HIGH COURT OF AUSTRALIA
GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
AND
B RESPONDENT
Director of Public Prosecutions v B (A51-1997) [1998] HCA 45
23 July 1998
ORDER
Appeal allowed.
Set aside the order of the Full Court of the Supreme Court of South Australia answering the questions reserved by Mohr J under s 350 of the Criminal Law Consolidation Act 1935 (SA) and in lieu thereof order that it is inappropriate to answer either of the questions reserved.
On appeal from the Supreme Court of South Australia
Representation:
B M Selway QC (Solicitor-General for the State of South Australia) with R F Gray for the appellant (instructed by Director of Public Prosecutions, South Australia)
M L Abbott QC with J A English for the respondent (instructed by Legal
Services Commission of South Australia)
2.
Intervener:
J R McKechnie QC with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Director of Public Prosecutions v B
Criminal law – Practice and procedure – Prosecution attempted to enter nolle prosequi – Whether court has power to refuse to accept entry of nolle prosequi – Jurisdiction of Full Court of Supreme Court to answer questions reserved – Whether questions arose "at the trial" – Time at which criminal trial upon an information begins – No power to issue advisory opinion.
Words and phrases – "at the trial".
Criminal Law Consolidation Act 1935 (SA), ss 285A, 350.
GAUDRON, GUMMOW AND HAYNE JJ. On 28 November 1994, the respondent was arraigned before Judge Lowrie in the District Court of South Australia on an information alleging six counts of sexual offences against a young girl. He pleaded not guilty and his trial was adjourned to be heard at a date to be fixed. In July 1995 he applied for leave to elect for trial by judge alone but that application was adjourned for hearing by the trial judge at the commencement of the trial which was fixed for 11 July 1995. On 6 July 1995, the matter was transferred to the Supreme Court pursuant to s 110 of the Summary Procedure Act 1921 (SA).
On 10 July 1995, the day before the trial was fixed to begin, the matter was called on before the judge assigned to hear the trial (Mohr J). The application for leave to elect for trial by judge alone was not pursued. The proceeding was adjourned to 11 July 1995.
On that day, before the accused was arraigned, counsel for the prosecution told the judge there had been a problem contacting the complainant; neither the complainant nor her mother were present at court. The Crown, therefore, sought to have the matter taken from the trial list. This the judge refused. Counsel for the prosecution took instructions and then told the judge that she was instructed to enter a nolle prosequi. The judge replied:
"I am not prepared to accept a nolle prosequi in the circumstances of this case. I think the accused is entitled to a verdict."
The events that followed can be seen from the transcript of proceedings:
"MR NITSCHKE [then counsel for the respondent]: Your Honour has spoken, and that's simply my argument. It is improper for the Crown to come along and attempt to enter a nolle prosequi in such circumstances. I invite your Honour to see it as an abuse of the court's process to attempt to do so.
HIS HONOUR: You reopen your application of 28 June.
MR NITSCHKE: I do.HIS HONOUR: In the circumstances, I am prepared to accept your application. You elect for trial by judge alone.
MR NITSCHKE: Yes. Those papers have been filed on the certificates.
HIS HONOUR: I know that you withdrew it. I will give you leave to reinstate your application.
MR NITSCHKE: I reinstate those papers relating to the election that are on the file.
HIS HONOUR: I will grant that application.
PLEA: NOT GUILTY ALL COUNTSMISS McDONALD [then counsel for the Director of Public Prosecutions]: I tender no evidence.
HIS HONOUR: In those circumstances, the accused is found not guilty of all counts and is discharged."
The Director of Public Prosecutions asked Mohr J to reserve questions for consideration of the Full Court. That application was made relying on s 350 of the Criminal Law Consolidation Act 1935 (SA) and, in particular, sub‑s (1A). Section 350 provided at the time[1]:
[1]The provisions for reserving questions of law said to have arisen on a trial resulting in acquittal were amended by the Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA). Section 11 of that amending Act provided that the amendments do not apply to an information laid before the commencement of that Act (on 4 January 1996). The information in this matter was laid on 28 November 1994.
"(1) If on the trial or sentencing of any person convicted on information any question of difficulty in point of law or concerning the sentencing has arisen, it shall be lawful for the presiding judge in his discretion to reserve the question for the consideration and determination of the Full Court and to respite execution of the judgment or postpone judgment until the question has been considered and decided.
(1A) Where a person is tried on information and acquitted, the court shall, on the application of the Attorney‑General or the Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court.
(2) A case shall be stated as provided in section 351 –
(a) if the Full Court, on motion, makes a rule or order for that purpose, which rule or order the Full Court is hereby authorised to make;
(b) if the Full Court, on an appeal involving a question of law alone, so requires as hereinafter mentioned.
(3) Where a person has been convicted on information and a question of law has been reserved, or the Full Court has ordered a case to be stated, in relation to his trial or sentencing, the presiding judge may, in his discretion, commit the convicted person to gaol, or release him on recognizance of bail with one or two sufficient sureties and in such sum as the judge thinks fit, conditioned to appear at such time or times as the court directs, and receive judgment or render himself in execution, as the case may be."
The case stated, and the questions to be reserved, were prepared by the appellant and submitted to the primary judge. It is as well to set out much of that case stated:
"1. By Information filed by the Director of Public Prosecutions in the District Court of South Australia on the 28th November 1994, [the respondent, B] (the accused) appeared before me charged with one count of Indecent Assault, one count of Unlawful Sexual Intercourse with a Person Under 12, one count of Attempted Unlawful Sexual Intercourse and three counts of Unlawful Sexual Intercourse.
2. The particulars of the charges against the accused were as follows:
[There was then set out the text of the counts on the Information.]
3. The accused was first arraigned in the District Court of South Australia on the 28th November 1994.
4. The trial of the accused was listed to commence on the 10th July 1995[2]. On this date I was notified by the prosecutor of the non‑attendance of the alleged victim and her mother.
5. An application was made by the prosecutor to have the matter taken from the trial list. I refused this application.
6. The prosecutor then entered a nolle prosequi on behalf of the Director of Public Prosecutions[3]. I refused to accept the nolle prosequi.
7. I then invited counsel for the accused to make an application for trial by judge alone. Such an application was made and I granted the accused a trial by judge alone.
8. The accused was then re‑arraigned before me and pleaded not guilty to all of the counts on the Information before the court. I invited the prosecution to tender no evidence. The prosecutor adopted this course.
9. I found the accused not guilty of all of the counts on the Information.
10. Pursuant to s 350(1A) of the Criminal Law Consolidation Act, 1935, I now reserve for the consideration of the Full Court the following questions of law:
(1)Do I have the power to refuse to accept a nolle prosequi entered by the Director of Public Prosecutions, and
(2)If the answer to the first question is yes, are there any limitations to the exercise of that power."
