Barac v DPP; Barac v Stirling [2006] QSC 421

SUPREME COURT OF QUEENSLAND CITATION: Barac v DPP; Barac v Stirling [2006] QSC 421 PARTIES: MARIUS OVIDIU BARAC (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) (respondent) MARIUS OVIDIU BARAC (applicant) v SHANE ALLAN STIRLING (respondent) FILE NO/S: BS 1520/06 and BS 5174/06 DIVISION: Trial Division PROCEEDING: Originating Applications DELIVERED ON: 29 August 2006 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 30 June 2006 JUDGE: Wilson J ORDER: On each application, application dismissed with costs CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS – IN GENERAL – where the accused was charged with a number of drug related offences, including possession, production, supply and trafficking – where the DPP agreed to offer no evidence in relation to the trafficking, production and supply offences if the accused pleaded guilty to possession offences – where, subsequently, a new trafficking charge similar to the first but relating to a shorter time period was brought against the accused – where the accused seeks a permanent stay of the committal proceedings in the subsequent trafficking charge on the ground of abuse of process – whether a permanent stay should be granted Director of Public Prosecutions Act 1984 (Qld), s 4, s 10 Justices Act 1886 (Qld), s 110A Police Powers and Responsibilities Act 2000 (Qld), s 214 -- 1 of 17 -- 2 Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50, cited Barton v The Queen (1980) 147 CLR 75, cited R v Cooney [1988] 1 Qd R 464, considered R v Croydon Justices; ex parte Dean [1993] QB 769, considered R v Georgiadis [1984] VR 1030, considered Higgins v Comans [2005] QCA 234; (2005) 153 A Crim R 565, considered Jago v District Court (NSW) (1989) 168 CLR 23, followed Nolan v Curby, New South Wales Court of Appeal, 40757/95, 20 December 1995, Clarke, Powell and Cole JJA, unreported, considered R v Milnes and Green (1983) 33 SASR 211, considered R v Mohi [2000] SASC 384, unreported, considered Visser v Hodgetts [2002] TASSC 44, unreported, considered Walton v Gardiner (1993) 177 CLR 378, followed Williamson v Trainor [1992] 2 Qd R 572, considered Weissensteiner v R (1993) 178 CLR 217, cited COUNSEL: R Richter QC and C Jennings for the applicant P Davis SC for the respondent Director of Public Prosecutions J Horton for the respondent Stirling SOLICITORS: Nyst Lawyers for the applicant Director of Public Prosecutions Queensland Police Service for the respondent Stirling. [1] Wilson J: On 28 June 2005 the applicant was served with a notice to appear issued under s 214 of the Police Powers and Responsibilities Act 2000 (Qld) accusing him of carrying on the business of unlawfully trafficking in a dangerous drug between 30 June 2000 and 10 March 2003 at Surfers Paradise and elsewhere in this State. There has not yet been a committal hearing. In these two applications he seeks a permanent stay of the prosecution of that charge and related orders. The first application is against the Director of Public Prosecutions and the second is against the investigating police officer Detective Sergeant SA Stirling. The first set of changes [2] Between March and April 2003 the applicant was charged with the following offences: 1 1 [3] affidavit of J J Murakami sworn 23 February 2006, filed 23 February 2006. See also bench charge sheets, Ex KJS 1 to affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. -- 2 of 17 -- 3 i) Carrying on the business of unlawfully trafficking in a dangerous drug, namely, heroin, between 1 January 1998 and 10 March 2003 (“the first trafficking charge”); ii) Supply of a dangerous drug, namely, heroin at Main Beach on 9 March 2003; iii) Unlawfully producing a dangerous drug, namely, heroin at Main Beach on 9 March 2003; iv) Possession of a dangerous drug, namely, heroin at Ashgrove on 8 March 2003; v) Possession of a dangerous drug, namely, heroin at Main Beach on 9 March 2003; vi) Possession of a dangerous drug, namely heroin, at Labrador on 9 March 2003; vii) Possession of a dangerous drug, namely amphetamine, at Labrador on 9 March 2003; viii) Possession of a dangerous drug, namely cannabis, at Labrador on 9 March 2003; ix) Possession of a sum of $134,950 that reasonably be suspected tainted property; x) Possession of a property used in connection with the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986, namely, unlawful supply of a dangerous drug; xi) Possession of a property, namely, a NSW Driver’s licence that was reasonably be suspected of being tainted; xii) Possession of a weapon, namely, a Tanfoglio handgun without a licence; xiii) Possession of a weapon, namely, a Phoenix handgun without a licence; xiv) Possession of a silencer without a licence; xv) Failure to secure weapons, namely, a Tanfoglio handgun and a Phoenix handgun securely; xvi) Failure to store weapons, namely, a Tanfoglio handgun and a Phoenix handgun securely; and -- 3 of 17 -- 4 xvii) Possession of a weapon, namely, a Phoenix handgun with identifying serial number which had been defaced or altered. [3] Committal proceedings were listed before the Magistrates Court at Brisbane on 17 March 2004. The applicant consented to the five possession charges proceeding by way of hand-up committal pursuant to s 110A of the Justices Act 1886 (Qld).2 The applicant's solicitor informed the Magistrate that he was instructed the matter would "take a particular course" in the Supreme Court.3 No evidence was offered on the trafficking, supply and production charges.4 [4] On or about 28 June 2004 an indictment was presented in the Supreme Court charging the applicant with the following offences:5 (i) unlawful possession of the dangerous drug heroin in a quantity exceeding 2 grams at Brisbane on 8 March 2003; (ii) unlawful possession of the dangerous drugs heroin and methylamphetamine the quantity of heroin exceeding 2 grams at Brisbane on 8 March 2003; (iii) unlawful possession of the dangerous drugs heroin, cocaine, methylamphetamine and cannabis sativa the quantity of heroin and cocaine exceeding 2 grams and the quantity of cannabis sativa exceeding 500 grams at Brisbane on 9 March 2003. The charges on that indictment were listed for sentence in the Supreme Court in December 2004, and by agreement adjourned to 7 February 2005. On 4 February 2005 there was a further adjournment because the Crown wished to substitute a charge of trafficking in heroin between 30 June 2000 and 10 March 2003 for the possession charges.6 The sentencing has subsequently been adjourned several times. Psychiatric report [5] In preparation for the sentence hearing, the applicant's solicitors arranged for him to be examined by Dr Olav Nielssen, a psychiatrist practising in Sydney. On 13 December 2004, Mr JJ Murakami, the solicitor handling the matter for the applicant, advised the DPP that the examination had been arranged.7 It took place on 5 January 2005. Copies of the report have been exhibited to affidavits by Mr Murakami in the present applications.8 Why the first trafficking charge was not pursued 2 [4] affidavit of J J Murakami sworn 23 February 2006, filed 23 February 2006; transcript of the committal hearing, p 3; ex KJS 5 to affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 3 Transcript of the committal hearing, p 3. Ex KJS 5 to affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 4 Transcript of the committal hearing, p 3. Ex KJS 5 to affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 5 Copy of the indictment attached to fax sent to Nyst Lawyers from the DPP dated 10 August 2004; ex JJM 1 (pp 12-28) to affidavit of J J Murakami sworn 23 February 2006, filed 23 February 2006. 6 Transcript of the hearing, p 2. Ex JJM 1 (pp 54-59) to affidavit of J J Murakami sworn 23 February 2006, filed 23 February 2006. 7 [16] affidavit of J J Murakami sworn 23 February 2006, filed 23 February 2006. 8 Ex JJM 4 to affidavit of J J Murakami sworn 22 June 2006, filed 22 June 2006. -- 4 of 17 -- 5 [6] According to Mr KJ Spinaze, the prosecutor in relation to the first set of charges, financial evidence was considered necessary to prove the first trafficking charge.9 There were numerous appearances in the Magistrates Court at Brisbane, some of them for routine mentions, but some for adjournments on account of outstanding material, mainly financial material. An accountant, Ms C Elvidge, had been instructed to analyse the applicant's financial affairs. In mid December 2003 it was expected that she would take about nine months to complete her report.10 In early March 2004 Detective Sergeant Stirling told Mr Spinaze that Ms Elvidge had resigned before completing her report.11 On about 10 March 2004 Mr Spinaze spoke with Detective Sergeant Stirling, who told him that another accountant had not been appointed, that he was not sure if or when another would be appointed, and that if another were appointed it would take nine months from that point.12 Stirling agreed to accept a plea of guilty to possession for a commercial purpose and drop the trafficking charge.13 [7] Subsequently agreement was reached between Mr Spinaze and the applicant's solicitors to this effect, and on 16 March 2004 Mr Spinaze sent a facsimile to the applicant's solicitors in the following terms:14 "I refer to your faxsimile [sic] dated today’s date relating to the committal hearing tomorrow. I confirm that the Crown will offer no evidence in relation to the charges of trafficking, production and supplying a dangerous drug should your client plead guilty to the offences of possessing dangerous drugs as outlined in your fax. However your client will have to accept that the possession of those drugs was for a commercial purpose and not just for his own personal use. If he is not prepared to plead guilty on that basis then your client should be aware that the Crown will attempt to assert at sentence that his possession was for a commercial purpose. Please do not hesitate to call me if there are any problems.” Such an agreement was reflected in the parties’ conduct at the committal hearing on 17 March 2004.15 Another financial analysis [8] Proceedings under the Criminal Proceeds Confiscation Act 2002 (Qld) had been commenced against the applicant, and examination orders had been made against him and others on 11 March 2003 (although no examinations had been conducted).16 Ms KA Hamer, a chartered accountant employed by the Crime and Misconduct Commission, was asked by Detective Sergeant Stirling to conduct a financial investigation into the applicant's affairs over the period 1 January 1998 to 9 [8] affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 10 [9] affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 11 [10] affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 12 [13] affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 13 [15] affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 14 Ex JJM 1 (p 4) to affidavit of J J Murakami sworn 23 February 2006, filed 23 February 2006. 