R v Cappelluti No. DCCRM-99-143

R v DOMENIC CAPPELLUTI
[2001] SADC 29

Judge Lunn
Criminal

REASONS ON APPLICATIONS FOR A PERMANENT STAY FOR ABUSE OF PROCESS AND FOR AMENDMENT OF THE INFORMATION

Abuse of Process

By an Information laid on 15 March 1999 the accused was charged with causing grievous bodily harm with intent to do grievous bodily harm and in the alternative with assault occasioning actual bodily harm. He has pleaded not guilty. The matter has had a checkered history in this Court, but it is not necessary to go into much of it.
The prosecution case as disclosed by the declarations is that on 1 October 1998 the accused hit the victim over the head with a pickaxe handle which caused him serious head injuries. The victim alleges that the accused had attended at his home with several other men. A declaration was lodged from Alanah Campbell and she was named on the back of the Information as a witness. On the declarations lodged she is the only eye witness to the alleged assault apart from the victim. Without going into details some of what she has said in her declaration and elsewhere is relevant to issues of self-defence and causation of the victim’s injuries.
A declaration was also lodged from Karyl Higginson who at the time was the defacto spouse of the victim. She spoke of some dealings between the accused and the victim leading up to the alleged assault, but she was not a witness to it. She was not named on the Information as a witness. She has since disappeared and is unavailable to be called as a witness at a trial.
The case was listed before me for a trial to commence on 15 January 2001. (It had previously been listed for a trial to commence on 17 January 2000 but it had not proceeded.) The trial did not occur on the 15 January 2001 because an essential medical witness was not available. The prosecutor indicated on that day that the whereabouts of Alanah Campbell were unknown and the prosecution intended to proceed with the trial without calling her. Defence counsel intimated that the accused wished to seek a permanent stay on the Information if Ms Campbell and Ms Higginson were not to give evidence for the prosecution. The matter was then adjourned for that application to be made.
At that time it was my firm understanding that any such stay application should be heard and disposed of before any further trial date was set. However, subsequently at the request of the DPP the date which was set for the stay application was also fixed for the commencement of the trial on the basis that the stay application would be dealt with as some form of voir dire hearing immediately before the trial. An application for a stay for abuse of process is governed by Rule 8 of Part IV of the District Court Rules 1992. It is not a voir dire application in the sense that it needs to be dealt with by the trial Judge. It can be dealt with by any Judge. Because of the complexity and difficulty of most such applications it is usually undesirable to list it in conjunction with a trial because the Judge may not be able to determine it without reserving his or her decision. This is what occurred here.
Rule 8.02 required that the application should have been filed before the accused had pleaded and that it should have been supported by an affidavit deposing to its grounds. The application was filed on 21 February 2001. No affidavit in support was filed. I gave leave under Rule 8.02 for the application to proceed as its late filing was unavoidable due to the time at which the alleged abuse had arisen.
The accused’s application came on for hearing before me on 27 February. The accused did not call any evidence on the application. The prosecutor called Detectives Tonkin and Carr who were the investigating police officers. They related their dealings with Alanah Campbell. They spoke of some contradictory statements which she had made to them about the matter and her general antagonism to the police and her lack of cooperation. On 3 November 1999 she had been served with a subpoena requiring her to give evidence at the first trial commencing on 17 January 2000. She had indicated she would not comply with that subpoena and had not attended at Court in answer to it. Subsequently she had disappeared. On 26 February 2001 she had been served in Whyalla with a subpoena made returnable for 28 February, but she had told the police in florid terms that she would not be complying with it. Counsel for the DPP in his address on the application said there was “probably somewhere between minus 1 and minus 2% chance” that Alanah Campbell would attend as a witness for the trial. He indicated that even if she attended he was not prepared to say that he would call her as a witness without first speaking to her and satisfying himself that she was a witness who should properly be called by the DPP. It is not necessary to go into much of the evidence which was given about her inconsistent statements and lack of cooperation. I then reserved my decision, but adjourned until 10am on 28 February.
Contrary to the confident expectations of the investigating police officers and both counsel Alanah Campbell did attend at Court on 28 February in answer to the subpoena. Having spoken to her the prosecutor indicated that he would be calling her and that he believed she would attend on any subsequent date on which the trial proceeded. Because of the time which had been occupied on the application it was no longer possible for the trial to proceed on this listing and it has been adjourned to 18 June 2001. However, counsel for the accused did not withdraw the application and requested that I rule upon it.
The onus of establishing the alleged abuse of process lies on the accused as the party alleging it: Williams v Spautz (1992) 107 ALR 635 at 649. The High Court there also said that the onus was a heavy one as a permanent stay was only to be granted in “the most exceptional circumstances”. There is surprisingly little discussion in the reported authorities on the questions of onus and evidentiary issues in applications for abuses of process. These questions loomed large here.
