Helmhout, J.M. v The Queen

[1981] FCA 235

Re: JOHN MICHAEL HELMHOUT
And: THE QUEEN (1981) 53 FLR 381
A.C.T. No. G33 of 1981
Practice and Procedure - Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Deane(1) and Sheppard(1) JJ.

CATCHWORDS

Practice and Procedure - Jurisdiction of Court to stay criminal proceedings on indictment preferred by Attorney-General - Whether particular circumstances would justify a stay.

Criminal Law - Practice - Procedure - Indictable offence - Application to trial judge for stay of proceedings - Oppression - Great delay in hearing retrial - Delay not caused by accused - Whether court has power to stay proceedings - Whether proceedings oppressive.

HEADNOTE

The appellant was charged with an indictable offence in November 1978 and in January 1979 he was committed to stand trial. He was tried and found guilty of a lesser charge in February 1980. He appealed against the conviction and sentence and, on appeal, the conviction was set aside in September 1980. A new trial was ordered. The retrial was set down to begin in March 1981 but the beginning was postponed first to June then to September 1981 for reasons outside the control of the appellant. When the jury was again discharged, because of the ineligibility of a juryman, the appellant sought an order staying the proceedings on the ground that they were oppressive. The trial judge refused the application and an appeal was lodged against that decision.

Held: Per curiam dismissing the appeal - (1) The Supreme Court of the Australian Capital Territory had inherent power to stay proceedings on an indictment in order to prevent an abuse of the process of the court and to ensure a fair trial.

Barton v. The Queen (1980), 55 ALJR 31; Director of Public Prosecutions v. Humphrys, (1977) AC 1; Connelly v. Director of Public Prosecutions, (1964) AC 1254, referred to.

(2) The trial judge's decision in all the circumstances was correct.

HEARING

Sydney, 1981, December 18. #DATE 18:12:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory to the Full Court of the Federal Court of Australia.

G. Lunney, for the appellant.

B. Sully Q.C. and J. Pritchard, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: R.A.O. Martin.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

E.F. FROHLICH

ORDER

THE Court orders that the appeal be dismissed.

JUDGE1

The facts of this case reveal a chain of events that is extraordinary and for the appellant, John Michael Helmhout, most unfortunate. On 4 November 1978 Mr. Helmhout was charged with wounding his brother, David Peter Helmhout, with intent to murder and also with wounding him with intent to cause grievous bodily harm. On 15 and 16 January 1979 the Court of Petty Sessions in Canberra heard committal proceedings. He was committed to stand trial. His trial was held by the Australian Capital Territory Supreme Court, commencing on 12 February 1980 and continuing to 15 February 1980 when he was found not-guilty of wounding with intent to murder but was convicted of wounding with intent to cause grievous bodily harm. On 20 February 1980 he was sentenced to imprisonment for 3 years with a non-parole period of 18 months. He appealed against his conviction and sentence. His appeal was heard before the Full Court of this Court on 29 and 30 September 1980. Judgment was given on 20 October 1980 and the verdict and conviction appealed against were set aside and a new trial ordered. These proceedings are reported as John Michael Helmhout, (1980) 1 A.Crim.R. 464.

Mr. Helmhout was first taken into custody on 4 November 1978 and then remained in custody on remand for four weeks until he was granted bail on 4 December 1978.

After he was sentenced on 18 February 1980 he was confined in gaol serving his sentence for about 35 weeks until after his appeal was upheld on 20 October 1980 when he was granted bail. It will be seen that he had been in custody for a total period of upwards of 9 months. After he was released from gaol following the success of his appeal he returned to live with his parents and obtained a job as a welder. Following disturbances at home, apparently caused by heavy drinking, he lost his job in mid January 1981. On 20 January 1981 his father, who had been surety for him, revoked his surety. Mr. Helmhout was then allowed bail on his own surety until he could arrange further sureties, which he did on 2 February 1981.

Although the retrial was set down to begin on 17 March 1981, it did not commence on that day because another case was being heard by the trial Judge which was not finished. The trial was then set down to begin on 15 June 1981. However, on this occasion the jury was discharged following the reading of the wrong charge. A fresh jury was empanelled on 29 September 1981. However, on the following day this jury was discharged when it was discovered that the foreman was ineligible for jury service. It was at this time that Counsel for Mr. Helmhout applied to the trial Judge for an order staying the proceedings on the ground that in all the circumstances they were oppressive. The trial Judge in the exercise of his discretion refused this application. The appeal to this Court is brought against that refusal.

It seems clear that the question of instituting or withdrawing a prosecution is entirely one for the Attorney-General; it is also clear that the Supreme Court has inherent power to stay proceedings on an indictment in order to prevent an abuse of the process of the Court and to ensure a fair trial (Barton v. The Queen (1980) 32 A.L.R. 449; 55 A.L.J.R. 31; Director of Public Prosecutions v. Humphrys (1977) A.C. 1; Connelly v. Director of Public Prosecutions (1964) A.C. 1254).

From the transcript of the proceedings before the trial Judge and from his ex tempore judgment it appears to us that his Honour took the view that he had this discretion but that on the facts of this case he should not grant a stay. We are not persuaded that there was any error by his Honour which would warrant any interference by us with the exercise of his discretion.

Counsel for Mr. Helmhout submitted that the learned trial Judge was in error in that he confused the power of the Attorney-General to file an indictment with the power of the Court to stay proceedings on the indictment. It was further submitted that his Honour wrongly regarded the discretion possessed by the Attorney-General to withdraw an indictment as a relevant factor and that in one part of his reasons for judgment he linked his refusal of a stay not to the further trial of the matter but to the further fixing of the trial.

However, when the transcript of the proceedings and the whole of his Honour's reasons for judgment are read, we think it is clear that his Honour did deal squarely with the question whether the proceedings on the indictment should be stayed as oppressive and came to the conclusion that it was not an appropriate case for such a stay to be granted.

Counsel for Mr. Helmhout also argued that having regard to the long delays, to the effect of those delays on the accused and his family, and to the period of upwards of nine months which Mr. Helmhout had already spent in custody, it was manifestly wrong not to grant a stay on the ground of oppression. As to this we are conscious of the unfortunate nature of these circumstances. However, there is no suggestion in this case that the accused cannot have a fair trial and no suggestion that there is fault on either side and his Honour has rightly noted in his reasons such a stay of proceedings on an indictment which the Attorney-General wishes to bring should be granted only in quite exceptional cases. His Honour did not consider that this was such a case. We are not persuaded that he was manifestly wrong in his decision. Indeed, we are of opinion that his decision in all the circumstances was correct.

We would dismiss the appeal.