EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONSPolice v K
Part 1The High Court decisions referred to in this judgment are held at
The Australian Legal Information Institute
Legal Principles applicable to determining "Abuse of Process Applications"
It is fundamental to our system of criminal justice that the institution and continuation of criminal proceedings is the function of the executive, not the judiciary.
The principles have recently been restated in Maxwell v R, a decision of the High Court delivered on March 15, 1996, where it was said:
" Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial."
And after discussion of a recent English authority:
"The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion is undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority. The court's power to prevent an abuse of its process is a different matter..."
The court then referred to the only way in which an abuse could have occurred in the matter of Maxwell, a case where the judge had endeavoured to strike out a plea of guilty to manslaughter which had been accepted by the prosecution. When it accepted the manslaughter plea, the prosecution had also elected not to proceed with a charge of murder.
In Barton, (1980) 147 CLR 75, Acting Chief Justice Gibbs and Mr. Justice Mason said:
..."It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v. Director of Public Prosecutions (1964) AC 1254 and Director of Public Prosecutions v. Humphreys (1977) AC 1 , to which we shall refer shortly - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue."
..."It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. The distinction between the court's lack of power to review the Attorney's decision whether to commence proceedings or not and the court's power to control its proceedings was central to the judgment of Lord Langdale in Reg v. Prosser (1848) 11 Beav 306 (50 ER 834) . The course which Fox J. took in Kent (1970) 17 FLR 65 when he ultimately discharged the accused on the ground that there had been no preliminary examination is to be supported, not on the basis that the Attorney-General's decision to prosecute was invalid, but on the footing that the accused would not receive a fair trial without a preliminary examination. (at p96) "
Barton is one of the earlier cases concerned with the identification of abuse of the process of the Australian criminal courts.
"Abuse of process" is an area of law which is still in the process of development.
When an area of law is still in the process of development, primary principles are still being developed. In more established areas of the law, the mechanics of the application of primary principles are reviewed more frequently than the primary principles.
Rapid development of primary principles is complicated by the need to develop primary principles which are capable of being used for all manner of cases and all kinds of parties, whether individual or corporate or executive, and, in respect of this area of the law, all kinds of proceedings, whether civil, criminal, quasi-civil (eg administrative tribunals) or quasi- criminal (eg disciplinary tribunals). In some "abuse of process" cases, judicial review is sought at an early stage, and before a trial is heard. In others, the review is sought, on appeal, by a party who has been unsuccessful at trial. There was an executive "plaintiff" and an individual accused in the criminal prosecution reviewed in Jago v District Court of New South Wales & Others, 168 CLR 23. This was also the case in Rogers v R 181 CLR 251, Barton, (citation supra) and Rona v. District Court of SA 63 SASR 223. In Walton v Gardiner & Others, 67 ALJR 485, the court of review was reviewing the conduct of proceedings which were not criminal but which served some of the same purposes as are achieved by criminal prosecutions, the individual accused having been brought before a professional disciplinary tribunal by an arm of the executive branch of government. In Williams v Spautz, 174 CLR 509, the proceedings under review were criminal proceedings, but the complainant was a private individual.
Through the caselaw, there appear to be two views of the circumstances which give rise to the power of a court to intervene in order to prevent an abuse of its process.
There is a narrower "step by step" view confining the circumstances to the circumstances where the principle has been applied before.
Secondly there is a wider view that the court is applying a philosophy which also underlies many substantive practices and procedures. In this sense "abuse of process" is a concept not unlike the concept of restitution in civil law, in that it is identifiable but difficult to analyse.
In the case before me, Mr. Grant argued the narrower view: namely, that the power to intervene can only arise when there is unfairness to the defendant, or when a prosecution is launched for improper purposes. The narrower view was expressly rejected in the majority judgement in Walton v Gardiner. As I understand the cases, the wider view has prevailed, and it is binding on me.
One of the difficulties with the narrow view is that it encourages the perception that when "abuse of process" is under consideration, only the parties, and their actions, matter.
