Questions of law reserved under case stated procedures must genuinely arise 'at the trial' and cannot be cast in impermissibly general terms amounting to requests for advisory opinions. The substantive question of whether a court can refuse a nolle prosequi was left unresolved by the majority.
Later decisions that cite Director of Public Prosecutions (SA) v B
Decisions cited by Director of Public Prosecutions (SA) v B
Last Updated: 23 July 1998
GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
AND
B RESPONDENT
Director of Public Prosecutions v B [1998] HCA 45
23 July 1998
A51/1997
ORDER
1. Appeal allowed.
2. Set aside the order of the Full Court of the Supreme Court of South Australia answering the questions reserved by Mohr J under
s 350 of the Criminal Law Consolidation Act 1935 (SA) and in lieu thereof order that it is inappropriate to answer either of the questions reserved.
On appeal from the Supreme Court of South Australia
Representation:
B M Selway QC (Solicitor-General for the State of South Australia) with R F Gray for the appellant (instructed by Director of Public
Prosecutions, South Australia)
M L Abbott QC with J A English for the respondent (instructed by Legal
Services Commission of South Australia)
2.
Intervener:
J R McKechnie QC with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by
Crown Solicitor for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law
Reports.
Director of Public Prosecutions v B Criminal law - Practice and procedure - Prosecution attempted to enter nolle prosequi - Whether court has power to refuse to accept
entry of nolle prosequi - Jurisdiction of Full Court of Supreme Court to answer questions reserved - Whether questions arose "at
the trial" - Time at which criminal trial upon an information begins - No power to issue advisory opinion.
Words and phrases - "at the trial".
Criminal Law Consolidation Act 1935 (SA), ss 285A, 350.
HIS HONOUR: You reopen your application of 28 June.
MR NITSCHKE: I do.
HIS HONOUR: In the circumstances, I am prepared to accept your application. You elect for trial by judge alone.
MR NITSCHKE: Yes. Those papers have been filed on the certificates.
HIS HONOUR: I know that you withdrew it. I will give you leave to reinstate your application.
MR NITSCHKE: I reinstate those papers relating to the election that are on the file.
HIS HONOUR: I will grant that application.
PLEA: NOT GUILTY ALL COUNTS
MISS McDONALD [then counsel for the Director of Public Prosecutions]: I tender no evidence.
HIS HONOUR: In those circumstances, the accused is found not guilty of all counts and is discharged."
(1A) Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director
of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court.
(2) A case shall be stated as provided in section 351 -
(a) if the Full Court, on motion, makes a rule or order for that purpose, which rule or order the Full Court is hereby authorised to
make;
(b) if the Full Court, on an appeal involving a question of law alone, so requires as hereinafter mentioned.
(3) Where a person has been convicted on information and a question of law has been reserved, or the Full Court has ordered a case
to be stated, in relation to his trial or sentencing, the presiding judge may, in his discretion, commit the convicted person to
gaol, or release him on recognizance of bail with one or two sufficient sureties and in such sum as the judge thinks fit, conditioned
to appear at such time or times as the court directs, and receive judgment or render himself in execution, as the case may be." The case stated, and the questions to be reserved, were prepared by the appellant and submitted to the primary judge. It is as well
to set out much of that case stated: 2. The particulars of the charges against the accused were as follows:
[There was then set out the text of the counts on the Information.]
3. The accused was first arraigned in the District Court of South Australia on the 28th November 1994.
4. The trial of the accused was listed to commence on the 10th July 1995[2]. On this date I was notified by the prosecutor of the non-attendance of the alleged victim and her mother.
5. An application was made by the prosecutor to have the matter taken from the trial list. I refused this application.
6. The prosecutor then entered a nolle prosequi on behalf of the Director of Public Prosecutions[3]. I refused to accept the nolle prosequi.
7. I then invited counsel for the accused to make an application for trial by judge alone. Such an application was made and I granted
the accused a trial by judge alone.
8. The accused was then re-arraigned before me and pleaded not guilty to all of the counts on the Information before the court. I
invited the prosecution to tender no evidence. The prosecutor adopted this course.
9. I found the accused not guilty of all of the counts on the Information.
10. Pursuant to s 350(1A) of the Criminal Law Consolidation Act, 1935, I now reserve for the consideration of the Full Court the following questions of law:
(1) Do I have the power to refuse to accept a nolle prosequi entered by the Director of Public Prosecutions, and
(2) If the answer to the first question is yes, are there any limitations to the exercise of that power."
He further held that[20]:
The history of the litigation
(ii) If the answer to the first question is yes, are there any limitations on the exercise of that power? The Court of Criminal Appeal of the Supreme Court of South Australia (Debelle, Mullighan and Nyland JJ) answered the two questions:
"Yes" and "Yes"[36]. Their Honours do not appear to have considered the question whether the trial judge had jurisdiction to reserve the two questions
of law for consideration by the Full Court.
The trial judge did not have jurisdiction to reserve the two questions of law for consideration by the Full Court
Section 351(1) provided:
Nolle prosequi refused: case stated
Issues arising
2. The jurisdiction points: If so, was the appeal to this Court otherwise beyond jurisdiction upon the ground that it (a) was not from a judgment, decree, order
or sentence of the Supreme Court of a State within s 73(ii) of the Constitution[63]; (b) invoked the exercise of non-judicial power by the Court, whether in the provision of an advisory opinion or otherwise[64]; or (c) presented for determination a question in which the respondent had no real interest and which was wholly hypothetical.
3. The deprivation of jurisdiction point: Upon the announcement by the prosecutor that the appellant entered a nolle prosequi in respect of the indictment charging the respondent
with certain offences did the court conducting the trial lose jurisdiction to make any order save for the discharge of the respondent
upon that indictment?
4. Refusal of nolle prosequi point: If not, was it within the power of the primary judge, either as a matter of the procedures followed or as a substantive matter of
law, to decline to accept the nolle prosequi whether upon the ground of protecting the court from abuse of process or to prevent
oppression and injustice to an accused or otherwise?
5. The judicial review point: Was the challenge to the exercise by the appellant of his statutory discretion "to enter a nolle prosequi ... in appropriate cases"[65] susceptible to judicial review and, if so, was the procedure which took place before the primary judge, and the power which he purported
to exercise explicable as an instance of judicial review?
