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Republic v Dabwido [2021] NRSC 52; Criminal Case 11 of 2021 (23 December 2021)

BETWEEN

THE REPUBLIC

AND

JEREMY DABWIDO First Defendant

AND

NIVED GRUNDLER Second Defendant

Before: Khan, J
Date of Hearing: 30 November 2021
Date of Ruling: 23 December 2021

Case is to be known as: The Republic v Dabwido and Grundler

CATCHWORDS: Criminal Law – Nolle Prosequi filed – Pursuant to section 46(1) of the Criminal Procedure Act 1972 – Whether the defendants should be discharged or acquitted.

APPEARANCES:

Counsel for the Republic: Mr Shah
Counsel for the Defendants: Mr Lee

RULING

INTRODUCTION

1. The first and second defendant were charged jointly on Counts One and Two which state:
   

COUNT ONE

Statement of Offence

Aggravated burglary: contrary to Section 161(1)(a) of the Crimes Act 2016.

Particulars of Offence

Jeremy Dabwido and Nived Grundler on 10 May 2019 at Nauru in the company of others committed burglary.

COUNT TWO

Statement of Offence

Intentionally causing serious harm contrary to section 71(a), (b), (c) and (i) of the Crimes Act 2016.

Particulars of Offence

Jeremy Dabwido and Nived Grundler with others on 10 May 2019 at Nauru, intentionally engaged in conduct and the conduct caused serious harm to Xie Gaoyuan and Jeremy Dabwido and Nived Grundler intended to cause serious harm to Xie Gaoyuan by their conduct.

2. The second defendant is charged with one count of obstructing a public official which states:
   

COUNT THREE

Statement of Offence

Obstructing a public official: contrary to section 242(a) and (b) of the Crimes Act.

Particulars of Offence

Nived Grundler 23 May 2019 at Nauru, resisted Sergeant Iyo Adam in the exercise of his function as a police officer and Nived Grundler believed Sergeant Iyo Adam was a police officer.

3. The defendants entered a plea of not guilty and the matter was set for trial on 25 October to 1 November 2021.

NOLLE PROSEQUI

4. On 22 October 2021 Mr Shah, the prosecutor in conduct of the matter wrote to the court and copied to Mr Lee that on 25 October 2021 prosecution will be filing nolle prosequi in this case.
   
5. On 25 October 2021 Mr R Talasasa, DPP appeared on behalf of the prosecution and sought leave to file nolle prosequi under section 46 of the Criminal Procedure Act 1972 and leave was granted. Mr Lee had no objection to the application and asked for an acquittal instead of a discharge. Section 46 states:
   

Power of Director of Public Prosecutions to enter nolle prosequi

46(1) In any criminal cause or matter and at any stage thereafter before the verdict or judgement, including the period between the committal of an accused person for trial by the Supreme Court and the filing of an information in that Court, the Director of Public Prosecution may enter ‘nolle prosequi’, either by stating in Court or by informing the Court in writing that the Republic intends that the prosecuting shall not continue and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he or she has been committed to prison will then be released, or if on bail his or her recognisance shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him or her on account of the same facts.

6. Nolle prosequi is a prosecutorial discretion – see R v Michael Childs Baenisch^[1]
   

[7] ‘...The decision to do so is one facet of the prosecutorial discretion and cannot be reviewed by a court. The entry of a nolle prosequi brings the trial to an end. Although the entry of a nolle prosequi operates as a stay sine die of the proceedings, it is not a pardon. It does not prevent a fresh information being laid for the same offence.’

COURT HAS POWERS TO REFUSE TO ACCEPT NOLLE PROSEQUI

7. In Republic v Teokila^[2] I declined to accept the nolle prosequi and ordered the prosecution to call its remaining witnesses or to close its case. I took that course because the elements of the offence had not been proved and the defence had objected to the filing of nolle prosequi and for that reason I refused to accept it. In this matter the defence as well as the Court was informed in advance in writing on 22 October 2021 that the prosecution will be filing nolle prosequi and when it did so there was no objection to it being filed by the defence except that an application was made for an acquittal of the defendants instead of a discharge.
   

