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District Court 18 November 2022

R v SE & ORS

[2022] NSWDC 712

Assault & violenceTheft & propertyPublic order & justice offences
NOLLE PROSEQUI

Citation: R v SE & ORS [2022] NSWDC 712
Court: District Court of NSW
Date: 18 November 2022
Judge: Buscombe DCJ

Background

Four accused stood trial before a judge alone on charges of armed robbery in company, kidnapping in company, and (for one accused) dealing with proceeds of crime, arising from an alleged attack on a complainant at Mount Lambie on 29 September 2020. The Crown case was entirely circumstantial and depended heavily on the complainant's evidence about the physical appearance of his attackers, their clothing, words spoken, and vehicles used.

The trial was beset with procedural difficulty from the outset. The court refused two Crown applications to have the complainant give evidence via audio-visual link from Western Australia, and later ruled it was not in the interests of justice to compel the complainant to give evidence at all, partly because he lacked immunity from prosecution in Western Australia and South Australia for offences arising from his own testimony.

On day 11 of the trial, before the Crown had closed its case, the Crown Prosecutor informed the court that the Director of Public Prosecutions (DPP) had directed that there be no further proceedings against all four accused. The defence argued the court retained power to require the Crown to proceed to a verdict. The court heard argument and ruled on that question.

Legal Issues

  • Whether, once the DPP communicated a direction for no further proceedings under section 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW), the trial concluded by operation of law.
  • Whether the court retained any power to require the Crown to proceed with the trial to verdict, notwithstanding the DPP's direction.
  • Whether the DPP's direction could constitute an abuse of the court's processes, capable of being prevented by the court exercising its inherent jurisdiction.

Decision

Issue 1: Effect of the DPP's Direction

The court held that the trial concluded the moment the Crown Prosecutor communicated the DPP's direction to the court, and that the court had no power to require the Crown to proceed to verdict (at [3]-[4]). Buscombe DCJ found this conclusion was compelled by the Court of Criminal Appeal's decision in R v GKA, which established that once the DPP exercises the power under section 7(2)(b) of the DPP Act and communicates it to the court, the court is deprived of power to further proceed on the indictment (at [52]). The court found GKA binding, and considered the factual difference, namely that in GKA evidence had not yet commenced before a tribunal of fact, did not detract from the applicable principles (at [53]).

Issue 2: Relationship to the Nolle Prosequi Doctrine

The court confirmed that the DPP's power under section 7(2)(b) is the statutory successor to the Attorney General's power to enter a nolle prosequi (at [32], [41]). At common law, a nolle prosequi could be entered at any time before verdict, was unreviewable by the courts, and terminated proceedings on the indictment upon communication to the court, though it did not bar fresh proceedings on a new indictment (at [42]-[43]). The court found this approach consistent with the plurality and Gageler J in Beckett v NSW [2013] HCA 17 (at [54]-[57]).

Issue 3: Abuse of Process

The court rejected the argument that the DPP's direction could be treated as an abuse of process that the court could prevent. Once the direction was communicated, there were no proceedings on foot before the court, and therefore no court process remained capable of being abused (at [60]). The court distinguished between the position at the time of the direction and any future proceedings: should the Crown later present a fresh indictment arising from the same facts, the court would then have power to stay those proceedings if they constitute an abuse of process (at [61]).

Issue 4: Observations if the Court Was Wrong

Buscombe DCJ added that, if she was wrong about the court's lack of power, this case would have fallen within the exceptional category of cases in which she would have required the Crown to proceed to verdict (at [71]). Without the complainant's evidence, it was almost a certainty the Crown case would fail against all accused on all counts (at [72]). The court concluded that the DPP's direction was, on the balance of probabilities, a tactical decision to deny the accused the benefit of an acquittal, reached after the court refused to compel the complainant to testify and declined to effectively abort the trial (at [74]).

Orders Made

  • Trial concluded upon the Crown Prosecutor informing the court of the Director's direction.

Key Takeaways

  • The District Court confirmed that the DPP's power under section 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW) operates as the statutory equivalent of a nolle prosequi: once communicated to the court, it terminates proceedings on the indictment immediately and deprives the court of any power to continue the trial (at [52]).

  • Under the principle affirmed in R v GKA, the stage at which the direction is given (including mid-trial, after evidence has commenced) does not affect the legal consequence of the direction being communicated to the court (at [53]).

  • No accused person has a right to be tried to verdict. Accepting a right to insist on prosecution would, in the court's view, be legally untenable given Deane J's statement in Jago v District Court (NSW) that "no person has the right to insist upon being prosecuted or tried by the State" (at [59]).

  • Once a DPP direction terminates proceedings, there are no proceedings capable of being abused, and the court's abuse-of-process jurisdiction cannot operate to resurrect the trial. That jurisdiction would only become relevant if a fresh indictment were later presented on the same facts (at [60]-[61]).

  • Buscombe DCJ found, on the procedural history and state of the evidence, that the DPP's direction was on the balance of probabilities a tactical decision to deprive the accused of an acquittal, and noted the Crown had ample opportunity prior to and during the trial to secure interstate immunities for the complainant (at [73]-[74]).

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Act 2010
- Crimes Act 1900 (NSW), s 5A(2)
- Director of Public Prosecutions Act 1986 (NSW), s 7(2)(b)
- Evidence Act 1995 (NSW), s 18, s 128

Cases
- Barber v R [2016] NSWCCA125
- Barton v The Queen (1980) 147 CLR 75
- Beckett v NSW [2013] HCA 17
- DPP v B (1998) 155 ALR 539
- Jago v The District Court of New South Wales and Ors (1989)168 CLR 23
- Question of Law Reserved on Acquittal (No.3 of 1995) 66 SASR 450
- R v GKA (1998) 99 A Crim R 491
- R v Howard (1992) 29 NSWLR 242
- R v Janceski [2005] NSWCCA 281
- R v RP [2016] NSWDC 10
- The Queen v Philip Lorkin 1995 WASC 543