R v C, SP - [2019] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, SP
[2019] SADC 23
Reasons for Decision of His Honour Judge Slattery
21 February 2019
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
By Information for arraignment on 6 April 2018 the accused was charged with one count of aggravated assault causing harm, one count of aggravated threatening life and two counts of rape. The complainant was the wife of the accused.
The depositions filed by the Director of Public Prosecutions (DPP) contain factual allegations of other conduct of the accused which the DPP intended to lead on a non-propensity basis. The accused issued a Rule 49 notice seeking the exclusion of a portion of this material from the evidence.
The DPP then filed and delivered the Information for arraignment on 20 February 2019 alleging three counts of aggravated causing harm with intent to cause harm, three counts of aggravated threatening life and two counts of rape. The substratum of facts relied upon for the second Information is the same as for the earlier Information. No further depositions were filed. The second Information also charged two further counts, the allegations about which were also contained in the filed depositions.
The accused sought a stay of the Information for arraignment of 20 February 2019. The accused alleged that in light of the operation of Rule 3 of the District Court Criminal Rules 2014 and settled authority there should be the grant of a stay and that the matters proceed on the original Information.
The complaint of the accused was procedural and no prejudice was alleged by him.
Held:
1. Application dismissed.
2. The filing and delivery of the Information for arraignment on 20 February 2019 was consistent with the operation and the requirements of the rule.
3. The Information of 20 February 2019 works no unfairness upon the accused and ensures the fair treatment of the accused consistent with the principles of the due administration of justice.
District Court Criminal Rules 2014 rule3, rule 49(1)(d); Evidence Act s 34P, referred to.
Rona v District Court (SA) 63 SASR 223; Williams v Spautz (1992) 1 74 CLR 509; Grassby v The Queen (1989) 168 CLR 1; Jago v District Court (NSW) (1989) 168 CLR 23; R v Nieterink (1999) 76 SASR 56, discussed.

R v C, SP
[2019] SADC 23

Application made by the accused for a permanent stay of the Information for arraignment on 20 February 2019.
By Information for arraignment on 6 April 2018 the accused was charged with one count of aggravated assault causing harm, one count of aggravated threatening life and two counts of rape. The complainant is the wife of the accused. By Information for arraignment on 20 February 2019 the accused is charged with three counts of aggravated causing harm with intent to cause harm, three counts of aggravated threatening life and two counts of rape. It is common ground that the factual substratum supporting the counts on the Information of 20 February 2019 is not different from the factual substratum of information to be found in the filed depositions said to support the Information for arraignment on 6 April 2018.
The grounds in support of the application of the accused are set out in paragraphs 1-11 of the accused’s Application for Directions 15 February 2019. They read as follows:
1On 28 February 2017 Mr C was arrested and charged with the offences of Aggravated Assault Cause Harm, Threaten Life and 2 counts of Rape.
2On 1 March 2017 Mr C appeared in the Adelaide Magistrates Court in relation to Information 17/Y18610 charging Mr C with the offences of Aggravated Assault Cause Harm, Aggravated Threaten Life and 2 counts of Rape.
3On 3 August 2017 Mr C appeared in the Adelaide Magistrates Court and the Director of Public Prosecutions sought, and was granted, leave to amend Count 1 on Information 17/Y18610 by removing one aggravating circumstance namely ‘threat of use of a weapon’.
4On 1 February 2018 Mr C entered pleas of not guilty to the four charges on Information 17/Y18610 and was committed to the District Court of South Australia for trial.
5On 6 March 2018 the Director of Public Prosecutions forwarded by email a District Court Information dated 6 April 2018 charging Mr C with Aggravated Assault Causing Harm, Aggravated Threatening Life and 2 counts of Rape (“the old District Court Information”). Those charges are in identical terms to the charges on the Magistrates Court Information 17/Y18610.
6On 6 April 2018 Mr C was arraigned in the District Court of South Australia and entered pleas of not guilty to the four counts on the old District Court Information. A trial date was set for 18 February 2019. There was no suggestion that the matter was not ready for trial.
7On 13 June 2018 a directions hearing was convened.
8On Tuesday 12 February 2019 the applicant filed an application pursuant to rule 49(1)(h) seeking to exclude, inter alia, evidence of uncharged acts.
9On Wednesday 13 February 2019 the Applicant filed an amended application pursuant to rule 49(1)(h) seeking to exclude an additional piece of evidence.
10On Thursday 14 February 2019 the Director of Public Prosecutions forwarded by email a copy of a new Information dated 20 February 2019 charging the Applicant with 8 offences (“the new District Court Information”).