15 Transcript of the committal hearing; Ex KJS 5 to affidavit of K J Spinaze, sworn 27 June 2006, filed 28 June 2006. 16 [4] affidavit of K A Hamer, sworn 27 June 2006, filed 28 June 2006. -- 5 of 17 -- 6 9 March 2003. Due to the limited materials available to her, she was able to perform this analysis only over the more limited period of 1 July 2000 to 9 March 2003.17 She examined documents relating to the financial affairs of both the applicant (who had a trucking business) and his de facto Angela Cosma (who was the sole proprietor of a business called Creole Solarium Studio).18 Ms Hamer's report, which is in the form of a witness statement,19 is dated 26 April 2005. She concluded that the known expenditure of the applicant and his de facto over the period 1 July 2000 to 9 March 2003 exceeded their sourced income by $694,295.14.20 The further trafficking charge [9] On about 1 February 2005 Mr MW Nathan, a prosecutor employed by the DPP, was assigned the prosecution brief on the sentence proceedings, which had been set down for 7 February 2005. He considered the material, which included reference to approximately $130,000 in cash seized by the police, and thought that perhaps the applicant could be charged with trafficking. He spoke with Mr C May of the DPP's Confiscations Section who told him that Ms Hamer was undertaking an analysis of the applicant's financial affairs, that her analysis was nearly complete, and that it showed a discrepancy of $600,000. Mr Nathan then consulted a more senior prosecutor, Mr BG Campbell, and later that day they sought the advice of the DPP Mrs LJ Clare.21 [10] Mrs Clare has deposed: “2. I gained personal knowledge of the prosecution of the Applicant on 1 February 2005. On that date principal crown prosecutor, Brendan Campbell and acting crown prosecutor, Matthew Nathan sought my advice about the matter. I understood that an original charge of unlawful trafficking in dangerous drugs was discontinued by an officer prior to the committal proceeding and lesser charges had subsequently been listed for sentence in the Supreme Court. I was made aware of the existence of new evidence namely a report compiled by a financial analysis [sic] by the crime and misconduct commission. That report had, I was told, come to the attention of prosecutors in my office after the sentence had been listed. 3. I formed the view that the introduction of the new evidence was likely to transform the allegations into a clear case of trafficking, making the proposed plea to lesser charges inadequate to reflect the gravity of the provable conduct of the applicant. 4. My prosecution policy is that a decision to discontinue a prosecution will not be reversed unless significant new 17 [3] affidavit of K A Hamer, sworn 27 June 2006, filed 28 June 2006. 18 [11]-[12] of the report of K A Hamer, Ex KAH 1 to affidavit of K A Hamer, sworn 27 June 2006, filed 28 June 2006. 19 Ex KAH 1 to affidavit of K A Hamer, sworn 27 June 2006, filed 28 June 2006. 20 [63] of the report of K A Hamer, Ex KAH 1 to affidavit of K A Hamer, sworn 27 June 2006, filed 28 June 2006. 21 [2]-[5] affidavit of M W Nathan, filed 28 June 2006. -- 6 of 17 -- 7 evidence emerges and it is in the interests of justice to do so. I considered this to be such a case. 5. Accordingly I advised Mr Campbell and Mr Nathan that it was necessary to alert the applicant’s legal representatives to developments and to seek an adjournment of the sentence pending consideration of the financial evidence.”22 [11] In exercise of her discretion under s 10 of the Director of Public Prosecutions Act 1984 (Qld) (“the DPP Act”), the DPP has taken over the conduct of the proceedings in the Southport Magistrates Court on the further trafficking charge. The applicant's case [12] The applicant's case was originally put forward on three bases - abuse of process, breach of contract and promissory estoppel, but in oral submissions his senior counsel relied only on abuse of process.23 In essence he submitted that the conduct of the DPP was such a departure from proper practice as to justify a stay and that the applicant has been prejudiced by that conduct. He expressly disavowed any allegation of bad faith.24 Undertakings [13] Without admitting that any prejudice has been suffered, the DPP proffered the following undertakings to the Court- 1. “(a) that in any prosecution of the accused/applicant on either the possession charges, a charge of trafficking or any cognate charges, the Crown will not rely upon any statement which the accused/applicant or his legal representatives have to this point made in either the Magistrates Court or the Supreme Court; (b) that on the committal proceedings on the charge of trafficking, if requested by the applicant, the prosecution will call any witness whose statement is contained in the police brief in support of either the possession charges or the charge of trafficking and make those witnesses available for cross-examination;”25 2. “(a) that the Crown will not lead or use against the accused/applicant any statement which has to this point been made by his legal representatives whether oral or written including anything contained in any letter from his legal representatives; (b) that the Crown will not lead or use against the accused/applicant evidence of any statement made to Dr 22 Affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006. 