Police v Fry
[2020] SASC 227
•27 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FRY
[2020] SASC 227
Judgment of The Honourable Justice Bampton
27 November 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ALIBI
Appeal against the ruling of a Magistrate permanently staying the criminal proceedings against the respondent – where respondent charged with committing the offences of being unlawfully on premises and damaging property at Collinswood alleged to have occurred at about 9.25 am on 24 May 2019 – where respondent provided the appellant with an affidavit of an alibi witness which placed the respondent at a Blakeview shop from between 9.15 am and 9.30 am to at least 10.56 am – where prosecutor telephoned alibi witness (“the telephone call”) and deposed to the matters discussed in the telephone call in an affidavit – where Magistrate made a finding of fact that, as a result of the telephone call, the alibi witness had chosen not to be a witness at the trial – where there was no evidence upon which the finding could be made.
HELD: Appeal allowed – the Magistrate’s ruling was based on a finding of fact without supporting evidence – there was no assessment of what the Court could do in the conduct of the trial to relieve against the asserted unfair consequences of the telephone call – order of the Magistrate staying the proceedings set aside and order made that the matter proceed to trial before a different Magistrate.
Summary Offences Act 1953 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 85; Magistrates Court Rules 1992 (SA) r 26, referred to.
Jago v District Court of New South Wales & Ors (1989) 168 CLR 23; R v H, GJ [2014] SASCFC 34, applied.
Browne v Dunn (1893) 6 R 67, discussed.
POLICE v FRY
[2020] SASC 227Magistrates Appeal: Criminal
BAMPTON J: On 24 May 2019 at 10.56 am, Ronald Fry bought a red carnival bowl from Hazel’s Gifts and Collectables (“Hazel’s”) at Blakeview. The precision of the timing associated with the purchase will soon be evident.
On 20 June 2019, Mr Fry was charged with committing the offences of being unlawfully on premises[1] and damaging property[2] at Collinswood on 24 May 2019 (“the offending”).
[1] Contrary to s 17 of the Summary Offences Act 1953 (SA).
[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA).
On 28 April 2020, a Magistrate ordered a permanent stay of the prosecution of the charges against Mr Fry. The appellant appeals that order.
Background
The appellant alleges that at about 9.25 am on 24 May 2019 the complainant householder was notified by his home security system that someone was at his front door. The appellant further alleges that Mr Fry was seen on closed circuit television (“CCTV”) to enter the complainant householder’s property where he damaged a screen door. The appellant intended to lead at trial:
·the CCTV footage from which the offender’s face can be seen and from which it intended to ask the Court to decide for itself whether the offender was Mr Fry;
·evidence that the footage showed the offender wore a blue checked shirt, blue tracksuit pants with white stripes, and white shoes, and that those items were found at Mr Fry’s home; and
·that a shoe print found at the crime scene had a high probability of matching a shoe found at Mr Fry’s home.
The alibi notice
On 16 October 2019, in compliance with r 26.03 of the Magistrates Court Rules 1992 (SA), Mr Fry’s solicitor sent an email to the appellant disclosing the affidavit of Jemma Ledo affirmed 11 October 2019. Rule 26.03 provides:
Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses.
Ms Ledo deposed in her affidavit that she is employed at Hazel’s and, as at the date of her affidavit, had been employed in her role for just over one year. Ms Ledo stated that she understood that Mr Fry had been a customer of Hazel’s for approximately five years and that she does not know him other than as a Hazel’s customer.
Ms Ledo deposed that on 24 May 2019 she worked at Hazel’s from 9.00 am to 5.00 pm and that Mr Fry is “always at the store early, sometimes before [9.00 am] waiting for it to open”. She also deposed that Mr Fry spends a significant amount of time at the store looking at items and that he always talked at length with her. Ms Ledo’s affidavit concludes as follows:
9.I recall that on Friday, 24 May 2019 [Mr Fry] was not at Hazel’s early like he usually is. He did not arrive until 9:15-9:30am.
