R. v. KEVIN BARRY EGAN

Criminal Case No. 280 of 1991

HEADNOTE

Criminal Law - application for stay for abuse of process, alternatively for breach of Article 10 of the Bill of Rights - discussion of principles - consideration whether or not the Bill of Rights adds anything to the common law jurisdiction.

CASE 280(3) OF 1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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RULING

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1. Mr McNAMARA for the defence seeks the court's intervention to stay these proceedings on two separate but similar grounds. He submits firstly that a trial would be an abuse of the process of the court, and secondly that it would infringe Article 10 of the Bill of Rights, entitling the defendant to a fair hearing. In deference to the long and careful arguments of both counsel, as well as to the seriousness of this matter, I shall discuss the relevant principles and my own conclusions at some length.

2. The reliance on the Bill of Rights, in addition to the court's inherent power to restrain a breach of process, does not seem to add any remedies to those otherwise available. Section 6 of the Bill of Rights permits the court, when faced with a violation or threatened violation, to:-

"grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances".

3. So the court's powers to intervene are expressly confined to those it already enjoys. I shall discuss in due course whether or not the terms of Article 10 may more readily invoke those powers than the inherent jurisdiction, and I shall concentrate for the moment on this latter aspect.

4. The court's inherent power to grant a stay to prevent an abuse of process is well established and has been the subject of much judicial wisdom. My inquiry is not therefore directed to the question of its existence, but to the limits on its exercise and to whether or not the situation in issue may fall within its purview.

5. It is not the defence case that these proceedings have been unfairly instituted. On the contrary, it is a subsequent and recent change in circumstances material to the prosecution which Mr McNAMARA argues to have introduced unfairness and oppression warranting the court's intervention.

6. Whilst however the court may have the power to intervene to stay proceedings, it is equally well established that this power should be used only in the most exceptional circumstances. The court's impartiality demands that it should not intrude on the Attorney General's discretion to bring or continue proceedings unless there are compelling reasons for doing so.

7. There is moreover a strong public interest that an indictment once preferred should be tried and that disputes should be resolved in the course of the trial itself, and not by pre-trial adjudication. This point was made by Lord Lane CJ in Attorney General's Reference (No. 1 of 1990) (1992) 3 All England Reports at page 175, when he said:

"... the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for stay".

8. The public interest, represented by the prosecution, was also emphasised by Lord Morris in Connelly v DPP (1964) 2 All England Reports at page 411, when he approved the dictum of the trial judge that:-

"Generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it".

9. Nonetheless, the power to grant a stay for abuse of process does exist and I accept that it cannot by its nature be confined to particular situations. It is available to the court whenever and in whatever form oppression may appear. To that extent it is susceptible to definition only in the negative, in the sense that it should not be exercised except where a prosecution would be vexatious or oppressive if allowed to continue.

10. Lord Devlin in Connelly v DPP has set out at great length and with, if I may say so, great learning, the progress of judicial intervention over the years to ensure fairness between prosecutor and accused. He also adduces the court's duty to conduct its proceedings so as to demand the respect and confidence of the public.

11. This latter point is not however one-sided, insofar as the respect and confidence of the public also demands that, in normal cases, the discretion of the Attorney General to prosecute be unfettered by judicial intervention. It is a drastic and indeed an arrogant and presumptuous step on the part of a judge, in all but the clearest of cases, to suppress the Attorney General's right to prosecute on behalf of the public. It is potentially an interference in the constitutional process which may draw from the community the very cynicism and disrepute which the court is urged to avoid. It is moreover potentially an indulgence of the whims of the individual judge who may think himself better able than the appointed authority to decide the fairness of a trial even before the trial commences.

12. I respectfully agree with Viscount Dilhorne in DPP v Humphrys (1976) 2 All England Reports at page 511, when he says:-

"A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval".

