R v B, Da
[2010] SADC 58
•6 May 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, DA
[2010] SADC 58
Ruling of Her Honour Judge Bampton
6 May 2010
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Criminal Law Consolidation Act 1935; Young Offenders Act 1993, referred to.
PNJ v The Queen (2009) 83 ALJR 384; Bastistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; Jago v The District Court of New South Wales (1989) 168 CLR 23; R v McGee & McGee (2008) 102 SASR 318; Gilham v The Queen (2007) 178 A Crim R 72; R v Nemer (2003) 87 SASR 168; The Queen v Perre [1986] 41 SASR 105, considered.
R v B, DA
[2010] SADC 58
DB (the accused) makes application pursuant to Rule 8 of the Supreme Court Criminal Rules 1992 for a stay of an information dated 6 April 2009. He is charged with one count of aggravated causing harm with intent to cause harm pursuant to section 24(1) Criminal Law Consolidation Act 1935 (CLCA).
Background
It is alleged that the accused and his brother GB assaulted AW on 13 September 2008. It is also alleged that the accused and his brother were in company with each other and armed. GB was also charged with the same offence arising from the same circumstances. The prosecution could not proceed by way a of joint information as GB was a juvenile at the time of his offending and his matter proceeded to a guilty plea in the Youth Court on 11 December 2009. It is because the accused and his brother were not dealt with jointly that the situation giving rise to the Rule 8 application has arisen.
Rule 8 Application
The Rule 8 application was filed on 21 April 2010 (the application). Attached to the application is a copy of the sentencing remarks of Judge Prescott dated 11 December 2009 and a copy of the draft prosecution opening in respect of this matter. An affidavit of the accused’s solicitor, Emma Alexandra Wilkinson sworn 23 April 2010 was tendered in support of the application.
The Director tendered an affidavit of Tarryn Rebecca Amos dated 22 April 2010 (the Amos affidavit) and David Mark Westover sworn 27 April 2010 (the Westover affidavit) in opposition to the application.
Outlines of argument were also filed and served by the Director and on behalf of the accused.
Accused’s submissions
The accused seeks an order staying the prosecution from proceeding on the Information in the manner outlined in the draft prosecution opening.
The accused contends that during the sentencing proceedings concerning his brother before Judge Prescott in the Youth Court on 11 December 2009, the prosecution accepted the injuries caused to AW “that make up the offence are solely the responsibility” of GB. (Youth Court sentencing remarks at p5).
The accused argues that the Director now seeks to prosecute the offence on the basis that he was one of two who actually inflicted the injuries. In support of this contention the accused relies on the proposed Crown case particularised in the draft prosecution opening arguing it is contradictory to the basis of fact agreed by the prosecution during the sentencing proceedings in the Youth Court and which forms the basis of GB’S sentence.
It is submitted that the prosecution leaves the court with no choice but to be urged to make contradictory findings in respect of the same crime alleged. Accordingly, the accused says that a stay is the appropriate remedy for the prosecution’s proposed course of action. The accused says relying on the principles enunciated in PNJ v The Queen (2009) 83 ALJR 384, at paragraph 3, that the continued prosecution of this matter amounts to an abuse of process in that it exhibits two of the three characteristics identified by the High Court, namely:
(b) The use of the courts procedures would be unjustifiably oppressive to a party and
(c)The use of the courts procedures would bring the administration of justice into disrepute.
The accused submits it is clear by reference to the affidavits tendered by the Director that the prosecution statements have not changed. The prosecution in the Youth Court presented a factual basis for sentence urging the court to find only one person, namely GB, actually inflicted the harm. The accused submits that it is unjustifiably oppressive to him to prosecute the case in the manner outlined in the draft opening. He argues that there would be no complaint if the prosecution had actively opposed the factual basis for the sentence in the Youth Court in line with the evidence anticipated from the statements. In that situation a court would have to make a decision based on sentencing principles. Accordingly, the accused submits that seeking to conduct the trial in the manner proposed would bring the administration of justice into disrepute.
Further, if he or the prosecution called GB as a witness then it would be inevitable that the prosecution would have to urge the court to accept his version of events as a credible account. The accused submits the only proposal he can suggest in respect of curing any unfairness to him, is that the court rule that no evidence may be led alleging that he actually inflicted harm to AW. He argues his trial would then focus on what liability if any, his state of mind produces that would allow the offence to be proved. In other words, his liability should only be determined for this charge based on accessorial liability. The accused contends that to compromise the prosecution in this manner is capable of bring the court into disrepute in the eyes of a reasonable observer and accordingly he urges the court to grant the exceptional remedy of a stay.
Prosecution Submissions
GB was prosecuted by the Young Offenders Unit.
The Director’s solicitor who has the conduct of this matter, deposes in the Amos affidavit to having been instructed to make an application under section 17 of the Young Offenders Act 1993 to have GB tried as an adult. The application made before Senior Judge McEwin on 19 April 2009, was refused and the conduct of GB’s matter was resumed by the Young Offenders Unit.
