Dexter v The Queen [2004] HCATrans 229 (23 June 2004)

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Dexter v The Queen [2004] HCATrans 229 (23 June 2004)

Last Updated: 5 July 2004

[2004] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B1 of 2003

B e t w e e n -

GEOFFREY ROBERT DEXTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 9.33 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the applicant. (instructed by Legal Aid Queensland)

MR D.J. BUGG, QC: May it please the Court, I appear with my learned friend, MR S.J. KEIM, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

MR P.A. KEANE, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MR G.R. COOPER, for the Attorney-General of the State of Queensland intervening in response to the 78B notice in support of the respondent. (instructed by Crown Law (Queensland))

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, this is not a case about a back sheet, but the back sheet perhaps points up the interplay of form and substance upon which we rely. In form there are two contending ways of characterising what happened. Mr MacSporran announced his appearance. That is the form that his words took recorded in our written submissions 224 and 225 of the application book. He is instructed by the Commonwealth Director of Public Prosecutions for the Crown. He appears for the Commonwealth, corrected to “For the Commonwealth DPP” by his Honour. Of course, as one sees from page 2 of the application book, there is, so far as our opponents are concerned, an even more robust element of form where the indictment commences:

ALAN MACSPORRAN, duly appointed to prosecute in this behalf for Her Majesty the Queen INFORMS THE COURT that –

and presented that indictment himself pursuant to the commission personal to him. In our submission, however, this question of who is doing what and on behalf of what polity is, and must always be, in criminal proceedings a matter of substance. Not that form is unimportant, but that matters of form such as the two contradictory matters to which I have already drawn attention require an investigation of substance.

We then come to that matter of substance. One may start, in particular, with the correspondence by which we know at the formal level, under their co-operative agreement, the two DPP offices dealt with each other concerning the presentation of this indictment which was to prosecute State offences only. At page 138 of the application book the request which started this whole chain of correspondence, and back to which reference needs to be made in order to understand following letters, concludes in its first paragraph, seeking consent, to specifying that the consent is sought:

to this office –

namely, the Commonwealth Director of Public Prosecutions Brisbane Office –

conducting the prosecution of Mr Dexter in the Brisbane District Court.

In our submission, that remains an accurate description of what actually happened concerning the deployment of public servants and the use of public resources in the prosecution.

At page 153 you find, as the form of the indictment was refined, after consent had been given on the previous page in answer to the letter I have already taken you to at 138, the request for consent to the indictment which was actually presented. It refers back to the letter of 1 September, which itself, of course, had been a response to the letter at 138. Again, all that is sought is consent to the presentation of the indictment. There is no question that the Queensland Director of Public Prosecutions is taking a role seen by either party to this correspondence as involving the presentation of the indictment or the conduct of the prosecution.

At 174 the brief complete answer on behalf of the Director of Public Prosecutions for Queensland, simply consents to the presentation of the indictment, a form of words which, as a matter of substance, does not, of course, involve giving instructions for it. It is consenting to something for which instructions come from the Commonwealth.

Now, so far as the Commonwealth DPP is concerned then, there are only two choices. Either his and his office’s intervention in these proceedings should be regarded as supererogatory, something mere surplusage which can and should be ignored as a matter of legal substance in examining the validity of the prosecution – a surprising matter bearing in mind that instructions concerning critical matters in relation to this prosecution can be seen as emanating and emanating only from that office.

GLEESON CJ: What do you mean by that expression “the validity of the prosecution”?

MR WALKER: As to whether the presentation of the indictment was in accordance with law, that is, if a private individual purports to present an indictment at law, that act does not ever gain the character necessary, validly, to commence a prosecution. In our submission, the same is true when a public officer, acting beyond power, does the same thing.

CALLINAN J: How was Mr MacSporran acting beyond power?

MR WALKER: With respect, that comes to the second matter in relation to the Commonwealth DPP. The second possibility is that the assistance of the Commonwealth, in a way that may or may not give rise to questions by the Commonwealth Auditor-General concerning that expenditure, is being lent to something which, by reason of Mr MacSporran’s commission, is, and always will be, valid because he had a commission to present the indictment and conduct the prosecution.

CALLINAN J: There is nothing to stop Mr MacSporran, except perhaps convention, from initiating this prosecution himself, as the holder of a commission to prosecute, is that not right?

MR WALKER: We argued below and would seek in any appeal further to ventilate the proposition that one cannot interpret the authority granted by the State Act as extending to what I will call frolicsome prosecutions by personal holders, because it is to prosecute in the name of the Queen which carries with it the executive authority in relation to decisions to prosecute.

CALLINAN J: Yes, but the actual conduct of the prosecution is entirely in the hands of Mr MacSporran. He has independent obligations to the court and he has obligations as the holder of a commission to prosecute.

MR WALKER: That, of course, is - - -

CALLINAN J: The only role of the Commonwealth was to pay the costs, was it not?

MR WALKER: Well, yes and no.

CALLINAN J: Or to assist perhaps. Pay the costs and provide some assistance.

MR WALKER: Leaving aside the money, although I will return to why that nonetheless does have significance, in our submission, there are instructions in criminal proceedings notwithstanding, as in other proceedings, counsel have an independence or a personal responsibility to exercise their own forensic discretion.

CALLINAN J: Well, Mr MacSporran could take the view that there was not a case. He could enter a nolle. I mean, there may be a convention under which he would not do it without instructions, but he is fully entitled to do it. He is fully entitled to say to the court, “I don’t think there’s any case here at all and I don’t propose to prosecute it.”