23 Transcript of application hearing 30 June 2006, p 7. 24 Transcript of application hearing 30 June 2006, p 10. 25 [7] affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006. -- 7 of 17 -- 8 Nielssen by the accused/applicant or any statement made by Dr Nielssen on behalf of the accused/applicant.”26 Principles [14] In Queensland, committal proceedings are frequently conducted by police prosecutors, but in some centres27 they are conducted by the DPP, and she has the discretion to conduct any committal she wishes.28 Apart from private prosecutions and prosecutions by the Commonwealth29 , all trials on indictment are prosecuted by the DPP30 . [15] Committal proceedings are primarily, if not exclusively, administrative rather than judicial in character. As McPherson JA said in Higgins v Comans31 - “4. … the function of the magistrate … is essentially that of receiving evidence from the prosecution to justify a trial of the defendant for an indictable offence. Strictly speaking, anyone can lawfully take evidence if others are prepared to give it: see Clough v Leahy.32 The only difference here is that witnesses in these proceedings are compellable, and the hearing may lead to a trial of the defendant. 5. That is what makes the duty of the committing magistrate primarily if not exclusively ministerial rather than judicial in character, as has been recognised in the authorities.33 Sections 104 and 108 of the Justices Act are in this respect in mandatory terms. A magistrate who declines to perform the duty imposed by those sections is therefore susceptible to an order from this Court in the nature of a mandamus to compel him or her to hear, but not to determine. 34 In that regard, this Court has inherited all the supervisory powers over inferior courts and tribunals of the court of King’s Bench at Westminster.35 The jurisdiction was at one time invested in express terms by s 21 of the Supreme Court Act 1867. It is now conferred by force of s 58 of the Constitution of Queensland 2001, of which s 58(2)(a) continues to declare it to be ‘the supreme court of general jurisdiction in and for the State’. The ‘high and transcendent’ powers, as Blackstone called them, 36 of King’s Bench automatically attach to the highest court of general jurisdiction in the land,37 and so confer on it the supervisory jurisdiction of 26 [9] affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006; transcript of application hearing 30 June 2006, p 48. 27 Including Brisbane 28 DPP Act s10(1)(c). 29 Director of Prosecutions Act 1983 (Cth). 30 DPP Act s10(1)(a) and definition of "criminal proceedings" in s 4. 31 (2005) 153 A Crim R 565, [2005] QCA 234. 32 (1904) 2 CLR 139, 159-160. 33 cf Coco v Shaw [1994] 1 Qd R 469, 483-4, 499-500. 34 see ex p Donald, Re McMurray (1969) 89 WN Pt 1 (NSW) 462. 35 Granowski v Shaw (1896) 7 QLJ 18, 19. 36 3 Bl Com 42. 37 see Kendall v United States (1838) 37 US (12 Pet) 524, 627. -- 8 of 17 -- 9 that Court,38 or its modern statutory equivalents: Judicial Review Act 1991, s 41(2).” In the same case Keane JA (with whom McPherson JA and White J agreed) considered whether an examining magistrate could permanently stay a committal proceeding taking place before him, and concluded - “38. In my respectful opinion, an examining magistrate has no power permanently to stay the proceeding. Whether or not proceedings on indictment should be stayed as an abuse of process is a decision for the court which tries the matters charged on indictment.” [16] In the present applications, all parties proceeded on the basis that this Court's supervisory powers include power permanently to stay a committal proceeding,39 and so the issue of jurisdiction was not fully explored.40 [17] In Walton v Gardiner41 the High Court applied the principles applicable to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process mutatis mutandis to an application to stay proceedings before a Medical Tribunal.42 In my respectful opinion the same approach should be adopted in determining whether, assuming jurisdiction, this Court should stay committal proceedings on the ground of abuse of process. [18] The categories of cases in which a superior court may stay its own proceedings are not closed. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner43 - "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice and unfairness." Later Their Honours said44 - “As was pointed out in Jago,45 the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of 38 Kendall v United States; R v Magistrates of Sydney [1824] NSWSC 20. 39 [6] applicant’s outline of argument. [11] respondent’s outline of argument; transcript of application hearing 30 June 2006, p 5 (applicant) and 38 (respondent). 40 See Walton v Gardiner (1993) 177 CLR 378 at 388 – 392. 41 (1993) 177 CLR 378. 