GB entered a plea of guilty to a single count against section 24(1) of the CLCA on 19 October 2009 and Judge Prescott heard submissions in mitigation on that day.
The Director refers to the transcript of the proceedings before Judge Prescott, annexure A to the Westover affidavit, contending the submissions made by the police prosecutor imply the prosecution allege that GB and the accused were acting in joint enterprise when AW was assaulted. Further it is submitted, counsel for GB “accepted” what the police prosecutor put as a “reasonable amalgam” of the content of the prosecution’s statements but said there were a number of factual differences between those statements and what his client said. Counsel for GB made the following submissions.
1. GB struck AW to the head with the bottle.
2. The co-accused was not carrying an axe.
3. Acknowledged some difficulty between GB and Mr H.
4. AW to get in the way of the car.
5. Could not say what the co-accused’s intentions were.
6. The co-accused followed him out of the car to watch his back.
Counsel for the Director points out no evidence was given or called on behalf of GB before the sentencing judge, although the judge was clearly prepared to hear evidence. The Director submits it is evident from the transcript of proceedings that counsel for GB quite deliberately sought to avoid that from occurring.
It was during the sentencing judge’s remarks on 11 December 2009 that GB’s counsel interrupted and submitted the factual basis outlined in the sentencing remarks was disputed, although as counsel for the Director points out, he did not state what facts were actually disputed. (Page 4, Annexure C, to the Westover affidavit). GB’s counsel re-stated his view that GB was to be sentenced for hitting AW with the bottle. The Director argues that “There was nothing at odds with that submission in what had fallen from the learned sentencing judge’s reasons. The police prosecutor accepted that GB was to be sentenced for hitting AW with the bottle to the head, which caused the injuries seen in the photographs. It appears that neither the learned sentencing Judge, counsel for GB or the police prosecutor had the transcript of proceedings of 19 October, before them.” (para 38 of Prosecution Outline of Argument).
The Director submits that the case to be brought against the accused has been disclosed and is well known to him. There is no fresh evidence sought to be led against him or alteration of the prosecution case.
The Director points out that the accused was not a party to the Youth Court proceedings. Nor was he the subject of any determination or finding of fact in the Youth Court. Further, the sentencing judge made it quite clear he was not concerned with the accused’s conduct and made no reference to him or his conduct during submissions or in his sentencing remarks. The Director argues the accused cannot avail himself of the incontrovertibility principle.
The Director also contends that the police prosecutor who had the conduct of the matter in the Youth Court did not make any concession with respect to the accused’s role, apart from agreeing that GB could be sentenced upon the basis that he assaulted AW with a bottle.
The Director argues, the accused incorrectly asserts that the prosecution actively presented a factual basis for sentencing urging the court to find only one person, namely GB inflicted the harm. The Director argues the police prosecutor’s submissions as to the facts set out in paragraph 33 of the Prosecution Outline are broadly consistent with the case disclosed and sought to be brought against the accused in the District Court. They unambiguously allege that the accused and his brother were in a joint enterprise to assault AW. The factual basis for the submissions outlined in the paragraph 33 are found in the statements of the witnesses to be called by the prosecution at the trial.
The Director contends that it cannot be unjustifiably oppressive to the accused to lead admissible evidence if it has been fully disclosed to him in a timely fashion before trial. The Director points out that the applicant alleges unfairness in being tried on the admissible evidence but does not articulate the nature of the unfairness. It cannot be, submits the Director, on the basis of a factual finding at sentence in another jurisdiction to which the accused was not a party and to which the principles of incontrovertibility do not apply.
Stay of proceedings
The court has inherent jurisdiction to order a stay of its proceedings to prevent abuse of its processes. This discretionary power will only be exercised by the court in exceptional circumstances.
As stated by the High Court in Bastistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at para 9, it is not possible to exhaustively list circumstances that will amount to an abuse of process. In Jago v The District Court of New South Wales (1989) 168 CLR 23 (Jago), Mason CJ at 33 described the test to be applied by a court in considering whether to exercise its discretion and order a stay as follows:
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial. At the same time, it should not be overlooked that the community expects trials to be fair... The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused. … In any event, a permanent stay should be ordered only in an extreme case …
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”
[Citations omitted.]
The question for determination on this application is, does the continuation of the prosecution against the accused unjustifiably oppress him or bring the administration of justice into disrepute or does there exist “a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” per Mason CJ in Jago at p34.
Shortly stated, what is the unfairness or prejudice to the accused in the continuation of the prosecution against him?
