Director of Public Prosecutions v Tuteru (Ruling No 3)
[2023] VSC 93
•3 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0024
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SIMIONA TUTERU | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2023 |
DATE OF RULING: | 3 March 2023 |
CASE MAY BE CITED AS: | DPP v Tuteru (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 93 |
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CRIMINAL LAW – Application for a permanent stay of indictment – Manslaughter charges discontinued – Prosecutorial discretion - Charges of failing to comply with duty under the Heavy Vehicle National Law (Victoria) – Whether the conduct of the prosecution has amounted to an abuse of process – The issues of delay and oppression – Sections 26C and 26F of the Heavy Vehicle National Law (Victoria) – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Fisher, with Ms C. Richardson | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes, with Ms A. Beech | Holman Webb Lawyers |
HIS HONOUR:
Introduction
This is an application by the accused man, Simiona Tuteru, for an order that the indictment filed in this Court on 10 February 2023 be permanently stayed. The indictment presently alleges one charge of failing to comply with a duty under s 26C of the Heavy Vehicle National Law (Victoria) (‘HVNL’).
The charge is brought under s 26F of the HVNL. That section provides:
(1) A person commits an offence if—
(a) the person has a duty under section 26C; and
(b)the person, without a reasonable excuse, engages in conduct related to the duty that exposes an individual to a risk of death or serious injury or illness; and
(c) the person is reckless as to the risk.
Maximum penalty—
(a)if an individual commits the offence—$300,000 or 5 years imprisonment or both; or
(b) if a corporation commits the offence—$300,0000.
(2)The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.
So being an offence which carries a maximum penalty of five years’ imprisonment, it is one that can be heard summarily pursuant to s 28 of the Criminal Procedure Act 2009 (Vic). However, for reasons that become obvious in this ruling, the matter is before this Court as it has been for some considerable time in one form or another.
The collision
On Wednesday 22 April 2020 the accused, Simiona Tuteru, being a relevant supervisor at Connect Logistics Pty Ltd, is alleged to have allowed one of the company’s drivers, Mohinder Singh, to drive a Fatigue Regulated Heavy Vehicle even though he, Tuteru, knew or ought reasonably to have known that Singh was suffering from fatigue and/or was not in a fit and proper state to drive. That is the broad allegation, but the detail of that charge and the knowledge said to be held by the accused requires further attention which I will come to later in these reasons.
Because of Mohinder Singh’s condition at the wheel of his vehicle on that day, his truck collided with two parked police cars and an intercepted Porsche vehicle on the Eastern Freeway at Kew East at about 5.36pm. That collision resulted in the deaths of the four police officers at the scene who had been involved with the driver of the Porsche.
The charges laid
After the investigation commenced, a number of charges were laid against Singh and others.
The charges laid against Mohinder Singh
Mohinder Singh has since been dealt with for the criminal offences arising from his driving. On 11 March 2021, he pleaded guilty in this Court before Coghlan JA to causing the death of Lynette Taylor, Glen Humphris, Kevin King, and Joshua Prestney by the culpable driving of a motor vehicle, in that he drove a motor vehicle negligently and whilst under the influence of a drug of dependence to such an extent as to be incapable of having proper control of the motor vehicle. He also pleaded guilty to trafficking cannabis, methylamphetamine, and 1,4-Butanediol and to the possession of Diazepam.[1] I note that whatever drugs Singh was involved with, it is not alleged that the accused Tuteru was aware of them or knew of any effect they might have had on him.
[1]DPP v Singh [2021] VSC 182.
On those charges brought against Singh, he was sentenced by Coghlan JA to a total effective sentence of 22 years with a minimum of 18 years and 6 months before being eligible for release on parole. On 25 August 2022, that sentence was reduced by the Court of Appeal to 18 years and 6 months with a minimum of 14 years and 6 months.
The charges laid against Connect Logistics Pty Ltd
Charges under the HVNL have also been laid against the company Connect Logistics Pty Ltd and 3 individual employees in New South Wales.