11The new District Court Information differs from the old Information in the following significant ways:
a.Count 1 is a new charge (the conduct it relates to was previously an uncharged act);
b.Count 2 is a new charge (the conduct it relates to was previously an uncharged act);
c.Count 3 is the same as Count 2 on the old District Court Information.
d.Count 4 is a new charge (Aggravated Causing Harm with Intent to Cause Harm) and relates to the conduct the basis of Count 1 (Aggravated Assault Causing Harm) on the old District Court Information.
e.Count 5 is a new charge (Aggravated Threatening Life).
f.Count 6 is the same as Count 3 on the old District Court Information.
g.Count 7 is a new charge (Aggravated Threatening Life).
h.Count 8 is the same as Count 4 on the old District Court Information.
In support of the application, the accused refers to and relies upon rule 3 of the District Court Criminal Rules 2014 and the decision of King CJ in Rona v District Court (SA).[1] Rule 3 relevantly reads as follows:
[1] (1995) 63 SASR 223 at 227.
(1)The objects of these Rules are to—
(a)establish orderly procedures for the conduct of the business of the Court in its criminal jurisdiction;
(b)promote the just and efficient determination of such business; and
(c)facilitate the timely disposal of such business at a cost affordable to the parties and the community generally.
(2)These Rules are not intended to defeat a proper prosecution by or frustrate a proper defence of a party who is genuinely endeavouring to comply with the procedures of the Court.
(3)Proceedings in the Court will be managed and supervised with a view to best attaining the objects in subrule (1).
(4)These Rules are to be construed and applied, and the processes and procedures of the Court conducted, so as best to attain the objects in subrule (1).
The relevant passage from Rona upon which the accused relies is as follows:
The case management rules are designed to ensure, inter alia, that the cases for the prosecution and the defence are prepared, that all necessary amendments are made, that necessary notices are given and that statements of any additional prosecution witnesses are supplied to the defence, in good time before trial so that the trial will proceed on the day fixed and the time allocated for the trial will not be wasted. It is essential to the proper management of cases that both the DPP and the accused comply with the directions which are given, carry out undertakings made and adhere to assurances given, at the status conferences held in accordance with those Rules. Only in that way can a trial be accorded which is fair to both parties without waste of the limited public resources committed to the court system. The court must therefore insist on the parties including the DPP acting in that way. Only thus can the court “protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike” and prevent the “erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice”: Williams v Spautz (at 520).
I consider therefore that the conduct by the DPP of a prosecution other than in accord with the procedural directions given by the court or the undertakings and assurances given to the court, may amount to an abuse of the process of the court and found the jurisdiction to stay the proceedings. If that were not so the DPP would be immune from the case management regime and “[t]he power of a court to control its own process and proceedings”, Jago v District Court (NSW), per Gaudron J (at 74), would be defeated.
The issue in this application is the question of the management and supervision of a proceeding in this Court with a view to best obtaining the objects in subrule (1)(a), (b) and (c). These rules and subrules are to be construed and applied and the processes and procedures of the Court conducted so as to best obtain those objects.
In his submissions, the accused, through his counsel Ms Powell QC, relied substantially on the decision of King CJ in Rona, especially at page 227 as set out above. In Rona, the accused instituted an action for judicial review seeking an order in the nature of certiorari to quash an order made by a judge of the District Court and for a declaration that the judge was wrong in law in only imposing a stay of one count of four on an Information. The DPP commenced an identical application seeking the quashing of the order to stay count 4 on the relevant Information.
The material facts of Rona were that a first Information was laid in the Adelaide Magistrates Court on 22 July 1992 alleging four counts of false pretences. On 15 February 1993, a further Information was laid charging four counts of fraudulent conversion. That second Information was dismissed for want of prosecution. On 11 March 1993, the accused was committed for trial on the original Information. On 8 April 1993, the DPP filed an Information alleging four counts of false pretences. There were two preliminary attendances where defence counsel asked for confirmation from the DPP that this last Information set out the allegations to be met at trial. At both preliminary attendances and especially the second on 25 May 1993, the DPP announced that “…the charges remained as they are…” and orders were made for the filing of any further depositions. An order was made that any amendment to that Information was to occur before 12 July 1993, for a trial to occur on 7 September 1993.
The DPP did not comply with the directions in relation to witness statements and then on 31 August 1993 the DPP sent to the accused’s solicitors by facsimile a new Information alleging four counts of fraudulent conversion, same as for the second Information. The Court was later told by the DPP that it now considered that these were the appropriate charges. The trial judge made an order staying count 4 on the Information because the DPP acted contrary to directions given at a status conference held under the Court’s case load management system.
