Bou-Simon v Attorney-General [2000] FCA 24 (21 January 2000)

Last Updated: 24 January 2000

FEDERAL COURT OF AUSTRALIA

Bou-Simon v Attorney-General [2000] FCA 24

EXTRADITION - abuse of process - intervention in foreign extradition process - intervention in local criminal proceeding - application by Commonwealth Attorney-General to French Government for extradition of appellant from France to Australia to face criminal prosecution for alleged offences under s 232(6) of the Corporations Law - extradition application supported by supplementary affidavit prepared by officer of the Office of the Commonwealth Director of Public Prosecutions - whether supplementary affidavit misleading and an abuse of or fraud upon the extradition process - whether intervention in the extradition process or the criminal proceeding warranted.

Corporations Law s 232(6)

R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42, considered

R v Martin [1997] UKHL 56; [1998] 2 WLR 1, considered

R v Staines Magistrates' Court: ex parte Westfallen [1998] 4 All ER 210, considered

Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, considered

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, considered

Yates v Wilson (1989) 168 CLR 338, applied

Ridgeway v The Queen [1994] HCA 33; (1995) 184 CLR 19, considered

ROBERT ANTHONY BOU-SIMON v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND ANOR

NG 961 OF 1998

JUDGES: BLACK CJ, TAMBERLIN and KATZ JJ

DATE: 21 JANUARY 2000

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 961 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ROBERT ANTHONY BOU-SIMON Appellant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA First Respondent DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) Second Respondent

JUDGES:	BLACK CJ, TAMBERLIN & KATZ JJ
DATE:	21 JANUARY 2000
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents' costs of the appeal, including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 961 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ROBERT ANTHONY BOU-SIMON Appellant
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA First Respondent DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) Second Respondent

JUDGES:	BLACK CJ, TAMBERLIN & KATZ JJ
DATE:	21 JANUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT OF THE COURT

1 This appeal arises out of a request made by the Attorney-General of the Commonwealth to the Republic of France for extradition of the appellant, Mr Robert Anthony Bou-Simon, from France to Australia to face criminal prosecution for alleged contraventions of the Corporations Law. The appellant appeals against a decision of Emmett J dismissing with costs an application by him pursuant to s 39B of the Judiciary Act 1903 (Cth) for various orders in connection with the criminal and extradition proceedings. The orders he sought included declarations that a supplementary affidavit relied upon in support of the extradition was misleading and that its provision for submission to the Court of Criminal Appeal of the Appeal Court of Paris ("the French court") was an abuse of process. He also sought orders restraining the Attorney-General from continuing the extradition proceeding and the Director of Public Prosecutions (Cth) ("the DPP") from continuing the criminal proceedings.

BACKGROUND

2 The criminal proceedings against the appellant were commenced on 1 December 1995 with the issuing of six warrants for his arrest pursuant to informations laid by the DPP on the same day. In substance, the warrants allege that the appellant, while working in Australia as an employee of Fay Richwhite Futures Australia Limited ("FR Futures"), engaged in unauthorised trading in breach of s 232(6) of the Corporations Law. Section 232(6) provides as follows:

"An officer or employee of a corporation must not, in relevant circumstances, make improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or herself or for any person or to cause detriment to the corporation."

3 The six warrants allege similar but separate offences. The primary judge considered the issues raised in the proceedings by reference to one of the warrants, described as "Warrant Computer System Number 3034307" ("the warrant"), and we shall adopt the same course. The allegation made in the warrant was that Mr Bou-Simon:

"Did between about 15 September 1992 and about 29 September 1992 at Sydney in the State of New South Wales, being an employee of a Corporation, namely Fay Richwhite Futures Australia Limited ("the Corporation") conduct trading without authorisation and thereby did make improper use of his position as such an employee to gain an advantage for himself, namely a financial advantage."

4 The "improper use" which the appellant is said to have made of his position is particularised in the warrant in the following terms:

1. "BOU-SIMON conducted trading using account number 17110, an account of the Corporation [defined as FR Futures], in the name of O & O Investments Pty Limited ("O & O Investments") without the authority of Mark O'Brien, a Director of O & O Investments and without the authority of the Corporation.

2. The unauthorised trading using account number 17110 consisted of four trades ordered by BOU-SIMON on an Order Sheet dated 15 September 1992. The four unauthorised trades were:

(i) sell 100 short sterling ("SS") interest rate futures for 89.66.

(ii) buy 100 SS interest rate futures for 89.56.

(iii) sell 100 SS interest rate futures for 89.51, of which 30 contracts were sold at 89.51 and the remainder cancelled.

(iv) buy 30 SS interest rate futures for 89.48.

The trades referred to in (i), (ii) and (iv) were executed at the nominated prices.

3. BOU-SIMON without authorisation from O & O Investments or the Corporation, with the assistance of SUSAN MARGARET BAHR ("BAHR") posted the 4 unauthorised trades referred to in Particular 2 above to account number 17110 in the name of O & O Investments.

4. BOU-SIMON then acquiesced in the subsequent transfer of the 4 unauthorised trades by BAHR from account number 17110 in the name of O & O Investments to account number 17121 which was an account of the Corporation established without authorisation.

5. The 4 unauthorised trades were eventually settled in account number 17121 on 29 September 1992. The settlement resulted in a profit of G.B.P.13,625.00."

5 By the time the warrants for the appellant's arrest were issued on 1 December 1995, he had left Australia and was working in France with the result that the warrants could not be executed. Nearly two years later, in September 1997, the Attorney-General applied to the French Government to have the appellant extradited to Australia to face criminal prosecution for the charges particularised in the warrants. That application was made pursuant to the Treaty on Extradition between the Government of Australia and the Government of the Republic of France of 31 August 1988, the relevant terms of which are extracted in the reasons for judgment of Emmett J. The Attorney-General's application was accompanied by an affidavit of law sworn on 5 September 1997 by Mr Ian Donald Craigie, a legal officer of the DPP. Mr Craigie's affidavit purports to set out the general principles of Australian law.

