Jago v District Court (NSW)
168 CLR 2387 ALR 577
(Judgment by: Brennan J) Court:
Judges:
Mason CJ
Brennan JDeane J
Toohey J
Gaudron J
Judgment date: 12 October 1989
Canberra
Judgment by:
Brennan J
The appellant has been charged under Crimes Act 1900 (NSW) on 30 counts of being a director of a company who fraudulently applied the company's property to an improper use. The chronology of the case is a reproach to the administration of criminal justice. The alleged offences occurred in the period April 1976 to January 1979. On 6 February 1980 the appellant was examined compulsorily under s 249 of the Companies Act 1961 (NSW). Some time later (probably in 1981) interviews relevant to these charges (and 8 or 9 interviews relevant to other matters) were conducted and recorded. He was arrested and charged on 19 October 1981. On 16 July 1982 the appellant was committed for trial on 92 charges, but the matter was not listed in the District Court until 27 June 1986. Then a hearing date was fixed for the week commencing 9 February 1987. On 13 February 1987 an indictment was presented charging the appellant with the 30 counts under s 173 of the Crimes Act. An application was made for a permanent stay of proceedings on the indictment but Judge Thorley refused the application. Judge Thorley found that there had been an inordinate delay between the time when the applicant was committed for trial in July 1982 and the time when the matter was put into the list before a District Court judge in June 1986. However, his Honour thought that, on balance, the order sought should not be made. An appeal against that decision was heard by the Court of Appeal which, by majority (Kirby P. and Samuels J.A., McHugh J.A. dissenting), dismissed the appeal. From that decision, a further appeal has been brought by special leave to this Court. Presumably no trial has yet taken place.
Applications for a permanent stay have evidently become commonplace in New South Wales. There, the criminal courts have been "flooded with applications" according to Mr Byrne in the Australian Law Journal, (1988), vol 62, p 160. Judge Thorley observed that, in (then) recent times, such applications had become "quite a popular way of exploring whether or not the prosecution against a particular accused can be frustrated." And Kirby P. commenced his judgment with the observation:
"Another application for a permanent stay of criminal proceedings in the District Court is before this Court."
Interlocutory appeals against the refusal of a stay have again proved to be, as such appeals often are, an effective counter to the due administration of criminal justice, compounding the delays which occur before the case reaches the court of trial.
The Jurisdiction of the District Court.
The source of the jurisdiction of the District Court to grant a stay was not the subject of close examination either by Judge Thorley or by the members of the Court of Appeal. Yet the power of the District Court to grant a stay must be supported, if at all, by the jurisdiction statutorily vested in that Court.
The general criminal jurisdiction of the District Court is the jurisdiction which each Court of Quarter Sessions had before the District Court Act 1973 (NSW) commenced: see s 166(2). The jurisdiction of a Court of Quarter Sessions was established originally by commission to "hear and determine" crimes and offences: Stephen, A History of the Criminal Law of England, vol 1, p 114. That jurisdiction, affected as to subject matter by a series of statutes - some offences are statutorily removed from the cognizance of the District Court - was the jurisdiction vested in the Courts of Quarter Sessions in New South Wales created pursuant to The Australian Courts Act 1828 (Imp.) (9 Geo.IV c.83), s 17 and that jurisdiction was continued in the Courts of Quarter Sessions preserved by the Act for instituting and regulating Courts of General and Quarter Sessions in New South Wales 1829 (NSW) (10 Geo.IV No 7) and the Crimes Act 1900 (NSW), s 568 (to be read in conjunction with the Criminal Law Amendment Act 1883 (NSW) (46 Vic. No 17), District Court Act. An indictment, being the foundation of the record of criminal proceedings (Stephen, op.cit., vol 1, p 274), enlivens the jurisdiction of the District Court to hear and determine the offence therein charged.
Absent any special statutory investiture, the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment. The steps leading up to the presentation of an indictment in the District Court are entrusted by statute to officers of the executive branch of government. Before 1986, a person appointed by the Governor in that behalf was authorized to prosecute offences cognizable in the District Court: Crimes Act, s 572. In that year, a Director of Public Prosecutions was empowered, inter alia, to find a bill of indictment and to carry on or to institute and conduct prosecutions in the District Court: Director of Public Prosecutions Act 1986 (NSW), Pt 3. The power to "find a bill of indictment" is no doubt intended to be the equivalent of the power of a grand jury to find and endorse "a true bill" on a bill of indictment which, being handed to the proper officer in court, becomes an indictment: see Stephen, op.cit., vol 1, p 274. The power to find a true bill thus comprehends a power to sign or to authorize the signature of an instrument in the form of an indictment so that, on its presentation to the Court, an indictment is validly presented. A Crown prosecutor or a person authorized by the Director of Public Prosecutions is now empowered to sign indictments: Criminal Procedure Act 1986 (NSW), s 15.
