Linden v Foster
[2022] ACTMC 23
•21 October 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Linden v Foster |
Citation: | [2022] ACTMC 23 |
Hearing Date: | 10 August 2022 |
Last submissions: | 27 September 2022 |
DecisionDate: | 21 October 2022 |
Before: | Magistrate Theakston |
Decision: | The proceedings concerning the charges CC2021/7349, CC2021/9810, and CC2021/9811 are permanently stayed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – application for a permanent stay of the proceedings – act of indecency without consent – right to silence |
Legislation Cited: | Police Complaints and Discipline Act 2016 (SA) |
Cases Cited: | Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14 Dupas v The Queen [2010] HCA 20; 241 CLR 237 R v Chute (No 4) [2018] ACTSC 259 R v Clarkson [1987] VR 962 Strickland v Commonwealth DPP [2018] HCA 53 The Queen v Edwards [2009] HCA 20 Walton v Cardiner [1993] HCA 77; 177 CLR 378 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 570 |
Parties: | Nicole Linden (Informant) Brett Foster (Defendant) |
Representation: | Counsel Ms B Morrisroe (Informant) Mr T Jackson (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant)) Tindall Gask Bentley Lawyers (Defendant) | |
File Numbers: | CC2021/7349; CC2021/9810; CC2021/9811 |
MAGISTRATE THEAKSTON:
Introduction
A fundamental protection within our criminal justice system is that it is for the prosecution to prove the guilt of a defendant, and a defendant cannot be compelled to assist the prosecution to do so. That is the basis of a defendant’s right to silence.
Here the defendant complains that, as he was compelled to answer questions about the allegation and his answers were provided to the complainant, he has lost that right to silence, and the proceedings should therefore be permanently stayed.
Background
In late 2019, various police officers travelled to Canberra to participate in a basketball tournament. They included the complainant and the defendant who were members of South Australian Police. The complainant subsequently complained of being indecently assaulted by the defendant. The allegation involved the defendant entering an ensuite, while the complainant was using the same to shower and then, while she attempted to cover herself with a towel, attempting to kiss her, grabbed her naked buttocks and holding her hand against his clothed crotch.
The complainant initially elected for the matter to be dealt with administratively under the South Australian Police legislative discipline arrangements. As part of that process the defendant was directed and required to answer questions about the allegation. He answered those questions, and two days later his answers were largely provided to the complainant. The complainant then prepared a supplementary document in response to that information.
The compulsory interview was conducted under s 21(5) of the Police Complaints and Discipline Act 2016 (SA). That provision required the defendant to answer the questions put to him, on pain of being dealt with under that same Act for a breach of discipline. Sanctions following a finding of a breach of discipline included termination of the defendant’s appointment as a police officer. Incidentally, that provision – unlike the provisions discussed elsewhere in a number of authorities, did not compel answers on pain of criminal sanction, nor exhaustively remove the right to decline to answer on the basis of self-incriminating. However, a refusal to answer the questions did, as indicated above, expose the defendant to the risk of being dismissed from South Australian Police, and I am satisfied that those arrangements effectively compelled the defendant to answer the questions put to him.
I also note that while s 45 of the Act provides for disclosure of information for the purpose of criminal proceedings, there must be limits on how that information could be used and there may be limitations on whether the South Australian legislator can abrogate any fundamental features of a criminal hearing to be heard in the Territory.
There was reference made within the defendant’s submissions to the possible unlawfulness of the compulsory interview and in turn principles and observations from the High Court decision in Strickland v Commonwealth DPP [2018] HCA 53; 266 CLR 325. However, there was nothing within the evidence to support a finding that the interview was conducted unlawfully, or that information from the interview was unlawfully disclosed.
In mid-2020 a decision was made not to continue with the discipline proceedings, as there was uncertainty about whether those proceedings could cover conduct said to have occurred outside of South Australia. A complaint was then made to the AFP and the defendant is now before this Court charged with three counts of recklessly committing an act of indecency on the complainant.
The content of the defendant’s answers under compulsion have not been provided to the AFP or the prosecution. However, what is clear is that the complainant is a key and crucial witness in the criminal proceedings, and she has received the benefit of feedback from the defendant’s answers, and that cannot be undone.
