JUDGMENT No. 75.9...8. oom CATCHWORDS ADMINTSTPATIVE LAW - Tudicial veview - Administrative Derisiins (Tudicial Review! Act 1977 - -ommittal proceedings pending before Local Court in Svdney for offences under Crimes (Taxation Nffences) Act 1980 (Cth) - application for review of decision to institute and maintain prosecution proceedings against the applicant - stay of proceedings - abuse of process - delay - whether Director of Public Prosecution's decision to prosecute "pen fo review - whether question of abuse of process should be ="xamined by the magistrate. Director of Public Prosecutions Act 1983. ss.6, 7, ll Administrative Decisions (Judicial Review) Act 1977, ss.5, 6 Sch.2 Judiciarv Act 1903, ss. 39, 239A, 39B. 78. Justices Act (NSW) ss. 32-47 incl. Hill v. Chief Constable of West Yorkshire (1987) 2 W.L.R. 1126 R. v. Toohev; &x oarte Nerthern Land Council €1980-1981] 151 C.L.R. 170 Barton v. R. (1980) 147 C.L.R. 75 R. v. McAuley; Ex parte Fardell £19793 41 F.L.R. 267 RE. v Commissioner of Police of the Metropolis; Ex parte Blackburn (1968) 2 9.B. 118 R.ov. Metropolitan Police Commissioner; Ex parte Blackburn 7 Anon. (Mo,7) €19737 ALL EF 32" Lamk v. Miss (1923) 49 A.LLR. 933 Whitbread v. Gaoke; Purcell v, Tagke (1987) A A,CLL.C. Tne R. v. Derby Magistrates Court; Ex parte Brooks (1985) 80 Cr.App.R. 164 R. v. Bow Street Magistrate's Court; Ex parte Van Der Holst (1986) 83 Cr.App.R. 114 Connolly v. Director of Public Prosecutions (1964) A.C. 1254 Miller v. Ryan C1980] 1N.S.W.L.R. 93 R. v. Grays Justices; Ex parte Graham (1982) Q.B. 1239 R. v. Oxford City Justices; Ex parte Smith (DKB) (1982) m3, 75 Cr.App.R. 200 . R. v. McConnell (1985) 2 N.S.W.L.R. 269 Bell v. Director of Public Prosecutions of Jamaica (1985) 1 A.C. 937 Herron v. MeGregor (1985-6) 6 N.S.W.L.R. 246 R. v. Chief Constable of the Merseyside Police; Ex parte Calveley (1982) 2 W.L.R. 144 Watson v. Attornev-General (NSW), Court of Appeal, aan 29 May 1987, unreported myc Aboud v. Attornev-General (NSW), Court of Appeal, pean 16 October 1987, unreported Ex parte Cousens; Re Blacket & Anor (1947) 47 S$.R. (NSW) 145 DENNIS JAMES NEWBY v. POBERT GEORGE MOODIE, DIRECTOR OF PUBLIC PROSECUTIONS Neo. G703 of 1987 CORAM: Fox J. 24 December 1987 Sydney IN_THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G703 of 1987 ) GENERAL DIVISION ) BETWEEN: DENNIS TAMES NEWBY Applicant AND: ROBERT _ GEORGE MOODIE DIRECTOR OF PUBLIC PROSECUTIONS Respondents MINUTE OF ORDER JUDGE: FOX J. DATE OF ORDER: 24 DECEMBER 1987 WHERE MADE: Sydnev. THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY } No. G703 of 1987 ) GENERAL DIVISION ) BETWEEN : DENNIS JAMES NEWBY Applicant AND: ROBERT GEORGE MOODIE DIRECTOR OF PUBLIC PROSECUTIONS Respondents CORAM: FOX J. DATE: 24 DECEMBER 1987 REASONS FOR JUDGMENT FOX J. The applicant is being prosecuted by the second cespondent, the Director of Public Prosecutions, fcr four offences under the Crimes (Taxation Offences) Act 1980 (Cth) (the "Taxation Offences Act"). Committal proceedings have been commenced but no evidence has been called. The case has been set down for hearing before the Local Court in Sydney commencing on 1 February 1988. As a result of what was said on behalf of the applicant when the matter first came before the Local Court, two days were set aside (1 and 2 December 1987) for the hearing of a submission that the proceedings were an abuse of process. I am told that no submission to that effect has been made at any time to the magistrate conducting the proceedings and as things stand J in the Local Court. the matter is to proceed to a hearing on 1 February 1988. The informations were laid by the first respondent. Robert George Moodie, who I understand to be a Detective Sergeant in the Australian Federal Police. It is a clear enough inference that he was acting under the direction of the second respondent (3.11 of the Director of Public Prosecutions Act, 1983 (the "D.P.P. Act")) and it is unnecessary, indeed it would be incorrect, to be concerned with any problem which might otherwise arise from the exercise by the first respondent. as a police officer, of an independent direction in the laying of the charges. This application. which was filed on 3 December 1987, 1s made under the ministr ve Decision (Judicial Review) Act 1977 (the "Judicial Review Act"). As since amended it seeks review of "the decision of the respondents on or about 10 March 1987 to institute and maintain prosecution proceedings against the applicant ... as set forth in summonses. copies of which are annexed hereto". I set out in what follows the offence as alleqed in one of the summonses. as sufficiently indicative of the rest. Thev vary as to details, but all relv on s.7/2) and s.13(1) of the Taxation Offences Act. That Act came into force on 4 December 1980. Put shortly, the essence of the complaint is the long time which elapsed after the alleqwed offences were committed and before criminal proceedinas were commenced, and