New South Wales Supreme Court CITATION : Newson v Ly [2001] NSWSC 1117 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 12105/01 HEARING DATE(S) : 22 November 2001 JUDGMENT DATE : 5 December 2001 Michael Newson (Plaintiff) PARTIES : v Ty Ly (Defendant) JUDGMENT OF : Davies AJ at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT - FILE NUMBER(S) : LOWER COURT Magistrate Sweeney JUDICIAL OFFICER : COUNSEL : P: Mr M A Wigney D: Mr B J Mulligan SOLICITORS : P: Australian Government Solicitor D: Allanson Benn, Solicitors CATCHWORDS : Abuse of process - whether proceedings may be stayed by reason of prejudice in other proceedings - whether Magistrate had power to award costs - costs - against prosecutor when ordering stay of proceedings Justices Act 1902, s 104 LEGISLATION CITED : Customs Act 1901 (Cth), s 234 Excise Act 1901 (Cth), ss 117, 137, 152 Jago v District Court of NSW (1989) 168 CLR 23 Reg v Humphrys [1977] AC 1 Barton v The Queen (1980) 147 CLR 75 DPP v Shirvanian (1998) 44 NSWLR 129 Maxwell v The Queen (1996) 184 CLR 501 CASES CITED : CSR Ltd v Cigna Insurance Aust Ltd (1997) 189 CLR 345 Rogers v The Queen (1994) 181 CLR 251 Ridgeway v The Queen (1995) 184 CLR 19 Hui Chi Ming v The Queen [1992] 1 AC 34 Connelly v DPP [1964] AC 1254 Tomson v Connors (Abadee J, 27/2/97, unrep) DECISION : Appeal allowed. See para 24 for further orders. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DAVIES AJ Wednesday, 5 December 2001 12105/01 - MICHAEL NEWSON v TY LY JUDGMENT 1 HIS HONOUR: This is an appeal brought by way of Summons (as amended) from the order of a Magistrate given in the Local Court at the Downing Centre that the proceedings brought by the plaintiff, Michael Newson, against the defendant, Ty Ly, by way of Information and Summons, be stayed permanently. As the appeal is brought under s 104(2) of the Justices Act, 1902, it raises only a question of law. 2 In December 1999, a search warrant was executed by officers of the Australian Customs Service ("Customs") on premises with which the defendant was connected. Customs' officers located and seized a quantity of cigarettes on the premises and they later charged the defendant with three offences under s 234 of the Customs Act, 1901 (Cth), being charges of smuggling, evading payment of duty and making a false statement. On the same day, Customs' officers noticed cut tobacco on the premises. They alerted officers of Excise who, in the course of the day, obtained a warrant and seized the tobacco. In April 2000, officers of Excise interviewed the defendant with respect to the tobacco. 3 The Chief Executive Officer of Customs had, at one time, the general administration of both the Customs Act and the Excise Act, 1901 (Cth). Since February 1999, however, the Australian Taxation Office has been responsible for Excise affairs. As a result, the prosecutions of the differing offences were not coordinated. The offences, in any event, were materially different as the Customs offences concerned goods imported into Australia whilst the Excise issue concerned cut tobacco produced in Australia. 4 In November 2000, the charges under the Customs Act came before the learned Magistrate. After negotiations, the defendant pleaded guilty to the smuggling charge and the other charges were withdrawn. The defendant was fined $5,000. 5 In December 2000, an Information was laid in respect of the Excise offence, the charge being:- "That, on 13 December 1999 at Sydney in New South Wales you, not being a manufacturer, had in your possession, or had custody or control of, manufactured or partly manufactured goods being 26 kgs of cut tobacco (the 'goods') being excisable goods on which duty had not been paid." 6 The Excise prosecution came before the same Magistrate. An application to stay those proceedings on the ground of an abuse of process, was made on behalf of the defendant. An affidavit sworn by the defendant was read in evidence. It stated, inter alia:- "6. On 2 November, 2000, - after protracted negotiations between the Informant's legal representative and my legal representatives outside the Court – I agreed to enter a plea of guilty to Smuggling, provided the other counts were withdrawn. 7. This was agreed. I was then convicted by Your Worship and fined. 8. I had thought that that was the end of all matters arising out of the raid on my company's premises. No mentioned was made by Customs of the Section 117(1) matter at that time. 9. After the hearing date, I was summonsed by the Australian Customs Service for illegal possession of tobacco under Section 117(1) of the Excise Act. The Informant was the same person as in the Customs Act matters. 10. The summons related to tobacco taken from the company's premises on the day of the raid referred to earlier. 11. I submit that the late laying of the above summons was oppressive and vexatious and an abuse of process. All of the alleged breaches arose out of the same raid; the officers were the same; the interviews were the same. 12. All matters should have been before Your worship on 2 November last. 13. If that had happened, I would have been in a position to more fairly consider my position. In the circumstances, the bringing of the summons herein is unjust." 7 A submission was put to the Magistrate by the defendant's counsel, Mr B Mulligan, that there had been undue delay in the institution of the Excise prosecution and that the prosecution was oppressive, vexatious and an abuse of process. 