Director of Public Prosecutions v Trajkoski
[2012] WADC 81
•8 JUNE 2012
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL AND PART HEARD CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : WAGER DCJ | ||
| HEARD |
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| DELIVERED |
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FILE NO/S |
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| BETWEEN |
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AND
SOTIR TRAJKOSKI
Respondent
Catchwords:
Abuse of process - Application for stay of proceedings of s 32A Misuse of Drugs Act 1981hearing - Destruction of original exhibits - No unacceptable injustice or unfairness
Legislation:
Misuse of Drugs Act 1981, s 32A
Result:
Application for permanent stay of proceedings dismissed
[2012] WADC 81
Representation:
Counsel:
| Applicant | : | Mr J McTaggart |
| Respondent | : | Mr C Chenu |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Respondent | : | Bennett & Co |
Case(s) referred to in judgment(s):
Allstate Plumbing Pty Ltd v Crouch Developments Pty Ltd [No 2] [2011]
WADC 60
Director of Public Prosecutions (WA) v Pindan [2012] WASC 13
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Edwards (2009) 255 ALR 399
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119
[2012] WADC 81
WAGER DCJ
WAGER DCJ: Mr Trajkoski applies by notice of motion dated 14 March 2012 for an order that there be a permanent stay of the Director of Public Prosecutions' (DPP) application that he be declared a drug trafficker pursuant to s 32A(1)(b)(ii) of the Misuse of Drugs Act 1981 (MDA).
2 A drug trafficker declaration was originally sought by the DPP
on 29 August 2007 following Mr Trajkoski's conviction by jury verdict on 3 August 2007 of one count on indictment that between 1 July 2002 and 27 December 2002 at Mimegarra he cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another. The State's particulars were that 254 plants were cultivated, however in order for the s 11 MDA deeming provision in relation to an intention to sell or supply to apply the State was only required to prove (pursuant to sch VI MDA) that the cultivation involved 10 or more plants. Consistent with the jury's verdict this was proven.
Section 32A(1)(b)(ii) states:
(1) If a person is convicted of — …
(b) a serious drug offence in respect of — …
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong, the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
Schedule VIII provided that the number of prohibited cannabis plants for purposes of drug trafficking is 250.
5 On 29 August 2007 I made a declaration based on the evidence led at
the trial of the indictment that Mr Trajkoski was a drug trafficker pursuant
to s 32A(1)(b)(ii) MDA.6 Mr Trajkoski successfully appealed against the making of the
declaration (Trajkoski v Director of Public Prosecutions (WA)
[2012] WADC 81
WAGER DCJ
[2010] WASCA 119). It was held by the Court of Appeal that I had erred in deciding that I was bound to accept the prosecution evidence led at the trial of the indictment in relation to the total quantity of plants cultivated and that I had not properly determined whether there were 250 or more plants. The application was remitted to me for re-hearing according to law and was re-listed before me on 25 November 2011.
7 On 16 December 2011 I made orders in relation to the nature of the
jurisdiction that was exercised by the court when hearing and determining an application under s 32A MDA. I ordered that the civil standard applied in relation to onus and standard of proof and that Mr Trajkoski carried an evidentiary onus. The DPP could rely on the evidence called at the trial of the indictment but could also call further evidence if it chose. I also ordered that Mr Trajkoski may within 21 days of 16 December 2011 seek disclosure from the DPP (ts 13 - 28).
8 Disclosure was sought by Mr Trajkoski's solicitors on his behalf in
relation to a number of documents relevant to the s 32A MDA hearing including the original trial exhibits. Disclosure was provided on 13 February 2012 and inspection occurred at the DPP's office on 14 February 2012, however the original trial exhibits were not produced for inspection (affidavit of Naomi Claire Bass sworn 4 March 2012). The original exhibits sought to be disclosed and inspected included:
1.
Video footage taken of the crop site on 26 December 2002 by police officers of the Police Air Support Unit (MFI 2, ts 536, exhibit 2);
2.
Aerial photograph taken by Police Air Support Unit on 27 December 2002 (exhibit 1, ts 533);
3.
A flight log taken by Senior Constable Wenman of the Police Air Support Unit (exhibit 3, ts 541);
4.
Photographs of the crop site (exhibits 4A – 4H, ts 547, exhibits 5A – 5J, ts 548 and exhibit 6, ts 551); and
5.
Video taken of the crop site and camp site on 27 December 2002 showing uprooting, packing, sealing and numbering of hessian bags and removal of cannabis from the crop site (McKenner P, examination-in-chief, ts 570, exhibit 13).
