R v Chronopoulos
[2018] ACTSC 290
•28 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chronopoulos |
Citation: | [2018] ACTSC 290 |
Hearing Date: | 28 September 2018 |
DecisionDate: | 28 September 2018 |
ReasonsDate: | 26 October 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [70]. |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – application to adjourn trial date – cross application to stay proceedings until costs of accused are paid – unfairness to applicant – conditional stay of proceedings granted |
Cases Cited: | Dupas v The Queen [2010] HCA 20; 241 CLR 237 Glennon v The Queen (1994) 179 CLR 1 Zonneveld v The Queen (No 2) [2018] ACTCA 31 |
Parties: | The Queen (Applicant) Dimitri Chronopoulos (Respondent) |
Representation: | Counsel Mr J Walker (Applicant) Mr W Terracini SC with Mr D Berents (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Kamy Saeedi (Respondent) | |
File Numbers: | SCC 327 of 2017; SCC 328 of 2017 |
LOUKAS-KARLSSON J
Introduction
This was an application by the prosecution to adjourn the accused’s trial, which was set down for 8 October 2018. The accused at the hearing applied for an order staying the proceedings until the prosecution pays associated costs.
Chronology
As a result of a controlled police operation targeting drug trafficking, Mr Robert Masling and Mr Joel Lemmon were arrested in October 2016. In Mr Lemmon’s record of interview, he identified Mr Dimitri Chronopoulos (the accused) as the supplier of drugs he gave to Mr Masling that were then on-sold to an undercover police officer (UCO). Mr Lemmon and Mr Masling both pleaded guilty, and have been sentenced in the ACT Supreme Court.
The accused was summonsed to appear before the ACT Magistrates Court on 3 July 2017 in respect to one charge of dealing with proceeds of crime and three charges of trafficking in a controlled drug other than cannabis.
On 3 July 2017 a plea of not guilty was entered to all four charges and the accused’s matter was adjourned to 11 September 2017 for a pre-hearing mention.
On 11 September 2017, the charges were adjourned to 6 October 2017.
On 6 October 2017, the charges were adjourned to 2 November 2017, so that the prosecution could obtain outstanding brief documents.
On 11 October 2017, solicitors representing the accused emailed the prosecution requesting that they provide certain evidence that had not been included in the initial brief of evidence.
Also on 11 October 2017, the prosecution sent an email to the informant that asked for a number of mobile phone and telephone intercept (TI) materials to be provided for disclosure, particularly those intercepted between the accused, Mr Joel Lemmon, Mr Robert Masling and the UCO.
On 19 October 2017, the prosecution replied to the email from the solicitors representing the accused dated 11 October 2017, which indicated that the prosecution had received a “range of the requested/outstanding material from the informant, though not all of it”. The prosecution also indicated that there “will be delays while various other material, such as the TII, is transcribed”.
10. On 25 October 2017, the solicitors for the accused received a letter from the prosecution dated 24 October 2017, containing an updated schedule for the matter and detailing the contents of the brief of evidence and further material for inclusion in the brief, the further material including evidence of “telecommunications between parties (TI material)”.
11. On 30 October 2017, the solicitors for the accused sent an email to the prosecution pressing the disclosure of TI material relating to calls and conversations between Mr Masling, Mr Lemmon and the UCO, for the reason that “they are heavily referenced in the facts for the charges against our client and seem to form an integral part of the evidence against our client…”.
12. On 2 November 2017, the accused’s matter was again before the ACT Magistrate’s Court. Magistrate Boss on that occasion indicated to the parties that the matter must progress on the next occasion. The matter was adjourned to 4 December 2017 for a further pre-hearing mention.
13. On 4 December 2017, the charges were committed to the Supreme Court for trial and listed on 14 December 2017.
14. On 14 December 2017, the Registrar of the ACT Supreme Court (the Registrar) directed the prosecution to file their committal documents by 25 January 2018. The matter was adjourned to 8 March 2018.
15. On 24 January 2018, by consent, the Registrar granted the prosecution an extension to file their committal documents to 8 February 2018.
16. On 8 February 2018, by consent, the Registrar granted the prosecution a final extension to file their committal documents to 22 February 2018. The matter was adjourned to 29 March 2018.
17. On 19 February 2018, the prosecution emailed the informant asking for a number of items to be provided for disclosure, including the statement of the UCO and the TI materials. The email requested that the TI materials be provided as soon as possible.
