Police v S, E - [2005] SASC 312

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
POLICE v S, E
Judgment of The Honourable Justice Vanstone
16 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Appeal from decision of magistrate in the Youth Court to grant permanent stay of prosecution - respondent charged with three road traffic offences - prosecution failing to produce two eyewitnesses at trial - magistrate declining to further adjourn - permanently staying prosecution on ground of incurable prejudice to respondent - whether magistrate's decision open to him - appeal allowed, matter remitted to Youth Court.
Road Traffic Act 1961 s 46; Motor Vehicles Act 1959 s 81; Magistrates Court Act 1991 s 9; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 9B; Australian Road Rules r 20, referred to.
R v Apostilides (1984) 154 CLR 563; Grassby v R (1989) 168 CLR 1; Jago v District Court (NSW) (1989) 168 CLR 23; Gray v Police (2003) 85 SASR 1; Ferguson v Reid [2005] SASC 240; Barton v R (1980) 147 CLR 75; Walton v Gardiner (1992-3) 177 CLR 378; DPP V Shirvanian (1998) 44 NSWLR 129; Williams v Spautz (1991-2) 174 CLR 509; R v O'Brien (1996) 66 SASR 396, considered.

POLICE v S, E
[2005] SASC 312
Youth Court Appeal: Criminal

VANSTONE J: The police appeal against the decision of a magistrate, sitting in the Youth Court, to permanently stay the prosecution of the respondent (“S”) upon a complaint charging him with three driving offences.
The charges arose from an incident which occurred at Tranmere on 26 August 2003. The respondent was the driver of a motor vehicle which came into collision with a brick fence. At that time, there were two teenage female passengers in the vehicle. The respondent was charged with driving in a manner dangerous to the public, contrary to s 46 Road Traffic Act 1961, exceeding the default speed limit, contrary to regulation 9B Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 and rule 20 Australian Road Rules, the speed alleged being 118 kilometres per hour, and disobeying a condition endorsed upon his probationary driving licence, contrary to s 81 Motor Vehicles Act 1959.
The prosecution case comprised principally the evidence of a person said to be skilled in “accident reconstruction” who formed an opinion, based on the behaviour of the motor vehicle leading up to the collision, and certain marks left by its contact with the roadway, that the vehicle was travelling at a speed between 118 and 128 kilometres per hour just before the collision.
The trial of the matter commenced on 31 January 2005. Before any evidence was led, Mr A. Moffa, who appeared for the respondent, suggested to the magistrate that, whilst it would not be disputed that the respondent was travelling at a speed in excess of the relevant limit, the extent of his speed would be challenged. Furthermore, Mr Moffa foreshadowed that the real issue in the trial of the matter would be the respondent’s contention that prior to the collision his foot became jammed between the accelerator and the brake pedal, causing him to lose control of the vehicle.
There was then discussion as to whether the police prosecutor should call the two passengers in the car, as part of the prosecution case. I shall refer to them as “Ms U” and “Ms O”. The magistrate was told that, over the telephone, Ms U had provided a statement to the investigating officer, which included the following passage:
At about 10.55 p.m. on Tuesday the 26^th of August 2003 I was the front passenger in motor vehicle SA WXR 518, which was being driven by [S]. My friend [Ms O] was seated in the rear of the vehicle. I met [S] through friends a couple of months ago, and we are friends.
At this time we were on our way to get dropped off to Prue’s house. [S], [Ms O] and I had just been driving around seeing friends.
I am not sure what roads we were driving on but as we travelled down one of the roads I noticed [S] appeared to be trying to pull his foot away from the accelerator, and I think he had his foot stuck between the brake and the accelerator. As [S] was trying to pull his foot free, the vehicle accelerated.
I don’t drive so I’m not a good judge of speed, but I think we were travelling between 60 km/h – 80 km/h as [S] was trying to pull his foot out. [S] then pulled up the handbrake.
The vehicle then skidded in a straight line down the road, over Glynburn Road, and into a fence where it stopped. I am not sure what caused [S’s] foot to get stuck, but I don’t think he was trying to show off.
