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District Court 9 May 2024

R v Xrizantemo

[2024] NSWDC 185

Other
NOLLE PROSEQUI

Citation: R v Xrizantemo [2024] NSWDC 185
Court: District Court of New South Wales
Date: 9 May 2024
Judge(s): Buscombe DCJ

Background

The accused faced 24 counts on an indictment relating to Commonwealth offences, tried before a jury. During the Crown case, the trial judge ruled that the Crown's proposed expert witness, Mr Franklin, could not give evidence. The Crown had conceded in earlier submissions that without Mr Franklin's evidence, the Crown case would fail on every count and there would be no case fit to go to the jury.

Following that ruling, the Crown Prosecutor sought time to consult with the Commonwealth Director of Public Prosecutions (Commonwealth DPP). The Commonwealth DPP then declined to proceed further with the prosecution, with the Crown Prosecutor informing the court in terms that mirrored the language of section 9(4) of the Director of Public Prosecutions Act 1983 (Cth). The Deputy Director also handed up a signed notice of discontinuance.

The central dispute was whether the trial had ended at that point, or whether the court retained power to compel the Crown to close its case before the jury, with the inevitable consequence of directed not guilty verdicts on all counts.

Legal Issues

  • Whether the Commonwealth DPP's exercise of power under section 9(4) of the Director of Public Prosecutions Act 1983 (Cth) brought the trial to an immediate end.
  • Whether the court had power to require the Crown to close its case before the jury and, given the concession about the state of the evidence, to direct not guilty verdicts on all 24 counts.
  • Whether interstate intermediate appellate decisions permitting courts to refuse acceptance of a nolle prosequi in exceptional circumstances should be followed in a Commonwealth trial.

Decision

Issue 1: Whether the proceedings were at an end

The court held that the trial came to an end when the Crown Prosecutor informed the court that the Commonwealth DPP had declined to proceed further (at [13]). The court found that section 9(4) of the Commonwealth DPP Act is the source of the Director's power to do what is equivalent to entering a nolle prosequi (at [14]). This conclusion was supported by the High Court's joint judgment in Beckett v New South Wales [2013] HCA 17, which the court read as a firm indication that the section 9(4) power is equivalent to the Attorney-General's power to enter a nolle prosequi, noting the High Court's specific footnote reference to that provision (at [14]).

The court also found that the mandatory language in section 9(4), requiring discharge from custody upon the Director's decision to decline to proceed, was consistent with proceedings being at an end from that moment (at [15]). It followed that the court had no power to require the Crown to close its case in the jury's presence or to direct the jury to return not guilty verdicts (at [22]).

Issue 2: Whether interstate authority supported the court refusing to accept the direction

The accused's counsel submitted that decisions from other jurisdictions, including the South Australian Full Court in Question of Law Reserved on Acquittal (No.3 of 1995) and the ACT Supreme Court in R v YL, supported a residual power to reject a nolle prosequi in exceptional circumstances, particularly where a prosecution has no case. It was also submitted that, in the interests of uniformity for Commonwealth trials, those interstate decisions should carry greater weight than the NSW Court of Criminal Appeal decision in R v GKA (at [9]-[11]).

The court declined to follow those intermediate appellate decisions. It held that they predate Beckett and must be read in light of the High Court's statements in that case about the effect of a nolle prosequi on proceedings on an indictment (at [17]-[18]). A nolle prosequi ends proceedings on the current indictment without barring a fresh prosecution (at [16]).

Issue 3: Future proceedings

The court noted that any future prosecution arising from the same facts would be a matter for that court to consider, including whether it would constitute an abuse of process warranting a permanent stay (at [23]). The court also recorded its view that the Crown had failed to perceive what it described as a somewhat obvious element of the offences charged, and had attempted to adduce expert evidence to address it at a far too late stage in the trial (at [23]).

Orders Made

  • The trial concluded upon the Crown Prosecutor informing the court of the Director's direction to decline to proceed further with the prosecution.

Key Takeaways

  • Under section 9(4) of the Director of Public Prosecutions Act 1983 (Cth), the Commonwealth DPP's decision to decline to proceed further with an indictable prosecution is equivalent to the entry of a nolle prosequi, a conclusion the District Court drew from the High Court's joint judgment in Beckett v New South Wales [2013] HCA 17 (at [14]).
  • Once the court is informed of that decision, the proceedings on the indictment end immediately; the District Court held it had no power to compel the Crown to continue and no power to direct the jury to return not guilty verdicts (at [22]).
  • The mandatory discharge-from-custody language in section 9(4) reinforced this conclusion: it would be inconsistent, the court reasoned, for the Director to be required to discharge an accused from custody while the court simultaneously required the prosecution to continue (at [15]).
  • Interstate intermediate appellate decisions that recognised a residual court power to refuse acceptance of a nolle prosequi in exceptional circumstances were not followed, because those decisions predate Beckett and are, in the District Court's view, inconsistent with the High Court's statements on the effect of a nolle prosequi (at [17]-[18]).
  • A direction to decline to proceed does not permanently foreclose further prosecution; proceedings end on the current indictment only, leaving the question of any future prosecution, and any abuse of process argument arising from the circumstances of the concluded trial, to be dealt with by whatever court hears those proceedings (at [16], [23]).

Legislation and Cases Referenced

Legislation
- Director of Public Prosecutions Act 1983 ( Cth), s 9(4)
- Director of Public Prosecutions Act 1986 (NSW) , s 7(2)

Cases
- Beckett v New South Wales [2013] HCA 17
- Question of Law Reserved on Acquittal (No.3 of 1995) 66 SASR 450
- R v GKA (1998) 99 A Crim R 491
- R v SE & ORS [2022] NSWDC 712
- R v YL [2004] ACTSC 115