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Supreme Court 22 December 2003

L v Johnson & the DPP

[2003] NSWSC 1246

Sexual offences
LOCAL COURTS SUMMARY PROSECUTION BY DPP CHARGES WITHDRAWN, LATER REINSTATED NO FRESH EVIDENCE DELAY WHETHER PROCEEDINGS AN ABUSE OF PROCESS

Citation: L v Johnson & the DPP [2003] NSWSC 1246
Court: Supreme Court of New South Wales
Date: 22 December 2003
Judge(s): Hidden J

Background

The plaintiff was charged in the Wollongong Local Court with three counts of aggravated indecent assault on his stepdaughter, alleged to have occurred between 1992 and 1996. The charges were first laid in April 1997, but were withdrawn in October 1997 after the complainant (then aged fifteen) indicated she did not wish to give evidence, citing personal reasons and a desire to move on with her life.

In mid-2002, the relationship between the plaintiff and the complainant's mother had deteriorated significantly, with apprehended violence order proceedings running in both directions. Shortly after those proceedings commenced, the complainant approached police asking that the assault charges be reactivated, and in August 2002 she provided a further statement saying she was now prepared to give evidence. Fresh charges were laid in October 2002.

The plaintiff applied to the Local Court for a permanent stay of those reinstated proceedings, arguing abuse of process and prejudice caused by delay. A magistrate dismissed the application in March 2003. The plaintiff appealed to the Supreme Court and also sought prerogative relief.

  • Whether the reinstatement of charges, without any new evidence, could constitute an abuse of process
  • Whether a complainant's alleged ulterior motive in seeking reactivation of charges was relevant to an abuse of process application
  • Whether the delay between the original charges (1997) and the reinstated charges (2002) occasioned sufficient prejudice to warrant a permanent stay
  • Whether the magistrate was required to investigate the complainant's motive before dismissing the stay application

Decision

Hidden J dismissed the appeal and refused the other claims for relief, finding that the magistrate had applied the relevant principles correctly and reached a conclusion that was fairly open on the facts.

On the delay ground, the Court noted the magistrate had undertaken the required balancing exercise, weighing the interests of the accused against the community's interest in having serious charges determined. The magistrate had observed that no calculated or unreasonable delay by the prosecution had been demonstrated, and that the plaintiff had benefited from a prior period to consider the allegations. The Supreme Court found the magistrate's conclusion on this point was clearly open to him, drawing on the High Court's guidance in Jago v District Court (NSW) (1989) 168 CLR 23 that a permanent stay on delay grounds alone will be very rare.

On the abuse of process ground, the Court accepted that while the complainant's willingness to give evidence influenced the Director's decision to reinstate the prosecution, the prosecutorial decision remained the Director's own. The complainant was a witness, not the prosecutor, and no ulterior motive on the Director's part was alleged. The magistrate was correct to find that her personal motivation went to her credibility as a witness, not to whether the proceedings were an abuse of the court's process.

Hidden J acknowledged the possibility, in principle, that a combination of delay and complainant conduct could make it irresponsible to reinstitute a prosecution. However, that threshold had not been reached here. The Court also distinguished the Western Australian decision in DPP v A (2001) 117 ACrimR 551, which the plaintiff had relied upon in relation to delay, finding it had been misread.

Orders Made

  • Leave to appeal under Part 5 of the Justices Act 1901 refused
  • All other claims for relief dismissed
  • Costs reserved, with the parties to be heard if necessary

Key Takeaways

  • Withdrawal of charges does not finally dispose of them, and reinstatement without new evidence does not, of itself, constitute an abuse of process.
  • A complainant's alleged ulterior motive in seeking reactivation of charges is relevant to that complainant's credibility at trial, but is not a basis for staying the proceedings as an abuse of process where no improper motive is attributed to the prosecuting authority.
  • Under the principles from Jago v District Court (NSW), a permanent stay on delay grounds alone is reserved for extreme cases, and courts must balance the accused's interests against the community's interest in seeing serious charges resolved.
  • In dismissing the stay application, the Supreme Court confirmed that where a public prosecutor exercises an independent discretion to re-lay charges, the proceedings will not be tainted merely because a complainant's personal circumstances or motivations prompted the request to reactivate.
  • The categories of abuse of process are not closed, and the Court left open the possibility that a combination of significant delay and problematic complainant conduct could, in an appropriate case, render reinstatement of charges an abuse.

Legislation and Cases Referenced

Legislation
- Justices Act 1901 (NSW), Part 5, s 104(4) (since repealed)

Cases
- Jago v District Court (NSW) (1989) 168 CLR 23 (High Court)
- DPP v A (2001) 117 ACrimR 551 (Supreme Court of Western Australia, Roberts-Smith J)
- Rapson v Wright (Hidden J unreported, 29 May 1998) (Supreme Court of NSW, Hamilton J)