The charges laid against Simiona Tuteru
The accused Tuteru, in his capacity as Singh’s supervisor, was also charged with offences. On 1 August 2020, he was arrested by Victoria Police and interviewed. At the commencement of the interview all he was told was:[2]
We intend to interview you in relation to the deaths of four police officers on the Eastern Freeway on the 22nd of April this year and we're going to question you about your involvement in that and the circumstances leading up to that.
Their suspicion that he was guilty of manslaughter was not mentioned. At the completion of the interview he was told that he would be charged with four charges of manslaughter and he was. He was also charged with offences under the HVNL. The charges of manslaughter did not specify the basis on which the charge was laid. In the record of interview at question 1283, the accused was simply informed that he would be charged with four charges of manslaughter. No explanation was formally given for the basis for that.
[2]Record of interview of Simiona Tuteru, dated 1 August 2020, Depositions 2183, [1].
I note that the maximum penalty for culpable driving to which Singh pleaded guilty to is 20 years’ imprisonment. The maximum penalty for manslaughter as originally charged against the accused Tuteru is 25 years’ imprisonment.
On being charged in August 2020, Tuteru applied for bail and despite opposition from the police, an order for bail was made with various conditions.
On 28 September 2020, the hand-up brief was served. It was a substantial set of documents. The charges included the four charges of manslaughter and 72 charges laid under the HVNL.
Procedural history
Committal
A committal hearing was held which commenced on 17 May 2021. The hearing was interrupted because it was necessary to call Mohinder Singh as a prosecution witness, he having gained some sentencing benefit from his willingness to give that evidence. On 15 July 2021, the accused was ordered to stand trial after the Magistrate rejected a submission on behalf of the accused that that should not occur.
Because there were charges of manslaughter involved, the accused was committed to stand trial in this Court.
The Supreme Court
In this Court, an indictment was filed which contained the four charges of manslaughter and, as an alternative to each individual charge of manslaughter a particular charge under s 26F of the HVNL crafted to relate to each individual deceased person.
On 20 December 2021, as the first issue that arose for consideration in this Court, I heard argument concerned with whether the four manslaughter charges should be heard separately from the charges under the HVNL. On 23 December 2021, I ruled that they should.[3]
[3]DPP v Tuteru (Ruling No 1) [2021] VSC 867R.
On 7 February 2022, the matter returned to this Court and during that directions hearing, I announced the Court’s intention was that the trial of the manslaughter charges would occur on 3 October 2022, and made orders accordingly.
On 1 March 2022, eight months after the accused had been committed for trial, the matter returned to me to also fix a date for dealing with the pre-trial matters. Amongst the submissions on behalf of the accused, was an assertion that the prosecution had not particularised the nature of the duty owed by the accused, to whom that duty was owed and the acts and omissions that constitute the breach of a duty of care by criminal negligence. The then prosecutor, Ms Harper, immediately agreed that the particulars should be provided.[4] Those particulars never eventuated.
[4]Transcript of proceedings, Director of Public Prosecutions v Simiona Tuteru (Supreme Court of Victoria, S ECR 2021 0188, Lasry J, 1 March 2022), 2.
On 21 September 2021, the Director filed a Notice of Incriminating Conduct. The Notice asserted that on 26 April 2020, some four days after the collision, the accused conducted internet searches which included the following:
(i) ‘What is sentence for culpable manslaughter?’
(ii) ‘What is worse vehicular homicide or manslaughter?’
(iii)The sentencing Council of Victoria website and sentencing snapshots for the offence of manslaughter.
In the prosecution’s written submissions of 29 September 2022, the following appeared:
The search terms used demonstrate a particular concern with the punishment for manslaughter. This can be contrasted, for example, with a search for ‘what constitutes culpable manslaughter’. If there was a search of that nature, it would be open to infer that the accused was enquiring as to whether his conduct amounted to criminal behaviour. That is not the case here. Instead, the search terms allow for the safe inference that he was aware his conduct amounted to manslaughter and was concerned with understanding what the potential punishment may be.
Reasonable minds may differ on what is capable of constituting incriminating conduct. This submission however suggested that:
(i)The searches did not relate to Tuteru being concerned as to the fate that awaited Mohinder Singh but to himself;
(ii)Although not a lawyer, he knew four days after the collision that he, a person not at the scene or involved in the collision, had not just done the wrong thing in some way but had committed manslaughter.
