R v Clarence Lindsay Hermes; John David Pinkerton; Ex Parte Carmel Charles Borg and Kevin Townley Dobson [1988] ACTSC 58 (20 October 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. CLARENCE LINDSAY HERMES; JOHN DAVID PINKERTON; Ex parte CARMEL
CHARLES BORG and KEVIN TOWNLEY DOBSON
S.C. Nos. 1547 and 1548 of 1987
Prerogative Writs - Abuse of Process

COURT

IN THE SUPREME COURT OF THE AUSTRALIA CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Prerogative Writs - certiorari - whether convictions by Magistrate should be quashed - abuse of process - court's discretion.

Abuse of Process - nature of power to stay proceedings - whether power applicable where proceedings already concluded - consequence of having proceedings declared an abuse of process.

Life Association of Scotland v. Siddal (1861) 3 DeG F & J 58

Herbert Bell v. Director of Public Prosecutions and Another (1985) 1 AC 937 (PC).

Barton and another v. The Queen and another [1980] HCA 48; (1980) 147 CLR 75.

Herron v. McGregor and Ors. (1986) 6 NSWLR 246.

Whitbread & Ors v. Cooke & Ors; Purcell v. Cooke & Ors. (No.2) SC NSW (1987) 5 ACLG 305.

Joel and Others v. Mealey (1987) 27 A Crim R 280.

Herron v. Attorney-General for New South Wales and Ors. (1987) 8 NSWLR 601.

Watson v. Attorney-General for New South Wales (1987) 8 NSWLR 687.

Rutkowski and Ors. v. Director of Public Prosecutions & Ors. (unreported, Court of Appeal (NSW), 29 October 1987)

Jones v. The Director of Public Prosecutions for the State of New South Wales & Anor. (unreported, Court of Appeal (NSW), 4 November 1987).

Re Caruana and Ors; Ex parte Deputy Federal Commissioner of Taxation Federal Court of Australia (1988) FLC 901-903.

Jago v. The District Court of New South Wales & Ors. (unreported, Court of Appeal (NSW), 10 May 1988).

Cook v. Purcell; Cook v. Whitbread; Attorney-General v. Purcell (unreported, Court of Appeal (NSW), 9 August 1988).

The Queen v. Dorel Goia (unreported, Kelly J., Supreme Court of the ACT, 10 November 1987).

The Queen v. Dorel Goia (unreported, Federal Court of Australia, 19 September 1988).

Aboud v. Attorney-General for New South Wales (1987) NSWLR 671 at p 698 per McHugh J.A.

HEARING

CANBERRA
20:10:1988

Counsel for the Prosecutor: Mr I. Byrne

Solicitors for the Prosecutor: John Faulks & Co.

Counsel for the Respondents: Dr D. O'Connor

Solicitors for the Respondents: Director of Public Prosecutions

ORDER

In each case the rule nisi be discharged with costs.

DECISION

These two matters are heard together. They are each the return of an order nisi applied for and obtained on 14 December 1987. They are each directed to a Magistrate and to a person who was the informant in the proceedings before the Magistrate. The orders nisi are to show cause why a writ of certiorari should not issue to quash certain convictions. The person convicted, Carmel Charles Borg, is the prosecutor in the present proceedings. It may be convenient to refer to him as Mr. Borg. The grounds upon which the applications are made are set out at length in the orders nisi but they may be summarised by saying that Mr. Borg contends that the convictions involved were an abuse of the process of the court over which the Magistrate presided. The grounds are restated and dressed up in all sorts of ways in the orders nisi but the hearing before me was conducted, as I think it had to be, on the basis that there had been an abuse of the process of the Magistrates Court.

2. The factual background is as follows. On 22 September 1981 Mr. Borg was convicted in the Canberra Magistrates Court of an offence under s.302 of the Companies Ordinance 1962, that by a false pretence he induced another person to give credit to a certain company. That offence was committed on 20 September 1973. Mr. Borg defended the charge. He was discharged under s.556B of the Crimes Act 1900 New South Wales in its application to the Australian Capital Territory upon entering into a recognizance in the sum of $200 to be of good behaviour for a period of two years. He accepted his solicitor's advice not to appeal against the conviction.