Although the jurisdiction of the District Court to hear and determine an offence depends on the regular presentation of an indictment, provision was made for the "listing" of "criminal proceedings" before the District Court whether or not an indictment has been presented: Criminal Procedure Act, Pt 3 and reg.7 of the Criminal Procedure Regulation 1987. The purpose of these provisions is obscure. The term "criminal proceedings" is defined, so far as is relevant, to mean proceedings "relating to" the trial or sentencing of a person (s 7), but neither the Act nor any cognate legislation invests the District Court with jurisdiction to do more than to try a person against whom an indictment has been regularly presented and to sentence him on conviction. Section 9 imposes on the Criminal Listing Director, a public servant (s 7), the duty of arranging for a "matter" to be "listed for mention" before the Supreme Court or District Court if the prescribed period has passed since an accused person was committed for trial :
"without the matter having been -
- (a)
- brought before the Supreme Court or the District Court in relation to the matter; or
- (b)
- terminated."
Presumably a "listing" under s 9 is intended to give some publicity to delay and to give the Court an opportunity to enquire into the reasons for delay. But nothing in Pt 3 relating to the Criminal Listing Director affects the power of a court to regulate proceedings before it: Criminal Procedure Act confers no power on the District Court to regulate any aspect of the exercise of the powers of prosecution before an indictment is presented or to control the presentation of indictments or to review a refusal to find a true bill.
For the sake of completeness, reference should be made to the rule-making power contained in the District Court Act which includes power to provide for "all procedural matters relating to or incidental to the indictment and arraignment of an accused person, including motions to quash or stay indictments": s 171(2)(f), inserted by the District Court (Procedure) Amendment Act 1984 (NSW), Sched. 4. The rule-making power was exercised by the enactment of Pt 53 of the District Court Rules entitled "Criminal Procedure Rules" which, in their original form, first became effective in September 1987 (after the decision by Judge Thorley in this case). Rule 10 purports to create, or at least to recognize, the power of the Court to make an order to quash or stay an indictment "before the day appointed for the hearing of the proceedings". If this rule were construed as empowering the court to prevent the presentation of an indictment duly signed, it would be beyond power, for neither the rule-making power nor the rules in Pt 53 could confer a wider jurisdiction on the District Court than the Court possesses, that is, a jurisdiction to hear and determine a matter in which an indictment has been presented. But r.10 can and should be construed as relating to the Court's power, presently to be examined, to quash or stay an indictment which has been presented, and "the day appointed for the hearing of the proceedings" can and should be construed as a day on which proceedings on the indictment will be heard.
In Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685 , Priestley J.A. (with the concurrence of Street C.J. and Hope J.A.) claimed for the District Court a power to intervene to prevent the presentation of an indictment, the "pre-trial jurisdiction" (as his Honour called it) being "exercisable in respect of existing charges which will if tried be heard in the Court" (at p 701). With respect, I am bound to say that neither the proposition advanced by Priestley J.A. nor the source of the power claimed for the District Court prior to indictment is self-evident. A jurisdiction to intervene in the process of signing and presenting an indictment would be a radical innovation, for it would involve an interference with the function of the Law Officers of the Crown or of the Director of Public Prosecutions under statute to decide whether to proceed with a prosecution.
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 A.C.J. 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."
In my opinion, the District Court has no jurisdiction to prevent the presentation of an indictment.
If that be right, the question remains whether it can refuse to try a case after the indictment is presented. The duty of a court at common law was expounded by Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions. Ex parte Downes (1954) 1 QB 1 , at p 5:
"Once a presentment was made, so that the bill became an indictment, the court had to try it unless the alleged offence was unknown to the law or was imperfectly set out so that it would have been bad on error, or unless matter in bar was alleged by plea, in which case the plea in bar had, and still has, to be tried. Objection to the matter or form of the indictment could be taken by motion to quash, or less usually by demurrer. The only question then was whether the indictment was good in substance and form, and not whether the evidence which hadbeen before the grand jury would support it.