the resultant prejudice to the application if the prosecutions were now to proceed. "WHEREAS information hath this day been sworn by ROBERT GEORGE MOODIE before the undersianed. one of Her Maiesty's Justices of the Peace in ard for the State of New South Wales, for that you on or about 30 January 1981 at Sydney in the State of New South Wales and elsewhere were indirectly concerned in the entrv by Shareholder Ptv Ltd into an arrangement believing that the arrangement would be likely to secure generally that a company to wit Bulomi Pty Ltd would be likely ta be unable having regard to other debts of the said Bulomi Pty Ltd to pay future income tax pavable bv the said Bulomi Pty Ltd and income tax became due and payable by the said Bulomi Pry Ltd" The summons was dated 10 March 1987. and was returnable on 12 April 1987. The applicant also relied at the hearing before me on s.39B of the Judiciary Act, 1903, although no order nisi had been sought or any formal documentation filed showing reliance on the section. There was no obiection to this course and in the T1ircumstances I treated an application under the section as properly before me, and heard argument on both sides respecting ik. The application under the Judicial Review Act was made out of time. but there was no opposition to the time being extended, and the matter proceeded as if an appropriate order had been made. The arguments traversed a number of interesting and important matters, but I think that there are two basic questions which should first be faced. Although the amended application refers to the Maintenance as well as the institution of proceedings, there 15 in realitv only one decision the subiect of challenge. There has been no separate decision to maintain the proceedings. What has happened 135 the result of a decision to institute the proceedings, the action thereafter taken being only the ordinary and natural result of that decision. Following well-established authoritv, the exercise of the discretion to prosecute is not open to review in the courts (Hill v. Chief Constable of West Yorkshire (1987) 2W.L.R. 1126 at 1133-1134, R. v. Toohey; Ex parte Northern Land Council €1980-1981] 151 C.L.R. 170 at 283, Barton v. R. (1980) 147 C.L.R. 75 at 94, 96. 107, 109, 110, R. v. McAuley; Ex parte Fardel) £1979] 41 F.L.R. 267 at 274, Re v.Commissioner of Police of the Metropolis; Ex parte Blackburn (1968) 2 Q.B. 118 at 136). No distinction is to be made between the institution of committal proceedings, and the commencement of a hearing before the court (or tribunal) which is to determine the matter. although these are distinct steps. initiated bv different processes. In stating the position as I have I recognise a clear distinction between the (unexaminable) exercise ef the discretion to prosecute. and what happens thereafter. If. as I believe. the question of abuse of process can be examined by the magistrate, there is no risk of unfairness. The magistrate's decision can be reviewed at an appropriate stade by the Supreme Court, or, in its discretion. by this Court. Subject to the effect of any prior determination. the issue can be raised in the trial court, and dealt with by the judae. There are two matters which I should mention in relation to the legal position as I have stated it. The first is that the proceedings have been commenced at the instance of a statutory officer, and not by the Attorney-General. The freedom for review of the decision to orosecute is mast often related to che Attorney-General. The Director of Public Prosecutions has an independent discretion, although he has on request by the Attorney-General a duty to consult with him (s. 7 of the D.P.P. Act). One of his functions, which 1s stated in qeneral terms ard without express qualification. is "to institute proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth" (s.6(1)(c)), and of course the function of instituting prosecutions on indictment €3.6(1)(a)) and carrving on proceedings of the kind referred to in s.6(1)(c). It seems to me that the reasons given in more recent times for making unexaminable the discretionary decisions fo prosecute of the Attorney-General, now in practice largely supplanted by the Directar of Public Prosections. must avpiv equally to those of the Director. The principle does of course extend in its application beyond the persons mentioned. to other informants. The exclusion from examination of the discretionary decisions of these two persons mentioned does not mean that thev may not be examinable on substantial legal grounds, such as failure to observe statutory requirements. Ina later Blackburn case R. v. Metropolitan Police Commissioner: Ex parte Blackburn (No.3) €19737 1 All ER 324 at 331, Lord Denning M.R. referring to the earlier decision (above) said: "In R. v. Metropolitan Police Commissioner, «x parte Blackburn, we made it clear that. in the carrvina out 2f their dutv of enforcing the law, the police have 4 discretion