6. The constitutional point: If, on its true construction, the Director of Public Prosecutions Act 1991 (SA) ("the DPP Act") conferred on the appellant a power to enter a nolle prosequi which could not be refused by the court to which it was presented
although it amounted to an abuse of process, was the section conferring such power invalid as a purported diminution of the power
of the court to operate as a court within the meaning of Ch III of the Australian Constitution? Or was it invalid to the extent that would otherwise bring the court into disrepute by leaving it powerless to prevent an abuse
of process?
7. The form of the questions point: Having regard to the determination of the foregoing points were the questions reserved in the case stated otherwise so objectionable
in form that this Court should decline to answer them? Common ground
2. Although the conduct of interlocutory proceedings prior to the "rearraignment" of the respondent was uncontested, neither party
suggested that any special statutory provisions under which such "pre-trial" proceedings are heard in South Australia threw any light
upon the meaning of the phrase "at the trial" in s 350(1a) of the Act as it then stood. I am content to proceed on that assumption.
3. A number of concessions were made for the appellant which became common ground:
(a) that under the law of this country, a court has jurisdiction to protect itself (and those who invoke its process) against abuse
of the process of the court. The appellant contended that this jurisdiction continued only during the conduct of a trial and not
after the trial was concluded, as he submitted had happened in this case, by the entry of a nolle prosequi;
(b) that a court would have jurisdiction to stay subsequent proceedings, brought after entry of a nolle prosequi, where a revival
of a prosecution of an accused in such proceedings would, in the circumstances, amount to an abuse of the court's process; and
(c) that the entry of the nolle prosequi in this case had not been made by the Attorney-General or by the appellant pursuant to any
prerogative power but solely pursuant to the DPP Act 1912 and in terms of the statutory power there conferred upon the appellant[67].
4. For the respondent, who relied upon the power of the primary judge, as a judge of the Supreme Court, to review the lawfulness of
the prosecutor's decision to enter the proffered nolle prosequi, it was eventually accepted that the procedures for judicial review
of that decision, required by the Rules of the Supreme Court of South Australia, had not been followed[68]. The parties usual to proceedings for judicial review of such decisions were not given notice. However, it was suggested that this
did not matter in the context of a collateral attack on the legality of the appellant's decision, at least in a trial conducted in
the Supreme Court where the legality of the decision was critical to the proceedings[69].
5. It was accepted by both sides that differing views might be held, as a matter of fact, about the correctness of the response of
the primary judge to the circumstances which had arisen before him. Reservations in this regard were noted in the Full Court. Mullighan
J expressly stated that "the resolution of the issues raised by this case stated [should not be] interpreted as approval by this
Court of the manner in which the learned trial judge exercised his discretion"[70]. However, whether because that issue was taken to raise only a question of fact or otherwise, it was not argued before the Full
Court. Nor was it contested in this Court. The matter proceeded on the footing that the tender of the nolle prosequi was either
itself an abuse of process, or the first step in an abuse of process, as the primary judge concluded. The question then presented
was whether, in such circumstances, there was nothing which the primary judge could do but accept the entry of the nolle prosequi
or whether the judge was entitled to refuse to accept it and to require that the trial proceed. Foundation of jurisdiction point
"The amendment, as proposed by the Bill, will enable the Crown to exercise a responsible role in building up a coherent and consistent
body of criminal law, without prejudicing decisions made by juries in favour of accused persons." Section 350(1a) is a beneficial procedure, adopted by Parliament to permit courts to give "authoritative decisions on questions
of criminal law for the better administration of justice"[76]. A narrow construction of "arising at the trial" in the sub-section would frustrate the achievement of that purpose. Such a construction
should therefore be avoided. The fact that the question of law reserved on the application of the appellant did not strike either
the primary judge or the Full Court as falling outside the ambit of "the trial" is not, of course, determinative. Oversights can
occur, even in such a fundamental matter as jurisdiction. But the approach taken by their Honours is open unless there is imposed
on s 350(1a) of the Act a jurisprudence concerning the commencement of "the trial" which was developed for quite different purposes
than those which s 350(1a) was designed to advance. The procedures of stated cases have been notoriously technical. They have presented
many questions concerning the last moment at which a judge may be asked to reserve a question of law for the opinion of a higher
court[77]. The fact that the Attorney-General or the Director of Public Prosecutions may now, by statute, reserve any question of law after
a trial at which a person is acquitted assists in defining the purpose of the sub-section. It suggests that the question of law
concerned need not have been raised expressly at the trial. This was the view taken by Cussen J in R v Turnbull[78] of a like provision in Victorian legislation[79]. He considered:
"[I]f there was an existing point of law which arose on the materials at the trial, and which might have been taken, it can be said
to have arisen at the trial, although no contention as to it had been raised there, and although the judge's attention had not been
directed to it at the trial." 3. In the present case, it is highly artificial, in the continuous dialogue between the trial judge and counsel placed before this
Court, to draw a line in the proceedings of that day at the point at which the respondent was rearraigned and required to plead:
disregarding all that happened before that moment for the purpose of deciding whether the contested question of law arose "at the
trial". It is sometimes important, for particular purposes, to decide precisely when a trial commenced; for example, to determine
whether a new statutory regime will apply to it[85]. In South Australia it has been held that, ordinarily, a criminal trial commences "when the accused having been arraigned before
the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling
of the jury"[86]. The point of commencement appears to have been even later at common law[87]. However that may be, such considerations are of little relevance to the meaning of the disputed phrase as it appears in s 350(1a).
There, the question in issue is not the delineation of events for the application of a particular legislative regime, the introduction
of different procedures or the attachment of new and different rights. It is the provision of the facility for the consideration
of a question of law which, having arisen in a concluded trial, may arise again and requires authoritative curial determination.
It is a mistake to apply to such a context decisions reached in different contexts for quite different purposes.
4. It would be unacceptably artificial to treat the prosecution's tender of no evidence (referred to in the case stated) separately
from the events which are also there described and which preceded that course. If the appellant is correct, the primary judge had
no authority to refuse to accept the nolle prosequi tendered by him. If that be right, and if there was no jurisdiction in the judge
except to discharge the respondent, all that followed in the purported "trial" was, as a matter of law, completely unauthorised.
There was no power in the judge to grant the application to reinstate the request for trial by judge alone. There was no power
to rearraign the respondent. There was no power to conduct the abbreviated trial. Nor was there power to find the respondent not
guilty on all counts. A clearer case of questions of law "arising at the trial" could hardly be imagined. The narrow view would
construe the section as if it empowered the court to "consider and determine any question of law reserved after the commencement
of the trial". But that is not what s 350(1a) says. If the transcript of the actual exchanges between the primary judge and counsel
at the trial may be used to remove any suggested ambiguity of the case stated, it is worth recalling that the primary judge, after
the rearraignment, prefaced his verdicts with the phrase "In those circumstances". The "circumstances" referred to were clearly
the decision of the prosecutor to tender no evidence at the trial. That event can itself only be understood by reference to the
immediately preceding refusal of the judge to "accept a nolle prosequi".