The statutory provisions considered in that case which relate to the effect of committal for trial were different from the New South Wales provisions (as Dawson J. has demonstrated in Grassby v. The Queen (unreported, delivered 12 October 1989)), but in principle Lord Goddard's statement of the court's duty to try a case is of general application subject to a qualification presently to be mentioned. His Lordship (at p 6) stated the duty to try in these terms:
"Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try, for example, an indictment at sessions for an offence punishable with imprisonment for life in the first instance."
Lord Goddard's exceptions to the duty to try do not admit of the qualification, acknowledged in Barton, that courts of criminal jurisdiction have power to prevent an abuse of process. To that extent, the exceptions are too narrowly stated. I shall return to the qualification but, for the moment, it should be noted that Barton reaffirms the clear division between the executive power to present an indictment and the judicial power to hear and determine proceedings founded on the indictment. That division is of great constitutional importance. It ensures that the function of bringing alleged offenders to justice is reposed entirely in the hands of the executive branch of government who must answer politically for the decisions which they make - not only decisions to prosecute in particular cases but decisions relating to the commitment of resources to the detection, investigation and prosecution of crime generally. These are decisions which courts are ill-equipped to make and, so far as they relate to the commitment of resources, powerless to enforce. The division of powers in the administration of the criminal law between the executive and judicial branches of government also ensures that the courts do not become concerned by matters extraneous to the fair determination of the issues arising on the indictment and are thus left free to hear and determine charges of criminal offences impartially.
Historically, the only powers which the courts have exercised prior to presentation of an indictment to protect an accused from unacceptable delay have been powers designed to ensure that the period spent by an accused in pre-trial custody is not excessive. The commissions of gaol delivery, which Stephen (op.cit., vol 1, p 105) says "are probably as ancient as the gaols themselves, and as the local administration of justice by royal officers", directed the justices of gaol delivery to try every one found in the prison which was to be delivered. The commissions of gaol delivery thus secured the periodic disposition of persons held in custody awaiting trial. Until 1679 there was no other machinery by which a person charged with an indictable offence might secure expedition of his trial, although the justices of oyer and terminer enquired into, heard and determined charges awaiting trial on indictment and were thus instrumental in avoiding delay in the trial of indictable offences: see Stephen, op.cit., vol 1, pp 106-107. In 1679 the Habeas Corpus Act (31 Cha.II c.2) contained a provision (s 6 in the print of the Statutes of the Realm) which was calculated to ensure that those who were held in custody awaiting trial on charges of high treason or felony should be brought to trial without inordinate delay. Section 6 required the Court of King's Bench or justices of oyer and terminer or general gaol delivery to whom a prisoner made application to be brought to trial should, if the prisoner were not indicted during the next session, bail him and, if not indicted during the following session, discharge him. This provision remains in force in New South Wales (Imperial Acts Application Act 1969 (NSW), s 6, Pt I of the 2nd Sched.) but its operation is, by its terms, restricted to cases of high treason and felony. In England, the jurisdiction of courts of oyer and terminer and general gaol delivery was superseded by the jurisdiction of courts of quarter sessions, but only in the context of provisions which entitled a person committed for trial at quarter sessions - in the absence of "special reasons" - to a speedy trial or discharge (Assizes Relief Act 1889 (UK)), that is, to relief similar to that available under the Habeas Corpus Act. The Criminal Codes have adopted the same principle, applying it to persons charged with any indictable offence (Criminal Code (Q.), s 590; Criminal Code (WA), s 608; Criminal Code (Tas.), s 345), a reform which has not been copied in New South Wales.
A Common Law Right to a Speedy Trial?
In Herron v. McGregor (1986) 6 NSWLR 246 and in Aboud v. Attorney-General (NSW) (1987) 10 NSWLR 671 , McHugh J.A. (as his Honour then was) concluded that Magna Carta recognized a common law right to a speedy trial. That conclusion was supported by the opinion of Warren C.J. in Klopfer v. North Carolina (1967) 386 US 213 . The same view was accepted by La Forest J. in Reg. v. Rahey (1987) 1 SCR 588 , at pp 634-635, who noted that the remedies to enforce the right were defective. The historical accuracy of the view that Magna Carta recognized a common law right to a speedy trial was challenged by Samuels J.A. in the present case. In my respectful view, the argument which his Honour mounted is correct. I respectfully agree with what Toohey J. has written on this aspect of the case.