3. On 23 February 1983 in the Canberra Magistrates Court Mr. Borg pleaded guilty on advice to two charges under s.67(3) of the Companies Ordinance 1962, that being an officer-in-default of a certain company, he gave financial assistance to another person in connection with a subscription for shares in the company. Those offences were committed in or about May 1973. In respect of each conviction he was fined $200 together with costs of $20, in default 9 days imprisonment. I presume that he paid the fines.

4. There was a considerable body of factual material before me about what happened between 1973 and 21 November 1980 when the informations were laid which led to the convictions. In the event, for reasons which will become apparent, nothing turns on this material. However, it may be noted that at no time did Mr. Borg or anybody on his behalf make complaint to the Magistrates Court that the proceedings were an abuse of process.

5. I understand that Mr. Borg now wants the convictions annulled because they resulted in his disqualification under sub-s.227(2)(b) of the Companies Act 1981 from acting as a director of a company without the leave of the Court.

6. During the course of the hearing I was referred by counsel for both sides to the recent and rapidly increasing body of judicial authority on the subject of the power to stay proceedings as an abuse of process. Most of it stems from delays brought about by increasing caseloads in the courts. Much of it is to be found in New South Wales, particularly in the Court of Appeal. There has been considerable discussion of the nature of the power or jurisdiction to order a stay of proceedings as an abuse of process, the so-called right to a speedy trial, the criteria for granting or refusing an order to stay, whether and to what extent delay may be regarded as oppressive to a defendant, the nature of the prejudice caused to a defendant by delay and like matters. Until the High Court has expressed an opinion on some of these matters (special leave to appeal was refused in Watson's case), it may be that at least for this Territory they remain unsettled. In the meantime certain principles may be enunciated. These principles emerge from the cases cited during the hearing which in deference to the industry of counsel are referred to as follows:
Life Association of Scotland v. Siddal (1861) 3 DeG

F & J 58.
Herbert Bell v. Director of Public Prosecutions and
Another (1985) 1 AC 937 (PC).
Barton and another v. The Queen and another [1980] HCA 48; (1980) 147
CLR 75.
Herron v. Mcgregor and Ors. (1986) 6 NSWLR 246.
Whitbread & Ors v. Cooke & Ors; Purcell v. Cooke &
Ors. (No. 2) SC NSW (1987) 5 ACLG 305.
Joel and Others v. Mealey (1987) 27 A Crim R 280.
Herron v. Attorney-General for New South Wales and
Ors. (1987) 8 NSWLR 601.
Watson v. Attorney-General for New South Wales (1987)
8 NSWLR 687.
Rutkowski and Ors. v. Director of Public Prosecutions
& Ors. (unreported, Court of Appeal (NSW), 29 October
1987)
Jones v. The Director of Public Prosecutions for the
State of New South Wales & Anor. (unreported, Court of
Appeal (NSW), 4 November 1987).
Re Caruana and Ors; Ex parte Deputy Federal
Commissioner of Taxation Federal Court of Australia
(1988) FLC 901-903.
Jago v. The District Court of New South Wales & Ors.
(unreported, Court of Appeal (NSW), 10 May 1988).
Cook v. Purcell; Cook v. Whitbread; Attorney-General
v. Purcell (unreported, Court of Appeal (NSW),
9 August 1988).

7. In our own Court there is the decision of Kelly J. in The Queen v. Dorel Goia (unreported, 10 November 1987) which went on appeal to the Federal Court but only on the question of costs, see The Queen v. Dorel Goia (unreported, Federal Court of Australia, 19 September 1988). His Honour made an order staying the prosecution of an indictment which was presented to the Court during the course of the hearing of the application to stay. The ground for the stay was the delay between the date of the alleged offence and the laying of the information.