18. On 23 February 2018, the prosecution and solicitors for the accused exchanged emails regarding the committal documents and the outstanding evidence.
19. On 26 February 2018, the prosecution further emailed the informant reiterating the need to disclose, amongst other things, the statement of the UCO and the TI Material, including the results of any ACESO procedures.
20. Also on 26 February 2018, the prosecution emailed the solicitors for the accused with a list of material still outstanding from the informant, including the statement of the UCO and the TI Material.
21. On 6 March 2018, the prosecution emailed the solicitors for the accused with the committal documents.
22. On 28 March 2018, the informant sent an email to the prosecution which included the following:
I will be handing you the following:
3 x disks containing TI communications
3 x disks containing images of drugs
3 x disks containing video of cash count at Giralang search warrant
3 x disks containing bank records
3 x disks containing tracking data.
23. On 29 March 2018, the matter was listed for directions and adjourned to 26 April 2018 for further directions.
24. On 7 April 2018, the prosecution emailed the informant providing an update on the matter, including information about the solicitors for the accused requesting outstanding material prior to the matter being listed for trial.
25. On 24 April 2018, the prosecution emailed the solicitors for the accused regarding the upcoming listing before the Registrar. The prosecution notes in the email that the informant has informed the prosecution that surveillance images and video are still coming.
26. On 26 April 2018, the solicitors for the accused emailed the prosecution indicating their position that the matter should go over for a further two to three weeks, subject to how long it will take for the outstanding evidence to be provided. The solicitor’s for the accused outlined their position that all of the evidence should be available before the matter is listed for trial.
27. On 26 April, the matter was adjourned to 24 May 2018 for further directions.
28. On 23 May 2018, the prosecution sent a letter to the solicitor’s for the accused containing a disc of surveillance images and video, and an updated schedule of evidence.
29. On 24 May 2018, the matter was listed for directions. Importantly, at the directions hearing, the prosecution indicated that the outstanding surveillance evidence had been disclosed and that the AFP had advised that it had no further material in relation to the matter. The matter was adjourned to 4 June 2018 for callover.
30. On 4 June 2018, the matter was set down for a judge alone trial on 8 October 2018.
31. Between 8 June 2018 and 8 August 2018, the prosecution conducted a review of the matter. At the conclusion of the review, the allocated instructing solicitor was of the view that there was outstanding material required to complete the brief of evidence.
32. Between 8 August and 12 September, the prosecution wrote a number of emails to the informant, corroborator and AFP Judicial Operations asking for outstanding material to be provided urgently, including:
a.Property seizure records.
b.Evidentiary certificates in relation to TI material (requesting full re-disclosure of all TI material to ensure everything had been accounted for).
c.Photographs and coversheets.
d.Police notes and front pages of police diaries.
33. The informant was on leave between 10 August 2018 and 18 September 2018.
34. Between 18 September 2018 and 27 September 2018, the prosecution and the informant exchanged a number of emails and phonecalls about the urgent need to disclose any outstanding evidence. The informant informed the prosecution on 18 September that the outstanding material included various other TI material, an ACESO on Mr Masling’s mobile phone, and evidentiary certificates for the accused’s phone.
35. On 20 September 2018, the prosecution emailed the informant requesting the outstanding TI material.
36. On 25 September, the informant emailed the prosecution to inform them that the product would be provided as soon as possible. The informant notes that once the audio is received, it will be provided to the prosecution so that it could be served on the solicitors for the accused, but noted that there would be a delay in the delivery of transcripts.
37. On 25 September 2018, the prosecution emailed the solicitors for the accused enclosing an updated schedule of evidence, a further witness statement and summary documents of the Call Charge Records (CCR) prepared by the prosecution. The prosecution also called the solicitors for the accused indicating that there would be an application to adjourn the trial. The solicitor’s for the accused indicated they would oppose that application.
38. On 26 September 2018, the prosecution emailed the Registrar to have the matter listed for an application to adjourn the trial.
39. On 28 September 2018, the prosecution spoke to the informant requesting an update on the further outstanding material. The informant stated that as at 27 September 2018, approximately 130 additional telecommunication intercepts had been obtained, but none of that material had been transcribed. As at 28 September 2018, that material was yet to be provided to the prosecution by the informant.
