FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – appeal against refusal of a stay of committal proceedings on the ground of abuse of process – further stay pending appeal – whether appropriate procedure – apprehended unfairness at trial.

Federal Court of Australia Act 1976 (Cth), s 23, s 24(1)(b)

Evidence Act 1995 (Cth), s 135

Magistrates Court Act 1930 (ACT), s 95

De L v Director-General, New South Wales Department of Community Services (1996) 136 ALR 201 (referred to)

Hollier v Australian Maritime Safety Authority, Federal Court, unreported 27 April 1998, Sundberg J (referred to)

Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 (applied)

Niemann v Electronic Industries Ltd [1978] VR 431 (applied)

House v The King (1936) 55 CLR 499 (referred to)

Williams v Spautz (1992) 107 ALR 635 (referred to)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (referred to)

McNamara v The Queen (1978) 20 ALR 98 (referred to)

Alexander v Cambridge Credit Corp Ltd [1985] 2 NSWLR 685 (referred to)

PETER DANIELS CLARKE (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) (Respondent)

AG 98 of 1998

FINN J

CANBERRA

29 SEPTEMBER 1998

THE COURT ORDERS THAT:

1. the notice of motion be dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT

Mr Clarke, the applicant, applied for leave to appeal from a judgment of Miles CJ of the Supreme Court of the Australian Capital Territory of 24 August 1998 refusing a temporary stay of committal proceedings to which Mr Clarke is a party. I have before me a notice of motion in which Mr Clarke again seeks a temporary stay of those committal proceedings until January of 1999 or until his appeal can be heard in this court. As a rule where this court has jurisdiction to entertain an appeal, it has power under O 52 r 17 of the Federal Court Rules to grant a stay in aid of that appeal: cf De L v Director-General, New South Wales Department of Community Services (1996) 136 ALR 201. As I understand the matter it is my power under O 52 r 17 that Mr Clarke now prays in aid.

While I have some doubt as to whether the O 52 r 17 procedure is an appropriate one in a case such as this given that the only curial order to date is Miles CJ’s refusal of the stay: cf Hollier v Australian Maritime Safety Authority, Federal Court, unreported 27 April 1998, Sundberg J; this Court has jurisdiction to entertain an application having the purpose of Mr Clarke’s motion, and in a proper case to award appropriate relief whether by way of injunction or otherwise pending the resolution of the appeal: cf Federal Court of Australia Act 1976 (Cth), s 23. Given both its urgency and the view I take of this matter, I am prepared to treat this application as one for a stay without further concern as to the precise form in which it should be cast.

The principles that are applied in this court in exercising the jurisdiction under rule 17 are not really in contest. They are conveniently stated in the decision of the Full Court of this court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 at 499 where observations of Mahony JA in a decision of the Court of Appeal of New South Wales are concurred in. His Honour there made a comment that:

“Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in a state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.”

Turning to the nature of the judgment appealed from, it is appropriate to note at the outset that the proceeding before Miles CJ invoked the power of a superior court (that is the Supreme Court) to prevent an abuse of process by an inferior court (that is the ACT Magistrate's Court) in the conduct of the committal proceedings against Mr Clarke. The background circumstances concerning that committal proceeding and the factual matters of which Mr Clarke generally complains are set out in the decision of Miles CJ and I will not repeat them here, although I will refer later to several specific matters.

It is important for present purposes to acknowledge the nature of the judgment appealed from and the burden borne by Mr Clarke in any challenge that he makes to it. It is conceded by him that the order of Miles CJ was an interlocutory order. As such when he makes application for leave to appeal, an appellate court would ordinarily consider that application in light of the considerations referred to in Niemann v Electronic Industries Ltd [1978] VR 431. Those considerations are (1) whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused supposing the decision to be wrong.

It is appropriate in applying the Powerflex Principles in relation to s 52 rule 17 to have regard to the hurdles faced by Mr Clarke. A stay will only be awarded in an appropriate case. Additionally the judgment appealed from involved the exercise of judicial discretion in considerable degree. And I simply advert again to the burden borne by an applicant or appellant who seeks to challenge such an exercise of discretion. The principles are well known and are set out in House v The King (1936) 55 CLR 499 at 504 to 505.

The essence of Mr Clarke's case would seem to be this, at least as it was prosecuted before me. While he is aware of the case against him and while he has been provided with a considerable body of material by the prosecutor as also with summaries thereof, he considers he is not yet sufficiently skilled forensically to conduct his own case and this will result in unfairness to him in the conduct of the committal proceedings. He refers specifically to the difficulties that will confront him in the cross-examination of witnesses and in relation to matters of evidence including his unfamiliarity with the provisions of the Evidence Act 1995 (Cth). He wants 90 days to prepare himself to defend himself.

It is important to notice that the proceedings before the Magistrate are scheduled to run for between three and six months; that over 50 witnesses are to be called by the prosecutor; that the case itself will be of some complexity; and that there is a large number of charges laid against Mr Clarke. It is apparent that Mr Clarke is disadvantaged by the circumstance in which he finds himself. It is regrettable that people in his position find themselves having to defend themselves without proper or appropriate legal assistance.

That is a common place in the courts of this country today. But disadvantage at committal proceedings of itself is not unfairness in a sense recognisable by law let alone unfairness that attracts the jurisdiction to prevent abuse of process. That jurisdiction was, for present purposes, considered by the High Court in Williams v Spautz (1992) 107 ALR 635. The observations to which I wish to refer come from the joint majority judgment at pages 640 to 641. Though it is a lengthy passage I will read it in its entirety:

“It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. The existence of that jurisdiction has long been recognised by the House of Lords. The jurisdiction extends to both civil and criminal proceedings. As Lord Morris of Borth-y-Gest observed in Connolly v DPP:

‘A court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction … . A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its processes and to defeat any attempted thwarting of its process.’

