FEDERAL COURT OF AUSTRALIA Miller v Commonwealth Director of Public Prosecutions [2005] FCA 482 ADMINISTRATIVE LAW – judicial review – decision by Commonwealth Director of Public Prosecutions to take over proceeding instituted by private individual - scope of power – whether Director can take over proceeding for sole purpose of causing it to be discontinued Director of Public Prosecutions Act 1983 (Cth) s 9(5) Judiciary Act 1903 (Cth) s 39B Administrative Decisions Judicial Review Act 1977 (Cth) s 5(1)(c), (d) and (e) Federal Court Rules O 20 r 2 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 84-5 referred to General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 at 128-9 referred to Walton v Gardiner (1983) 177 CLR 379 at 393 and 411 referred to Barton v R (1980) 147 CLR 75 at 94-6 and 110-111 referred to Jarett v Seymour (1993) 119 ALR 46 at 54 referred to Barton v R (1980) 147 CLR 75 at 92-3 and 110 referred to Maxwell v The Queen (1995) 184 CLR 501 at 534 referred to Stefanovski v The Magistrates' Court of Victoria [2004] VSC 313 at [12] referred to Hanna v Director of Public Prosecutions (NSW) [2005] NSWSC 134 referred to LANCE STEWART MILLER v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS V1308 of 2004 WEINBERG J 22 APRIL 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V1308 OF 2004 BETWEEN: LANCE STEWART MILLER APPLICANT AND: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGE: WEINBERG J DATE OF ORDER: 22 APRIL 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The relief sought by the respondent's notice of motion filed on 24 February 2005 be granted. 2. The application be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V1308 OF 2004 BETWEEN: LANCE STEWART MILLER APPLICANT AND: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGE: WEINBERG J DATE: 22 APRIL 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 By notice of motion filed on 24 February 2005, the Commonwealth Director of Public Prosecutions ("the Director") seeks orders that this proceeding be dismissed pursuant to Order 20 Rule 2 of the Federal Court Rules. The Director contends that no reasonable cause of action is disclosed, that the proceeding is frivolous or vexatious, and that it is an abuse of the process of the Court. 2 The background to the matter can be briefly stated. On 19 March 2001, Bruce Carter of the firm Ferrier Hodgson was appointed liquidator of The Institute of Taxation Research Australia Pty Ltd ("ITR") on the petition of the Commissioner of Taxation ("the Commissioner"). The applicant, Lance Miller, was a director of ITR at all material times. 3 Mr Carter retained the legal firm Finlaysons, of Adelaide, to act for him in the liquidation. Michael Barrett, Scott Evans, Mark Miller and Elizabeth Hoskyns of that firm acted pursuant to the retainer. In June 2002, the liquidator conducted a public examination of an officer of ITR pursuant to Pt 5.9 of the Corporations Act 2001 (Cth) ("the Act"). During the course of the examination, Mr Barrett, appearing for the liquidator, tendered a series of documents prepared under the Financial Transactions Reports Act 1988 (Cth). Those documents were supplied by officers of the Commissioner, and set out in detail various financial transactions of ITR. In January 2003, Mr Miller was himself the subject of a public examination pursuant to Pt 5.9 of the Act. 4 It appears that Mr Miller was aggrieved at the use of the documents during the course of the public examinations. In August 2002, his legal representative attended at the office of the Director in Canberra and requested that charges be laid against Mr Carter and the four Finlaysons solicitors. In essence, Mr Miller complained that the defendants had acted unlawfully by misusing documents the confidentiality of which was protected by various Commonwealth statutes. 5 The Director, having considered the evidence provided in support of the allegations, declined to prosecute the offences. 6 Mr Miller then determined to bring a private prosecution against the defendants. On 1 October 2003, he laid identical charges in the Magistrates Court at Dandenong against Mr Carter and the lawyers. There were a total of 19 charges brought. The charges, in substance, were that each defendant unlawfully obtained documents from the Australian Taxation Office "being Austrac Reports on transactions by companies and individuals, contrary to the secrecy provisions of the Financial Transactions Reports Act 1988, the Privacy Act and the Taxation Administration Act 1953". 7 In July 2004, the defendants' solicitors requested the Director to exercise his power under s 9(5) of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act"), and take over and discontinue the prosecution. The subsection provides as follows: "For the purposes of the performance of his or her functions, the Director may take over a proceeding that was instituted or is being carried on by another person, being a proceeding: (a) for the commitment of a person for trial in respect of an indictable offence against a law of the Commonwealth; or (b) for the summary conviction of a person in respect of an offence against a law of the Commonwealth; and where the Director takes over such a proceeding, he or she may decline to carry it on further." 