If there be a common law right to a speedy trial, there must be a remedy available to enforce it. The remedy advanced is a permanent stay of proceedings on the indictment. That is a remedy tantamount to the refusal of jurisdiction to hear and determine the matter arising on the presentation of an indictment. Such a right would impose a discretionary time limit on the presentation of indictments. The rule of the common law that time did not run against the King ("nullum tempus occurrit regi") is inconsistent with the existence of such a right. Bacon's Abridgment asserts the established common law rule to be that the King's privilege is that "nullum tempus occurrit regi" (vol 5, p 562) and Chitty says that this has been a maxim of English law from the earliest periods (Prerogatives of the Crown, p 379) a proposition which R. v. Berkley and Bragg (1754) Say. 123 ( 96 ER 825 ) supports. Successive editions of Archbold, Criminal Pleading, Evidence and Practice have cited the maxim to establish that there is no time limit for the commencing of a prosecution unless statute so provides in particular cases: see, for example, 32nd ed. (1949), p 57; and the current edition: 43rd ed. (1988), vol 1, p 69, .1-85. The authority of Sir James Fitzjames Stephen (op.cit. vol 2, pp 1-2) and of Dr Kenny (Outlines of Criminal Law, 19th ed. (1966), p 547, par.639) is opposed to the existence of a common law right to a speedy trial. Had there been a common law right to a speedy trial recognized by Magna Carta of such a kind that the court might enforce it by an order to stay the prosecution, the commissions of general gaol delivery would hardly have taken the form they did and s 6 of the Habeas Corpus Act of 1679 might not have been necessary. The notion that time did not run against the King would not have gained acceptance. Had a common law right to a speedy trial been recognized, it is curious that there is no reported case of a stay having been granted on account of mere delay in the commencement of a prosecution.
In the Court of Appeal in this case, McHugh J.A. adhered to the theory of a common law right, pointing to the view taken by Coke that the "statute of Magna Charta is but a confirmation or restitution of the common law": i Institutes, Bk.2, Ch.4, s 108, p 81a. His Honour held that whether Coke was historically accurate in this view or not, the views which Coke expressed were themselves a powerful influence in the development of the common law and can thus be taken as evidence of its content. If this be the measure of Coke's authority, we should examine his view about the promise of Magna Carta that:
"We will sell to no man, we will not deny or defer to any man either justice or right."
Coke's view is as Warren C.J. noted it in Klopfer (fn.14, at pp 224-225):
"'Hereby it appeareth,' Coke stated in the next paragraph, 'that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet claudicare; et celeris, quia dilatio est quaedam negatio; and then it is both justice and right.' Later in the explication of Chapter 29, Coke wrote that in conformity with the promise not to delay justice, all of the King's 'commissions of oier, and terminer, of goale delivery, of the peace, & c. have this clause, facturi quod ad justitiam pertinet, secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England ...'"
The passages referred to by Warren C.J. can be found in ii Institutes, pp 55,56. In these passages, Coke was describing the qualities of justice to which the courts aspire - free, full and speedy - but he did not assert the existence of a legal right giving effect to that aspiration. Coke did not claim for the courts a power to refuse to exercise their jurisdiction if, in the exercise of its powers, the Crown impaired the freedom, fulness or speed of administering criminal justice. The qualities of justice expected by Coke can and do affect the conduct by a court of its own process, but no Australian or English case has been reported, so far as my researches go, prior to the New South Wales cases referred to in which a supposed common law right to a speedy trial was litigated, much less any case in which the supposed right was held to exist.
It may be that the reason why the supposed common law right was not litigated is that other means were adopted to deal with untoward delay in launching a prosecution. In Reg. v. John Robins (1844) 1 Cox CC 114, Alderson B., said to the jury:
I ought not to allow this case to go further. It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accused a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial."
His Lordship did not stay the prosecution; he "directed the jury to acquit the prisoner." The case was heard and determined. In these days when an accused can give evidence in his own defence, the report seems a rather extreme application of the eminently sensible observation by Lord Chelmsford in Cuno v. Cuno (1873) LR 2 Sc & Div 300, at p 302, that:
"delay will frequently have, as it ought to have, considerable influence upon the judgment which ought to be formed upon the evidence adduced."