42 (1993) 177 CLR 378 at 395 per Mason CJ, Deane and Dawson JJ 43 (1993) 177 CLR 378 at 392-393. 44 Walton v Gardiner (1993) 177 CLR 378 at 395-396. 45 See, in particular, (1989) 168 CLR, per Mason CJ at pp 30-34, per Deane J at pp 59-61, per Toohey J at p 72, per Gaudron J at pp 76-78. -- 9 of 17 -- 10 those guilty of crime, and the need to maintain public confidence in the administration of justice.” [19] In Jago v District Court (NSW), 46 which concerned an application to stay criminal proceedings on the ground of abuse of process constituted by undue delay prejudicing the defendant, Mason CJ said47 - “The New Zealand Court of Appeal has recognized the inherent power of a superior court to stay or dismiss a prosecution for abuse of process in terms consistent with the view of Lord Devlin, in Moevao v. Department of Labour.48 While the members of the Court focussed upon the concept of abuse of process, it is clear that they took a wide view of what might constitute such an abuse. The approach is best exemplified in the judgment of Richardson J, who stated49 : ‘It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.’ In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed. For the reasons given, I agree with the approach of Richardson J as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an ‘abuse of process’, I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated50 : 46 (1989) 168 CLR 23. 47 (1989) 168 CLR 23 at 29-31. 48 [1980] 1 NZLR 464, at pp 470-471, 473-476, 478-482. 49 at p 481. 50 at p 482. -- 10 of 17 -- 11 ‘The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor … that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.’ The continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg. v. Derby Crown Court; Ex parte Brooks.51 If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.” Application of principles [20] Assuming this Court does have the requisite power permanently to stay committal proceedings, in my view this is not one of those exceptional cases in which a permanent stay should be granted. [21] Senior counsel for the applicant submitted that the case against his client for possession of dangerous drugs for a commercial purpose is strong, but that the same could not be said with respect to the charge of carrying on the business of trafficking between 30 June 2000 and 10 March 2003. He stressed that what the financial analysis shows is simply unexplained expenditure over three years. He submitted that this gives rise to no more than suspicion, and that in the context of two persons engaged in businesses (the applicant in a trucking business and his de 51 (1984) 80 Cr App R 164. -- 11 of 17 -- 12 facto in a health studio) it is just as consistent with some other reprehensible conduct, such as tax evasion. I do not accept this submission. [22] On 8 March 2003 the police secreted themselves at the accused’s residence in Ashgrove. When the accused returned home he was apprehended and searched. The police found on his person a cylinder containing 14.435 grams of heroin at 25.2% purity and another 57.282 grams of off-white powder. Early the next morning the accused’s apartment in Main Beach was searched in his presence. The search uncovered 32.133 grams of heroin at 22.17% purity and 0.530 grams of methylamphetamine at 59.3% purity. Investigators also found a wide variety of equipment used in the production and distribution of illegal drugs, including a pill pressing machine. Later that day the police searched a storage shed at Labrador held in the accused’s name. They found two handguns, ammunition, a silencer, 2314.3 grams of cannibis sativa and clip seal bags containing other drugs. [23] The case against the applicant on the further trafficking charge is largely a circumstantial one; the unexplained expenditure is another circumstance. It is a case calling for explanation.52 It is not for this Court to review the exercise of the executive discretion to prosecute.53 [24] With the benefit of hindsight, those who made the decision to drop the first trafficking charge can be criticised for acting with undue haste. But, given the public interest in the prosecution and conviction of those guilty of crime, resiling from an agreement not to prosecute will rarely (if ever) be enough to amount to an abuse of process. In recent years the law in this area has been examined on a number of occasions. [25] In R v Milnes and Green54 an accused charged with murder sought at trial a permanent stay of proceedings in the Supreme Court of South Australia. Soon after the murder took place a man began telephoning police on behalf of another man – later revealed to be the accused Green – who had information about the crime. Investigators made public statements to the effect that, if the man with the information came forward, he would not be prosecuted. The promise came with a number of conditions, including that he not be implicated in the death of the victim in any way. The accused came forward and made statements to police, some of which were false. [26] The trial judge, Cox J, made a preliminary ruling on the stay application. His Honour noted that the court cannot prevent the Attorney-General initiating criminal proceedings, but once such proceedings are begun, the court can, as a last resort, stop them going to trial in order to prevent an abuse of the court’s process.55 This “extraordinary power” should only be used in a clear case of abuse of process. Here the Crown’s promise came with conditions that were not met, and accordingly it was not unjust or oppressive to continue the trial.56 On appeal Wells J (with whom White J agreed) noted that the trial had been conducted in a way so as to minimise any prejudice that may have arisen due to the aborted deal. For example, the trial 52 Azzopardi v R (2001) 205 CLR 50, Weissensteiner v R (1993) 178 CLR 217. 