I had no hesitation rejecting the evidence and the use to which the prosecution wanted to put it. However, in my opinion, that Notice of Incriminating Conduct provides some insight into the approach being taken to the prosecution of this man.
Manslaughter charges
That is where the matter stood. At a preliminary hearing, seven months later, on 19 October 2022, I raised a number of issues about the case and the manner in which it had proceeded to that point. I expressed the view that manslaughter by criminal negligence is a criminal offence of some complexity and identified a number of concerns I had about how the case would proceed. I outlined the elements of the offence and noted that the elements of the offence and an analysis of the existence of a duty of care and the breach of the duty of care do not appear anywhere in the prosecution opening.[5] Indeed, the prosecution opening did not refer to ‘negligence’ at all.
[5]Transcript of proceedings, Director of Public Prosecutions v Simiona Tuteru (Supreme Court of Victoria, S ECR 2021 0188, Lasry J, 19 October 2022), 10-11.
It is beyond doubt that the accused and the Court were entitled to have the Crown explain the case and disclose how the elements of the offence would be proved. So much is provided for in the Criminal Procedure Act2009 (Vic), and s 182(2) provides:
(2) The summary of the prosecution opening must outline—
(a)the manner in which the prosecution will put the case against the accused; and
(b)the acts, facts, matters and circumstances being relied on to support a finding of guilt.
I, then, made it clear that the prosecution should rewrite the prosecution opening, analysing the evidence by reference to the elements of the offence and when that exercise had been undertaken, the defence should respond.[6]
[6]Ibid.
In response to my ex tempore ruling, the prosecutor said that she would amend the summary of prosecution opening to comply with what might be described as the usual requirements.[7]
[7]Ibid.
Six days later, a Notice of Discontinuance pursuant to s 177 of the Criminal Procedure Act 2009 (Vic), concerning the four charges of manslaughter was filed, signed by the Director.
At a subsequent hearing, I was informed that no explanation would be provided to the Court and that the Director did not feel that one was called for.[8] The indifference to, and lack of respect for, the Court that attitude expresses is significant. In my opinion, there was never a viable case of manslaughter against the accused and that realisation obviously dawned on the prosecution when confronted with the need to particularise it. There can be no other reason why this course was taken.
[8]Transcript of proceedings, Director of Public Prosecutions v Simiona Tuteru (Supreme Court of Victoria, S ECR 2021 0188, Lasry J, 28 October 2022), 2.
The discontinuance of those four manslaughter charges meant that the charges remaining to be dealt with were the four charges of failing to comply with a duty under the HVNL (Charges 2, 4, 6 & 8). However, the Director determined that a new indictment should be filed and proceeded with. The indictment was filed on 11 November 2022.
That indictment contained two charges. Those charges alleged conduct by the accused between 16 September 2019 and 20 April 2020. The particulars of both of those charges included the following:
Between 16 September 2019 and 22 April 2020, SIMIONA TUTERU, as an operator or scheduler of the Company engaged in conduct including asking, directing, requiring, scheduling or permitting drivers to undertake work driving heavy vehicles on roads when they were driving in excess of their permitted work hours and with insufficient rest breaks and with falsified records, which exposed individuals including, but not limited to, the drivers of the heavy vehicles, members of the public, LYNETTE TAYLOR, KEVIN KING, GLEN HUMPHRIS, JOSHUA PRESTNEY and MOHINDER SINGH, to a risk of death, serious injury or illness.
On the day before this occurred, a disclosure was provided by the Director including interviews conducted pursuant to s 570A of the HVNL including with witnesses who were on the indictment containing the manslaughter charges. This material is presumably significant and comes two years and two months after charges were laid against the accused.
Two years on from the original charging of the accused, the further indictment was quite a different document from the earlier indictments. No explanation was provided as to why this was done. The original HVNL charges on the first indictment alleged that each offence was committed on 22 April 2020, being the date of the collision. As I have noted, the new indictment expressed the charge as having been committed between 16 September 2019 and 22 April 2020. As Mr Hallowes pointed out, the factual basis for the new indictment appears to have been more than 300 alleged breaches of the HVNL.
