R v Bell (No. 5) - [2023] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BELL (NO. 5)
[2023] SADC 90
Reasons for Decision of his Honour Judge Stretton
13 July 2023
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF SYSTEM
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
The defence applied for questions concerning decisions as to joinder, severance, separate trials and the admission of discreditable conduct evidence delivered on 29 June 2023 in R v Bell (No. 4) [2023] SADC 78 to be reserved to the Court of Appeal for consideration and determination prior to trial. The matter has been listed for trial five times since 2019, and the current trial was meant to have commenced on 14 March 2023, but has still not commenced due to ongoing defence pre-trial applications. A referral would mean the current trial date will likely be lost and the trial will be likely delayed at least a further year. A reservation should not be made if per section 153(3) of the Criminal Procedure Act 1921 the trial will be unduly delayed.
Held: A reservation would unduly delay the trial. In the circumstances it is not appropriate to reserve the matter.
Criminal Procedure Act 1921 (SA) s 153, 153(3); Criminal Law Consolidation Act 1935 (SA) s 350(3), referred to.
R v Bell (No. 4) [2023] SADC 78 ; R v Tran [2017] SASFC 99 , discussed.
R v Gee & Thaller [1999] SASC 116; R v Elliott [1996] HCA 21; R v Liddy [2001] SASC 116; Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; George (a pseudonym) v The Queen [2022] SASCA 66; R v Bell [2019] SADC 45; R v Bell [2020] SADC 107; Bell v The Queen; ICAC v Bell [2020] SASFC 116; R v Bell [2022] SADC 140; R v Bell (No. 2) [2023] SADC 24; R v Bell (No. 3) [2023] SADC 25; R v Bell (No. 4) [2023] SADC 78, considered.

R v BELL (NO. 5)
[2023] SADC 90

The accused is charged on Information with 26 counts of theft and the dishonest manipulation of documents.
The matter has been listed for trial five times since 2019.
The most recent, indeed current, trial date is 14 March 2023, however the last four months since that time have been predominantly[1] taken up with ongoing defence pre-trial applications. There are more pre-trial applications still to deal with.
[1] A little over two weeks delay was occasioned by illness to counsel.
The application
This is a defence application that the issues of joinder, severance and the admission of discreditable conduct evidence raised by the defence and consequently determined in the Court’s ruling in R v Bell (No. 4) [2023] SADC 78 (‘the Judgment’) should be referred to the Court of Appeal for determination prior to trial.
The application is governed by section 153 of the Criminal Procedure Act 1921[2] (‘the Act’). The section provides that a trial court may reserve a question for consideration and determination by the Court of Appeal. However, section 153(3) provides that unless required to do so by the Court of Appeal, the trial court must not reserve a question if reservation of the question would unduly delay the trial or sentencing of the defendant.
[2] And its predecessor section 350(3) of the Criminal Law Consolidation Act 1921.
Accordingly, this court cannot make a referral of its own motion if to do so would unduly delay the trial of the defendant.
Reserving a question of law during a criminal trial should in any event only occur in unusual or exceptional circumstances.[3] The law has long recognised that undue fragmentation or interference with the conduct of a trial is to be avoided where possible.[4] It should only occur where appropriate in all the circumstances.[5]
[3]     R v Gee & Thaller [1999] SASC 116.
[4]     R v Elliott [1996] HCA 21, R v Liddy [2001] SASC 116, Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260.
[5]     R v Gee & Thaller [1999] SASC 116, George (a pseudonym) v The Queen [2022] SASCA 66.
The issue sought to be referred
In short, the defence application is that the Court of Appeal should be asked whether the findings as to joinder, severance, cross-admissibility of charged counts and the admissibility of each category and item of discreditable conduct evidence made in the Judgment, were correct. The defence seek six separate trials, and the exclusion of the discreditable conduct evidence.
The charges, evidence, a summary of submissions and the conclusions are set out in the Judgment and are unnecessary to repeat.
Procedural history
It is unnecessary to repeat the long procedural history of the matter, best understood by reference to past judgements:
·R v Bell [2019] SADC 45
·R v Bell [2020] SADC 107
·Bell v The Queen; ICAC v Bell [2020] SASFC 116
·R v Bell [2022] SADC 140
·R v Bell (No. 2) [2023] SADC 24
·R v Bell (No. 3) [2023] SADC 25
·R v Bell (No. 4) [2023] SADC 78
The application for six separate trials was filed 5 days prior to trial on Thursday 9 March 2023, and raised in court on the morning of trial, Tuesday 14 March 2023. Another recently filed application was then initially argued over the ensuing month.
Then followed a very extended course of written submissions and oral argument as set out over paras [6]-[22] of the Judgment. Final oral submissions in reply were made on 26 June. The Judgment was delivered on 29 June 2023.