Unfairness to the accused which cannot be remedied using substantive law or discretions to exclude evidence or directions to triers of fact is usually present whenever an abuse of process occurs. But there must be a nexus with the court itself before there can be an abuse of process of the court.
In some cases, as in Williams v Spautz, the improper purposes motivating the institution and conduct of the prosecution are much more important than the question of unfairness. In these cases, the courts have held that it is immaterial whether or not any unfairness can be remedied so that a fair trial ensues.
But there can be unfairness to an accused which is not "abuse of process", and improper purposes can be motivating the institution and the conduct of a prosecution but when these are not the dominant purposes for instituting and conducting the prosecution, there is no "abuse of process".
In every Australian case where it has been found that an abuse of process has, or may have, occurred, the abuse is of the process of the court.
The abuse is not abuse of one of the parties by the other party. It is not abuse of process of the criminal justice system. Either or both may be present, but, (standing alone or together), neither constitutes abuse of process of the court.
In some jurisdictions, such as Canada, the courts do look at abuse of process where the process is the process of the criminal justice system. This does not occur in Australia (where the same end is achieved using the Bunning v Cross discretion).
The High Court clearly explained this distinction, between abuse of the process of the court and abuse of the process of the wider criminal justice system, in Ridgeway 129 ALR 41. After discussing the Canadian stay of proceedings in entrapment cases, the majority judges said:
"Once it is concluded that our law knows no substantive defence of entrapment, it seems to us to follow that the otherwise regular institution of proceedings against a person who is guilty of a criminal offence for the genuine purpose of obtaining conviction and punishment is not an abuse of process by reason merely of the circumstance that the commission of the offence was procured by illegal conduct on the part of the police or any other person. To the contrary, to institute and maintain proceedings in a competent criminal court for that purpose is to use the process of that court for the very purpose for which it was established."
Abuse of the process of the court was described as follows, in the judgement of Mr. Justice Richardson in Moevao v. Department of Labour (1980) 1 NZLR 464, at pp 470-471, 473-476, 478-482, which has been cited with approval in a number of High Court decisions including Walton v Gardiner and Jago:
"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
Once this dictum is understood, it becomes much easier to understand the cases where abuse of process has been an issue, and to understand why an unfairness, or an improper motive, is not an "abuse of process", and why, where there is an abuse of process to some degree, there is no automatic exercise of the discretion to grant a stay of proceedings or other relief.
The suppression of oppression of the defendant and the suppression of prosecutions instituted for improper purposes are two limbs of the two aspects of public interest described by Mr. Justice Richardson, but these two limbs are by no means the only circumstances which can give rise to the need for the court to protect its ability to function.
A remedy will only be granted if there is an abuse of process, and there is an abuse of process when the courts' ability to function in other cases is affected, as well as the courts' ability to function in the case which is before the court.
This introduces a temporal element, as the courts' ability to function in other cases is an ability to function over time.
In Walton, Rogers, and Trainor (56 A Crim R 102), if the power to prevent abuse of process had not been exercised, earlier court decisions would have been set at nought by a methods other than the legitimate appeal processes, and the authority of both the lower courts and the appellate courts was jeopardised as a result. In Williams v Spautz, the authority of an industrial tribunal was being subverted or impugned. These are cases concerned with the undermining of court authority, having regard to past decisions.
In other cases, the undermining, subversion or impugning of court authority is related to present or future decisions.
In R v Gagliardi & Filippidis, 45 SASR 418, what was supposed to be a committal hearing in a court of law became such a dreadful shambles that it threatened to bring the trial courts into disrepute if the ex officio informations were permitted to proceed.
In Barton, and in R. v. Harry ex parte Eastway, the committal function of a magistrate was being "sidelined" by the executive, and the authority underpinning the verdict of the trial court was threatened by the actions of the executive.
In Jago, the delay was so protracted that there was no way that a future verdict of a trial court could be ever be regarded as a fair verdict. Far from enhancing court authority, the matter would threaten court authority if it was permitted to proceed.