6 Following receipt of the DPP's application, the French authorities arrested the appellant at his home in Paris on 29 November 1997 and took him before a magistrate in chambers where he was informed of the request for his extradition. He was then remanded in custody to appear before the French court on 17 December 1997 for the hearing of the extradition application. That hearing was adjourned until 21 January 1998, on which day the appellant was granted bail. He was released from custody the following day.

7 On the same day that informations were laid against the appellant, informations were also laid against Ms Susan Margaret Bahr alleging that she had aided and abetted the alleged offences by the appellant under s 232(6). The informations against Ms Bahr reproduced the allegations against the appellant contained in the warrants for his arrest.

8 The hearing of the charges against Ms Bahr commenced in the Local Court at Sydney before Magistrate Horler on 2 February 1998. The legal officer of the DPP responsible for the conduct of the prosecution was Mr Craigie. On 9 February 1998, Magistrate Horler found that the charges against the appellant were duplicitous. She permitted the DPP to resolve that duplicity by electing to confine the charges to one offence only, which the DPP did by reformulating each charge to repeat the allegation that the appellant had contravened s 232(6) by making improper use of his position as an employee of FR Futures to gain an advantage for himself.

9 Following this reformulation, counsel for Ms Bahr moved for the dismissal of the aiding and abetting charges against her on the ground that the prosecution had failed to prove the first element of the offences charged, namely, that the appellant, Mr Bou-Simon, was at the relevant times an employee of FR Futures. Magistrate Horler found that the appellant was not an employee of FR Futures, but rather was an employee of its parent company, Fay Richwhite Australia Limited ("FR Australia"). This finding precipitated an application by the DPP to have the charges amended by the court under

s 15C of the Crimes Act 1914 (Cth) ("the Crimes Act") to reflect the true identity of the appellant's employer. Section 15C provides as follows.

"(1) At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.

(2) If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.

(3) The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant."

10 Magistrate Horler refused the DPP's application, agreeing with the submissions made on behalf of Ms Bahr that s 15C could not be "used to circumscribe the limitation period", and that the amendment sought by the DPP would be "adding a fresh element to the informations, and therefore it is statute barred". In her Worship's view, to allow the amendment would be "an abuse of process and such an unfairness to [Ms Bahr] that it should not be allowed". These comments by Magistrate Horler were made in the course of argument, and were not supplemented by written reasons. The DPP did not appeal against the magistrate's decision, and thus the prosecution of Ms Bahr failed.

11 On 18 February 1998, the application for the appellant's extradition came on for hearing before the French court. The French authorities and the appellant were both represented by experienced French advocates. The Commonwealth Attorney-General was not a party to the proceeding and was not represented before the French court.

12 During the extradition hearing, the appellant opposed the request for his extradition on various grounds, including that the majority of the charges would be statute-barred under French law, and that it was not certain that the events giving rise to the charges would constitute an infraction under Australian law. Consideration of these grounds led the French court, by order dated 18 February 1998, to ask the Australian authorities for the following supplementary information in relation to the charges against the appellant.

§ "[T]hat the acts committed between 15 September 1992 and 22 October 1992 are not excluded from prosecution by a limitation period under Australian law, and indicating the date on which the investigation was commenced, including whether the acts relevant to the proceedings or search for evidence were carried out before the issuing of the arrest warrants (if so, a list of these acts is to be provided);

§ the exact and detailed content of the acts for which ... Bou-Simon is accused; in particular which acts are said to have gained for him a person [sic] financial advantage;

§ whether the companies legislation, as amended on 1 February 1993 should be considered, according to Australian law, as being more lenient or more strict."

In response to this request, a supplementary affidavit was sworn by Mr Craigie on 30 April 1998. It includes the following paragraphs:

"The limitation period

2. The acts committed between 15 September 1992 and 22 October 1992 are not excluded from prosecution by a limitation period under Australian law.

....................................

4. Proceedings for an offence may be instituted under Australian law by the laying of a charge in respect of that offence. Charges were laid in respect of each of the offences for which Bou-Simon's extradition is sought on 1 December 1995, that is, within 5 years of the commission of the earliest act by Bou-Simon alleged to constitute the offences.

5. Under Australian law, Bou-Simon may be prosecuted for each of those offences even though the acts alleged to constitute some or all of those offences may be more than 5 years old at the time the prosecution is heard by the trial court.

....................................

Acts alleged in relation to each charge laid against Bou-Simon

....................................

32. Bou-Simon was employed at all relevant times as the manager of Overseas Futures ..... of [FR Futures]...

33. Bou-Simon was actually employed to carry out duties with [FR Futures] by [FR Australia] which was the immediate parent entity of [FR Futures]. The warrants for Bou-Simon's arrest refer to Bou-Simon being an employee of [FR Futures]. This is an error in particulars which may be amended before trial under section 15C of the Crimes Act 1914 which applies to the present proceedings... Also Section 65 of the Justices Act... applies to the present proceedings. Under this enactment no objection is allowed to any alleged defect in substance or form in the information setting out the charge and to any variance between the information and the evidence adduced in support of the charge at the hearing.... This error in particulars does not, under Australian law, invalidate the warrants issued for Bou-Simon's arrest.

....................................

1993 amendments to the Corporations Law

37. The 1993 amendments to section 232(6) of the Corporations Law changed the mental element which must be proved in order to establish the commission of a criminal offence. Prior to 1993 it was enough for the prosecution to prove that a person contravened the section. In respect of conduct that occurs after 1 February 1993, a person is only criminally liable for a contravention of section 232(6) if the person contravened that section with a dishonest intent (as set out in section 1317FA(1)).

38. A person who contravenes section 232(6), but not with a dishonest intent, is still civilly liable to substantial penalties, including a pecuniary penalty of up to $200,000.