MR WALKER: Your Honour, we accept fully that there are responsibilities, which is the way we would put it rather than just discretion, which can be discharged only personally by prosecutors. There are also, however, responsibilities finally political in nature for the prosecution of crime, which is indicated by the form and substance that the prosecution is in the name of the sovereign.

CALLINAN J: What was done here that was illegal?

MR WALKER: What was done here which was illegal is that the Commonwealth DPP purported by someone briefed by the Commonwealth DPP, who appeared for the Commonwealth DPP, to conduct the prosecution of State offences only beyond the authority which is conveyable by the terms of the Commonwealth DPP Act. Now, what was unlawfully done in short was that the officers of the Commonwealth polity were engaged in the prosecution of a State offence, the State offences being prosecutable only in the name of the State as a polity – an entire fracturing of the political responsibility, which is one of the aspects of the control and accountability of criminal prosecutions in this country.

CALLINAN J: Mr MacSporran at all times had an independent responsibility, obligation, discretion to act appropriately as a prosecutor of a State offence, is that not right?

MR WALKER: Yes.

CALLINAN J: And the Commonwealth could not have prevented him in any way from doing that, from fulfilling those obligations.

MR WALKER: Your Honour there puts to me a question of legal authority. In our submission, a nice question even of legal authority would arise once a person in Mr MacSporran’s position has accepted a brief, that there are obligations in relation to the brief which themselves limit the authority of the prosecutor. A brief to prosecute X does not authorise the person at the expense of the client to prosecute Y, for example. In other words, the authority to present indictments, which is perfectly general, does not permit transcending the limits of the brief delivered upon which one is being paid - - -

CALLINAN J: Would it have been different if the Commonwealth had provided the money to the State and the State actually wrote the cheque to Mr MacSporran for his fees?

MR WALKER: And the Queensland Director of Public Prosecutions conducting the prosecution, then that would have been different. That would have been all the difference, because that is, of course, a set of public officers regulated by public acts responsible to the Parliament of Queensland, an entirely coherent accountability and responsibility for the prosecution, which is completely fractured in this case. Accountability and responsibility for the prosecution in this case extends to Queensland only for its so-called consent to the presentment of the indictment, and in every other respect, as their correspondence and apparently their understanding of their agreement shows, it was the responsibility of the Commonwealth.

We have referred in our written submissions to the peculiarities that would emerge if different views, as occurs from time to time between different prosecutors, were to arise between the Queensland Director of Public Prosecutions and the Commonwealth Director of Public Prosecutions halfway through a difficult trial as to what should happen, for example. Matters upon which, though prosecutors individually have responsibilities and discretions, it is notorious that in a more than conventional way the DPP office makes decisions in the public interest and accountable in the public way. Two different streams of accountability, one to Brisbane, one to Canberra, would apply.

More particularly, insofar as the Commonwealth were claiming, as we submit they must in this case, to be acting pursuant to statutory authority, in the event of any such conflict, section 109 of the Constitution would be engaged so as to resolve that conflict in favour of the Commonwealth, leading to what, in our submission, is the worse than anomalous position, in constitutional terms and in terms of the administration of criminal justice, that the Commonwealth would have paramount control over the prosecution of purely State offences. Nothing in the Constitution suggests that was ever intended to occur. Which leads us finally to what, in our submission, is and could be the only statutory means by which the Commonwealth DPP could have been justified in, to use their words, conducting this prosecution. That is section 6(1)(m) of the Commonwealth DPP Act, which your Honours will find in the bundle of materials at tab 25.

Now, the critical thing about 6(1)(m), particularly when one contrasts it with the correlative provision for members of the office, the staff, section 17, is that section 6(1)(m) refers to the possibility of a personal appointment of the Director himself or herself:

an appointment . . . to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences;

In our submission, it is not possible anywhere else in the statute to find any statutory mandate for the Director to carry on a State prosecution. If one turns, for example, to section 15, which is the provision permitting Mr Bugg to be in more than one place at once, that is, of course, strictly limited to the capacity to brief out in proceedings:

(i) instituted, taken over or carried on by the Director;

(ii) to which the Director is, or is seeking to become, a party;

(iii) in which the Director intervenes or seeks to intervene;

Only the first of those could possibly have applied in this case. Mr MacSporran was briefed by the Director. If section 15 be invoked to justify that expenditure of Commonwealth money and that deployment of Commonwealth staff in the form of those instructing him and assisting him, then it could only be section 6(1)(m), but section 6(1)(m) cannot justify it because that is a personal commission, and at no time, of course, did the Director in person act pursuant to that commission.

Now, if we are correct in that analysis of the statutory authority, then there does emerge in this case an important matter warranting a grant of special leave by this Court in order to ascertain the limits of what can be co-operatively agreed pursuant to either implied statutory powers or to pure executive powers between these two important offices in Queensland and in the Commonwealth. It will obviously transcend anything special to Queensland. The validity, ultimately the political accountability, of prosecutions in the name of Queensland, in our submission, is a self-evidently fundamental safeguard in relation to criminal proceedings generally. For those reasons, in our submission, there ought to be a grant of special leave.

GLEESON CJ: We do not need to hear you, Mr Bugg or Mr Keane.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case. The application is dismissed.

AT 9.50 AM THE MATTER WAS CONCLUDED