As the ultimate onus lay on the accused I called upon his counsel to adduce his evidence first. He did not dispute that was the proper course. However, he submitted that the accused should not be required to give evidence on this application about what his case at trial would be, what evidence he might be able to give in his own defence and about what other witnesses he might have available to him who he could call at the trial. He contended that it infringed his right to silence and it should not be held against him on this application if he had not disclosed what the defence case would be.
An accused cannot be compelled to give any evidence on his abuse of process application about what his case at trial might be or about anything else. However, if he does not give evidence, he may not be able to discharge the onus upon him to establish the alleged abuse. This is not a denial of his right to silence. It involves a tactical decision which he must make whether to put forward any evidence which he has at that stage of the proceedings. If he puts it forward and succeeds, the case goes no further which is to his benefit. If he does not put forward his evidence and the application fails, he can still ventilate on an appeal against any conviction that there has been a miscarriage of justice based on the same grounds as constituted the alleged abuse of process. Thus ultimately he is not prejudiced if he maintains his right to silence.
The only evidence which I have here upon which to decide the factual issues on which the alleged abuse is based is the depositions of the prosecution witnesses, the evidence of the two investigating police officers and a few agreed documents. There is very little which I can find with any confidence from that evidence about the likely course of the trial and whether it would be unfair to the accused.
In essence the contention of the accused was that as Alanah Campbell was expected to give some evidence which might be favourable to him on the issues of self-defence and causation it would therefore be an unfair trial for him if it proceeded without the prosecution calling her. While I am prepared to accept that that is a possibility, and even a reasonable possibility, there is also on the evidence which I have other at least equally reasonable possibilities which are consistent with a fair trial for the accused. For instance it may be that the accused himself will give evidence on the same matters of self-defence and causation as Alanah Campbell would speak of and that the accused will call as witnesses some or all of the other men who were allegedly in his company at the time who will also give evidence favourable to him on these topics. If that occurs, it is unlikely that the absence of Alanah Campbell would mean that he would not have a fair trial. Another possibility is that the victim may make concessions in his cross examination on at least some of the topics where Alanah Campbell’s evidence is relevant. On what I can properly infer about the likely course of the trial any absence of Alanah Campbell has not been shown on even the balance of probabilities, if that be the appropriate onus, to produce an unfair trial for the accused. In any event as she has now answered the subpoena and the prosecutor has indicated he will call her there is no basis to conclude that the accused will not receive a fair trial. (In his application the accused also relied upon the absence of Karyl Higginson, but in the course of argument his counsel conceded that nothing turned on that if Alanah Campbell was to give evidence.)
Although it was not approached from the point of view of the applicant satisfying the onus of proof, the conclusions which I have reached above are consistent with what Duggan J said in R v Von Einem (1991) 55 SASR 199 at 209:
“When the claim of an unfair trial is raised it is not enough to point to some event or series of events which have a potential for prejudice to the accused. Fairness to an individual accused is not the sole criterion. The remedy exists to prevent the court’s own processes from being abused. ………In Barton’s case (supra), Wilson J stressed the relevance of assessing the impact of any suggested unfairness on the trial process when he said:
......... “……… in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is 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. ……..’”
The evidentiary onus which is upon the accused to establish circumstances which give rise to the abuse of process is reflected by the requirement in Rule 8.02(b) that the application be supported by an affidavit. If there were relevant circumstances in the accused’s conduct of his defence which he wished to be taken into account, he was obliged to put them forward in an affidavit. For instance, if he had deposed that because of the blow which he was struck by the victim he had some amnesia which prevented him from giving evidence of what had occurred at that time, or if, he was not able to find the other men who had allegedly accompanied him so that he could call them as witnesses, they would be relevant matters to the alleged abuse. If his evidence on the application about these matters was accepted it, would have meant that the evidence of Alanah Campbell on these topics would have been more likely to be of significance in the context of the whole trial. However, no such evidence, or anything like it, was adduced.
