DPP v Censori
[2006] VSC 486
•15 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1495 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIS CENSORI |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2006 | |
DATE OF RULING: | 15 December 2006 | |
CASE MAY BE CITED AS: | DPP v Censori | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 486 | |
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Criminal Law – Nolle prosequi proffered - Acceptance or refusal – No exceptional circumstances warranting refusal
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Rapke Q.C. | Office of Public Prosecutions |
| For the Accused | Mr S. Grant | Victoria Legal Aid |
HIS HONOUR:
These are my reasons for rejecting an application made by Mr Eris Censori (“Censori”) for an order that the entry of a nolle prosequi by the Director of Public Prosecutions (“the Director”) on a criminal charge against Censori not be accepted by the Court.
In January 1999, after extensive police investigations, Censori was arrested and charged with conspiring with others to traffick in a commercial quantity of ecstasy. The others included a Mr Philip Reed (“Reed”). On 19 August 1998, Reed had been questioned by the police. He told police that he knew Censori, and that he had received from Censori some materials which Reed had pressed at his workplace into tablets which he understood were to be used for industrial purposes. After a break in the questioning, Reed changed his story. He spoke in the revised account in terms of his believing at the time that he received the materials from Censori for pressing, that the materials and hence the tablets were of the illegal drug ecstasy. He took the police to the workplace premises. He there pointed out some remnants of materials in a machine. He said that they were the remnants of the materials which he had pressed into tablets for Censori. The remnants were sent for testing. On 20 August 1998, Reed signed a statement confirming the revised account implicating Censori. On 28 August 1998, he signed a supplementary statement. Reed referred in those statements to ecstasy crystals and ecstasy powder.
On 23 April 2000, Reed pleaded guilty in the County Court to one count of trafficking ecstasy being not less than a commercial quantity. On the hearing of the plea, what was presented to the sentencing judge included the statements made by Reed. Reed was sentenced to three years imprisonment, wholly suspended for three years. It was only at about the time that Reed was sentenced that the tests on the remnants of the materials became available. Of particular significance was the fact that the tests did not support the conclusion that the remnants were constituents of ecstasy.
In May 2000, there was held the committal hearing of charges against Censori and two others. Reed was called by the prosecution to give evidence. That testimony included his stating that what he had said in his August 1998 statements implicating Censori was the truth. During cross-examination, what he said included: that at the time of pressing the tablets, he believed that the material that he had pressed was ecstasy; that he had learned subsequently that the testing of the remnant materials led to the conclusion that what was pressed was not ecstasy; that his lawyers had told him that it was not relevant to the charge to which he pleaded guilty that the remnants were not those of an illegal drug. Reed was asked questions linked to how the police came to question him. None of those questions suggested any police impropriety. There was a degree of inconsistency in his answers in cross-examination and re-examination as to how and why he believed the materials that he was pressing were ecstasy. In re-examination, he was asked to clarify the position as to the apparent inconsistencies. He said that he was quite confident that the material that he had pressed was ecstasy.
On 12 September 2000, a presentment naming Censori and two others was filed in the County Court. Each of the three was charged in that 12 September 2000 presentment with trafficking in ecstasy. On 26 September 2000, Censori and the two others were arraigned on that charge. Each pleaded not guilty. There was then a significant delay, the reasons for which are not clear to me.
On 29 July 2002, the trial of Censori and the two others was set down for hearing in the County Court. On that day, leave was granted by the Court to the Director to file over a fresh presentment naming Censori and only one other, a Nicola Fiore (“Fiore”). Each was charged with trafficking in ecstasy. On 1 August 2002, Censori and Fiore were arraigned and pleaded not guilty.
On 5 August 2002, the Director entered a nolle prosequi as to the 29 July 2002 presentment and filed over a fresh presentment. The only charge against Censori and Fiore in the 5 August 2002 presentment was one of attempting to traffick ecstasy. On 5 August 2002, Censori and Fiore were arraigned and pleaded guilty. On the same day, there was a lengthy discussion before the County Court judge who had been allocated to preside over the trial. In that discussion, there was raised by counsel with the judge the consideration that matters arising at the trial would or might suggest a degree of impropriety on the part of the prosecutor who had appeared at the May 2000 committal hearing, in not disclosing earlier than was done the results of the tests on the remnants materials. By August 2002, that prosecutor had been elevated to the bench of the County Court. The outcome of that discussion was that steps were taken to transfer the proceedings from the County Court to this Court. On 5 September 2002, I made an order varying the time and place of trial pursuant to s.359(1) of the Crimes Act 1958, to effect the transfer to this Court.
