Director of Public Prosecutions v Abuk Kuol (Ruling No. 1)

[2019] VCC 1143

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02301

The Director of Public Prosecutions	Plaintiff
v
Abuk Kuol	Defendant

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JUDGE:	Lewitan
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2019
DATE OF RULING:	30 July 2019
CASE MAY BE CITED AS:	DPP v Abuk Kuol (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1143

REASONS FOR RULING
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Subject:  Application for a stay

Cases Cited:Walton v Gardiner (1993) 177 CLR 378; Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; R v Glennon (1992)173 CLR 592.

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APPEARANCES:	Counsel	Solicitors
For the Prosecutor	Mr G Slim	John Cain Solicitor for Public Prosecutions
For the Defendant	Ms S Wallace	Stary Norton Halphen

HER HONOUR:

1 Abuk Kuol has been charged with causing serious injury intentionally or recklessly causing serious injury to Baldo Wani (Wani) and causing injury intentionally or recklessly to Malek Malual (Malual). The trial was listed for hearing on 22 July 2019. On that day the defence made an application to cross-examine the victim Wani pursuant to s198B of the Criminal Procedure Act 2009. The purpose and issue to which the proposed question related was the ability of the witness to recall the events which took place 16 months ago and his capacity now to give evidence.

2       Wani was cross-examined by the defence on 23 July 2019 (the second day).  The jury was empanelled on that day.  Wani was called to give evidence.  Wani said that he does not remember anything that happened about the alleged incident on 19 March 2018 before he woke up in hospital. 

3       The next witness called on 23 July 2019 was Bhaskaran Vellu (aka Babu).  Vellu was examined on 23 and 24 July 2019 and cross-examined on 24 July 2019 (the third day).   

4        Dr Grace Silvia Vittor gave evidence by way of video link on the afternoon of 24 July 2019.

5       Malual was the next witness called to give evidence on 24 July 2019 (the third day).  When cross-examined, Malual was asked:

So in the past, there has been some arguments between you and Abuk though?...Yes.

Sometimes you’ve fought with each other physically?...Yes.

6       Oliver Davis Hyde (ambulance officer) was also called to give evidence on 24 July 2019 and was cross-examined on that day.

7       On 25 July 2019 Dr Mohammed Rehmanjan was called to give evidence by way of video link and was cross-examined on that day.  Dr Rachel Marr was also called to give evidence on that day (fourth day).

8       The next body of evidence called on 25 July 2019 consisted of the prosecutor reading statements by agreement from the following witnesses.[1]

[1] Transcript p 232, transcript pp 233 – 238.

Luke Deng

Marko Bouch Agie

Macher Chol

Matiub Bol Matiub

Erini Neophytou

Andrew Neophytou

9       Constable Michael Gatt also gave evidence on 25 July 2019.

10      On 26 July 2019 (the fifth day) the prosecution called constable Mohamed Saleh, Sergeant Joshua Peter McCabe, Detective Senior Constable Rebecca Grayland and Detective Senior Constable Timothy Ian LeMaitre and constable Alice Campbell.  The parties agreed that the proceedings be adjourned to Monday morning 29 July 2019 to allow for the completion of the edits to the record of interview.

11      On 5 July 2019 a request was forwarded to the Crown requiring disclosure of notes and priors of crown witnesses.  The  Crown response was that disclosure had been given.

12      The defence submits that the following items were disclosed after the commencement of the trial on 22 July 2019:

(a)      On the morning of the trial it was disclosed that Malual had been arrested for a prior incidence of family violence alleged against the accused at the same address;

(b)      On 25 July 2019, prior to the expert witness Marr giving evidence at 11.45am, a bundle of notes was handed to the defence.  Contained within this bundle was a statement by a social worker which contained an inconsistent statement about the incident.  The social work report records that Mr Vellu stated that “the woman threatened Mr Wani with a knife while he was sleeping and then attacked him with a meat cleaver.”

