Children's Court New South Wales Medium Neutral Citation: R v Thomas; R v Tony [2024] NSWChC 2 Hearing dates: 4 April, 10 April 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Application dismissed Catchwords: CHILDREN – Criminal Law – Committal - Charge certificate – Abuse of process - Stay Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) Cases Cited: Barton v R [1980] HCA 48 Black v R [2022] NSWCCA 17 Jago v The District Court of New South Wales and Others [1989] HCA 46 Kolalich v DPP (NSW) [1991] HCA 47 Moevao v. Department of Labour [1980] 1 NZLR 464 Ridgeway v The Queen [1995] HCA 66 Rogers v The Queen [1994] HCA 42 Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 Walton v Gardiner [1993] HCA 77 Williams v Spautz [1992] HCA 34 Zahed v DPP (NSW) [2023] NSWSC 368 Texts Cited: NSW, Legislative Assembly, Debates, 11 October 2017 Category: Principal judgment Parties: Rex (Crown) Thomas (Young Person) Tony (Young Person) Representation: Counsel: Mr Spohr (Counsel for Thomas - Applicant) Ms Kennedy (Counsel for Tony - Applicant) Mr Christoff (Crown Prosecutor – for the Respondent) File Number(s): 2023/79239 and 2023/79178 Publication restriction: Pseudonyms have been used to protect the identity of the Young Persons. The published decision of the Court has been finessed, formatted and citations included. JUDGMENT PROCEEDINGS: INTRODUCTION/PARTIES 1. The applicants are Thomas and Tony - (the Young Persons). 2. The respondent is the Office of the Director of the Department of Public Prosecutions (ODPP). 3. In 2023 the Young Persons (YPs) were charged with a serious children's indictable offence (SCIO): see s 3 Children (Criminal Proceedings) Act 1987 (CCPA). 4. At Committal, the prosecution failed to file and serve a Charge Certificate pursuant to s 68 of the Criminal Procedure Act 1986 (CPA). 5. Section 68 (2) of the CPA states, in that event, the Magistrate must discharge the accused person or adjourn the committal proceeding. 6. The Court refused an adjournment and discharged the YPs. 7. Subsequently, the YPs were charged with a SCIO offence - particularised in a similar manner to the offence subject to the discharge, the alleged conduct being the same. 8. This effectively commenced the committal proceedings again. 9. The current committal proceedings transparently circumvents the Court's previous order discharging the YPs 10. It is submitted by the applicants that this is done in a way that has the tendency to bring the administration of justice into disrepute. 11. It is put that the time limit set out in s 68 of the CPA would mean nothing if the prosecution was permitted simply to start again. 12. It is concluded by the applicants that the fresh committal proceedings are an abuse of process, and ought to be stayed. 13. The ODPP submits that the 'reinstitution' of the proceedings is not an abuse of process. 14. The hearing commenced on 4 April 2024. 15. The Court adjourned the matter to 10 April 2024 for decision. 16. The Court agreed to provide written reasons to the parties the following day. ONUS OF PROOF 1. The onus of satisfying the court that there is an abuse of process lies upon the party alleging it: see Williams v Spautz [1992] HCA 34 at [42] (re Williams v Spautz). 2. The totality of all the factors involved in a case should be considered in determining the question of whether there is an abuse of process. 3. In re Williams v Spautz at [42] the High Court speaks to the onus as a heavy one. STANDARD OF PROOF 1. The standard of proof is for the Court to be satisfied on the balance of probabilities. WITNESSES 1. The affidavit from Ms Cejas, a solicitor at the Legal Aid NSW, was marked exhibit 1. 2. The affidavit from Ms Welch, a solicitor at the ODPP, was marked exhibit 2. 3. Section 143 of the Evidence Act 1995 (NSW) (EA) allows the Court to take Judicial notice of various matters of law. 4. Section 144 of the EA allows the Court to take Judicial notice of matters of common knowledge. FINDING OF FACTS Committal procedures 1. Committal procedures were changed on 30 April 2018. because of amendments to the Criminal Procedure Act 1986 by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017. 2. A primary purpose of the reforms was to reduce delays in indictable cases being finalised in the District Court. 3. The Attorney General said, during the Second Reading Speech, that the reforms would do this "by improving productivity and ensuring that cases are effectively managed": NSW, Legislative Assembly, Debates, 11 October 2017, p 6. 4. As a result of these amendments the prosecutor must certify the evidence available is capable of establishing the elements of each offence the subject of the proceedings: s 66(2). 