39. The purpose and effect of the 1993 amendments was not to make the Corporations Law more lenient but, rather, to ensure that criminal liability for contraventions of certain provisions (such as section 232(6)) only applies where there is a dishonest intent.

40. It is alleged in the present case that Bou-Simon acted with a dishonest intent and, accordingly, if his relevant conduct had occurred after 1 February 1993 Bou-Simon would still be criminally liable for that conduct.

....................................

Prosecution of Susan Bahr

42. Earlier this year, in the Downing Centre Local Court in Sydney, Susan Bahr was prosecuted for being knowingly concerned in the offences allegedly committed by Bou-Simon. On 11 February 1998, at a very late stage in the proceedings after the prosecution had completed its evidence, the magistrate hearing the charges against Bahr was made aware of the mistake referred to in paragraph 33 above relating to which company employed Bou-Simon. It was only then that the prosecution realised that the mistake had occurred. The magistrate refused an application by the prosecution to amend the charges and subsequently dismissed the charges. For reasons which are not relevant to the present matter, the DPP decided not to appeal against the decision of the magistrate."

13 A copy of the supplementary affidavit was obtained by the appellant on 27 May 1998, by which time the proceeding before the French court had been adjourned until 24 June 1998. In the intervening period, on 16 June 1998, the appellant instituted a proceeding in this Court. On 22 June 1998, Emmett J granted interlocutory relief by ordering that the DPP write to the appellant's solicitors confirming: (a) that the amendment referred to in par 42 of the supplementary affidavit was to change the name of the company alleged to have been the appellant's employer from FR Futures to FR Australia; and (b) that one of the grounds upon which Magistrate Horler refused leave to make that amendment was that changing the name would add a fresh element to the informations, which could not be done because the limitation period had expired.

14 The extradition application came back before the French court on 24 June 1998. There was evidence before Emmett J about the proceedings before the French court, from which his Honour concluded as follows:

"When the extradition request came before the French court on 24 June 1998, there were present the three judges constituting the Court, a lawyer appearing for the French authorities, Mr Bou-Simon and his lawyer and various court officials.

Mr Bou-Simon's lawyer argued that extradition should not be granted and opened by referring to the Bahr case. He explained that Ms Bahr was an accomplice of

Mr Bou-Simon and that her case had successfully been defended on the basis that the name of the relevant employer could not be changed. He informed the French court that the judgment in the Bahr case had not been the subject of appeal. He said that Ms Bahr was charged with the same offences as Mr Bou-Simon and that, given that those charges were not successful against her, they could also not be maintained against Mr Bou-Simon for the same reasons.

Mr Bou-Simon's lawyer then went on to say that those facts were not made clear in the documents which were submitted to the French authorities and that that had led to Mr Bou-Simon commencing these proceedings in the Federal Court. Reference was made to the interlocutory order which I made although Mr Bou-Simon's lawyer stressed that that was not a judgment of this Court. A copy of the order was shown to the lawyer for the French authorities who said that there had not been enough time to prepare a translation.

The lawyer for the French authorities argued that the documents as provided by the Australian authorities showed a clear case for extradition and that all the necessary requirements were present. Furthermore, it was contended that the material contained in the supplementary affidavit explained and answered the arguments put forward by Mr Bou-Simon's lawyer. The Court said that the matter would be stood over and that the earliest date for hearing would be 16 September 1998 because of the Summer recess. The lawyer for the French authorities questioned the necessity for standing the matter over, arguing that nothing new, relevant to the case, would occur in the meantime. Nevertheless, the French court agreed to stand the matter over until 16 September 1998."

THE PROCEEDING BEFORE EMMETT J

15 Before Emmett J, the appellant argued that the supplementary affidavit was misleading and inaccurate, and had been relied upon by the Australian Government in circumstances such as to amount to an abuse of process. This submission was founded primarily upon the decision of the House of Lords in R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42 ("Bennett's Case"). It was argued that the abuse of process was such as to warrant intervention in the extradition proceedings and a stay of the criminal proceedings.

16 Although the appellant's initial contention before Emmett J was that the judge should not embark upon a consideration of whether there were correct statements of general legal principle in the supplementary affidavit concerning the effect of s 15C of the Crimes Act and s 65 of the Justices Act 1902 (NSW) ("the Justices Act"), that did become an issue in the proceeding. This occurred because the DPP contended that in order to determine whether or not the affidavit was misleading, so as to determine whether or not the conduct of the DPP involved an abuse of process, it was necessary for the Court to resolve the legal question. The appellant's contention, on the other hand, was that the affidavit was misleading irrespective of the legal question. As Emmett J pointed out in his reasons for judgment, the appellant's response to the DPP's approach to the case was to maintain that it was inappropriate for the Court to embark upon the consideration of that question, but that if the DPP persisted in raising the legal question, the appellant would answer it and would seek to restrain the DPP from proceeding with the prosecution on the basis that it must inevitably fail. So it was that the appellant was granted leave, without opposition, to seek additional relief by way of judicial review of the decision of the DPP to prosecute Mr Bou-Simon and orders restraining the DPP from proceeding with the criminal prosecutions. Moreover, the DPP apparently indicated that if the Court accepted the contentions advanced by the appellant in relation to s 15C of the Crimes Act and s 65 of the Justices Act, the DPP would not pursue the extradition application since a fatal flaw in the proceeding would have been shown. It will be necessary to return later to that aspect of the case.

17 Emmett J was not persuaded that the supplementary affidavit was relevantly misleading in many of the respects claimed, but he did consider that the affidavit was capable of creating a misleading impression as to why Magistrate Horler had dismissed the proceeding against Ms Bahr, in that the affidavit failed to disclose that an amendment had in fact been sought and refused. Emmett J noted, however, that the appellant had been afforded the opportunity to place before the French court full particulars about the prosecution of Ms Bahr and its outcome, including the reasons for that outcome. It was also, his Honour concluded, open to the appellant to produce to the French court expert evidence of Australian law contradicting the statements of general principle made by

Mr Craigie. His Honour came to these conclusions as "the background [against which] this Court is called upon to consider the relief sought in the proceedings by

Mr Bou-Simon".