SUBMISSIONS

8. In the written submissions filed by Mr Lee he submits that the defendants were charged on 14 May 2019 some 4 days after the alleged incident; and that the complainant departed Nauru on 12 June 2019; that an application to tender the complainant’s statement pursuant to section 147A of the Criminal Procedure Act 1972 was rejected by the Court; that the entire case against the defendants is circumstantial evidence; that the case has been hanging over the defendants’ heads in excess of 2 years.
   
9. Mr Shah submitted that if the complainant was to return to Nauru, then the defendants would be recharged and further submitted that the defendants ought to be recharged; and further submitted that the defendants’ case had not reached the “threshold” for an acquittal. He also submitted that the course that I had taken in Teokila and was correct was consistent with the case of R v Saunders^[3] which was also discussed in the case of Baenisch.
   

CONSIDERATION

10. I stated at [6] above that the filing of nolle prosequi is a ‘prosecutorial discretion’ and cannot be reviewed by a Court; and that once nolle prosequi is entered the only task for the Court is to discharge the accused.
    
11. The effect of filing nolle prosequi was discussed at [12] of Baenisch where it is stated as follows:
    

‘[12] No particular formality is required but it is necessary that the decision is clearly and distinctly communicated to the Court: R v Beveridge [1909] NSWStRp 101; (1909) 9 SR(NSW) 676. The differences in practice are matters of mechanics only and do not affect questions of principle.

Once a nolle prosequi has been entered, the Court can no longer proceed with the trial of those matters charged in the indictment to which the nolle prosequi relates: R v Sneesby; R v Ferguson; ex parte Attorney-General (1991) 1 Qd R 35. The trial is at an end and the only task for the Court is to discharge the accused.

It will be noticed that the endorsement in England is in the form of a stay which postpones the proceeding sine die. It seems that it is possible for the Crown later to proceed on the original indictment or information: Edwards II, 444. The usual practice is to issue a fresh indictment or information: Edwards II (supra). In Queensland, s563 of the Criminal Code requires a fresh indictment or information: Re Seidler (1986) 1 Qd R 486 and R v Doyle (1988) 2 Qd R 434.

The entry of a nolle prosequi is no more than a statement than that the prosecution is unwilling then to proceed with the prosecution. It is not in law or in fact an official act by the executive amounting to a promise or representation that the accused will not be presented again on the same charge: R v Swingler. It is not tantamount to an acquittal: Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 287. It is a termination of the proceedings without an adjudication and it neither creates a bar to a subsequent suit nor will it support a plea of autrefois acquit: Broome v Chenoweth (1946) 73 CLR 583, per Dixon J at 599; Poole v The Queen (1961) AC 223. See also R v Ridpath (1712) 10 Mod 152 at 153; 88 ER 670 at 671 where it was held that entry of a nolle prosequi did not bar a fresh indictment charging the same offence.’

12. What this means in simple terms in the context of Nauru is that once nolle prosequi is filed the prosecution is at liberty to recharge the accused for the same offence at a later date so effectively the matter is adjourned sine die.
    

PREVENTING ABUSE OF PROCESS

13. This Court has powers under its inherent jurisdiction to prevent the abuse of its process and the abuse of process was discussed at [16] of Baenisch where it is stated:
    

‘[16] In criminal proceedings, the power of a court to protect itself from abuse of process is not limited to traditional notions of abuse of process or to defined or closed categories: Jago per Mason CJ at 28 and per Gaudron J at 74. The power may be exercised as and when the administration of justice requires: Jago per Gaudron J at 74. The jurisdiction will be exercised to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair: Barton v The Queen at 95-96; Williams v Spautz at 518.’