5. Therefore, whilst a magistrate retains the power to manage committal proceedings the magistrate is not required to decide about the sufficiency of the evidence. Court proceedings 1. In 2023 the Young Persons (YPs) were each charged with an offence of Aggravated robbery with wounding under s 96 of the Crimes Act 1900. 2. The offence carries a maximum of 25 years. 3. The offence is a SCIO: see s 3 Children (Criminal Proceedings) Act 1987 (CCPA) 4. The offence must be dealt with at law: see s 17 CCPA. 5. SCIO offences are subject to a committal process. 6. At committal, the prosecutor must file and serve a charge certificate by the date set by the magistrate, which is after the service of the brief of evidence and "not later than 6 months after the first return date for a court attendance notice (CAN) in the committal proceedings": see s 68(1) CPA. 7. The prosecution failed to file and serve a Charge Certificate pursuant to s 68 of the Criminal Procedure Act 1986 (CPA). 8. If the charge certificate is not filed in the specified time, the magistrate must discharge the YPs or adjourn the proceedings: see s 68 (2) of the CPA. 9. The ODPP sought an adjournment. 10. The Children's Court heard submissions on 22 September 2023. 11. The Court refused the adjournment and discharged each of the YPs. The discharge 1. If an accused person is discharged costs in favour of an accused person may be awarded: see s 116 and s 117 of the CPA. 2. The consequence of discharge is that the committal proceedings are determined; and are at an end. 3. The ODPP did not appeal the decision to discharge. Subsequent charge 1. The ODPP charged the YPs approximately 6 weeks later with an offence of assault with intent to rob with wounding under s98 of the Crimes Act 1900. 2. A new sequence was added to the previous H number. 3. That offence carries a maximum of 25 years, and is a serious children's indictable offence, and is subject to a committal process. 4. Section 96 and section 98 are almost identical in terms, particularised in a similar manner and the alleged conduct underlying the two charges is the same. 5. The brief of evidence for the s 96 allegation is the same as for the allegation under s 98. 6. The prosecution has, in effect, commenced the same proceedings again. Conduct and consequences 1. There is delay – albeit not inordinate - but worsened because of the impact upon vulnerable children. 2. However, the remedy of a stay assumes significance when an accused's complaint is that, by reason of delay, there has been prejudice in their defence: see Jago v The District Court of New South Wales and Others [1989] HCA 46 at [28]. 3. There is no evidence of prejudice to the YPs' defence. 4. Nor is there any suggestion that the ODPP deliberately caused the delay to gain some advantage: refer re Jago at [30]. 5. Whilst the conduct causing delay should be deplored, the Crown Prosecutor has certified the new sequences by way of a charge certificate seemingly even before the new Committal process had begun. This demonstrates recent good intent to adhere to timetables set. 6. The inference is that the ODPP now seek to move the matter forward as efficiently as possible. 7. The YPs were bail refused but are now subject to bail conditions. 8. The time limit set out in s 68 of the CPA may mean nothing if the prosecution are permitted simply to start again. However, the Court can make a costs order. 9. The new sequence has the effect of nullifying the decision the Court made discharging the YPs - though there is a separate power under the CPA for the ODPP to file an indictment (an ex officio indictment) whether or not there has been a committal for trial: see s8(2) of the CPA. 10. In Kolalich v DPP (NSW) [1991] HCA 47, the High Court observed at [227] that: "The DPP clearly has power to present an ex officio indictment charging a person with an offence notwithstanding that the committing magistrate has declined to make an order committing [the accused] for trial on a charge of that offence". 1. The committal system can be completely and legitimately circumvented by an ex officio indictment. 2. Any benefit to the YPs or to the community from the committal process is nullified if the ODPP file an ex officio indictment. 3. The ODPP have not chosen the option of an ex officio indictment. 4. The benefits of a committal to an accused include the opportunity for case conferences, plea negotiations, and plea offers. The Court can direct the attendance of witnesses at committal proceedings for the purpose of cross examination. Significantly, there is the protection of any discount for an early plea. 5. With the 'reinstitution' of the committal process the above possible benefits of the committal process to the YPs are retained; and more broadly to the community by "ensuring that cases are effectively managed". In those circumstances it cannot be accepted that the court's procedures by 'recommencing' the committal process are invoked for an illegitimate purpose. 