R v SH [2009] ACTSC 50 (8 May 2009)

Last Updated: 20 July 2009

HUMAN RIGHTS ACT

R v SH

[2009] ACTSC 50 (8 May 2009)

CRIMINAL LAW – indecent assault on young person – witness declined to give evidence – inappropriate to compel witness to testify – election of DPP to file a notice declining to proceed further in a prosecution (formally known as a nolle prosequi) – whether the Court has a discretion to decline to accept notice

HUMAN RIGHTS ACT – right to be tried without unreasonable delay – fairness to the accused

PRACTICE AND PROCEDURE – court procedure rules – rule 4736 – discretion of court to decline to accept notice after arraignment of the accused – court may act to prevent an abuse of its processes – duty of the court to prevent oppression and injustice

PRACTICE AND PROCEDURE – matter committed to the Supreme Court by way of committal hearing – indictment contains counts not the subject of the committal proceedings – whether trial could proceed on that indictment

Director of Public Prosecutions Act 1990 (ACT)

Human Rights Act 2004 (ACT)

Supreme Court Act 1933 (ACT)

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

Maxwell v The Queen [1996] HCA 46; (1995) 184 CLR 501

R v Howard (1992) 29 NSWLR 242

R v Jell, ex parte Attorney-General (1991) 1 Qd R 48

Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Question of Law Reserved on Acquittal (No 3 of 1995) [1996] SASC 5679; (1996) 66 SASR 450

R v YI [2004] ACTSC 115

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

No. SCC 69 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 8 May 2009

IN THE SUPREME COURT OF THE )

) No. SCC 69 of 2008

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

SH

ORDER

Judge: Higgins CJ

Date: 8 May 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The notice declining further to prosecute be received.

2. No proceeding in respect of these matters be taken without the leave of the Court.

1. On 9 April 2008, the Crown presented an indictment charging SH, the accused, with five counts alleging indecent assault upon a 10 year old girl.

2. On 22 September 2008, the DPP, Mr White, pursuant to s 7(6) of the Director of Public Prosecutions Act 1990 (ACT) (the DPP Act) lodged a notice declining further to prosecute, previously known as a “nolle prosequi” (the Notice).

3. On 23 September 2008, counsel for the accused, Mr Jack Pappas, submitted that the Court had a discretion to decline to accept the Notice and, instead, to direct a verdict of acquittal.

4. The parties were given leave to file written submissions on the issue, noting that the Human Rights Act 2004 (ACT) (the HR Act) might be engaged.

5. The starting point is the DPP Act s 7(6). That provides:

Where a person is under commitment or has been indicted for an indictable offence, the Attorney-General or the director may decline to proceed further in the prosecution of the offence and cause the prosecution to be brought to an end.

6. The basic question is whether the Court, being seized of the prosecution of the prosecution of the offender by reason of his arraignment (see Rule 4736), has a discretion to decline to accept the Notice. Clearly, the Director has a discretion whether or not to prosecute. The Notice merely evidences the making of a decision not to prosecute.

7. A similar power to decline to prosecute is conferred upon “the Attorney-General” under s 68(6) of the Supreme Court Act 1933 (ACT).

The discretion to refuse to accept a nolle prosequi

8. There is no question of review of the decision not to prosecute (see Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 91 per Gibbs and Mason JJ; Maxwell v The Queen [1996] HCA 46; (1995) 184 CLR 501 at 534 per Gaudron and Gummow JJ). That principle applies to the analogous discretion conferred by s 7(6) of the DPP Act (see R v Howard (1992) 29 NSWLR 242 referring to the equivalent New South Wales provision).

9. That does not, however, prevent a Court, seized of a criminal proceeding, from acting to protect its process from abuse.

10. Thomas J in R v Jell, ex parte Attorney-General (1991) 1 Qd R 48 expressed the view that this power might extend, despite a nolle prosequi being proferred (at p 60):

... to insist that the trial proceed to the protective conclusion of a verdict

11. Macrossan CJ (at p 53) expressed a similar view.

12. In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30 Mason CJ referred to the power of a Court, at least so far as a superior court of record is concerned, to stay, permanently or otherwise, proceedings upon an indictment if that appears necessary to avoid oppression of an accused.

13. In a case such as the present it would be open to a Court to stay any fresh indictment that may be presented. The stay might be permanent or conditional.

14. The comments of Debelle J in Question of Law Reserved on Acquittal (No 3 of 1995) [1996] SASC 5679; (1996) 66 SASR 450 (Acquittal (No 3)) and of Lee J in R v Jell (supra) make it clear that once the indictment has been presented it is for the Court to determine whether it should accept a nolle prosequi and return the indictment to which it relates, irrespective of whether the accused is yet to be arraigned or placed in charge of a jury (or judge alone).

15. Both Mullighan J in the Acquittal (No 3) at 451 and Crispin J in R v YI [2004] ACTSC 115 expressly acknowledge the power and duty of the Court to refuse to receive a nolle prosequi or its equivalent if to do otherwise would result in oppression and injustice.

Whether the Notice should be accepted

16. The director has presented the Notice on the ground that, a witness, vital to proof of the case, had declined to give evidence. It is regarded by the DPP as inappropriate to seek to compel that witness to testify. That decision is, in my view, a reasonable one in the circumstances as I understand them to be.

17. Counsel for the accused points out that to do otherwise than to compel the Crown to submit to a verdict leaves a “sword of Damocles” above the head of the accused ready to descend in the event, apparently unlikely, that the witness changes her mind about giving oral testimony.

18. That situation it is contended, engages s 22(2)(c) of the HR Act, namely, the right to be tried without unreasonable delay.

19. It is to be observed that the rights conferred by the HR Act and, in particular s 22, are not absolute. Section 28 affirms that rights otherwise guaranteed by the HR Act may be subject to “reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society”.

20. Thus, for example, the fact that a criminal allegation surfaces many years after the events to which it relates does not preclude the prosecution of it, subject to the usual constraints (see for example, Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79).

21. In this case, the allegations relate to events allegedly occurring at the earliest in 2003 and 2007 at the latest.

22. The committal to this Court occurred on 27 February 2008 in respect of two more recent allegations (of 3 March 2007). The indictment is dated 9 April 2008. It contains counts not the subject of the committal proceedings and relating to events in 2003.

23. It is clear that there may be issues, even apart from the refusal of the complainant to give evidence, that might stand in the way of the trial of that indictment. For instance, should there be a Basha inquiry concerning the allegations not the subject of committal?

24. On the other hand, the cause of the reluctance on the part of the complainant to give evidence is not known. She may have no evidence to give that would assist the prosecution. Some witnesses in her situation might be too traumatised to give evidence. In my view, it would not be in the interests of justice to absolutely foreclose upon any reasonable chance that she might become willing or able to testify.

25. Nevertheless, it is a valid complaint of the accused that he ought not be vexed by a prosecution permanently pending. I believe the solution to be that I receive the Notice, thereby terminating this prosecution and return the indictment to the DPP but order that no proceedings in respect of the matters therein charged be taken without the leave of this Court.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 8 May 2009

Counsel for the Crown: Mr A Doig

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Defendant: Mr Jack Pappas

Solicitor for the Defendant: Ben Aulich & Associates

Date of hearing: 23 September 2008

Date of judgment: 8 May 2009