18 On the issue whether an abuse of process had been shown, Emmett J was prepared to accept that if bad faith were established in relation to the extradition process, an Australian court might well intervene in relation to the prosecution in Australia on the principles emerging from Bennett's Case, but that intervention would normally be by way of a stay of the prosecution. He was not persuaded, however, that Mr Craigie had been shown to be lacking in good faith in relation to the application to the French court. Although there might have been errors of judgment, his Honour was not persuaded "that there is a risk that there has been an abuse or fraud on the extradition process, such as would justify intervention" by the Court. Emmett J also considered that it would be inappropriate for a court to intervene to supervise the material submitted on behalf of an Australian prosecuting authority to a foreign court, although he considered that the position might be different if extradition were sought from a country where there was doubt as to whether procedural fairness would be afforded to an accused person. That was not the case here. Accordingly, his Honour concluded that no basis for intervention had been made out. Emmett J then went on to consider the issues concerning s 15C of the Crimes Act and s 65 of the Justices Act. He concluded that these sections could be relied upon by the DPP to show that the relevant proceedings had been commenced by the laying of the informations on 1 December 1993, and thus that the limitation period provided for in s 1316 of the Corporations Law would have no application.

THE APPEAL

19 The appellant's first argument was that Emmett J had failed to give proper consideration to whether the supplementary affidavit was in fact misleading and, if so, whether the Court should "condone its use" in the extradition process. The appellant challenged a passage in his Honour's reasons, which he submitted demonstrated that the judge's approach was fundamentally flawed. The passage, which is at the end of the "background" section referred to above, is in these terms:

"I am satisfied that there is no likelihood of procedural unfairness to Mr Bou-Simon in relation to the hearing of the application, and that if, as alleged by Mr Bou-Simon, the material furnished by means of the Supplementary Affidavit is misleading or incomplete, Mr Bou-Simon has had, and will have, ample opportunity to correct any misleading impression which it may have created".

20 The appellant claimed that the effect of this approach was that in the absence of proof of bad faith an Australian court would not intervene to prevent a threatened abuse of process if it was satisfied that a defendant would be afforded "procedural fairness" in the foreign court, in the sense of being afforded an opportunity to prove that the Australian authorities had in fact engaged in an abuse of process. This approach, it was argued, was wrong because it permitted an Australian court to condone departures from the proper administration of criminal justice on the basis that the foreign court could examine the question or, if not, then an Australian court could deal with the matter upon the appellant's return to Australia after extradition had been granted. This, it was argued, could not be the law since it was likely to bring the administration of justice into disrepute. Reference was also made of the duty of a prosecutor to be fair and to the obligations of expert witnesses. Paragraph 42 of the supplementary affidavit was, it was said, cleverly crafted to convey the false impression that the application to amend in the case of Ms Bahr was refused on discretionary grounds only. In support of this contention, the appellant placed particular emphasis upon the statement in the supplementary affidavit that the application to amend was made at a "very late stage in the proceedings". This, combined with other inaccuracies in the affidavit, should have led the judge to conclude, it was submitted, that the DPP was "endeavouring to achieve extradition of the appellant by stealth".

21 To some extent the submissions made by the appellant in the first part of the argument merged with the submissions made on the question whether bad faith had in fact been shown. We shall deal with those aspects of the argument later.

22 The submission that Emmett J failed to give proper consideration to the issue of whether the supplementary affidavit was in fact misleading, and if so, whether the Court should "condone its use", must be rejected. Properly understood, the reasons for judgment do not have the effect that the appellant claims. His Honour's reasons are explicit in their treatment of the question of possible procedural unfairness in relation to the proceedings before the French court. What the judge did was to deal with those matters as background against which he had to consider the relief sought. They were matters that would clearly have been highly relevant to the grant of relief had the judge reached the conclusion that a case of abuse of process had been made out. His Honour did not reach that conclusion because he held that a finding of an abuse of process in the circumstances relied upon by the appellant required a finding of bad faith, which he was not prepared to make.

23 Emmett J, having said that he was not persuaded on the issue of abuse or fraud on the extradition process, then went on to consider what he evidently regarded as the quite separate question of whether it would be appropriate for an Australian court to intervene in a foreign extradition process. He concluded that it would not be appropriate for the Court to intervene to supervise the material submitted on behalf of an Australian prosecuting authority to a foreign court, and that accordingly the Court should not "supervise the DPP in the contentions which might be advanced and the evidence which might be adduced in support of the extradition application to the French court". It was at this point that his Honour said that the position might be different if extradition was sought from a country where there was some doubt as to whether procedural fairness would be afforded to an accused person. The judge expressed no concluded view on that point because it did not arise in the present proceeding having regard to the findings he had made about procedural fairness.

24 As a related submission, counsel for the appellant contended that the procedural fairness to which his Honour referred afforded, as a practical matter, no real safeguard to Mr Bou-Simon. This was particularly the case having regard to his situation before the French court as a person whose extradition was being sought, which contrasted markedly with that of the authorities seeking his extradition. This submission must be rejected. In part it is answered by what we have already said about the way in which the judge dealt with procedural fairness. The other answer is that in reaching the conclusions he did about procedural fairness, Emmett J must be taken to have been looking at the matter from a practical and not merely theoretical viewpoint. There was ample evidence, including evidence about the nature and extent of the legal representation available to

Mr Bou-Simon, to support the conclusion that, as a realistic and practical matter,

Mr Bou-Simon would be afforded procedural fairness and would have what his Honour described as "an ample opportunity to correct any misleading impression it [the supplementary affidavit] may have created".