On 25 November 2022, a defence response was filed containing several criticisms of the new indictment. In summary, the complaints were:
(1)Charge 1 contains allegations of more than one contravention in circumstances where it is not permitted;
(2)Each charge is duplicitous;
(3)The charges are unclear as continuing offences;
(4)The particulars do not adequately disclose the offences;
(5)The two charges risk double punishment; and
(6)The charges are improperly joined.
A directions hearing was held on 5 December 2022 where the new trial prosecutor, Mr Fisher who presently appears, was briefed. He had no involvement in the drafting of the indictment that was filed on 11 November 2022, and the hearing was mainly concerned to establish a date on which the preliminary issues could be argued.
On 5 December 2022, the Court made orders that the accused file and serve any and all applications and submissions relating to pre-trial issues by 27 January 2023 and the fixing of the trial for 13 February 2023.
I am told by Mr Hallowes SC that three days later on 8 December 2022, the solicitors for the accused asked the Director to explain how allegations of the offending on different days could be contained in the one charge. They also enquired as to whether the new indictment was a direct indictment. No response was ever provided to those queries.
On 20 December 2022, an expert report was provided from Professor Dawson. The report had been requested by the Heavy Vehicle Regulator in November 2021 for the purpose of prosecuting Connect Logistics Pty Ltd and three individuals in New South Wales. A further report from Professor Ann Williamson was provided on 22 December 2022.
The report of Professor Dawson was prepared, not for this case, but for the prosecution in New South Wales of Connect Logistics Pty Ltd , Corey Matthews, Cris Large and Shane Chalmers. It was filed with the Parramatta Local Court on 30 March 2022.
In his report concerning what he was told about this incident, he offered opinions briefly including:
(a)The Master Code under the HVNL is an industry accepted code of practice to make sure everyone is accountable for the safety of the driver, vehicle and the public;
(b)A driver who self-assesses as unfit to drive represents an elevated risk; and
(c)Given the minimal demands to achieve technical compliance, the failure to do so is consistent with a failure to exercise responsibilities under the law.
The name of the accused in this case is not mentioned in the report.
A second report was provided by Professor Dawson and filed in this Court under a Notice of Additional Evidence on 6 February 2023, seven days before the application for a stay of the indictment was to be heard. This report does mention the accused as the report was commissioned for this case. The report effectively offers the expert view that the accused is guilty of the HVNL offences with which he is charged such as, for example:[9]
In my opinion as a fatigue consultant and SME, Tuteru clearly and totally failed to discharge his duties and obligations under HVNL regs, the WHS act and the Chain of responsibility (CoR) legislation.
[9]Report of Professor William Andrew Dawson of Appleton Institute dated 6 February 2023, 10.
Going back to 23 December 2022, counsel for the accused were informed that the charges in the indictment would be refined and simplified, and that the experts who had been disclosed would be relevant to some issues before a jury, although the issues were not, in terms, identified.
While it was intended by the Court that the trial of this matter would commence on 13 February 2023, it became clear that was not going to occur.
A further indictment
On 19 January 2023, the accused filed submissions in support of a permanent stay of the indictment. Subsequently, on 10 February 2023, yet another indictment was filed. It contains a single charge in the following terms:
The Director of Public Prosecutions charges that SIMIONA TUTERU at Lyndhurst in Victoria on the 22nd day of April 2020, being a person who had a safety duty under Section 26C of the Heavy Vehicle National Law (Victoria), without reasonable excuse, engaged in conduct related to that safety duty that exposed individuals, including but not limited to Lynette Taylor, Kevin King, Glen Humphris, Joshua Prestney and Mohinder Singh to a risk of death or serious injury and the accused was reckless as to that risk.
Particulars
(1)Connect Logistics Pty Ltd (ACN 150 963 741) (“Connect Logistics”) is a refrigerated road transport company that operates refrigerated trucks, including the vehicle combination XV85IE and trailer 84IQWK (“the vehicle”).
(2) Simiona Tuteru was employed by Connect Logistics as a supervisor.