[2012] WADC 81
WAGER DCJ
9 Following correspondence between Mr Trajkoski's solicitors and the
DPP in relation to the original trial exhibits the DPP disclosed on 7 March 2012 that the original trial exhibits had been destroyed. The DPP sent Mr Trajkoski's solicitors a copy of an exhibit disposal advice as proof of destruction (Bass affidavit, p 11). The advice document is headed 'Exhibit Disposal Advice', the named accused is 'Trajkoski, Sotir' and the offence is listed as 'drugs'. It is dated 21 January 2008 and it is marked 'Sentenced'. The description of exhibit states 'Refer to attached evidence property receipt'. The attached evidence property receipt has the exhibit list from the 2007 criminal trial attached to it. The document is signed by a DPP officer and dated 19 February 2009 and by a Police Service Officer Martins 86771 dated 25 February 2009. The exhibits property receipt is dated 28 February 2009 (Bass affidavit, page 12).
10 Following the provision of the exhibits disposal advice the DPP
emailed Mr Trajkoski's solicitors a coloured copy of an aerial image of a crop site. Copies of an aerial video of a crop site and a video of a campsite/bagging of cannabis were served on Mr Trajkoski's solicitors on 27 April 2012.
11 Counsel for Mr Trajkoski acknowledges that an image was emailed
and that two videos were served on Mr Trajkoski's solicitors but states that there is no evidence that the emailed image and the videos served are true copies of the destroyed original exhibits 1, 2 and 13.
12 Counsel for Mr Trajkoski submits that given the delay in the hearing
of the declaration the solicitor and counsel from the 2007 trial of the indictment cannot be located. From the transcript it is apparent that they had viewed the original exhibits and formed an opinion that the videos and photographic material depicted less than 250 plants. Given that the exhibits had now been destroyed the credibility of the DPP's witnesses in relation to the number of plants counted and removed cannot be challenged by cross-examination because the trial exhibit videos and photographs cannot be put to the witnesses in cross-examination. Counsel submits that Mr Trajkoski would be unable to have a fair hearing in relation to the s 32A MDA declaration and that the prejudice to him is so great that the circumstances are extreme. A permanent stay should be ordered. However counsel for the DPP submits that this is not a case for a permanent stay.
The law
13 Although originally challenged by the DPP, it is now accepted that
this court has the power to grant a permanent stay: Jago v District Court
[2012] WADC 81
WAGER DCJ
of New South Wales (1989) 168 CLR 23, 74; Allstate Plumbing Pty Ltd v
Crouch Developments Pty Ltd [No 2] [2011] WADC 60 [16] – [18].14 The test is whether the destruction of the original exhibits and
the delay would constitute an unacceptable injustice or unfairness: R v Edwards (2009) 255 ALR 399. Abuse of process is a power that is only exercised in extreme cases. In Director of Public Prosecutions (WA) v Pindan [2012] WASC 13 Jenkins J dealt with an application for a stay of proceedings in relation to an application for a continuing detention order in respect of a respondent who was cognitively impaired, the impairment preventing him from personally participating in the proceedings. Jenkins J said [127]:
To grant a permanent stay of proceedings because they are an abuse of process is a power which is to be only exercised in extreme cases. Although the category of cases in which the power would be exercised has been said not to be closed, there are some categories where it can be said that the power should be exercised. In my view, this case does not fall into any one of those identified categories. For example, for the reasons which I have given above, the proceedings are not foredoomed to fail, this court is not 'a clearly inappropriate forum' for the hearing of the DPP's application, the application does not give rise to an estoppel, the proceedings do not seek to litigate a new case which has already been disposed of by earlier proceedings, and the proceedings have not been brought for an improper purpose.
15 There is no general principle that unreasonable delay in bringing a
matter to trial of itself means that there can be no trial or necessarily vitiates a conviction on a trial that has followed such a delay. In Jago v District Court of NSW, a case that involved an 11-year delay from the alleged fraudulent conversions of cheques until the time of trial in a criminal matter it was held that the trial judge had correctly refused the application to permanently stay the criminal proceedings because the ground of undue delay alone did not support the making of an order that the matter be permanently stayed.
16 The destruction of independent records is not of itself a reason to
permanently stay proceedings. In R v Edwards the respondent had applied for a stay of proceedings on the basis of a loss of primary technological evidence and also because of delay which, it was said, strengthened the prejudice flowing from the lost evidence.
17 The lost evidence comprised the electronic record of the activation of
the PAL made by a monitor at the airport and the information recorded on the aircraft flight data record (FDR). The accused asserted that the
[2012] WADC 81
WAGER DCJ
runway lighting had been on when the plane taxied and took off. Three witnesses made statements in the course of the investigation in which they said that the runway lighting was not illuminated when they observed the aircraft moving along the taxi-way and when it took off. Two other witness statements were consistent with the runway not being illuminated at the time of take-off. The plurality said [28]:
An essential element that the Crown must prove in support of the principle and alternative counts that the runway lighting was not on at the time the aircraft moved along the runway and took off. The lost evidence goes to this issue as to the testimony of witnesses whose accuracy and reliability may be affected by delay.