53 Barton v The Queen (1980) 147 CLR 75, R v Cooney [1988] 1 Qd R 464 at 469-471, Visser v Hodgetts [2002] TASSC 44, unreported, at [30]. 54 (1983) 33 SASR 211. 55 R v Milnes and Green (1983) 33 SASR 211 at 225. 56 R v Milnes and Green (1983) 33 SASR 211 at 226-227. -- 12 of 17 -- 13 judge excluded from evidence the conversations with police officers in which negotiations were conducted and confessions made.57 The appeal was dismissed. [27] In R v Georgiadis58 the accused was charged with malicious wounding and doing grievous bodily harm. In the course of his trial in the Supreme Court of Victoria a question arose as to the legal effect of a written undertaking of indemnity signed by the Attorney-General of Victoria. The indemnity had been given to the accused in order to induce him to give evidence against others in a trial for conspiracy to import heroin, and in the course of cross-examination in that trial he had made admissions that were the basis of the subsequent charges against him. [28] The trial judge, Ormiston J, noted that there was no legally efficacious means of preventing the Crown from resiling from an agreement such as this except, in extreme circumstances, the stay power.59 Counsel had specifically requested that the court not consider granting a stay.60 His Honour cited with approval the Privy Council’s observation in R v McDonald61 that “it is quite unthinkable that such an undertaking [an immunity from prosecution] would not be honoured”, and found that the indemnity in the case before him was an undertaking not to prosecute. The DPP entered a nolle prosequi. It is important to note that both the Privy Council and Ormiston J placed great emphasis on the practical effect of the undertaking – it induced the accused to give evidence he would not otherwise have given – and the practical effect of allowing the Crown to go back on such agreements – sources such as the accused would no longer give vital evidence, or would be wary about what evidence they gave.62 This was contrary to the public interest in bringing criminals to justice. The ‘agreement’ in the case presently before the court is materially different from that which led to the decision in R v Georgiadis. It was not designed to elicit evidence vital to the prosecution of others; nor was it an immunity from prosecution agreement. [29] In R v Cooney63 the accused was committed for trial in the District Court (Brisbane) on charges of unlawful use of a motor vehicle. The prosecution requested an adjournment the day before the trial was due to begin. There was no evidence as to how that request was dealt with, but the Crown entered a nolle prosequi. Due to a mistake or mistakes, the matter remained on the call-over list, and was again set down for trial. Apparently when the second trial date was set no one present was aware of the earlier nolle prosequi. A stay motion was brought at the second trial, which was granted by the trial judge. An appeal against the granting of the stay was allowed. [30] On appeal Andrews CJ (with whom Williams and Moynihan JJ agreed) emphasised that the court has no jurisdiction over the executive’s discretion to commence criminal proceedings. When proceedings have started, the court has the power to ensure they are conducted fairly. It has an inherent power to refuse to hear proceedings on the ground that they are oppressive or an abuse of process, but this 57 R v Milnes and Green (1983) 33 SASR 211 at 235. 58 [1984] VR 1030. 59 R v Georgiadis [1984] VR 1030 at 1037. His Honour cited ATH Smith, Immunity From Prosecution (1983) Cambridge LJ 298 at 216. 60 R v Georgiadis [1984] VR 1030 at 1032. 61 [1983] NZLR 252 at 255. 62 R v Georgiadis [1984] VR 1030 at 1038. 63 [1988] 1 Qd R 464. -- 13 of 17 -- 14 is a “drastic remedy to be applied in exceptional circumstances”.64 A stay should only be granted where the accused’s ability to obtain a fair trial is prejudiced – in other cases, remedies other than a stay should be preferred.65 [31] Williamson v Trainor66 was an appeal against a conviction for assault occasioning bodily harm. On the first day of the trial in the Magistrates Court the prosecution requested an adjournment, which was refused. The accused opposed the adjournment because his witness was about to leave the State. The matter was stood down, and in the course of the break the accused, at the prosecutor’s request, signed an agreement that he would not seek costs and “the Crown … agreed not to proceed further with the … charge”.67 The prosecutor then informed the magistrate that no evidence would be presented and the accused was discharged. No costs order was sought. A few months later the accused was charged, tried and convicted of the same offences. The accused’s witness was not available at the second trial. [32] The Court of Appeal allowed the appeal, overturned the conviction and stayed the proceeding for abuse of process. Ambrose J (with whom Derrington J agreed) said it would be unconscionable to bring the second proceeding after representing that the Crown would not proceed with the charge.68 His Honour found that public confidence in judicial processes would be eroded if those processes were “used in an unconscionable manner designed to or having the effect of placing difficulties in the way of an accused person defending himself”. 