Newby v. Moodie & Anor

Fox J

Federal Court

Judgment date: Judgment handed down 24 December 1987.

Fox J.

The applicant is being prosecuted by the second respondent, the Director of Public Prosecutions, for four offences under the Crimes (Taxation Offences) Act 1980 (Cth) (the ``Taxation Offences Act''). Committal proceedings have been commenced but no evidence has been called. The case has been set down for hearing before the Local Court in Sydney commencing on 1 February 1988. As a result of what was said on behalf of the applicant when the matter first came before the Local Court, two days were set aside (1 and 2 December 1987) for the hearing of a submission that the proceedings were an abuse of process. I am told that no submission to that effect has been made at any time to the magistrate conducting the proceedings and as things stand in the Local Court, the matter is to proceed to a hearing on 1 February 1988.

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The informations were laid by the first respondent, Robert George Moodie, who I understand to be a Detective Sergeant in the Australian Federal Police. It is a clear enough inference that he was acting under the direction of the second respondent (sec. 11 of the Director of Public Prosecutions Act 1983 (the ``D.P.P. Act'')) and it is unnecessary, indeed it would be incorrect, to be concerned with any problem which might otherwise arise from the exercise by the first respondent, as a police officer, of an independent direction in the laying of the charges.

This application, which was filed on 3 December 1987, is made under the Administrative Decisions (Judicial Review) Act 1977 (the ``Judicial Review Act''). As since amended it seeks review of ``the decision of the respondents on or about 10 March 1987 to institute and maintain prosecution proceedings against the applicant... as set forth in summonses, copies of which are annexed hereto''. I set out in what follows the offence as alleged in one of the summonses, as sufficiently indicative of the rest. They vary as to details, but all rely on sec. 7(2) and sec. 13(1) of the Taxation Offences Act. That Act came into force on 4 December 1980. Put shortly, the essence of the complaint is the long time which elapsed after the alleged offences were committed and before criminal proceedings were commenced, and the resultant prejudice to the application if the prosecutions were now to proceed.

``WHEREAS information hath this day been sworn by ROBERT GEORGE MOODIE before the undersigned, one of Her Majesty's Justices of the Peace in and for the State of New South Wales, for that you on or about 30 January 1981 at Sydney in the State of New South Wales and elsewhere were indirectly concerned in the entry by Shareholder Pty. Ltd. into an arrangement believing that the arrangement would be likely to secure generally that a company to wit Bulomi Pty. Ltd. would be likely to be unable having regard to other debts of the said Bulomi Pty. Ltd. to pay future income tax payable by the said Bulomi Pty. Ltd. and income tax became due and payable by the said Bulomi Pty. Ltd.''

The summons was dated 10 March 1987, and was returnable on 13 April 1987.

The applicant also relied at the hearing before me on sec. 39B of the Judiciary Act 1903, although no order nisi had been sought or any formal documentation filed showing reliance on the section. There was no objection to this course and in the circumstances I treated an application under the section as properly before me, and heard argument on both sides respecting it. The application under the Judicial Review Act was made out of time, but there was no opposition to the time being extended, and the matter proceeded as if an appropriate order had been made.

The arguments traversed a number of interesting and important matters, but I think that there are two basic questions which should first be faced.

Although the amended application refers to the maintenance as well as the institution of proceedings, there is in reality only one decision the subject of challenge. There has been no separate decision to maintain the proceedings. What has happened is the result of a decision to institute the proceedings, the action thereafter taken being only the ordinary and natural result of that decision. Following well-established authority, the exercise of the discretion to prosecute is not open to review in the courts (
Hill v. Chief Constable of West Yorkshire (1987) 2 W.L.R. 1126 at pp. 1133-1134;
The Queen v. Toohey; Ex parte Northern Land Council (1980-1981) 151 C.L.R. 170 at p. 283;
Barton v. The Queen (1980) 147 C.L.R. 75 at pp. 94, 96, 107 and 109-110;
The Queen v. McAulay; Ex parte Fardell (1979) 41 F.L.R. 267 at p. 274;
R. v. Commissioner of Police of the Metropolis; Ex parte Blackburn (1968) 2 Q.B. 118 at p. 136). No distinction is to be made between the institution of committal proceedings, and the commencement of a hearing before the court (or tribunal) which is to determine the matter, although these are distinct steps, initiated by different processes. In stating the position as I have I recognise a clear distinction between the (unexaminable) exercise of the discretion to prosecute, and what happens thereafter.

If, as I believe, the question of abuse of process can be examined by the magistrate, there is no risk of unfairness. The magistrate's decision can be reviewed at an appropriate stage by the Supreme Court, or, in its discretion, by this Court. Subject to the effect of any prior determination, the issue can be

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raised in the trial court, and dealt with by the Judge.