The jurisdiction to grant a stay of a criminal prosecution has a dual purpose namely, ‘to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial that is unfair’. This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.

However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.

If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself.”

On the material that is before me, there is no evidence that satisfies me that an arguable case exists that the committal proceedings were instituted or are being maintained for an improper purpose. Mr Clarke criticises certain conduct of the Director of Public Prosecutions officials in their dealing with persons in the United States who have acted as surety for him. Whatever the merits of that criticism may be, and it is unnecessary for me to pass upon them for present purposes, the conduct complained of does not come near that which is comprehended or apprehended by the observations in Williams v Spautz relating to abuse of process to which I have referred.

The case as presented by Mr Clarke, before me, is essentially one of unfairness or apprehended unfairness. To make that out, it does seem to me necessary for him to indicate at least an arguable case that unfairness in the committal proceedings both could infect the subsequent trial and would not be remediable there by the trial judge. As is well known, it is an exceptional jurisdiction for appellate courts to intervene in criminal procedures at an interlocutory stage and that such intervention should be made sparingly.

Chief Justice Miles recognised this in his reasons, in his reference to the decision of Sir Anthony Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. I would add to that the observations of Brennan J as he then was in a Full Court decision of this court, in McNamara v The Queen (1978) 20 ALR 98 at 99. The observations bear repeating. In referring to appellate jurisdiction of the Federal Court under s 24(1)(b) of the Federal Court of Australia Act 1976 (which is of course the jurisdiction on which Mr Clarke invokes in the present matter), his Honour said:

“Assuming the jurisdiction extends to interlocutory appeals in criminal matters, the jurisdiction is novel.

It is essential that a jurisdiction of that kind be exercised sparingly lest resort to this court should interrupt the ordinary and desirable dispatch of criminal charges in the Supreme Courts of the Territories. The jurisdiction is not sterile but it should be exercised for the purpose for which the jurisdiction is conferred to ensure that justice is done in the conduct of criminal trials. That purpose is not achieved by intervening in the conduct of a criminal trial unless it appears that intervention is necessary to prevent a miscarriage of justice.

Intervention is not necessary to ensure the elimination of a mere possibility of improper prejudice at a trial; and that for two reasons. First, in the event of conviction, relief by way of appeal is available, when it can be shown that the possibility has become a reality in the course of the trial; and second, the securing of a fair trial is a duty which a trial judge performs by the making of orders which are in a sense reciprocal and which often at times cannot be considered in isolation.”

In my view, there is no material that has been placed before me that could suggest a seriously arguable case that an unfair trial is a real risk to be run by Mr Clarke in consequence of what he apprehends is the unfairness (because of his lack of skill) that he will suffer in the committal proceeding. I make this observation, first, in relation to the possible prejudice he seeks to have averted by the stay, that is, the O 52 r 17 prejudice; secondly, to the strength of the issues he wishes to agitate on the appeal: cf Alexander v Cambridge Credit Corp Ltd [1985] 2 NSWLR 685 at 695; and thirdly to the second limb of the Niemann principles to which I earlier referred.

Mr Clarke nonetheless did advert to a number of specific matters in the affidavit material that he placed before me. He complained that certain evidence of an officer at the Belconnen Remand Centre was not taken into account by Miles CJ. He now concedes that that material was placed in evidence. He complained that he was denied the opportunity to question a doctor from the same centre on particular matters relating to what he regarded was improper conduct on the part of the Director of Public Prosecutions. It is apparent from the transcript material that has been read, that Miles CJ was prepared to assume the very matter the substance of the complaint made.

The third specific matter relied upon related to conduct of officers of the Director of Public Prosecutions in their dealing with potential sureties in the United States. While Mr Clarke complains in his affidavit that this evidence only came to light after Miles CJ's decision, it is apparent from facsimile transmissions which he has appended to his affidavit that he was aware of the material contained therein up to a week before the Chief Justice's decision and he made no complaint of that at the time. He indicates now that the full significance of that conduct of which he complains only became apparent after the event. I would have to say, given the unreliability of other parts of his affidavit to which I have referred, I do not place any particular store on that observation of Mr Clarke.

A completely distinct matter has been raised before me. With a number of the witnesses to be dealt with at the committal proceedings residing abroad, it may not be possible to secure their return to this country after they have given evidence at the committal proceedings for the purpose of their giving evidence at the trial. In those circumstances the Director of Public Prosecutions has foreshadowed the possibility of the depositions of such witnesses being tendered in evidence at the trial under the provisions of s 95 of the Magistrates Court Act 1930 (ACT), assuming that the depositions otherwise comply with the formal requirements of that section.

Mr Clarke apprehends that if that contingency occurs he will be deprived of the prospect of a proper and appropriate opportunity to cross-examine those witnesses, given his lack of skill when he conducts his own case in the committal proceedings. There are two responses to be made to this. The first is s 95(c) requires that the accused has had a full opportunity of cross-examining the witness. More importantly though, and consistently with what I have said earlier about the responsibility of a trial judge in ensuring a fair trial, the trial judge has at his or her disposal the powers under the Evidence Act 1995 to exclude evidence notwithstanding that it may otherwise be admissible. I refer for example to s 135 of that Act.

Having regard generally to the matters to which I have referred, the case for leave to appeal is itself not at all a strong one. On the material before me there is no evidence that satisfies me that Mr Clarke can reasonably apprehend prejudice in the sense to which I have referred. In the circumstances I do not consider this to be an appropriate case for the award of a stay under O 52 r 17. Accordingly I dismiss the notice of motion.

Associate:

Dated: 29 September 1998