Citation: Police v Rankin; Police v Roberts [2013] NSWLC 25
Court: NSW Local Court (Lismore)
Date: 30 October 2013
Judge(s): Magistrate Heilpern
Background
The two defendants were among a group of protesters at a coal seam gas mining site near Glenugie on the NSW North Coast in January 2013. Each was originally charged with two offences: hindering police under the Crimes Act 1900 and obstructing a driver or pedestrian under r 236(2) of the Road Rules 2008. Both pleaded not guilty.
The cases were agreed by both prosecution and defence to proceed as test cases, with all other related matters adjourned pending their outcome. However, before the test cases were heard, three related prosecutions from the same protest were dismissed. The dismissals rested on two findings: the arresting officers had failed to comply with the warning requirements under s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), and no vehicles were actually present at the time of the alleged obstruction.
In response to those dismissals, the prosecution withdrew the original charges against the two defendants and laid a single fresh charge against each: attempting to obstruct a driver or pedestrian under r 236 of the Road Rules. This was done without meaningful notice to the defendants or the court, and without explanation beyond a reference to "instructions." The defendants then applied for a permanent stay of those fresh proceedings.
Legal Issues
- Whether the prosecution's conduct, taken as a whole, justified a permanent stay of the fresh charges.
- Whether the prosecution had breached a binding agreement to withdraw charges against the defendants following the test-case arrangement.
- Whether the fresh charge of attempting to commit a strict liability summary traffic offence was legally viable.
- Whether the prosecution's conduct was vexatious or served a collateral purpose.
- Whether continuing the prosecution would bring the administration of justice into disrepute.
Decision
Magistrate Heilpern granted the permanent stay, emphasising that no single factor was sufficient on its own. Rather, it was the cumulative weight of multiple concerns that met the threshold required for such a serious and exceptional remedy.
The Magistrate found that the prosecution had made an unequivocal written commitment to withdraw the charges, forming part of the test-case agreement. That agreement was broken without any satisfactory explanation. The defendants had each travelled significant distances to attend court on multiple occasions, and other matters across the protest litigation had been held in abeyance on the faith of that arrangement.
The judgment examined the novelty and legal difficulties surrounding the fresh charge. Attempting to commit a strict liability summary traffic offence raised unprecedented questions, and the Magistrate was sceptical of the charge's viability. The court also noted that the same evidentiary obstacles that had defeated the original charges (no vehicles present, non-compliance with LEPRA) applied equally to the fresh ones. The prosecution had filed no evidence in response to the stay application.
The Magistrate declined to find a collateral purpose in the prosecutorial conduct, but held that the combination of the broken agreement, the detriment suffered by the defendants, wasted court time, vexatiousness, and the nature of the fresh charge meant that allowing the proceedings to continue would bring the criminal law and the court itself into disrepute.
Orders Made
- The prosecutions against each defendant under r 236 of the Road Rules 2008 were permanently stayed.
- All other related matters in which the fresh charge had been laid were adjourned to 9 December 2013 to allow the prosecution and defence to consider their positions in light of the judgment.
Key Takeaways
- A permanent stay of criminal proceedings is available in the Local Court where the cumulative effect of prosecutorial conduct, even if no single factor is independently decisive, would bring the criminal law and the court into disrepute.
- Where prosecution and defence agree to a test-case process and the prosecution gives an unequivocal written undertaking to withdraw charges, a court may treat that agreement as a material consideration supporting a permanent stay if the undertaking is later broken without explanation.
- Under LEPRA s 201, an officer must provide their name, station, and a warning that failure to comply may result in arrest. Failure to give that warning can mean the officer is not acting in the lawful execution of duty, with consequences for charges that depend on that element.
- The charge of attempting to commit a strict liability summary traffic offence was described by the Magistrate as legally novel and problematic, raising serious questions about whether such a charge is viable.
- Detriment to defendants, including repeated long-distance travel to court and reliance on a prosecution promise, formed part of the cumulative picture that supported the grant of a permanent stay.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 (Cth)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 201
- Road Rules 2008 (NSW), r 236(2)
Cases
- Coleman v Power and Ors [2004] HCA 39
- Poidevin v Semaan [2013] NSWCA 334
- Jago v District Court of NSW (1989) 168 CLR 23
- DPP v Shirvanian (1998) 44 NSWLR 129
- Maxwell v The Queen (1996) 184 CLR 501
- Giorgianni v R (1985) 156 CLR 473
- R v Brown (1989) 17 NSWLR 472
- Chung v The Queen (2007) 175 A Crim R 579
- O'Meara v The Queen [2009] NSWCCA 90
- Barac v Director of Public Prosecutions; Barac v Stirling [2007] QCA 112
- Nolan v Curby [1995] NSWCA 324
- Britton v Alpougut (1986) 23 A Crim R 254