8 By letter dated 12 July 2004, Mr Miller was informed of the request, and invited to produce evidence to support the charges laid. On 13 August 2004, the then Acting Director decided not to exercise the power under s 9(5). The defendants' solicitors requested reconsideration of that decision. By letter dated 6 September 2004, Mr Miller was informed of the renewed request, and again invited to provide evidence to support the charges laid. It appears that he did not respond to that letter. 9 On 22 September 2004, the Director exercised the power under s 9(5) to take over and decline to carry on further the private prosecution proceedings. A committal hearing was listed to commence in the Magistrates Court at Melbourne on 30 September 2004. On that day, a solicitor appeared on behalf of the Director and formally confirmed that the Director proposed to discontinue the prosecution. Counsel for Mr Miller objected to the course proposed, and indicated that his client intended to challenge the Director's decision in this Court. Following argument, the Magistrate ordered that the charges be struck out. 10 On 20 October 2004, Mr Miller filed this application. In its original form, it sought judicial review of the Director's decision, under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") and s 5(1)(c), (d) and (e) of the Administrative Decisions Judicial Review Act 1977 (Cth). However, an amended application, together with a statement of claim, was filed on 10 January 2005. The amended application sought relief only under s 39B of the Judiciary Act. The relief sought was a writ of prohibition to prohibit the Director from taking further steps in relation to the private prosecution, a declaration that his decision to take over and decline to carry on further the proceeding was invalid and erroneous in law, and an order setting aside that decision. 11 The statement of claim is a curious document. In par 2, it pleads that at all material times, and for the purposes of the performance of the Director's functions under the DPP Act, the Director had power under and pursuant to s 9(5) to take over a proceeding that was instituted or was being carried on by another person. In par 3, it alleges that the Director has purported to exercise that power. In par 4, it claims that Mr Miller is aggrieved by that decision, though the particulars provided are somewhat sparse. Importantly, particular d asserts that the Director's decision: "…has delayed the applicant's right to prosecute the defendants for the purpose of proving that the First defendant was not entitled to examine the applicant concerning the matters and material which had wrongfully been relied on by the defendants." (emphasis added) In paragraph 5, it is contended that the Director did not have the power to make the decision. The particulars given are that the making of the decision was not authorised by the DPP Act, or any other law of the Commonwealth and that the decision was not an exercise of the Director's functions under s 6 of the DPP Act. 12 As previously indicated, the Director has applied for summary dismissal of this proceeding. He invokes O 20 r 2 of the Federal Court Rules. In substance, he contends that the application is hopeless. 13 The principles that govern summary dismissal are not in doubt. They are as set out in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 84-5 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 at 128-9. It is also clear that an application that is clearly doomed to failure is itself an abuse of the Court's process: Walton v Gardiner (1983) 177 CLR 379 at 393 and 411. 14 Counsel for the Director, Mr Sest, submitted that the contention by Mr Miller that the Director was not empowered to make the decision under s 9(5) of the DPP Act was fundamentally erroneous, and also entirely unsubstantiated. The language of the subsection was clear. The Director's power to take over a prosecution instituted by another, and to decline to carry it on further, was expressly conferred, and subject to no specific statutory constraints. That followed not only from the language of the subsection itself, but also from the express exclusion of the subsection from the non-derogation provision in s 10(2). 15 Moreover, Mr Miller had positively pleaded, in his statement of claim, that the Director had power under s 9(5) to take over a proceeding. That plea itself contradicted his claim of invalidity. 16 Mr Sest also submitted that the power to review the exercise of prosecutorial discretion should be sparingly exercised. The discretion to prosecute would not be judicially reviewed except in the rare and exceptional case of a prosecution constituting an abuse of process: Barton v R (1980) 147 CLR 75 at 94-6 and 110-111, or perhaps a proposed prosecution that was entirely misconceived: Jarett v Seymour (1993) 119 ALR 46 at 54. However, those circumstances could not conceivably be said to arise in the present case. 17 Indeed Mr Sest advanced a further submission. He noted that the present case concerns a decision to decline to continue a prosecution. He contended that s 9(5) was, in that respect, analogous to the prerogative to enter a nolle prosequi: see Barton at 92-3 and 110. A decision of that kind would not normally be amenable to judicial review: Maxwell v The Queen (1995) 184 CLR 501 at 534; Stefanovski v The Magistrates' Court of Victoria [2004] VSC 313 at [12]; and Hanna v Director of Public Prosecutions (NSW) [2005] NSWSC 134. 