RUTKOWSKI v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MCHUGH JJA 28, 29 October 1987, 25 March 1988 [1988] NSWCA 132 CRIMINAL LAW AND PROCEDURE abuse of Process — stay of criminal trial — allegedly fraudulent conduct in 1980 — Corporate Affairs Commission begins investigation in 1982 — accused interviewed 1983 — information exhibited 1985 — committed for trial 1986 — trial fixed November 1987 — application for stay on the basis of (a) delay and (b) Proposed tender of witnesses not called at committal — stay refused by Thorley DCJ — summonses to Court of Appeal — summonses expedited — order made dismissing summonses — subsequently accused pleads guilty and given bonds — held (by Kirby P Mahoney JA agreeing) It is not necessary or appropriate in the circumstances for the Court to provide reasons dealing with all of the matters argued. It is sufficient to say that, in the fact proved the case is not one attracting the exceptional jurisdiction to provide a permanent stay of criminal proceedings, which is to be exercised sparingly and with the utmost caution. Watson v Attorney General (NSW) (1987) 8 NSWLR 685; (1987) 20 Leg Rep SL 1 applied. Herron v McGregor & Ors (1986) 6 NSWLR 246; Aboud v Attorney General (NSW) unreported, CA, 16 October 1987; (1987) NSWJB 200 and Stevens v The District Court of New South Wales & Ors unreported. CA, 12 November 1987; (1987) NSWJB 221 referred to; (per McHugh JA) no error is shown in the exercise of jurisdiction by the District Court. JUDGES — reasons — extent of — necessity of — application for permanent stay of criminal proceedings — application dismissed with costs, reasons reserved — necessity of extensive reasons — detailed questions argued — claimants plead guilty at trial and given bonds — legislative enactments affect jurisdiction of Court of Appeal in such proceedings — desirability of conserving Court's reasons to cases in which they have practical importance to parties — held: (by Kirby P, Mahoney JA agreeing) It is not necessary for the Court to deal in its reasons with all of the argument advanced by the parties. Crimes Act 1900, s176A Criminal Appeal (Amendment) Act 1987 Supreme Court (Appeals) Amendment Act 1987 ORDERS (As pronounced on 28 October 1987) Summonses dismissed with costs. Kirby P These summonses were, by consent of the parties, heard together. They involved applications for relief to the claimants in accordance with the principles established in the series of cases which have followed Herron v McGregor & Ors (1986) 6 NSWLR 246 and Watson v Attorney General (NSW) (1987) 8 NSWLR 685. The claimants, who were then awaiting trial, issued their summonses out of the Court seeking a stay of the prosecutions brought against them, upon the grounds that to continue such prosecutions would amount to an abuse of process and would deprive the claimants of an asserted right to speedy trial upon certain criminal charges. On 12 October 1987, Hope JA ordered the expedition of the hearing of the summonses. They were heard before the Court on 28 and 29 October 1987, when extensive argument, both oral and written, was received. 2 UNREPORTED JUDGMENTS At the conclusion of the oral argument on 29 October 1987, the Court retired to consider the course which it would adopt, having regard to the fact that the trial of the claimants was listed to commence in the District Court on 2 November 1987. The Court had to consider, relevantly, whether to stay the trial generally, to stay it temporarily to permit further consideration of the argument or to permit the trial to continue. In the event, when the Court resumed, I announced that the Court had decided, for reasons which would be stated later, that the summonses should be dismissed with costs. I indicated that the orders were made without any reflection upon the rights of the claimants to renew similar applications before the trial judge, when the matters came on for trial on the following Monday. In view of three considerations which have occurred since judgment was reserved, I do not consider that it is necessary for the Court to provide reasons which respond to all of the arguments which were canvassed at the hearing. Those arguments were in mind when the order was made disposing of the summonses. I shall refer to these developments shortly. But first, I will state the general nature of the proceedings. Proceedings against the claimants and delay Sigmund Rutkowski, Cornelius van Santen and Horst Friedemann ("the claimants") were all officers of a company known as Universal Food Distributors (Australia) Pty Limited. The Crown alleged that each of the accused was a party to a fraudulent scheme to sell purported franchise rights to individuals wishing to trade in the company's products. The company became insolvent in 1980. The events, which were the subject of the charges brought against the claimants, were said to have been committed between | March and 10 June 1980, before the liquidation of the company. The liquidator brought the conduct of the claimants to the attention of the Corporate Affairs Commission. There then followed the somewhat languid investigation of the suggested offences of the claimants which was a feature of the activity of the Commission at that time and to which reference has