(3)The vehicle is a fatigue regulated heavy vehicle pursuant to section 7(1) of the Heavy Vehicle National Law (Victoria).
(4)Simiona Tuteru was a party in the chain of responsibility for the vehicle in that he was a scheduler of the vehicle pursuant to s 5 of the Heavy Vehicle National Law (Victoria) in that he:
(a) scheduled the transport of goods by the vehicle; or
(b) scheduled the work times and rest times of the vehicle’s driver.
(5)Simiona Tuteru, as a party in the chain of responsibility, had a safety duty, pursuant to Section 26C of the Heavy Vehicle National Law (Victoria), to ensure, so far as is reasonably practicable, the safety of his transport activities relating to the vehicle.
(6)There was a risk that if the vehicle was operated on a public road by a driver who was unfit for duty and/or affected by fatigue, that driver may be incapable of proper control of the vehicle, exposing individuals on the public road to a risk of death or serious injury.
(7)On 22 April 2020, Simiona Tuteru, without reasonable excuse, asked, directed or required Mohinder Singh to drive the vehicle on a public road in circumstances where Simiona Tuteru knew that Mohinder Singh was unfit for duty and/or affected by fatigue.
(8)It was reasonably practicable for Simiona Tuteru to ensure the safety of his transport activities relating to the vehicle by directing Mohinder Singh to cease work.
Fatigue only?
It is to be noted that in the first indictment, the HVNL charges alleged that the accused knew that ‘… Mohinder Singh was fatigued and unfit to drive in breach of…’ Singh’s duties. The use of the conjunction, in my opinion, effectively imports the word ‘therefore’ though it is not actually used.
In the latest indictment, the allegation is different, as appears in the passage underlined above in particular 7. The accused is now alleged to have known that Singh was ‘unfit for duty and/or affected by fatigue.’ In the latest prosecution opening for the current indictment, the following appears at paragraph 171:
Therefore, it is the prosecution case that the accused failed to comply with his duty in that he asked, directed, or required Singh to drive a fatigue related heavy vehicle knowing that Singh was fatigued and/or unfit to drive.
So, that leaves open an alternative arguable basis for liability referring to something other than fatigue; perhaps the psychological condition of Mr Singh. That is in direct contradiction to the following passage from the prosecutor’s submissions concerning severance of the indictment on 20 December 2021:[10]
I can indicate for the court and for my friends, Your Honour, that the fatigue or the [..] ought to have known, paragraphs 95 and 96 are limited to fatigue, they're not based on drug use or mental illness. They're limited to fatigue and that is in both instances, both the manslaughter by negligence and the Heavy Vehicle National Law charges.
[10]Transcript of proceedings, Director of Public Prosecutions v Simiona Tuteru (Supreme Court of Victoria, S ECR 2021 0188, Lasry J, 20 December 2021), 20.
During the argument on 13 February 2023, Mr Fisher appeared to take up this new aspect of the allegation and that the case no longer just relies on the knowledge by the accused of Singh’s fatigue:[11]
MR FISHER: So over and above the matters that relate to fatigue, his presentation, the words that were used in the conversations. Your Honour might recall that on the day there was conversations with a witness by the name of Harrison, I think it's Stephen Harrison.
HIS HONOUR: Yes.
MR FISHER: Who then liaises with the accused man. In addition to that there's the interaction between the accused and Mr Singh and that takes the form of face to face, words are exchanged, there are messages, text messages, there's a phone call that's made. There's an episode that involves praying or an interaction that involves some - a putting on of hands and some other matters that occur between the accused and Mr Singh, the driver. So, they're matters that relate not just to fatigue but the mental state of Mr Singh and his fitness to drive.
HIS HONOUR: What, they’re matters that demonstrate that he – because those things occurred, he was unfit for duty?
MR FISHER: Yes.
[11]Transcript of proceedings, Director of Public Prosecutions v Simiona Tuteru (Supreme Court of Victoria, S ECR 2021 0188, Lasry J, 13 February 2023), 48.