A contemporary judge would express that observation in an appropriate comment to the jury on the weakness of the prosecution case, but he would direct them to make their own estimate and express it by their verdict: Humphrys, at p 53.
If there were a common law right to a speedy trial enforceable by permanent stay, it would be incumbent on the court, without hearing the evidence at the trial, to form a view about the reasonableness of the time taken for the presentation of an indictment. Such an enquiry would encompass an examination of the level of resources made available by the executive government for the detection, investigation and prosecution of criminal offences and a critical review of their utilisation in the particular case. It would encompass the effect of delay upon the life and interests of the accused in the particular case. And it would end with an assessment of reasonableness from the viewpoint not only of the accused but of the public whose interests the enforcement of the criminal law is intended to protect and, especially, of any victim of the crime. The elements for consideration are so diffuse that they can hardly be the constituents of a common law right.
If a new common law right to a speedy trial were being devised, there would be much to be said for a right which attracted a remedy not to prevent a trial but to do what is just after the significance of the delay is assessed in the context of the evidence at the trial. That, of course, is really what the courts are accustomed to doing - especially by giving appropriate directions to the jury - in order to ensure a fair trial for an accused.
The judicial remedies available in the event of delay are limited by the powers vested in the courts. Ordinarily, those powers are limited to the regulation of proceedings which are commenced by the presentation of an indictment. In Bell v. D.P.P. (1985) AC 937 , a case arising under the Constitution of Jamaica which contained an express right to a speedy trial, Lord Templeman, speaking for the Privy Council, pointed to the remedies available under the common law (at p 950):
"Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica, applying the common law of England, was powerless to provide a remedy against unreasonable delay, nor do they accept the alternative submission that a remedy could only be granted if the accused proved some specific prejudice, such as the supervening death of a witness. Their Lordships consider that, in a proper case without positive proof of prejudice, the courts of Jamaica would and could have insisted on setting a date for trial and then, if necessary, dismissing the charges for want of prosecution. Again, in a proper case, the court could treat the renewal of charges after the lapse of a reasonable time as an abuse of the process of the court."
His Lordship speaks here solely of remedies granted in the exercise of the jurisdiction arising on the presentation of the indictment: the power to set a date for trial, to dismiss for want of prosecution and to grant remedies appropriate for abuse of process. Delay in bringing a prosecution before a court for trial may be deplored, but the duty of the court before which an indictment is regularly presented is to exercise its jurisdiction to hear and determine the matter thus arising subject to its power to grant a remedy for abuse of process (the question to be examined when I return to Barton). Except when there is an occasion for the exercise of that power, the court is bound to exercise its jurisdiction.
For these reasons, I would hold that no right to a speedy trial was recognized by the common law. Provisions inserted in the American Bill of Rights and in the Canadian Charter of Rights create an express constitutional right to a speedy trial but there is no counterpart in our Constitution. The courts of the United States and Canada have developed doctrines which give content to the right to a speedy trial which the respective Constitutions express in broad terms. It is logically and legally invalid to translate the constitutional doctrines thus developed into our own jurisprudence in order to fashion a right, created by judicial legislation, to be exonerated from liability to conviction on the failure by the executive government to present an indictment within a time limit determined according to a judicial discretion.
That is not to say that the courts of this country do not regard speed in the disposition of criminal cases as desirable. To the contrary, it is a truism that justice delayed is justice denied. In Lord Bacon's words (quoted by Dr Kenny, op.cit., p 607) "(j)ustice is sweetest when it is freshest." Therefore, within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases both criminal and civil. But the avoidance of delay in administering justice is not the sole concern of the courts. The courts do not have command of all of the resources which are necessary to secure prompt justice and, if they were to assume a responsibility beyond their capacity, they would offer a hope of protection which they are unfitted to fulfil. The furthest which a court can go is to regulate its procedures to avoid unnecessary delay, to do what can be done to achieve fairness in a trial and to prevent the abuse of its process.
Fair trial and abuse of process.
The jurisdiction, invoked in the present case, to order a permanent stay is said to flow from the decision of this Court in Barton where this Court ordered that proceedings on an indictment be stayed until committal proceedings on the charges contained in the indictment should be held. In Barton, no order for a permanent stay was made, and it is no authority for the grant of a permanent stay on the ground of delay in the commencement of the prosecution. Two issues were decided in that case. First, the Court held that the prerogative power of the Attorney-General to present a so-called "ex officio" indictment and the corresponding statutory power conferred on him by s 5 of The Australian Courts Act were not amenable to judicial review. The next issue was whether the Court had power to stay proceedings on an ex officio indictment until committal proceedings were held. Gibbs A.C.J. and Mason J., with whom Stephen and Aickin JJ. agreed in this respect, said (at pp 95-96):
"It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial."