18 Mr Sest advanced two ancillary submissions. He contended that Mr Miller's status as a "person aggrieved" was irrelevant, and did not enable the Director's exercise of power under s 9(5) to be impugned. Further, it was plain from Mr Miller's own statement of claim that he had brought the prosecution for a purpose that was alien to the proper purpose of a criminal proceeding. That is, the prosecution was instituted not to invoke the criminal justice system in the vindication of the criminal law, but rather for some private purpose of Mr Miller's own, to prove that Mr Carter had not been entitled to examine him in the manner that he had. 19 Mr Baker, who appeared for Mr Miller, essentially advanced one argument only in opposition to the motion seeking summary judgment. He submitted that s 9(5) should be given a narrow interpretation, and that the Director had no right to exercise the power conferred by the subsection in the particular circumstances of this case. 20 More specifically, Mr Baker submitted that there were several inbuilt constraints in the language of the subsection. In particular, the power to take over a proceeding that was instituted, or was being carried on by another person, could only be exercised for the purposes of the performance of [the Director's] functions. Section 6 of the DPP Act sets out, in comprehensive terms, all of those functions. The only functions that were conceivably relevant were those conferred by paras 6(1)(a) and (b), namely to institute prosecutions on indictment, and to carry on prosecutions of the kind referred to, whether or not instituted by the Director. The functions were expressed in positive terms only, and did not extend to declining to carry on a prosecution instituted by another person. 21 Mr Baker's argument was not altogether easy to follow. However, as I understood it, he submitted that s 9(5) could only be invoked in circumstances where the Director had already made a decision to institute or carry on a prosecution, and then, for whatever reason, determined not to do so. As the Director in the present case had not decided to institute or carry on this prosecution, and indeed had decided not to do so, the power conferred by s 9(5) could not be invoked. 22 In my view, Mr Baker's argument is misconceived and must be rejected. Section 9(5) should be given its ordinary and natural meaning. The Director's functions, as set out in pars 6(1)(a) and (b) are not so narrowly circumscribed as Mr Baker contended. The power to institute or carry on a prosecution must include, implicitly at least, the power to decline to institute or carry on a prosecution. Indeed, that is precisely what the Director does in every case where he determines that charges that are proposed, or have been laid, should not be brought or continued. It makes no difference whether that decision is based upon a conclusion that the evidence is insufficient to enable it to be said that there are reasonable prospects of conviction, or upon a conclusion that it is not in the public interest that a prosecution be brought or continued. 23 Section 9(5) confers upon the Director the power to take over a proceeding instituted or carried on by another person so that the Director may determine whether to continue that proceeding, or decline to carry it on further. If the subsection had the meaning for which Mr Baker contended, there would be no need for it to provide expressly that the Director can decline to carry the proceeding on further. The Director would simply have determined that the guidelines set out in the Prosecution Policy of the Commonwealth ("the Prosecution Policy") had already been met, and would merely have changed his mind, in the ordinary way. 24 In my view the subsection is intended to operate as a safeguard. There are cases, fortunately few, where private litigants have invoked the processes of the criminal law for wholly improper purposes. There are also cases where private prosecutions that are entirely misconceived have been brought. It may be oppressive, and is likely to be costly, to require a defendant to such a proceeding to take steps in court to have the charges dismissed. Section 9(5) permits the Director, who has the responsibility for ensuring compliance with the Prosecution Policy, to step in and prevent this form of harassment. 