6. For the YPs to be subject to another largely administrative process, that now is reasonably advanced, it cannot be accepted that the use of the court's procedures is unjustifiably oppressive to the parties. 7. In Walton v Gardiner [1993] HCA 77 it was said at [23]: "…proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings". 1. There is no evidence that the 'recommencing' of a committal is unjustifiably vexatious and oppressive. Nor is it the case that the Court has involved itself in a process to litigate anew a case on is merits. 2. Legislation is silent as to what may happen following a discharge other than a cost order, an appeal or an ex officio indictment. 3. Nothing expressly or by implication (other than a stay for an abuse of process) prevents the filing and issuing of a new CAN. ISSUE IN DISPUTE 1. The issue is whether the 'reinstituted' committal proceeding is an abuse of process. 2. In Rogers v The Queen [1994] HCA 42 at [16] it was said abuses of procedure usually fall into one of three categories: 1. the court's procedures are invoked for an illegitimate purpose; 2. the use of the court's procedures is unjustifiably oppressive to one of the parties; or 3. the use of the court's procedures would bring the administration of justice into disrepute. 1. In Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 it was said at [258]: "The three categories described by McHugh J are not independent. If the use of the court's procedures is unjustifiably oppressive to one of the parties (category (ii)), imperilling the fairness of a trial, this can contribute to the conclusion that the administration of justice would be brought into disrepute. There may even be circumstances where oppression of one of the parties is sufficient to bring the administration of justice into disrepute, even if the trial would be fair". 1. Whilst the categories are not exhaustive, and each captures a wide range of different circumstances: see re Strickland at [257] - and each category is not exclusive - based on the above found facts it is only the third category that the Court is required to focus. SUBMISSIONS On behalf of Thomas 1. Mr Spohr, on behalf of Thomas, focuses on dual facts. Firstly, the court ordered the discharge of the committal proceedings on 22 September 2023; and secondly, the prosecution subsequently filed a new sequence effectively 'recommencing' the same proceedings. 2. Mr Spohr submits that Parliament intended by the setting of a six-month time limit in section ss 67(3) and 68 (1) that the whole of any committal proceedings would be ended by an order of the Court under section 68 (2)(a). 3. It follows, Mr Spohr asserts, that to allow identical procedures to be 'recommenced' is inconsistent with the integrity of the Court and the rule of law, because it renders the 'discharge' of the committal proceedings irrelevant. 4. Mr Spohr references Hamill J in Zahed v DPP (NSW) [2023] NSWSC 368 at [50]. "… the six-month time limit established by section 67(2)(b) of the CPA should not be taken lightly". 1. Mr Spohr observes that contrary to taking the requirements seriously, if the prosecution is permitted to simply 'recommence' following such an order, the time limit would have no content at all. 2. This is a case, Mr Spohr states, where the prosecution's re-institution of committal proceedings following the earlier dismissal of the same proceedings has a tendency to fundamentally undermine the integrity of the Court's processes. It is a transparent circumvention of the Court's order on 22 September 2023 from which there was no appeal. 3. Mr Spohr concludes that the court must act to ensure the integrity of its processes are upheld, and that the content of the statutory regime holding the prosecution to account in committal proceedings is given full force. On behalf of Tony 1. Ms Kennedy, on behalf of Tony, is in agreement with Mr Spohr. 2. Ms Kennedy submits that by allowing a party to avoid the court-imposed consequence of failing to adhere to a statute-imposed time limitation by simply commencing new proceedings undermines both the intention of the legislature in imposing the limitation; and the integrity of the Court in hearing an application and making a ruling. 3. Ms Kennedy, in her written application, articulates it is axiomatic that the intention of the legislature in imposing the time limitation for charge certification was that it would be complied with. Provision is made within the legislation for the Court to extend the time limitation if satisfied such a course is appropriate. 4. Ms Kennedy writes that the Legislature has imposed a rule and provided the court with power to remedy violations of that rule. There has been a violation, and the court has exercised its power to remedy the violation. The effect of permitting a party to circumvent the courts enforcement of the rule is to rob the rule of any force. To permit proceedings to continue in these circumstances is to render the courts power to discharge superfluous; to rob the time limitation of all meaningful effect. 