Jurisdiction points
Deprivation of jurisdiction point
Refusal of nolle prosequi point
The question: The first question posed in the stated case is "Do I have the power to refuse to accept a nolle prosequi entered by the Director
of Public Prosecutions[?]" Because the question is asked in the context of a case stated pursuant to s 350(1a) of the Act, and therefore
relates to a person "tried on information and acquitted", it must be assumed that it is directed to ascertaining whether the judge
did have the power of such refusal. Similarly, because the question must arise "at the trial", it is reasonable to read the question
as relating to the circumstances of the trial of the respondent in the way in which the purported entry of the nolle prosequi was
announced. Conventionally, once the entry was perfected, the proceedings were closed. That this was the view of the primary judge
is seen by his statement: The first question in the case stated is therefore designed to ascertain whether, in the circumstances specified, such a power existed
in the judge or whether he had no discretion and was duty-bound to accept the entry of the nolle prosequi.
Arguments against the power: I accept that there are a number of arguments which support a conclusion that no such power exists, including where the nolle prosequi
is proffered by the Director of Public Prosecutions pursuant to statute. 2. A reason of principle for adhering to this approach may be sought in the removal of the courts from involvement in prosecutorial
decisions. Although not universal this is considered desirable in our legal tradition for the independence and manifest impartiality
of the courts[135]. The restraints proper to the courts in this connection are acknowledged by recent decisions of this Court[136]. Adherence to that principle and a general refusal to invade decisions derived, historically, from the Crown's prerogative[137], were urged as reasons of legal authority, policy and principle for rejecting the existence of the power which the primary judge
asserted in this case.
3. The procedural difficulties of declining to accept the entry of a nolle prosequi were also emphasised. If the Crown refused to
proceed with its process, a court could scarcely take over the role of the prosecutor. It would ill-become a court to insist that
a person be prosecuted and to require that evidence be tendered against that person if the prosecutor declined to do so. Either the
matter would proceed to an inadequate or half-hearted prosecution or no evidence would be called or the judge would be placed in
the intolerable position of calling evidence in a way inappropriate to a criminal trial as conventionally conducted in this country.
Moreover, once the prosecutor had announced an intention not to proceed on the indictment before the court, the remedy of a stay
of proceedings, at least if directed to proceedings upon that indictment, would be futile. There would be no point of providing
a stay given the announced intention not to proceed upon the indictment anyway.
4. Further practical difficulties arise from a purported refusal to accept a nolle prosequi. In the present case, the respondent's
trial, if it had begun at all, was in its earliest phase. Cases can arise where a nolle prosequi is proffered at an advanced stage
in a trial. Indeed, these are the cases in which the worst suggested abuses of process could potentially arise. A case where a
jury's request for redirection may have signalled a likely verdict unfavourable to the prosecution; one where the case has gone badly
for the prosecution; one where the prosecutor has taken the risk of proceeding without a witness whose evidence, in retrospect, appears
vital[138]. But allowing trial judges to refuse to accept a nolle prosequi places a heavy burden upon them. Because a prosecutor cannot be
required to give reasons for the decision to proffer a nolle prosequi, a court may often be unaware of the complex considerations
which have resulted in this course, even in the midst of a trial. If the court refuses to accept a proffered nolle prosequi, the
possibility of a guilty verdict in a trial by jury cannot be excluded[139].
5. To hold that the court has no power to prevent the entry of a nolle prosequi, including by a statutory office-holder such as the
appellant, does not leave the courts entirely without remedy where further prosecution would constitute an abuse of process or an
unacceptable departure from fairness to the accused[140]. It would still be open to the accused, in the event of a fresh prosecution, to argue that the circumstances in which the nolle
prosequi was entered involved an abuse of process or a departure from fair trial requirements. In this way, the intervention of the
courts would be reserved to cases where intervention was strictly necessary. There would then be proceedings in a court which could
properly be the subject of a stay order directed at the process initiated by the new indictment[141]. Short of refusing to accept the entry of a nolle prosequi, a judge could properly make plain an opinion that, in the absence of
significantly new evidence, the commencement of fresh proceedings would constitute an abuse of process. The purported assertion
of a power to refuse the entry of a nolle prosequi would therefore ordinarily, be unnecessary. As in this case, refusing the entry
of a nolle prosequi might punish the Crown for inadequate preparation in ensuring the attendance of its witnesses (and send a signal
for other like cases). But it might do so at a price of denying the community's interest in having serious criminal charges heard
on their merits and, if proved, those found guilty punished according to law[142]. "It may be that the development in Australia of a deeper understanding of the inherent power of the criminal courts to prevent abuse
of their processes leads to the conclusion that the courts have power to act in a way which achieves what is now achieved by practice
in England, by refusing to act on a nolle prosequi where to do so would permit an abuse of process. In R v Saunders[144], the court refused to act on a nolle prosequi entered during trial and directed an acquittal. In R v Jell; Ex parte Attorney-General[145], the Full Supreme Court held that a trial judge has a discretion to refuse to accept a nolle prosequi if to do so would be an abuse
of process.
If the reasoning and decision in Jell are sound, and they certainly accord with my sense of justice, there is no reason why the same should not apply where the trial has
not begun but the date for trial has been fixed in accordance with the regular procedures of the court. When the accused appears
for trial on that date, the interests of justice may demand that, if the prosecution does not wish to proceed and there is no valid
reason why the accused should remain exposed to prosecution in respect of the alleged conduct, there be a verdict of not guilty by
direction."
2. Exercising such power does not, as such, constitute a novel review of the prosecutor's discretion to enter a nolle prosequi. Instead,
it may be characterised as action on the part of a court to defend its own processes. It ensures that minimum requirements of a
fair trial of persons accused of criminal offences are observed in the courts of this country. The inescapable duty of courts to
secure fair treatment of those who are brought before them was recognised in England in Connelly v Director of Public Prosecutions[146], in New Zealand in Moevao v Department of Labour[147] and by this Court in a series of cases following Jago v District Court (NSW)[148]. Courts cannot surrender these functions to an officer of the executive government, such as a Director of Public Prosecutions.