Principle of Incontrovertibility
Doyle CJ in R v McGee & McGee (2008) 102 SASR 318, (McGee) at para [71] approved the remarks of the New South Wales Criminal Court of Appeal in Gilham v The Queen (2007) 178 A Crim R 72, where Hidden J and Latham J agreed at para [206]-[207]:
“… I see no reason why facts “found” in the sentencing process should be elevated so that they cannot be controverted in other proceedings. Those facts are not “found” for the purpose of a finding of guilt or innocence but rather for the purpose of establishing culpability of an offender whether the jury has found him to be guilty … or he has acknowledged his guilt … by entering a plea.
The view that the incontrovertibility principle does not operate in relation to findings of fact in the sentencing process is most readily accepted where, … the facts are found without a contested hearing. In that circumstance the court has not been asked to determine between competing versions of events or make its own finding. The role of the judge has been confined to acceptance of the evidence agreed by both parties.
In McGee Doyle CJ stated at para [75]
Having regard to the nature of sentencing proceedings, I consider that a number of practical difficulties would arise if findings made in such proceedings could not be controverted …there is no joinder of issue in sentencing proceedings in a way in which there is at trial. … There can be no appeal against a finding of fact in the course of sentencing … To accept Mr Game’s submission would be, in my opinion, to accept that issue estoppel arises in sentencing proceedings, an approach rejected by the High Court.
And at para [77]
… I do not consider that controverting the findings gives rise to unfairness or oppression … but I do not consider it to be unfair that (the) issue should be re-litigated in other proceedings, even though they arise out of the same circumstances. If, as I consider to be the case, the DPP is at liberty as a matter of law to re-litigate the issue, the fact that that is to happen cannot amount to oppression or unfairness calling for a stay.
As noted by Counsel for the Director, the sentencing discretion is to be exercised in accordance with the law and public interest and can not be fettered by plea bargaining or agreements reached between the defence and prosecution. Further, the prosecutor in a sentencing process has a responsibility to assist the court by putting submissions but then the court must reach its own conclusion as to the factual basis upon which to sentence the offender. R v Nemer (2003) 87 SASR 168, per Doyle CJ at 173.
When an accused wishes to be sentenced upon a basis inconsistent with sworn depositions or there are reasonable inferences that can be drawn from them, the accused bears the onus. In The Queen v Perre [1986] 41 SASR 105, King CJ held:
The sentencing judge is ordinarily required to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed therein, he must do so by sworn evidence. … Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence upon a basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which maybe in conflict with inferences of primary facts which are open to the judge … the defendant may give evidence or call evidence … or by way of submissions by his counsel … The decision as to the basis upon which sentence is to be imposed, is not, … a matter for the prosecution but for the judge.
Conclusion
The accused asserts he will not receive a fair trial due to the following statement made by the police prosecutor during the sentencing of his brother for the same offence arising out of the same circumstances:
…. so the injuries sustained that make up the offence are solely the responsibility of this defendant and nobody else.
The accused says as a result of this statement the prosecution effectively abandoned the axe and the bat as a cause of the injuries and abandoned the accused. Accordingly, he contends the prosecution is bound by what occurred in the Youth Court. The accused argues that for the prosecution to change its stance and prosecute the matter in the manner foreshadowed in the draft prosecution opening and potentially attack the credit of GB in a situation where they have supported his position in the Youth Court is an abuse of process.
The accused asserts unfairness but the only articulation of unfairness I can glean is the difficulties he perceives would be encountered if GB were called to give evidence and in his defence of the matter generally. He says the unfairness created by the prosecution changing its stance about the joint responsibility for the crime can not be overcome by any direction or ruling.
In summary the accused was not before the Youth court, he was not a witness and there was no finding of fact in relation to his conduct on 13 September 2008. The sentencing of GB was not a contested hearing.
As submitted by counsel for the Director, it was not for the prosecution, it was for GB to call evidence which he did not do. By reference to the annexures to the Westover affidavit, there has been no abandonment by the prosecution of any matter in relation to the accused apart from acceptance that GB hit AW with a bottle and he could be sentenced on that basis.
The “impugned” statement made in the Youth Court, must be viewed in its context. It was made during an uncontested sentencing proceeding in the Youth Court, a jurisdiction underpinned by a different sentencing regime and philosophy to this court. If the statement has the status of a fact or finding during the sentencing process on 11 December 2009, as contended by the accused, according to Doyle CJ in McGee the prosecution is not prevented from controverting it in these proceedings. If that were to occur, I do not consider it gives rise to any unfairness or is oppressive, warranting a stay of proceedings.
Having regard to the written and oral submissions of counsel, the affidavits tendered and the authorities referred to above, I am not satisfied that in allowing the prosecution to continue would be unjustifiably oppressive to the accused such that he would not receive a fair trial or that to proceed would bring the administration of justice into disrepute. The accused has not articulated the nature of unfairness he asserts he will suffer if the prosecution continues. He has not demonstrated he can not receive a fair trial.
Accordingly, I refuse to order a stay of the proceedings.
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