SUPREME COURT OF QUEENSLAND 

1. HOLMES JA:  The appellant appeals against the stay of an indictment charging the respondent with seven counts of engaging in sexual intercourse with a person under 16 while outside Australia, contrary to s 50BA of the Crimes Act 1914 (Cth).  Four of those counts were allegedly committed in Vanuatu on various dates between 1 May and 13 August 1997, while the remaining three counts are alleged to have been committed in New Caledonia, in October 1997.  The learned primary judge stayed the indictment because she had concluded that financial support given to witnesses (the complainant’s family members in Vanuatu) brought the administration of the justice system into disrepute and that on a balancing of the relevant policy considerations, the appropriate course to remedy that abuse of process was a stay of the indictment.

2. The respondent had advanced a number of other arguments to the learned judge as bases for a finding of abuse of process, but her Honour had rejected them. Here, he sought to rely, by way of a notice of contention, on the grounds on which he failed below in order to support the stay. The appellant argued that that course was not open: there was no statutory basis for the filing of a notice of contention or for argument of the matters contained in it. I will return to that issue, but will, meanwhile, outline the evidence relevant to the arguments raised by both the notice of contention and the appeal.

The circumstances leading up to the charging of the respondent and his delivery to Australian custody

3. The respondent allegedly formed a sexual relationship with the complainant, then 13 years old, in 1997. The following year, he was charged in Vanuatu with seven counts of unlawful sexual intercourse with the complainant in that country.  He was committed for trial, but was successful in obtaining an order of certiorari quashing the decision to commit.  At a fresh committal in 1999, he was charged with three offences against the complainant, but was discharged in respect of them.

4. The Australian Federal Police seem to have been aware of the allegations at least from 2001, but it was not until October 2004, after the Australian High Commissioner in the Solomon Islands had raised concerns about the respondent’s prospective appointment as the Attorney-General of the Solomon Islands, that they commenced an investigation of him for possible offences under s 50BA of the Crimes Act.  In June 2006, Australian Federal Police officers travelled to Vanuatu and obtained affidavits from the complainant, her parents and her brother.  In August 2006, the Commonwealth Director of Public Prosecutions advised that there was sufficient evidence to prosecute.  A warrant was issued for the respondent’s arrest and an Interpol notice issued.  In September 2006, a second complaint was sworn in relation to further offences alleged to have been committed in New Caledonia in the course of the illicit relationship.  By this time, the respondent was in Papua New Guinea and was arrested there, but while on bail made his way to the Solomon Islands. 

5. In October 2006, the Australian Government delivered a request to the government of the Solomon Islands for the respondent’s provisional arrest pending extradition.  The request was formally rejected by the Solomon Islands Government in September 2007, at a time when the respondent was its Attorney-General.  A new government was elected in December 2007; in opposition, the party taking government had indicated that it would deport the respondent to Australia.  A fresh warrant was issued in Australia for the respondent’s arrest and a fresh request made by the Acting Australian High Commissioner to the Solomon Islands Government for his provisional arrest pending the presentation of a request for extradition.  The Solomon Islands Government decided to revoke the respondent’s appointment as Attorney-General and to remove him from the Solomon Islands by deportation or extradition. 

6. On 24 December 2007, an order for the respondent’s deportation was published in the Solomon Islands Gazette. On the same day, the Acting Australian High Commissioner met Solomon Islands Government officials in order to provide them with copies of the provisional arrest request and was made aware that the respondent was to be deported.  A Solomon Islands police officer and immigration officer who were to accompany the respondent on his deportation applied to the Australian High Commission for visas for that purpose, which were issued; an Australian Federal Police liaison officer at the Australian High Commission provided them with the necessary application forms.

7. The understanding of the Acting Australian High Commissioner and the Australian Federal Police officers dealing with the matter was that the respondent had seven days under the Solomon Islands Deportation Act in which to appeal against the deportation order.  The Australian Attorney-General’s Department had advised the Acting Australian High Commissioner, however, that it was a matter for the Solomon Islands Government as to whether it could legally deport the respondent.  The respondent did, in fact, obtain from a Magistrate a stay of the deportation order pending the hearing of an appeal, but officials of the Solomon Islands Government took the view that the stay order was ineffective.  The Australian Federal Police liaison officer at the Australian High Commission attended, as an observer, a meeting held at the offices of the Immigration Department at which the matter was discussed.  A request by the Solomon Islands Government for the provision of a charter flight to remove the respondent to Australia was refused. 

8. Solomon Islands police and immigration officers attended the respondent’s home on 27 December 2007.  En route, the Deputy Commissioner of the Solomon Islands Police encountered the Australian Federal Police liaison officer and had a conversation with him, which the learned primary judge found was of no significance.  The respondent was taken into custody and removed to the airport, from where he was flown to Brisbane.  The Australian High Commission had issued a Document of Identity for his travel which was provided, probably by the Australian Federal Police liaison officer, to one of the Solomon Islands Government officials involved in the deportation.  At Brisbane, the respondent was arrested by the Australian Federal Police officer responsible for the charges against him; the liaison officer had given her advance notice of his arrival.  The Solomon Islands officials who had accompanied the respondent were provided with a travel allowance, and their accommodation paid for, by the Australian Federal Police.