Once a person is before a court, in the sense that that court's jurisdiction has been engaged in relation to him or her, the court's
protective powers are attracted. This is especially so in the case of superior courts which have large inherent powers to protect
their own processes[149] which, in recent years, they have been more ready than previously to exercise.
3. It would be offensive to principle, at least in respect of the exercise of powers such as those conferred on the appellant by the
DPP Act, to suggest that his decision to enter a nolle prosequi was beyond judicial scrutiny if, for example, it could be shown that
it was exercised for a malicious purpose, corruptly or otherwise contrary to law. Not only has Parliament expressly reserved the
use of the appellant's power to "appropriate cases" but it has afforded that power, in the ordinary way, to be used to achieve the
proper objects of the DPP Act. A court might be slow to question the use of the power. It would be slower still to embark upon conduct
which risked calling into question its own neutrality. But the submission that a court is completely powerless to defend its processes
and to uphold the right of persons before it to fair trial in extreme and obvious cases is quite unconvincing. It is unnecessary,
and probably impossible, comprehensively to catalogue what such extreme cases will be[150]. But a clear instance would be where criminal proceedings, in which the accused was ready for trial, were repeatedly unready because
of inadequate or incompetent preparation by the prosecution. In such cases, if the prosecution were denied a further adjournment
after argument of the merits, the appellant could, if his argument were accepted, procure the same result by unilateral entry of
a nolle prosequi. An extreme example arose in Richards v Jamaica[151]. There, the accused was charged with murder and pleaded guilty to manslaughter. The plea was accepted by the prosecution. Subsequently,
however, a nolle prosequi was entered. He was then again charged with murder, and this time convicted and sentenced to death. The
United Nations Human Rights Committee found that[152]:
"The nolle prosequi was used not to discontinue proceedings against the [accused] but to enable a fresh prosecution against the [accused]
to be initiated immediately, on exactly the same charge in respect of which he had already entered a plea of guilty to manslaughter,
a plea which had been accepted. Thus, its purpose and effect were to circumvent the consequences of that plea, which was entered
in accordance with the law and practice of Jamaica. In the Committee's opinion, the resort to a nolle prosequi in such circumstances,
and the initiation of a further charge against the [accused], was incompatible with the requirements of a fair trial within the meaning
of [the International Covenant on Civil and Political Rights]. 5. Where a court concludes that conduct of any party is, or if permitted would be, an abuse of its process or, in a criminal trial,
diminishes the accused's right to a fair trial which is the hallmark of the criminal law of this country[156], it is for the court to fashion the remedy (if any) that is appropriate. In some cases it may be sufficient to order the expedition
of any subsequent proceedings or to lay down conditions for their conduct[157]. In some cases it will be appropriate to leave the provision of relief to be decided if a prosecution is revived. But in rare and
exceptional cases the court will have the power and authority to fashion an order staying further proceedings on the indictment.
In other cases, particularly where the nolle prosequi is proffered at an advanced stage in the trial, the court may require the
matter to proceed to verdict, at least where that is the wish of the accused and the defence of the court's process as well as fairness
to the accused suggests that it is proper. Once it is accepted that a court may, in rare and exceptional circumstances, refuse to
enter a nolle prosequi, although proffered for the prosecutor, it must be expected that the prosecutor would accept the judicial
ruling and conform to its consequences so far as these affected the ensuing conduct of the trial.
6. Like the Full Court, I refrain from commenting on the appropriateness of the refusal to accept the entry of the nolle prosequi
in the present case. It is enough to say, with every respect to all involved, that neither in its substance nor in its procedure
is the case a model for what should happen where a court entertains a concern that entry of a nolle prosequi would constitute an
abuse of process or a derogation from the accused's fair trial right. However, because the primary judge did have a power to refuse
to enter a nolle prosequi proffered on behalf of the appellant, the Full Court's affirmative answer to the first question was correct.
Subject to what follows, the appeal from the Full Court's order that the first question be so answered should therefore be dismissed.
The judicial review point
The constitutional point
The form of the questions point
Conclusion and order
[1] The provisions for reserving questions of law said to have arisen on a trial resulting in acquittal were amended by the Criminal Law Consolidation (Appeals) Amendment Act (SA). Section 11 of that amending Act provided that the amendments do not apply to an information laid before the commencement of
that Act (on 4 January 1996). The information in this matter was laid on 28 November 1994.
[2] The notes on the back of the Information suggest that this date may be wrong but nothing turns on it.
[3] Whether a nolle prosequi was entered may be open to doubt. Certainly the prosecutor attempted to do so but, as the next sentence
in the case records, the judge refused to accept it.
[4] Question of Law Reserved on Acquittal (No 3 of 1995) [1996] SASC 5679; (1996) 66 SASR 450.
[5] In South Australia, the Director of Public Prosecutions Act 1991 , s 7(1)(e).
[6] [1996] SASC 5679; (1996) 66 SASR 450 at 459, 472.
[7] [1996] SASC 5679; (1996) 66 SASR 450 at 472.
[8] [1996] SASC 5679; (1996) 66 SASR 450 at 451-452.
[9] [1996] SASC 5679; (1996) 66 SASR 450 at 473.
[10] [1991] HCA 53; (1991) 173 CLR 289.
[11] [1991] HCA 53; (1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 327 per Toohey J; cf Brennan J at 319.
[12] [1953] HCA 51; (1953) 88 CLR 523.
[13] [1991] HCA 53; (1991) 173 CLR 289 at 306 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 326 per Toohey J.
[14] [1991] HCA 53; (1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 325-326 per Toohey J.
[15] See, eg, Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373 at 381 per Isaacs J; Dickson v Commissioner of Taxation (NSW) [1925] HCA 29; (1925) 36 CLR 489 at 497 per Isaacs J; R v Rigby [1956] HCA 38; (1956) 100 CLR 146 at 151-153 per Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ; KLDE Pty Ltd v Commissioner of Stamp Duties (Q) [1984] HCA 63; (1984) 155 CLR 288 at 304-305 per Brennan J; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) [1995] HCA 44; 184 CLR 453
"I am not prepared to accept a nolle prosequi in the circumstances of this case. I think the accused is entitled to a verdict."
"MR NITSCHKE [then counsel for the respondent]: Your Honour has spoken, and that's simply my argument. It is improper for the Crown
to come along and attempt to enter a nolle prosequi in such circumstances. I invite your Honour to see it as an abuse of the court's
process to attempt to do so.
"(1) If on the trial or sentencing of any person convicted on information any question of difficulty in point of law or concerning
the sentencing has arisen, it shall be lawful for the presiding judge in his discretion to reserve the question for the consideration
and determination of the Full Court and to respite execution of the judgment or postpone judgment until the question has been considered
and decided.