In addition, the new prosecution opening outlines alleged conduct of the accused commencing on 2 November 2019 until 25 March 2020 at paragraphs 24 to 88 and asserts that this will be relied upon as tendency evidence. The notice required for that course has now been filed.
Next steps
If this application for a stay of the indictment had not been made, or if I was to refuse the application, the matter remains not ready for trial despite two years and six months having passed since his initial arrest and over two years and nine months since the incident itself. None of this is due in any way to the actions of the accused.
There will need to be argument concerning several pre-trial issues including tendency evidence. The required notice for that evidence was filed on 23 February 2023. As well, s 198B of the Criminal Procedure Act2009 (Vic) hearings in relation to a number of witnesses including the two experts to whom I have referred.
My own estimate, bearing in mind also the workload of the Court, is that it may be more than three months before this matter could commence.
The application for a stay
Primarily based on the highly unsatisfactory manner in which this matter has developed, Mr Hallowes SC, who appears with Ms Beech for the accused now applies for this indictment to be stayed.
A summary of the basis for the application is set out in his written submissions in the following terms:
This prosecution is a constantly evolving, moveable feast. It is fundamental to the rights of an accused person to be tried with clarity in a timely fashion. The accused has now withstood three years of relentless deviations and variations to the case he is expected to answer. It is nearly three years from the date of the alleged offending and the accused has still not been informed as to the nature and substance of the criminal charges he faces. The continuation of this prosecution brings the administration of justice into disrepute, or put another way, it cannot be said manner in which prosecution has been conducted is reputable; it appears to still be in the investigatory stage. The delay, the imprecision and the uncertainty of this case prosecution is oppressive to the accused and to allow it to proceed would be to allow the Court’s processes to be abused. It will be submitted that this prosecution has been reprehensibly inefficient, at best.
Charter of Human Rights and Responsibilities
In addition to legal precedent, Mr Hallowes SC and Ms Beech have placed reliance on the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’). That reliance is intended, as I understand it, to add support for the common law remedy of a stay of the indictment.
Notice has been given to both the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission pursuant s 35 of the Charter. Neither the Commission nor the Attorney have sought to be heard.
Particular reliance was placed on s 25(2)(c) of the Charter which concerns a right of an accused person to be informed promptly and in detail of the nature and reason for the charge and to be tried without unreasonable delay.
In his submissions, Mr Hallowes argued that the question of whether there has been a breach of the accused’s rights under the Charter is resolved with reference to the approach adopted by Tate JA in Baker v DPP & Ors.[12] He submitted that the Director’s inaction in this case engages the accused’s human rights to a fair trial, in which he is informed promptly and in detail of the nature and reason for the charge and tried without unreasonable delay.
[12][2017] VSCA 58.
The Director’s submissions
Mr Fisher, on behalf of the director, opposed the application on the basis that none of the history of this matter required the imposition of a stay and that there were other remedies open to me short of staying the indictment. He argued that this application lacks many of the ‘usual features that support a stay application.’ Mr Fisher submitted that the Crown case was now clear and simple and will be a more efficient proceeding. Any delay, he argued, was not inordinate or unreasonable. His submissions particularly relied on the assertion that the prospective trial could be a fair one.
Mr Fisher urges, inter alia, that ‘applications of this type should not be employed to deal with or punish a party that has struggled to comply with case management procedures.’
He also submitted that the submissions on behalf of the accused based on the Charter are ‘without merit’. He suggested the argument that there had been a ‘failure by the DPP to properly prepare her case in a timely fashion’ given the timeline and developments previously referred to was difficult to comprehend. I did not have that difficulty.
Legal principle
Ordering that a criminal indictment be stayed is a step to be taken rarely and in extraordinary or exceptional circumstances in the way that phrase is commonly understood. As it is often said, such a step represents a refusal by the Court to exercise jurisdiction. As I understand it, the categories of cases where such a remedy is appropriate are not closed and this application is not governed by any rigid categories, which is not to say that threshold is low – it clearly is not. A stay is a rare and exceptional order to make.
Counsel for the accused has relied primarily on the aspects of oppression, delay and a misuse of the Court process.