The payments to the complainant’s family

9. When Australian Federal Police officers went to Vanuatu in 2006 to gather evidence in relation to the matter, the complainant was 22 years old and was living in a small village with her parents and siblings.  In October 2006, she travelled to Brisbane to provide a further statement.  On her return to Vanuatu, she raised concerns about her safety.  The Australian Federal Police concluded that there was no evidence of an actual threat, so that the complainant did not qualify for witness protection; instead they considered a “witness management approach” appropriate.  The decision was made that the complainant and her daughter could be maintained in Australia on the equivalent of Centrelink benefits, but the complainant did not, as it happened, return to Australia until early 2008. 

10. In January 2007, the complainant’s father made a request for financial assistance. He claimed that his business had suffered as a result of his daughter’s complaint against the respondent. He requested immediate funds for food and supplies and demanded that all members of his family, consisting of four adults and seven children, be taken to Australia for the duration of the proceedings against the respondent.  He said that while his daughter wished to proceed with the prosecution, she needed support and wanted her family to stay together; if her concerns were not met, she might reconsider her commitment to the case.

11. In early February 2007, the complainant expressed her disinclination to continue with the prosecution to officers of the Commonwealth Director of Public Prosecutions’ office and the Australian Federal Police, but agreed to consider the matter further. In December 2007, she advised Australian Federal Police officers that if her family were not brought to Australia with her, she would withdraw as a witness; that indication was reiterated in an SMS message a couple of days later and repeated in a meeting between the complainant, her father and an Australian Federal Police officer.  At a meeting between officers of the Director of Public Prosecutions’ office and the Australian Federal Police, it was agreed that it was not feasible to bring the whole family to Australia, and the complainant was advised accordingly.  She reiterated that if the entire family were not removed to Australia she would not participate further and said that she would approach the media with a complaint about having been exploited by the Australian Government.  Her father again demanded immediate financial support for the family and its removal to Australia. 

12. In January 2008, two Australian Federal Police officers visited the family. The complainant’s father had a vanilla plantation and a tamanu oil processing plant.  He claimed that he had lost contracts because of his daughter’s involvement in the prosecution.  He complained that the family had no income, was in debt and was selling household items to buy food, and demanded that they be sent to the south of France where (as French citizens) they could receive social security benefits.  The complainant said that if that demand were not met, she would withdraw from the case.

13. A decision was made to provide monthly financial payments to the complainant, her mother, her father and her brother. A minute documented the proposal for payment as follows:

“[The complainant] – AUD$3485.00

[The complainant’s brother] – AUD$1290.00

[The complainant’s father] – AUD$480.00

[The complainant’s mother] – AUD$1470.00

Total monthly support payment will be AUD$6725.00

Primary financial support will include:

-Food;

-Medical;

-Rental & Utilities (to [the complainant]);

-Counselling support (to [the complainant]);

-Disposables such as clothing and personal items;

-Education allowance (for dependants); and

-Transport allowance

The AFP offer is an upper limit and is not negotiable

●We will not pay family or business debt;

●If they chose to reject the AFP offer and its in principle offer of support, then the witnesses will not be offered or provided any support forthwith

●The proposal has been cleared and developed in agreement with the DPP and has a legal basis and is based on AFP practice

●If [the complainant] rejects the offer, then we will be indicating to her that she will return home to Vanuatu in the near future (next few days)”

In fact, the complainant’s mother was paid $2,475 a month, which included $800 per month for rent.  As the learned primary judge observed, no evidence was led as to how the family members’ costs of living were assessed.  Letters were written to the family members advising that the payments would be made on the basis that the recipients would provide receipts to substantiate their expenses, and would make all reasonable efforts to seek employment.

14. In July 2008, it was discovered that the family had been evicted from their house for non-payment of rent over a considerable period. A visit in January 2009 found them living in poor circumstances in a tin shed, although it was also discovered that they were employing a “house girl”, who was paid very irregularly. The Australian Federal Police then began to pay their rent on a house direct to the landlord. The effect of this and other changes was to increase the monthly payments to the family by $1,774 in March 2009.  The learned primary judge noted that there were some discrepancies in figures provided by the prosecution for witness payments, but a schedule of payments tendered showed that the amount paid to the complainant’s parents and brother between February 2008 and November 2009 was $81,639.25.

The primary judge’s findings as to the payments

15. The learned primary judge reached a number of conclusions about the payments to the complainant’s family. The investigation of what amount was needed for their living expenses was superficial. Some level of humanitarian support might have been justified, given the possible detrimental effect of publicity about the charges on the family’s business, but the Australian Federal Police had undertaken full financial support to sustain their lifestyle and activities until the trial was concluded. That provision of financial support occurred after the complainant and her family members had threatened to withdraw as witnesses. The amounts paid exceeded anything that could be described as “subsistence” payments. Although the terms of the support required that the complainant’s family members acquit the payments they received against their actual expenses and that they seek employment, there was no evidence that those terms had been enforced.

16. There were guidelines in place which dealt with provision of financial support to victims of prostitution trafficking in Australia, but they did not extend to the provision of payments for other witnesses.  By way of authority, the Australian Federal Police relied on an approval, given by the Commissioner’s delegate, of the expenditure as “an efficient, effective and ethical use” of public money.  (That form of approval accorded with reg 9 of the Financial Management and Accountability Regulations 1997 (Cth), which requires the approver of a spending proposal for public money to be satisfied that the expenditure is an efficient, effective and ethical use of Commonwealth resources that is not inconsistent with the policies of the Commonwealth.^[1])  Her Honour went on to observe:

“The fact that an AFP officer completes a standard form to make a payment that is within the terms of the package of financial support for the complainant’s family that the AFP agreed to provide does not address the underlying propriety of the witness support package.”