5. Ms Kennedy concludes that the prosecution of serious matters to finality is of no benefit (and arguably substantial detriment) to the community if it is achieved in a manner that undermines public confidence in the judiciary. That is, in a matter which would bring the administration of justice into disrepute. On behalf of the Crown 1. Mr Christoff submits that the 'reinstitution' of proceedings does not undermine the courts procedure, erode the public confidence in the judicial system or bring it into disrepute. 2. Mr Christoff argues that the court would consider the public interest in serious criminal offending being adjudicated on its merits rather than by granting the stay application in the circumstances and the effluxion of about a month between the deadline for certification and certification occurring. This is particularly so when the parties appeared at the time to be involved in fruitful negotiations which, if there had been a different outcome, would have nullified the need for certification. LAW APPLICABLE Jurisdiction of the Children's Court 1. In Williams v Spautz [1992] HCA 34 the High Court said all Australian Courts have an inherent jurisdiction to stay proceedings. Role of the Court generally 1. Mason and Gibbs JJ said in Barton v R [1980] HCA 48 at [29]: "Courts exist to determine the merits of disputes, rather than the merits of a decision to bring a dispute to a court at all. Ruling that a dispute between the parties, otherwise properly brought, cannot be tried at all, may as much undermine public confidence as declining to do so. Many words of judicial caution counsel against the too ready resort to this exceptional power". Role of Prosecution 1. In NSW it is the role and function of the Director of Public Prosecutions to determine whether a person should be tried upon indictment and the particular charge: s 7, Director of Public Prosecutions Act 1986. 2. In re Strickland at [260] it was noted: "That the function of deciding whether to initiate and maintain a criminal proceeding is vested in the executive, whilst the function of hearing and determining a criminal proceeding is vested in the courts". 1. Nonetheless, the Court said it is equally well-established that in an integrated justice system, these two functions are not hermetically sealed from each other. Role of the Committal Court 1. The magistrate's role in a committal process is essentially a supervisory one, intended to ensure there has been compliance with the procedural regime: see: Black v R [2022] NSWCCA 17 at [7]. 2. The magistrate is not required to decide about the sufficiency of the evidence - or even the fair presentation of evidence to facilitate an impartial decision maker reaching the truth. 3. In this regard the Committal Court is distinguished from the function of a court determining proceedings. Role of the Parties 1. Even the adversarial nature of the committal court process is different in its traditional form. 2. In re Black at [8] Simpson AJA noted that the committal procedural regime placed: "significant emphasis on cooperation between the prosecution and legal representatives of the accused person with a view to the identification of a charge or charges to which the accused person is prepared to plead guilty and which the prosecution is prepared to accept as a sufficient answer to the charges initially preferred". Rationale for the Court to have the power to stay proceedings when the use of the court's procedures would bring the administration of justice into disrepute 1. In Ridgeway v The Queen [1995] HCA 66 citing Connelly v. DPP (1964) AC 1254 Gobbo J quoted from Lord Morris: "…a court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process". 1. Underlying that power to prevent an abuse of its process, Richardson J in Moevao v. Department of Labour [1980] 1 NZLR 464 at 482 says: "It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. ……But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court". 1. In re Strickland at [249] it was said by Edelman J: "…a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. It has been described as avoiding "an erosion of public confidence. It has also been described as arising where a trial would bring the administration of justice into disrepute. Each of these verbal formulations attempts to capture a concern for the systemic protection of the integrity of the court within an integrated system of justice". 1. As Richardson J said in Moevao v Department of Labour as referred to in Strickland at [260] "the due administration of justice is a continuous process ... [T]he Court is protecting its ability to function as a Court of law in the future as in the case before it". 