Brown v Carlini
[2018] ACTMC 26
•31 October 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brown v Carlini |
Citation: | [2018] ACTMC 26 |
Hearing Dates: | 13 July 2018 |
DecisionDate: | 31 October 2018 |
Before: | Special Magistrate Hunter OAM |
Decision: | See paragraphs [50]-[54] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – permanent stay of the proceedings – single continuous course of conduct – late disclosure of prosecution evidence – abuse of process - offences against the person – common assault – assault occasioning actual bodily harm - family violence – application dismissed – stay not granted |
Legislation Cited: Cases Cited: | Crimes Act 1900 (ACT) ss 24, 26 Evidence Act 2011 (ACT) s 138 Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14 Canham v The Magistrates Court (ACT) and Anor [2014] ACTSC 14 DPP v Shirvanian (1998) 44 NSWLR 129 Dupas v the Queen (2010) 241 CLR (‘Dupas’) at 237 Jago v District Court (NSW) (1989) 168 CLR 23 LM V Children’s Court of the ACT and the Director of Public Prosecutions for the ACT [2014] ACTSC 26 Maxwell v the Queen (1996) 184 CLR 501 Rogers v the Queen [1994] 181 CLR 251 R v Chen [1997] QCA 355 R v Glennon (1992) 173 CLR 592 R v Will [2017] ACTSC 356 Walsh v Tattersall (1996) 188 CLR 77 Williams v Spautz (1992) 174 CLR 509 Woods v Porter [2018] ACTSC 161 |
Parties: | Constable Courtney Brown (Informant) Sophia Carlini (Defendant) |
Representation: | Counsel Ms V Conliffe (Informant) Mr T Crispin and Ms C Carnell (Defendant) |
| Solicitors ACT Director of Public Prosecutions ( Informant) Capital Lawyers ( Defendant) | |
File Numbers: | CC 17/4849; CC17/4843; CC17/1685; CC17/1186-1187 |
SPECIAL MAGISTRATE HUNTER
REASONS FOR JUDGMENT
Proceedings
This is an application for a stay of proceedings in relation to five charges: CC18/91, CC18/6393, CC18/6394 and CC18/6395 (four charges of Common Assault, contrary to section 26 of the Crimes Act 1900 (ACT)) and CC18/6396 (one charge of Assault Occasioning Actual Bodily Harm, contrary to section 24 of the Crimes Act 1900 (ACT)). This is an application for a stay of those charges. The application is supported by the affidavit of Christopher Byrne dated 10 July 2018.
The grounds for the stay:
a.The charges all relate to a single alleged continuous course of conduct;
b.The disclosure of evidence by the prosecution has been late and in adequate;
c.the charges constitute an abuse of process.
The circumstances of the offending behaviour was set out in material exhibited before me as follows:
a.Statement of Courtney Brown, exhibited as P1;
b.Statement of Stephen Salleo, exhibited as P2;
c.Statement of Sean Dobson, exhibited as P3;
d.Photographs of Sophia Carlini, exhibited as P4;
e.Further photographs of Sophia Carlini, exhibited as P5;
f.Screen captures from Sophia Carlini’s phone, exhibited as P6;
g.Screen captures from Mile Kadinsky’s phone, exhibited as P7;
h.Mile Kadinsky’s recorded interview with police, exhibited as P8;
i.Family violence evidence in chief interview CD of Sophia Carlini, exhibited as P9.
I also heard evidence from Constable Courtney Brown. Constable Brown is the informant in the matter and laid the charges against Ms Carlini. Constable Brown said that she originally conducted the evidence in chief interview with Ms Carlini and then later spoke with Mr Kadinsky on the same day. Constable Brown said that she did so in order to afford Mr Kadinsky the opportunity to give his version of events. Constable Brown at no time arrested Mr Kadinsky. Constable Brown said that he participated in the recorded interview and at that interview she played the evidence in chief interview given by Miss Carlini.
Constable Brown said that Mr Kadinsky gave a version which was very similar but somewhat different to that of Ms Carlini. Constable Brown said she observed an injury to his lip and said that she was told there was injury to his penis and testicles. She only observed the injury to his lip. The other injuries were shown to her by Mr Kadinsky as he had taken a photograph of them. Ultimately Constable Brown charged both of Mr Kadinsky and Ms Carlini with common assault.
Constable Brown said that she contacted Ms Carlini and offered to her an opportunity for a recorded interview and she told Ms Carlini that she was under investigation in relation to an assault. However, Constable Brown was not sure that, when she offered the interview to Ms Carlini, she had told her that she was to be charged with assault.