[2]The notes on the back of the Information suggest that this date may be wrong but nothing turns on it.
[3]Whether a nolle prosequi was entered may be open to doubt. Certainly the prosecutor attempted to do so but, as the next sentence in the case records, the judge refused to accept it.
The Full Court held[4] that the questions should both be answered "Yes". Debelle J examined the history in this country, and elsewhere, of the entry of a nolle prosequi by the Attorney‑General and, more recently, by Directors of Public Prosecutions pursuant to powers conferred on them by statute[5]. He concluded that although the Court may not review the prerogative power of the Attorney‑General to enter a nolle prosequi[6], the Court does have power to refuse to permit the entry of a nolle prosequi whether by the Attorney‑General or by the Director of Public Prosecutions[7]. Mullighan J was of the opinion that the Court had power to refuse to accept a nolle prosequi and that it ought do so if to accept it would defeat the expectation of parties, court and community that a trial would proceed to a conclusion on its merits[8]. Nyland J agreed with Debelle J and Mullighan J[9]. The Director of Public Prosecutions now appeals by special leave.
[4]Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450.
[5]In South Australia, the Director of Public Prosecutions Act 1991, s 7(1)(e).
[6](1996) 66 SASR 450 at 459, 472.
[7](1996) 66 SASR 450 at 472.
[8](1996) 66 SASR 450 at 451-452.
[9](1996) 66 SASR 450 at 473.
We consider that it is necessary to begin by examining whether there was power to reserve the questions which were reserved by Mohr J for consideration by the Full Court. In particular, are the questions that were reserved questions of law which arose at the trial of the respondent? If they are not, it would follow that s 350(1A) did not authorise the reservation of those questions for the consideration of the Full Court and that the Full Court should not have answered them. These issues were not debated in the Full Court and were raised in the course of the appeal to this Court only as a result of interventions by the Court in the course of argument. They are, however, issues which cannot be swept aside. During the argument leave was given to present written submissions on these issues.
It must now be accepted that the answers to questions reserved for consideration after an acquittal may be the subject of appeal to this Court. Why that is so casts light on whether there was power to reserve the questions that were reserved here.
In Mellifont v Attorney‑General (Q)[10] it was held that the opinion of the Court of Criminal Appeal in Queensland on a point of law referred under s 669A of the Criminal Code (Q) was a judgment decree or order within s 73 of the Constitution from which an appeal might be brought to the High Court[11]. The Court overruled Saffron v The Queen[12]. In Mellifont the trial judge had ruled that evidence which the accused had given to a Royal Commission was evidence which was not material to the enquiries of that Commission. Before the judge was able to direct the jury to return a verdict of not guilty to the charge of perjury brought against the accused, the prosecutor entered a nolle prosequi and, accordingly, the accused was discharged. The Attorney‑General then referred a number of questions to the Court of Criminal Appeal including whether the trial judge's test of materiality was correct. The Crown told the accused that if the questions which were referred were answered in the sense contended for by the Attorney‑General a fresh indictment would be presented against him. The majority in Mellifont said expressly that they did not rely upon this fact in concluding that the decision of the Court of Criminal Appeal was a judgment decree or order within s 73 of the Constitution[13].
[10](1991) 173 CLR 289.
[11](1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 327 per Toohey J; cf Brennan J at 319.
[12](1953) 88 CLR 523.
[13](1991) 173 CLR 289 at 306 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 326 per Toohey J.
It is, however, important for present purposes to note that central to the reasoning of the majority was the conclusion that proceedings under s 669A(2) of the Criminal Code (Q) enabled the Court of Criminal Appeal to correct an error of law that was made at the trial and that the Court of Criminal Appeal's decision was a decision made with respect to a "matter" which was the subject‑matter of the legal proceedings at first instance[14]. It was that characteristic which was identified as stamping the proceedings as an exercise of judicial power and the decision as a judgment decree or order within s 73. Thus it was the relationship between the question reserved and the trial which was critical to the conclusion reached.
[14](1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 325-326 per Toohey J.
The questions reserved in this case were cast in very general terms, apparently unrelated to any facts, not even the facts in the case stated. That the questions were so general is, itself, a strong indication that they did not arise at any trial. Whether a particular power should be exercised in a particular way may well arise at a trial and although that might require consideration of whether power of the kind in question does exist, the question which arises at trial will, at least ordinarily, not be that broad and general question - "does the power exist?" - it will usually be whether the alleged power can be exercised in the circumstances arising at the trial. The failure to connect the questions with the facts stated in the case might be seen as some drafting defect that should not be permitted to impede the resolution of the questions. But the generality of the questions that were referred is not simply a defect in drafting. It is a symptom of a more deep‑seated problem.
The difficulties in the case stated procedure, whether the case is stated in a criminal or civil matter or, if in a criminal matter, whether stated at the instance of the prosecution or defence, are well known[15]. At least some of those difficulties stem from a failure to recognise that the jurisdiction is not conferred to permit courts to offer general advisory opinions on hypothetical questions[16]. The questions reserved in this matter appear to invite such an opinion.
[15]See, eg, Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 per Isaacs J; Dickson v Commissioner of Taxation (NSW) (1925) 36 CLR 489 at 497 per Isaacs J; R v Rigby (1956) 100 CLR 146 at 151-153 per Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ; KLDE Pty Ltd v Commissioner of Stamp Duties (Q) (1984) 155 CLR 288 at 304-305 per Brennan J; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 460-461, 482-484; Woolf v City of Camberwell [1931] VLR 162; City of Hawthorn v Victorian Welfare Association [1970] VR 205; Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780.
[16]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.
No doubt, if the first question reserved for the consideration of the Full Court in this matter could properly be answered no (as the appellant submitted it should be) it would be apparent that steps taken by the primary judge in this proceeding were ill‑founded. In that sense it may be said that a negative answer to the first question would answer a question or questions which fell for decision in this proceeding. But if the first question was answered correctly by the Full Court (when it held that the Court has power to refuse to accept a nolle prosequi) two things can be observed. First, if there is power to refuse to accept a nolle prosequi, the existence of that power would have been of significance to the course of events before Mohr J only if the power was one which could be exercised in circumstances of the kind that arose in that case. Secondly, as the second question reserved reveals, unless that question was to be answered "no", the Court was invited to embark upon an attempt to define the boundaries within which the power to refuse to accept a nolle prosequi might properly be exercised or to give as it did such a general answer as to be devoid of any practical utility. On no view, however, did the question of defining the boundaries of the discretion arise at the trial of the respondent. And yet that is what the second question asks: "... are there any limitations to the exercise of that power?"
