Jago v District Court (NSW)

168 CLR 23
87 ALR 577

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(Judgment by: Gaudron J) Court:

Judges: Mason CJ
Brennan J
Deane J
Toohey J

Gaudron J

Judgment date: 12 October 1989

Canberra

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Judgment by:
Gaudron J

The sorry state of affairs surrounding the failure to bring Mr Jago to trial on charges laid in 1981 in respect of events which took place between 1976 and 1979 is set out in the judgments sof others. I need not repeat those matters.

The question raised in the present appeal is whether the Court of Appeal of the Supreme Court of New South Wales erred when, by majority (Kirby P. and Samuels J.A., McHugh J.A. dissenting), it dismissed a summons taken out in that Court by Mr Jago seeking orders in the nature of mandamus, prohibition and certiorari in relation to the refusal by His Honour Judge Thorley of the District Court to stay proceedings on an indictment presented in that court on 13 February 1987. Additionally, Mr Jago sought an order "commanding the removal into (the Court of Appeal) of the said trial for the purpose of ... granting a permanent stay of the said proceedings" and an order that "the said trial be permanently stayed".

The assumption underlying the summons and the basis upon which the Court of Appeal approached the matter was that, if error appeared in the decision of Judge Thorley, the Court of Appeal had power, co-extensive with that of the District Court, to stay proceedings on the indictment. See Herron v. McGregor (1986) 6 NSWLR 246 , at p 251, and Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685 , at p 697. That assumption was not challenged in the present proceedings and its correctness appears to be of little practical relevance now that Criminal Appeal Act 1912 (NSW) provides for an appeal (by right in the case of the Attorney-General or Director of Public Prosecutions, by leave or by certification in the case of an accused) to the Court of Criminal Appeal from interlocutory orders and judgments in criminal proceedings.

The unchallenged assumption underlying the proceedings brought by Mr Jago in the Court of Appeal enables the correctness or otherwise of the decision of that Court to be determined by reference to three questions:

1.

Does the District Court have power to permanently stay proceedings on indictment in vindication of what has been referred to as a "right to speedy trial"?

2.

Does the District Court have power to permanently stay proceedings on indictment on the ground of what has been referred to as "presumptive prejudice"?

3.

If either power exists, is any error to be discerned in the refusal to exercise that power in the present case?

Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings.

The power of a court to control its own process and proceedings manifests itself in a variety of ways. It may involve no more than the grant of an adjournment. On the other hand, it is accepted that it may result in the grant of a permanent stay of civil proceedings that are frivolous, vexatious or oppressive. See Metropolitan Bank v. Pooley (1885) 10 App Cas 210; Lawrance v. Norreys (1890) 15 App Cas 210.

The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands. See, for example, Jackson v. Sterling Industries Ltd (1987) 162 CLR 612 , at p 639; Hamilton v. Oades (1989) 63 ALJR 352 , at p 358; 85 ALR 1 , at p 11.

The terms "frivolous", "vexatious" and "oppressive", when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms "vexatious" and "oppressive" may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are "seriously and unfairly burdensome, prejudicial or damaging" or are "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197 , at p 247; Hamilton v. Oades, at p 358; p 11 of ALR.

The above general considerations lead me to think that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand. That having been said, the question arises whether criminal proceedings are properly to be seen as attracting the same general power as exists in relation to civil proceedings, including a power to grant a permanent stay if the administration of justice so demands.

It was held in Barton v. The Queen (1980) 147 CLR 75 that a court exercising criminal jurisdiction may, to prevent unfairness or injustice, stay proceedings on indictment pending the holding of committal proceedings. In that case Gibbs A.C.J. and Mason J. left open the question whether the power might be exercised by the grant of a permanent stay, but said (at pp 96-97), by reference to Connelly v. Director of Public Prosecutions (1964) AC 1254 and Reg. v. Humphrys (1977) AC 1 , that "(t)he 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 malicious prosecution has been emphatically rejected, as indeed it should be."

When, in the words of Wilson J. in Barton (at p 111), there is "a fundamental defect which goes to the root of (a criminal) 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", an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt or innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands.

Whether or not such a power may be exercised by reference to a "right to speedy trial" or to "presumptive prejudice" depends on whether those particular matters can be said, in the interests of justice, to demand that course. The answer to that question is to be found in an analysis of the power to grant a permanent stay and a consideration of those features of the criminal process which necessarily bear upon its exercise in criminal proceedings.