King CJ discussed the power of a Court to stay criminal proceedings for an abuse of process and then made the comments at 227 which are set out above. Consistent with the application of settled authority,[2] King CJ was not attempting to establish immutable rules on the application of principle. In Rona, King CJ held that a failure of the DPP to act in accordance with the directions of the Court or upon undertakings and assurances given to the Court in that case amounted to an abuse of process and grounded the jurisdiction of the Court to order a stay (at 229). The matter was then remitted to the trial judge for further consideration.[3]
[2] Williams v Spautz (1992) 1 74 CLR 509 at 520; Grassby v The Queen (1989) 168 CLR 1 at 16-17; Jago v District Court (NSW) (1989) 168 CLR 23 at 26.
[3] Mohr J agreed with King CJ; Olsson J separately agreed with King CJ.
In her submissions, Ms Powell QC for the accused did not point to any direction of the Court that had been contravened by the DPP or any undertaking or assurance that was given to the Court that had been breached by the DPP. Ms Powell conceded that the new Information did not take the accused by surprise, the substratum of facts on the prosecution case were not different and that no new declaration material has been provided or was sought by the accused. Her focus was upon other procedural matters.
The trial had been set some 12 months ago and the accused had prepared for that trial based upon the first Information. Ms Powell conceded that in the depositions, there was a very large amount of what is described as Nieterink[4] background material. Ms Powell said that there would be a challenge to the admissibility of that material at trial. Ms Powell conceded that this material has always been known by the accused and his advisors and hence Ms Powell’s concession of no surprise. Ms Powell submitted that despite that concession, this background information was inadmissible and a Rule 49 notice has been filed. There will be a preliminary contest about the admissibility of this evidence in any event. Her principal complaint was that although this background evidence informs the new counts on the information and is well understood by the accused, the delivery of the fresh Information is an abuse of process.
[4] R v Nieterink (1999) 76 SASR 56.
The accused argues that this Information is properly to be seen as a response to the accused’s rule 49 notice seeking the exclusion of the evidence concerning that “background information”. This was, in effect, a “moving of the goalposts” by the DPP and amounted to a manipulation of the Court’s processes. Ms Powell submitted that the Court should set its face against such conduct and it has a duty to protect its own processes.
I am unable to accept these submissions. There can be no doubt that in particular factual circumstances (as in Rona) the late filing of a fresh Information will constitute an abuse of process and attract an order for a stay. That is not this case. Here, under the first Information, there is a very large amount of background material in the declarations which alleges violent uncharged conduct by the accused against the complainant. The charged conduct was within a more limited scope and so the question will arise about the admission of this background material on a Nieterink non-propensity basis.
In his submissions, Mr Martin for the DPP conceded that upon a proper assessment of the first Information, the charged conduct did not properly reflect the information held by the police. The Information of February 2019 really only alleges two additional acts: one of violence in the family car after the family had returned from their trip to China and the complainant had disclosed the accused’s alleged behaviour to other members of his family. In the second, there is a charge relating to an event on 14 February 2017. Mr Martin for the DPP submitted that as prosecutor, he held a fear of there being duplicity because of the absence of real concision about conduct alleged against the accused. The fresh Information remedies that problem. This clarification and concision was appropriate as a matter of fairness to the accused.
Mr Martin conceded that there was no s 34P Evidence Act notice as the uncharged material was to be introduced into evidence for Nieterink-style non-propensity purposes. By so doing, the jury would obtain an understanding that the offences charged did not occur in isolation. The jury would thus have an understanding of the background in which the offences occurred and the jury would also have an understanding of the escalation of the accused’s violence towards the complainant and why the complainant ended her resistance. These factors all sit in the background that the accused’s violence allegedly increased the more the complainant remained silent. In that background, it became necessary to properly charge the accused with offences connected with the other allegations made which were well familiar to the defence and had to be addressed one way or the other.
The accused has made no allegation of prejudice allegedly suffered by him as a result of the fresh Information. Nor has the accused submitted that in general circumstances, there is any absolute preclusion of the DPP making late amendments to an Information that work no unfairness upon the accused and in fact ensure that the accused is treated fairly, consistent with the principles of the due administration of justice.
I am not assisted by the references to the decision of King CJ in Rona which is an example of the application of well settled principle to the facts of that case. Nothing that has been put to me satisfies me that the establishment of orderly procedures for the conduct of the business of the Court, the promotion of just and efficient determination of the business of the Court and the facilitation of the timely disposal of the business of the Court have been prejudiced or put at risk. To the contrary, I am satisfied that the new Information more properly satisfies each of the requirements of the rule because it is fairer to the accused. Nothing has been put to me that satisfies me that the prosecution is not in any way genuinely endeavouring to comply with the procedures of the Court or that the proceedings in the Court are being used in any way contrary to best obtaining of the objects of the Rule.
I am satisfied that in the application of the Criminal Rules of this Court, for all of the reasons discussed, the filing of this amended Information does not and has not interfered with the best attainment of the objects of rule 3 of the Rules.
For those reasons, I dismiss the application.