Their Honours (at pp 96-97) noted that this Court had not yet decided whether there is a judicial power to stay proceedings permanently when the proceedings are brought without reasonable grounds:
"As a result of the speeches in Connelly v. Director of Public Prosecutions ( (1964) AC 1254 ) and Director of Public Prosecutions v. Humphrys ( (1977) AC 1 ), it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds. See especially the speeches of Lord Reid, Lord Devlin and Lord Pearce in Connelly (at pp 1296, 1347-1353,1361-1362), and the speeches of Lord Salmon and Lord Edmund-Davies in Humphrys (at pp 46,53-55). The House of Lords has thereby affirmed the observation of Lord Parker C.J. in Mills v. Cooper ((1967) 2 QB 459 , at p 467), 'every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court', and rejected the more restricted view of Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes (at p 6). The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for damages for malicious prosecution has been emphatically rejected, as indeed it should be. The High Court of Australia has not yet had to decide whether the power of the courts to prevent an abuse of process extends so far."
It was unnecessary to consider in Barton whether a power to stay proceedings went beyond "the grant of a stay of proceedings so as to permit a preliminary examination to take place" (at p 96) or to consider the principles which might govern or affect the exercise of a power to stay absolutely. That question now arises.
The power which was acknowledged to exist in Barton is a power which has a dual purpose:
"to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice."
One purpose of the power is to ensure a fair trial, the other to prevent an abuse of process. A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party. Examples of such an exercise of discretionary power were offered in Bell v. D.P.P. It was the power exercised in Barton - the power to adjourn a trial until the committal proceedings were held. A power of temporary adjournment is commonly exercised to prevent injustice, as Jordan C.J. observed in Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71, at p 76:
"I have no doubt that the Court has inherent jurisdiction to direct a temporary stay of proceedings whenever this is necessary to prevent injustice."
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v. The Queen (1989) 63 ALJR 422 ; 86 ALR 35 ), adverse revelations in a public inquiry (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 ), absence of competent representation (McInnis v. The Queen (1979) 143 CLR 575 ; MacPherson v. The Queen (1981) 147 CLR 512 ), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law. Connelly v. D.P.P. (1964) AC 1254 and Humphrys are cases where the court was required to decide whether, in the eye of the law, the purpose of criminal proceedings was to be served by prosecuting a person who had already been acquitted of an offence arising from the same incident (Connelly) or by prosecuting a person for perjury in giving testimony in his own defence in a trial for an offence of which he was then acquitted (Humphrys).
It may be that no very clear distinction between an obstacle to a fair trial and an abuse of process has been observed in New South Wales in recent times. Orders for a permanent stay have been sought in cases where the abuse of process relied on consists in no more than the carrying on of a prosecution after a delay which has caused some prejudice to an accused. It is understandable that, when one party to litigation appears to be prejudiced by the conduct of the other, the court would wish to grant a remedy and, if there be no remedy available, to create a new remedy to avoid the prejudice. In this way, new manifestations of injustice stimulate new growth in the law. In creating new remedies, there is a natural tendency to graft the novelty onto an established rule and to bring the principles governing the new remedy under an old rubric. That course of judicial innovation is facilitated when the old rubric is expressed in terms which defy exhaustive definition. "Abuse of process" is such a term. As remedies to suppress an abuse of process are designed to eliminate injustice, it seems a short step to say that the carrying on of proceedings amounts to an abuse of process when prejudice to one party is caused by delay on the part of the other. And if that amounts to an abuse of process, the remedy of permanent stay may seem to be appropriate.