After the transfer, there were further delays. The primary reason for the delay was linked to the position of Reed. In December 2002, he applied out of time to the Court of Appeal seeking leave to appeal against his conviction in April 2000. He was granted an extension of time. The application for leave was heard on 24 June 2003. It was refused and reasons given on 1 August 2003: see R v Reed [2003] VSCA 950. Reed then applied to the High Court for special leave to appeal. On 18 June 2004, that application was also refused: see Reed v The Queen [2004] HCA Trans 212. One matter that occupied attention on the hearings in both appellate courts was the credibility of Reed. Adverse comments were made as to apparent inconsistencies in positions taken by Reed.
After the position as to Reed was finalised, applications were made to the Director on behalf of each of Censori and Fiore that a nolle prosequi as to the 5 August 2002 presentment be entered. On 7 September 2004, the Director entered a nolle prosequi as to the 5 August 2002 presentment as to Fiore. The Director did not accede to the application made on behalf of Censori. Application was then made to this Court on behalf of Censori for the holding of a preliminary examination of Reed. That application was not opposed by the Director. It took place before me on 13 December 2004. Some of the answers which Reed gave on that preliminary examination were in stark contrast to matters included in his August 1998 statements and to some of his answers at the committal hearing in May 2000. Shortly after being sworn, when asked if the contents of his statement of 20 August 1998 were correct, he said that part was and part was not. He then indicated that he was not going to answer the question on the grounds that it might incriminate him. His answers to further questions in examination-in-chief revealed a disposition to distance himself from having any intention to engage in any illegal activity. Many of the questions asked of Reed in cross-examination were directed to the conduct of the police who interviewed him in August 1998, including as to how they treated him before and during the interview. In his answers he alleged police violence and threats. He claimed that he had no inkling that the materials that he had pressed for Censori were ecstasy, and that the first time that he learned of that possibility was from the police.
I have earlier noted that, in August 2002, the prosecution and the Court had been put on notice of a suggestion of prosecutorial impropriety. To that suggestion was added, at the preliminary hearing before me, more than a suggestion of police impropriety. I would note that at no time, to my knowledge, has the prosecutor had any opportunity to meet the first suggestion. Nor, to my knowledge, have the police who interviewed Reed had any opportunity to address the matters raised by the answers given by Reed at the preliminary hearing. In short, there are some unsubstantiated claims of impropriety.
At the end of the preliminary hearing on 13 December 2004, it was sufficiently apparent that a trial of the charge against Censori was likely to be materially affected by matters going to the credibility of Reed. As noted earlier, the reasons of the Court of Appeal on Reed’s application for leave to appeal had also included matters of concerns as to the credibility of Reed. It was also apparent that there was a strong prospect of the trial against Censori being prolonged by the raising of claims of impropriety.
After the preliminary examination of Reed, the Director indicated that he was prepared to enter a nolle prosequi. The boot was now on the other foot. Censori, whose application to the Director for a nolle prosequi had been rejected before the preliminary hearing of Reed, now applied for an order that the proposed offer of a nolle prosequi be rejected. The hearing of the present application was heard on 21 September 2006.
I turn to the law. The contest before me was not as to the applicable principles, but as to their application. Mr Rapke QC, who appeared before me for the Director, accepted that the superior courts do have jurisdiction to refuse to permit the entry of a nolle prosequi when such a refusal would prevent an abuse of process. However, he submitted that such interference with prosecutorial discretion was only appropriate in the most exceptional circumstances.
I treat as the most authoritative decision on the applicable principles to be that of the High Court in DPP (SA) v B (1998) 194 CLR 566. Other authorities to which I was referred included: Rona v District Court (SA) (1995) 63 SASR 223, R v Jell; Ex parte Attorney-General (Qld) [1991] 1 Qd R 48, (1990) 46 A Crim R 261, R v Lorkin (1995) 15 WAR 499, (1995) 82 A Crim R 196, Question of Law Reserved on Acquittal ( 3 of 1995) Re Michael Charles Baenisch (1996) 88 A Crim R 1. DPP (SA) v B was the decision in the High Court on the appeal from Re Baenisch.
