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 sufficient record of the fact that it was offered but not accepted.
The next step is that the existing indictment should remain but that a new indictment dated 21 March 2013 presented by the Commonwealth Director of Public Prosecutions is presented against Gregory John Dunn, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace charging them jointly as follows:
The Commonwealth Director of Public Prosecutions informs the court that between about 15 August 2002 and 17 June 2004 at Perth in the State of Western Australia and elsewhere, Gregory John Dunn, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace (nee Cammiade) did conspire with each other and Trevor Neil Thomson with the intention of dishonestly causing the loss of a Commonwealth entity contrary to subsection 135.4(8) of the Criminal Code (Cth).
There are then formal details required by the Criminal Procedure Act completing the regularity of the indictment. It is proposed that Mr Dunn should be called upon to plead to that indictment when he is ready to be arraigned, not necessarily today, and that on some suitable occasion in the future the other three accused should be rearraigned on the new indictment.
The acceptance of that indictment would follow a process referred to by the Court of Appeal in the Supreme Court of Victoria in the case of Director of Public Prosecutions v Geoffrey Guariglia [2012] VSCA 105, a decision of Nettle and Osborn JJA and Cavanough AJA in May 2012 as a process of 'filing over the existing indictment'. Their Honours refer at [21] of that decision to the practice as follows:
Putting aside the application of the Criminal Procedure Act, the Crown would have the right to file over a fresh presentment at any time before arraignment and, after arraignment, with leave.
citing an earlier decision of the Court, R v Harris & Ors (No 2) [1990] VR 305 in the judgment of Ormiston J at 306 ‑ 307.
The Court continues:
If it were to do so, proceedings on the original presentment would be stayed and the accused would need to be rearraigned on the filed over presentment. The trial of the accused would then commence.
If that is the practice to be adopted, there is some question as to whether or not the new indictment would constitute the same proceedings. The observations of their Honours in the High Court in Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260 at [88] suggest that they will be the same proceedings and should be treated as the same proceedings. One consequence of this would be to preserve the efficacy, effect, and final effect of orders already made in the existing proceedings, including all of the orders which I have already mentioned and, importantly, to preserve any actual or inchoate rights of appeal which any of the parties may have arising from those orders.
I mention these matters because a close scrutiny of the Criminal Procedure Act suggests that s 132, dealing with amending charges in indictments, does not appear to address the situation which needs attention here, namely the bringing into existing proceeding of an additional accused after an indictment has been filed and the trial commenced even through interlocutory stages as here; nor does it appear that the provisions of s 87 dealing with the discontinuance of a prosecution, such as was proposed yesterday, are suitable because one consequence of them, as set out in s 87(6), is that the Court must discharge the accused from the proceedings which are discontinued, which is certainly not the wish or intention of the prosecution.
I am satisfied that the practice referred to in the Victorian Supreme Court should be followed. I notice with some reassurance that it is consistent with the practice followed and approved in England in joining persons or charges separately committed or transferred for trial as described in the 2012 edition of Archbold at par 1.293.
Therefore, I will accept the new indictment as being filed over the existing indictment. I note the election of the prosecution to proceed on the new indictment and there will be a stay of any further proceedings on the former indictment if that be necessary.