17. The learned judge considered the position of the complainant to be distinguishable from that of her family members and did not reach any concluded view on whether the payments made to her amounted to an abuse of process. She summarised what she saw as the issues raised by the payments to the complainant’s family members as follows:

“I am satisfied that the purpose that the financial support has been given to the complainant’s family members in Vanuatu is to ensure that those witnesses and the complainant remain willing to give evidence against the applicant.  The level of the financial support is of great concern and the expectation it has created on the part of the complainant’s family in Vanuatu that the support remains ongoing whilst the prosecution continues.  What would the complainant’s parents and brother have done to support themselves since February 2008, if the AFP had not provided full financial support of them and their dependants? It raises questions about the integrity of the administration of the Australian justice system, when witnesses who live in a foreign country, where it is alleged an Australian citizen committed acts of child sex abuse, expect to be fully supported by the Australian Government, until they give evidence at the trial in Australia of the Australian citizen.  The conduct of the AFP in taking over the financial support of these witnesses who live in Vanuatu is an affront to the public conscience.  It squarely raises whether the court can countenance the means used to achieve the end of keeping the prosecution of the charges against the applicant on foot.”

18. Her Honour concluded that the assumption by the Australian Federal Police of responsibility for the living costs of the complainant’s family members brought the administration of the justice system into disrepute. The motivation for the payments made to the witnesses was the continuation of the prosecution against the respondent. Those considerations outweighed the public interest in having the respondent proceed to trial on serious offences and more generally, in regulating the behaviour of Australian citizens overseas in respect of such offences.

The appellant’s submissions

19. The appellant argued that the fact that the Australian Federal Police had paid living expenses could not, as a matter of law, amount to an abuse of process. The learned primary judge had overlooked the fact that the statements of the complainant and her family members were made before any of those individuals received payment from the Australian Federal Police. In any event, it was not uncommon for witnesses to receive a benefit of one kind or another for giving evidence; that fact of itself had been held not to be enough to justify exclusion of evidence, let alone the making of a stay.^[2]  Prosecution witnesses were, in other contexts, financially supported by the police in return for giving evidence; as, for example, in witness protection programs.  There was no difference between maintaining the complainant’s family in Vanuatu and bringing them to Australia on criminal justice visas and supporting them here, the latter of which would have plainly been permissible. 

20. The learned primary judge had not found that the payments were made in bad faith or without authority; indeed, it appeared that she would have considered some payments justified, so that the concern was only as to their quantum. Nor had her Honour found that the payments to the complainant’s family members prevented the respondent from receiving a fair trial. The decision to pay the family members was a decision of the Executive in which the court would be hesitant to intervene. An argument not made at first instance was advanced: the learned primary judge had wrongly failed to take into account that the Executive was entitled, in the interests of deterrence, to send a message to Australian citizens who might take part in child sexual abuse abroad, that the Australian Government was prepared to financially support prospective witnesses in order to ensure their availability to give evidence.

21. This was a different case from the ordinary example of an Australian tourist on a short trip abroad taking advantage of individual children over a short period of time; the case was an exceptional one because the offences were committed over a six month period against a 13 year old complainant, with allegations of very serious sexual assault, in circumstances where the accused was 20 years older than the complainant and had some ability to interfere in the machinery of Government.

22. A proper balancing exercise could not have resulted in the granting of a permanent stay. The charges were extremely serious and the public interest in their proceeding inevitably outweighed the prospect identified by the learned primary judge, of an expectation that the Australian Federal Police would in future cases support overseas witnesses. In any event, the judge should have considered alternatives to the extreme remedy of stay; considering, for example, whether the witnesses’ evidence should have been excluded in the exercise of a Bunning v Cross discretion. 

The respondent’s submissions

23. The respondent pointed out that the payments made were exceptional, involving large amounts of money. Their quantum had not been properly disclosed. They were not supported by any accepted guidelines and were not properly monitored.  They were made in the context of a politically motivated prosecution in response to threats by the prospective witnesses who, unlike witnesses offered indemnity or protection, had no legitimate reason to refuse to give evidence.  They established a precedent for witnesses to demand, with threats, financial support in exchange for evidence.  The moneys were spent on business interests, personal debts and the employment of a “house girl”; they were not referrable to expenses associated with being witnesses. 

24. The existence of the payments made a fair trial impossible because they created an imbalance between the State and the individual; the continuing of the prosecution amounted to oppression of the respondent. The payments were such as to “bring the administration of justice into disrepute among right-thinking people”.^[3]  The court should follow R v Horseferry Road Magistrates Court; Ex parte Bennett (No. 1)^[4] and refuse to countenance the Executive’s behaviour, which breached the rule of law. 