Almost all of the reported authorities about the failure of the prosecution to call essential witnesses at trials are in the context of appeals where it has been contended after conviction that there had been a miscarriage of justice through the failure of the prosecution to call the particular witness at the trial. However, a conviction will only then be set aside where it has given rise to a miscarriage of justice viewed against the conduct of the trial as a whole: R v Apostilides (1984) 154 CLR 563 at 575; R v Suen (1987) 74 ALR 106; R v Albu (1995) 65 SASR 439 particularly at 444-5; R v Shaw (1991) 57 A Crim R 425; R v O’Brien (1996) 66 SASR 396. It is very significant that the Appeal Courts in such matters have had the benefit of being able to assess whether there was sufficient unfairness to the accused to give rise to a miscarriage of justice in the whole of the circumstances of the trial as they actually occurred. A Judge hearing an abuse of process application before trial cannot perform a similar exercise unless there is sufficient evidence before him or her about the likely course of the trial so that there can be a sufficiently certain finding made about whether circumstances giving rise to the alleged unfairness will occur or not. The likely reason why there are so few instances of stays for abuse of process ordered prior to trial based on the prosecution not calling an essential witness is that it is too difficult for an accused to satisfy the evidentiary requirements for the necessary findings. It should also be noted that in the standard authorities on the effect of a prosecutor not calling an essential witness, eg R v Apostilides (above); R v Lawson [1960] VR 37 at 40; R v Lucas [1973] VR 693 at 706; R v O’Brien (above), a stay for an abuse of process is not referred to as being an option available to the trial Judge. While that does not mean that such an option does not exist, it suggests it would be very rare.
Mr Birchall for the accused cited four authorities which he submitted illustrated the power of the Court to stay proceedings by reason of the prosecution not calling a material witness. In each of Ngalkin (1984) 12 A Crim R 29, R v Walden (1986) 41 SASR 421 and Houston v Crannage (1989) 42 A Crim R 446 the issue was the effect of the prosecution not calling a particular witness at the committal proceedings. Each of these cases focussed on the significance of the inability of the accused to have cross examined the missing witness at the committal proceedings which was a right which each accused had on the legislation as it stood at the time of those decisions. However, in each of these cases the Court was dealing with the matter after the committal proceedings and so was aware of the course which those proceedings had taken. They were not dealing with the situation here of attempting to anticipate what might occur at the jury trial and as to what course the defence case might take at that trial. The fourth case cited by Mr Birchall was Boyce v Nunn (1997) 138 FLR 475 which was an appeal against a conviction on a summary trial. The issue there was whether there had been a miscarriage of justice and the Court was able to assess that in the light of all that had happened at the trial.
In Houston v Crannage (above) Malcolm CJ did say that the failure of the prosecution there to call a particular witness was prima facie sufficiently unfair so as to constitute an abuse of process. There the accused was charged with forging his grandmother’s signature. He had made a statement to the police that he had signed the document with her authority. It could be inferred that he would give evidence in his defence to that effect. The prosecution did not intend to call the grandmother and it was not suggested that it would not be proper for it to call her. Presumably, the prosecutor at the trial would have had to have submitted to a jury that it should reject the defendant’s evidence about him having the necessary authority. In those circumstances it is easy to understand why the Court concluded that there was sufficient unfairness to the defendant to justify a permanent stay of the proceedings before the trial had commenced.
Mr Birchall also cited by way of analogy three cases concerned with abuse of process through the destruction of evidence. The first was Duncombe-Wall v Police (1998) 197 LSJS 398. That was an appeal against a conviction on the grounds that the Magistrate had wrongly refused a stay of proceedings for an abuse of process based on the police having destroyed a tape recording of a relevant telephone call. Because the trial had subsequently proceeded to completion the Judge on appeal was able to make his finding of an abuse having occurred in the context of what had occurred at the trial. The next authority was Roberts (1999) 106 A Crim R 67 which was also an appeal against conviction where the trial Judge had prior to the trial refused a permanent stay for an abuse based on the prosecution having disposed of two trucks which were the subject matter of the charges. There the Judge’s refusal of the stay was upheld on appeal because in the context of the subsequent trial no sufficient unfairness for a stay had been demonstrated. It was also found to be significant that in the stay application the defendant had not been able to show that any examination of the trucks by an expert employed by him, which had been precluded by the prior disposal of the trucks, would have materially assisted in furthering the defence case. The third case was Holmden v Bittar (1987) 47 SASR 509. In this case a stay for abuse of process was imposed before trial. The defendant was charged with bringing tins of meat pate into Australia contrary to the Quarantine Act. Prior to trial the prosecution had destroyed the tins. Under the legislation the onus was on the defendant to show that the tins did not contain pate. As the defendants had been precluded by the destruction of the tins from obtaining expert evidence about the nature of their contents it is not surprising that the Court found in those circumstances that there was an abuse of process. None of these cases suggest that a mere possibility of prejudice to a defendant is sufficient to found an abuse of process. All of the cases affirm that permanent stays are only to be granted in extreme cases.
As it now appears most likely that Alanah Campbell will be called by the prosecution at the trial the accused’s primary application for a permanent stay must be dismissed. However, his counsel still pressed for a lesser alternative of a stay conditional upon her being called. I am not prepared to grant such a stay as I am not satisfied on the evidence before me that even if she was not called sufficient resulting unfairness to the accused has been established to justify a stay of proceedings. If she is not called to give evidence at the ultimate trial, it will be a matter for the trial Judge to deal with. Accordingly, the application of 21 February 2001 is dismissed.