10.By reference to a receipt I can say that on 24 May 2019, [Mr Fry] purchased a red glass bowl. I recall discussing the purchase of the bowl with him because I had never seen a bowl like the one he purchased. It was a red carnival bowl. I recall, in particular, that I was chatting his ear off. Now shown to me and marked JL1 Is a copy of the receipt.
11.The receipt from 24 May 2019 shows that the red bowl was purchased at 11:56am. However, on 25 May 2019, [Mr Fry] attended Hazel’s and asked me to check whether the time on the receipts was correct. I made a test receipt and realised that the time was out by 1 hour due to day light saving. Therefore, the actual time of the receipt should be 10:56am.
Ms Ledo’s affidavit therefore, places Mr Fry at Hazel’s on 24 May 2019 from 9.15–9.30 am to at least 10.56 am.
The telephone call and the application for the stay
On 15 November 2019, the prosecutor, Brevet Sergeant Mileson, telephoned Ms Ledo. In a later telephone call with Mr Fry’s solicitor, Ms Shaw, Mr Mileson informed Ms Shaw that he had spoken with Ms Ledo. Following Mr Mileson’s confirmation at a pre-trial conference on 3 December 2019 that he had spoken with Ms Ledo, Ms Shaw applied for a permanent stay of the proceedings against Mr Fry. The application was listed for argument on 14 February 2020.
On 28 January 2020, Ms Shaw requested Mr Mileson’s notes and a statement of “what transpired between that prosecutor and the defence witness”.
Brevet Sergeant Mileson’s affidavit
On 30 January 2020, Mr Mileson affirmed an affidavit which was disclosed to Mr Fry’s solicitors on 3 February 2020. Mr Mileson referred in his affidavit to Ms Ledo’s affidavit appearing to put Mr Fry at the shop in Blakeview at the time of the alleged offending and that:
9.I wanted to ensure the truth of the matter be fully investigated.
10.I took advice from other prosecutors within our office who confirmed to me that witnesses are not the property of either side, both having the ability to proof the witness before any future trial.
11.On Wednesday 13th November 2019, I rang LEDO with a view to speaking to her about the matter.
12.She was not available to speak on this occasion so I arranged to speak to her by phone on Friday 15th November 2019.
13.On Friday 15th November 2019, I rang LEDO as arranged.
14.I explained that I was the prosecutor currently with conduct of the matter she had provided a statement about.
15.I explained that I had read her statement and that it differed from the prosecution version in the court proceedings.
16.I explained that I only wanted her to tell me the truth as she remembered it, say what she knew and don’t say what she didn’t know. If she wasn’t sure, she should tell me she wasn’t sure. I told her that if she gave evidence in court that she knew not to be true, she could potentially be subject to criminal proceedings.
17.This is the same warning I give to any witness in a criminal matter.
18.I told her that police had CCTV vision of who we believe to be FRY, at a location near the city at the time that she had stated he was in the shop in BLAKEVIEW.
19.She stated, without any prompting from me, that she was sure FRY was in the shop on 24th May 2019. She knew this because he had purchased a bowl at about 11.56am that day according to the receipt but the timing was incorrect by 1 hour meaning it had been purchased at 10.56 due to daylight savings.
20.She stated that she could not be sure what time he came into the shop that day.
21.She stated that the only things she could be sure about was that FRY was in the shop that day and purchased the item and that he hadn’t arrived at the early time he normally did (he quite often would be waiting for the shop to open at 9am).
22.I did not go into any details about the offences subject to the charges.
23.I thanked her for her help and ended the call.
24.I made handwritten notes of the conversation on an internal SAPOL document following the conversation; however, I am currently unable to locate that document.
The hearing of the application and the Magistrate’s ruling
Mr Fry’s application for the stay was argued before a Magistrate on 14 February 2020. Mr Fry relied upon the affidavit of his solicitor, Ms Shaw, affirmed on 14 February 2020 which annexes the affidavits of Ms Ledo, Mr Mileson, and the complainant householder (“Ms Shaw’s affidavit”).