In cross-examination Constable Brown agreed that she had originally attended upon Ms Carlini and observed purple and red bruises around her left eye. Constable Brown also said Ms Carlini was crying.
Constable Brown said that after she had conducted the recorded interview with Mr Kadinsky, she then obtained a family violence protection order after hours on that day with the applicant being Ms Carlini. Constable Brown said she did so in order to prevent any further incident occurring between the parties. Constable Brown denied that she was concerned for Ms Carlini’s safety and that is why an order was sought for her and not Mr Kadinsky. She denied that it was because the concern was Kadinsky not Carlini.
Constable Brown said that Mr Kadinsky refused a forensic procedure which would have required a medical officer to take any photographs of his injuries to the genitalia amd he also refused photographs of his lip. Constable Brown said she could not be certain about any features of his face sustaining injury as she did not know him. Her evidence was that it was a slight swelling that she observed to the lip.
10. The circumstances of the applicant in this application being charged is somewhat unusual in that Ms Carlini reported physical abuse by her partner to police. As a result of that report she participated in an evidence in chief recorded interview.
11. Sometime thereafter, the prosecution decided to charge her with the offences I have listed above and declined to proceed in relation to the alleged offences relating to her partner Mr Kadinsky. This is despite there being physical evidence of an assault upon Ms Carlini which is consistent with her injuries, and scant evidence of any injuries sustained by Mr Kadinsky.
12. Police then decided that there was blame on both sides and decided to charge Ms Carlini with the offences listed above. Police, after the interview with Mr Kadinsky, took out a family violence order against Mr Kadinsky.
13. The applicant argued that the procedural unfairness which has now been afforded to the applicant is the fundamental defect which cannot be cured and therefore falls into the exception of cases where a stay should be ordered.
14. In essence, the applicant in these proceedings (the defendant in the criminal proceedings) seeks an order staying the prosecution of these charges on the grounds I have referred to above.
Submissions
Applicant Submissions
15. I also received written submissions by both parties after the oral argument before me.
16. In oral argument, Counsel argued that fundamentally, because Ms Carlini rang the police as the complainant and was treated as such, and was then some short time later treated as the defendant in the matter, significantly, after she had given the evidence in chief interview, that action was oppressive and would fundamentally doom the proceedings to fail because she was not afforded procedural fairness once she became a defendant.
17. Further procedural unfairness arises out of Mr Kadinsky participating in a recorded interview where he was shown the interview in chief recording made by Ms Carlini and asked questions about it. The applicant argued that, if that were to be used in proceedings against Ms Carlini, that would produce substantial unfairness which, in their view, dooms the proceedings as a whole to fail because it cannot be cured by the court in any way.
18. Further, the interview conducted with Mr Kadinsky was being proposed to be led as his evidence in chief interview in proceedings against Ms Carlini.
19. In the first written submissions I received, the applicant’s submission conceded that for the purposes of the application it would be accepted that the court should take the prosecution case at its highest. It was also acknowledged that the court should approach the application as if each of the critical facts in the prosecution case statement were capable of being made out.
20. Further, it was submitted that a stay for an abuse of process is an exceptional outcome.
21. The applicant referred to the jurisdictional elements and relevant principles. It is clear from authority and the legislation that this court has jurisdiction to grant a stay.
22. Further the applicant conceded that a permanent stay in criminal proceedings is a relatively rare event, referring to Woods v Porter [2018] ACTSC 161 at 28 citing Maxwell v the Queen (1996) 184 CLR 501.
23. The applicant set out the relevant passages of evidence now before me. The applicant argued that there was some impropriety in laying further charges. Although not articulated, I assume that they meant that, in their view, over-charging is oppressive rather than mitigating against any element of duplicity. The applicant argued that it was one course of conduct.
24. Counsel for the applicant asserted in paragraph 2 of page 8 of their submissions that there was a cost-benefit analysis in relation to the laying of those charges or that the charges were cobbled together piecemeal from Mr Kadinsky’s recorded interview and the screen text conversations between himself and Ms Carlini. There is little evidence before me to make a finding of that nature and I reject the submission.
25. Further, counsel for the applicant indicated that there is no disclosed criminal offence committed by Ms Carlini upon a fair reading of the entirety of the Crown brief. Therefore the charges cannot be made out because the defence of self-defence is clearly available. I cannot accept that submission because it is not true to say that the matter could not proceed, only that there may be a defence to the allegations. I reject that submission.