with which the courts will not interfere. There might, however, be extreme cases in which he was not carrving out his duty. And then we would." The second matter for explanation is that the Director acts under statutory powers. He is not simply exercising a prerogative power, although an indictment will be brought in the name of the Queen, and the prerogative is behind the exercise of the power he is qaiven. It has sometimes been said that th oD Attorney-General's immunity derives from the fact that he tus exercising a prerogative power, but [I do not believe that the immunity is now rested on that foundation. What is material is that the Director's decisions are properly regarded as being made under an enactment within the meaning of the Judicial Review Act. There is here a statute requiring, or at least, permitting examination of a "decision" on certain grounds. One has therefore to ask the question whether the grounds upon which relief can be granted under that Act, found in sections 5 and 6, are applicable. In my view. and following the line of cases already cited the decisions are such that none of the arounds is applicable. The first point at which review would be available would be the decision of the magistrate on the matter, although. as I have indicated, and will repeat later in another context. it is most likely that this Court would in its discretion refuse relief, at least if the committal proceedings were continuing. In my view, in a case such as the present. a challenge that proceedings are an abuse of process should be made. in the first instance, before the court or tribunal hearing the matter, that is. the magistrate hearing the committal proceedings. That court is se1sed of the matter and the maqistrate can proceed to deal with the objection as a preliminary matter, or not, as 1s appropriate. Some evidence will be tendered, and he may have an opportunity which I have not had. to assess the credibility 37f witnesses. He will arrive at a decision. which may then be examinable in this court. Looking at the matter more broadlv, for a superior court to interfere and arrive at its own conclusion on the facts is to interfere with the system for the administration of justice. and has the potential to lead to lond delays while the separate issue of abuse of process is finally decided. If it were necessary to say so, I would in any event, in my discretion, decline to interfere, in accordance with what was said in Lamb v. Moss (1983) 49 A.L.R. 533. and has been reiterated in a number of subsequent cases. I do not think a situation can be tolerated in which committal proceedings are subject to constant and intermittent interruption by applications fo a higher court, and least of all by a court not of the State in which vurisdiction, and power to carry forward the proceedings fo trial and sentence (if appropriate) is constitutionally vested. In Whitbread v. Cooke: Purcell v. Cooke (1987) 4 A.C.~L.C. 305 at 313 Maxwell J. expressed the view that a supervisory court could exercise the power to declare proceedings Aan abuse of process without waiting upon the decision of the eourt directly concerned. He instanced a case where the abuse arose from matters extraneous to the trial. The decisions cited by him, so far as reported, were nevertheless cases in which decisions to proceed (or not) had been made bv inferior tribunals. How the claim of abuse of process was dealt with in those cases does not alwavs appear from the reports. In aach case what was sought in the superior court was judicial review, under the English legislation. In R. v. Derby Magistrates Court; Ex parte Brooks (1985) 80 Cr.App.R. 164 the justices. in the course of committal proceedings heard a submission based on abuse of process and rejected it. and by way of application for judicial review the matter came eventually before a Divisional Court, which upheld the decision. Ormond L.J.. in deliverina the judgment of the court said: "The discretionary power of a magistrates' court to stop a prosecution has only recently been recognised by this Court, and this development of the law is in a phase of capid growth....However in Brentford Justices, Ex parte Wong (1981) 73 Cr.App.R. 67; £1981] Q.B. 445, Donaldson L.J. sitting in this Court held that a magistrates' court did have this discretionary power. Since this decision there have been three cases which are reported in 1982 and 1983, and we have been provided with transcripts of the judgments in three other cases which were heard in 1983 and 1984." Tne jiudament of Ormond L.J. is also helpful in the quidance it provides for dealing with an application where it 18 based on delay. This case was followed. in other respects, by a differently constituted Court in R. v. Bow Street Magistrate's Court; Ex parte Van Der Holst (1986) 833 Cr.App.R. 114. where the question of abuse of process had been submitted to and decided by the magistrate. In this case the facts as presented are not