On 28 April 2020, the Magistrate delivered a ruling permanently staying the proceedings against Mr Fry (“the ruling”).
The Magistrate stated at paragraph [3] of the ruling “I understand that after the conversation with Brevet Sergeant Mileson, Ms Ledo chose not to be a witness at the trial” and reasoned at paragraph [7] as follows:
Prosecution says there is no evidence before me which would lead me to conclude the alibi witness will not appear. I am satisfied with [Mrs] Shaw’s word on this, and if Jemma Ledo does not appear there is nothing I have heard from prosecution which would prevent me from finding Jemma Ledo was frightened off by Brevet Sergeant Mileson. … In my view, the defence case is entirely compromised with or without any evidence from Jemma Ledo and whether she appears or not is irrelevant. If the witness does not appear the entire defence case collapses. If she does appear she will be discredited by Brevet Sergeant Mileson’s evidence and in cross-examination. The defendant cannot have a fair trial. …
The appeal
The appellant appeals the ruling on the following grounds:
(1)The Magistrate erred in finding that the actions of the prosecutor amounted to an abuse of process which prevented [Mr Fry] from receiving a fair trial.
(2)There was no unfairness to the respondent, in the relevant sense, that would justify the order of a permanent stay of the proceedings.
The appellant complained that as there was no evidence of Ms Ledo’s response to her conversation with Mr Mileson, the Magistrate’s comment at paragraph [3] regarding his understanding that Ms Ledo had chosen not to be a witness at the trial is a critical error of fact. As there was no evidence upon which that finding could have been made, it was submitted that the conclusion permanently staying the prosecution is affected by legal error and cannot stand.
Mr Fry submitted on appeal that the damage done by the prosecutor in speaking with Ms Ledo is irremediable, cannot be condoned, and that he has been denied a fair trial. He argued that the alibi evidence was capable of being a complete answer to the evidence presented by the prosecution and that the prosecutor acted improperly, using the authority of his office as a police officer and prosecutor, by saying to Ms Ledo that her statement differed from the prosecution version in the court proceedings; that if she gave evidence in court that she knew not to be true, she could potentially be subject to criminal proceedings; and that he wanted to ensure the truth of the matter be fully investigated. Mr Fry further complained that the prosecutor told Ms Ledo that the police had CCTV footage of a person they believed to be Mr Fry at a location near the city at the time Ms Ledo had stated he was in the shop at Blakeview.
Mr Fry contended that, not surprisingly, in view of these statements by the police prosecutor, Ms Ledo stated that she could not be sure what time he came into the shop. It was argued that this is not a matter of weight; that the only relevant evidence from Ms Ledo was not that Mr Fry went into the shop, but that he was at the shop at 9.15–9.30am. It was submitted that this means that there was no relevant evidence that Ms Ledo could give. It was in that sense, it was submitted to the Magistrate, that the defence could not call Ms Ledo. Mr Fry argued that the conduct of the prosecutor was improper because he made statements, firstly, as to police opinions regarding the identity of the person in the CCTV footage and, secondly, as to whether the entire prosecution case to be led in court was contrary to Ms Ledo’s alibi statement.
Mr Fry’s counsel, whilst agreeing that the Magistrate was in error in stating that Ms Ledo chose not to be a witness, submitted that at paragraph [4] of the ruling the Magistrate explained what he was referring to was the fact that the defence case had effectively been dismantled and the damage could not be cured.