"1. By Information filed by the Director of Public Prosecutions in the District Court of South Australia on the 28th November 1994,
[the respondent, B] (the accused) appeared before me charged with one count of Indecent Assault, one count of Unlawful Sexual Intercourse
with a Person Under 12, one count of Attempted Unlawful Sexual Intercourse and three counts of Unlawful Sexual Intercourse.
"The 'court' referred to in the section [s 285A] is not the court as an institution, but the particular court constituted of the judge
who is sitting to try the case. The arraignment is not the first arraignment at which the accused pleads but the process by which
the accused is arraigned before the trial judge at the commencement of the trial."
"In this State, therefore, the trial commences when the accused having been arraigned before the judge who is to try him, that judge
embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury."
"It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible
of judicial review. They include decisions whether or not to prosecute[28], to enter a nolle prosequi[29], to proceed ex officio[30], whether or not to present evidence[31] and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted[32]. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would
be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for
what[33]."
(i) Do I have the power to refuse to accept a nolle prosequi entered by the Director of Public Prosecutions?; and
"Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director
of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court."
"In any of the cases referred to in section 350, the presiding judge shall state a case setting forth the question reserved, with
the circumstances on which it has arisen, and shall sign the case and transmit it within a reasonable time to the Full Court."
"In this State ... the trial commences when the accused having been arraigned before the judge who is to try him, that judge embarks
upon the hearing and determination of any preliminary questions or upon the empanelling of the jury."
"Where a person is tried on information and acquitted, the court shall, on the application of the ... Director of Public Prosecutions,
reserve any question of law arising at the trial for the consideration and determination of the Full Court."
1. The foundation of jurisdiction point: Did the questions of law, purportedly included in the case stated, arise "at the trial" of the respondent so as to enliven the power
of the Full Court to consider and determine those questions (and thus of this Court to hear an appeal from its orders)?
1. There was no relevant dispute about the facts. Nor did either party contest the entitlement of this Court to go beyond the stated
case to the recorded transcript of proceedings before the primary judge or the notations on the Court file in order to understand
the case stated[66].
1. As with any phrase in legislation, that in question here must be given a meaning in the context of the Act and for the purposes
of achieving the statutory objectives[72]. Introducing in the Legislative Council the legislation that inserted s 350(1a)[73], the South Australian Attorney-General stated that[74]:
When the legislation was read a second time in the House of Assembly, the government expressed the view that the amendment would allow
the same issues to be canvassed as in an appeal by the accused[75]:
"[I]t acknowledges that just as in the case of the trial of an accused who is found guilty, there may be errors of law in summing
up of the trial judge or other matters which deserve consideration by the Full Court or other appeal courts, in the same way such
considerations may arise when an accused person is acquitted ... while the accused person should certainly not again be put at risk,
the Crown should be given the opportunity in some way to have the disputed matters of law dealt with by an appeal. So, it was said
that it could be done in the way proposed."
A similar opinion was reached by several of the judges of the English Court of Criminal Appeal in R v Mellor[80], including Lord Campbell CJ[81], Cockburn CJ[82], Coleridge J[83] and Martin B[84]. Whilst others took a narrower view, I find the reasoning for a broader approach more consonant with the purposive construction
of the provisions and the balance of authority. Particularly is this so in relation to an exceptional statutory provision which
permits a prosecution challenge to a legal ruling which led to the acquittal of the accused. 2. The approach which I favour is also one which is more realistic when it is remembered that a provision such as s 350(1a) is now
to be construed in the context (of which Parliament was presumably aware) of extensive interlocutory determinations in Australian
criminal proceedings. These can affect the conduct of a subsequent trial and concern questions of law expected to arise in the trial.
Their earlier determination may govern the way in which the whole trial is conducted. A narrow view would require that such preliminary
rulings of law, affecting the trial, must be ignored, and the facility for their legal correction after the acquittal of the accused
completely lost, although s 350(1a) of the Act was clearly enacted with the general purpose of avoiding such disadvantages for the
proper administration of criminal justice.
"Prosecuting counsel usually announces that he has been authorised by the Attorney-General (or since the Director of Public Prosecutions Act 1995 , by the Director) to enter a nolle prosequi. The information would then be endorsed by the Clerk of Arraigns or the judge's associate
to the effect that a nolle prosequi has been entered. There is no prescribed form for the endorsement ... Once a nolle prosequi
had been entered, the court can no longer proceed with the trial of those matters charged in the indictment to which the nolle prosequi
relates".
"I am not prepared to accept a nolle prosequi in the circumstances of this case."
1. To the extent that some features of the Attorney-General's nolle prosequi have been carried over to the statutory power afforded
to the appellant, most earlier legal authority suggests that no power or discretion to refuse the entry of a nolle prosequi exists
in a court. In such respects, the act being that of the executive government, a court was conventionally viewed as wholly passive:
having no functions save to conclude the hearing and discharge the accused[134]. At least in South Australia, where there was no procedure of handing back the paper indictment for endorsement, there was no immediately
following action which the trial court was obliged to take. Just as the Crown had an unfettered right to commence criminal proceedings,
it traditionally had an unfettered right to conclude them. One way of doing so, where the indictment had been found and presented
to a court, was by entry of a nolle prosequi. The use in the DPP Act of the term of art suggested that the essential features of
a nolle prosequi by the Director remained the same. One of these was that a decision to enter a nolle prosequi was previously not
reviewable by the courts.
Arguments for the power: These arguments are obviously significant. Weight might be given to them. However, a number of competing arguments support the proposition
that, in rare and exceptional circumstances, an Australian court is empowered to refuse to accept the entry of a nolle prosequi.