The basis submitted for referral
The defence submits that the Judgment was wrong in failing to sever the information into six separate trials, wrong to rule the evidence in support of each count cross-admissible, and wrong to admit the proffered discreditable conduct evidence.
The defence submits that the primary legal question for the consideration of the Court of Appeal is whether the case of R v Tran [2017] SASFC 99 upon which reliance is placed in the Judgment to support the admission of evidence of a ‘dishonest system’ said to be necessary to colour and understand each individually otherwise colourless financial transfer or use of document, is inapplicable outside of drug trafficking cases. The defence submit it is inapplicable, and also that the admission of discreditable conduct evidence must be strictly approached by identifying the specific ‘fact-in-issue’ that the piece of discreditable conduct evidence is directed to, and weighing it accordingly.[6]
[6] Defence oral submissions. This is only a brief reference to the submissions, the detail of which is unnecessary for present purposes to set out.
The defence submits that the matter should accordingly be referred on the basis that the trial is estimated to last four months, and with the prosecution case involving 93 witnesses and expending significant resources, it is in the public interest that the trial commences ‘on the correct legal footing’, minimising the risk if the accused is convicted, of a successful appeal which would necessitate a retrial.[7]
[7] FDN 227 - Defence Written Submissions.
The prosecution submits that the Judgment reflects the application of well-settled principles of law to the facts of the case in terms of joinder and admissibility, which it is not appropriate to ask the Court of Appeal to ‘double-check’ before proceeding to trial.
The prosecution also submits that the Court ought not delay the proceedings with a case stated, as the weight of delay is already significant in this matter, noting the commencement date of the trial was 14 March 2023, the number of prior trial dates, the passage of time, and the considerable stresses and difficulties being occasioned in the ongoing delay of a trial with 93 witnesses waiting to give evidence.
The Court has regard to all of counsel’s arguments, however for brevity and to, for obvious reasons, deliver a timely ruling, they are not all set out. They have all been heard and considered, as have the tendered affidavits in support.
Undue delay
The offences are alleged to have been committed between 2009 and 2013.
The DPP charged the accused in 2017 and he was committed to the District Court in 2018, with the initial trial date in 2019.
As mentioned, the fifth and current trial date was/is March 14, 2023.
It is now 13 July 2023.
There is understandably no way to know how long it would take the Court of Appeal to hear, consider and rule, were this matter reserved for their consideration and determination.
At first instance there were many hundreds of pages of written submissions and supplementary materials tendered, and ten full days of oral submissions. The matter will not be simple or brief before the Court of Appeal.
The Court was informed by counsel that Court of Appeal matters are currently being listed in October 2023, although the Court was also informed that there have been instances in the past where a matter can be heard more urgently. Hearing the matter is only one thing, delivering judgments is another, and hence the time a referral might take no matter how soon it could be listed, is understandably unknowable.
As all this time passes, in the bigger picture no-one’s interests are being served. The memories of all concerned, both witnesses for either side and the accused himself, will fade. Potential forensic disadvantage due to the passage of time will mount. The process of justice becomes less and less timely.
As all this time passes, there will be mounting practical challenges and difficulties, where 93 witnesses are being held in abeyance on subpoena month after month, and upon a referral would continue to be held for even longer and to an even less determinable future time.
Consequently, if the matter is referred, even if managed with some priority, there can be no guarantee when it would conclude with delivered judgements, such that this present fifth trial date will on balance be lost, and the matter will need to be allocated a sixth trial date. That will likely be some distance away given the need to again accommodate witness, counsel, and courtroom availability, unlikely to be before 2024.
Trial duration
The trial is presently estimated by counsel to run for four months.
The duration of any severed trial will depend to some extent on any change in the admissibility of discreditable conduct evidence that the Court of Appeal might decide; however, a very substantial proportion of the evidence will need to be called in all of any severed trials, and even so if no discreditable conduct evidence were to be admitted.
Conclusion
The court has carefully assessed the history of the matter. The court has regard to the circumstances apparent from the previous judgments in the matter, from the tendered affidavits and chronologies, and all the material provided whereby the matter has had to be delayed and adjourned on so many occasions.
Weighing up everything put, tendered and submitted, in light of the clarity of the applicability of Tran, and the consequent lack of an obviously controversial legal issue justifying pre-trial clarification and determination by the Court of Appeal, together with the admissibility of discreditable conduct evidence being a straightforward application of section 34P to the facts of the case, together with the likely delay and loss of trial listing that will on balance occur, with the consequence of delaying the trial for at least another year, against a backdrop of five years since committal to this court, it would not be appropriate pursuant to section 153 of the Act to refer the matter to the Court of Appeal for consideration and determination.
In these circumstances referring the matter to the Court of Appeal would also in my opinion unduly delay the trial of the defendant, and in those circumstances section 153(3) provides that a referral cannot be made.