Paragraph [4] sets out the Magistrate’s summary of Mr Fry’s counsel’s submission as follows:
The defendant’s counsel Mrs Shaw submits the way the prosecutor investigated the alibi was improper. It was improper because he challenged Ms Ledo’s memory and he warned her if she gave evidence which was untrue she could be subject to a criminal charge. The effect of this in Mrs Shaw’s submissions, is the defendant’s case has been dismantled before the trial has even began and the damage cannot be cured. She submits even if Ms Ledo was to have a change of heart, her credibility will be destroyed because Brevet Sergeant Mileson will be called by the prosecution and he would tell the court of his conversation with Ms Ledo. Of course, after her own evidence she would be cross‑examined about the inconsistencies between her affidavit and her statement to Brevet Sergeant Mileson. Mrs Shaw says the result is the defendant cannot now get a fair trial with or without Ms Ledo as a witness. Either way Mr Fry’s defence has been dismantled.
Mr Fry bore the onus on the application. However, the statement at paragraph [7] that “there is nothing I have heard from prosecution which would prevent me from finding Jemma Ledo as frightened off by Brevet Sergeant Mileson” suggests that it was for the prosecution to disprove that Mr Mileson frightened Ms Ledo off, thereby reversing the onus. Importantly, no submission was made to the Magistrate regarding whether Ms Ledo would attend. The ruling also suggests that there is an unfairness in Ms Ledo being cross‑examined at the trial about what she had said to Mr Mileson. As acknowledged by Mr Fry’s counsel, the purpose of an alibi notice is to provide notice and opportunity for the prosecution to investigate the suggested alibi which necessarily involves speaking with the witness whose evidence may provide that alibi. If it transpires that the alibi witness provides a version of events that differs from details contained in the alibi notice, the prosecution is entitled, in the event the witness gives evidence at trial in terms of the alibi notice, to put that version to the witness in cross‑examination.
As submitted by the appellant, the ruling appears to assume that any evidence given by Ms Ledo would not raise even a reasonable possibility that Mr Fry was elsewhere at the time of the offence. Ms Ledo has not denied that Mr Fry was in her shop at 9.15-9.30 am. According to Mr Mileson, she is no longer sure that Mr Fry was in her shop at 9.15-9.30 am. Further, there is no evidence that Mr Mileson told Ms Ledo the time the offending is alleged to have been committed. It must be remembered that Mr Mileson’s evidence as contained in his affidavit is merely his recollection, or his report, of what Ms Ledo said to him, without the benefit of the notes he made following the conversation and could not locate.
The Magistrate referred to the defence case having been dismantled before the trial had even began and that the damage could not be cured. The Magistrate was required to consider whether the asserted unfairness could be overcome by alternative remedies to the stay.
The exercise of the power to stay proceedings
In Jago v District Court of New South Wales & Ors (“Jago”)[3] Mason CJ, in explaining the principles governing the exercise of the power to stay criminal proceedings, stated that ordering a stay of proceedings for an abuse of process is an exceptional order as a court arrives at a determination that the trial of the accused will be unfair regardless of how the evidence unfolds and despite any evidence that may be excluded and any directions that might be given.
[3] (1989) 168 CLR 23 at 30-34.
In exercising the exceptional power to grant a stay of proceedings, the Court must keep in mind the availability of an appeal in which the trial procedures and resulting orders can be reviewed and remedied if there has been a misjustice.[4]
[4] R v H, GJ [2014] SASCFC 34 at [21].
In this matter, it is not known what Ms Ledo might say if she were called to give evidence. As such, the Court cannot be satisfied that her evidence has been affected by the conversation with Mr Mileson. To enliven the discretion to stay the prosecution of the charges against him as an abuse of process, Mr Fry must demonstrate that the trial would be “necessarily unfair” such that it would result in a miscarriage of justice.
As the Court in R v H, GJ said, “[it] will often be the case that it is not possible to confidently say whether the trial of an accused will be unfair until the conclusion of the trial”.[5] The Court went on to explain that the administration of justice is not brought into disrepute “for a trial to proceed when there is a reasonable prospect that an accused will not be forensically prejudiced even if, ultimately, it proves not to have been possible to secure the accused a fair trial, because the miscarriage can be corrected on appeal”.[6] Further, the administration of justice is more likely to be brought into disrepute if a criminal trial is stayed “on the ground of apprehended unfairness without attempting to redress that unfairness by adopted trial procedures which have good prospects of affording the accused a fair trial”.[7]
[5] [2014] SASCFC 34 at [21].