been made in a number of cases similar to the present. It seems that an investigation began in earnest in 1982, indicating that, before that date, the file had been substantially unattended in the office of the Commission for at least 12 months. The claimant, Mr Rutkowski, was interviewed in March 1983. A record of interview was then taken from him. The claimants van Santen and Friedemann were interviewed later with the same consequence. Eventually informations were exhibited and the charges against all of the claimants came before a Court of Petty Sessions in 1985. Each of the claimants was charged with offences under s176A of the Crimes Act 1900. There followed a number of adjournments of the proceedings in the Local Court (as it became known). Ultimately committal proceedings commenced. On 9 April 1986, the magistrate committed the claimants to stand their trial. An application was then made to the Attorney General for a nolle prosequi. Eventually, this was declined. The proceedings were then listed for mention in the District Court. A date was fixed for the trial to commence on 2 November 1987 and to continue for six weeks. A stay is refused in the District Court In accordance with the procedures suggested in Watson the claimants then applied to the District Court for a permanent stay of the proceedings, upon the ground, effectively, of the above delays. Their applications came before Thorley DCJ. They were dealt with in two stages. On 21 August 1987, his Honour dealt with the claim for a stay based broadly on the around of the delay by the prosecution in bringing the proceedings URJ RUTKOWSKI v DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 3 to trial and the prejudice which this had caused the claimants. Thorley DCJ refused the stay on this ground. His reasons have been placed before the Court. They will be referred to shortly. His Honour stood over for further argument a second foreshadowed application for a stay upon different grounds. This motion was based upon the late application of the Crown to call three witnesses relevant to the charges in the proposed indictment, despite the fact that the evidence of those witnesses had not been proffered at the committal. Only one claimant, Mr Rutkowski, pressed this further around of objection to the fairness of the trial, as the Crown belatedly proposed to conduct it. The other claimants, by their solicitor, indicated that they did not rely upon this ground for a stay. On 31 August 1987, Thorley DCJ, "not without hesitation but in the result firmly" concluded that the additional around had not been made out to warrant a permanent stay of the trial of Mr Rutkowski. In reaching this conclusion, his Honour referred to the consideration that this second application had not been supported by the other two claimants. He proceeded to weigh the injustice to the claimants occasioned by the delay and the presumed desire of the other two claimants now to have the prosecution disposed of quickly and to avoid delays which would be caused by the reopening of the committal. His Honour then concluded:- I think there has been some measure of injustice done to the appellants. I think it stems from a somewhat lackadaisical approach of the Prosecution from the word go, if one is looking for a door at which to lay the blame. But in the result, I do not think the measure of injustice is outweighed by the overall injustice that would result if I were to stay these proceedings any longer. Unresolved questions affecting stay proceedings A number of issues were raised by the applications of the claimants and dealt with in the arguments addressed to the Court. Amongst the chief of them, were the following, stated in the form of questions: 1. Is the nature of the jurisdiction exercised by the Court in proceedings such as the present, akin to review of the decision of Thorley DCJ, as on certiorari (by which the Court is limited to correcting errors appearing on the face of the record)? Or is it an application sui generis involving a claim for relief in the original jurisdiction of the Court pursuant to the Court's statutory and inherent jurisdiction to protect subordinate courts and tribunals and to prevent abuse of their process? Cf Stevens v The District Court of New South Wales & Drs unreported, CA, 12 November 1987; (1987) NSWJB 221, per Kirby P at 7; 2. Is the Court, in the exercise of its jurisdiction, confined to the record of the court of trial, in this case the District Court? Cf Adams v Kennick Trading (International) Ltd & Ors (1986) 4 NSWLR 503 at 505f and the cases there cited. If so, what constitutes that record? May the Court admit, and if so, upon what basis, additional evidence in order to enhance the record of the court below? 3. What are the criteria for relief to persons such as the claimants? Are they those suggested in Watson (above), as elaborated in Carver v Attorney General (NSW), unreported, CA, 2 July 1987; (1987) NSWJB 149 and Young v Torrington & Ors unreported, CA, 22 September 1987; (1987) NSWIB 175. In short, is the purpose of the Court's jurisdiction to stay criminal proceedings that of preventing an abuse of process which would otherwise occur? Or is it, additionally, as suggested by McHugh 4 UNREPORTED JUDGMENTS JA in Aboud v Attorney General (NSW) unreported, CA, 16 October 1987; (1987) NSWJB 200, at p 10 of his judgment, for the purpose of protecting the "right" of a person accused of a criminal offence to have a "speedy trial". Cf Mills v The Queen [1986] 1 SCR 863 (Per Lamer J). 