69 Fairness in criminal proceedings is an important consideration: it is in the interests of the public and the accused. Emphasis was placed on the fact that the accused’s inability to call his witness, caused by the prosecution’s conduct in bringing about the delay. This prejudiced the accused’s ability to procure a fair trial, which was enough to render the proceedings an abuse of process.70 [33] Dowsett J made this comment, which was pressed on the court in the present application: “Nothing is more likely to bring the judicial process into disrepute than to permit either the Crown or the police force to resile from such an agreement.”71 His Honour’s statement must be read in context, in particular the prejudice the Crown’s conduct caused to the accused’s ability to obtain a fair trial. The circumstances in that case are very different from those in the application presently before the court: as I shall explain shortly, the present applicant’s ability to obtain a fair trial has not been compromised. [34] In R v Croydon Justices; ex parte Dean72 an accused sought statutory judicial review of a magistrate’s decision at a committal hearing not to grant a permanent stay of the proceedings. The accused had been charged with offences relating to a murder, including the destruction of important evidence, but not with murder. In the 64 R v Cooney [1988] 1 Qd R 464 at 471. 65 R v Cooney [1988] 1 Qd R 464 at 471-472. 66 [1992] 2 Qd R 572. 67 Williamson v Trainor [1992] 2 Qd R 572 at 576. 68 Williamson v Trainor [1992] 2 Qd R 572 at 579. 69 Williamson v Trainor [1992] 2 Qd R 572 at 582. 70 Williamson v Trainor [1992] 2 Qd R 572 at 582. 71 Williamson v Trainor [1992] 2 Qd R 572 at 583. 72 [1993] QB 769. -- 14 of 17 -- 15 course of the murder investigation police treated the accused as a witness, and gave him assurances that he would not be charged. The accused gave uncautioned statements. [35] Staughton LJ accepted that the Crown had an unfettered discretion to decide who should be prosecuted.73 On the other hand, the prosecution of a person who has been given a promise, undertaking or representation by the Crown that he or she will not be prosecuted is capable of amounting to an abuse of process.74 However a stay should only be granted in exceptional cases.75 His Lordship found that the case before him was exceptional; relevant factors included the accused’s youth, the extended period in which the accused was treated as a witness and assured he would not be prosecuted, and the repeated assistance he gave the prosecution on that basis.76 [36] The New South Wales Court of Appeal dealt with similar circumstances in Nolan v Curby.77 In that case police officers attached to the Building Industry Royal Commission had interviewed the accused over many months. The accused was told that he must talk to the police, and that his statements could not be used against him in criminal proceedings. When he was charged with several counts of obtaining financial advantage through deception, arising out of the statements he had given police, he sought a stay of the proposed criminal proceedings. The judge at first instance refused to issue a stay, and the accused appealed unsuccessfully. [37] On appeal Clarke JA (with whom Powell and Cole JJA agreed) spoke of the great reluctance of civil courts to interfere in criminal proceedings: it is for the criminal courts to prevent abuse of their own procedures. Civil courts will only interfere (by, for example, issuing a stay) in exceptional circumstances, where criminal courts can not provide adequate remedies. The application was for interlocutory relief, which was denied. His Honour also examined the likelihood of obtaining final relief in the form of a stay. His Honour noted that there were alternative ways of addressing any prejudice to the accused, including declaring the statements made to the police to be inadmissible. (I note that the undertakings offered by the DPP in the case presently before the court would have a similar practical effect.) Clarke JA held that this was not an exceptional case, and a stay was not justified. [38] Another similar case came before the Supreme Court of South Australia in R v Mohi.78 In the course of a murder investigation, the accused was treated as a witness. He gave two detailed, uncautioned statements in which he admitted to assisting the killers, among other things, to wash away the victim’s blood. He was presented as a witness at the preliminary hearing. An information was presented against the two assailants (Williams and Herbasch) charging them with murder. The accused was listed as a witness. Police and prosecutors repeatedly confirmed that the accused would be a witness and would not be charged. However he was charged with assisting an offender contrary to s 241(1) of the Criminal Law Consolidation Act 1935 (SA) and brought to trial with Williams and Herbasch. The trial came 73 R v Croydon Justices; ex parte Dean [1993] QB 769 at 776. 