These are reasons enough to suggest that the questions reserved for consideration by the Full Court should not have been answered. But there is another, equally fundamental reason why that is so.
The appellant accepted that the trial of the respondent had not begun when Mohr J refused to accept the nolle prosequi. He contended that in South Australia, unlike some other States, a criminal trial upon an information commences when the judge who is to try the accused embarks upon the hearing and determination of any preliminary questions, or upon the empanelling of the jury, the accused having already been arraigned before that judge. The Criminal Law Consolidation Act empowers "[a] court before which a person has been arraigned ... if it thinks fit, [to] hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled."[17] In Attorney-General's Reference No 1 of 1988[18], King CJ (with whom Millhouse J agreed) held that[19]:
"The 'court' referred to in the section [s 285A] is not the court as an institution, but the particular court constituted of the judge who is sitting to try the case. The arraignment is not the first arraignment at which the accused pleads but the process by which the accused is arraigned before the trial judge at the commencement of the trial."
He further held that[20]:
"In this State, therefore, the trial commences when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury."
[17]s 285A.
[18](1988) 49 SASR 1.
[19](1988) 49 SASR 1 at 5.
[20](1988) 49 SASR 1 at 5-6.
This may be contrasted with the position in other States. Thus, to take one example from the decisions of this Court, it was held in Newell v The King[21] that a trial in Tasmania commenced on the date of the accused's first arraignment before the Court, s 351(6) of the Criminal Code (Tas) providing that: "The trial shall be deemed to begin when the accused is called upon to plead."[22] There is no equivalent provision in South Australia.
[21](1936) 55 CLR 707.
[22]cf Crimes Act 1900 (NSW), s 395; Crimes Act 1958 (Vic), s 391; Criminal Code (Q), s 594; R v Talia [1996] 1 VR 462 at 470-476; Bond (1992) 62 A Crim R 383 at 394-395; R v His Honour Judge Noud, ex parte MacNamara [1991] 2 Qd R 86 at 99-100.
It may be that the answer to the question - when does the trial begin - requires consideration of the context within which that question arises[23] and does not admit of an answer of the generality given in Attorney‑General's Reference No 1 of 1988[24]. We need not decide if that is so. Here we have no doubt that the appellant was right to concede that the respondent's trial had not begun when the primary judge refused to accept the nolle prosequi. It was only after the judge had declined to receive the nolle prosequi that the accused was arraigned before him. Only then did the trial begin. The short debate that took place about the entry of a nolle prosequi took place before the trial began and was not resolved under the powers given by s 285A as a question of law affecting the conduct of the trial, before the jury was empanelled. That power is predicated upon the accused having been arraigned and the respondent had not then been arraigned before Mohr J (or, indeed, in the Supreme Court).
[23]cf R v Howard (1992) 29 NSWLR 242 at 246-250; R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Symons [1981] VR 297; R v Talia [1996] 1 VR 462 at 470-476.
[24](1988) 49 SASR 1.
The conclusion that the refusal to accept entry of a nolle prosequi took place before the trial began suggests, and, to our mind, suggests strongly, that any question about that refusal was not a question arising "at the trial". The appellant submitted, however, that we should, nevertheless, conclude that a question about the power to reject a nolle prosequi was a question which had arisen at the trial because, although no such submission was made at trial, it would have been open to the prosecutor to have contended that the Court lacked jurisdiction to embark upon the trial as it did, a nolle prosequi having already been validly entered.
It may be that there are circumstances in which it may be said that a question arises at a trial even though it is not the subject of submissions in the course of that trial. So much was held in R v Brown[25] and R v Turnbull[26]. But the question which it was sought to agitate in the Full Court and in this Court was not whether the primary judge lacked jurisdiction to try the case; it was whether the primary judge was right to reject the nolle prosequi. Those two questions are very different. Even if the answer to one may depend upon, or be affected by, the answer which is given to the other, that does not mean that the questions which in fact were referred to the Full Court are questions which arose at the trial.
[25](1889) 24 QBD 357 at 360 per Lord Coleridge CJ.
[26][1907] VLR 11 at 14 per Cussen J; see also R v Mellor (1858) 7 Cox CC 454.
The time at which the question arose is no mere matter of form. It reflects a point of fundamental significance. The trial of the accused not having begun, could the Director of Public Prosecutions refuse to proceed with the prosecution by filing a nolle prosequi?
The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance. As was said in Maxwell v The Queen[27]:
"It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute[28], to enter a nolle prosequi[29], to proceed ex officio[30], whether or not to present evidence[31] and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted[32]. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what[33]."
[27](1996) 184 CLR 501 at 534 per Gaudron and Gummow JJ; see also at 513-514 per Dawson and McHugh JJ.
[28]See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen (1980) 147 CLR 75 at 94-95, 110.
[29]See R v Allen (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen (1980) 147 CLR 75 at 90-91.
[30]See Barton v The Queen (1980) 147 CLR 75 at 92-93, 104, 107, 109.
[31]See, eg, R v Apostilides (1984) 154 CLR 563 at 575.
[32]See McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605.
[33]Barton v The Queen (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54 per Brennan J, 77-78 per Gaudron J; Williams v Spautz (1992) 174 CLR 509 at 548 per Deane J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J.
The accused's trial not having begun and the decision being a decision about whether to continue a prosecution, the question whether to do so was a matter which fell within the province of the executive. It was not a question which arose at the trial of an accused. And the trial not having begun, no question could arise whether the entry of a nolle prosequi constituted an abuse of process. Other considerations may have arisen (we do not say they would) if the question had been one relating to the continuation of a trial that had already begun or had been whether prosecution of a fresh information amounted to some abuse of process. But those questions did not arise here.
It was suggested, in argument, that the power of the Director of Public Prosecutions to enter a nolle prosequi was a power that could be exercised only (as s 7(1)(e) of the Director of Public Prosecutions Act 1991 (SA) says) "in appropriate cases" and that accordingly the primary judge's decision to reject the nolle prosequi could be founded in the supervisory jurisdiction of the Supreme Court of South Australia by way of judicial review. We say nothing about whether s 7(1)(e) does limit the power of the Director to enter a nolle prosequi or about whether judicial proceedings could be brought to control the exercise of that power. If the decision of the primary judge is properly characterised as an exercise of power of judicial review it would clearly not be a decision of a question arising at the trial of the respondent.
In our view, the questions reserved did not arise at the trial of the respondent. It follows that there was no power to reserve them for the consideration of a Full Court.