14. R v Saunders^[4] considered the Court’s powers to refuse nolle prosequi. In Baenisch it was stated at [23] and [24] as follows:
    

‘[23] The first reported decision to examine the extent of the Court's powers to refuse the entry of a nolle prosequi was R v Saunders (1983) 2 Qd R 270. In that case a ruling was made in the course of a criminal trial excluding evidence which the Crown sought to lead. The trial judge stated that he intended to direct a verdict of acquittal. After an adjournment, the Crown Prosecutor sought the return of the indictment so that he might enter a nolle prosequi. The trial judge (Shepherdson J) refused to return the indictment for entry of the fiat. Instead, he directed the jury to return a verdict of acquittal.

[24] Shepherdson J gave detailed reasons for his decision to direct an acquittal. He was influenced to a large extent by the fact that the only evidence against the accused was a fabricated tape recorded conversation. Having noted that the entry of a nolle prosequi would not constitute an acquittal and that the evidence against the accused had been fabricated, he stated that she was entitled to an acquittal. In his view, the prosecution had constituted an abuse of process and the accused was entitled to be free from any stigma flowing from the prosecution. Referring to the decision of the House of Lords in Connelly and of the High Court in Barton v The Queen, he held that the Court had a duty to protect a citizen from oppression or prejudice which would result from an abuse of process. He distinguished Sneesby on the ground that the decisions in Connelly and in Barton v The Queen had altered the practice which had hitherto prevailed to allow the Crown to enter a nolle prosequi at any time before verdict. In his view, the power of the Crown to enter a nolle prosequi was subject to the Court's inherent jurisdiction to prevent abuse of its process and, in particular, to the inescapable duty referred to by Lord Devlin in Connelly (at 267) to secure fair treatment for those who come before the Court. Recognising that, so soon as he received the nolle prosequi into his hands, his jurisdiction to prevent a nolle prosequi was gone (see R v Sneesby), he declined to return the indictment to enable the prosecutor to enter the nolle prosequi. Another instance of a directed acquittal is R v Coward (No 3) (1953) QWN 40.’

15. In Baenisch it was discussed at [3] to [9] as to how nolle prosequi was refused as follows:
    

[3] The accused was first arraigned in the District Court of South Australia on the 28th November 1994.

[4] The trial of the accused was listed to commence on the 10th July 1995. On this date I was notified by the prosecutor of the non-attendance of the alleged complainant and her mother.

[5] An application was made by the prosecutor to have the matter taken from the trial list. I refused this application.

[6] The prosecutor then entered a nolle prosequi on behalf of the Director of Public Prosecutions. I refused to accept the nolle prosequi.

[7] I then invited counsel for the accused to make an application for trial by judge alone. Such an application was made and I granted the accused a trial by judge alone.

[8] The accused was then re-arraigned and pleaded not guilty to all of the counts on the Information before the court. I invited the prosecution to tender no evidence. The prosecutor adopted this course.

[9] I found the accused not guilty of all of the counts on the Information.

16. In this case Mr Shah had indicated in writing as I stated earlier both to the court and the defence on 22 October 2021 that the prosecution was going to file nolle prosequi and did so on 25 October 2021 with no objection by the defence. I am not privy as to what was the discussions between the counsels, but whatever the reasons were if the application was objected to then, and if I could have refused the application for adjournment, then the inherent powers would have come into play then I could have refused to allow the nolle prosequi to be filed. But the defence counsel simply accepted the filing of nolle prosequi and in fairness to Mr Lee he did not know the case of Teokila and only raised the issue of acquittal when he was advised of that case by me.
    

CONCLUSION

17. In the circumstances the only option open to me is to discharge both accused of both counts which I hereby do.

DATED this 23 day of December 2021

Mohammed Shafiullah Khan
Acting Chief Justice

^[1] [1996] 66 SASR 450
^[2] [2019] NRSC 43; Criminal Case No. 8 of 2017 (2 December 2019) Khan J
^[3] [1983] 2 QDR 270
^[4] [1983] 2 QDR 270