in larce compass and it doubtless appears Lo the applicant, for that ceason, to be convenient and sensible for this court to interfere at this stage to bring the prosecution to an end. This appearance is however deceptive. The respondents, possibly in reliance on the matters which I have mentioned (and which were at the forefront of the submissions made on their behalf) did not in this application adduce evidence or cross-examine the applicant upon his affidavit. Had these things been done, the case mav well have presented a different aspect. The applicant claims probable prejudice under a number of different heads, most of which it is easy to assert, such as uncertainty of recollection aver the time which has elapsed. One. the supervening incapacity of a material witness is undoubted. and may perhaps be of real significance. The course of proceedings has not helped to establish the accuracy of other claims. As matters stand, the evidence, being unchallenged in the ways mentioned. might have to be accepted if the matter of fact was to be determined by me. I do not by this mean to suggest simply that an opportunity should be provided for it to be tested. It does however emphasise that there is in the case a practical consideration in the issue of abuse of process being determined (perhaps finally, perhaps not) in the correct place. I also do not suggest that mere lapse of time and the inferences to be drawn from it may not make a sufficient case. On the other hand, mere lapse of time, even of Many years, may not make a case. It is well established that the power to stay for abuse of process extends to criminal cases; one imaqines that it would apply a fortiori to them, if risk of unfairness to the accused arose which could not be cured satisfactorily in the court process (see Whitbread v. Cooke; Purcell v. Cooke (supra) and cases there cited). I understand abuse of process to be concerned laraely with "fairness", perhaps understood in a broad sense, although a matter treated as relevant. and sometimes critical, is the reason for delay, and the culpability of the 10. prosecution. Mere unfairness (a term of wide ambit) is not however sufficient: it must amount to abuse of process. The power to consider and stay for abuse of process is reqarded as part of the inherent jurisdiction of a court (Connollv v. Director of Public Prosecutions (1964) A.C. 1254, 1334-6, 1361). It is relevant to observe that the trial process ina criminal case has many safeguards against unfairness to the accused. The committal proceedings also require fairness, and compliance with statutory requirements, but the result decides nothing of finality except that there is or is not evidence upon which the defendant may or may not be required, as the case may be, to stand his trial. Where the ground relied upon is what is called delay, but which is less emotionallv described as lapse of time, and it 1s sought to arrest proceedings at the outset, the case must be exceptional (or, as is said in one case "most exceptional") before the Court (or tribunal) will act (see Whitbread (supra) p.31l and cases there cited). In the circumstances, it would be wrong for me to attempt to decide the issue. or comment further on the evidence. There are now a number of cases which help to clarify the relevant law (Miller v. Ryan £1980] 1N.S.W.L.R. 93 at 109, R. v. Grays Justices; Ex parte Graham (1982) Q.B. 1239 at 1247, R. v. Oxford City Justices; Ex parte Smith (D.K.B.) (1982) 75 Cr.App.R. 200 at 206. R. v. McConnell (1985) 2 N.S.W.L.R. 269 at 272-277, Bell v. Director of Public Prosecutions of Jamaica (1985) 1 A.C. 937 at 951-952. R. v. Derby Magistrates Court; Ex parte Brooks li. (1985) (supra) at 168-169, Herron v. McGregor (1985-6) 6 N.S.W.L.R. 246 at 250-256, R. v. Chief Constable of the Merseyside Police; Ex parte Calveley (1986) 2 W.L.R. 144 at 156, Whitbread v. Cooke: Purcell v. Cooke (supra) at 308-317, 321, 323, 327. Watson v. Attorney-General (N.S.W.), Court of Appeal, 29 May 1987, unreported at 20-25. 729, 32-38 'Special leave to appeal to the High Court refused. 16 October 1987), Aboud v. Attorney-General (NSW). Court of Appeal, 16 October 1987, unreported per Kirby P. at 24. 34-37, per McHugh JA. at 4-16). The power to stay proceedings for an abuse of process, although inherent, is plainly an exceptional one to be exercised with caution and ina clear case. I would add in relation to committal proceedings, that the fact that the prosecuting authority can decide to proceed notwithstanding a decision not to commit. or can decide not to proceed in the converse case. is not relevant to the magistrate's determination, anymore than it would be on review by a superior court. It has been held that the principles I have referred to apply toa magistrate hearing committal processes (Miller v. Ryan, (supra), R v. Derby Magistrates Court; ex parte Brooks. (supra)), In committal proceedings, which are themselves to be regarded as fundamentally