It also follows that this Court should not, and indeed cannot, accept the invitation proffered by the appellant to express its opinion upon the issues which it was sought to agitate by the case stated. To do so would be to deliver an advisory opinion and that, of course, is beyond the power of this Court whether in its appellate or its original jurisdiction[34].
[34]In re Judiciary and Navigation Acts (1921) 29 CLR 257; Mellifont v Attorney‑General (Q) (1991) 173 CLR 289 at 300, 303, 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ, 314, 316-319 per Brennan J; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612 per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ, 642 per McHugh J.
The appeal should be allowed, the orders of the Full Court answering the questions reserved should be set aside and in lieu orders made that it is inappropriate to answer either of the questions reserved. It is unnecessary to provide for the costs of the appeal, the appellant being liable for them in any event[35].
[35]Criminal Law Consolidation Act 1935 (SA), s 351B.
McHUGH J. In this appeal from a decision of the Full Court of the Supreme Court of South Australia the appellant, the Director of Public Prosecutions for the State of South Australia ("the DPP"), asks this Court to determine whether a court has the power to refuse to accept a nolle prosequi entered, or sought to be entered, by or on behalf of the Crown. The DPP contends that the decision to enter a nolle prosequi is a long-standing Crown prerogative that is beyond the reach of judicial review. The respondent, who was acquitted after a trial judge refused to accept the entry of a nolle prosequi, argues that the power to refuse to accept a nolle prosequi is an incident of a court's inherent power to protect its processes from abuse.
Regrettably, the question that the DPP raises cannot be answered in the present appeal: the trial judge did not have jurisdiction to reserve the relevant questions of law for consideration by the Full Court of the Supreme Court under ss 350(1a) and 351 of the Criminal Law Consolidation Act 1935 (SA) ("the Act"), as it then stood. This is because the suggested questions did not arise "at the trial" of the respondent as required by s 350(1a). Consequently, neither the Full Court nor this Court had or has jurisdiction to determine the questions reserved.
The history of the litigation
The respondent, identified only as B, was charged with a number of sexual offences against a nine year old girl. B was arraigned in the District Court of South Australia on 28 November 1994. His trial was listed to commence in the Supreme Court of South Australia on 10 July 1995 before Mohr J. However, before B had been arraigned before Mohr J, counsel for the DPP applied to have the matter taken from the list because two important Crown witnesses were unavailable to testify. His Honour refused the application and counsel for the DPP then sought to enter a nolle prosequi. Mohr J refused to accept the nolle prosequi.
Mohr J then invited B's counsel to apply for a trial by judge alone. The application was made and granted. B was arraigned before Mohr J and pleaded not guilty to all the counts on the information. At his Honour's suggestion, the prosecution tendered no evidence. His Honour found B not guilty on all of the counts. On the DPP's application under s 350(1a) of the Act, his Honour reserved for the consideration of the Full Court the following two questions of law:
(i) Do I have the power to refuse to accept a nolle prosequi entered by the Director of Public Prosecutions?; and
(ii) If the answer to the first question is yes, are there any limitations on the exercise of that power?
The Court of Criminal Appeal of the Supreme Court of South Australia (Debelle, Mullighan and Nyland JJ) answered the two questions: "Yes" and "Yes"[36]. Their Honours do not appear to have considered the question whether the trial judge had jurisdiction to reserve the two questions of law for consideration by the Full Court.
The trial judge did not have jurisdiction to reserve the two questions of law for consideration by the Full Court
[36]Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450.
At all material times, s 350(1a) of the Act provided[37]:
"Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court."
Section 351(1) provided:
"In any of the cases referred to in section 350, the presiding judge shall state a case setting forth the question reserved, with the circumstances on which it has arisen, and shall sign the case and transmit it within a reasonable time to the Full Court."
[37]Section 348 defined "Full Court" as meaning "the Supreme Court constituted of an uneven number of judges, not being less than three".
In the present case, Mohr J had jurisdiction to reserve the two questions of law only if they were questions "arising at the trial". However, no "trial" had begun when Mohr J purported to reject the entry of the nolle prosequi. At that time, the respondent had not been arraigned before Mohr J. In South Australia, the trial of an accused does not commence before the accused is arraigned before the judge who will hear or preside at the trial of the indictment. As King CJ (with whom Millhouse J agreed) said in Attorney-General's Reference No 1 of 1988[38]:
"In this State … the trial commences when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury."
[38](1988) 49 SASR 1 at 5-6.
The reasoning of King CJ applies to the facts of this case and shows that there was no trial in progress when Mohr J decided to refuse to accept the entry of the nolle prosequi. Indeed, the DPP concedes that the trial had not commenced when Mohr J purported to reject the nolle prosequi. Notwithstanding this concession, the DPP contends that the question of whether the trial judge had power to reject the nolle prosequi was "a question which arose at the trial" because counsel could have maintained an objection to the rejection of the nolle prosequi after the trial had properly commenced. This argument must be rejected.
The question must arise "at the trial", not "in relation to" or "in respect of" the trial. One reason for the restrictive language of s 350 may have been a legislative desire to avoid valuable appellate court time being spent in providing opinions on the validity of pre-trial tactical manoeuvres. Whatever the reason, it would be a misuse of language to describe a prosecutorial act that sought to prevent a trial commencing as one that arose at the trial. Mohr J, therefore, did not have jurisdiction to reserve the two questions of law because they did not arise at the trial of the respondent.
Accordingly, the Full Court had no jurisdiction to answer the questions reserved. The appeal to this Court must be allowed, and the answers given by the Full Court set aside. The two questions reserved should both be answered: "no jurisdiction to answer".
KIRBY J. This appeal from orders of the Supreme Court of South Australia[39] presents a number of questions of substance and of jurisdiction.
[39](1996) 66 SASR 450.
The most important of the points of substance is whether, and if so in what circumstances, a judge may decline to accept the entry of a nolle prosequi[40] by the Director of Public Prosecutions. On the way to the resolution of that question, which attracted special leave to appeal, lies a thicket of jurisdictional problems. None of them arose in the courts below. Congenial though it would be to be spared the obligation of resolving the point of substance (which is not without difficulty), I cannot do so for I am unconvinced by the suggested jurisdictional defects. Lurking in the background, beyond the thicket and the points of substance and jurisdiction, stand certain constitutional questions, the majority of them raised in defence of the judgment of the Supreme Court.
[40] Broome v Chenoweth (1946) 73 CLR 583 at 599 per Dixon J; cf Davis v Gell (1924) 35 CLR 275 at 287.