8 The learned Magistrate ordered that the Excise prosecution be permanently stayed but she did not do so on the ground that the prosecution itself was oppressive or vexatious or an abuse of process. The Magistrate said, inter alia:- "The application is made by the defendant on the basis that the charge under the Excise Act having been laid after the other charges had been disposed of that the defendant had thought in November that all the matters arising out of the search of his company's premises had been disposed of and, had he known that there was another charge to ensue, that he may not have pleaded guilty, that it would have affected the plea negotiations with Customs in November last year. It is clear that although the matters arise out of the same search that there are two factual circumstances, being the cigarettes and the tobacco, each of which give rise to different offences. It's clear that there were two investigative agencies conducting separate investigations and I'm told that there was no overlap in the Australian Government Solicitors office who acts for both of those agencies in respect of the investigations or charging of the defendant. The information was laid by the excise officer within the five year time period allowed under the Excise Act and so in that respect there is no undue delay on the part of excise . … On the basis of the matters that I have recited it seems to me that it cannot be said that on the part of the informant in this matter that there's been an abuse of process or vexatious or oppressive conduct . As I said, the excise officers conducted their own separate investigation and have laid an information within the time limit permitted by the legislation. On the other hand it does seem to me that the defendant has suffered injustice in respect of not these proceedings. It's not that he could not get a fair trial in respect of these proceedings. But he has suffered prejudice in respect of the antecedent proceedings and it seems to me that that cannot be undone. The defendant says that he is being treated unfairly by the state or in fact the Commonwealth and although the Commonwealth has sought for reasons of administrative convenience to separate the administration of legislation and investigative powers amongst officers of different departments that that should not cause the defendant to suffer injustice by reason of that investigating and prosecuting process being separated and I think that there is merit in that submission. So despite the fact that there has been no conduct on the part of the excise informant which could be said to be an abuse of process , I am satisfied that the defendant has suffered injustice by virtue of this charge being laid after the other charges had been listed for hearing and the subject of negotiations which resulted in a plea of guilty by the defendant …" (Emphasis Added) 9 The Magistrate specifically held that there was no undue delay in bringing the Excise prosecution and no abuse of process or vexatious or oppressive conduct on the part of the informant. However, she held that the defendant had suffered prejudice in the Customs prosecution. That prejudice was that, "had he known that there was another charge to ensue, … he may not have pleaded guilty". 10 In my opinion, it was not open to the Magistrate, on the facts found by her, to order that the proceedings be permanently stayed. Her Worship proceeded on a misunderstanding of the applicable principles of law. It is not in general the function of a court to decide whether or not a prosecution should be instituted. That is the function of the appropriate prosecuting officers. It is the function of a court to try prosecutions duly brought before it unless it is shown that the prosecution cannot be fairly tried or that there is some other good reason, such as mala fides on the part of the prosecution, for staying the proceedings. Brennan J said in Jago v District Court of New South Wales (1989) 168 CLR 23 at 38:- "In Reg v Humphrys [1977] AC 1, at p 26, Viscount Dilhorne said in reference to a supposed judicial power to intervene in the institution of a prosecution: 'A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.' And in Barton v The Queen (1980) 147 CLR 75, at pp 94-95, Gibbs ACJ and Mason J said: 'It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.' " 11 Likewise, in Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, Mason P said at p 134:- "No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last-mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes. For that reason the power to order a permanent stay is reserved for the extreme case: Jago (at 34), per Mason CJ; see also the English cases cited by Powell JA as to the power being 'very strictly confined'." 12 A corollary to this point is that abuse which warrants the permanent stay of prosecution proceedings is abuse which relates to those proceedings and requires those proceedings to be stayed because they are an abuse of process. In Director of Public Prosecutions v Shirvanian, Mason P put the matter this way, at p 134:- "There are statements of the highest authority to the effect that every court has either inherent or implied power to prevent its own processes being used to bring about injustice: see Maxwell v The Queen (1996) 184 CLR 501 at 512, 525, 535; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 and cases cited. The chief, but not only, weapon in the courts' armoury is the stay. The power to stay for abuse 'arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings': Williams v Spautz (at 518n), per Mason CJ, Dawson J, Toohey J, McHugh J." 13 The crux of the jurisdiction to stay proceedings for an abuse of process was expressed in the words of Gibbs ACJ and Mason J in Barton v The Queen (1980) 147 CLR 75, where their Honours said, at p 96, "There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial". That is why courts have concentrated particularly on two elements, the first being bad faith or oppression in the nature of bad faith on the part of the prosecutor and the second being the requirements of a fair trial. These factors can readily be understood for they ensure that only prosecutions which are instituted for a proper purpose and in respect of which a fair trial will ensue will be entertained by the courts. 