Mr Grant for Censori relied primarily on the dissenting judgment of Kirby J in DPP (SA) v B. With minor reservations linked to the qualifications expressed in the majority judgment in DPP (SA) v B at 580, I am satisfied that reliance substantially on the propositions stated by Kirby J at 600-607 is appropriate. There, Kirby J reviewed what had been said in Rona, Jell and other cases. At the second-mentioned points 4 and 5, he said:
“4 …If it is beyond question that Australian courts have full power to prevent abuse of their process, they have a duty, where necessary, themselves to protect the integrity of that process. It is not sufficient simply to trust, without question, the propriety of every decision of a statutory office-holder to enter a nolle prosequi. Nor is it necessarily sufficient, the matter being before a court, to leave defence of the court’s process or of the accused’s fair trial right to a future court, should a fresh prosecution be brought. In a given case, that might deprive an accused person of an entitlement to a verdict of acquittal. It could burden him or her unjustifiably with the odium of an unresolved criminal accusation. It could involve injustice and serious oppression. Most importantly, it could defeat the expectations of the accused, the community and the court itself that once the proceedings are before an independent court of justice no party to those proceedings can, in defiance of the court’s rulings on the justice of the case, unilaterally terminate the matter…”
”5 Where a court concludes that conduct of any party is, or if permitted would be, an abuse of its process or, in a criminal trial, diminishes the accused’s right to a fair trial which is the hallmark of the criminal law of this country, it is for the court to fashion the remedy (if any) that is appropriate. In some cases it may be sufficient to order the expedition of any subsequent proceedings or to lay down conditions for their conduct. In some cases it will be appropriate to leave the provision of relief to be decided if a prosecution is revived. But in rare and exceptional cases the court will have the power and authority to fashion an order staying further proceedings on the indictment. In other cases, particularly where the nolle prosequi is proffered at an advanced state in the trial, the court may require the matter to proceed to verdict, at least where that is the wish of the accused and the defence of the court’s process as well as fairness to the accused suggests that it is proper. Once it is accepted that a court may, in rare and exceptional circumstances, refuse to enter a nolle prosequi, although proffered for the prosecutor, it must be expected that the prosecutor would accept the judicial ruling and conform to its consequences so far as these affected the ensuing conduct of the trial.”
I particularly note three aspects of what is there said, that bear relating to the instant case. The court will intrude only in rare and exceptional circumstances. There can be the need, as to possibility of the bringing of a fresh prosecution, to make an assessment of the level of that future possibility. Community expectations in seeing criminals brought fairly to justice and the right of an accused to a fair trial need to be weighed in the balance.
I turn to the application of the law. Mr Grant argued that there were several factors as to Censori’s case which would justify a refusal of the nolle prosequi and a direction of a verdict of acquittal. These included; that the Director’s case against Censori was foredoomed to fail; that the case pertained to a ‘stale’ offence; that Censori’s personal position, including that he was on life parole, made him special; and, that it was in the public interest that there be a conclusion of the litigation against Censori in a final, binding and conclusive way.
In the instant case, there was, as in DPP (SA) v B, a significant threshold issue. That issue was as to whether it mattered that the proposed entry of the nolle prosequi was or was not made “at the trial” of Censori. In DPP (SA) v B, the appellant sought to have the High Court directly address issues ruled on by the South Australian Full Court in Re Baenisch, as to whether a trial judge had the power to refuse to accept a nolle prosequi entered by the Director, and if so, what the limitations existed as to the exercise of that power. The majority of the High Court held that it was inappropriate to address the issue, primarily on the basis that the trial in this case had not begun when the trial judge refused to accept the nolle prosequi. The South Australian statute was construed as providing that a criminal trial upon an information commenced only when the judge who was to try the accused embarked upon the hearing and determination of any preliminary question, or upon the empanelling of the jury. As Baenisch was not arraigned by the trial judge before the judge had declined to receive the nolle prosequi, the majority in DPP (SA) v B concluded that, because the questions reserved did not arise at the trial of the respondent, it would be inappropriate to answer them. The majority also noted inadequacies in the drafting of the questions referred to the Criminal Court of Appeal, in that they did not refer to any facts of the case. Because they were cast in general terms, it was concluded that any answers provided would have inappropriately invited general advisory opinions on hypothetical questions. Kirby J, in dissent at 608-609, concluded that the South Australian Full Court did have the jurisdiction to hear the points in issue and that the South Australian legislation ought not be narrowly construed.
Mr Rapke relied on the same threshold point which had been the focus of the majority in DPP (SA) v B, namely the need for the issue to have been raised at the trial. Mr Grant sought to distinguish the instant case from DPP (SA) v B on the basis of the differences in Victorian and South Australian legislation and procedures, linked to the consideration that there had been a trial date fixed, and more than one arraignment in the County Court and that there had been a series of direction hearings or mentions in this Court. I am not prepared to accept that the application should fail at the threshold point. I consider that there is some substance in the matters raised by Mr Grant. The history of the proceedings is a complicated one by reason of the series of unusual factors which I need not review. Censori was arraigned in the County Court twice, once in anticipation of the trial being about to start. No trial date was fixed in this court, but there were several mentions. On any view, in this court, there was no trial started, or about to start. But there was always the prospect of such a start. I am not disposed to treat the answer to the question: “Had the trial started?” as providing a conclusive shut-out here to an application of the present kind, as it was effectively assessed by the majority in DPP (SA) v B to be. But I am disposed to treat the circumstance that the proffered entry of a nolle prosequi took place well before a trial date was fixed in this court as being a significant factor contra-indicative of any abuse of process.