The magistrate was told by the prosecutor that Ms U was not believed to be a “witness of truth and credit” and that he did not plan to call her or present her to give evidence. There was discussion about the relevant principles and reference was made to R v Apostilides (1984) 154 CLR 563. The magistrate expressed the view that mere inconsistency between a witness’ statement and the prosecution case was no justification for declining to call the witness. He said the witnesses should be called. Private discussions then took place between the police prosecutor and Mr Moffa. It was agreed that the police statements comprising the prosecution case could be tendered, without need of producing the witnesses, and that the matter would be adjourned for the police to locate Ms U.
The police prosecutor then tendered, with Mr Moffa’s consent, the statement of the investigating officer, Constable Tristan Graham, who attended at the accident scene and spoke briefly to the three occupants of the vehicle. He attributed to Ms O a statement made soon after the accident, to the effect that she did not wish to “get involved” and did not know at what speed S was driving, or what caused the collision. The statement also recorded that S admitted he was the driver of the vehicle, but subsequently refused to undergo an interview. The police prosecutor also tendered statements of Sergeant Brian Mills, which supported the opinion as to speed earlier related, and a statement of Mr Christopher Graham, a mechanic, who expressed the view that the behaviour of the vehicle was not affected by any mechanical defect. Further, the unsigned statement of Ms U, earlier referred to, was marked for identification. The trial was then adjourned.
On 15 April 2005 the matter resumed. No transcript of the proceedings on that day is available, but it seems that the witnesses, Ms U and Ms O, were both then in attendance. In the meantime, Ms U had provided a statement to the police, this time a signed statement, in which she recanted the contents of her earlier unsigned statement. That statement is not before me but I understand that, in the fresh statement, her position was that she did not support the assertion that S’s foot had become jammed between the foot controls of the vehicle. Rather, her position now was generally in accord with the ‘reconstruction’ opinion. Ms O, too, had provided a statement. Again, it is not before me, but the magistrate described it as being ‘consistent with the police version’. I proceed on the assumption that the later position taken by the witness did not support S’s defence as foreshadowed. However, on this occasion no evidence was taken, as Mr Moffa sought an adjournment of the trial in order to attend a funeral. That application was granted. The matter was adjourned to 20 May.
There is no transcript of what occurred on 20 May 2005. However, affidavits have been filed by both the prosecutor and by Mr Moffa. There are some areas of dispute, but I do not think that anything turns on them. On this occasion the police prosecutor informed the Court that since the last hearing, Ms U had emigrated to New Zealand and would not be returning. (Surprisingly, this appears to have been the first notice given to the court and the defence of this eventuality.) He further advised that Ms O had been subpoenaed to attend, but had not appeared. Apparently, time was allowed the prosecutor to attempt to contact Ms O, but he was unsuccessful. The prosecutor sought an adjournment of the matter to make further inquiries, but it was not granted.
The magistrate acceded to a submission by Mr Moffa that, due to the absence of the two witnesses, the matter should be permanently stayed. He gave reasons for that decision. The magistrate set out something of the history of the matter. He noted that on the first hearing he had “ruled” that Ms U and Ms O should be called to give evidence “… to enable the defence to cross‑examine …”. He went on to say as follows:
The situation is therefore that [Ms O] and [Ms U] are not present. Both of them have given new statements that are apparently inconsistent with, in the case of [Ms U], an earlier written statement and in the case of [Ms O] an earlier verbal statement. [Ms U] will never appear before the court. [Ms O] is not here and I have declined to give any further adjournments to enable her to attend given the nature of the charge and the fact that the accused is a youth. In my view, the fact that neither girl is present, they are not able to be cross-examined and they are the only eye-witnesses to the event other than the accused himself creates a prejudice against the defendant which cannot be cured. In those circumstances it is appropriate that I order a permanent stay of prosecution.
It seems clear that a Magistrates Court, hearing a prosecution of a summary offence, has the power to stay the proceedings to prevent an abuse of its process. That would appear to be an incident of the power given to the court to hear and determine such charges, or of the general power of a court to ensure fairness: s 9 Magistrates Court Act 1991; Grassby v R (1989) 168 CLR 1, 16-17 per Dawson J; Jago v District Court (NSW) (1989) 168 CLR 23, per Mason CJ at 31, per Deane J at 58, and per Gaudron J at 74; Gray v Police (2003) 85 SASR 1; Ferguson v Reid [2005] SASC 240.