13. The gravity of what the defence is asking of the court is powerfully illustrated by Lord Scarman in R v Sang (1980) Appeal Cases 402, cited with approval by Mr Justice Brennan in Jago v The District Court of New South Wales. Lord Scarman said at page 454:-

"The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority. He neither initiates nor stifles a prosecution. Save in the very rare situation, which is not this case, of an abuse of the process of the court (against which every court is duty bound to protect itself), the judge is concerned only with the conduct of the trial. The Judges Rules, for example, are not a judicial control of police interrogation, but notice that, if certain steps are not taken, certain evidence, otherwise admissible, may be excluded at the trial. The judge's control of the criminal process begins and ends with the trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. Of course when the prosecutor reaches court he becomes subject to the directions as to the conduct of the trial by the judge, whose duty it then is to see that the accused has a fair trial according to law. What does 'fair' mean in this context? It relates to the process of trial".

14. I also find it relevant and salutary to cite with respectful agreement the following passage from Mr Justice Brennan himself in Jago v The District Court of New South Wales 1989 168 Commonwealth Law Reports 23. At page 47 the learned judge said:-

"Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes, adverse revelations in a public inquiry, absence of competent representation, or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed, Unfairness occasioned by circumstances outside the court's control do not make the trial itself a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial, by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer".

15. The learned judge then went on to consider the issue of abuse of process. He accepted the need for what he described as more radical remedies in such a situation and sought to define it in these general terms:-

"When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose".

16. Lord Lowry in Hui Chi Ming v R (1992) 94 Criminal Appeal Reports 236 described abuse of process in similar terms as:-

"Something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding".

17. Whilst therefore the court has in Lord Devlin's words in Connelly:-

"a general power, taking various specific forms, to prevent unfairness to the accused,"

18. Nonetheless, for that unfairness to amount to an abuse susceptible to a permanent stay, it must be both fundamental and clearly perceived. The usually and infinitely more desirable means of ensuring fairness is by judicial intervention in the course of the trial itself and not by suppression of the proceedings before their commencement. Again I respectfully agree with Mr Justice Brennan in Jago when he says at page 49:-

"By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case".

19. I have cited these various passages from the decisions of eminent judges to demonstrate the fundamental nature of the injustice which the court must find before it may consider a permanent stay for abuse of its process. The injustice must moreover be such that it cannot be cured at trial by judicial intervention or direction to the jury. The injustice must clearly strike, even before the trial commences, at the very issue of a fair trial itself, so that the judge may intervene and tell the Attorney General that he is wrong to proceed.

20. Against this background I have to turn to the arguments of Mr McNAMARA for the defence in deciding if there is unfairness to the accused arising from recent events, and if so is it fundamental to the justice of the entire proceedings.

21. Mr McNAMARA's first complaint relates to what he regards as the impossibility properly to cross-examine on matters which may be crucial to the jury's assessment of credibility. As this is a pre-trial matter I am not going to cite the arguments in detail; they are well known to both counsel, and in the circumstances of this case, to the accused also.

22. I will repeat what has been made clear in argument; namely, that this is not an application to exclude all or part of any evidence which may be adduced in a subsequent trial. Such an application would seek a remedy within the trial itself, and different principles would apply. The present application is for the stay of the proceedings as a whole as oppressive and incapable of rendering justice to the accused.

23. I will not minimise counsel's difficulty in handling his cross-examination in the light of recent events. It is however in my assessment a problem far removed from a situation of oppression of his client obliging me to stay the proceedings. If there is any unfairness in the situation of which the defence complains, it may be remedied by judicial intervention during the trial or by directions to the jury at the end of it. If indeed there is unfairness in this situation, to grant a stay because of it would be a response disproportionate to the issue amounting to unwarranted judicial interference in the Attorney General's discretion.

24. Mr McNAMARA's next argument rests on the publicity of his client's alleged role in press reports of the earlier escape trial. Mr McNAMARA accepts that such publicity would not be grounds for this application save for recent changes in the prosecution case. These changes, argues counsel, make the earlier publicity particularly dangerous to his client as that publicity no longer reflects the prosecution case. In this he urges unfairness of a degree sufficient to justify a stay of these proceedings.

25. Mr McNAMARA regarded the case of R v Kray 53 Criminal Appeal Reports 412, adduced by Mr HUGGINS in this context, as irrelevant insofar as it involved no variation in the prosecution case from an earlier trial to a later one. However the publicity complained of in Kray related not to the earlier trial but to the publication in a newspaper after the first trial and before the second of what the judge described as "discreditable allegations which may be either fact or fiction". Assuming therefore that the change in the prosecution case in our situation has rendered the press comments on the earlier escape trial no longer factual as far as the case against this accused is concerned, then the Kray situation is not dissimilar.