26. I received further submissions from defence counsel. Having read those submissions, it appears they argue the gravamen of the first ground is that the charges are oppressive because they relate to a continuing course of conduct which on first blush and without the benefit of any authority appears to have some merit. I will in due course deal with that aspect of the grounds for the application.
27. In relation to the second ground, that is, the inadequacy and lateness of the disclosure of evidence, it cannot be an adequate ground for a stay because there are orders which can be made in that regard which would not have the effect of either dooming the prosecution case to fail or indeed be an abuse of process. I reject that ground.
28. However, the third ground, being an abuse of process because of the way the evidence is proposed to be used, particularly, the evidence in chief interview being used as evidence by the prosecution against the applicant, may be a different matter. The applicant argued that will, of course, include the recorded interview made by Mr Kadinsky, which the prosecution seek to lead from him as his evidence in chief in the proceedings against Ms Carlini.
29. The applicant referred to Rogers v the Queen [1994] 181 CLR 251 at 285. The applicant also referred to Viscount Sankey in Woolmington v DPP [1935] AC 462 and the famous passage in the House of Lords in relation to the golden thread which deals with the right to silence and the presumption of innocence.
30. The applicant asserted that because Ms Carlini was never provided with her part 1C rights to silence when the family violence evidence in chief recording was made, that would be inadmissible against her in proceedings. With respect, that factor has merit, however that goes against the application for a stay because if the evidence in chief interview is inadmissible, then the court can cure the asserted abuse of process by refusing to admit it into evidence.
31. In relation to paragraph 25 of the applicant’s submissions, I do not accept the submission made in relation to Mr Kadinsky’s recorded interview as being inadmissible because he had not been given a warning that he may be subjected to cross-examination. That is because, as I understand it, his recording will not be admissible because he will give oral evidence in the matter. In my view, his interview would be equated to a statement made to police which is not necessarily admissible unless by consent or with leave of the Court in certain circumstances.
32. The applicant further submitted that it would be impossible to quarantine Ms Carlini’s family violence evidence in chief interview because of its impact on the rest of the investigation, citing R v Will [2017] ACTSC 356 at 202. I am not entirely sure I understand that submission. If Ms Carlini’s evidence in chief interview is inadmissible either because she was not afforded her part 1C rights or it prejudicial effect far outweighs its probative value pursuant to section 138 of the Evidence Act 2011 (ACT), then it will be out for all purposes.
Respondent Submissions
33. I now turn to the respondents submissions.
34. The respondent (Prosecutor) properly set out the jurisdiction of the Magistrates Court to order a permanent stay citing Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14 at 27-30 and LM V Children’s Court of the ACT and the Director of Public Prosecutions for the ACT [2014] ACTSC 26 at 22-26.
35. The prosecutor also properly set out the principles applicable to a permanent stay of proceedings, citing the seminal case of Williams v Spautz (1992) 174 CLR 509 at 525. The prosecutor submitted that it is well-established that a stay of proceedings should only be granted in an exceptional case to defend an unfair trial and only where there is no less drastic remedy available. The respondent cited R v Glennon (1992) 173 CLR 592 (‘Glennon’), Dupas v the Queen (2010) 241 CLR (‘Dupas’) at 237 and Jago v District Court (NSW) (1989) 168 CLR 23 (‘Jago’).
36. In Glennon, the court held at 605:
‘A permanent stay will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’.
37. In Dupas, the court noted that a permanent stay was a ‘rare occurrence’, ‘a drastic remedy to be applied in exceptional cases’, “extreme” , “singular “, and to “recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of the trial”.
38. In Jago, Gaudron J, at 75, said:
“the exercise of the power to reject evidence, either alone or in combination with a trial judges other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if an remedy, would render the proceeding so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.”
39. The prosecutor submitted that, on a proper review of the principles set out in the seminal cases, the applicant’s application is misconceived and the application itself lacks substance and principle. The prosecutor submitted that any complaint the defendant (applicant) has made could be remedied by other means. That factor is fatal to the application and the prosecutor seeks that the application be dismissed.
40. The prosecutor set out the grounds for the stay application and, correctly in my view, submitted that even if the evidence in chief interview conducted with Ms Carlini and the recorded interview conducted with Mr Kadinsky were inadmissible it would not doom the proceedings to fail. It would not do so because Mr Kadinsky can give oral evidence.