At least it is so empowered where tendered by a statutory office-holder such as the appellant, and where the court is convinced
that, if entered, the nolle prosequi will be, or will be the first step in, an abuse of process of the court or an unacceptable infringement
of the accused's right to fair trial: 1. The power of Australian courts to prevent and remedy abuse of their process or serious infringements of an accused person's right
to fair trial is now much more clearly perceived and strongly asserted than was formerly the case. In Rona v District Court (SA)[143], King CJ put the present problem into the context of legal history:
Were the prosecution allowed an unfettered right to enter a nolle prosequi in either of the above circumstances, the result would
be offensive to justice and to the function of a court as such. The processes of the court would be seriously threatened. The accused
would be deprived of the right to a fair trial, including one conducted in a timely fashion. The appellant would, in effect, put
himself above the judicial direction exercised by the court for the fair conduct of proceedings before the court. The public's confidence
in the courts would thereby be undermined[153]. The power of the courts to ensure even-handedness as between the individual and the prosecution would be eroded. The courts are
not obliged to allow this to happen. 4. Although the assertion of a power such as I have mentioned, in relation to the conduct of the appellant and his delegates, undoubtedly
involves a departure from the old legal authority which denied to a court any authority to refuse to accept the entry of a nolle
prosequi by the Attorney-General, that refusal must itself be seen in the context of the assumptions then prevailing in the law concerning
judicial examination of the exercise of prerogative powers. It must be re-examined in contemporary circumstances in the light of
the beneficial developments of recent decades in the judicial review of the decisions of statutory office-holders. The endeavour
to import historical prohibitions and immunities once applied in relation to the decisions of the Crown made by the Attorney-General,
to the exercise of statutory powers by a statutory office-holder such as the appellant is unconvincing. It should be rejected.
If it is beyond question that Australian courts have full power to prevent abuse of their process[154], they have a duty, where necessary, themselves to protect the integrity of that process[155]. It is not sufficient simply to trust, without question, the propriety of every decision of a statutory office-holder to enter a
nolle prosequi. Nor is it necessarily sufficient, the matter being before a court, to leave defence of the court's process or of
the accused's fair trial right to a future court, should a fresh prosecution be brought. In a given case, that might deprive an
accused person of an entitlement to a verdict of acquittal. It could burden him or her unjustifiably with the odium of an unresolved
criminal accusation. It could involve injustice and serious oppression. Most importantly, it could defeat the expectations of the
accused, the community and the court itself that once the proceedings are before an independent court of justice no party to those
proceedings can, in defiance of the court's rulings on the justice of the case, unilaterally terminate the matter. Least of all
may the appellant do so given that Parliament has confined his power to enter a nolle prosequi to "appropriate cases" and those,
by implication, for the purposes of advancing the objects of the DPP Act.
[16] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582.
[17] s 285A.
[18] (1988) 49 SASR 1.
[19] (1988) 49 SASR 1 at 5.
[20] (1988) 49 SASR 1 at 5-6.
[21] [1936] HCA 50; (1936) 55 CLR 707.
[22] cf Crimes Act 1900 (NSW), s 395; Crimes Act 1958 (Vic), s 391; Criminal Code (Q), s 594; R v Talia [1996] 1 VR 462 at 470-476; Bond (1992) 62 A Crim R 383 at 394-395; R v His Honour Judge Noud, ex parte MacNamara [1991] 2 Qd R 86 at 99-100.
[23] cf R v Howard (1992) 29 NSWLR 242 at 246-250; R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Symons [1981] VicRp 33; [1981] VR 297; R v Talia [1996] 1 VR 462 at 470-476.
[24] (1988) 49 SASR 1.
[25] (1889) 24 QBD 357 at 360 per Lord Coleridge CJ.
[26] [1907] VLR 11 at 14 per Cussen J; see also R v Mellor (1858) 7 Cox CC 454.
[27] (1996) 184 CLR 501 at 534 per Gaudron and Gummow JJ; see also at 513-514 per Dawson and McHugh JJ.
[28] See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95, 110.
[29] See R v Allen [1862] EngR 309; (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90-91.
[30] See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 92-93, 104, 107, 109.
[31] See, eg, R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575.
[32] See McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605.
[33] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-39, 54 per Brennan J, 77-78 per Gaudron J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 548 per Deane J; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74-75 per Gaudron J.
[34] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257; Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 300, 303, 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 314, 316-319 per Brennan J; North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 612 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, 642 per McHugh J.
[35] Criminal Law Consolidation Act 1935 (SA), s 351B.
[36] Question of Law Reserved on Acquittal (No 3 of 1995) [1996] SASC 5679; (1996) 66 SASR 450.
[37] Section 348 defined "Full Court" as meaning "the Supreme Court constituted of an uneven number of judges, not being less than three".
[38] (1988) 49 SASR 1 at 5-6.
[39] [1996] SASC 5679; (1996) 66 SASR 450.
[40] Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583 at 599 per Dixon J; cf Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 287.
[41] Mohr J.
[42] Pursuant to the Summary Procedure Act 1921 (SA), s 110.
[43] Criminal Law Consolidation Act 1935 (SA), s 350. Sections 350 and 351 were subsequently repealed by the Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA), ss 4 and 5. The 1995 amendments do not apply to the present proceedings.
[44] Criminal Law Consolidation Act 1935 (SA), s 350(1a).
[45] Criminal Law Consolidation Act 1935 (SA), s 351(2b).
[46] Criminal Law Consolidation Act 1935 (SA), s 351(2b).
[47] See eg Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373 at 381; Connor v Pittaway [1969] VicRp 42; [1969] VR 335 at 337; R v Douglas; Ex parte Attorney-General [1991] 1 Qd R 386 at 386.
[48] [1996] SASC 5679; (1996) 66 SASR 450 at 473.
[49] [1996] SASC 5679; (1996) 66 SASR 450 at 452.
[50] [1996] SASC 5679; (1996) 66 SASR 450 at 451. See also at 472.
[51] [1996] SASC 5679; (1996) 66 SASR 450 at 453, 465.
[52] [1996] SASC 5679; (1996) 66 SASR 450 at 465, quoting from R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 53.
[53] [1996] SASC 5679; (1996) 66 SASR 450 at 453, 462.
[54] [1996] SASC 5679; (1996) 66 SASR 450 at 453. See also at 462.
[55] [1996] SASC 5679; (1996) 66 SASR 450 at 470 where Debelle J conceded that there was a "good deal of force" in the opinion of Murray J to this effect in R v Lorkin (1995) 15 WAR 499 at 535.
[56] R v Saunders [1983] 2 Qd R 270; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48; R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35; McDermott, "Nolle Prosequi - The Law and Practice in Queensland" (1993) 17 Criminal Law Journal 319.
[57] R v Lorkin (1995) 15 WAR 499.
[58] Rona v District Court (SA) [1995] SASC 4922; (1995) 63 SASR 223 at 228-229.
[59] R v Comptroller-General of Patents [1899] 1 QB 909 at 914.