The power to stay proceedings

25. Some principles may readily be extracted from the authorities. The power to stay proceedings as an abuse of process is an exceptional one.^[5]  The court’s jurisdiction extends to preventing misuse of its procedure in a way which would

“be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”^[6]

In the latter instance, fairness to the particular accused may be an important consideration, but it is not essential to the exercise of the power to stay that an unfair trial will result:

“[T]he focus is on the misuse of the Court process by those responsible for law enforcement.  It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”^[7]

The judiciary will, however, be hesitant to use its power so as, in effect, to undertake supervision of Executive action.  The need for a court to exercise its inherent power to prevent an abuse of its process should arise in the context of a prosecuting authority’s performance of its functions “rarely, if ever”.^[8]

26. Courts have been prepared to accept that the grant of a stay may be the appropriate response where there has been wrongful conduct on the part of the authorities in bringing the accused within the court’s jurisdiction: the “disguised extradition” cases.^[9]  R v Latif^[10] provides another example, from a different context, of willingness to intervene where there has been a misuse of power on the part of the Executive.  There, one of two defendants had supplied a large amount of heroin to an informer in Pakistan.  The heroin was ultimately brought by a customs officer, illegally, to England, where the defendants attempted to take re-delivery of it.  Lord Steyn, with whose speech all the other Law Lords in the case agreed, described the issue as:

“whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system.”

In the result, however, the customs officer’s conduct was not considered to be such as to make the continued prosecution of the defendants “an affront to public conscience”.

27. The High Court arrived at a similar conclusion in similar circumstances in Ridgeway v The Queen,^[11] where the Australian Federal Police had enabled an illegal importation of heroin.  The majority^[12] did not accept that either the conduct of the police, or the fact that the officers responsible had not been charged, made the institution of proceedings against the importer of the drugs for the purpose of obtaining his conviction and punishment an abuse of process:

“To the contrary, to institute and maintain proceedings in a competent criminal court for that purpose is to use the process of that court for the very purpose for which it was established.”^[13]

The proper course was the exclusion of evidence that the heroin had been illegally imported (leaving the accused still liable to a possession charge under State law).  Consequently, the majority concluded, a stay was appropriate purely on the basis that the proceedings, without that evidence, would fail, rather than on any broader ground.^[14]  Brennan, Toohey and McHugh JJ reached different views about the proper outcome, but none accepted that the conduct of the police and the resulting prosecution were such as to bring the administration of justice into disrepute so as to warrant a stay on that ground; Gaudron J was the only member of the court who accepted that argument.

28. In Moevao v Department of Labour, Richmond P sounded a cautionary note about interference with the functions of the Executive:

“However it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused.  Therefore any exercise of the power must be approached with caution.  It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.”^[15]

Whether the police conduct here gave rise to an abuse of process

29. I may say at once that some of the arguments put for the appellant were not compelling. The submission that the Executive was entitled to make payments of the kind here for the general deterrence of Australian citizens inclined to paedophile activities abroad might have had some force had there been some evidence suggesting such a motivation and a submission to that effect before the learned primary judge. In the absence of any such explanation of the payment, it can hardly be said that the learned primary judge fell into error in failing to consider it.

30. Apart from the political influence imputed to the respondent, the factors relied on to contend that the case was an exceptional one are, unfortunately, not so very distinctive in cases involving sexual abuse of children, whether here or abroad. The suggestion that the respondent had political sway smacks, ever so slightly, of a suggestion that if one side of the argument is in a position to tamper with due process, similar activity on the other side is legitimised.  If that characterisation is unfair, the point is, at best, unhelpful in determining whether the funding of the complainant’s family was liable to bring the administration of justice into disrepute. 

31. The various examples the appellant gave of other, uncontentious forms of benefit to witnesses are of some use as illustrations of what does not seem to affront the public conscience. (Indeed, the learned primary judge acknowledged that some limited payment would not have been exceptionable; her concern was with the fact that the family’s living expenses were met.) But the focus must be on the intent and effect of what was actually done here and the means by which it was done.

32. The charges were not brought for an improper purpose. Although the respondent asserted that the payments were made in the context of a politically motivated prosecution, that was not the finding of the judge at first instance. And as the appellant pointed out, the statements of the complainant’s family members were made in 2006, well before any question of the supply of funds by the Australian Federal Police arose. The payments were made to ensure the continued willingness of the recipients to give evidence, not in order to induce the giving of evidence in the first place; an important distinction. Endeavouring to ensure that witnesses will be available for trial is not, of itself, an improper endeavour, although the question of how it is carried out must be examined.

33. The problems identified by the respondent included the lack of transparency in the payments, in circumstances where there were no guidelines. On the first issue, as the learned primary judge found, despite an unsatisfactory approach on the part of the prosecution throughout the hearing of the stay application, ultimately the necessary evidence was put before the court and tested. In any event, the remedy for a lack of transparency is not a stay but the making of orders to ensure proper disclosure. Similarly, the lack of guidelines for the payments points to the desirability of formulating guidelines to meet such situations as this, but not necessarily to any abuse of process.

34. The course Australian Federal Police adopted was outside, but not in breach of, existing guidelines. All that could be identified as a basis for the expenditure was the Financial Management and Accountability Regulations.  So far as the Regulation is concerned, it is hard to see that the purpose of ensuring that the witnesses gave evidence was per se unethical.  As to whether the payments were efficient and effective, one might argue whether they amounted to an intelligent use of resources, but that, of course, seems a question entirely within the province of the Executive.  More to the point, although her Honour made the observation that the fact that the expenditure was certified by an Australian Federal Police officer did not mean that it was proper, she did not make any finding that it was improper.