41. The prosecutor sets out the relevant authorities and referred to Canham v The Magistrates Court (ACT) and Anor [2014] ACTSC 14 which confirms that inadmissibility of evidence or a defence, is not a basis for a stay citing her honour Justice Penfold who said in relation to such matters:
“none of these aspects of the prosecution case seems to take it out of the ordinary run of prosecution cases. An offence committed by a complainant might on occasion provide some form of answer to the charge of the accused person (e.g. by raising the question of self-defence), but would rarely be a bar to prosecution of that accused person… Factors of this kind may cause difficulties for prosecutors, and in particular may lead to acquittals – but there is no basis for saying that any prosecution results in an acquittal was therefore an abuse of process”.
42. The prosecutor, referring to Jago and others, submitted that there are effective remedies available in such circumstances such as a Prasad direction.
43. In relation to charging the applicant (defendant) with further charges being an abuse of process, the Prosecutor referred to her honour Penfold J in Canham v The Magistrates Court (ACT) and Anor [2014] ACTSC 14, who said that there is little scope to review prosecutorial discretion in instituting and maintaining a prosecution, and referred to the decision in DPP v Shirvanian (1998) 44 NSWLR 129, where Mason P said at 189:
“It is no part of the judicial function to decline jurisdiction (whether by granting a stay or otherwise) on the ground that the court disapproves of the charge that have been laid.”
44. I do not need to deal with the submission in relation to the assertion that additional charges were laid to induce Ms Carlini to plead guilty because I have found it has no merit. There is absolutely no evidence to support that assertion and I reject it.
45. The prosecutor submitted that the contention was baseless and demonstrated a misunderstanding of the principles of duplicity. The prosecutor stated it is clear that separate offences should be the subject of separate charges, and referred to Walsh v Tattersall (1996) 188 CLR 77 where the court referred to Archbold Pleadings [23] and the proscription against duplicity of charges. However I note it was the applicant’s contention that rather than duplicitous the charging was oppressive.
46. The prosecutor further referred to cases such as R v Chen [1997] QCA 355 which the prosecution clearly rely upon in charging the separate assaults. The prosecutor set out the paragraphs in that case, in particular where the court said, at paragraph 6:
“in the present case, though the various alleged assaults occurred within a short space of time and were part of a connected series of events they were of different kinds, the evidence with respect to them differed both in and quantity and quality and there were differences open to some which arguably were not open to others. That they were of different kinds appears from the descriptions above; three were of spitting, one was a push, one was striking with handcuffs and one involved grabbing Constable Smith’s genitals. And further at paragraph 7 courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide in cases such as this and the question will always be one of fact and degree for decision in each case. Unlike those cases where events are so close in time and place that they can be viewed as one composite activity, the latent duplicity here, once exposed, left the appellant without knowledge of the particular act alleged as the foundation of the charge resulting thereby in a substantial miscarriage.
47. The prosecutor submitted that in the applicant’s case the events are close in time are the same incident but are separated in time and different in nature and located throughout the apartment.
48. The prosecutor set out several decisions, some which I have already referred to in relation to the prosecutorial discretion, and submitted that which is well established by authority. Those authorities reflect the substantial limitations on a court needing to exercise its inherent power for protection of its own process which rarely if ever arises. The Prosecutor referred to R v Brown (1989) 17 NSWLR 472 cited in Maxwell, where the court said:
“a mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of power… The court’s power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority was seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.”
49. Respectfully I agree.
Decision
50. I have considered the grounds upon which the stay has been made. I have set them out again for ease of reference:
a.The charges all relate to a single alleged continuous course of conduct;
b.The disclosure of evidence by the prosecution has been late and in adequate;
c.The charges constitute an abuse of process.
51. The first ground must fail as the authorities are clear that the prosecutorial discretion is rarely, if ever, reviewed by a Court,[1] It is clear that the Director of Public Prosecutions is entitled to charge the applicant (defendant) providing of course there is evidence to support those charges.
[1] Shirvanian
52. The second ground must also fail as this matter has not yet been heard and any failure by the prosecution to produce material may result in directions in relation to that material. There is a remedy which can be applied. Therefore this is not a proper basis to stay proceedings.
53. The third ground must also fail as the discretion for the prosecutor to charge an offender is wide and virtually unfettered. There is no abuse of process which cannot be remedied by proper trial directions and proper consideration of the admissibility of material.
54. The application is dismissed.
I certify that the preceding fifty four [54] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.
Associate: Cecilia Pascoe
Date: 31 October 2018
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