25 That this is the correct interpretation of s 9(5) is borne out by the Prosecution Policy itself. Paras 4.7-4.13 deal with intervention in a private prosecution. It is worth setting them out in full. (4.7) In a formal sense all prosecutions in the summary courts are private prosecutions, even if the informant holds an official position. For the purposes of the following paragraphs a private prosecution is defined as any prosecution where the informant is a private individual as distinct from a police officer or some other official acting in the course of a public office or duty. (4.8) The right of a private individual to institute a prosecution for a breach of the law has been said to be "a valuable constitutional safeguard against inertia or partiality on the part of authority" (per Lord Wilberforce in Gouriet -v- Union of Post Office Workers [1978] AC 435 at 477). Nevertheless, the right is open to abuse and to the intrusion of improper personal or other motives. Further, there may be considerations of public policy why a private prosecution, although instituted in good faith, should not proceed, or at the least should not be allowed to remain in private hands. The power under section 9 (5) of the Act therefore constitutes an important safeguard against resort to this right in what may be broadly described as inappropriate circumstances. (4.9) The question whether the power under section 9(5) should be exercised to take over a private prosecution will usually arise at the instance of one or other of the parties to the prosecution, although clearly the Director may determine of his or her own motion that a private prosecution should not be allowed to proceed. Alternatively, some public authority, such as a government department, may be concerned that to proceed with the prosecution would be contrary to the public interest and refer the matter to the Director. (4.10) Where a question arises whether the power under section 9(5) should be exercised to intervene in a private prosecution, and the private prosecutor has indicated that he or she is opposed to such a course, the private prosecutor will be permitted to retain conduct of the prosecution unless one or more of the following applies: (a) there is insufficient evidence to justify the continuation of the prosecution, that is to say, there is no reasonable prospect of a conviction being secured on the available evidence; (b) there are reasonable grounds for suspecting that the decision to prosecute was actuated by improper personal or other motives, or otherwise constitutes an abuse of the prosecution process such that, even if the prosecution were to proceed it would not be appropriate to allow it to remain in the hands of the private prosecutor; (c) to proceed with the prosecution would be contrary to the public interest - law enforcement is necessarily a discretionary process, and sometimes it is appropriate for subjective considerations of public policy, such as the preservation of order or the maintenance of international relations, to take precedence over strict law enforcement considerations; or (d) the nature of the alleged offence, or the issues to be determined, are such that, even if the prosecution were to proceed, it would not be in the interests of justice for the prosecution to remain in private hands. (4.11) A private individual may institute a prosecution in circumstances where he or she disagrees with a previous decision of the DPP. If, upon reviewing the case, it is considered the decision not to proceed with a prosecution was the proper one in all the circumstances, the appropriate course may be to take over the private prosecution with a view to discontinuing it. (4.12) In some cases the reason for intervening in the private prosecution will necessarily result in its discontinuance once the Director has assumed responsibility for it. In this regard, once the decision is made to take over responsibility for a private prosecution the same criteria should be applied at all stages of the proceeding as would be applied in any other prosecution being conducted by the DPP. (4.13) If it is considered that it may be appropriate to intervene in a private prosecution, it may be necessary for the DPP to request police assistance with enquiries before a final decision can be made whether or not to do so, and if so, whether or not to continue the prosecution. In addition, pursuant to section 12 of the Act, the person who instituted or is carrying on the private prosecution can be required to furnish to the Director a full report of the circumstances of the matter the subject of the proceeding together with other relevant information or material. 26 It is clear, from these guidelines (which have been in force for many years), that the Director has always proceeded upon the assumption that s 9(5) enables him to terminate a private prosecution that he considers should not be permitted to continue. In my opinion, that assumption is warranted. The guidelines recognise the importance of the right of a private individual to institute a prosecution for a breach of the law. However, they also recognise that the right is open to abuse. Moreover, there may be factors known only to the Director that would make it contrary to the public interest for a prosecution brought in good faith to be continued. These considerations explain why s 9(5) was enacted. They also explain why the subsection should not be given the narrow, and somewhat artifical, interpretation for which Mr Baker contends. 27 In short, therefore, I am satisfied that Mr Miller's application for judicial review of the Director's decision to take over and discontinue this prosecution is both misconceived, and clearly foredoomed to fail. It should therefore be summarily dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 22 April 2005 Counsel for the Applicant: Mr D Baker Solicitor for the Applicant: Waters Timms Pty Ltd Counsel for the Respondent: Mr P Sest Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 22 April 2005 Date of Judgment: 22 April 2005