summary of argument on the question - two reasons for it.

TOOHEY J: I do not know that you need to take us to that, but do you have any problem with that, Mr Abbott?

MR ABBOTT: Of course not, your Honour.

TOOHEY J: We will make an order in those terms.

MR SELWAY: I am sorry, your Honour?

TOOHEY J: We will make an order as sought in respect of the name of the respondent.

MR SELWAY: I am obliged to your Honour.

TOOHEY J: Mr Solicitor, perhaps we could look to Mr Abbott first.

MR SELWAY: If it please the Court.

TOOHEY J: Mr Abbott, I take it that if there were a grant of special leave in this matter, that the position of your client would not be in jeopardy in any legal sense.

MR ABBOTT: Only financially.

TOOHEY J: Yes.

GAUDRON J: I do not understand that. Has there been a grant of legal aid?

MR ABBOTT: No.

TOOHEY J: There is something in the documents that suggests that the Crown accepts responsibility for costs in any event. Have I misread the papers?

MR SELWAY: No, your Honour. In fact, it is badly drafted in our outline, I might say, for which I take responsibility. But the fact of the matter is, under the Criminal Law Consolidation Act the Crown is liable for the reasonable costs.

McHUGH J: Sections 350 and 351.

MR SELWAY: Yes, your Honour. Now, there might be some argument between my friend and myself as to what "reasonable" might be in the circumstances but, at the end of the day, we are liable for costs.

TOOHEY J: Well, we are not really concerned with that. Mr Abbott, the questions raised by the application are important, are they not?

MR ABBOTT: Of very limited importance, we would submit. In our submission, my learned friend is travelling over ground which is well trodden. What we have here, basically, is a situation where the learned trial judge, and then our Full Court, held that, on an occasion where the exercise of the power by the trial judge was under the heading of "abuse of process", that that power extended to prevent the entry of a nolle prosequi. Now, as I understand my learned friend - - -

GAUDRON J: What are we talking about there? Are we talking about the return of the indictment to the Crown?

MR ABBOTT: No, your Honour, in South Australia we are not talking about that, we are talking about the actual endorsement on the court file; that is, on the information - - -

GAUDRON J: Who makes that endorsement?

MR ABBOTT: The associate, in the normal course of events, or the criminal registrar if he or she happens to be in court. In my submission, I do not think my learned friend contends that he has found some novel source of power and that he seeks to assert that there is a novel source of power which he can utilise to lodge, or have entered a nolle prosequi. The issue is, as I read his argument, the tension between, on the one hand, where he says really all the judge was doing, and all the Full Court has said he was doing, was reviewing the Director of Public Prosecution's decision, and you cannot review the decision.

In actual fact, what happened, and what the Full Court said - and we respectfully rely upon what fell from Justice Mulligan - at page 29, line 30 of the application book, he said this:

The refusal to accept a nolle prosequi does not involve a review of the decision of the Director of Public Prosecutions to enter the nolle prosequi.

GAUDRON J: But I do not understand that. I have read that paragraph. I mean, it may be that it is being done on grounds that are peculiar to the court, but it does, in fact, involve a review of the decision, because the decision must be to continue rather - well, to discontinue, in a sense - rather than to have the matter disposed of by a verdict.

MR ABBOTT: It really depends what emphasis one places on the word "involve".

GAUDRON J: Yes.

MR ABBOTT: It may, of necessity, pick up the reasons utilised. For example, if there were a clear case that the case was going badly for the DPP and he decided that now is the appropriate time to enter a nolle prosequi, and then it could be clearly shown that this was so he could have a second bite of the cherry, that might be said to be incidentally a review of his decision. But what the court is engaging in is an attempt to control abuse of its own proceedings.

TOOHEY J: But that is not quite the way it is put by all the members of the court, is it? And that is another problem with the judgments in the sense that Justice Debelle put the matter in terms of "exceptional circumstances", Justice Mulligan tended to put it in terms of "abuse of process", and Justice Nyland agreed with both of their Honours. So, what really is the effect of the judgment of the Full Court?

MR ABBOTT: Only this; we would say at line 39, on page 29 of the application book, Justice Mulligan got it right when he said:

The refusal to accept a nolle prosequi is not an exercise of power to review the decision of the prosecuting authority but, when exercised, of the power to protect the integrity of the process of the Court - - -

McHUGH J: Now, could I raise this with you? It just seems to me that this is a fundamental misconception of what is involved here, and it reflects the use of the prerogative. What we are dealing with here is a statutory power. The Director of Public Prosecutions is given a statutory power to enter a nolle in appropriate cases and, prima facie, what court has got the power to review that, or refuse to accept it, except one could say that this is not an appropriate case. This case seems to have proceeded by reference to the common law prerogative, and it may be that the whole matter has got to be re-examined in the light of these statutory powers given to DPPs around the country.