4. Does the Court, in the provision of relief exercise a discretionary jurisdiction? Or, the preconditions to relief being established, is it the duty of the Court to order a permanent stay upon the basis that the Court would never tolerate the continuance of proceedings which amount to an abuse of the process of a court subject to its supervision. In Stevens a judgment which was delivered shortly after this judgment was reserved, I catalogued these and other outstanding questions connected with this jurisdiction They await determination. Despite the many cases invoking this kind of relief which have come before the Court of Appeal, the Questions which remain to be concluded include the above and possibly, as Hope JA said in Stevens others as well. An exceptional jurisdiction to be cautiously exercised At the close of the argument in these summonses, I had formed the view that even adopting the answers to the previously listed Questions most favourable to the claimants, these cases were not ones for the exceptional intervention of the court. That intervention is exceptional was made clear by Mason CJ in the course of dismissing the application for special leave to appeal from this Court to the High Court of Australia in Watson. Referring to the jurisdiction to provide a permanent stay of criminal proceedings, his Honour said:- ...lt is a Power which is exercisable sparingly, and with the utmost caution such that its exercise is not encouraged... See Attorney General (NSW) v Watson (1987) 20 Leg Rep SL 1. In addition, since Watson was decided, the Court has, on a number of occasions, drawn attention to the competing Public interests in the public trial of persons accused of serious criminal offences, See eg my observations in Carver (above) and Aboud (above). In the course of his first judgment in these proceedings, Thorley DCJ reached for this consideration when he suggested that there was, in the case:- ".....a contest between the public interest in a public trial of serious criminal charges against the private and individual interests of a criminal accused to have fair trial in proper time and without undue delay that causes prejudice or other unfairness." I do not consider that, in this passage, his Honour expressed the correct test. Samuels JA made this point in one of the earliest cases in the series: Barron v Attorney General (NSW) & Ors unreported, CA, 18 August 1987, p5:- "It seems generally to have been agreed in Barton v The Queen (1980) 147 CLR 75 that whatever the precise nature of the test by which the gravity of the loss of a preliminary examination was to be measured, it involved the weighing up of the conflicting interests of the accused and 'the Crown acting on behalf of the community' (at 101). Stephen J (at 105) spoke of the necessity for careful evaluation 'of all the circumstances, lest the consequent prejudice to the accused should be such as to have deprived him of a fair trial'; and he referred at 106 to 'the balancing process'. It is of course, necessary to remember the admonition of Professor Roscoe Pound (in 57 Harvard L Rev 2) that when assessing the competing demands of conflicting interests 'we must be careful to compare them URJ RUTKOWSKI v DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 5 on the same plane. If we put one as an individual interest and the other as a social interest, we may decide the Question in advance in our way of putting it'. See J Stone, The Province and Function of Law 493. Hence it is inappropriate to compare the accused's individual interest in a fair trial with some supposed countervailing interest of the Crown, thus tending to produce a reflective bias in favour of the accused. The valid comparison is between two social or community interests, one in ensuring the fairness of criminal trials and the other in ensuring the orderly and expeditious prosecution of offenders in accordance with established procedures......". It is not alleged in this case (as it was in Carver above) that witnesses had died or other events had occurred, during the interval of the delay on the cart of the prosecution, which caused actual prejudice to the claimants at the trial. Reliance was placed before Thorley DCJ upon the possibility that the claimants might have wished to call a witness who had been a typist or general clerk in the company and who was said to be living in New Zealand. Thorley DCJ was prepared to infer that this witness was the person who had prepared, and could prove, certain documentation relevant to the charges. However, on the basis of the evidence which was before Thorley DCJ, and which his Honour summarised in his first judgment, nothing of importance was shown to turn upon her evidence. At least nothing was proved before his Honour, or was demonstrated before this Court, which would necessitate a contrary conclusion. Although the proposal of the Crown to call three further witnesses who had not given evidence at the committal would involve some prejudice to the claimants, the