The Application to Adjourn the Trial
40. The prosecution’s application seeks the following orders:
1.That the respondent’s trial, listed to start on 8 October 2018, be adjourned;
2.Any other orders that the Court considers appropriate.
41. The grounds of the application are as follows:
1.It is in the interests of the justice to adjourn the trial
2.On 18 September 2018 the applicant became aware for the first time of call charge records (CCRs) that indicated police had not provided the applicant with up to approximately 200 telephone intercepts that, it is anticipated, will be relevant to the issues in the respondent’s trial.
42. The application was supported by the affidavit of Maree Skalistis affirmed on 28 September 2018.
The Application to Conditionally Stay the Proceedings
43. At the oral application, the accused made a cross-application to conditionally stay the proceedings pending the payment of costs.
Applicable Legal Principles
44. In Zonneveld v The Queen (No 2) [2018] ACTCA 31 (Zonneveld (No 2)), the Court of Appeal considered an interlocutory decision of Murrell CJ to refuse an application for a conditional stay of criminal proceedings pending the payment of certain costs by the prosecution. After a consideration of the authorities of Jago v District Court of New South Wales (1989) 168 CLR 23 (Jago); R v Bui [2011] ACTSC 102; 5 ACTLR 230 (Bui); R v Littler [2001] NSWCCA 173; 120 A Crim R 512 (Littler); and R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 (Fisher), the Court stated as follows at [25]-[27]:
25. The authorities plainly establish that a conditional stay pending the payment of costs should only be made where there have been exceptional circumstances. In Fisher the phrase “gross unfairness” was used. While this is not a precise description, it does appropriately illustrate the extent of unfairness which must exist.
26. Further, in deciding whether appropriate circumstances apply a court should look not only at the trial itself but at all of the circumstances which involve the process of the court from the instigation of a prosecution through to the ultimate trial. These circumstances may involve a consideration of costs incurred by a defendant in his or her defence of the charges that are faced. As stated by Deane J in Jago on page 57:
The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.
27. Ultimately it is necessary to look at whether or not a court’s process has been used in a manner that is unfair to the accused person. Also in Jago the Chief Justice said at page 28:
The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness.
45. Broadly, relevant considerations include the following:
(a)A conditional stay pending the payment of costs should only be ordered where there are exceptional circumstances;
(b)Those circumstances include all of the circumstances which involve the process of the Court, from instigation of a prosecution to trial;
(c)Those circumstances may involve a consideration of costs incurred by a defendant; and
(d)Whether the court’s processes been used in a manner that is unfair to the accused person.
46. In Bui, Refshauge J ordered a conditional stay pending payment of an accused’s costs. His Honour found that there had been “proved fault on the part of the prosecution which has caused the vacation of the trial date”. His Honour found at [98] that the following features of the case which made for “exceptional features” in favour of granting a conditional stay:
(a) that the accused, through his lawyers, flagged in detailed submissions at committal nearly two years ago, some of the gaps in evidence that have only recently been addressed;
(b) that there has been unwarranted and unexplained delay in obtaining and providing the evidentiary material to address these gaps;
(c) that this material was supplied very late and too close to the trial to permit the trial to proceed fairly on the date allocated over a year previously, at which time no intimation was given that further material was to be provided;
(d) that delay was also experienced prior to the committal proceedings when case management hearings were adjourned because of unpreparedness of the prosecution; and
(e) that reasonable requests, by the accused, for information to which it was fairly entitled have been met with obstruction and unreasonable delay.
Submissions
47. The accused submitted that the facts of this case qualify for the same exceptional circumstances labelled (a)-(e) as outlined by Refshauge J in Bui at [44]. The prosecution submitted that the use of “and” in the conjunctive sense in (d) required that if “one or two were not established to the same degree, or were not present at all”, that a case which shared only some of the same factors would not be an exceptional one.
48. First, in regards to (a), the accused submitted that they had flagged all of the material required to be served quite some time ago. In particular, the accused pointed to an email of October 11 2017, contained within the affidavit of James Maher, which noted that “any recordings (or transcripts) of lawfully intercepted information (phone conversations and text messages) involving Mr Lemmon, Mr Masling and UCO 1054210” had not been included in the disclose material thus far. The email further requests that the material is “made available prior to the next pre-hearing mention”.
49. In regards to (a), the prosecution agreed with the accused that the concerns were flagged well in advance. The prosecution submitted however that those concerns were first communicated “around October 2017”, being one year ago, as opposed to two years ago in Bui.