Nolle prosequi refused: case stated
The facts could not be simpler. The complainant, whose evidence against the respondent, B, was essential to the prosecution case, failed to attend to give evidence at his trial. The primary judge[41] declined, in effect, to grant an adjournment. Prosecuting counsel thereupon announced instructions to enter a nolle prosequi. The judge declined "in the circumstances" to accept it. The respondent elected for trial by judge alone. That application was granted. He was "rearraigned" and pleaded not guilty to all counts. The prosecutor tendered no evidence. The judge found him not guilty on all counts and discharged him. At the request of the Director of Public Prosecutions for South Australia (the appellant) the judge stated a case which was heard and determined by the Full Court of the Supreme Court, sitting as the Court of Criminal Appeal.
[41]Mohr J.
The stated case and the meagre transcript will not be repeated. Relevant passages appear in the reasons of Gaudron, Gummow and Hayne JJ. It is perhaps worth noting that the Court file, which is reproduced in the appeal papers, and to which reference was made without objection, explains the statement that the respondent was "rearraigned". The file shows that the venue for the trial was initially laid in the District Court of South Australia. The proceedings came before Lowrie DCJ on 28 November 1994. According to the file note, signed by the Clerk of Arraigns, the respondent was arraigned on that day "on all six counts". He pleaded not guilty. Thereafter there were further mentions for procedural orders. On 24 March 1995, Jennings DCJ remanded the respondent for trial on 11 July 1995. On 3 July 1995 an application out of time by the respondent for leave to elect for trial by judge alone was stood over to be heard at the commencement of the trial. On 6 July 1995, the proceedings were transferred to the Supreme Court by judicial order[42]. The trial was called on before the primary judge on 10 July 1995. It was then that the prosecutor first notified a difficulty in securing the attendance of the complainant. On 11 July 1995 the trial was listed for hearing. The several interlocutory proceedings noted on the file are not atypical of the preliminary hearings in Australian criminal courts today. Such hearings did not previously take place. However, they are now a regular feature of the criminal trial process in most, if not all, parts of Australia.
[42]Pursuant to the Summary Procedure Act 1921 (SA), s 110.
In the course of explaining the Crown's request that the trial be adjourned, the prosecutor stated "unfortunately up until now the Crown has relied on the mother to contact the alleged victim". The prosecutor made reference to the fact that "charges were withdrawn on the previous occasion" and to a statement from the complainant asking that the charges not be proceeded with.
Clearly enough, if the prosecutor had an uncontrolled power to enter a nolle prosequi and thereby to terminate the proceedings on the indictment (as the appellant submits), the primary judge's refusal to adjourn or otherwise stop the trial, and his expressed belief that the respondent was "entitled to have his trial proceed" would be put at naught. The judge (and the respondent) did not accept that outcome. The trial took the course described. The appellant's response was to ask for a case to be stated. This was not done at the trial by reservation there of a question of law[43]. The statutory provision as then appearing, under which the appellant sought and obtained the statement of the case, read[44]:
"Where a person is tried on information and acquitted, the court shall, on the application of the ... Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court."
[43] Criminal Law Consolidation Act 1935 (SA), s 350. Sections 350 and 351 were subsequently repealed by the Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA), ss 4 and 5. The 1995 amendments do not apply to the present proceedings.
[44]Criminal Law Consolidation Act 1935 (SA), s 350(1a).
The duty of the judge to state a case arose under s 351 of the Criminal Law Consolidation Act 1935 (SA) ("the Act") but only "[i]n any of the cases referred to in section 350". By s 351(2a), in a case where the accused has been acquitted but a question of law is reserved, it is provided that "the Full Court shall have authority to hear and finally determine the question reserved, but the determination of the Full Court shall not invalidate or otherwise affect the acquittal". In such cases, where there might otherwise be no contradictor, the appellant is declared to be "liable to pay the taxed costs of the defendant in proceedings relating to the reservation and determination of the question of law"[45]. If the defendant does not appear, the Director "shall instruct counsel to present such argument to the Court as might have been presented by counsel for the defendant"[46]. The procedure of the stated case, being a relic of times before the enactment of general facilities of appeal, has many artificialities and rigidities to which judges have drawn attention[47].
[45]Criminal Law Consolidation Act 1935 (SA), s 351(2b).
[46]Criminal Law Consolidation Act 1935 (SA), s 351(2b).
[47] See eg Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381; Connor v Pittaway [1969] VR 335 at 337; R v Douglas; Ex parte Attorney-General [1991] 1 Qd R 386 at 386.
Having received the stated case, the Full Court heard and determined the questions reserved. It "determine[d] and answer[ed]" the questions by orders subsequently filed and signed on behalf of the Court by the Deputy Registrar. To question number 1 ("Do I have the power to refuse to accept a nolle prosequi entered by the Director of Public Prosecutions?"), the Court gave the answer "Yes". To question number 2 ("If the answer to question 1 is yes, are there any limitations to the exercise of that power?"), the Court also gave the answer "Yes". In the course of the reasons of the judges constituting the Full Court (although not in its order), various limitations on the exercise of the power were suggested. Some of these were expressed affirmatively ("whether there has been an abuse of process"[48], whether required by the "principles of fairness and justice"[49]). Some were expressed negatively to emphasise that a refusal to accept a nolle prosequi "does not involve a review of the decision of the Director of Public Prosecutions to enter [it]"[50]. All judges in the Full Court agreed that the
refusal would be reserved to "rare"[51], "extreme"[52] or "exceptional"[53] cases, including to "prevent oppression or injustice"[54]. In many cases, they suggested, it would be proper to leave the question of the risk of abuse of process to be dealt with by a different court in the event (which might not ensue) that proceedings against the accused were revived[55].[48](1996) 66 SASR 450 at 473.
[49](1996) 66 SASR 450 at 452.
[50](1996) 66 SASR 450 at 451. See also at 472.
[51](1996) 66 SASR 450 at 453, 465.
[52] (1996) 66 SASR 450 at 465, quoting from R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 53.
[53](1996) 66 SASR 450 at 453, 462.
[54](1996) 66 SASR 450 at 453. See also at 462.
[55] (1996) 66 SASR 450 at 470 where Debelle J conceded that there was a "good deal of force" in the opinion of Murray J to this effect in R v Lorkin (1995) 15 WAR 499 at 535.
Both before the Full Court and in this Court, the appellant argued that this approach was fundamentally misconceived. So were the decisions in Queensland[56], Western Australia[57] and the suggestions in South Australia[58] along similar lines. According to the appellant, legal history, an appreciation of criminal procedure, the proper role of the courts in relation to prosecutions and legal principle dictated a return to the earlier doctrine by which courts, both in England[59] and Australia[60] acknowledged that they had no power to "decline to accept" a nolle prosequi tendered by the prosecutor appearing in the interests of the Crown. Once such tender was made, such proceedings were brought to an end. The court's jurisdiction to do anything but discharge the accused was terminated[61].