There are two matters which I should mention in relation to the legal position as I have stated it. The first is that the proceedings have been commenced at the instance of a statutory officer, and not by the Attorney-General. The freedom for review of the decision to prosecute is most often related to the Attorney-General. The Director of Public Prosecutions has an independent discretion, although he has on request by the Attorney-General a duty to consult with him (sec. 7 of the D.P.P. Act). One of his functions, which is stated in general terms and without express qualification, is ``to institute proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth'' (sec. 6(1)(c)), and of course the function of instituting prosecutions on indictment (sec. 6(1)(a)) and carrying on proceedings of the kind referred to in sec. 6(1)(c). It seems to me that the reasons given in more recent times for making unexaminable the discretionary decisions to prosecute of the Attorney-General, now in practice largely supplanted by the Director of Public Prosecutions, must apply equally to those of the Director. The principle does of course extend in its application beyond the persons mentioned, to other informants. The exclusion from examination of the discretionary decisions of these two persons mentioned does not mean that they may not be examinable on substantial legal grounds, such as failure to observe statutory requirements. In a later Blackburn case
R. v. Metropolitan Police Commissioner; Ex parte Blackburn (No. 3) (1973) 1 All E.R. 324 at p. 331, Lord Denning M.R. referring to the earlier decision (above) said:

R. v. Metropolitan Police Commissioner, Ex parte Blackburn ([1968] 1 All E.R. at 769; [1968] 2 Q.B. at 136), we made it clear that, in the carrying out of their duty of enforcing the law, the police have a discretion with which the courts will not interfere. There might, however, be extreme cases in which he was not carrying out his duty. And then we would.''

The second matter for explanation is that the Director acts under statutory powers. He is not simply exercising a prerogative power, although an indictment will be brought in the name of the Queen, and the prerogative is behind the exercise of the power he is given. It has sometimes been said that the Attorney-General's immunity derives from the fact that he is exercising a prerogative power, but I do not believe that the immunity is now rested on that foundation. What is material is that the Director's decisions are properly regarded as being made under an enactment within the meaning of the Judicial Review Act. There is here a statute requiring, or at least, permitting examination of a ``decision'' on certain grounds. One has therefore to ask the question whether the grounds upon which relief can be granted under that Act, found in sec. 5 and 6, are applicable. In my view, and following the line of cases already cited the decisions are such that none of the grounds is applicable. The first point at which review would be available would be the decision of the magistrate on the matter, although, as I have indicated, and will repeat later in another context, it is most likely that this Court would in its discretion refuse relief, at least if the committal proceedings were continuing.

In my view, in a case such as the present, a challenge that proceedings are an abuse of process should be made, in the first instance, before the court or tribunal hearing the matter, that is, the magistrate hearing the committal proceedings. That court is seised of the matter and the magistrate can proceed to deal with the objection as a preliminary matter, or not, as is appropriate. Some evidence will be tendered, and he may have an opportunity which I have not had, to assess the credibility of witnesses. He will arrive at a decision, which may then be examinable in this Court. Looking at the matter more broadly, for a superior court to interfere and arrive at its own conclusion on the facts is to interfere with the system for the administration of justice, and has the potential to lead to long delays while the separate issue of abuse of process is finally decided. If it were necessary to say so, I would in any event, in accordance with what was said in
Lamb v. Moss (1983) 49 A.L.R. 533, and has been reiterated in a number of subsequent cases. I do not think a situation can be tolerated in which committal proceedings are subject to constant and intermittent interruption by applications to a higher court, and least of all by a court not of the State in which jurisdiction, and power to

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carry forward the proceedings to trial and sentence (if appropriate) is constitutionally vested.

Whitbread & Ors v. Cooke & Ors; Purcell v. Cooke & Ors (No.2) (1987) 5 A.C.L.C. 305 at p. 313 Maxwell J. expressed the view that a supervisory court could exercise the power to declare proceedings an abuse of process without waiting upon the decision of the court directly concerned. He instanced a case where the abuse arose from matters extraneous to the trial. The decisions cited by him, so far as reported, were nevertheless cases in which decisions to proceed (or not) had been made by inferior tribunals. How the claim of abuse of process was dealt with in those cases does not always appear from the reports. In each case what was sought in the superior court was judicial review, under the English legislation. In
R. v. Derby Magistrates Court; Ex parte Brooks (1985) 80 Cr.App.R. 164 the justices, in the course of committal proceedings heard a submission based on abuse of process and rejected it, and by way of application for judicial review the matter came eventually before a Divisional Court, which upheld the decision. Ormond L.J., in delivering the judgment of the court said:

``The discretionary power of a magistrates' court to stop a prosecution has only recently been recognised by this Court, and this development of the law is in a phase of rapid growth... However in
Brentford Justices, Ex parte Wong (1981) 73 Cr. App. R. 67; [1981] Q.B. 445, Donaldson L.J. sitting in this Court held that a magistrates' court did have this discretionary power. Since this decision there have been three cases which are reported in 1982 and 1983, and we have been provided with transcripts of the judgments in three other cases which were heard in 1983 and 1984.''