MR ABBOTT: In my submission, the court did, in fact, examine it on the basis of a statutory power, and if you look at the previous page - page 28, line 20, that section - I will not read it out - is set out there. Then, the court observed - Justice Debelle observed, at line 25:

Section 7(1)(e), therefore, provides a criterion by which to determine whether it is appropriate to permit the entry of a nolle prosequi. The only avenue available to determine whether the power is being exercised in an appropriate case is the courts. If the courts do not have jurisdiction, there is no means by which an abuse of the power of the Director of Public prosecutions to enter a nolle prosequi can be checked.

McHUGH J: Yes, but surely that has got nothing to do with whether or not it is an abuse of power.

GAUDRON J: Yes, it would come down to whether it is an appropriate case. That would the issue.

McHUGH J: That is the issue.

GAUDRON J: The sole issue would be appropriateness, not power to review or the like. That is to say, there may be questions of statutory construction.

MR ABBOTT: I can see that the focus, perhaps, of the long judgment of Justice Debelle could more properly have been the exercise of a statutory power, and what are the limitations on its exercise, and can a judge, by calling into aid the abuse of process power, prevent the exercise of the statutory power.

McHUGH J: But his Honour's judgment is directed, particularly in the penultimate paragraph on page 28, about the court's power.

MR ABBOTT: Yes.

McHUGH J: But it is not the court's power, it is the DPP's power. And the real question, arguably, is whether a particular case is an appropriate case.

MR ABBOTT: But this case is simply the tension - - -

McHUGH J: Well, that may be.

MR ABBOTT: - - - between the statutory power, on the one hand, of the Director of Public Prosecutions, under section 7, and the common law power - the inherent power of the court to control its own processes. There is nothing new in that, and we would submit that that tension - - -

McHUGH J: Yes, but inherent powers have got to give way to statutory powers. No inherent power of a court can overcome a statutory power.

MR ABBOTT: That is your Honour's view, but that is the view of the Full Court of South Australia. They held that the inherent power of the Full Court to control its - of any court - to control its own processes was superior to the statutory power, because of the qualification of appropriate cases. If the statutory power is not absolute, it is qualified, and if that power, being qualified, can be reviewed by a court, then it can be done so under the rubric of abuse of process.

McHUGH J: No, but you do it under the element of appropriate cases. It has got nothing to do with inherent power of the courts. I just do not understand this notion that somehow an inherent power overrides a statutory power, with great respect. I mean, Parliament is still King, is it not, or Queen?

TOOHEY J: I do not know that you should assume that silence of the other Judges is necessarily acquiescence with Justice McHugh, Mr Abbott.

MR ABBOTT: Good, I will proceed, in that case, your Honour.

TOOHEY J: Because there are constitutional considerations.

McHUGH J: Chapter III of the Constitution is another matter altogether. But we are dealing here with State courts.

MR ABBOTT: Exactly.

TOOHEY J: But in any event, this really points up the importance of the matter, does it not?

MR ABBOTT: It highlights some of the issues. But we say that there is no doubt that the power of the court to control its own process - if the rubric of abuse of process is superior to a qualified power, such as the power to present to a court a nolle prosequi in appropriate cases.

McHUGH J: There may be Kable questions involved in it as well, in a case of State courts, and Chapter III, because they exercise federal jurisdiction.

MR ABBOTT: I agree that little consideration was given to the qualification of the power and what was meant by "appropriate" and how that impinged upon the inherent power. But, in our respectful submission, the case was clear enough. It was resolved in favour of the inherent power of the courts and my learned friend - - -

McHUGH J: But the court has many powers in respect of the fairness of a trial, but if Parliament says you cannot cross-examine a complainant in a sex case in certain matters, that is the end of it. It does not matter how unfair you might think it is to the accused - and leaving aside Chapter III of the Constitution.

MR ABBOTT: I think I have put what I think are the important issues that can be raised against the grant of special leave. We would submit that essentially it is settled law, the court has this inherent power to control its own processes, refusing to accept the DPP's nolle prosequi is but one incident of that power, and notwithstanding that the DPP has a power to seek it in appropriate circumstances.

The only other matter I can add is that it is quite clear that there is something for the court to do. It is not just a decision by the Director of Public Prosecutions, it, in fact, involves the indictment being found and the fiat endorsed on it. I refer to the application book at page 10, line 30 - - -

GAUDRON J: Could I interrupt you there? What happens to an indictment once a nolle has been entered in this State?

MR ABBOTT: It is not returned; it lies on the Supreme Court file, your Honour.

GAUDRON J: With the endorsement on it.

MR ABBOTT: With the endorsement on it. And this is what his Honour meant at page 10, line 39 - it starts at line 25, but at line 39:

Until the indictment is found and the fiat endorsed on it, the proceedings cannot be stayed -

So, the tension arises at the time when the judge is required, if he is to accept the nolle prosequi, to get the information - indictment - endorse it with the statement that the nolle prosequi has been entered and, at that stage, and only that stage, do the proceedings become stayed. And it is that inherent power to refuse to do it which we say should be duly recognised, and which raises no real issue because it is separate from, and superior to, the power that is sought to be exercised by the Director of Public Prosecutions, which is a qualified power.

TOOHEY J: We need not trouble you, Mr Solicitor. There will be a grant of special leave in this matter.

AT 4.49 PM THE MATTER WAS CONCLUDED