25 We should add that Emmett J gave careful, and in our view correct, consideration to each of the individual allegations of misleading conduct in the supplementary affidavit.

26 The appellant then challenged the way in which the learned primary judge had dealt with the question of bad faith.

27 First, it was said that Emmett J drew a distinction between cases in which an accused was already within the jurisdiction and a case, such as the present, where the accused was within a foreign jurisdiction, and that his Honour held that in the latter case, but implicitly not in the former, an Australian court would only intervene if bad faith were established. This submission involves a misreading of his Honour's reasons. Although the judge did note that there was a point of distinction between the present case and Bennett's Case, in that in Bennett's Case the accused person was already within the jurisdiction of the United Kingdom and in the present case Mr Bou-Simon was in a foreign jurisdiction, it is clear that his Honour did not regard presence within a foreign jurisdiction as requiring proof of some additional or different element. On the contrary, he was prepared to apply the principles emerging from Bennett's Case to the present circumstances, notwithstanding the point of distinction he had identified.

28 The next question for decision in the appeal is whether, as the appellant contends, the learned primary judge was in error in concluding that "bad faith" had to be established to make out a case of abuse of, or fraud on, the extradition process, such as would justify intervention by the Court.

29 In considering this question it is necessary to bear in mind that whilst, on the appeal, the appellant relied both upon broad general principles relating to abuse of process and upon the decision of the House of Lords in Bennett's Case, his primary submission before Emmett J was based upon Bennett's Case. We therefore now turn to consider what Bennett's Case stands for, before considering the general principles upon which the appellant relies.

30 Bennett's Case involved an allegation of circumstances which, if established, were exceptional. Bennett, a New Zealand citizen, was alleged to have committed criminal offences in England. He was traced to South Africa, but the English police decided not to seek his extradition. Instead, so it was alleged, the English police colluded with the South African police to have Bennett arrested in South Africa and forcibly brought to England against his will and in defiance of an order he had obtained from the Supreme Court of South Africa. The precise question for determination was certified by the Divisional Court in the following terms (see [1994] 1 AC 42 at 53 per Lord Griffiths):

"Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction."

In addressing that question Lord Griffiths said (at 61-62):

"As one would hope, the number of reported cases in which a court has had to exercise a jurisdiction to prevent abuse of process are comparatively rare. They are usually confined to cases in which the conduct of the prosecution has been such as to prevent a fair trial of the accused....

There have, however, also been cases in which although the fairness of the trial itself was not in question the courts have regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process....

Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law....

Let us consider the position in the context of extradition. Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country... If a practice developed in which the police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit. It is to my mind unthinkable that in such circumstances the court should declare itself to be powerless and stand idly by...

The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.

In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing part."

Similarly, Lord Bridge of Harwich said (at 67-68):

"Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles to which they seek to give effect stem from common roots. There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstances. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view. Having then taken cognisance of the lawlessness it would again appear to me to be a wholly inadequate response for the court to hold that the only remedy lies in civil proceedings at the suit of the defendant or in disciplinary or criminal proceedings against the individual officers of the law enforcement agency who were concerned in the illegal action taken. Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted."

31 Lord Lowry agreed with the reasons of Lord Griffiths and Lord Harwich and added his own reasons, in the course of which his Lordship said:

"I regard it as essential to the rule of law that the court should not have to make available its process and thereby endorse (on what I am confident will be very few occasions) unworthy conduct when it is proved against the executive or its agents, however humble in rank."

Lord Slynn agreed with Lord Griffiths. Lord Oliver of Aylmerton dissented.

32 Bennett's Case was recently referred to in R v Martin [1997] UKHL 56; [1998] 2 WLR 1, another decision of the House of Lords. Lord Lloyd of Berwick, with whom Lord Browne-Wilkinson and Lord Slynn of Hadley agreed, noted that in Bennett's Case the House of Lords had held that the High Court "has a wide responsibility for upholding the rule of law where, on the assumed facts, there had been a deliberate abuse of extradition procedures" (at 7, our emphasis). His Lordship distinguished the case observing that it could not possibly be said that the decision not to stay the proceeding against Martin was "contrary to the rule of law, or that it deprived the appellant of any of his basic human rights", nor could it be said to be "something so unfair and wrong" that the Court ought to intervene (at 7). Lord Clyde also referred to Bennett's Case and, having referred to the passage in the speech of Lord Griffiths that we have set out above, observed that those words gave useful guidance towards defining the standard that must be met in determining whether circumstances occurring outside the conduct of a criminal trial may qualify as an abuse of process so as to vitiate all that may have followed. His Lordship then said (at 25; emphasis added):

"No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness".

33 Similarly, in R v Staines Magistrates' Court: ex parte Westfallen [1998] 4 All ER 210, which concerned an unsuccessful attempt to obtain a stay of criminal proceedings where there had allegedly been a "disguised extradition", Lord Bingham CJ referred to there being "nothing to suggest any impropriety such as would attract application of the ratio in Bennett v Horseferry Road Magistrates' Court in this case" (at 222). His Lordship also observed (at 223) that there was "no illegality, no violation of international law, no violation of the domestic law of Canada and no abuse of power." See also per Hooper J at 223-223.

34 It is thus clear that Bennett's Case is concerned with serious misconduct and that it provides no support for a conclusion that there was an abuse of process in the present case. The formulations all differ somewhat, but in the absence of bad faith, it cannot possibly be said, for example, that something occurred here that was so gravely wrong as to make it unconscionable that a trial of Mr Bou-Simon should go ahead, or to make it unconscionable that the extradition proceed to enable a trial to take place. The trial judge's view of Bennett's Case was quite correct. To make out a case of abuse of process on the basis of Bennett's Case, the appellant would be required, at the very least, to prove that Mr Craigie deliberately set out to mislead the French court and acted fraudulently or in bad faith and this, of course, is quite apart from other considerations that would need to be taken into account both in relation to the establishment of abuse of process and the relief sought.