The judgment of Ormond L.J. is also helpful in the guidance it provides for dealing with an application where it is based on delay. This case was followed, in other respects, by a differently constituted court in
R. v. Bow Street Magistrate's Court; Ex parte Van Der Holst (1986) 83 Cr.App.R. 114, where the question of abuse of process had been submitted to and decided by the magistrate.

In this case the facts as presented are not in large compass and it doubtless appears to the applicant, for that reason, to be convenient and sensible for this Court to interfere at this stage to bring the prosecution to an end. This appearance is however deceptive. The respondents, possibly in reliance on the matters which I have mentioned (and which were at the forefront of the submissions made on their behalf) did not in this application adduce evidence or cross-examine the applicant upon his affidavit. Had these things been done, the case may well have presented a different aspect. The applicant claims probable prejudice under a number of different heads, most of which it is easy to assert, such an uncertainty of recollection over the time which has elapsed. One, the supervening incapacity of a material witness is undoubted, and may perhaps be of real significance. The course of proceedings has not helped to establish the accuracy of other claims. As matters stand, the evidence, being unchallenged in the ways mentioned, might have to be accepted if the matter of fact was to be determined by me. I do not by this mean to suggest simply that an opportunity should be provided for it to be tested. It does however emphasise that there is in the case a practical consideration in the issue of abuse of process being determined (perhaps finally, perhaps not) in the correct place. I also do not suggest that mere lapse of time and the inferences to be drawn from it may not make a sufficient case. On the other hand, mere lapse of time, even of many years, may not make a case.

It is well established that the power to stay for abuse of process extends to criminal cases; one imagines that it would apply a fortiori to them, if risk of unfairness to the accused arose which could not be cured satisfactorily in the court process (see Whitbread & Ors v. Cooke & Ors; Purcell v. Cooke & Ors (No.2) (supra) and cases there cited). I understand abuse of process to be concerned largely with ``fairness'', perhaps understood in a broad sense, although a matter treated as relevant, and sometimes critical, is the reason for delay, and the culpability of the prosecution. Mere unfairness (a term of wide ambit) is not however sufficient; it must amount to abuse of process. The power to consider and stay for abuse of process is regarded as part of the inherent jurisdiction of a court (
Connolly v. Director of Public Prosecutions (1964) A.C. 1254 at pp. 1334-1336 and 1361). It is relevant to observe that the trial process in a criminal

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case has many safeguards against unfairness to the accused. The committal proceedings also require fairness, and compliance with statutory requirements, but the result decides nothing of finality except that there is or is not evidence upon which the defendant may or may not be required, as the case may be, to stand his trial.

Where the ground relied upon is what is called delay, but which is less emotionally described as lapse of time, and it is sought to arrest proceedings at the outset, the case must be exceptional (or, as is said in one case ``most exceptional'') before the court (or tribunal) will act (see Whitbread (supra) p. 311 and cases there cited).

In the circumstances, it would be wrong for me to attempt to decide the issue, or comment further on the evidence. There are now a number of cases which help to clarify the relevant law (
Miller v. Ryan (1980) 1 N.S.W.L.R. 93 at p. 109;
R. v. Grays Justices; Ex parte Graham (1982) Q.B. 1239 at p. 1247;
R. v. Oxford City Justices; Ex parte Smith (D.K.B.) (1982) 75 Cr.App.R. 200 at p. 1247;
R. v. McConnell (1985) 2 N.S.W.L.R. 269 at pp. 272-277;
Bell v. Director of Public Prosecutions of Jamaica (1985) 1 A.C. 937 at pp. 951-952; R. v. Derby Magistrates Court; Ex parte Brooks (1985) (supra) at pp. 168-169;
Herron v. McGregor (1986) 6 N.S.W.L.R. 246 at pp. 250-256;
R. v. Chief Constable of the Merseyside Police; Ex parte Calveley (1986) 2 W.L.R. 144 at p. 156; Whitbread v. Cooke; Purcell v. Cooke (supra) at pp. 308-317, 321, 323 and 327;
Watson v. Attorney-General (N.S.W.), Court of Appeal, 29 May 1987, unreported at pp. 20-25, 29 and 32-38 (Special leave to appeal to the High Court refused, 16 October 1987);
Aboud v. Attorney-General (N.S.W.), Court of Appeal, 16 October 1987, unreported per Kirby P. at pp. 24 and 34-37, per McHugh J.A. at pp. 4-16).

