Allen v Director of Public Prosecutions (WA) [No 2]

[2014] WASC 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   ALLEN -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [No 2] [2014] WASC 68

CORAM:   JENKINS J

HEARD:   11 SEPTEMBER 2013

DELIVERED          :   18 MARCH 2014

FILE NO/S:   MCS 38 of 2009

BETWEEN:   HENRY ALLEN

Applicant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Application to stay contravention proceedings - Parallel investigation of the respondent over the death of a person he is alleged to have been with when contravening supervision order - Whether the continuation of the contravention proceedings will result in an unfair trial

Legislation:

Criminal Procedure Act 2004 (WA), s 76, s 90
Dangerous Sexual Offenders Act 2006 (WA), s 23, s 40A, s 40B

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr S Corish & Mr R F Owen

Respondent:     Mr B Fiannica SC

Solicitors:

Applicant:     Aboriginal Legal Service (WA)

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

1. JENKINS J:  Henry Allen has applied for a stay of the application dated 26 July 2013 made by the Director of Public Prosecutions for Western Australia (the DPP).  The DPP's application seeks an order that as Mr Allen has contravened conditions of the supervision order made on 16 March 2010, as amended on 1 March 2011, that he be detained in custody for an indefinite term for control, care, or treatment (a detention order) pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act), s 23. Alternatively, the DPP seeks an order that the supervision order be amended in such terms as the court thinks fit (the contravention proceedings).

2. By his same application Mr Allen has applied for a stay of 10 summary charges laid against him under the DSO Act s 40A(1) for, allegedly, contravening the supervision order (the summary charges).

3. At the commencement of the hearing of the applications I decided that, although there was a similar factual basis for each of Mr Allen's applications, the applications for the stay of the summary charges and the contravention proceedings should be heard and determined separately.  This is because they are separate and distinct matters.

4. These are my reasons for decision in respect of the application to stay the contravention proceedings.  My reasons in respect of the application to stay the summary charges are published separately.

The contravention proceedings

1. The DPP's application by which the contravention proceedings were commenced does not give any particulars of Mr Allen's alleged contravention of the supervision order.  It is my understanding that the matters the subject of the summary charges also form, in part, the basis for the DPP's allegation that Mr Allen contravened his supervision order.  There may be other allegations of contravention which are not relevant in this application.

2. The particulars of the summary charges are set out in my reasons for decision in respect of Mr Allen's application to stay the summary charges.  Those reasons should be read in conjunction with these reasons.

Summary of Mr Allen's application

1. Mr Allen submits that as the DPP is relying, in part, on his alleged conduct which allegedly proves that he committed the summary charges to also prove that he has contravened his supervision order, the factual overlap between the summary charges and the police investigation into the death of the deceased, is duplicated between the contravention proceedings and the police's investigation into the death of the deceased.

2. Further, Mr Allen notes that the DSO Act, s 40B(4)(d) provides that if contravention proceedings are in progress at the same time as proceedings on a charge of an offence under the DSO Act, s 40A(1), any findings of fact in the summary proceedings may be used in the contravention proceedings.

3. Consequently, Mr Allen submits that if the contravention proceedings are permitted to proceed whilst the police are investigating the death of the deceased and he is at the very least a person of interest in respect to that death, the contravention proceedings will be relevantly unfair.  He submits that this is because his ability to properly defend the contravention proceedings will be compromised. 

4. In summary, Mr Allen says that his ability to elect to give evidence in the contravention proceedings will be significantly fettered by the real risk that any evidence he may give may impinge upon his right not to incriminate himself with respect to a potential charge arising out of the death of the deceased.  He submits that he will not be able to make a valid forensic assessment of any prejudice he may suffer in any future criminal prosecution arising out of the death of the deceased as he is not aware of the information, intelligence or evidence which the police have obtained during their investigation into the death of the deceased.  He says that, in addition to the obvious risks of self‑incrimination, there is a risk that police could use any evidence given by him in an indirect or derivative manner in circumstances where he could never be aware of the importance of, or impact of any testimony he may elect to give in the eyes of the police.

Background information

1. The background to the application to stay the contravention proceedings is set out in my reasons for decision relating to Mr Allen's application to stay the summary charges.

Statutory provisions relating to the contravention proceedings

1. The DSO Act, s 23 states:

   (1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may ‑ 

   (a)make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or

   (b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.

   (2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

   As I have already stated, the DSO Act, s 40B(4)(d) says that any findings of fact by the Supreme Court in the proceedings on the summary charges may be used in the contravention proceedings. The DSO Act, s 40B(4)(e) provides that if a person is convicted of a charge laid under the DSO Act, s 40A, the sentencing of the offender may be adjourned until after contravention proceedings are concluded.

2. Finally, I note the contravention proceedings, as with all proceedings under the DSO Act, are to be taken to be criminal proceedings for all purposes; the DSO Act, s 40.

Legal principles applying to the stay of criminal proceedings

1. I have set out the legal principles applying to this application in my reasons for decision in respect of the application to stay the summary charges.

2. It is a moot point as to whether I could exercise the power to stay a criminal prosecution contained in the Criminal Procedure Act 2004 (WA) in order to stay the contravention proceeding and, if so, whether the appropriate power to exercise would be that in s 76 (applying to summary prosecutions) or s 90 (applying to matters committed to the Supreme Court). Thankfully, I am not required to determine those issues. This is because, for the reasons expressed in my reasons for decision relating to the application to stay the summary charges, I am satisfied that those statutory provisions do not oust this court's inherent jurisdiction to stay criminal proceedings which are an abuse of process.

Discussion

1. For the reasons expressed in my decision relating to the application to stay the summary charges, I am not satisfied that the continuation of the hearing of the contravention proceedings against a background of the continued police investigation into the death of the deceased, will result in an unfair trial in the contravention proceedings.

2. As in the case of the prosecution of the summary charges, in the contravention proceedings, Mr Allen is not required to give evidence or to adduce evidence in his defence.  Neither is he required to plead to the allegation in the contravention proceedings that he contravened the supervision order.  Although, I acknowledge that it is the usual practice to ascertain whether a respondent to contravention proceedings admits or disputes that he/she has contravened the relevant supervision order.

3. As I am not persuaded that an acknowledgement of contravention of the supervision order or, even, an acknowledgement of the particulars of the summary charges, would incriminate, directly or indirectly, Mr Allen in any offence relating to the death of the deceased, I see no reason why the continuation of the contravention proceedings, even where it may be on the cards that Mr Allen will be charged with an offence arising out of the death of the deceased, will be unfair.

4. Further, as in the case of the prosecution of the summary charges, I am satisfied that there are steps which the presiding judge can take to ensure that an unfair trial of the contravention proceedings does not eventuate.

5. Given the DSO Act, s 40B(4)(d), it will in any event be more likely that the summary charges will be heard, at least to the point of conviction or acquittal, before the contravention proceedings are heard. If that is the case, there should be greater clarity at the time the contravention proceedings are heard as to whether Mr Allen is to be charged with any offence arising out of the death of the deceased.

Conclusion

1. For the above reasons, which incorporate the reasons for decision which I have given relating to the application to stay the summary charges, this application should be dismissed.