35. The payments in this case might have been ill-advised for a number of reasons. They were liable to have an adverse impact on the credibility of the witnesses who received them; cross-examination was likely to be directed to establishing that their enthusiasm for maintaining their accounts was the result of the favourable treatment they had received. The fact that the payments were made in response to demands does not necessarily affect their propriety, but they might well encourage exorbitant witness demands on the Australian Federal Police. Still, even in this case, there were limits set by the Australian Federal Police: the demands to be moved to Australia or the south of France, for example, fell upon deaf ears. 

36. It is difficult, in any case, to see how the creation of expectations, whether at large or in the witnesses paid in this case, could amount to an abuse of process, so long as those expectations were not of benefiting from the giving of false evidence. Others might, indeed, look to the support given to the complainant’s family and see some advantage in becoming witnesses in similar prosecutions; but I do not think one can properly speculate that false complaints would result.  More importantly, the payments here were not made to induce the provision of statements, and there was no suggestion that the witnesses anticipated any benefit conditional on their giving satisfactory evidence at the trial.  Indeed, it seems to have been made clear that all benefits would end with the conclusion of the prosecution.

37. Adopting the words of Richmond P in Moevao, this case seems to me not one of abuse of process but, at the highest, one involving conduct of questionable wisdom “which falls short of establishing that the process of the Court is itself being wrongly made use of”.  Instead, its process is being used for what the High Court in Ridgeway described as its proper purpose: to seek the conviction of someone charged with very serious offences.  And the fact that a court does not give a stay does not, contrary to the submission of the respondent, amount to approval of what has been done by the prosecuting authorities.  In this case, it is difficult to accept that by allowing the charges against the respondent to proceed, the Supreme Court would appear to be sanctioning the conduct of the Federal Police officers in making the payments.

38. There were, in my respectful view, two crucial errors in the learned primary judge’s reasoning: the failure to recognise that the questioned payments were not designed to, and did not, procure evidence from the prosecution witnesses; and the failure to pay sufficient regard to the fact that the payments made, while beyond existing guidelines, were not illegal. The conclusion that the making of the payments was such as to bring the administration of justice into disrepute if the prosecution were allowed to proceed was not, in my view, open on the facts.

The notice of contention

39. The respondent argued that the common law recognised a respondent’s right to support the judgment appealed from by reference to alternative arguments.^[16]  Notwithstanding the absence of provision in the Criminal Code or the Criminal Practice Rules for the filing of a notice of contention, that right should be afforded to him.

40. The appellant’s appeal is brought under s 669A(1A) of the Criminal Code, which provides:

“(1A) The Attorney-General may appeal to the Court against an order staying proceedings or further proceedings on an indictment.”

The section does not delineate the court’s jurisdiction on such an appeal.  In R v Ferguson; ex parte Attorney-General (Qld),^[17] the nature of an appeal under s 669A(1A) and the court’s powers to dispose of it were considered in the context of an argument that the absence of any express provision meant the absence of any power to determine the appeal.  The court referred to s 49A of the Acts Interpretation Act 1954 (Qld) which provides:

“49A Jurisdiction of courts and tribunals

If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal.”

The conclusion was that the court must be taken to have jurisdiction over, and accordingly, the power to determine, the appeal.  The appeal created was one in the strict sense.  The court continued: 

“Such an appeal is available only to correct demonstrated errors in the decision below.  The orders which the Court may make do not extend to exercising the discretion afresh based on its own view of the facts.

The question which this Court must address then is whether there has been demonstrated such an error on the part of the learned primary judge that it is amenable to correction on appeal.  If there is such an error, then this Court must set aside the decision below, but it is not empowered by statute to exercise the discretion afresh.”^[18]

41. The respondent submitted that what was said in that passage was dicta and should not be followed. Indeed, I think that the proposition that because the appeal is one in the strict sense the court cannot re-exercise the discretion is too broadly stated. However, as a matter of statutory construction, I have concluded that it is not open to the respondent to advance additional arguments here to support the making of the stay.

42. Section 669A provides for other forms of appeal by the Attorney-General. It is instructive to compare the terms in which they are created. The Attorney-General may appeal against a sentence imposed in respect of an indictable offence^[19] and refer points of law arising upon the trial of an indictable offence.^[20]  In respect of the first, the court has conferred upon it an “unfettered discretion” to impose the sentence which seems proper to it; it follows that the court may hear any submission which the respondent could have made at first instance.  Argument on the reference of a point of law, on the other hand, is necessarily confined by the terms of the reference; but that is unlikely to present any disadvantage to the accused person, since the reference does not have any effect on his or her acquittal or conviction, as the case may be. 

43. But s 669A(1A), conferring on the Attorney-General the right of appeal against a stay, does not, on its face, give any guide to the breadth of the appeal it creates. However, it was inserted into the Criminal Code by the same amending Act as s 590AA,^[21] the source of an accused person’s right to appeal against a refusal of a stay, and is properly read in context with that section.  Under s 590AA, a party may seek a direction or ruling once an indictment has been presented, including 

“... a direction or ruling …. in relation to –

(a)   the quashing or staying of the indictment ...”^[22]

Importantly, s 590AA(4) provides:

“(4)A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.”