As is well known, there is substantial authority on this topic. A most useful, and I think apposite, statement of principle was given by the Court of Appeal in 2016 in Clark v The Queen.[13] Their Honours (Weinberg, Ashley and Coghlan JJA), describing the principles, said at [13]:
[13][2016] VSCA 96.
13 These principles are well settled. The power to order a permanent stay derives from the inherent (or, in some cases, implied) power of a court, including the County Court, to protect the integrity of its processes where the administration of justice so requires. It is a remedy that is invoked in order to prevent an abuse of process.
14 The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in criminal proceedings. These are, first, that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.
15 The continuation of proceedings that are unjustifiably and unfairly oppressive will, of itself, amount to an abuse of process. Moreover, as is well understood, a prosecution can be stayed if it has been instituted and maintained for an improper purpose.
16 In a criminal context, the term ‘abuse of process’ encompasses not only circumstances within the narrowest conception of that term (such as bringing a prosecution for an improper purpose or maintaining one that is clearly foredoomed to fail), but also pursuing a criminal proceeding in a manner that is unfair and gives rise to oppression.
17 It is only in an extreme case that a permanent stay of proceedings will be ordered. Necessarily, such cases will be rare. It follows that an applicant for a permanent stay must discharge a heavy onus if a court is to be persuaded to grant that remedy.
18 In determining whether a permanent stay should be granted, a court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial. A stay of that kind is tantamount to an immunity from prosecution and is not therefore lightly to be granted.
19 There is more to a court’s decision as to whether a trial should proceed than fairness to the accused. An applicant for a stay must establish that the continuation of the proceedings would, not merely could, involve unacceptable injustice or unfairness. It must be shown that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to itself constitute an abuse of process. (My emphasis)
Their Honours emphasised the substantial burden on an applicant for such a remedy.
Dealing with pre-trial procedures and the way in which they may affect the fairness of a trial, Deane J said in Jago:[14]
Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.
[14]Jago v District Court of New South Wales (1989) 168 CLR 23 at [601].
That is the category that, in my opinion, the prosecution’s case against this accused is in.
In R v Rogers,[15] Mason CJ of the High Court of Australia said at [256]:
These statements indicate that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. This led the majority in Walton v. Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations. Those considerations, which reflect the two aspects of abuse of process outlined above, include: "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.”
[15](1994) 181 CLR 351.
In Moti v The Queen,[16] the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) confirmed two categories of abuse of process at [57]:
The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, "the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike". Second, "unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice". Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements.
[16][2011] HCA 50.
Conclusion
This is not simply a case where the Director has ‘struggled to comply with case management procedures’. In my opinion, the Court’s processes have been, at a minimum, used oppressively and unfairly by the Director of Public Prosecutions at various stages of this case. Continuing four charges of manslaughter against the accused for more than a year in circumstances where it must have been known there was no viable case to be made against the accused is, I consider, a glaring and oppressive misuse of the Court process. There is, among other things, a requirement that before an indictment is filed, some assessment is made of the evidence to satisfy the decision makers that there is a realistic prospect of conviction.[17]
[17]In the policy document published by the Director of Public Prosecutions on 24 January 2022, Chapter 1 concerns the discretion to prosecute and sets out the detailed considerations to be taken into account in making that decision. It is difficult to see that those considerations were applied in this case.
The charges of manslaughter also had the effect of requiring the matter to be dealt with in this Court rather than a summary hearing for the alleged offences against the HVNL. In my opinion, the history of that aspect of the case demonstrates the kind of impropriety that was discussed by the High Court in Williams v Spautz,[18] though the facts of that case were significantly different from this one. While the Court in that case was concerned with the institution or maintenance of criminal proceedings for an improper purpose, the misuse of the Court process in this case also raises the need for the Court to ensure that it protects its ability to function as a Court of law and avoid erosion of public confidence by lending the Court’s processes oppression and injustice.
[18](1992) 174 CLR 509.
In relation to the HVNL charges, the DPP has fundamentally altered the case on several occasions including by substantially expanding the factual area the charges were based on. The DPP has also fundamentally altered the case concerning the HVNL charges in the third indictment, introducing for the first time, the concept of tendency evidence and, further, by asserting a reliance on knowledge by the accused, not just of Singh’s fatigue, but his psychological condition.