[56] R v Saunders [1983] 2 Qd R 270; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48; R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35; McDermott, "Nolle Prosequi - The Law and Practice in Queensland" (1993) 17 Criminal Law Journal 319.
[57]R v Lorkin (1995) 15 WAR 499.
[58]Rona v District Court (SA) (1995) 63 SASR 223 at 228-229.
[59]R v Comptroller-General of Patents [1899] 1 QB 909 at 914.
[60] Gilchrist v Gardner (1891) 12 NSWR 184 at 186-187; Williams v The Queen [1936] QWN 3; Kokles v The Queen [1936] QWN 22; R v Carnes (noted in [1976] Tas SR (NC) 1, but on this point see the unreported reasons for judgment: Supreme Court of Tasmania, 12 February 1976); R v Heald [1979] Tas R 185; R v Judge CF McLoughlin and Cooney [1988] 1 Qd R 464 at 468; cf R v Economou (1989) 51 SASR 421.
[61]R v Lorkin (1995) 15 WAR 499 at 535 per Murray J (diss).
Issues arising
The following issues arise in the appeal. The first two of them were not raised by the parties or the intervener[62] but by questioning directed to the parties by the Court:
1.The foundation of jurisdiction point: Did the questions of law, purportedly included in the case stated, arise "at the trial" of the respondent so as to enliven the power of the Full Court to consider and determine those questions (and thus of this Court to hear an appeal from its orders)?
2.The jurisdiction points: If so, was the appeal to this Court otherwise beyond jurisdiction upon the ground that it (a) was not from a judgment, decree, order or sentence of the Supreme Court of a State within s 73(ii) of the Constitution[63]; (b) invoked the exercise of non-judicial power by the Court, whether in the provision of an advisory opinion or otherwise[64]; or (c) presented for determination a question in which the respondent had no real interest and which was wholly hypothetical.
3.The deprivation of jurisdiction point: Upon the announcement by the prosecutor that the appellant entered a nolle prosequi in respect of the indictment charging the respondent with certain offences did the court conducting the trial lose jurisdiction to make any order save for the discharge of the respondent upon that indictment?
4.Refusal of nolle prosequi point: If not, was it within the power of the primary judge, either as a matter of the procedures followed or as a substantive matter of law, to decline to accept the nolle prosequi whether upon the ground of protecting the court from abuse of process or to prevent oppression and injustice to an accused or otherwise?
5.The judicial review point: Was the challenge to the exercise by the appellant of his statutory discretion "to enter a nolle prosequi ... in appropriate cases"[65] susceptible to judicial review and, if so, was the procedure which took place before the primary judge, and the power which he purported to exercise explicable as an instance of judicial review?
6.The constitutional point: If, on its true construction, the Director of Public Prosecutions Act 1991 (SA) ("the DPP Act") conferred on the appellant a power to enter a nolle prosequi which could not be refused by the court to which it was presented although it amounted to an abuse of process, was the section conferring such power invalid as a purported diminution of the power of the court to operate as a court within the meaning of Ch III of the Australian Constitution? Or was it invalid to the extent that would otherwise bring the court into disrepute by leaving it powerless to prevent an abuse of process?
7.The form of the questions point: Having regard to the determination of the foregoing points were the questions reserved in the case stated otherwise so objectionable in form that this Court should decline to answer them?
[62]The State of Western Australia.
[63]cf Mellifont v Attorney-General (Q) (1991) 173 CLR 289.
[64] Saffron v The Queen (1953) 88 CLR 523 at 524; President of India v The Moor Line Ltd [No 2] (1958) 99 CLR 212.
[65]Director of Public Prosecutions Act 1991 (SA), s 7(1)(e).
Common ground
Having regard to the number and complexity of the points argued, it could easily be inferred that there was little common ground in the appeal. However, at least as between the parties, there was a great measure of agreement. Essentially, each of them came to the Court anticipating that they would be arguing the refusal of the nolle prosequi point with occasional incursions into the deprivation of jurisdiction point (raised by the appellant) and the judicial review point and, if need be, the constitutional point (raised defensively for the respondent). As it turned out, much of the oral argument was addressed to questions from the Court on the preliminary points of jurisdiction and on the final point as to the form of the questions contained in the case stated.
It is worth recording the matters which represented the common ground of the parties:
1.There was no relevant dispute about the facts. Nor did either party contest the entitlement of this Court to go beyond the stated case to the recorded transcript of proceedings before the primary judge or the notations on the Court file in order to understand the case stated[66].
2.Although the conduct of interlocutory proceedings prior to the "rearraignment" of the respondent was uncontested, neither party suggested that any special statutory provisions under which such "pre-trial" proceedings are heard in South Australia threw any light upon the meaning of the phrase "at the trial" in s 350(1a) of the Act as it then stood. I am content to proceed on that assumption.
3.A number of concessions were made for the appellant which became common ground:
(a) that under the law of this country, a court has jurisdiction to protect itself (and those who invoke its process) against abuse of the process of the court. The appellant contended that this jurisdiction continued only during the conduct of a trial and not after the trial was concluded, as he submitted had happened in this case, by the entry of a nolle prosequi;
(b) that a court would have jurisdiction to stay subsequent proceedings, brought after entry of a nolle prosequi, where a revival of a prosecution of an accused in such proceedings would, in the circumstances, amount to an abuse of the court's process; and
(c) that the entry of the nolle prosequi in this case had not been made by the Attorney-General or by the appellant pursuant to any prerogative power but solely pursuant to the DPP Act and in terms of the statutory power there conferred upon the appellant[67].
4.For the respondent, who relied upon the power of the primary judge, as a judge of the Supreme Court, to review the lawfulness of the prosecutor's decision to enter the proffered nolle prosequi, it was eventually accepted that the procedures for judicial review of that decision, required by the Rules of the Supreme Court of South Australia, had not been followed[68]. The parties usual to proceedings for judicial review of such decisions were not given notice. However, it was suggested that this did not matter in the context of a collateral attack on the legality of the appellant's decision, at least in a trial conducted in the Supreme Court where the legality of the decision was critical to the proceedings[69].