Permanent stay of proceedings
It is now well established that the ACT Magistrates Court has an implied power to stay proceedings, as may be necessary for the purpose of exercising the Court’s jurisdiction. See for example Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14; 9 ACTLR 84 at [29].
A permanent staying of criminal proceedings obviously prevents the matter proceeding to a natural conclusion. There is no determination of guilt or otherwise. It amounts to a unilateral decision by a court to terminate a prosecution and is equivalent to providing the defendant with ongoing immunity from prosecution: Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [37]. It is therefore a very significant measure.
There are also legitimate public interests in those charged with criminal offences being brought to trial and those guilty being convicted: Walton v Cardiner [1993] HCA 77; 177 CLR 378 majority decision at [26]. The criminal justice system serves a range of purposes, and a consistent and dependable application of the criminal justice system assists with serving those purposes. It is also consistent with the rule of law. This imperative is greater the more serious an offence is: Strickland at [262]. Therefore, a permanent stay of criminal proceedings is a drastic remedy and should be exercised rarely and only as a last resort.
Nevertheless, there is no public interest in advancing a conviction secured where there is substantial prejudice and unfairness to a defendant: R v Clarkson [1987] VR 962 at [971].
The test for a permanent stay has been described in a variety of ways. For example, in The Queen v Edwards [2009] HCA 20; 255 ALR 399 at [23], the High Court re-affirmed the question to be asked as:
whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
(Quotations marks removed)
In R v Chute (No 4) [2018] ACTSC 259; 337 FLR 222 at [49], Mossop J synthesised the principles described in a number of High Court authorities and summarised the test to be:
In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences.
The right to silence
The High Court has explained, across a series of authorities, that the privilege against self-incrimination is a fundamental bulwark of liberty – a basic and substantive common law right and is not simply a rule of evidence. It is not only concerned with how an answer may be used at trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence: see for example X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 570 at [104].
It is closely related to what has been described more broadly and generally as the right to silence, as well as the inherently accusatorial nature of common law criminal investigations and proceedings, with the burden of proof falling on the prosecution. Each of those aspects support the protection of the liberty of the individual from the powers of the state and examples across history have demonstrated their necessity. Having said that, a parliament – including the ACT Legislative Assembly – may, should it clearly choose to do so as required by the principle of legality, legislate to abrogate or restrict those fundamental common law features.
The High Court in X7 at [124] made the following observations about the impact on a defendant if required to participate in a compulsory examination prior to a criminal trial:
Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.
Consideration
Here the allegations involve the defendant touching the complainant while she was essentially naked in a bathroom. The complainant and defendant were work colleagues and members of the South Australian Police. They were in Canberra for a work-related sporting event. The allegations are serious, and there is a clear imperative to have such matters run their usual course to hearing with a determination in relation to guilt or otherwise. This is a very important consideration.
However, the South Australian authorities set in train a series of events that have ultimately led to the defendant facing charges where he had been compelled to respond to the allegations and the complainant has been informed about his responses. The complainant now seized with that knowledge would inevitably use that information to support her claim. This Court cannot make directions nor design a process that would negate those unfair consequences. Incidentally, it is no answer to that concern to observe that the AFP investigators and prosecutors were not made aware of the content of the relevant interview. Any disclosure of that nature would have grounded an additional concern.
Additionally, the defendant’s options are now restricted, as described above, about the course which he could adopt at trial. For example, the content of the complainant’s original and supplementary statements demonstrate a reduction in the opportunities for the defendant to test the complainant’s evidence by way of cross examination.
This case highlights the dangers of proceeding with administrative processes where criminal proceedings may follow, particularly when utilising compulsory examinations.
The above departures from the usual arrangements represent fundamental defects and are defects that cannot be remedied by directions or processes. I have reached the unavoidable conclusion that it is now not possible for the defendant to receive a fair trial. While taking into account the critically important consideration of proceeding with the prosecution, I am ultimately persuaded that the interests of justice require the proceedings to be permanently stayed.
This may be viewed as a disappointing result, particularly when considering the social imperative to bring a defendant to trial. However, fairness at trial is also very important, and in this case a permanent stay is the better of two imperfect outcomes.
Orders
The court makes the following order:
The proceedings concerning the charges CC2021/7349, CC2021/9810, and CC2021/9811 are permanently stayed.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston Associate: Jack Watson Date: 21 October 2022 |
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