[6] [2014] SASCFC 34 at [22].
[7] [2014] SASCFC 34 at [22].
A fundamental element of the administration of the criminal law is a public trial of allegations of criminal offending. For the community, those accused of criminal conduct, and complainants, it is imperative that allegations of criminal conduct are determined in open court so that the evidence underpinning the conviction or acquittal of an accused is a matter of public record.[8]
[8] R v H, GJ [2014] SASCFC 34 at [23].
Irrespective of any reluctance or refusal of Ms Ledo to attend court (of which there is no evidence), if Mr Fry’s solicitors considered that she had relevant evidence to give, it is within their remit to ask the Court to issue a summons to witness compelling her attendance at trial. The Court also has the power to summons Ms Ledo.
Significantly, Ms Shaw’s affidavit does not state that Mr Fry’s solicitors had spoken with Ms Ledo following her conversation with Mr Mileson, does not assert that Ms Ledo had refused to come to court, nor that Ms Ledo was “frightened off” by Mr Mileson. Further, there was no submission made to the Magistrate that anyone spoke to Ms Ledo after her conversation with Mr Mileson, or that she had chosen not to be a witness at the trial.
Conclusion
The ruling was based on a finding of fact without supporting evidence. In the absence of any evidence to justify the conclusion that after speaking with Mr Mileson Ms Ledo chose not to be a witness at trial, the decision to stay the proceedings is flawed. The reversal of the onus on the application leading to the conclusion that there was nothing to prevent the Court from finding Ms Ledo was frightened off by Mr Mileson and the unfounded assumption that Mr Mileson’s discussion with Ms Ledo was unfair or improper compounded that error of fact. The ruling is affected by error and cannot stand.
The exercise of the discretion to stay the proceedings was further flawed as there was no assessment of what the Court could do in the conduct of the trial to relieve against the asserted unfair consequences of the conversation between Mr Mileson and Ms Ledo.
There is no evidence of an improper attempt to discourage Ms Ledo from coming to court nor any attempt to persuade Ms Ledo to alter the matters she deposed to in her affidavit. Mr Mileson said he wanted Ms Ledo to tell the truth as she remembered it. I agree that the reference to the prosecution evidence or the CCTV by Mr Mileson in his discussion with Ms Ledo was appropriate and consistent with the matters that would have been put to Ms Ledo at trial and consistent with the prosecution’s duty to comply with Browne v Dunn.[9] Mr Mileson would have been entitled to show the footage to Ms Ledo and ask her whether she recognised the person captured on the footage. Mr Mileson’s comment to Ms Ledo to the effect that if she gave evidence in court that she knew not to be true, she could potentially be subject to criminal proceedings would have been better not said. However, it does not, in the circumstances of this matter, result in an unfairness, particularly when there is no evidence of Ms Ledo’s response to the comment.
[9] Browne v Dunn (1893) 6 R 67.
As contended by the appellant, Mr Mileson’s actions did not deprive Mr Fry of an alibi, and at most they may have reduced the weight of Ms Ledo’s evidence. There is no evidence before the Court that allows for findings to be made about Ms Ledo’s response to the impugned conversation without hearing her evidence. All the Court has is the affidavit of Ms Ledo deposing to matters relevant to Mr Fry’s alibi and Mr Mileson’s affidavit deposing to his interpretation of his conversation with her. If during the discussion, Ms Ledo expressed doubt about matters she deposed to in her affidavit – a matter yet to be determined – that is not an unfairness warranting a stay of the proceedings.
This is not an extreme case of the nature identified in Jago where there is a fundamental defect going to the root of the proceedings enlivening the discretion to order a permanent stay the proceedings.
Accordingly, I set aside the order of the Magistrate staying the proceedings and order that the matter proceed to trial before a different Magistrate.
0
2
1