[60] Gilchrist v Gardner (1891) 12 NSWR 184 at 186-187; Williams v The Queen [1936] QWN 3; Kokles v The Queen [1936] QWN 22; R v Carnes (noted in [1976] Tas SR (NC) 1, but on this point see the unreported reasons for judgment: Supreme Court of Tasmania, 12 February 1976); R v Heald [1979] Tas R 185; R v Judge CF McLoughlin and Cooney [1988] 1 Qd R 464 at 468; cf R v Economou (1989) 51 SASR 421.
[61] R v Lorkin (1995) 15 WAR 499 at 535 per Murray J (diss).
[62] The State of Western Australia.
[63] cf Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289.
[64] Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523 at 524; President of India v The Moor Line Ltd [No 2] [1958] HCA 25; (1958) 99 CLR 212.
[65] Director of Public Prosecutions Act 1991 (SA), s 7(1)(e).
[66] cf Thomas v The King [1937] HCA 83; (1937) 59 CLR 279 at 286.
[67] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90; R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 219-221; CCSU v Minister for the Civil Service [1985] AC 374 at 417-418.
[68] Supreme Court Rules 1987 (SA), r 98.
[69] cf Ousley v The Queen (1997) 71 ALJR 1548 at [1997] HCA 49; 1590; 148 ALR 510 at 567.
[70] [1996] SASC 5679; (1996) 66 SASR 450 at 452.
[71] See R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union [1981] HCA 61; (1981) 153 CLR 376 at 382.
[72] Newcastle CC v GIO General Ltd [1997] HCA 53; (1997) 72 ALJR 97 at 110-111; [1997] HCA 53; 149 ALR 623 at 639-640.
[73] Criminal Law Consolidation Act Amendment Act 1980 (SA), s 6.
[74] South Australia, Legislative Council, Parliamentary Debates (Hansard), 5 August 1980 at 39.
[75] South Australia, House of Assembly, Parliamentary Debates (Hansard), 4 November 1980 at 1745.
[76] Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 305, referring to s 669A(2) of the Criminal Code (Q) - the Queensland equivalent of s 350(1a) of the Act.
[77] See eg R v Whelan (1868) 5 WW & a'B (L) 7; R v Tidemann (1871) 5 SALR 48; R v Duncan (1892) 4 QLJ 219; R v S (1953) 53 SR (NSW) 460.
[78] [1907] VLR 11 at 14.
[79] Crimes Act 1890 (Vic), s 482.
[80] (1858) 7 Cox CC 454. See also R v Brown (1889) 24 QBD 357 at 360 per Lord Coleridge CJ for the Court for Crown Cases Reserved.
[81] (1858) 7 Cox CC 454 at 456.
[82] (1858) 7 Cox CC 454 at 461.
[83] (1858) 7 Cox CC 454 at 465.
[84] (1858) 7 Cox CC 454 at 474.
[85] See eg Newell v The King [1936] HCA 50; (1936) 55 CLR 707; R v Talia [1996] 1 VR 462 at 471. See also Bond v The Queen (1992) 62 A Crim R 383 at 394-395; R v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86 at 100.
[86] A-G Reference No 1 of 1988 (1988) 49 SASR 1 at 5-6.
[87] Tonner v The Queen (1984) 80 Crim App R 170 at 182.
[88] cf South-West Forest Defence Foundation Inc v Department of Conservation and Land Management [1998] HCA 34; (1998) 72 ALJR 837 at 838-840; [1998] HCA 34; 154 ALR 405 at 407-410.
[89] As required by the Judiciary Act 1903 (Cth), s 78B.
[90] By s 71 of the Constitution.
[91] By s 73(ii) of the Constitution.
[92] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 267.
[93] See eg North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 665-668.
[94] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 266.
[95] For example (a) in the nature of the "judicial power" referred to in s 71; (b) in the nature of appeals from all judgments, decrees, orders and sentences in s 73; (c) in the nature of "matters" as referred to in ss 75, 76, 77 and 78 of the Constitution; and (d) in the implications derived from the language, structure and purposes of Ch III of the Constitution with its establishment of an independent judiciary.
[96] [1953] HCA 51; (1953) 88 CLR 523.
[97] [1953] HCA 51; (1953) 88 CLR 523 at 528.
[98] [1953] HCA 51; (1953) 88 CLR 523 at 527.
[99] O'Toole v Charles David Pty Ltd [1991] HCA 14; (1991) 171 CLR 232 at 284-285. But cf Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438 at 450.
[100] [1991] HCA 53; (1991) 173 CLR 289 at 305-306 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, at 327 per Toohey J, at 319 per Brennan J (diss).
[101] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 266.
[102] Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 305.
[103] [1991] HCA 53; (1991) 173 CLR 289 at 304.
[104] [1991] HCA 53; (1991) 173 CLR 289 at 304.
[105] [1991] HCA 53; (1991) 173 CLR 289 at 306.
[106] Criminal Law Consolidation Act 1935 (SA), s 351(2a), as the section then stood.
[107] See Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583 at 599.
[108] R v Howard (1992) 29 NSWLR 242 at 248. See also Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 at 487; McDermott, "Nolle Prosequi - The Law and Practice in Queensland" (1993) 17 Criminal Law Journal 319 at 324-328; "Nolle Prosequi" [1958] Criminal Law Review 573 at 574-575; Kidston, "The Office of Crown Prosecutor" (1958) 32 Australian Law Journal 148 at 150.
[109] Goddard v Smith (1704) 6 Mod 261 [87 ER 1008]; Goddard v Smith (1705) 11 Mod 56 [88 ER 882]; R v Dunn [1843] EngR 60; (1843) 1 Car & K 730 [174 ER 1009]; R v Colling (1847) 2 Cox CC 184; R v Allen [1862] EngR 309; (1862) 1 B & S 850 [121 ER 929].
[110] See [1996] SASC 5679; (1996) 66 SASR 450 at 457.
[111] R v Saunders [1983] 2 Qd R 270; R v Doyle [1988] 2 Qd R 434; R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48; Gipp v The Queen [1998] HCA 21.
[112] [1996] SASC 5679; (1996) 66 SASR 450 at 457.
[113] R v Economou (1989) 51 SASR 421 at 425; Edwards, The Law Officers of the Crown (1964) at 237; "Nolle Prosequi" [1958] Criminal Law Review 573 at 576. But cf R v Radford [1951] Tas SR 1 at 2.
[114] See Criminal Law Consolidation Act 1935 (SA), ss 275, 276, 284.
[115] See DPP Act, s 9; cf Price v Ferris (1994) 34 NSWLR 704 at 707-708.