I turn to the issue of whether there has been shown to be one factor making, or more than one factor contributing to making, the circumstances of this case, rare and exceptional. Mr Rapke argued that in each of the cases where the entry of a nolle prosequi had been refused by the court, it had been clear that it was being used or sought to be used as a device by the prosecuting authority. Mr Grant, for Censori submitted that the power of a court to protect itself from abuse of process in criminal proceedings might be exercised as and when the administration of justice so requires it, as per Jago v District Court (NSW) (1989) 168 CLR 23, and that an exhaustive list could not be made of what constitutes an abuse of process as per Macrossan CJ and Thomas J stated in Jell at 53-54.
Mr Grant submitted that one factor contributing to making the position of Censori exceptional was that there were matters personal to him, making his position more difficult, including that he was a lifetime parolee, had been in custody for a considerable time, and had been on onerous bail for an even longer time. I cannot see that these considerations make other than a minor possible contribution to making the circumstances exceptional in the way that the authorities require. There was no evidence before me of any special oppression directed personally at Censori. In every case, with a criminal trial pending, there must be anxiety on the part of the accused. Perhaps being a lifetime parolee might make Censori feel that he is more likely than a person who is not one, to being a victim of impropriety of some kind. I have referred to two areas where suggestions of impropriety have been raised at earlier stages of the proceedings. In some of the other cases, prosecutorial impropriety has been raised as a factor contributing to there being seen to be an abuse of process. The matter of impropriety was not specifically raised by Mr Grant before me. Further, while matters personal to a particular accused may be a contributing factor, the main focus must be on whether there has been shown to be some action or inaction on the part of the prosecuting authority which can be seen to potentially amount to, or lead to, a significant erosion or diminution in public confidence in the administration of justice.
Mr Grant sought to press upon me the importance of finality. It is important in the public interest that there should be a conclusion of the litigation in a final, binding and conclusive way. Whereas an acquittal would bring absolute finality, a nolle prosequi will not, as there is always the possibility of a further presentment. This finality consideration attracted attention in Lorkin, and in R v Swingler [1996] 1 VR 257. Recognition was given to the possibility, although in somewhat different ways. In certain circumstances the possibility of further charges being laid may be a real one. The instant case does not present with those circumstances. That is primarily because of the one key variable, the inconsistency of the witness Reed. I am as confident as I reasonably can be that a further presentment will not be filed. I assess as close to inevitable that, if there were a further presentment, it would be stayed. In short, I see no realistic prospect that the filing of a nolle prosequi in the circumstances of this case will not achieve finality.
Finally, there was, Mr Grant submitted, no reasonable prospect of a conviction, given the evidence of Reed as indicated from the preliminary examination, the circumstance that the offence was now stale and the state of other evidence. In assessing prospects of success, there are ordinarily quite a number of variables to take into account. Time can also play a part in assessing how strong a prosecution case is. Various eventualities can turn a strong case into a weak one. It may be the unavailability of a witness through death or otherwise. The evidence of a witness may appear cogent, until the witness is subjected to searching cross-examination. Prospects of success that may appear reasonable or better, need reappraisal. In the instant case, after the examination of Reed, it was appropriate that there be a re-appraisal of the prospects of success. Before Reed was subjected to cross-examination at the preliminary hearing in December 2004, the charge against Censori was not, in my assessment, doomed to fail. After the examination, because of Reed’s inconsistency, it was sensible from all perspectives that the prosecution should not proceed. If the Director had persisted with the prosecution, but had offered to file a nolle prosequi after Reed had given evidence at the trial which did not support the prosecution case, the position of Censori in seeking to have such an offer rejected would have been strong. However, given the course which the Director chose to adopt before this court, I am quite unable to see that this could be seen to be a rare and exceptional case calling for the rejection of the proffered nolle prosequi. There was not present here the potential for the right of the accused to a fair trial being compromised, such as in some of the cases to which I was referred. There was no impropriety. There was no misuse of evidence, no manipulation of the procedural rules, no failure on the part of the prosecution to observe undertakings to the court, no taking of tactical advantage, no manipulation. And the application was not made at an advanced stage of the trial.
In my assessment, there is only one course to follow and that is to reject the application, and I do so.
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