Likiardopoulos v The Queen [2012] HCA 37

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DIMITRIOS LIKIARDOPOULOS APPELLANT

AND

THE QUEEN RESPONDENT

Likiardopoulos v The Queen [2012] HCA 37 14 September 2012 M24/2012

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

M J Croucher SC with L C Carter on behalf of the appellant (instructed by Lewenberg & Lewenberg)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Likiardopoulos v The Queen

Criminal law – Murder – Accessorial liability – Appellant convicted of murder – Crown accepted guilty pleas from five other participants to lesser offences – Trial judge left to jury Crown case based on accessorial liability – Whether appellant could be convicted as accessory to murder when Crown had accepted pleas from all other participants to lesser charges – Whether trial judge should have left accessorial case to jury – Whether Crown could lead evidence that other participants murdered the deceased – Whether inconsistency between convictions of other participants and accused – Whether exercise of prosecutorial discretion an abuse of process.

Words and phrases – "abuse of process", "accessory", "aiding and abetting", "counselling or procuring", "principal", "prosecutorial discretion".

Crimes Act 1958 (Vic), s 323.

FRENCH CJ. I agree with the order proposed in the joint judgment and, subject to one reservation, with the reasons which their Honours give for that order. That reservation relates to an observation in the joint judgment concerning the reviewability of prosecutorial discretions. The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process. The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review. But as Gaudron and Gummow JJ also pointed out, the approach of earlier authorities which treated such decisions as unreviewable because they were seen as part of the prerogative of the Crown "may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth." Further as their Honours observed "it may pay insufficient regard to the fact that some discretions are conferred by statute". The statutory character of prosecutorial decision-making in Australia today does not lessen the significance of the impediments to judicial review of such decisions, which are created by the constitutional and practical considerations referred to above. However the existence of the jurisdiction conferred upon this Court by s 75(v) of the Constitution in relation to jurisdictional error by Commonwealth officers and the constitutionally-protected supervisory role of the Supreme Courts of the States raise the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review. That question was not argued in this case and does not need to be answered in order to decide this case. It involves a question arising under the Constitution. I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice. Subject to the above reservation, I agree with the reasons of their Honours and the order they propose.