1. In protecting its ability to function as a court of law in the future, the court can make orders that cut across the executive function of initiating and maintaining a criminal proceeding. Threshold and test for a stay 1. In re Strickland at [106] it was said: "a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute". 1. The more serious the offence, the stronger will be the public interest and therefore the more fundamental, and irreparable, the systemic incoherence must be to justify a permanent stay of proceedings: re Strickland at [262]. 2. In Rogers v The Queen [1994] HCA 42 at [5] the Court balanced a variety of considerations. 3. Those considerations include balancing the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. Discretion 1. In The Queen v Carroll [2002] HCA 55 at [73]: "The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not". 1. As such there is no discretion if the Court finds an abuse of process. The stay must be granted. Less extreme measures to protect the integrity of the Court 1. Before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that could be taken to address any systemic incoherence that would be caused. This must be considered because the court's ability to protect its integrity is not confined to orders that grant a permanent stay of proceedings. 2. There are a range of measures less drastic than a permanent stay of proceedings that can protect the integrity of the court. 3. In this case the Court could insist sufficient undertakings be given by the ODPP to address further delay albeit the ODPP have demonstrated a willingness to advance this matter. 4. With an eye to any repeat future failure to adhere to the legislative or Court timetable in this matter or other matters the court may make a costs order. Decision 1. Proper regard is required to the nature of committal proceedings. 2. The role of the Court at committal does not settle disputes finally. The Court's role is essentially a supervisory one, intended to ensure there has been compliance with the procedural regime. 3. The Court has no jurisdiction to embark upon the merits of the matter. 4. Weighing the considerations: 1. of the current committal proceedings circumventing the Court's previous order discharging the YPs and the risk that the time limit set out in s 68 of the CPA would mean nothing if the prosecution were permitted simply to start again with 1. the non-malicious but non-compliance filing of the charge certificate, for a SCIO, having regard to the role of the Committal Court and prosecution, with exposure to a costs order and the benefits of a committal process to the YPs and to the community the Court is not satisfied that there is an abuse of process by 'reinstituting' proceedings. 1. The stay application asks the Court to interfere with the decision to bring the matter to Court to avoid a different Court, later, fulfilling its fundamental role of determining the merits of disputes. 2. It is difficult to see how the 'reinstitution' of a committal process could ever amount to a threat to basic human rights or a threat to the rule of law or could bring the administration of justice into disrepute. This is especially when the same Act that governs committal proceedings and allows a court to discharge the accused then allows an ex officio indictment. 3. For the YPs to be subject to another largely administrative process, that now is reasonably advanced, it is not accepted that the use of the court's procedures is an abuse of process. 4. In no way is the continuation of the prosecution inconsistent with the recognised purposes of the administration of criminal justice. It cannot constitute an abuse of the process of the Court. 5. Conversely, to not allow the 'reinstitution' of a committal is likely to erode public confidence in the administration of justice by undermining the significant public good that the committal process affords. 6. The committal avoids an ex officio indictment or the abandonment of serious allegations that have not been tested on their merits. 7. It is an extreme measure to stay proceedings as an abuse of process on the basis that the administration of justice would be brought into disrepute. 8. The public interest in prosecuting reasonably suspected crime, will sufficiently avoid any damage to the integrity of the court for its inability to enforce administrative timetables. 9. It is finally noted that the ODPP, in its enthusiasm to file the charge certificate in this current committal, filed the certificate prior to the date upon which the CAN was filed. Therefore, it was filed prior to the committal proceedings commencing. That is matter for the parties to further consider. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2024