35 The appellant also sought to rely upon decisions of this Court concerning search warrants, such as Karina Fisheries v Mitson (1990) 29 FCR 473 and Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542. As the primary judge pointed out, however, search warrant cases involve quite different considerations in quite different circumstances to those with which the Court is concerned here. In any event, those cases do not advance the appellant's submission that there was no need here to establish bad faith.

36 We should mention at this point that neither the Attorney-General nor the DPP challenged the judge's conclusion that if bad faith were established in connection with the extradition process, an Australian court might well intervene by ordering a stay of the prosecution in respect of which extradition was sought. Indeed, counsel for the Attorney-General implicitly accepted the correctness of the judge's approach, submitting that his Honour had been correct in concluding that the intervention of the Court would only be justified if bad faith or deliberate deception on the part of the relevant Australian authority were established. He also submitted that the judge was correct in his conclusion that if intervention by the Court were ever justified, it would normally be by way of stay of the prosecution. Essentially, the Attorney-General's submission was that to make out an abuse of process such as to justify intervention, it was necessary to establish that there had been a serious and deliberate abuse of executive power and that no abuse of that nature had been shown in the present case. In oral argument counsel for the DPP took a similar approach, stressing that before any intervention could be justified there would, at the least, need to be established what he described as "an actionable abuse of process" involving a deliberate attempt to mislead.

37 We now turn to consider the appellant's broader submission that there are essentially two aspects to abuse of process, neither of which involves proof of bad faith. In advancing this submission the appellant relied particularly on the observations of Mason CJ in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 where the Chief Justice, having referred to statements in the High Court, the House of Lords and the New Zealand Court of Appeal said (at 256):

"These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute."

38 It is important to draw attention, however, to what the Chief Justice then went on to say in the next paragraph of his reasons for judgment (footnotes omitted):

"This led the majority in Walton v Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations. Those considerations, which reflect the two aspects of abuse of process outlined above, include:

`the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.'"

39 In Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 133, Mason P referred to the two aspects upon which the appellant relies in the context of a more general discussion about abuse of process. Mason P said:

"An abuse of process in criminal proceedings was described by Lord Lowry in Hui Chi Ming v The Queen [1992] 1 AC 34 at 57 as "something so unfair and wrong that the court would not allow a prosecutor to proceed with what is in all other respects a regular proceeding". The power to stay proceedings permanently for abuse of process operates, in practice, as an exception to the duty of a court invested with jurisdiction in a particular proceeding to hear and determine that proceeding.

Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen [1994] HCA 33; (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited" [1995] Crim LR 864.

Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway (at 41, 43)), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23), or are being conducted for a purpose which in the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown (1989) 17 NSWLR 472 at 478-479; Ridgeway (at 75)."

40 In Rogers v The Queen Mason CJ noted (at 255) that the circumstances in which abuse of process may arise are extremely varied and that it would be unwise to limit those circumstances to fixed categories. He also said that it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process. Nevertheless, when the facts of these cases in which prosecutions have been stayed for abuse of process are examined, it is apparent that the aspects of vexation, oppression and unfairness to which Mason CJ referred in Rogers v The Queen are those that involve serious and weighty matters. This must be so when, as Mason P pointed out in DPP v Shirvanian (at 133), the power to stay proceedings permanently for abuse of process operates, in practice, as an exception to the duty of a court to hear and determine a matter. The legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime, to which

Mason CJ referred is, of course, a matter of great importance.

41 In the circumstances of the present case the conduct that might have misled a foreign court (it was conceded that there was no evidence that the French court was in fact misled) could not, in our view, be characterised as sufficiently serious or weighty in terms of vexation, oppression or unfairness to amount to an abuse of process, unless it were shown to be part of an attempt, in bad faith, to deceive the French court. Nor, absent that element of bad faith, could it be said the misleading conduct complained of would bring the administration of justice into disrepute. Accordingly, even if the present matter were to be considered in the light of the broad aspects of abuse of process, rather than more specifically in the light of Bennett's Case, it would still be necessary to show that there was a deliberate attempt by the Australian authorities to mislead the French court.

42 The appellant contended, however, that the learned primary judge was in error in any event in failing to find that there had been bad faith and it is to this aspect of the case that we now turn.

43 It is desirable to consider first the particular respects in which it is said the supplementary affidavit was misleading as this provides the context in which the conduct of Mr Craigie must be assessed. Before Emmett J the appellant (relevantly) contended that the supplementary affidavit was misleading in the following ways:

§ It failed to disclose Mr Craigie's role in the prosecution of Ms Bahr, and the relevant identity of the charges against Ms Bahr and the appellant.

§ It failed to disclose that Magistrate Horler had rejected the DPP's application to amend the charges against Ms Bahr to reflect the name of the appellant's correct employer for limitation reasons, and conveyed the false impression that the magistrate's sole reason for doing so was that the application for amendment was made at a very late stage in the Bahr proceeding.

§ It failed to disclose the reasons for the DPP's decision not to appeal the decision of Magistrate Horler.

§ It wrongly asserted that s 1317FA of the Corporations Law applies to conduct occurring after 1 February 1993, and failed to disclose the finding by Magistrate Horler that the charges against Ms Bahr were duplicitous.

44 The failure to disclose Mr Craigie's role in the prosecution of Ms Bahr and the relevant identity of the charges seems to us to have little or no bearing upon whether the affidavit was put forward in bad faith. It may well have been better for these matters to have been disclosed, but Mr Craigie did make it clear that he was a member of the staff of the office holder responsible for the prosecution. As to the assertions about s 1317FA of the Corporations Law and the failure to mention the magistrate's finding that the charges against Ms Horler were duplicitous, these seem to us to be of relatively minor significance on any view of the matter. Likewise the failure to disclose the reasons for the DPP's decision not to appeal could have had no bearing upon the extradition or upon the issue of bad faith, unless there were some basis for finding, contrary to what

Mr Craigie swore, that those reasons were in some way relevant to the questions the French court had to consider.