14 A court must be clearly satisfied that it is necessary to do so before the court orders that a matter be permanently stayed. As Mason CJ said in Jago, at p 34:- "To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR, at p 111, per Wilson J." 15 In Director of Public Prosecutions v Shirvanian at p 134, Mason P said:- "Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, 'Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited' [1995] Crim LR 864." In these words, Mason P was not seeking to expand the recognised jurisdiction of courts to stay proceedings for abuse of process. The President was merely recognising the point that the concept of abuse of process is not limited to defined categories or narrowly confined. The facts of each case must be taken into account. 16 Mason P recognised the points that I have earlier made when the President said, at p 133:- "An abuse of process in criminal proceedings was described by Lord Lowry in Hui Chi Ming v The Queen [1992] 1 AC 34 at 57 as 'something so unfair and wrong that the court would not allow a prosecutor to proceed with what is in all other respects a regular proceeding'. The power to stay proceedings permanently for abuse of process operates, in practice, as an exception to the duty of a court invested with jurisdiction in a particular proceeding to hear and determine that proceeding." 17 In the light of these principles, it was clearly wrong of the Magistrate to stay the Excise prosecution before her when the proceedings had been brought without undue delay and, on her Worship's findings, there was no abuse of process, or vexatious or oppressive conduct in relation to them. There was no finding of bad faith. There was no finding that the prosecution could not be fairly tried. There was no matter raised in relation to the particular proceedings which justified a stay. 18 The learned Magistrate was wrong in law in staying the subject prosecution because of what she considered to be an injustice in relation to the Customs proceedings. I agree with the submission of Mr M Wigney, counsel for the plaintiff, that, if any matter occurred in relation to the Customs proceedings which was unfair or unjust in relation to the defendant, the proper course for the defendant would have been to appeal against the conviction and sentence. 19 I may add that the so-called injustice found by the Magistrate was merely that, had the defendant been aware of the forthcoming Excise charge, he may have taken some other course in relation to the Customs prosecution. Such a circumstance, if it was an injustice, was a far less significance than that which occurred in Connelly v Director of Public Prosecutions [1964] AC 1254 where, because it was then the practice to try murder indictments separate from indictments for lesser offences, the accused, who had been acquitted of a murder which had occurred in the course of a robbery, was later brought to trial on the count of robbery and was convicted, notwithstanding that a judge had expressed the opinion that it would be wrong for the Crown to proceed with that count. It was held that there was no ground to interfere. 20 In Connelly v Director of Public Prosecutions, Lord Devlin expressed the point that it may be, but is not necessarily, an abuse to proceed with a second charge based on substantially the same facts. His Lordship said at pp1359-1360:- "As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case." In the present case, the facts and issues before the Magistrate were not those before her in the Customs prosecution. The only common facts were that the goods in each case were found and seized in the same premises on the same day. 21 For the reasons I have given, I am of the opinion that the learned Magistrate misunderstood the principles upon which she exercised her power to stay the Excise prosecution and that there was no matter of fact found by her on which an order for a permanent stay could be based. 22 The summons in these proceedings also challenged the ruling of the Magistrate that the plaintiff should pay the defendant's costs. Mr Wigney has submitted that the power to award costs, conferred by s 152 of the Excise Act, is limited by the provisions of s 137 of the Excise Act which provide that, subject to the provisions of the Excise Act, the provisions of the laws relating to summary proceedings in force in the State in which the proceedings are instituted shall apply to Excise prosecutions. Mr Wigney submitted that, as the Magistrate has no power under the Justices Act, 1902 to award costs where proceedings are permanently stayed, the Magistrate had no power to make such an order. 23 In my opinion, s 137 of the Excise Act is subject, inter alia, to s 152 of that Act and there is no reason to read down the general provisions of s 152. I agree with the approach taken by Abadee J in Tomson v Connors (unreported, 27 February 1997). 24 For the reasons I have given, the appeal is allowed. The orders below are set aside and the matter is remitted to the Local Court at the Downing Centre for the hearing of the Excise charge. The defendant is to pay the costs of the appeal and the costs of the motion below. ********** Last Modified: 12/21/2001 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.