26. Commenting on Kray in terms with which I respectfully agree, Mr Justice Lawton in that case said:-

"It is however a matter of human experience, and certainly a matter of the experience of those who practise in the criminal courts, first, that the public's recollection is shortlived, and, secondly, that the drama ... of a trial almost always has the effect of excluding from recollection that which went before".

27. In the event the learned judge found exceptionally, in the light of the possibly fictional publicity, that the defence should have the right to examine jurors as they came to be sworn. This was without the foundation for a challenge for cause having been laid in regard to any particular juror. The matter of a stay of proceedings on the ground of the adverse publicity was not raised.

28. I share Mr Justice Lawton's faith in the fairness of jurors coupled with their shortness of memory of press reports. This issue is one which the judge should address in the event of a summing-up to the jury and no more drastic remedy is required.

29. The next argument is described as the committal point. The defence points out that if the current situation had existed at the committal stage, Mr EGAN may have opted for a contested committal. Alternatively Mr McNAMARA argues that Mr Justice SAIED may not have consented to the voluntary bill.

30. This argument amounts to speculation. If recent events had arisen at an earlier stage then matters would not have been precisely the same. I do not know what may have happened and I will not go behind the properly applied machinery which has brought Mr EGAN to the present position. There is certainly no fundamental injustice in the situation which strikes at the root of the process itself. For any unfairness which may have arisen from the change in the circumstances, on which I make no comment, there are remedies within the trial itself.

31. The final argument in Mr McNAMARA's original presentation concerns what I shall call the lamination factor. This is adduced as showing clear lies on an important point, and the Crown's persistence in the face of it is described as another abuse.

32. This matter relates to credibility and in the normal course would be a matter for the jury. If however the new circumstances place the situation beyond the normal, in that the witness is inherently incredible and his evidence unduly prejudicial, then the defence has other remedies. The situation complained of is not a ground for the judicial suppression of the trial itself.

33. In his reply to Mr HUGGINS, Mr McNAMARA raised a further ground for his application derived from the substance of Mr HUGGINS' own argument. It amounts to the Crown's uncertainty of its own case and the corresponding uncertainty of the defence as to the case it has to meet, Mr McNAMARA said, correctly of course, that the Crown must not be allowed to go on a fishing expedition and must acquaint the defence of its case with certainty.

34. Mr HUGGINS has conceded that the Crown may be vulnerable on one point to an application to exclude certain evidence as disproportionately prejudicial. The defence may of course cast its net wider in an application for exclusion than that one instance of the Crown's vulnerability. In any event I do not find reason to intervene at this stage.

35. What I do however insist on is that the Crown make known precisely what it intends to adduce in the light of the recent events discussed in this application. I am probably doing an injustice to Mr HUGGINS in emphasising so obvious a point, but if Mr McNAMARA has any uncertainty about the case he has to meet, then, it must be resolved at the earliest opportunity.

36. I have dealt with this application so far on the basis of the court's inherent right to restrain an abuse of process. The defence is however also relying on Article 10 of the Bill of Rights, which guarantees an accused a fair hearing in the determination of a criminal charge.

37. The development of the common law in its protection of the individual accused has reached a mature stage. Over the years the interaction of private and community rights has provided in common law jurisdictions an effective and compassionate system of justice administered on readily identifiable principles. Against this, the jurisprudence engendered by the Bill of Rights is in its infancy. There may in the course of time develop a jurisprudence from the wording of Article 10 and from other articles going beyond the protection afforded to the individual by the common law. I do not perceive that to be the case today, neither do I find the need to commence that process.

38. I therefore find that the protection afforded by Article 10 of a fair and public hearing is declaratory of the situation under our law now and before the enactment of the Bill of Rights. The declaration itself is of value in that it acquaints all men of their rights, but it does not enhance nor enlarge those rights, nor the remedies available for their abuse. Neither, in saying that, am I suggesting that they need enlarging.

39. This application for stay therefore fails both for an abuse of process and for infringement of Article 10.

40. May I conclude by asking the press to report this matter carefully and in general terms, without reference to what they may have gathered as to matters of possible evidence.