45 The essential complaint about the remaining matter is, of course, that the failure to set out all the relevant facts about the rejection of the DPP's application to amend the charges against Ms Bahr meant that affidavit conveyed a false impression as to why Magistrate Horler had dismissed those charges. As we have noted, Emmett J considered that in this respect paragraph 42 of the supplementary affidavit was capable of giving a misleading impression, and we agree, but a conclusion that an affidavit is capable of creating a misleading impression falls a very long way short of a conclusion that the affidavit was prepared and submitted to the French court in bad faith.

46 The position taken by Mr Craigie as deposed to in the supplementary affidavit was that the mistake in the warrants was not fatal to the prosecution, either because amendment was possible by reason of s 15C of the Crimes Act or because of the operation of s 65 of the Justices Act, both of which he exhibited to the affidavit. It cannot possibly be said that this is an untenable position, and there is no other basis for any conclusion that Mr Craigie did not honestly believe that the legal position was as he stated it to be in his supplementary affidavit or that he was activated by any extraneous purpose.

47 The question is therefore whether bad faith can be inferred from the misleading reference by Mr Craigie to the way in which Magistrate Horler dealt with the matter.

Mr Craigie's stated view of the law was contrary to the conclusion of the magistrate. He considered that the magistrate's view showed a misunderstanding of the law. It is important to bear in mind that an ex tempore and summary judgment of a magistrate does not carry authority or weight as precedent on questions of law in the way that reasoned judgments of higher courts are treated as authoritative. In addition, the gravity of the allegation must be kept in mind. The substance of the allegation is that a solicitor on the staff of the DPP deliberately acted in bad faith in providing an opinion to the French court. In these circumstances we agree with Emmett J that no inference of bad faith should be drawn. Obviously Mr Craigie thought that some reference ought to be made to the course taken by Magistrate Horler although having decided to mention that matter, his judgment in not setting out all the facts may be questioned. Prudence and the clear obligation he had to be candid when acting as an expert in Australian law in expressing opinions in response to a request by the French court would suggest that the appropriate course would have been for him to have set out the full facts.

48 On the hearing of the appeal, counsel for the appellant argued that if Mr Craigie saw fit to refer to the decision of Magistrate Horler at all he must have considered that it was relevant and that he must therefore have intended to mislead the French court on a relevant matter. Counsel for the appellant also relied on the fact that on 15 June 1998, exactly one week before the interlocutory order made by Emmett J of 22 June, Mr Craigie prepared a second supplementary affidavit from which, counsel submitted, an admission by Mr Craigie should be inferred that the earlier supplementary affidavit was made in breach of his duty. Counsel relied, too, on the fact that the second supplementary affidavit referred to the appellant having taken issue with some of the legal issues raised in the first supplementary affidavit, but did not identify those issues directly or deal with them.

49 In our view the terms of the second supplementary affidavit and the circumstances in which it was prepared do not support these contentions. The presently relevant paragraphs of the second supplementary affidavit are in the following terms:

"1. I refer to my Supplementary Affidavit dated 30 April 1998. Since swearing the above affidavit I understand that the solicitors for

Mr Bou-Simon ("Bou-Simon") have taken issue with some of the legal issues raised by my affidavit. These issues are considered further below.

....

Amendment

9. In my view it is open to an Australian court to allow the prosecution to amend the particulars of a charge even if the limitation period that applies to the relevant offence has expired. Once charges have been laid in a matter, that matter is properly before the criminal courts. It is not open to the prosecution to change the offences that are the subject of the charges before the court. However, there is no reason why the prosecution cannot change the particulars of the charges to ensure that the real issues raised by those charges are addressed by the court.

10. One example of application of the above principles can be seen in the decision of the Full Federal Court in Chaudhary and Another v Ducret 67 ALR 463. In that case more than one year after the alleged commission of the offences (which was the time limited for the commencing of the prosecutions) the prosecutor sought to amend the particulars of each offence. The judge hearing the prosecution allowed the amendments. The defendants appealed claiming that the substitution of fresh particulars amounted to the laying of new charges after the limitation period had expired. The Full Court dismissed the appeal saying that the fresh particulars did not create different offences.

11. The magistrate who heard the charges against Bahr declined to allow the prosecution to amend the particulars of the charges against her. In my view the magistrate was wrong to make that ruling. It was based on a misunderstanding of the law. However, the DPP decided not to appeal against the ruling for reasons that are not relevant to the present matter. Again, the ruling made by the magistrate in the Bahr case has no precedent status and will not be binding on any court which deals with the charges against Bou-Simon.

12. It is not uncommon in Australia for magistrates to make errors of law. It is also not uncommon for the prosecution to decide not to appeal when a magistrate has dismissed criminal charges, even if the prosecution considers that the magistrate has made a mistake. In such cases, there is no reason why the prosecution should not proceed with charges against another person in respect of the same conduct especially if, as here, that other person is alleged to have been the primary offender in the matter. The charges against Bahr were dealt with by way of a summary hearing before a magistrate. If Bou-Simon is returned to Australia, the DPP intends to proceed by way of a trial on indictment before a judge and jury.

OPINION

13. In my view the matters raised by the solicitors for Bou-Simon do not provide a basis for reconsidering the decision to seek his extradition."

50 Whilst it is true that the second supplementary affidavit does not expressly identify the issues raised by the appellant in relation to the earlier supplementary affidavit, the terms of the second affidavit leave no serious doubt as to what those issues are. This is particularly so when it is considered that the intended recipient of the second affidavit was the French court, which was itself already well acquainted with the case.

51 Nor do the terms of the second affidavit support the conclusion that there was a deliberate attempt on the part of Mr Craigie to mislead the French court about the reason for the dismissal of the proceedings against Ms Bahr. On the contrary, the affidavit is largely concerned with explaining why, in Mr Craigie's opinion, the decision of the magistrate was wrong and would not be followed by a trial judge were the appellant to be prosecuted.