Such a power is to be used only in exceptional circumstances: Barton v R (1980) 147 CLR 75; Jago per Mason CJ at 34, per Gaudron J at 76; and the decision whether to use the power involves a balancing exercise. In Walton v Gardiner (1992-3) 177 CLR 378, at 395-396, the High Court described the contest as follows:
As was pointed out in Jago (49), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are 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. (footnotes omitted)
The significance to be attached to the need to maintain general confidence in legal process was starkly underlined by Mason P in DPP v Shirvanian (1998) 44 NSWLR 129, 134:
No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last-mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes.
In addition, before staying a prosecution for fear that, if allowed to proceed, the trial will be unfair, the court must be “satisfied that an unfair trial will ensue unless the prosecution is stayed”: Williams v Spautz (1991-2) 174 CLR 509, 519 per Mason CJ, Dawson, Toohey and McHugh JJ.
With these principles in mind, I return to consider the facts of this matter. As a preliminary observation, I note that it seems to me that the magistrate undertook for himself a role in respect of the exercise of the prosecutor’s discretion to which he was not entitled. The decision to call or not call a witness remains that of the prosecutor, and that decision is not susceptible of review by the trier of fact. Nor, indeed, is it a critical factor in the evaluation of grounds of appeal by an appellate court: R v O’Brien (1996) 66 SASR 396, 398; Apostilides at 575‑578. It is not for a magistrate or judge to direct a prosecutor to call a witness as the magistrate relates, in his reasons, he did here. That misapprehension of the relevant principles seems to have pervaded the manner in which the matter proceeded.
Furthermore, I consider that the magistrate was in error in declining to grant an adjournment for the purpose of the prosecutor ascertaining the whereabouts of Ms O, and then using her absence as part of the justification for the permanent stay of the proceedings. Whilst one can understand the magistrate’s frustration at the police having failed to have even one of the two witnesses at court, when it seems the prosecutor had agreed he would, the fact remains there may well have been good reason for Ms O’s absence and any inconvenience to the defendant could have been met.
The more important witness, especially from the point of view of the defence, was Ms U. As related, when she originally made an oral statement to police, she had given some support to the contention that the defendant had lost control of the car because of his foot becoming lodged. She had occupied the front passenger seat of the motor vehicle and, therefore, was in a position to know whether or not that had, indeed, occurred. However, one of the many difficulties with the course adopted by the magistrate was that, at the time when his order was made, there was no evidence before the court from any quarter that any such thing had occurred. The defendant had not given evidence. Indeed, it was not even clear that he planned to. Until S’s evidence was given to the court – if indeed it was to be – there could be no means of determining the significance, if any, of evidence which Ms U, and indeed Ms O, might give. In making that observation, I do not mean to imply that the magistrate should have delayed any decision as to a stay until that time. On the contrary, in my view, the order staying the proceedings should not have been made at all. But it does seem to me that the magistrate assumed a great deal for the purpose of a foundation for his order. In addition, he seems to have ignored the fact that the two witnesses, if called, were unlikely to have assisted the defendant’s case. It seems that the magistrate treated the prosecution obligation to call persons whose evidence was essential to the unfolding of the narrative as being an absolute one and to have equated a failure to do so with an erosion of the right of the defendant to a fair trial.
There is at least one more difficulty about the position the magistrate seems to have adopted. The duty imposed on a prosecutor to call relevant witnesses is subject to a number of qualifications. One of those relates to the availability of the witness. It does not follow that, simply because a witness is beyond the reach of the court’s jurisdiction or cannot be located or has died or has lost his mind, that the defendant, being deprived of his evidence, cannot have a fair trial. Similarly, there will be cases where, as here, the price of securing the attendance of the witness may not seem to be justified in terms of the nature of the charge faced by the defendant. In those last-mentioned cases, there may be means of taking the witness’ evidence via affidavit, or video or audio link. If there is no resort to those means then, ultimately, it will be a question for the appellate court as to whether a miscarriage of justice may have occurred by reason of the absence of the relevant witness. By that statement, I do not imply that there will never be cases where the absence of a witness may not properly lead to a stay of proceedings. However, having regard to the principles as earlier referred to, I consider that the case of S was very far from being one warranting such an exceptional remedy. On the contrary, this case appears to me to be one in which the existence of the prosecution duty has been allowed to be used, in a tactical manner, as a weapon against it.
I propose to make the following orders:
1.Appeal allowed.
2.Order of the magistrate of 20 May 2005 staying the prosecution of the charges against S set aside.
3.Matter to be remitted to the Youth Court, differently constituted, for determination of the charges.