Crown made it clear that it would propose arrangements to the trial judge which would cure that prejudice, to the full extent possible. Specifically, it was proposed that the commencement of the trial should be delayed whilst the claimants had the opportunity, in the absence of the jury, of cross examining the witnesses. Developments since judgment was reserved It was at this stage that three developments occurred which, in my opinion, relieve the Court of the duty to provide a fully reasoned response to all of the detailed arguments of the parties. The first was the information, notified to the Court, that after reasons for judgment were reserved the claimants had appeared at their trial, entered pleas of guilty and had been sentenced by a District Court judge who imposed on them each the obligation to enter appropriate bonds. It is understood that the trial judge, in so proceeding, himself took into account the delays which had attended the prosecution of the claimants and the prejudice, presumptive and also, possibly, actual, which had resulted from such delays. In the circumstances of the final conviction and punishment of the claimants in this way, it would be redundant for the Court, in this case, to explore in detail, and to seek to resolve, the Questions which are no longer of practical importance for the claimants. Were it to do so, in the knowledge of the disposal of the proceedings against the claimants, it is my opinion that the Court would be indulging in an unnecessary proliferation of judicial opinion in a case now of hypothetical interest only. Secondly, after judgment was reserved, the then Attorney General on 17 November 1987 introduced into Parliament cognate Bills designed to affect the jurisdiction of this Court in proceedings such as the present. Those Bills have now become Acts and the Acts came into force on 18 December 1987. See Supreme Court (Appeals) Amendment Act 1987 and Criminal Appeal (Amendment) Act 1987. The stated purposes of the Acts include "to place an appeal from an interlocutory judgment or order in criminal proceedings in the District Court on the same footing as a similar judgment or order in criminal 6 UNREPORTED JUDGMENTS proceedings in the Supreme Court". The Attorney General stated that the Supreme Court (Appeals) Amendment Bill was designed to exclude an application or appeal to the Court of Appeal from criminal proceedings on indictment in the District Court. This is not the occasion to explore the scope and operation of the new legislation. That Question may arise in a case in which it is a live issue. It is sufficient to observe that if the legislation achieves its stated object, it will effectively transfer proceedings similar to the present from this Court to the Court of Criminal Appeal. In those circumstances, the argument raised by counsel for the claimant, Mr Rutkowski, that the Court should provide its reasons in this case because they might be helpful in later cases, has diminished force. It may be desirable, in the legislative circumstances which have occurred, that further development of the applicable principles should await future proceedings in the Court of Criminal Appeal. Thirdly, I would be less than candid if I did not acknowledge that the many other pressing demands upon the Court in cases which do involve live issues and vitally affect the litigants concerned suggest that the Court should not now occupy itself in a response to all of the arguments of the parties, now of no practical value to them. This point was recognised by counsel for the Attorney General and by the representatives of Messrs Friedemann and van Santen, all of whom indicated that they did not dress for full reasons dealing with all of the issues argued. But counsel for Mr Rutkowski took a different approach. He referred to his client's "right" to have reasons and pointed to the adverse consequences of the orders made by the Court both as to the issue of substance and as to costs. The claimants are entitled to reasons. In my view, this judgment provides reasons sufficient for the present circumstances. It is, in the end, enough to say, with Mason CJ in Watson that this was not an exceptional case attracting the exceptional jurisdiction to stay criminal proceedings, which jurisdiction must be exercised sparingly and with the utmost caution. To say more than the foregoing, in the circumstances that have occurred is unnecessary. The remaining issues which were argued at length will remain for the future. As announced on 29 October 1987, the order of the Court was that the summonses be dismissed with costs. Mahoney JA These applications have been dismissed. The Court has been informed that, since these matters were argued, the relevant parties have, upon trial, pleaded guilty and been convicted. No relevant purpose will therefore be served by a detailed consideration of the matters which were argued. I agree that it is enough to say that this is not such a case as attracts the jurisdiction here invoked. McHugh JA At the conclusion of argument in this matter the Court made orders dismissing the summonses. I now give my reasons for joining in the orders of the Court. The principal issue in the summonses concerned the manner in which this Court should exercise