44. The legislative intent of those amendments, in my view, is clear: the Attorney-General was given an immediate right of appeal against an order staying proceedings, but an accused person who wished to take issue with a direction or ruling in relation to the staying of an indictment could do so only after trial, as a ground of appeal against the conviction. A judge’s reason for refusing to grant a stay might be fraught with error, but absent a conviction, no opportunity was given to challenge it. If, for example, the primary judge here had erred in ruling against the respondent on each of the other grounds he advanced for the making of the stay and not had found in his favour on the single ground of the witness payments, he would have had no opportunity to challenge any of those rulings. It is difficult to see why that situation should alter because it proves that the judge made an error in his favour by granting the stay on this ground.

45. Given those features of the legislation, I would construe the appeal under s 669A(1A) as one in which the court is limited to examination of the reasons of the primary judge for error in granting the stay, and not as extending to consideration of error in the rejection of other arguments advanced.  However, because my view as to the extent and effect of the appeal created by the section is not shared by the other members of the court, I will address the grounds advanced in the notice of contention.

46. Those grounds were, that the removal of the respondent from the Solomon Islands to Australia with the concurrence and connivance of the Australian authorities was a disguised extradition in breach of the respondent’s rights, the learned primary judge having erred in declining to make a finding on the lawfulness of the Solomon Islands Government’s conduct in deporting the respondent; that the learned primary judge should have found that the investigation was politically motivated and attended by delay; that while not, strictly speaking, amounting to double jeopardy, the Australian prosecution raised the same issues as the earlier charges in respect of which the respondent had been discharged; and that the belated disclosure made by the prosecution of its communications with the witnesses who were paid was vexatious. Those matters taken individually and collectively, it was said, amounted to oppression of the respondent which warranted a permanent stay. The respondent asserted that he relied on the facts as found by the learned primary judge to argue that they supported the stay order made, for different reasons.  However, some of the grounds argued appeared, rather, to urge for different findings of fact from those made by the learned primary judge.

“Disguised extradition”

47. The respondent argued that his removal from the Solomon Islands amounted to a disguised extradition in which the Australian Government had concurred or connived.  Knowing that the deportation was illegal because the respondent had not been permitted to exercise his rights under the Solomon Islands Deportation Act, the Australian Government had provided the accompanying officers with visas and, at the request of the Solomon Islands Government, arranged accommodation allowances for them in Brisbane; had initially been prepared to send the Australian Federal Police liaison officer on the flight, although that decision was rescinded; had issued a travel document enabling the respondent to enter Australia; and had communicated his flight arrival details to Australian Federal Police in Brisbane so that he could be arrested there.  An associated ground for maintaining the stay order was that the learned primary judge failed to treat the conduct of the Solomon Islands Government as justiciable.

48. There are a number of difficulties with these arguments. Firstly, the argument that the learned primary judge should have scrutinised the conduct of the Solomon Islands Government can have no force if there was no involvement of the Australian Government in that conduct. Secondly, the learned primary judge, who heard and saw the relevant witnesses, found that the actions of the Australian Government could not be:

“characterised as connivance or collusion with the Solomon Islands Government to avoid the possibility of the applicant relying on rights conferred by the Deportation Act.  There was no act or involvement of the Australian Government in the deportation which fixes it with the consequences of any denial of rights to the applicant that may arguably have occurred in the Solomon Islands.”

It would appear that what the respondent argues for is a different finding of fact.

49. That leads to a third issue, whether the “concurrence” to which the respondent alludes could be a sufficient basis for attributing any illegal conduct to the Australian Government so as to arrive at the conclusion of an abuse of process. The court in Levinge referred to wrongful or unlawful involvement^[23] or being a party to or conniving at the unlawful conduct;^[24] in Bennett,  the question was whether the Executive had been a “knowing party” to an abuse of extradition procedures;^[25]  In Mullen, the conclusion was that the authorities had “initiated and subsequently assisted in and procured” the appellant’s deportation.^[26]  Only in R v Bow Street Magistrates, ex parte Mackeson^[27] was any reference made to “concurrence”; and in that case the activity seems to have gone well beyond that description.^[28] 

50. Whatever the phrasing, I do not think that mere knowledge on the part of the Australian Government that the respondent’s deportation might be illegal equates to the active involvement in procuring deportation, in preference to the proper course of extradition, involved in Bennett, Mullen and Mackeson.  The evidence here was that the Australian Government was at all times seeking extradition of the regular kind, rather than deportation of the respondent.  It rigorously abstained from expressing any view on what the Solomon Islands Government proposed.  Its communication of flight details to police in Brisbane and the arrest of the respondent on his arrival did not amount to giving any aid in the deportation; it was the appropriate conduct of a police force in regard to the apprehension of a person for whom there was an arrest warrant extant.  The issuing of a travel document for the respondent could hardly have been refused in circumstances where he was an Australian citizen.  The learned primary judge properly found, in my respectful view, that there was no collusion by the Australian Government in anything amounting to a disguised extradition. 

Political motivation and delay

51. The respondent argued that the learned primary judge ought to have granted the stay on the ground that the prosecution was politically motivated. Again, her Honour, having heard the relevant witnesses, including the Australian Federal Police agent responsible for the issue of arrest warrants, concluded that there was no evidence of any impropriety in the Australian Federal Police’s approach to investigating and charging the applicant, whatever might have been the motivation of those at the High Commission in referring the complaint to the Australian Federal Police. No error is identified in that finding, nor in her Honour’s finding that delay in the investigation and the lapse of time since the offences were allegedly committed have not made a fair trial impossible. 