50. Second, in regards to (b), the accused relied on the affidavit of the prosecution and submissions made by the prosecution that “even as we speak, they can’t tell this court what is even in the material that we’re supposed to have the adjournment over”, including whether the material is exculpatory or inculpatory and when the material will be available. This demonstrated that the delay was unwarranted or unexplained.
51. In regards to (b), the prosecution submitted that the period of unwarranted or unexplained delay is shorter in this case than the period of two years identified in Bui, and that this reduced the potential for exceptionalism in this case.
52. Generally, in relation to (a) and (b), the prosecution submitted there was “nothing exceptional about what’s happened here, it’s just that it’s very sloppy”. The prosecution further submitted that the accused’s counsel
…quite rightly says we can’t say at this point whether the material is inculpatory or exculpatory. That’s because I haven’t’ had a chance to listen to it because the police haven’t given it to us despite repeated requests.
53. Third, in regards to (c), the accused submitted that it was only on the 18th of September, some ten days prior to the hearing of the application before me, that the accused was informed that the material was still outstanding. The accused further submitted that only the day before the hearing before me, they were informed by the prosecution that “the DPP doesn’t even know what’s in the material”. The accused further submitted that the accused had been summonsed in May 2017, and the offences are alleged to have taken place in 2016.
54. In regards to (c), the prosecution conceded that the material has been provided very late. The prosecution submitted that in Bui, the material was provided four days prior to the listing of the trial, whereas in this matter the material was provided ten days prior to the trial listing. The prosecution conceded that this was a very small question of degree. However, the prosecution submitted that the second aspect of (c), “to allow the trial to proceed fairly”, would not be satisfied in terms of granting a stay. The prosecution submitted that the reason the prosecution has sought an adjournment is so that it could ascertain what the outstanding evidence is, which is in both the prosecution and the “community’s interests in being able to prosecute serious offences and the accused’s interest in being able to have a fair trial”. The prosecution submitted that it is not the case that otherwise the trial would be “unfair”, but rather that the prosecution needs to know what the material is so that there can be a trial which meets the required description of a fair trial. The prosecution submitted that there could be a fair trial in this matter if there was an adjournment, as distinguished from Bui, where Refshauge J determined in light of all the circumstances that the trial could not “proceed fairly without a stay”. The prosecution submitted that the remedy in this case should therefore be an adjournment of proceedings rather than a conditional stay.
55. Fourth, in regards to (d), the accused submitted that committal proceedings were not relevant in relation to this matter. The accused further submitted nevertheless that the delays in the Magistrates Court were as a result of the lack of preparation of the prosecution. The prosecution conceded (d), and noted that that delays had been mentioned in the Magistrates Court prior to committal.
56. Fifth, in regards to (e), the accused submitted that there was a “plethora of conversations and requests” for information, including the same information relied on in regards (a). The accused referred to the ACT DPP Brief of Evidence Record provided on 25 October 2017. The accused submitted that each of the ticked items, including “Telecommunications between Parties (TI material)” refers to the fact that the solicitor’s for the accused understood that they had collected all such material. The accused also referred to an email of 30 October 2017, in which the solicitors for the accused specifically pressed the disclosure of the “calls and conversations between Mr Masling, Mr Lemmon and the UCO”, as they “seem to form an integral part of the evidence against our client, notwithstanding that our client is not mentioned”. The accused further referred to an email sent to the prosecution on 26 April 2018, noting that their position is that they should have “all of the evidence before the matter is listed for trial”.
57. In regards to (e), the prosecution submitted that a narrow reading of “obstruction” is appropriate, meaning simply “the requests were not answered” rather than the alternative interpretation that the prosecution has “prevented or done something to cause the evidence not to be disclosed”.
58. The accused also submitted that the act of the informant misleading the prosecution, and therefore misleading the Court and the accused, as to whether all the evidence had been provided, also qualified as an ‘exceptional’ circumstance in favour of granting a conditional stay.
59. The prosecution submitted that there were three further matters requiring consideration. First, the prosecution submitted that the accused is not in custody. The prosecution submitted that the fact the accused is on bail is “a factor that weighs in favour of an adjournment as opposed to a stay”.