It can be seen from these cases that the process of the court is not restricted to the judicial aspect of judicial functions.
It extends to cover all forms of court exercise of judicial power, including administrative functions which are exercised in a judicial manner, as occurs when a committal hearing takes place (R. v Murphy, 158 CLR 596).
At the heart of this is the concept that courts must not only be forums where issues are tried fairly and without fear or favour, but they must be seen to be seen to be forums where issues are tried fairly and without fear or favour.
Just as there was no court process being impugned or subverted in Ridgeway, no court process was being subverted or impugned in any way in R. v Vuckov and Romeo 40 SASR 498.
In the matter of Kite, 60 A Crim R 226, Mr. Justice Debelle refused to use the power to stay to prevent trial of an accused for unlawful sexual intercourse after the accused had been acquitted of rape.
The Crown had elected to split its case, to focus on the issue of consent, and counsel for the accused had adverted to unlawful sexual intercourse during his final address to the jury hearing the rape trial.
While the accused was facing a second trial arising from the same circumstances, no verdict was being subverted or impugned whether by an argument akin to double jeopardy or issue estoppel or otherwise; there was no reason why he could not be tried fairly in relation to the lesser charge; and the charge was not laid for an improper purpose. The public interest in bringing an alleged offender before the court still operated.
In Kite, it was not suggested that the Court had made any directions or sought any undertakings from the parties prior to trial.
The situation was very different in Rona.
In Rona v The District Court & DPP(SA), Chief Justice King said, of the power of the court to stay proceedings:
"...the existence of the power to stay resulting from the abuse of process, does not imply that the power must be exercised. A judgment has to be made as to what the interests of justice require. There must be a balancing process taking into account the interests of fairness to the accused in having the basis upon which his trial was to take place adhered to, the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business, and `the community's expectation that persons who are charged with offences are brought to trial'..." (at page 230).
"The power is to prevent proceedings which amount to an abuse of process, not to punish non-compliance with case management procedures and directions" (at page 229).
His Honour the Chief Justice was of the view that:
"...conduct by the DPP of a prosecution other than in accord with the procedural directions given by the court or the undertakings and assurances given to the court, may amount to an abuse of process of the court and found the jurisdiction to stay proceedings."(page 227).
"It is essential to the proper management of cases that both the DPP and the accused comply with the directions that are given, carry out the undertakings and adhere to the assurances given at the status conferences...Only in that way can a trial be accorded which is fair to both parties without waste of the limited public resources committed to the court system."(page 227).
The central difference between Rona and Kite is that in Rona the actions of the prosecuting authorities could have affected public confidence in the administration of justice and the ability of the court to function as a court of law in that case and in other cases, because the courts dealing with case management procedures exercising administrative functions in a judicial manner, and these courts were being subverted by the actions (or, more accurately, the inactivity) of the DPP.
In contrast, no pre-trial court functions, or earlier court decisions, were being subverted in Kite.
For the purposes of consideration of this "abuse of process application", there is no reason to distinguish between the exercise of administrative functions in a judicial manner in the court conducting a committal hearing and the court which is reviewing case management of the trials in the court list.
Confessions and Admissions
Use of Confessions and AdmissionsAt common law, a person accused of crime was not compellable as a prosecution witness and not competent as a defence witness.
That situation has been addressed by the Evidence Act (s.18), which makes the defendant a competent defence witness.
Further, within certain limits, section 34 of the Evidence Act enables defendants (either personally or by solicitor) to admit facts alleged by the prosecution which are not in dispute.
Statements made by the person accused of a crime are admissible, although hearsay, within certain parameters.
The statement must be a voluntary statement, and one which there is no reason to exclude in the exercise of the R v Lee discretion, by reason of unfairness to the defendant, or in the exercise of the Bunning v Cross discretion, where the public interest in preventing unlawful or arbitrary treatment of the individual is weighed against the public interest in bringing offenders to justice.