5.It was accepted by both sides that differing views might be held, as a matter of fact, about the correctness of the response of the primary judge to the circumstances which had arisen before him. Reservations in this regard were noted in the Full Court. Mullighan J expressly stated that "the resolution of the issues raised by this case stated [should not be] interpreted as approval by this Court of the manner in which the learned trial judge exercised his discretion"[70]. However, whether because that issue was taken to raise only a question of fact or otherwise, it was not argued before the Full Court. Nor was it contested in this Court. The matter proceeded on the footing that the tender of the nolle prosequi was either itself an abuse of process, or the first step in an abuse of process, as the primary judge concluded. The question then presented was whether, in such circumstances, there was nothing which the primary judge could do but accept the entry of the nolle prosequi or whether the judge was entitled to refuse to accept it and to require that the trial proceed.
[66]cf Thomas v The King (1937) 59 CLR 279 at 286.
[67] Barton v The Queen (1980) 147 CLR 75 at 90; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 219-221; CCSU v Minister for the Civil Service [1985] AC 374 at 417-418.
[68]Supreme Court Rules 1987 (SA), r 98.
[69]cf Ousley v The Queen (1997) 71 ALJR 1548 at 1590; 148 ALR 510 at 567.
[70](1996) 66 SASR 450 at 452.
Foundation of jurisdiction point
It is logical to deal first with the suggestion that s 350(1a) of the Act was not engaged so as to authorise the reservation of the purported questions of law or the consideration and determination of them by the Full Court or by this Court. This was an objection raised by members of the Court. It is the first duty of every court, where a doubt has arisen, to satisfy itself as to its own jurisdiction before entering into the exercise of it[71].
[71] See R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 382.
The resolution of the point turns on the phrase "arising at the trial" appearing in s 350(1a). If a narrow construction of that phrase is adopted, the "trial" of the respondent did not commence until his "rearraignment". As the purported refusal to accept the nolle prosequi occurred before the rearraignment, it is arguable that any question of law relating to the primary judge's power to so refuse was not one "arising at the trial". Instead, it was one arising immediately before the trial commenced. This is the construction of the section which enjoys the support of the majority. Respectfully, I disagree. My reasons are as follows:
1.As with any phrase in legislation, that in question here must be given a meaning in the context of the Act and for the purposes of achieving the statutory objectives[72]. Introducing in the Legislative Council the legislation that inserted s 350(1a)[73], the South Australian Attorney-General stated that[74]:
[72] Newcastle CC v GIO General Ltd (1997) 72 ALJR 97 at 110-111; 149 ALR 623 at 639-640.
[73]Criminal Law Consolidation Act Amendment Act 1980 (SA), s 6.
[74] South Australia, Legislative Council, Parliamentary Debates (Hansard), 5 August 1980 at 39.
"The amendment, as proposed by the Bill, will enable the Crown to exercise a responsible role in building up a coherent and consistent body of criminal law, without prejudicing decisions made by juries in favour of accused persons."
When the legislation was read a second time in the House of Assembly, the government expressed the view that the amendment would allow the same issues to be canvassed as in an appeal by the accused[75]:
"[I]t acknowledges that just as in the case of the trial of an accused who is found guilty, there may be errors of law in summing up of the trial judge or other matters which deserve consideration by the Full Court or other appeal courts, in the same way such considerations may arise when an accused person is acquitted ... while the accused person should certainly not again be put at risk, the Crown should be given the opportunity in some way to have the disputed matters of law dealt with by an appeal. So, it was said that it could be done in the way proposed."
Section 350(1a) is a beneficial procedure, adopted by Parliament to permit courts to give "authoritative decisions on questions of criminal law for the better administration of justice"[76]. A narrow construction of "arising at the trial" in the sub-section would frustrate the achievement of that purpose. Such a construction should therefore be avoided. The fact that the question of law reserved on the application of the appellant did not strike either the primary judge or the Full Court as falling outside the ambit of "the trial" is not, of course, determinative. Oversights can occur, even in such a fundamental matter as jurisdiction. But the approach taken by their Honours is open unless there is imposed on s 350(1a) of the Act a jurisprudence concerning the commencement of "the trial" which was developed for quite different purposes than those which s 350(1a) was designed to advance. The procedures of stated cases have been notoriously technical. They have presented many questions concerning the last moment at which a judge may be asked to reserve a question of law for the opinion of a higher court[77]. The fact that the Attorney-General or the Director of Public Prosecutions may now, by statute, reserve any question of law after a trial at which a person is acquitted assists in defining the purpose of the sub-section. It suggests that the question of law concerned need not have been raised expressly at the trial. This was the view taken by Cussen J in R v Turnbull[78] of a like provision in Victorian legislation[79]. He considered:
"[I]f there was an existing point of law which arose on the materials at the trial, and which might have been taken, it can be said to have arisen at the trial, although no contention as to it had been raised there, and although the judge's attention had not been directed to it at the trial."
A similar opinion was reached by several of the judges of the English Court of Criminal Appeal in R v Mellor[80], including Lord Campbell CJ[81], Cockburn CJ[82], Coleridge J[83] and Martin B[84]. Whilst others took a narrower view, I find the reasoning for a broader approach more consonant with the purposive construction of the provisions and the balance of authority. Particularly is this so in relation to an exceptional statutory provision which permits a prosecution challenge to a legal ruling which led to the acquittal of the accused.
2.The approach which I favour is also one which is more realistic when it is remembered that a provision such as s 350(1a) is now to be construed in the context (of which Parliament was presumably aware) of extensive interlocutory determinations in Australian criminal proceedings. These can affect the conduct of a subsequent trial and concern questions of law expected to arise in the trial. Their earlier determination may govern the way in which the whole trial is conducted. A narrow view would require that such preliminary rulings of law, affecting the trial, must be ignored, and the facility for their legal correction after the acquittal of the accused completely lost, although s 350(1a) of the Act was clearly enacted with the general purpose of avoiding such disadvantages for the proper administration of criminal justice.
3.In the present case, it is highly artificial, in the continuous dialogue between the trial judge and counsel placed before this Court, to draw a line in the proceedings of that day at the point at which the respondent was rearraigned and required to plead: disregarding all that happened before that moment for the purpose of deciding whether the contested question of law arose "at the trial". It is sometimes important, for particular purposes, to decide precisely when a trial commenced; for example, to determine whether a new statutory regime will apply to it[85]. In South Australia it has been held that, ordinarily, a criminal trial commences "when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury"[86]. The point of commencement appears to have been even later at common law[87]. However that may be, such considerations are of little relevance to the meaning of the disputed phrase as it appears in s 350(1a). There, the question in issue is not the delineation of events for the application of a particular legislative regime, the introduction of different procedures or the attachment of new and different rights. It is the provision of the facility for the consideration of a question of law which, having arisen in a concluded trial, may arise again and requires authoritative curial determination. It is a mistake to apply to such a context decisions reached in different contexts for quite different purposes.