[116] R v Prosser [1848] EngR 888; (1848) 11 Beav 306 at 314 [50 ER 834 at 838]; R v Allen (1862) 1 B & S 850 at 854 [1862] EngR 309; [121 ER 929 at 931]; R v Comptroller-General of Patents [1899] 1 QB 909 at 914. See also Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90-91.
[117] DPP Act, s 6A; cf Kolaroff v The Queen (1997) 192 LSJS 308.
[118] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 95; Maxwell v The Queen (1996) 184 CLR 501 at 534. See also R v Sang [1979] UKHL 3; [1980] AC 402 at 454-455.
[119] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 117.
[120] DPP Act, s 7(1)(e).
[121] R v Lorkin (1995) 15 WAR 499 at 531 per Murray J.
[122] DPP Act, s 7(1)(e). See also par (f).
[123] [1941] UKHL 1; [1942] AC 206. Subsequently disapproved in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112; R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1979] UKHL 5; [1980] AC 952 at 1011.
[124] Some of the principal cases are mentioned in Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997 at 1007; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342. Decisions of Ministers of the Crown in the exercise of statutory powers have been regularly reviewed in both English and Australian courts. In R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, Mason J observed, at 220 "The continued application of the Crown immunity rule to the exercise of prerogative power is a legal fiction." The review of the prerogative has lately come under judicial consideration. See R v Foreign Secretary; Ex parte Everett [1988] EWCA Civ 7; [1989] QB 811. The House of Lords in CCSU decided that the fact that a decision was made or an action taken in the exercise of the prerogative was no reason why such a decision or action should not be amenable to the supervision of the courts by way of judicial review: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; cf R v Civil Service Appeal Board; Ex parte Bruce [1988] 3 All ER 686 at 691-692. It is important to recognise the expansion of supervisory jurisdiction of the courts marked by CCSU and Minister for the Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274; 75 ALR 218. As Lord Scarman stated in CCSU (at 407), "the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter." See also Wheeler, "Judicial Review of Prerogative Power in Australia: Issues and Prospects" [1992] SydLawRw 32; (1992) 14 Sydney Law Review 432.
[125] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96.
[126] R v Connelly [1964] AC 1254 at 1296, 1360-1361; R v Humphrys [1977] AC 1 at 46, 55.
[127] R v Velvick (1976) 33 CCC (2d) 447; Re W A Stephenson Construction (Western) Ltd (1991) 66 CCC (3d) 201 at 204, 206; Kostuch (Informant) v Attorney-General (Alberta) (1995) 128 DLR (4th) 440 at 450-451; Law Reform Commission of Canada, Controlling criminal prosecutions: the Attorney-General and the Crown Prosecutor. Working Paper 62 (1990) at 110.
[128] Moevao v Department of Labour [1980] 1 NZLR 464 at 481-482.
[129] Most importantly that the power only be exercised in "appropriate cases".
[130] Walton v Gardiner (1993) 177 CLR 378 at 392-393.
[131] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 87.
[132] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 87.
[133] See eg R v Saunders [1983] 2 Qd R 270 at 274; Rona v District Court (SA) [1995] SASC 4922; (1995) 63 SASR 223 at 228-229, 234; R v Lorkin (1995) 15 WAR 499 at 518-519, 522; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 54, 63; R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35.
[134] Maitland, The Constitutional History of England, (1908) at 303; Gilchrist v Gardner (1891) 12 NSWR (Law) 184. See Archbold, Criminal Pleading, Evidence and Practice (1998) at par 1-251; McDermott, "Nolle Prosequi - The Law and Practice in Queensland" (1993) 17 Criminal Law Journal 319 at 324.
[135] Maxwell v The Queen (1996) 184 CLR 501 at 534.
[136] See eg Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96, 104, 107, 109; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575; cf Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605.
[137] See eg Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 24, 41, 61 (appointment of judicial officers). But cf FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 (renewal of workers' compensation insurance licences). See also Wheeler, "Judicial Review of Prerogative Power in Australia: Issues and Prospects" [1992] SydLawRw 32; (1992) 14 Sydney Law Review 432.
[138] R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 54, 62.
[139] As occurred in R v Williams and Kokles unreported, Circuit Court, Mackay, Queensland, 2 October 1935. The convictions were quashed on appeal: Williams v The Queen [1936] QWN 3; Kokles v The Queen [1936] QWN 22.
[140] See Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 30 citing Moevao v Department of Labour [1980] 1 NZLR 464 at 481.
[141] This was the view favoured by Murray J (diss) in R v Lorkin (1995) 15 WAR 499 at 535.
[142] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 49-50; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519.
[143] [1995] SASC 4922; (1995) 63 SASR 223 at 228.
[144] [1983] 2 Qd R 270.
[145] [1991] 1 Qd R 48.
[146] [1964] AC 1254 at 1354 per Lord Devlin.
[147] [1980] 1 NZLR 464 at 476, 481-482.
[148] [1989] HCA 46; (1989) 168 CLR 23. See for example Walton v Gardiner (1993) 177 CLR 378 at 392; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 33.
[149] Maxwell v The Queen (1996) 184 CLR 501 at 514.
[150] See McDermott, "Nolle Prosequi - The Law and Practice in Queensland" (1993) 17 Criminal Law Journal 319 at 338 where a list is offered based upon examples given in decided cases.
[151] United Nations Human Rights Committee, Communication No 535/1993; cf Richards v The Queen [1993] AC 217.
[152] United Nations Human Rights Committee, Communication No 535/1993 at 8.
[153] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519-520; Walton v Gardiner (1993) 177 CLR 378 at 395-396; Maxwell v The Queen (1996) 184 CLR 501 at 534; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 124; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 16; Nicholas v The Queen [1998] HCA 9; (1998) 72 ALJR 456 at 467, 503-504; [1998] HCA 9; 151 ALR 312 at 326, 376-377.
[154] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96.
[155] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 87; Maxwell v The Queen (1996) 184 CLR 501 at 514.
[156] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 56-57 per Deane J.
[157] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 31.
[158] [1996] SASC 5679; (1996) 66 SASR 450 at 471-472.
[159] See s 351(1) of the Act.
[160] Dickens, Bleak House (1853), Ch 5 where the then legal procedure was described: "[I]t's being ground to bits in a slow mill; it's being roasted at a slow fire; it's being stung to death by single bees; it's being drowned by drops; it's going mad by grains."
[161] Saunders v Edwards [1987] 1 WLR 1116 at 1134; [1987] 2 All ER 651 at 666 per Bingham LJ applied in Reeves v Commissioner of Police [1998] 2 WLR 401 at 416; [1998] 2 All ER 381 at 395 per Buxton LJ.