8. Every court or tribunal has the power to stop proceedings within that court or tribunal which amount to an abuse of its process. A court of superior and plenary jurisdiction such as the Supreme Court of the Australian Capital Territory has, in addition to the power to stop abuse of its own process, the power to prevent the continuation of proceedings in inferior courts and tribunals if those proceedings amount to an abuse of process. Whether the power of such a superior court to stay proceedings in other courts and tribunals is to be regarded as part of its inherent power or as part of its supervisory power over such courts and tribunals, or both, would not seem to matter. The power extends to control of both civil and criminal proceedings, and includes proceedings in magistrates courts. Delay in the hearing of the proceedings is the ground most frequently relied upon as constituting the abuse of process. The so-called right to a speedy trial (which may be no more than one aspect of the right to a fair trial) may stem from Magna charta (which survives in the Australian Capital Territory by virtue of s.6(1) of the Imperial Acts Application Ordinance 1986) or from the common law or in a less formal sense from international instruments to which Australia is a party such as the International Covenant on Civil and Political Rights. Some of the criteria, possibly the only criteria, of a breach of the right to speedy trial are: the length of the delay, the reasons for it, the contribution to the delay occasioned by the defendant, and the prejudice suffered by the defendant by reason of such delay.

9. It may well be of interest to consider and discuss many of the principles mentioned above as they relate to the present applications. To do so would, in my view, involve tracing several paths to the same destination, the inevitable conclusion that the present applications must fail. However, there is one fundamental reason which stands in the way of Mr. Borg succeeding and I propose to limit my remarks to that reason.

10. An application to stay proceedings as an abuse of process is an application to prevent proceedings which are on foot from being taken further. Proceedings which have been finalised may not be the subject of an order to stay. There is nothing left to stay. That is not to say that proceedings may not be stayed after judgment if there are proceedings still to be stayed. For instance, a stay of execution of judgment pending an appeal is familiar enough. But following execution of judgment the proceedings are terminated and it is quite inappropriate to seek to have them stayed.

11. An application for a stay of proceedings is to be distinguished from an appeal against a judgment or against an order and from an application to have proceedings declared void for want of jurisdiction. Mr. Borg was, of course, entitled to appeal from his convictions. He failed to exercise that right. If he had appealed, the appeal would have proceeded as a rehearing in accordance with s.214 of the Magistrates Courts Ordinance 1930 and the issue of whether the proceedings were an abuse of process would have been irrelevant for the purposes of the rehearing on appeal.

12. A distinction has been drawn between presumptive prejudice and specific prejudice. The former arises from the length of the delay itself and may be negatived by acquiescence or contribution by the defendant to that delay. The defendant's acquiescence or contribution may be not fatal to an application to stay if there is proof of specific prejudice such as the death of a witness or destruction of documents: Aboud v. Attorney-General for New South Wales (1987) NSWLR 671 at p 698 per McHugh J.A. An order to stay does not operate as an acquittal. It simply means that whilst the order remains in force the proceedings may not be taken any further. There has been discussion of the question whether the appropriate respondent to an application to stay proceedings in an inferior court or tribunal is the court or tribunal itself or the moving party there.

13. Mr. Borg now seeks to have the proceedings against him declared to have been an abuse of process and thus null and void. The fallacy in the argument presented on his behalf is, in my view, that even assuming that the proceedings were an abuse of process, it does not follow that they were a nullity. The proceedings and the convictions to which those proceedings led stand unless they are set aside by a competent court of appeal or declared null and void on some other ground such as want of jurisdiction or denial of natural justice. The applications before me are not appeals and no ground is advanced for establishing want of jurisdiction on the part of the Magistrate, except the circular argument that the proceedings were an abuse of process. The argument is not assisted by bringing the present applications in the form of applications for writs of certiorari. There is simply no basis for contending that the Magistrate lacked jurisdiction or that error on the face of the record has been shown, and it was not so contented.

14. I have taken time to consider whether proceedings which amount to an abuse of process necessarily involve a denial of natural justice. There is a suggestion to that effect in the judgment of Mahoney J.A. in Cook v. Purcell. If that suggestion is correct then, as a matter of logic, a convicted person ought be able to rely on certiorari to set aside that conviction if it has resulted from an abuse of process. However, the idea that a conviction ought be set aside because of the delay in the proceedings which led to the conviction is, at the very least, a novel one. Where there has been no complaint of delay at the trial and where the convicted person has forfeited any right to appeal, it would appear to fly in the face of reason.

15. In any event, there are abundant reasons for refusing the relief sought on the basis of discretion, the chief reason being the delay on Mr. Borg's part between the time of the conviction and the time of commencing the present applications, a period of over six years.

16. In each case the rule nisi is discharged with costs.