And [31]:
The fact that the tribunal of fact is called upon to determine issue of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
And [33]:
It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible to exhaustive definitions. It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions in justice of a character that would make the continuation of proceedings on indictment an abuse of process of the court. This is not such a case. The content of the monitor list and the recording made by the FDR is unknown. In these circumstances it is not correct to characterise their loss as occasioning prejudice to the respondent. The lost evidence serves neither to underline nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis of the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidently at the time of the take-off it would fail to establish an element of the principle and the alternative offence.
I therefore need to determine whether this is an extreme case that if proceeded with would constitute an unacceptable injustice or unfairness.
Mr Trajkoski's application
21 Counsel for Mr Trajkoski submits that unlike the FDR in the case of
R v Edwards the destroyed exhibits had been identified by counsel for Mr Trajkoski at the 2007 trial on indictment as being evidence favourable to Mr Trajkoski in relation to his challenge of the number of plants cultivated. During the course of the trial on indictment Mr Punch who was counsel for Mr Trajkoski said:
[2012] WADC 81
WAGER DCJ
I think it is appropriate I make this point: that in every one of the baggings as it were we'd see only one or none go into the bag. Now I have made notes as I looked at the video tape for the second time and it seems almost obvious to me that in many of the bags there is only one plant. You only ever see one go in at maximum and I have made notes of those of which I am practically certain … it seems to me that the point should be made because ultimately if the worst happens and he is convicted we go to an attack on his assets which comes in at 254. So I think I should make the point now just for that reason it may not be an issue in the trial but at least it is on the record.
Mr Punch further submitted at the trial of the indictment:
I should note also that both my learned instructing solicitor and I have done a head count as it were from the aerial photograph and being generous because you cannot delineate each and every one of them I get no more than 170 (ts 567).
23 Mr Punch also provided submissions for consideration in relation to
the s 32A MDA declaration prior to 29 August 2007. Mr Punch
submitted:Having left it to the jury on the basis that the law is that a person who cultivates or assists such if 10 or more plants are cultivated, then clearly the jury, so instructed, only have to be SBRD that he did ANY act to assist in such. Your Honour will recall that during the trial, in the absence of the jury and witnesses, and after the video of the crop site was played, I raised the point that a great many of the bags into which the plants were placed at the crop site, appeared to contain only one (1) plant.
If in doubt as to the number of plants, which your Honour can consider for yourself. Then the s 32A application should fail. On this point I urge that your Honour should again look at the video of the 'counting' process. Into none of the evidence bags can more than one plant be seen to be put in. It is perfectly clear that the person operating the video, in not one case, videos more than one plant into any bag.
I submit that if you look carefully at the process it will very frequently be seen that the volume of plant/s into bags is almost certainly only one. It can be observed at the bottom corners of a large number of the hessian bags are not pushed out at all, indicating that there is either one plant in them, but certainly less than the four plants suggested by the counters. Another indication is the light weight of many of the bags, evident when the officer bagging them picks them up after being sealed … if your Honour looks at the photographs of the plants whilst they are still in situ, the height and bulk of the plants whilst they are still in the ground, they are robust, healthy and bulky in both circumference and height (probably with some exceptions).
[2012] WADC 81
WAGER DCJ
Further support for this submission may be seen by viewing the aerial photograph which was tendered. Both my instructing solicitor and I made in independent counts of the plants and being generous in the sense that many of the plants touched the one along side it, making it difficult to delineate some of them, I got a count of (I think from memory) about 170.
(Affidavit of Sotir Trajkoski sworn 2 April 2012, page 178).
| 24 | In | cross-examination | by | Mr Punch | on | 29 August |
2007 Detective Sergeant Van Der Schoor did not adopt the propositions put to him by Mr Punch that the aerial photographs showed no more than 170 plants. At ts 815:
Going on a different aspect during the trial there was an aerial photograph that is taken from an aeroplane of the crop itself. Do you recall that? - Yes.
And looking, have you counted, physically counted by looking at the photograph, how many plants there were? - No, I physically counted the plants at the crop site.
Yes. I suggest if you look at the aerial photograph, being as generous as you can because there is - in some cases the plants join onto each other do you find? Do you find that? In some cases when you look at the aerial photograph there is no delineation between the plants. Do you understand what I am putting? - My answer to that is - - -
(At that point counsel for the State objected to the relevance of the question, to the line of questioning and no further questions were permitted with respect to the aerial photograph).