(c)       On 25 July 2019 Le Maitre produced his notes at 12.15 which had previously not been produced.  These notes contained a passage of contemporaneous notes of a conversation with Vellu at the scene of the alleged offence which covered material not within Vellu’s statement nor Le Maitre’s statement.

(d)      On 28 July 2019 (Sunday) an email was sent by the Crown at 8.00am containing the prior criminal history of two of the males (Deng and Bouch) who were within the house at the relevant time and  who made statements read to the jury by the prosecutor by agreement.

13      On 29 July 2019 the defence made an application for a stay of the  proceedings (defence application for a stay).  The defence submitted that the conduct of the trial has now been significantly compromised and the accused’s right to a fair trial is in question.

14      The defence referred to Mallard v The Queen[2], and Grey v The Queen[3]  and submitted that disclosure is an essential element of a fair trial.  

[2] (2005) 224 CLR 125.

[3] [2001] HCA 65.

15      In Walton v Gardiner [4] the High Court stated that among the factors to be considered when determining the question of whether criminal proceedings should be permanently stayed are:

the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

[4] (1993) 177 CLR 378, 395 – 396.

16      More recently Kiefel CJ, Bell and Nettle JJ stated in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions[5] :

Certainly, as this Court has stated repeatedly[6], a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified.  There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial.  

[5] [2018] HCA 53, [106].

[6] Jago v District Court (NSW) (1989) 168 CLR 23 at 34 per Mason CJ, 75 per Gaudron J; R v Glennon (1992)173 CLR 592 at 605 per Mason CJ and Toohey J; Truong v The Queen (2004) 223 CLR 122 at 172 [136] per Kirby J;Dupas v The Queen (2010) 241 CLR 237 at 251 [37]; Moti v The Queen (2011) 245 CLR 456 at 478 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. See also Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 at 556-557 per Kirby P, 564-565 per McHugh JA.

17      In R V Glennon[7]  Mason CJ and Toohey J said:

[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.”[8]

[7] (1992) 173 CLR 592.

[8]Barton v R (1980) 147 CLR 75, 111 per Wilson J.

18      Counsel for the defence, Ms Wallace, submitted that it would be necessary to cross-examine Vellu about the inconsistent statements made to the social worker and LeMaitre and the movements of Deng and Bouch.

19      The Crown concedes that it did not disclose the prior history of Deng and Bouch until the weekend.  The Crown submitted that if necessary, Vellu, Malual, Deng and Bouch can be recalled.  The alternative remedy is to elicit the prior history of Deng and Bouch through the informant.

20      I do not accept the defence submission that the proceedings should be stayed because of the failure by the Crown to disclose the matters referred to in the defence application for stay.  The charges alleged against the accused are serious charges.  

21      In my opinion the failure to disclose the matters alleged in the defendant’s application for stay can be cured if Vellu, Malual, Deng and Bouch are recalled.  I do not accept the defence submission that the jury would be confused if Vellu and/or Malual are recalled and cross-examined about the statements made by Vellu to the social worker, the statement by Vellu to Le Maitre and the movements of Deng and Bouch on 19 March 2018.

22      Ms Wallace does not seek to recall Vellu, Malual, Deng or Bouch despite being given the opportunity to recall those witnesses.  Ms Wallace submitted that if the Court is of the view that other remedies can be implemented to cure the Crown’s failure to disclose, it would be sufficient to allow the material to be led through the informant.  The relevant portion of the notes relating to the conversation that Vellu had with the social worker and Le Maitre can be lead through the informant who has not yet given evidence.  The defence will be able to make submissions about any inconsistencies between Vellu’s evidence and his account to the social worker and/or Le Maitre.  The prior criminal history of Deng and Bouch can also be led through the informant.

23       I refuse the defence’s application to stay the proceedings.   In my view the Crown’s failure to disclose the matters referred to in the application for a stay can be remedied by recalling Vellu, Malual, Deng and Bouch.  If the defence does not seek the opportunity to recall those witnesses, the relevant evidence can be led through the informant.

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