The power to stay proceedings for an abuse of process, although inherent, is plainly an exceptional one to be exercised with caution and in a clear case. I would add in relation to committal proceedings, that the fact that the prosecuting authority can decide to proceed notwithstanding a decision not to commit, or can decide not to proceed in the converse case, is not relevant to the magistrate's determination, anymore than it would be on review by a superior court.

It has been held that the principles I have referred to apply to a magistrate hearing committal processes (Miller v. Ryan, (supra), R. v. Derby Magistrates Court; Ex parte Brooks, (supra)). In committal proceedings, which are themselves to be regarded as fundamentally administrative in nature, there are steps which proceed according to statutory provisions, which affect its exercise (see Justices Act (N.S.W.) sec. 32-47 incl.), although I have for the present purposes accepted that they are in substance in the same position as curial proceedings.

The prosecution relates to a federal offence, and the magistrate may in this sense be regarded as acting federally. There is a supervisory, or review, power in this Court, but the prosecution is proceeding and will, if appropriate, be tried pursuant to provisions which vest powers and jurisdiction in the State (Judiciary Act 1903 sec. 39, 39A and 78). It is therefore highly desirable, in my opinion, that this Court follow relevant decisions of the State Courts. This aspect becomes prominent when considering the relief sought pursuant to sec. 39B of the Judiciary Act. This enables relief to be given by way of mandamus, prohibition or injunction against an officer of the Commonwealth. The officer in this case can be regarded as the Director of Public Prosecutions. While he cannot be the subject of the relief mentioned in relation to his decision to institute proceedings, I am prepared to accept that he is a proper (and necessary) party respondent when the proceedings are challenged as an abuse of process. In this respect, the availability of relief sought under sec. 39B differs from that under the Judicial Review Act. Grant of the relief mentioned is discretionary, as it is when a declaration is sought.

It has long been held in New South Wales that relief by way of prohibition is unavailable in relation to committal proceedings, because of their administrative nature (
Ex parte Cousens; Re Blacket & Anor (1947) 47 S.R. (N.S.W.) 145). This decision has been criticised and challenged, but it has not been overruled. Indeed, it is relied upon, in this Court and elsewhere, as indicating the nature of committal proceedings. They have a very mixed nature, although their overall effect is clear. They test the question whether there is evidence to put an accused on trial. The courts of New South Wales have in recent years, in

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appropriate cases, used the remedy of a declaration, as it has been developed in the administrative field. Prohibition is not available in the present case.

Although the relief granted where abuse of process is found is almost invariably a stay, I do not presently see why, if relief were otherwise regarded as appropriate, this Court could not issue an injunction, directed to the respondents. Two problems arise in the present case. One is that with which I have already dealt, namely that there should first be consideration and determination by the learned magistrate. The other is that I believe that any issue arising should be dealt with by the State Supreme Court. The question is not one confined to federal matters, and is one with which that Court, in recent times, has dealt with on a number of occasions. The magistrates' court is in the same hierarchy of courts, and is subject in the ordinary way to the supervisory jurisdiction of the Supreme Court. That Court has the remedy of declaration, and this allows a flow of the committal proceedings free from repeated recourse to this Court. There is no question of a peculiarly federal nature.

It is argued that the inclusion in the Second Schedule of the Judicial Review Act, which sets out the decisions to which sec. 13 is inapplicable, of ``decisions in connection with the investigation or prosecution of persons...'' (e) indicates that decisions to prosecute are subject to sec. 5 and 6. I think that this is at best an unsure guide, but a decision in connection with the prosecution of a person can readily include a decision other than one which is disclosed by the actual institution of proceedings. In view of the fact that the rule to which I have referred is well-established, I would not regard it as being set at nought by reason of the language mentioned. That rule relates of course to the exercise of the discretion to prosecute, and it would cause confusion and disarray in the criminal process if review of that discretion were opened for review. If sec. 5 and 6 were regarded as applicable, this Court could become involved in an endless survey of the motives and knowledge of prosecutors. On the other hand, closely related aspects may be examinable, such as lack of power, unlawful procedure and particular statutory requirements.

I would exercise my discretion against granting relief, even if a case were made out.

I am of the opinion that the application should be dismissed, and I order accordingly.

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