In McDermott v R, 76 CLR 501, Mr. Justice Dixon said:
"At common law a confessional statement made out of court by an accused person may not be admitted into evidence...unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received into evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue influence or pressure, it cannot be voluntary. But it is also a definite ruler of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made."
In R v Lee, the High Court cited as the appropriate test a test originally formulated by Mr. Justice Street in New South Wales:
"...It is a question of degree in each case ...whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be used in evidence against him." ..."It is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction".
There have been many cases in which the Lee and McDermott principles have been applied.
Suppose an interviewing police officer said to a defendant, in the presence of the defendant's solicitor-
"If you don't tell me your story, you will not be able to recover your costs, if you plead not guilty and you are found not guilty.
If you tell me now, and the matter goes to trial and you are acquitted, you will be able to recover the money you have paid your solicitor to defend you."
In those circumstances it is very difficult to see a court admitting, (over objection) any subsequent alleged admissions or denials.
There is a threat:
you will have to pay money and you will not be able to recover it.There is an inducement held out by a person in authority:
tell me what your defence is, and if you win your case you can recover the money you have to pay out in order to defend yourself.In days of limited legal aid funding, high costs of legal representation and contributions when legal aid is extended, such a threat and such an inducement might well cause a defendant to speak because his will has been overborne. Whether or not any subsequent statement by the accused was voluntary, it would have been made in circumstances where it would be unjust to use the statement against the defendant.
If the information provided by Rule 26 is used as if it is part of the whole of the material upon which the executive (in this case the police prosecution service) uses in order to determine whether charges should be instituted and if so what charges, this may constitute an abuse of the process of the court.
These determinations are precisely the way in which an involuntary statement by an accused may be legitimately used by the prosecution, but the courts have always refused to permit involuntary and/or unfair disclosure to be used to convict the accused on a charge upon which he would never have been convicted but for the statements he made to police.
In my view, the same principle applies to Rule 26 situations.
The making of mutual disclosure and the discussion of relevant issues between parties in private pursuant to a court order to do so is a far cry from "judicial confessions" such as the plea of guilt or admission of another offence during evidence (after a warning concerning self incrimination).
The remedy to be used to ensure the accused is not convicted by reason of use of evidence obtained under compulsion or in unfair circumstances is founded on abuse of process of the court, not the grounds which may found the exclusion of evidence, because the disclosure is made as a result of a court order.
Courts have always controlled the use which the prosecution make of material which is otherwise available to them, where the use may result in the conviction of an accused.
In my view, the court compels information to be provided in order that police may review the charges which have been laid: the sufficiency of the evidence is a very important consideration when the conduct of the prosecution is being reviewed by those responsible for conducting it.
In some circumstances it will obviously be appropriate for a new charge to be instituted: the example given in submissions before me was one which is not unfamiliar to magistrates. Armed robbery charges are withdrawn and charges of common assault laid where the prosecution, after instituting the armed robbery charge, become aware that there is a reasonable possibility that the accused honestly believed he had a claim of right to the property the subject of the charge.
Such review is not outside the purposes of Rule 26: to the contrary, Rules 8 and 26 are intended to ensure that the first review does occur on the court room doorstep, with witnesses and a magistrate waiting to start the trial.
Such review is a determination as to whether an appropriate charge has been laid or whether a lesser charge is in fact more appropriate in the particular circumstance of the case. It is not a "full scale reappraisal" of the decisions as to whether charges should be laid and if so what charges.
Use of information disclosed by the defendant after a Rule 26 order is made
In the summary courts, there are no committals.
It is left to the prosecution to determine whether a charge is laid, and to determine the appropriate charge to lay.
The court does not examine these decisions by checking the witness statements to ensure that there is a prima facie case.
No witness statements are filed in court before the trial. During the trial it is very rare for a disputed statement of witness to be tendered, although sometimes uncontested witness statements are tendered in order to relieve the prosecution and the witness from the requirement for the witness to attend court and give oral evidence which is not disputed.