its power to protect an abuse of process in an inferior court. The summonses were brought by Sigmund Paul Rutkowski, Horst Friedemann and Cornelius Van Santen, who were indicted on 2 November 1987 on a charge that together they defrauded two persons "'in their dealings with Universal Food Distributors (Australia) Pty Limited". The proposed indictment alleged that the of fence took place between 1 March 1980 and 12 April 1980. The claimants URJ RUTKOWSKI v DIRECTOR OF PUBLIC PROSECUTIONS (McHugh JA) 7 were charged with the offence on 12 April 1985. They were committed for trial on 9 April 1986. On 21 August 1987, Thorley DCJ refused to stay the proceedings unconditionally. On 31 August 1987, his Honour refused to grant a limited stay of proceedings. The claimants alleged that this Court should examine the evidence including evidence not before Thorley DCJ and determine whether the presentation of the indictment would amount to an abuse of the process of the District Court. Alternatively, the claimants alleged that this Court should quash his Honour's order and give them consequential relief or, as an alternative, treat his Honour's jurisdiction as unexercised and order him to re-hear the application for a stay of the proceedings. The jurisdiction of the Court to order a stay of proceedings on a criminal charge pending in the District Court is beyond argument: Watson v Attorney General (1987) 8 NSWLR 685. It arises from the Court's inherent power to protect proceedings in the inferior courts of justice of New South Wales. The stay jurisdiction is original jurisdiction. The Court does not sit as an appellate court. It is not confined to the evidence, if any, called before the inferior court. Any relevant evidence in support of the stay may be adduced. However, the jurisdiction is discretionary. When a party has litigated a stay application before an inferior tribunal which has jurisdiction, this Court, in the exercise of its discretion, ought not to exercise its original jurisdiction unless there is jurisdictional error on the part of the inferior tribunal. Even when jurisdictional error is shown, a question arises as to whether the court should simply quash the decision and send the case back to the tribunal for a re-hearing rather than embark on an original hearing. I did not think that his Honour's first judgment refusing a permanent stay of the proceedings indicated any jurisdictional error or, for that matter, any error at all. The case before his Honour was argued on the ground that the proceedings were an abuse of process. No reference was made to the distinction between the orders which the Court can make arising from a breach of the speedy trial right and the inherent power to stay any proceedings, civil or criminal, which are an abuse of process or harsh and oppressive In his judgment his Honour said:- Really the whole of the arguments that are put here depend upon the giving to the factor of presumptive prejudice a weighting which outweighs all of the other considerations that one has to take into account when holding the balance in deciding this sort of application. There is but one reference to any actual prejudice... The reference to prejudice related to the claim that the accused, Friedemann, did not know anything concerning the whereabouts of a Ms. Parkins who might be a witness for him. However, his Honour concluded that it was "idle for the accused to just come here and assert that he may want to call this lady as a witness when the simple fact is he has done utterly nothing himself in any endeavour to locate her or to define what it is she could possibly provide by way of assistance to the accused". His Honour said that, while delays which should not have occurred had taken place, they were not "of such quality as encourages me to exercise my discretion in favour of the accused". By "discretion" I take his Honour to have been referring to the discretionary judgment which he was required to form after weighing up the various factors referred to in Watson v Attorney General (NSW) (1987) 8 NSWLR 685. No jurisdictional error appeared in his Honour's first judgment. 8 UNREPORTED JUDGMENTS The second of his Honour's judgments dealt with an application by Rutkowski that there should be an order staying the prosecution until there was a limited committal to enable him to cross-examine three witnesses who were to be called at the trial but had not given evidence at the committal stage. However, his Honour thought that, although there "has been some measure of injustice done to the appellants", it was "outweighed by the overall injustice that would result if I were to stay these proceedings any longer". I was of the opinion that his Honour's second judgment also showed no error of law, jurisdictional or otherwise. The applicant's cases were heard by a court which had jurisdiction to stay the proceedings, and that court had not made any jurisdictional error. In the exercise of this Court's discretion, therefore, I was of the opinion that the Court should not exercise its own original jurisdiction. It was for these reasons that I thought the applications should be dismissed with costs. As announced on 29 October 1987, the order of the Court is that the summonses be dismissed with costs.