4.It would be unacceptably artificial to treat the prosecution's tender of no evidence (referred to in the case stated) separately from the events which are also there described and which preceded that course. If the appellant is correct, the primary judge had no authority to refuse to accept the nolle prosequi tendered by him. If that be right, and if there was no jurisdiction in the judge except to discharge the respondent, all that followed in the purported "trial" was, as a matter of law, completely unauthorised. There was no power in the judge to grant the application to reinstate the request for trial by judge alone. There was no power to rearraign the respondent. There was no power to conduct the abbreviated trial. Nor was there power to find the respondent not guilty on all counts. A clearer case of questions of law "arising at the trial" could hardly be imagined. The narrow view would construe the section as if it empowered the court to "consider and determine any question of law reserved after the commencement of the trial". But that is not what s 350(1a) says. If the transcript of the actual exchanges between the primary judge and counsel at the trial may be used to remove any suggested ambiguity of the case stated, it is worth recalling that the primary judge, after the rearraignment, prefaced his verdicts with the phrase "In those circumstances". The "circumstances" referred to were clearly the decision of the prosecutor to tender no evidence at the trial. That event can itself only be understood by reference to the immediately preceding refusal of the judge to "accept a nolle prosequi".
[75] South Australia, House of Assembly, Parliamentary Debates (Hansard), 4 November 1980 at 1745.
[76] Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 305, referring to s 669A(2) of the Criminal Code (Q) - the Queensland equivalent of s 350(1a) of the Act.
[77] See eg R v Whelan (1868) 5 WW & a'B (L) 7; R v Tidemann (1871) 5 SALR 48; R v Duncan (1892) 4 QLJ 219; R v S (1953) 53 SR (NSW) 460.
[78][1907] VLR 11 at 14.
[79]Crimes Act 1890 (Vic), s 482.
[80] (1858) 7 Cox CC 454. See also R v Brown (1889) 24 QBD 357 at 360 per Lord Coleridge CJ for the Court for Crown Cases Reserved.
[81](1858) 7 Cox CC 454 at 456.
[82](1858) 7 Cox CC 454 at 461.
[83](1858) 7 Cox CC 454 at 465.
[84](1858) 7 Cox CC 454 at 474.
[85] See eg Newell v The King (1936) 55 CLR 707; R v Talia [1996] 1 VR 462 at 471. See also Bond v The Queen (1992) 62 A Crim R 383 at 394-395; R v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86 at 100.
[86]A-G Reference No 1 of 1988 (1988) 49 SASR 1 at 5-6.
[87]Tonner v The Queen (1984) 80 Crim App R 170 at 182.
Having regard to the parties named and to the procedures adopted, the suggestion that the primary judge was actually engaged in the judicial review of the appellant’s decision to enter a nolle prosequi cannot be accepted. The only relevance of the suggested susceptibility of that decision to conventional judicial review is that it calls attention to the differentiation between decisions of the Attorney-General exercising a vestige of the royal prerogative and decisions of the appellant which must in every case conform to the DPP Act. As Debelle J correctly discerned[158], this differentiation affords a court different, and larger, powers of scrutiny in relation to the appellant than were conventionally exercised by courts in relation to decisions of the Attorney-General. Whether the latter might also now be subject to examination by a court is a question which does not have to be considered in these proceedings.
[158](1996) 66 SASR 450 at 471-472.
The constitutional point
As expressed, the constitutional point raised by the respondent would arise only if s 7(1)(e) of the DPP Act were construed as conferring upon the appellant the power to enter a nolle prosequi, acceptance of which could not in any circumstances be refused by a court of justice to which it was presented. Because, in my opinion, the Full Court correctly held that s 7(1)(e) should not be so construed, the constitutional challenge falls away. I will say no more of it.
The form of the questions point
Finally, before this Court a number of objections were expressed to the form of the questions contained in the case stated. It was suggested that the generality in which they were framed gave rise to abstract questions unrelated to the facts. I agree that their expression (at least in the second question) is far from ideal. However, in the context of the Act which permits consideration of the circumstances in which the question arose[159], and as that has been elaborated by the transcript placed before the Court, I see no insuperable difficulty in considering and determining the first question, as the Full Court did.
[159]See s 351(1) of the Act.
Courts, not least under the procedure enacted by Parliament in s 350(1a) of the Act should be constructive and useful in the discharge of their jurisdiction. On the brink of the twenty-first century, we can leave an approach of excessive technicality in pleading to the legal history of the nineteenth century where it properly belongs[160]. Otherwise, courts will deserve the criticism that they frustrate the purposes of Parliament and reject the opportunity to be useful in resolving serious, practical and concrete problems which have arisen for the administration of criminal justice. In the present case the problem was far from abstract. It was not theoretical. It did not arise in hypothetical circumstances. It was presented in the very real context of actual proceedings against the respondent upon criminal charges. As a consequence of what occurred, those charges were never determined on their merits. If the appellant's primary submission was correct, a serious mistake had occurred. The principle, at least, was susceptible of judicial correction. Even if the appellant was not correct, a real issue was tendered upon which the opinion of the courts was important. Depending upon the answer given, and any constitutional limitations, legislators might wish to clarify and define the respective roles of Directors of Public Prosecutions and the courts. In my respectful view, an unconstructive and unhelpful response ill-becomes the courts, as a branch of government, in contemporary Australia. The law should not "draw up its skirts and refuse all assistance"[161].
[160] Dickens, Bleak House (1853), Ch 5 where the then legal procedure was described: "[I]t's being ground to bits in a slow mill; it's being roasted at a slow fire; it's being stung to death by single bees; it's being drowned by drops; it's going mad by grains."
[161] Saunders v Edwards [1987] 1 WLR 1116 at 1134; [1987] 2 All ER 651 at 666 per Bingham LJ applied in Reeves v Commissioner of Police [1998] 2 WLR 401 at 416; [1998] 2 All ER 381 at 395 per Buxton LJ.
The second question in the case stated is excessively wide. The answer given to it by the Full Court is not surprisingly unhelpful. But it is not inaccurate. To ascertain its purport, it is necessary to read the reasons of the Full Court. Clearly, there are limitations to the exercise of the power to refuse to accept a nolle prosequi. Defining those limitations with accuracy must await future cases. The merit of these proceedings was that they tendered the appellant's basal proposition that a court could never refuse to accept a nolle prosequi proffered by or for the Director of Public Prosecutions for entry in criminal proceedings before that court. For the reasons which I have now given, that proposition should be rejected.
Conclusion and order
The Full Court correctly answered both questions presented to it. The appeal should be dismissed.