Prior to the introduction of the Magistrates Court Rules, a defendant could remain mute about this defence until his counsel began to put the defendant's case to the witnesses, and the defendant could call expert witnesses without previous warning to the prosecutor who had closed his case.
No Rule 26 orders are made until after a charge has been laid.
There is nothing improper about prosecutors regularly reviewing the charges that have been laid in each particular case as the case proceeds through the courts.
Far from being improper, it is highly desirable that prosecutors regularly review the matters they are conducting in the courts. Rule 26 is intended to cause prosecutors to review the conduct of their files.
To use an example from counsel's submissions, if it becomes clear that an accused charged with armed robbery held an honest belief that he was entitled to the property, the sooner a charge of assault is laid and no evidence tendered on the armed robbery charge, the better it is for all concerned. It is in the public interest that the most appropriate charge be laid at the earliest possible opportunity.
There is nothing improper about counsel conferring to see if they can resolve a matter without trial, as counsel have done since time immemorial (with one proviso: that counsel do not conspire to pervert the course of justice).
It is in the public interest to encourage legitimate conferences of this kind. Rule 26 is intended to promote legitimate conferencing.
However, if details of the defence are revealed, they are revealed in circumstances where a court would treat the defendant's will as having been overborne, or any statement as having been made in circumstances where it is unfair to use any admissions against the defendant, if the same details had been revealed to an investigating officer by the defendant after the investigating officer made statements about the costs consequences of failing to reveal the defence.
The prosecution have always been able to use material which is not admissible in court when making decisions in relation to the institution of proceedings. It is only the conduct of the proceedings which courts regulate.
However, if the position of the parties with respect to each other changes, and the change is due to a court order, this is a different situation.
If improper use is made of information which a defendant reveals in circumstances where his statement would be excluded if the circumstances had been created by police rather than a court, and the circumstances have been created by a court, this may result in abuse of the court process.
What, then is proper use of the information provided?
In my view proper use of such information is restricted to review of the conduct of the proceedings. Such matters as:
- Should the prosecution proceed, or is the evidence insufficient? Are more witnesses needed?
- Should the charge laid be substituted by a lesser charge?
- Are there humanitarian or policy reasons to lay lesser charges?
- Is there a risk that the witness relied upon has ulterior motives which means their credit may not be what it seemed when the adjudication was made?
The list of ways in which the prosecution can review its conduct of the prosecution is almost endless.
But in my view, what the prosecution cannot do, once a Rule 26 order has been made and complied with by the defendant, is completely revise the decision making which took place concerning the institution of proceedings when the only new material is the material provided by the defendant in compliance with a court order.
If this occurs, then it makes a nonsense of serious adjudication: the prosecution would merely have to wait until the court made the defendant disclose his defence and then make decisions which could and should have been made before proceedings were instituted.
In doing so, the prosecution would be able to have access to material a defendant was required to provide as a result of a court order but which the prosecution would not have had access to before proceedings were instituted.
In doing so the prosecution would negate the purposes Rule 8 seeks to achieve, since the institution and conduct of the prosecution would only begin long after the "holding " charge was instituted.
In my view, this course makes a nonsense of the rules of natural justice.
A party brought to a court is entitled to know the case against him.
He ought not be brought to court on one pretext, compelled to disclose his version of the material facts, and then find that the party bringing him to court decides what case it will mount against him after the court ordered disclosure has occurred.
In Walton v Gardiner, the High Court made it clear that a defendant need not establish double jeopardy if the philosophy which underlies double jeopardy applies to the circumstances before the court. Where there is an analogous situation, the same philosophy ought to be followed.
In my view, just as information disclosed by a defendant in circumstances where it is unfair cannot be used to convict him, and the evidence is excluded, if the unfairness arises as a result of a court order otherwise admissible evidence ought not be used to convict.
However, the discretion to exclude evidence is not the appropriate remedy, as the ground is abuse of the process of the court.
The Rule 26 order is a court order. If it is abused, then the courts may be brought into disrepute, and seen not as a places where fair trials are conducted but as an instruments of oppression.
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