“Double jeopardy”

52. The respondent raised the question of oppression arising out of the delay in charging the respondent and the fact that the charges were based on his alleged sexual relationship with the complainant, charges in respect of which he had previously been discharged at committal. There was some overlap between the facts said to underlie the charges now brought against the appellant and those in respect of which he was discharged at his committal in 1999. The learned primary judge identified those as three offences alleged to have been committed between May and October 1997.

53. It is true that:

“Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset … depending on the particular facts”

can amount to an abuse of process.^[29]  This, however, is hardly that case.  Firstly, the respondent has not had to endure a trial on the charges which were brought in Vanuatu; they were simply dismissed at committal.  Secondly, the authorities in this country have not previously undertaken any prosecution of the respondent; and, once the evidence was obtained, they proceeded with the charges with proper diligence.  Nothing indicates a different conclusion from that reached by the learned primary judge at first instance, namely, that the bringing of the charges on the indictment before the court did not amount to an abuse of process.

Belated disclosure

54. Finally, the respondent complained of the prosecution’s reluctant and halting disclosure of the documents relevant to the payments of the witnesses, which he said was vexatious. That may be so, but it was a problem resolved by the time the learned judge came finally to rule on the matter.

Conclusion

55. None of the additional matters advanced by the respondent, taken individually or cumulatively, comes close to demonstrating oppression of the proportions which would warrant a stay. Nor can the stay be supported on the ground identified by the learned primary judge. It should be set aside.

56. MUIR JA: I agree with the reasons of Holmes JA and with the order she proposes, save that I do not find it necessary to decide the questions of law raised in respect of the notice of contention.  For the reasons given by Holmes JA, none of the matters raised in the notice of contention have substance.

57. FRASER JA:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with her Honour’s reasons for concluding that there is merit in the appellant’s grounds of appeal.  I also agree that the respondent’s arguments upon other grounds which were not accepted by the primary judge did not justify the stay order.  I would allow the appeal for those reasons.

58. The only point upon which I would respectfully differ from Holmes JA is that I would hold that the respondent was entitled to seek to support to the stay order upon grounds which the primary judge rejected. The resolution of this question has no bearing upon the result in this Court but I will state my reasons for my conclusion.

59. The primary judge’s order staying the indictment was made upon the respondent’s application under s 590AA(1) of the Criminal Code 1899 (Qld).  Subsection 590AA(2) provides that “a direction or ruling” may be given in relation to various matters, including “(a) the quashing or staying of the indictment”.  The appellant’s appeal is brought under s 669A(1A) of the Criminal Code.  That subsection provides that the Attorney-General “may appeal to the Court against an order staying proceedings or further proceedings on an indictment”.

60. The entitlement of a respondent to support a judgment under appeal upon grounds other than those accepted by the primary court depends upon the proper construction of the statutory provision which confers the right of appeal, but it has been held in a variety of statutory contexts that a respondent has such an entitlement. In David Syme & Co. Ltd v Lloyd^[30] Kirby P summarised the relevant law:

“It is clearly established that a respondent to an appeal, such as the present claimant, is entitled at the hearing of the appeal, to rely on any ground to support the decision of the court appealed against. There is a long line of authority, both in England and Australia, which makes it plain that where a respondent is content with the judgment appealed from, he may on an appeal, without filing appeal process himself, support the judgment on a ground different to that relied upon by the court below, even if that court has not adverted to the alternative basis for its decision at all: see, for example, Waller and Son Ltd v Thomas [1921] 1 KB 541; Simpson v Crowle [1921] 3 KB 243 and Re the Solicitors Act 1932; Re Two Solicitors [1938] 1 KB 616 at 627]. In Australia, the point was made clearly in this Court by Jordan CJ in NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 at 282; 64 WN 58 at 62. Giving the judgment of the Full Court, Jordan CJ said, in respect of a ground of appeal raised during argument by a successful respondent:

“It is true that this ground was not relied upon by the defendants below; but they are the respondents in the appeal and it has been repeatedly held that a respondent can support the judgment which he obtained below on any good legal ground appearing upon the evidence, although he did not present it in the Court below.”

Mindful of the problem of surprise and of the need to ensure fair procedures, courts reserve the possibility of imposing conditions: see Waller and Son Ltd v Thomas (at 548). However, the common law is plain. A respondent to an appeal, not seeking a variation of the judgment, order or determination appealed from, is not obliged to file court process but can support the judgment under attack by reference to additional or alternative arguments of law. Accordingly, in the present case, the claimant is adequately protected by this principle. No question arises as to a qualification on this protection by reason of the conduct of the proceedings, the issue having been thoroughly argued in this Court and adverted to in the judgments of Glass JA and Priestley JA. It is perhaps worth noting that the width of the common law rule was implicitly recognized in the reform of the Supreme Court Rules of New South Wales by the introduction of the procedure for a notice of contention: see Pt 51, r 14. Far from being a procedure designed to permit the respondent to an appeal to raise, in argument, alternative bases for supporting the decision appealed against, this facility was introduced precisely to control what was presumably considered to be the too ample entitlement of a respondent at common law and to ensure that the court and the parties to the appeal had due notice of any alternative basis upon which it was contended that the judgment under appeal could be sustained.”