Counsel for Mr Trajkoski submits that if I accept that it was the view of Mr Punch who was counsel at the trial of the indictment that exhibits 1, 2 and 13 may have impacted on an assessment of credibility in respect of the police officer's counting of plants under cultivation then it would be unfair to proceed to accept the police officer's evidence without cross-examination based on the exhibits in order to test credibility.
26 Counsel for Mr Trajkoski submits that this is not a case where the
contents of the destroyed material is unknown. He submits that as a result of Mr Punch's comments at trial and at the hearing on 29 August 2007 it is very likely that the destroyed original exhibit material would assist Mr Trajkoski at the hearing of the s 32A MDA declaration.
27 Given that the prejudice has been established counsel submits that it
would constitute an unacceptable injustice or unfairness for the hearing of
the declaration to proceed.
[2012] WADC 81
WAGER DCJ
The DPP's position
28 Counsel for the DPP submits that there is an evidential onus on
Mr Trajkoski in relation to the s 32A MDA declaration. Forensically there is no reason why the emailed image and the videos served could not be put to the police officers who conducted the removal and counting of the cannabis plants during the course of cross-examination at the s 32A MDA hearing. Counsel for the DPP submits that when the image and videos are put to the witnesses they should be acknowledged as depicting the relevant crop site on or about 27 December 2002 and therefore the material could be used to challenge the police officers' evidence-in-chief in relation to the calculation and counting of the number of plants cultivated. The DPP would not oppose the emailed image and videos being used in this way.
29 Counsel for the DPP submits that the delay in proceeding with the
remitted hearing is due to delays on Mr Trajkoski's part because the appeal in respect of the original order was out of time and the DPP has indicated since the matter was first re-listed on 25 November 2011 that it was ready to proceed. The destruction of the original exhibits was properly carried out after the time period for appeal had expired. Notification of Mr Trajkoski's intention to appeal against the original order was not received by the DPP until after the exhibits had been destroyed.
Reasons and conclusion
30 The power to grant a permanent stay is only exercised in extreme
cases. I need to be satisfied that the delay and destruction would
constitute an unacceptable injustice or unfairness to Mr Trajkoski.31 I do not consider that delay in this matter is a ground for a permanent
stay. Although it took over a year for the DPP to re-list the application after the matter had been determined by the Court of Appeal, the appeal was out of time and Mr Trajkoski has sought a number of adjournments since the matter was relisted before me in November 2011. Delay does not support the granting of a permanent stay.
32 Similarly, the original trial exhibits were not destroyed
inappropriately but after the expiration of the appeal period. Mr Trajkoski sought and was granted an extension of time in which to appeal. The fact that the exhibits had been destroyed prior to the appeal is not a ground to grant a permanent stay.
[2012] WADC 81
WAGER DCJ
33 I accept that Mr Trajkoski's solicitors have been unable to contact
Mr Trajkoski's former solicitors and counsel from 2007. Even if the application was brought earlier there is no guarantee that either could have been located nor would their personal views of exhibit material have been relevant to the s 32A MDA hearing. It is regrettable that the original exhibits have been destroyed.
34 Although there is no evidence that the image recently emailed to
Mr Trajkoski's solicitors by the DPP or the copies of videos served on Mr Trajkoski's solicitors are true copies of the original 2007 trial exhibits, it is highly likely that they are either copies of the originals or that they show images of the crop at Mimegarra. There is no reason why counsel for Mr Trajkoski could not put the image and the contents of the videos to the DPP's witnesses in cross-examination during the course of the s 32A MDA hearing. In the event that the witness adopts the material as being very similar to or identical to the crop site in 2002 as shown in the original exhibits, then counsel for Mr Trajkoski will have the opportunity to test the credibility of the witnesses. If that was to occur then Mr Trajkoski would not face an unacceptable injustice or unfairness. I do not grant a permanent stay of the s 32A MDA hearing and the application is dismissed.
35 The DPP has not provided any evidence by way of disclosure or by
filing affidavit material with the court confirming that the materials emailed and served are true copies of the original exhibits 1, 2 and 13. If, during the course of cross-examination by counsel for Mr Trajkoski, the DPP's witness does not accept that the disclosed images are consistent with the crop site located at Mimegarra taken on or about 27 December 2002, then I will reconsider whether it is appropriate to stay these proceedings.
36 Reconsideration at that time would be appropriate because this
decision is made on the understanding that the material recently provided to Mr Trajkoski's solicitors depicts the relevant crop site and is relevant to the proceedings. If that is not the case then proceeding further may constitute an unacceptable injustice or unfairness to Mr Trajkoski.
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