The power to grant a permanent stay of proceedings is a discretionary power. See, for example, Castro v. Murray (1875) LR 10 Ex 213, at p 218; Connelly, per Lord Reid at p 1296, and per Lord Pearce at pp 1364-1365. The expression "discretionary power" generally signifies a power exercisable by reference to considerations no one of which and no combination of which is necessarily determinative of the result. In other words, it is a power which "involves a considerable latitude of individual choice of a conclusion": Russo v. Russo (1953) VLR 57 , per Sholl J. at p 62. See also Pattenden, The Judge, Discretion, and the Criminal Trial, (1982), p 9. Notwithstanding this latitude, a discretionary power is necessarily confined by general principle. It is also confined by the matters which may be taken into account and by the matters, if any, which must be taken into account in its exercise.

The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J. in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 , at p 399; 72 ALR 1 , at p 12, that the "prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals". Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v. Watson (1987) 20 Leg Rep SL 1, "sparingly, and with the utmost caution". See, generally, Cocker v. Tempest (1841) 7 M & W 502 ( 151 ER 864 ); Lawrance v. Norreys, at p 219; Humphrys, at p 26; and Reg. v. Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164, at p 168.

In the case of a statutory discretion, the permissible considerations, if not otherwise specified, may be identified by reference to the scope and purpose of the legislation. See, for example, Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 CLR 492 , per Dixon J. at pp 504-505. So too, the scope of the power to grant a general stay of proceedings and the underlying general purpose, namely, to control the court's process and proceedings, serve to provide some general indication of the matters which must be taken into account and the limits to the matters which may be taken into account when the power is invoked.

The limited scope of the power to grant a permanent stay necessarily directs an enquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding, as distinct from any broad consideration of the general merits of the case.

The features which attend the criminal process enable the general considerations to be refined somewhat in their application to the grant of a permanent stay of criminal proceedings. One particular feature relevant to criminal proceedings is that the question whether an indictment should be presented is and always has been seen as involving the exercise of an independent discretion inhering in prosecution authorities, which discretion is not reviewable by the courts. Originally, the unreviewable nature of that discretion was seen as an aspect of the prerogative power vested in the office of Attorney-General. See, for example, Reg. v. Allen (1862) 1 B & S 850 ( 121 ER 929 ). More recently, the unreviewable nature of that discretion has been seen as deriving from the nature of the subject matter to be decided and, perhaps, the incompatibility of judicial review with the ultimate function of a court in a criminal trial. See Barton, per Gibbs A.C.J. and Mason J. at pp 94-95, per Wilson J. at p 110. See also The Queen v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 , per Mason J. at pp 219-220. Thus, it may be said that the power to grant a permanent stay of criminal proceedings is not to be exercised on the basis of an opinion that an indictment should not have been presented. See Humphrys, per Lord Salmon at p 46.

Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. See Driscoll v. The Queen (1977) 137 CLR 517 , at p 541. See also Harris v. Director of Public Prosecutions (1952) AC 694 , per Viscount Simon at p 707; R. v. Christie (1914) AC 545 , per Lord Reading at p 564. The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.

The "right to speedy trial" claimed in the present case is claimed either as a common law right evidenced by Magna Carta or as a right deriving from Magna Carta. The guarantee in c.29 of Magna Carta that "to no man shall we delay justice or right" is, by force of Imperial Acts Application Act 1969 (NSW), part of the law of New South Wales "except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales". Delay is thus a matter properly and necessarily to be taken into account by prosecuting authorities in deciding whether a prosecution should be brought, at least if that delay is referable to the action or inaction of prosecuting authorities. But the notion of a "right to speedy trial", as presented by reference to the facts of this case, involves no consideration other than that delay has occurred. It raises no question other than whether, having regard to that delay (either by reason of the guarantee in c.29 of Magna Carta or by reason of policy considerations), the indictment should have been presented. That consideration is not one which may be entertained by a court. Accordingly, there is no power to grant a stay of proceedings on the indictment in vindication merely of a claimed "right to speedy trial".

The notion of "presumptive prejudice", as presented by reference to the facts of this case, assumes that, by reason of delay, the trial of the charges will involve some general, but unspecified, prejudice or damage, including, it would seem, prejudice in the conduct of the defence by reason of staleness of evidence. So stated, no feature of the proceedings presents itself as one as to which a court could be satisfied that the proceedings were thereby rendered so unfair that they were insusceptible of remedy by less drastic means. Accordingly, there is no power to grant a permanent stay of proceedings on the ground of "presumptive prejudice".

The appeal should be dismissed.