61. Although the appellant initially argued that a respondent’s usual right to support a decision under appeal on a ground not accepted by the primary court was limited to questions of law, the appellant ultimately did not rely upon that proposition. Depending upon the proper construction of the relevant statute, such a distinction may be relevant where the ground was not litigated at first instance (both in relation to the scope of a “strict appeal”^[31] and in relation to the appellate court’s discretion to refuse to consider the ground^[32]) but in this matter the respondent did invoke the relevant grounds at first instance. In this appeal there is no basis for distinguishing between legal and factual questions for the purpose of deciding whether the respondent is entitled to support the stay order by reliance on grounds which were not accepted by the primary judge.  

62. I respectfully agree with Holmes JA’s conclusion that the statement in R v Ferguson^[33] that in an appeal under this section the Court is not empowered to exercise the discretion afresh when this Court has set aside the decision below is too broadly stated, but I would respectfully endorse the observation in the same passage of the judgment in R v Ferguson that an appeal under s 669A(1A) of the Criminal Code is available to correct demonstrated errors in “the decision below”.  The appeal is against the “order”, not the ground upon which the order was made.  The classification in R v Ferguson of an appeal under s 669A(1A) as an appeal “in the strict sense”^[34] does not indicate that the appeal is confined to any particular ground relied upon by the primary judge.  Absent any contrary indication in the statute, what is in question in a “strict appeal” from an order is whether the order was right or wrong on the evidence and the law as it stood at the time of that decision.^[35]  As Kirby J pointed out in Gipp v The Queen^[36] what is under review is not the reasons but the order or judgment under appeal.^[37]  That is consistent with more general statements such as that made by Mason CJ in Mickelberg v The Queen that the function of an appellate court which is hearing an appeal in the strict sense is to “redress error on the part of the court below.”^[38]  In the same case, Brennan J referred with approval to the statement by Latham CJ speaking for the Court in Davies and Cody v The King^[39] that the only power of the High Court as a court of appeal was “to consider and determine whether the judgment of the court appealed from was right upon the materials before that court.”^[40]  Accordingly, subject to any contrary indication in the statute which creates a “strict appeal” against an order, it will ordinarily be an incident of the appeal that the respondent is entitled to support the order upon any ground which demonstrates that the order was correctly made, regardless whether or not the primary court accepted that ground.

63. For the reasons given by Kirby P in David Syme & Co Ltd v Lloyd, the absence of any specific provision for a notice of contention in relation to an appeal under s 669A(1A) does not displace that usual incident of an appeal.  Nor, in my respectful opinion, is there any other contextual matter which is sufficient to displace it.  As Holmes JA has pointed out, s 669A(1A) was enacted by the same Act (the Criminal Law Amendment Act 1997 (Qld)^[41]) which enacted s 590AA(4) (originally enacted as s 592A(4)^[42]).  Subsection 590AA(4) provides that a direction or ruling under s 590AA “must not be the subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.”  The respondent’s reliance upon grounds rejected by the primary judge does not infringe the prohibition against interlocutory appeals in s 590AA(4).  The respondent does not seek to appeal against any direction or ruling.  Rather he seeks merely to deploy arguments which he contends demonstrate that the order was correctly made.

64. In my respectful opinion s 590AA(4) does not suggest that the proper construction of s 669(1A) is that an accused person is not entitled to seek to resist an appeal under s 669A(1A) by reliance upon a ground rejected by the judge who made the stay order. Subsection 669A(1A) does not confer upon the Attorney-General a right of appeal against every ruling or direction which might be made under s 590AA.  Subsection 669A(1A) applies only in relation to one “direction” or “ruling” listed in s 590AA, namely an order which summarily brings the proceeding on the indictment to a halt.  That feature of the only order against which an appeal may be brought sets it apart from other directions and rulings against which no interlocutory appeal by either party is permitted.  An appeal by the accused person against the refusal of a stay, like an appeal by either party from other directions and rulings, might be seen to fragment the criminal proceedings underway in the trial division, particularly because the matter can be considered afresh on appeal if the accused person is convicted.  Where a stay is ordered that is not a consideration, since the proceedings are effectively at an end, subject only to the result of fresh litigation by way of appeal.  There is no anomaly in the fact that an accused person who is the respondent to an appeal against a stay order based upon what this Court finds is an insufficient ground for a stay can justify the stay by other grounds wrongly rejected by the primary judge, even though the accused person could not have appealed had the primary judge wrongly rejected those other grounds and correctly rejected the insufficient ground.

65. The appellant’s proposition comes down to this. In an Attorney-General’s appeal this Court must set aside an order staying an indictment as an abuse of process if the particular ground relied upon by the primary judge did not justify the order but the order was correctly made on a ground which the primary judge erred in rejecting. That strikes me as producing an apparent injustice to the accused person, who has and should retain the benefit of a stay order which was correctly made. Nor is there any apparent injustice to the appellant in allowing the respondent to argue that the stay was rightly ordered on the evidence for a reason other than that which was assigned by the primary judge. The prospect of injustice flowing from the construction of s 669A(1A) propounded by the appellant suggests that it was objectively unlikely that it was intended by the legislature.

66. I accept the respondent’s argument that he is entitled to invoke grounds rejected by the primary judge to support his contention that the stay was correctly ordered. As I have said, however, I would reject the respondent’s arguments on the merits for the reasons given by Holmes JA.

67. I agree with the order proposed by her Honour.