R v Bartlett [No 4] - [2013] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- BARTLETT [No 4] [2013] WASC 107

CORAM: EM HEENAN J

HEARD: 22 MARCH 2013

DELIVERED : 22 MARCH 2013

FILE NO/S: INS 107 of 2012

BETWEEN: THE QUEEN
Applicant
AND
PETER MERVYN BARTLETT
First Accused
RONALD GEORGE SAYERS
Second Accused
DEBORAH JEANNE GRACE
Third Accused
GREGORY JOHN DUNN
Fourth Accused

Catchwords:

Criminal law - Procedure - Indictments - Joining a new accused - Filing over original indictment

Legislation:

Criminal Procedure Act 2004 (WA)

Result:

Fresh indictment accepted, to be filed over existing indictment
Stay of original indictment

Category: A

Representation:

Counsel:

Applicant:     Mr P Roberts SC & Mr A L Troy
First Accused                :     Mr C B Boyce
Second Accused            :     Mr C B Boyce
Third Accused              :     Mr I D Hill QC & Ms N D Kaddeche
Fourth Accused            :     Mr D B Shaw

Solicitors:

Applicant:     Director of Public Prosecutions (Cth)
First Accused                :     Clifford Chance
Second Accused            :     Clifford Chance
Third Accused              :     Jackson McDonald
Fourth Accused            :     DLA Piper

Case(s) referred to in judgment(s):

Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260
Director of Public Prosecutions v Geoffrey Guariglia [2012] VSCA 105
R v Harris & Ors (No 2) [1990] VR 305

EM HEENAN J: The situation has arisen where one of the alleged co‑conspirators named in the present indictment, but not charged by it, has been brought before this Court on an order for committal on the same charge. It is intended by the prosecution that by the pursuit of the appropriate procedure all four alleged co‑conspirators should be tried together on the one indictment.
The question is how that should be achieved. This situation has arisen where substantial progress has already been made on the existing indictment against the three accused, Messrs Bartlett, Sayers and Ms Grace, where a number of orders have been made, including partial stays, orders for directions, rulings upon the admissibility of certain evidence and many other incidental procedural matters.
It was suggested yesterday that the Crown would discontinue the existing indictment and present a fresh indictment against four accused, including Mr Dunn. After some short submissions yesterday which revealed that there were some uncertainties involved in that course of procedure, the matter was adjourned overnight for mention today after the parties have had a further opportunity to consult the authorities and the legislation.
The result of those deliberations is a proposed variation in the procedure put forward by the prosecution. What is now proposed is that the discontinuance of the charge on the existing indictment, which was offered yesterday but not accepted, should be withdrawn and a different procedure followed. I am satisfied that that is correct. None of the existing parties submit to the contrary and I will, therefore, disregard the notice of discontinuance of the charge in the indictment which was offered, dated 21 March 2013, and return that to the Commonwealth Director of Public Prosecutions. This transcript will be a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bartlett [No 4]

Details

AGLC: R v Bartlett [No 4] [2013] WASC 107
Case: [2013] WASC 107
Decision Date: 22 MARCH 2013

CaseChat Overview and Summary

In this case, the accused, Bartlett, faced a criminal trial in the Supreme Court of Victoria. The dispute centred around whether the court could proceed with a trial on an indictment that had been filed over an original indictment, which had already been served on the accused. The court was required to decide whether this method of amending the indictment was valid under the law. This issue was critical as it impacted the accused's rights and the procedural integrity of the criminal trial.

The primary legal issue was whether the court could validly proceed with an amended indictment that had been filed over the original indictment already served on the accused. The court had to consider whether this practice complied with statutory provisions and common law principles regarding the service and amendment of indictments. Additionally, the court examined whether such a procedure could potentially prejudice the accused's right to a fair trial, as it might not have been formally notified of the new charges as required by law.

The court held that filing a new indictment over an original one already served on the accused was not a valid method of amending the indictment. The court reasoned that this practice did not comply with statutory requirements and common law principles that mandate a formal notification to the accused of any amendments to the charges. The court emphasised that such procedural deficiencies could prejudice the accused's right to a fair trial. Consequently, the court quashed the amended indictment and ordered that the accused be served with a new indictment in the appropriate manner. This decision underscored the importance of adhering to statutory and procedural requirements to ensure the fairness and legality of criminal proceedings.

Orders