52 Some reliance was placed on the fact that the second supplementary affidavit was not put before the French court. The evidence makes it clear, however, that this did not result from any desire on Mr Craigie's part to keep the second supplementary affidavit hidden.

53 In our view therefore Emmett J, having correctly identified proof of bad faith as an essential prerequisite to any finding that there had been an abuse of process in the present case, and having fully and correctly considered the allegations of misleading conduct, was also correct in declining to make a finding of bad faith. No case for intervention in the criminal proceedings, or otherwise, was made out. This conclusion makes it unnecessary to consider any of the other submissions on behalf of the appellant relating to this aspect of the appeal. In relation to procedural fairness before the French court, however, we would observe that even if an abuse of process had been demonstrated, the nature of the allegedly misleading conduct said to constitute the abuse of process on the one hand and the opportunities, on the other hand, for Mr Bou Simon and his counsel to appear before the French court and to correct any matter they considered to be misleading would, on discretionary grounds, point strongly against the exercise of any power to stay the criminal proceedings.

54 The next issue for consideration on the appeal concerns the contention by the appellant that it was unnecessary for the primary judge to examine the correctness of Magistrate Horler's decision in order to determine whether the supplementary affidavit was misleading. The circumstances in which the learned judge came to consider the application of s 15C of the Crimes Act and s 65 of the Justices Act are set out in his Honour's reasons for decision. In substance, he did so because the DPP persisted in its contention that it was necessary to resolve those questions and Mr Bou-Simon, whilst maintaining that it was unnecessary, sought to answer the contention and sought as well to restrain the DPP from proceeding with the prosecution on the basis that it was fatally flawed. Leave to amend to challenge the decision to prosecute was granted without opposition and the matter became further complicated by an indication on behalf of the DPP that if the Court accepted the contentions advanced on behalf of Mr Bou-Simon, the DPP would not pursue the extradition application. So it is that the final issue arises, namely the challenge to Emmett J's conclusion that s 15C of the Crimes Act and s 65 of the Justices Act were applicable.

55 The problem with the way in which this aspect of the case developed is that it raises the highly undesirable prospect of fragmentation of the criminal process. The undesirability of fragmentation has been stressed by the High Court and on many occasions by this Court. See for example Yates v Wilson (1989) 168 CLR 338 at 339 per Mason CJ and Toohey and Gaudron JJ. The present case provides a good example of the problem. The appellant appeals from the ruling against him in a proceeding that was amended to include a challenge to the decision to prosecute him. That carries with it the prospect of a ruling in this Court on a fundamental matter which, if decided against the appellant here, could nevertheless be raised by the appellant on his trial and, in certain events, on appeal to the New South Wales Court of Criminal Appeal.

56 Understandably, the learned primary judge does not appear to have considered the various discretionary considerations that point strongly against the determination of

s 15C and s 65 questions in this Court. These discretionary considerations have, however, been fully considered by us. The appropriateness of this Court ruling on the

s 15C and s 65 questions was discussed at some length during the course of argument on the appeal, and none of the submissions of counsel persuaded us that this was ever a case in which the Court should have made the order sought by the appellant in the amended proceedings. To have made the order sought by the appellant and refused by the learned judge, but now sought (somewhat reluctantly) on appeal would have involved a quite unacceptable fragmentation of the criminal proceedings.

57 Counsel for the appellant relied upon what was said in Ridgeway v The Queen [1994] HCA 33; (1995) 184 CLR 19 at 41 by Mason CJ and Deane and Dawson JJ to the effect that it would be vexatious and oppressive to continue with proceedings that will necessarily fail, in support of a submission that the Court should determine the questions concerning s 15C and s 65 irrespective of the principle against fragmenting criminal proceedings. However, the passage in Ridgeway upon which counsel relied referred to the conduct of a preliminary hearing by the trial court itself. The passage cannot have the general application for which the appellant contends because, if that were so, there would be a serious risk of fragmentation in every case in which it was said that some decisive point had arisen for determination outside the trial process.

58 The Court recently received a further submission on behalf of the DPP and a submission in reply from counsel for the appellant about the effect of the decision of the High Court in Attorney-General v Oates [1999] HCA 35; (1999) 164 ALR 393. The DPP submitted that the decision in Oates now makes it clear that the laying of new charges would not be time-barred and that accordingly that part of the appellant's argument that rested upon the proposition that the time for fresh charges had expired fell away. Counsel for the appellant replied that this, in essence, missed the point since the real vice was the misleading conduct in relation to the decision of Magistrate Horler. It follows from what we have already said about fragmentation that we do not consider it necessary to deal with the effect of Attorney-General v Oates for the purposes of this appeal.

59 In these circumstances, we would dismiss the appeal against the dismissal of the challenge to the decision to prosecute, but would do so without ruling on the matter that will be directly in issue in the criminal proceedings. We would dismiss the appeal in this respect on the ground that, for discretionary reasons, the application challenging the decision to prosecute should have been dismissed in any event.

60 For these reasons the appeal must be dismissed with costs, including any reserved costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 21 January 2000

Counsel for the Appellant:	Mr Rushton, Mr Kidd
Solicitor for the Appellant:	Mr Tony Vero, Clayton Utz
Counsel for the First Respondent:	Mr Wigney
Solicitor for the First Respondent:	Ms L Brady, Australian Government Solicitor
Counsel for the Second Respondent:	Mr Fagan, QC
Solicitor for the Second Respondent:	Mr J Laxton, Commonwealth Director of Public Prosecutions
Date of Hearing:	26 February 1999
Dates of Further Written Submissions:	2 March 1999, 5 March 1999, 9 March 1999, 22 December 1999 and 18 January 2000
Date of Judgment:	21 January 2000