administrative in nature, there are steps which proceed according to statutory provisions, which affect its exercise (see Justices Act (NSW) ss.32-47 incl.). although I have for the present purposes accepted that thev are in substance in the same position as curial proceedings, The prosecution relates to a federal offence, and the magistrate may in this sense be regarded as acting federally. There is a supervisory, or review, power in this Court. but the prosecution is proceeding and will, if appropriate, be tried pursuant to provisions which vest powers and jurisdiction in the State (Judiciary Act 1903 ss. 39, 39A and 78). Tt is therefore highly desirable, in my opinion, that this Court follow relevant decisions of the State Courts. This aspect becomes prominent when considering the relief sought pursuant to 8s.39B of the Judiciary Act. This enables relief to be qiven by way of mandamus, prohibition or infunction against an officer of the Commonwealth. The officer in this case can be regarded as the Director of Public Prosecutions. While he cannot be the subject of the relief mentioned in relation to his decision to institute oroceedings, I am prepared to accept that he 1s a proper (and necessary) party respondent when the proceedings are challenged as an abuse of process. In this respect, the availability of relief sought under s.39B differs from that under the Judicial Review Act. Grant of the relief mentioned is discretionary, as it is when a declaration is sought. Tt has longa been held in New South Wales that relief bv way of prohibition 185 unavailable un relation to committal proceedings, because of their administrative mature (Ex parte Cousens; Re Blacket & Anor (19471 47 S.R.(NSW) 145). This decision has been criticised and challenged, but it has not been overruled. Indeed. it is relied upon. in this Court and elsewhere, as indicating the nature of committal proceediras. They have a very mixed nature, although their overall effect 1s clear. Thev test the question whether there is evidence to put an accused on trial. The courts of New South Wales have in cecent vears, in appropriate cases, used the remedv of a declaration, as it has been developed in the administrative field. Prohibition ts not available in the present case. Although the relief granted where abuse of process is found is almost invariably a stay, I do not presently see why, if relief were otherwise regarded as appropriate, this Court could not issue an injunction, directed to the respondents. Two problems arise in the present case. One is that with which I have already dealt, namely that there should first be consideration and determination by the learned magistrate. The other is that I believe that any issue arising should be dealt with by the State Supreme Court. The question its not one confined to federal matters, and is one with which that court, in recent times, has dealt with on a number of occasions. The magistrates' court is in the same hierachy of courts. and is subject in the ordinary way to the supervisory jurisdiction of the Supreme Court. That Court has the remedy of declaration. and this allows a flow of the committal proceedings free from repeated recourse to this Court. There is no question of a eeculiarly federal nature. It is arqued that the inclusion in the Second Schedule of the Judicial Review Act. which sets out the decisions to which 3.13 is inapplicable, of "decisions in connection with the investigation or prosecution of persons..." (@) indicates fhat decisions to prosecute are subfect to 3.5 and 3.6. T think that 14. this is at best an unsure auide, but a decision in connection with the prosecution of a person can readilv include a decision other than one which is disclosed by the actual institution of proceedings. In view of the fact that the rule to which T have ceferred is well-established. I would not reaqard it as being set at nought by reason of the lanquage mentioned. That rule relates of course to the exercise of the discretion to prosecute, and it would cause confusion and disarray in the criminal process if review of that discretion were opened for review. If ss. 5 and 6 were regarded as applicable, this Court could become involved in an endless survey of the motives and knowledge of prosecutors. On the other hand. closely related aspects may be examinable, such as lack of power, unlawful procedure and particular statutory requirements. I would exercise mv discretion against granting relief. aven if a case were made out. IT amof the opinion that the application should be dismissed, and I order accordingly. I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Fox. WAN Associate: S oe oe Nate: 24 December 1987 Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date of hearing: Date judgment delivered: 15. Mr D. Grieve QC and Me P. Hastings J.R. Gibb & Co. Me R.J. Burbidge QC and Mr L. Katz Director of Public Prosecutions Sydney; 11, 12 December 1987 Sydney; 24 December 1987