Application to amend

The Information as originally laid made no reference to circumstances of joint enterprise. By an application of 19 January 2001 the prosecution sought to amend both counts to allege joint enterprise by adding the words “together with unknown males”. Notice of the amendments was only first given to the accused shortly before the application was made. In late 2000 the DPP had supplied to the accused’s legal representatives documents which indicated that Alanah Campbell had said to the police in their initial interviews with her that after the victim had been hit over the head by the accused with the pickaxe handle another male in the group which had come to the victim’s home with the accused had apparently kicked the victim in the head while he was lying on the ground. Subsequently she disputed having told the police this and it was not included in her signed declaration. However, it now appears that she will give evidence about some subsequent kick by another man. There is thus an issue of causation on both counts, but particularly on the first, concerning any such kick. Part of the reason that the accused wanted Alanah Campbell called at the trial was because she was the only prosecution witness who might give evidence of such a kick. Apart from the further declaration of Alanah Campbell, which I have not yet seen, the prosecution does not seek to lead any new evidence in relation to the proposed joint enterprise which was not contained in the previous declarations.

The amendments sought are to be allowed unless they would cause an injustice to the accused: Criminal Law SA, para [6415.5] and the cases cited there. The amendments sought do not take the accused by surprise and he will have adequate opportunity before the trial to prepare himself to meet them. The accused did not put forward any particular ground of prejudice which he would suffer by now having to meet an allegation that he was acting in concert with the other unknown men who had allegedly accompanied him to the victim’s home.
Counsel for the accused cited my decision in Rv Hart (1997) 194 LSJS 489 in the forefront of his opposition to the amendment. In that decision I held that the Court could preclude the prosecution from calling witnesses whose declarations were filed only shortly prior to trial in order to uphold the integrity of the Court’s caseflow management system.
I do not resile from anything which I said in R v Hart (above), but I am aware that in recent years this decision has been frequently cited in this Court in opposition to late witnesses and amendments in situations which are far removed from that which occurred in R v Hart. The crux of the decision in R v Hart was that at a pre-trial directions hearing an express direction was given by me that any further declarations were to be filed by a particular date. At that directions hearing the prosecutor opposed that direction being made and was told by me that if they were filed after that date “you are in big trouble”. The declaration in issue was filed after the fixed date and no explanation was given to justify it not having been filed by the fixed date. If there had not been an unjustified breach of the express direction for the filing of the further declaration, there would not have been a sufficient basis to impose a stay to uphold the integrity of the Court’s caseflow management system.
In this matter there was never any direction given by the Court that any amendment to the Information had to be sought by a particular date. In the directions hearings the prosecution did not give any intimation to the Court that it was necessarily proceeding to trial on the Information as laid. If any issue of a possible amendment had been raised at a directions hearing or the like, and the accused had sought it, doubtless the Court would have made an order requiring the application to amend to be filed by a particular date, but that did not occur. There is no rule or practice direction which requires applications to amend to be made by any particular stage in the proceedings. Thus here there is no proper basis upon which the Court could act to refuse the amendment in its discretion to uphold the integrity of its caseflow management system.
The amendments sought will be allowed.

[2001] SADC 29

8 March 2001