In relation to disclosure, there was a failure at the earliest opportunity to disclose the interviews conducted under s 570A of the HVNL.
If the trial was to proceed, there are a series of pre-trial issues to be dealt with include the conduct of a s 198B voir dire and a debate about tendency to name but two issues.
As the chronology reveals, there has been a delay and Mr Hallowes relies on that, but it should be said that the delay in this case is not on its own a significant reason for ordering a stay. There is, for example, no obvious forensic disadvantage from that delay and in the present circumstances the length of it is not unusual.
As Mr Hallowes stated in the accused’s written submissions:
Nearly three years after the alleged conduct, the accused has still not been enlightened as to the way the case against him is put. Three iterations of the indictment against him have not clarified the Crown case and now the accused is told to expect a fourth. Nearly three years into this prosecution, disclosure continues to roll in, without explanation. And most recently, the accused is told to stand by and wait for an expert report to explain presumably to explain to him where his criminality lies. This woeful state of affairs is exceptional and warrants this Court’s intervention.
This history, and the present state of affairs, in my opinion brings this case within what was being contemplated by Deane J in Jago and has created a situation where it is necessary to protect the integrity of the Court’s processes by staying this indictment.
It is effectively argued by Mr Fisher that the situation is now that a ‘fair’ trial could proceed on the basis of the newest indictment. In the DPP’s written submissions, it was further argued that:
Whilst not conceded, if there have been deficiencies or shortcomings on behalf of the Crown, they have now been addressed. If, beyond that or because of that, there are implications that flow to the applicant in defending the case against him (which is also not conceded) they are matters that can be remedied by the Court, short of granting a stay.
Mr Fisher did not identify the potential remedies. It might have been open to argue that prior unfairness I have summarised could be remedied by way of orders for costs and remedies of that kind. I might even have reconsidered my earlier indication that the proceeding would not be transferred to a lower Court. I assume it is open for the charge to be remitted to the Magistrates’ Court to be heard and determined summarily under s 168(1) of the Criminal Procedure Act 2009 (Vic).
However, none of that would properly address the history of this case and that even the new indictment now includes reliance on a new alternative factual basis for Singh’s unfitness for duty. Even on that basis, in my opinion, it would be unfair for a trial to continue on that expanded charge, given all that has come before, and that the filing of a fifth indictment, even if it were confined to fatigue at this stage, still amounts to an abuse of process by bringing the administration of justice into disrepute.
Dealing with this application is a weighing process. I am acutely conscious of the public interest in significant criminal matters being disposed of. This, of course, may be less significant than it was given the failure to proceed with charges of manslaughter. Nonetheless, however, I assess that such public interest in the disposition of the matter would not be sufficient to outweigh the misuse of the Court’s process and the oppression to the accused.
It would now be oppressive to proceed with a Supreme Court trial on the fourth indictment given that if it were not for the DPP’s handling of the proceeding, and the resultant abuses of the Court’s process, the accused would have likely had charges heard summarily in the Magistrates’ Court two years ago. This is not merely a situation of wasted costs being incurred by the accused. Stress, anxiety and uncertainty is a common burden for those charged with serious criminal offences. However, in this case, it is made substantially worse by the manner in which the manslaughter charges were dealt with, the changes in the HVNL charges I have summarised, and a failure to properly prepare and disclose the case. It is not only the effect on the accused that is significant. It is whether what occurred is conducive to undermining public confidence in the integrity and fairness of the process.
At some point, the Court must draw a line in order to protect its processes from the prospect of ongoing abuse. The manner in which the DPP has proceeded means that the unfairness which would be brought upon the accused now outweighs the substantial public interest of the community in having those who are charged with criminal offences brought to trial. Proceeding to trial on the current indictment would unduly risk the administration of justice being brought into disrepute as well as further unfairness and oppression.
In my view, and more directly, to continue this matter would be an abuse of process given the previous history of the matter. Allowing the prosecution to continue would bring the administration of justice into disrepute and nothing short of a permanent stay could remedy the situation. I will, therefore, make orders accordingly.
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