74 R v Croydon Justices; ex parte Dean [1993] QB 769 at 778. 75 R v Croydon Justices; ex parte Dean [1993] QB 769 at 776. 76 R v Croydon Justices; ex parte Dean [1993] QB 769 at 779. 77 NSWCA, 40757/95, 20 December 1995, Clarke, Powell and Cole JJA, unreported. 78 [2000] SASC 384, unreported. -- 15 of 17 -- 16 more than a year after the accused gave his initial statement. In the course of the trial the accused sought a permanent stay of the proceedings against him. [39] The trial judge, Martin J, identified the critical question in determining whether to grant a stay as being whether the interests of justice demand it. The onus of proving an abuse of process is a heavy one, and the stay power should only be exercised in exceptional circumstances.79 The ability of the accused to obtain a fair trial is only one relevant factor, but in the absence of suggestion that the trial will be oppressive or unfair it will be very rare that the interests of justice demand a stay.80 His Honour concluded that the case before him was exceptional. Relevant considerations included the length of time during which the accused was treated as a witness, the uncautioned nature of the statements, the repeated confirmations that he would be a witness and would not be charged, and the reliance on his statements at the preliminary hearing.81 The proceedings were stayed so far as they pertained to the accused. [40] Recently the Supreme Court of Tasmania has examined the power of a court to stay for abuse of process in Visser v Hodgetts.82 In that case the police told the accused that the charges against him would be withdrawn, and then, a week later, informed him that he would be prosecuted. At the hearing before the magistrate, the accused applied to have the proceedings stayed for abuse of process. The magistrate granted the stay. [41] On appeal Underwood J concluded that in Tasmania magistrates do not have the power to permanently stay proceedings.83 His Honour then examined the merits of the stay application and reviewed relevant authorities. Noting that the court has no role in the exercise of the executive’s discretion to proceed with a prosecution,84 His Honour concluded that the circumstances in the case before him were not exceptional and so did not justify a stay. [42] These cases exemplify the principle that a stay should be granted only in rare circumstances, when the continuation of proceedings would be a misuse of the court process in that it would involve the use of that process in a manner giving rise to injustice.85 [43] Consideration of the public interest in the fair conduct of proceedings against an accused person necessitates an examination of the applicant's assertion that he has been prejudiced by the conduct of the respondents. (a) He consented to a full hand-up committal on the possession charges, so forgoing his rights at committal to have witnesses give evidence orally and be cross-examined. Although he indicated to the DPP that he would plead guilty to the possession charges on the basis that he had possession of the drugs for a 79 R v Mohi [2000] SASC 384 at [29]. 80 R v Mohi [2000] SASC 384 at [44]. 81 R v Mohi [2000] SASC 384 at [45]-[46]. 82 [2002] TASSC 44, unreported. 83 [2002] TASSC 44 at [21]. 84 [2002] TASSC 44 at [30]. 85 Jago v District Court (NSW) (1989) 168 CLR 23 at 30 per Mason CJ. -- 16 of 17 -- 17 commercial purpose, he has not entered plea of guilty to any charge86 and the Magistrate erred in committing him for sentence rather than trial.87 (b) He arranged to attend upon Dr Nielssen, informed the DPP of his intention to do so and in due course supplied the DPP with a copy of the report in which Dr Nielssen has set out the history the applicant gave him about past drug use and involvement in the world of illicit drugs. (c) His counsel submitted that for a considerable time he was led to believe and organised his life on the basis that the matter had been resolved, but this is somewhat of an overstatement, given that he has not entered any pleas. [44] In considering whether this is one of those exceptional cases which would justify a stay, it is proper to consider whether there is some other avenue for redressing this prejudice. The undertakings proffered by Mrs Clare in her affidavit88 were proffered to the Court by her senior counsel. Senior counsel for the applicant had adverted to the possibility of derivative use of the contents of Dr Nielssen's report, but that was overcome when senior counsel for the DPP informed the Court of his instructions to expand the undertakings to undertakings not to "lead or use" that material. In my view those undertakings are now an adequate response to the assertions of prejudice. Conclusion [45] In all the circumstances, this is not a case in which the committal proceeding on the second trafficking charge should be permanently stayed or otherwise restrained. 86 See footnote 38 respondent’s outline of argument. 87 s113 Justices Act 1886 (Qld). 88 [9] affidavit of L J Clare, sworn 27 June 2006, filed 28 June 2006. -- 17 of 17 --