Citation: R v RP [2016] NSWDC 10
Court: District Court of NSW
Date: 15 February 2016
Judge(s): Toner DCJ
Background
The accused stood charged with two counts of sexual intercourse with a child under ten years of age. The complainant was his natural daughter, then aged seven. The Crown alleged the accused had penetrated the complainant's vagina with his finger on two separate occasions while she was in his care.
After the jury was empanelled and the trial commenced, the complainant gave her evidence. During cross-examination, it emerged that she did not understand the word "inserted" and her evidence did not establish penetration of her vagina, which was the element required to prove sexual intercourse under the extended statutory definition. The Crown conceded it could not sustain a conviction on either count as pleaded.
Following a telephone call between the Crown Prosecutor and the Director of Public Prosecutions (DPP), the Director entered a nolle prosequi (a formal decision not to proceed) in respect of each charge. The Crown then applied to have the jury discharged on the basis that both the jury and the judge were now functus officio (that is, their function was at an end). Defence counsel opposed the application, arguing the course constituted an abuse of process.
Legal Issues
- Whether the Director's power to enter a nolle prosequi under s 7(2) of the Director of Public Prosecutions Act 1986 is absolute, or is subject to the court's inherent power to control its own processes.
- Whether a nolle prosequi entered after the accused has been placed in the charge of a jury can amount to an abuse of process.
- Whether the court retained jurisdiction and could refuse to discharge the jury in those circumstances.
Decision
Issue 1: Scope of the Director's Power
Toner DCJ accepted that the Director holds broad power to enter a nolle prosequi at any stage before verdict, and that this power mirrors that previously held by the Attorney General (at [16]). However, his Honour held that the power conferred by s 7(2) is not absolute. The court's inherent power to prevent abuse of process, confirmed by the High Court in Jago v District Court (NSW) (1989) 168 CLR 23, operates as a constraint on that power (at [19]).
Issue 2: Significance of the Jury Being Empanelled
The court drew a critical distinction between a nolle prosequi entered before an accused is placed in the charge of a jury and one entered after (at [16]). Once a jury has been empanelled and charged with the task of returning a verdict, the accused's legal position is substantially different. Citing Lord Goddard's formulation in R v Hayes [1951] 2 KB 29, the court affirmed that once a prisoner is in the charge of a jury, he can only be convicted or discharged by the jury's verdict (at [13]). The interstate and NSW cases cited by the Crown were distinguished on the basis that in each of them the accused was not yet in the jury's charge at the time the nolle was entered (at [30]).
Issue 3: Abuse of Process
The court found that the only discernible reason for entering the nolle prosequi was to prevent a not guilty verdict that the Crown itself conceded was the inevitable outcome of the evidence (at [38]). The Crown had acknowledged that a verdict by direction of not guilty should follow once it closed its case (at [36]). The court also noted that a nolle prosequi, unlike an acquittal, does not prevent the accused from being charged again on the same counts, leaving him in continued jeopardy and unable to rely on autrefois acquit (at [39]). Allowing the Director to terminate the trial in these circumstances would interfere with the normal course of a trial and constitute an abuse of process (at [40]).
Outcome
The court refused to discharge the jury. The nolle prosequi was rejected and the trial was to continue (at [40]).
Orders Made
- Application by Crown to discharge the jury after nolle prosequi entered was refused.
Key Takeaways
- The District Court held that the DPP's power to enter a nolle prosequi under s 7(2) of the Director of Public Prosecutions Act 1986 is not absolute and is subject to the court's inherent jurisdiction to prevent abuse of process (at [19]).
- A nolle prosequi entered after an accused has been placed in the charge of a jury occupies fundamentally different legal territory from one entered before that point; the accused's constitutional entitlement to a jury verdict engages once the jury is empanelled and charged (at [13], [16]).
- Where a nolle prosequi is entered solely to prevent an inevitable not guilty verdict, with no other basis disclosed, a court may characterise that step as an abuse of process and refuse to give effect to it (at [38]-[40]).
- Unlike an acquittal, a nolle prosequi does not provide an accused with a defence of autrefois acquit against future prosecution on the same charges, a factor the court weighed in assessing the prejudicial character of the Director's action (at [39]).
- Sufficient authority existed, drawn from Jago, interstate decisions, and the High Court's treatment in DPP v B, to support the proposition that courts retain a supervisory power over their own processes even where a prosecutorial authority purports to withdraw charges mid-trial (at [18]-[34]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Director of Public Prosecutions Act 1986
- Criminal Law Consolidation Act 1935(SA)
Cases
- R v Hayes [1951] 2KB 29
- Jago v District Court (NSW) (1989) 168 CLR 23
- Aouad v The Queen [2013} NSWSC 760
- DPP v B [1998}HCA 45 (1998) 155 ALR 539
- R v GKA (1998) 99 A Crim R CCA 60619/97
- William v Spantz (1992) 174 CLR 509
- Sang [1980] AC 402
- Moevao v Department of Labour [1980] NZLR 464
- Walton v Gardiner (1993) 177CLR 378