In New South Wales especially and in some other parts of Australia, there have been serious delays in the administration of criminal justice. When serious delay is attributable to the prosecution and an accused has been prejudiced thereby, the courts are tempted to offer the remedy of a permanent stay. The remedy marks the court's disapproval of the failure of other branches of government to furnish the resources necessary to cope with an accumulation of criminal cases awaiting trial; it places pressure on government to provide and to use the resources needed; and it avoids the possibility that a person may be convicted after a trial in which he may suffer some prejudice in his defence. However understandable the granting of a permanent stay for delay causing prejudice might be, the remedy cannot be supported unless it would truly be an abuse of process to try the case. In determining what does amount to an abuse of process, the considerations which favour the expansion of that notion so that it will support the remedy of permanent stay for delay causing prejudice to an accused must be set against countervailing considerations which have particular force in the criminal jurisdiction. Before this Court sanctions such an expansion of the notion, it is appropriate to consider the need for such a radical discretionary power to refuse to try a criminal case and the effects of vesting such a power in a trial judge.
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.
Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind. In Connelly, similar considerations led Lord Morris of Borth-y-Gest to observe (at p 1304):
"I ... agree with (the trial judge) 'that generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.' Indeed, under the English system of law criminal procedure has been conceived of as an action between a plaintiff and a defendant to be tried by a process substantially similar to that employed in any other action (see Holdsworth's History of English Law, Vol 3, p 622). It would, in my judgment, be an unfortunate innovation if it were held that the power of a court to prevent any abuse of its process or to ensure compliance with correct procedure enabled a judge to suppress a prosecution merely because he regretted that it was taking place. There is no abuse of process if to a charge which is properly brought before the court and which is framed in an indictment to which no objection can in any way be taken there is no plea such as that of autrefois acquit or convict which can successfully be made."
With these views, I am in substantial and respectful agreement.
Lord Devlin and Lord Pearce in Connelly entertained a wider view of abuse of process than did Lord Morris, but none of their Lordships gave the slightest indication - there was no occasion for them to do so - that the notion of abuse of process extended to the prosecution of a case against an accused for the first time on evidence sufficient to support a conviction. In Humphrys Lord Salmon, who expressed himself as being in entire agreement with everything said by Lord Devlin and Lord Pearce in Connelly with reference to the court's duty to protect its process from abuse and to protect the accused from oppression, said (at p 46):
"I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred."
Viscount Dilhorne said, at p 24:
"Where an indictment has been properly preferred in accordance with the provisions of that Act, has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend Lord Edmund-Davies has said, unacceptable in any country acknowledging the rule of law. But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness."
The same approach was taken by Lord Edmund-Davies who, in the Court of Criminal Appeal in Connelly, had said (at p 1277) in reference to cases dealing with retrials on the same facts:
"But, as always, these cases turn on their particular facts. In our judgment a judge is not entitled to refuse the trial of any indictment, be it a first or second indictment, merely because he thinks the trial ought not to proceed. He may do this only in accordance with established principles. To hold otherwise involves dangers too obvious to need stating."
In Humphrys, his Lordship accepted that Lord Goddard's statement in Ex parte Downes of a court's duty to try a case did not allow for a court declining to hear proceedings which are an abuse of its process.
In Reg. v. Sang (1980) AC 402 - a case relating to admission of evidence obtained by an agent provocateur - Lord Scarman (at pp 454-455) indicated the narrowness of the limits of a judge's authority to refuse to try a criminal case:
"The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority. He neither initiates nor stifles a prosecution. Save in the very rare situation, which is not this case, of an abuse of the process of the court (against which every court is in duty bound to protect itself), the judge is concerned only with the conduct of the trial. The Judges' Rules, for example, are not a judicial control of police interrogation, but notice that, if certain steps are not taken, certain evidence, otherwise admissible, may be excluded at the trial. The judge's control of the criminal process begins and ends with trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. Of course when the prosecutor reaches court, he becomes subject to the directions as to the conduct of the trial by the judge, whose duty it then is to see that the accused has a fair trial according to law.
What does 'fair' mean in this context? It relates to the process of trial."
Connelly and Humphrys do not suggest that delay attributable to the prosecution's inadvertence or negligence amounts to abuse of process. They were concerned with the purpose of the prosecutions there in question.
Nevertheless, by a benevolent (if not indulgent) reading of what was said by this Court in Barton, by the House of Lords in Connelly and Humphrys, by the Privy Council in Bell v. D.P.P., by importing some of the constitutional doctrines developed by the Supreme Court of the United States in Barker v. Wingo (1972) 407 US 514 and sometimes by asserting the existence of a common law right to a speedy trial, several State courts have extended the notion of abuse of process and the availability of orders for a permanent stay to cover cases where delay on the part of the prosecution has occasioned some prejudice to the accused. Indeed, these courts have asserted that the categories of cases in which the power to grant a permanent stay should be exercised are not closed and the power is available whenever it would be unfair to the accused to permit the prosecution to proceed: Reg. v. Vuckov (1986) 40 SASR 498 , at pp 521-522; Reg. v. Gagliardi and Filippidis (1987) 45 SASR 418 , at pp 433-434; Herron v. McGregor, at p 254; Watson v. Attorney-General (NSW), at pp 701-703; Reg. v. Clarkson (1987) VR 962 , at pp 973,977; Cooney (1987) 31 A Crim R 256, at p 264. In practice, so broad a power does not fall far short of a power which is incompatible with the rule of law. Of course, one finds in these cases the qualification that a permanent stay will be ordered only in an "exceptional" case, but that is an ineffectual qualification to place upon so broad a power. Must not such a power be exercised to prevent any "unfairness" for which the accused is not responsible? What justification is there for limiting the exercise of such a power to "exceptional" cases?
The Australian cases have a parallel in some recent English cases which treat delay as abuse of process when the delay "by its nature and its length ... inevitably ... must lead to prejudice, unfairness and injustice" to an accused: see Reg. v. Oxford City Justices, ex p Smith (1982) 75 Cr App R 200, at p 206; Reg. v. W. London Magistrate, ex p Anderson (1984) 80 Cr App R 143; Reg. v. Derby Crown Court, ex p Brooks (1984) 80 Cr App R164. In ex p Brooks, Sir Roger Ormrod (at p 169) speaking for the Divisional Court, assigned as reasons for refusing relief that the accused "has always admitted his guilt and will, we think, inevitably plead guilty at his trial. It is manifestly unjust that he should not be dealt with for these offences." With respect, I see no power in the judges of this country to exercise so broad a discretion over the prosecution of crime. For a brief time, a somewhat different view had been taken in England. In Reg. v. Grays JJ., Ex p Graham (1982) QB 1239 , May L.J., delivering the judgment of the Divisional Court, said (at p 1247):
"Certainly there must be some abuse of the process of the court, some at least improper and it may be mala fide use of its procedure, before an order of judicial review in the nature of prohibition will be made."
Acknowledging that delay of itself, if sufficiently prolonged, could in some cases be such as to render criminal proceedings brought long after the event both vexatious and an abuse, his Lordship was not prepared to extend the notion of abuse of process:
"We are well aware that there is today a substantial amount of delay and inefficiency in criminal proceedings, both before and at trial. This is to be deplored, and all concerned must do their utmost to bring criminal proceedings to trial and to verdict as swiftly and efficiently as possible. But we do not think that this court should create any form of artificial limitation period for criminal proceedings where it cannot truly be said that the due process of the criminal courts is being used improperly to harass a defendant."
This view, to which I subscribe, was overtaken by later English cases.
In the onward march to the unattainable end of perfect justice, the court must not forget those who, though not represented, have a legitimate interest in the court's exercise of its jurisdiction. In the broadening of the notion of abuse of process, however, the interests of the community and of the victims of crime in the enforcement of the criminal law seem to have been depreciated, if not overlooked. How has this occurred? The notion of abuse of process was pressed into service as the means of constraining prosecuting authorities to eliminate delays. But it will not do. It involves the courts in extraordinary evaluations of the investigative process and of the resources of law enforcement agencies which, in my view, the courts are unfitted to undertake (see, for example, Whitbread & Ors v. Cooke & Ors; Purcell v. Cooke & Ors (No 2) (1987) 5 ACLC 305 ) and which the courts refused to undertake when they were invited to review the exercise of the discretion to prosecute. In my opinion, the broad notion of abuse of process expressed in the cases in the State courts above cited is misconceived. No abuse of process appears merely from delay on the part of the prosecution, either by inadvertence or by negligence, in presenting an indictment. It may be different if the prosecution were to delay deliberately in presenting an indictment in order to prevent an accused from making an effective defence but, even in such a case, the remedy may lie not in permanently staying the proceedings but in bringing them to a conclusion with a direction which nullifies the effect of the tactic.
In the present case there is no suggestion of bad faith, though the lengthy delay found by Judge Thorley was reprehensibly inefficient. The proceedings which the prosecution finally got to trial were, so far as appears, intended simply to administer the criminal law. There was no abuse of process. It remains for the prosecution to consider whether, in all the circumstances, the trial should proceed, but the appeal must be dismissed.