60. Second, the prosecution submitted that the evidence to do with Mr Lennon’s credibility was disclosed at an early stage, and that as a result this was not a matter where costs had been thrown away analogous to the cases of Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302 (Petroulias) or Fisher. The prosecution submitted that a conditional stay is sought in matters where there is a second or third trial, which has not occurred in this case.
61. The prosecution submitted that the costs incurred in preparation for the trial on 8 October have not been thrown away as yet, as the trial has not yet been held. The prosecution submitted that this would favour a remedy of an adjournment rather than a stay.
62. Third, the prosecution referred to a number of the principles of law from Zonneveld (No 2). In particular, the prosecution submitted that there was a public interest in the prosecution being able to run trials for serious matters, and that the general principles that the prosecution does not pay costs reinforces the idea that a conditional stay is an “exceptional remedy for extreme cases”. The prosecution submitted that analogous to Zonneveld (No 2) at [31], this is a matter where the financial detriment to the accused is not such “that his trial would be unfair”. The prosecution submitted that an “adjournment will enable the additional material to be considered”, and that an adjournment would not completely disallow the “prosecution timetable to continue”. The prosecution submitted that a consideration of the “very extreme nature of the facts of those cases” in which a conditional stay had been granted elucidates that this matter “falls outside of that category”.
63. The prosecution submitted that the terminology of “extreme” came from the High Court decision on stays generally of Dupas v The Queen [2010] HCA 20; 241 CLR 237. The prosecution submitted that although that case related to permanent stays, the authorities “talk about principles of permanent stays and conditional stays as informing each other” because they both derive from the inherent power of the Court to “…protect its own processes and prevent unfairness of a particular character to an accused person”. The prosecution conceded that the test for a conditional stay was different to that for a permanent stay, but submitted that the tests contain “considerable overlap because of both remedies coming from the Court’s inherent jurisdiction”. The prosecution further submitted that the various descriptors recalled in previous judgments including “extreme” and “a drastic remedy for rare occurrences” are noted in the cases cited in Zonneveld (No 2), particularly Fisher and Petroulias.
64. Generally the prosecution submitted that:
…despite the stupid delay which we can do nothing but agree was stupid, the circumstances better fit the interests of justice test for an adjournment rather than the exceptional circumstances test for a conditional stay pending the payment of costs by the Crown.
65. The informant was not called to give evidence, the prosecution stating that:
If it thought there was an explanation that might assist either this application or your Honour, I would call the informant.
66. The accused submitted that the case of R v Spadina [2013] NSWSC 4 makes clear that the test for a conditional stay does not require the factual matrix to be “extreme”, and that the word “extreme” does not feature in the seminal authorities on temporary stays of Glennon v The Queen (1994) 179 CLR 1 and Williams v Spautz (1992) 174 CLR 509. The accused submitted that the “difference is plain because the consequences are vastly different” as between a conditional stay and a permanent stay.
Consideration
67. Applying the relevant legal principles to be gleaned from the cases discussed above to the facts of this case, I formed the view that the proceedings should be stayed until the Director of Public prosecutions pays the accused the reasonable costs incurred by him in relation to the prosecution application of 28 September 2018 to vacate the trial date of 8 October 2018 and the costs wasted as a result of the adjournment of the trial.
68. I made an order in these terms for the following reasons:
(a)The accused through his lawyers has requested this material as far back as 11 October 2017. This is now approximately a year ago. The distinction the prosecution seeks to draw that this is only a year as opposed to Bui where it was two years is not apposite in this regard. The fact remains that the accused requested this material a year ago.
(b)There has been an unwarranted and unexplained delay in obtaining and providing this evidence. Again, the distinction the prosecution seeks to draw, that there is a difference of substance to be drawn between one year and two years, is not a relevant distinction for these purposes. A delay of one year is not acceptable in this context. An accused should not have to wait a year for this material and have a trial date vacated as a consequence of that delay.
(c)This material was supplied very late and too close to the trial date to permit the trial to proceed fairly. The trial date was allocated on 4 June 2018. Prior to that time on 24 May 2018, the prosecution indicated that the AFP had advised that it had no further material in relation to this matter. In this regard the prosecution conceded that the material had been supplied very late but argued that in Bui the material had been supplied 4 days prior to trial, whereas the relevant period was 8 days prior to the trial, and that the prosecution sought an adjournment so that there could be a fair trial. This in my view does not detract from the fact that the material was supplied late and too close to the trial date for the trial to proceed fairly.
(d)There was delay prior to the committal to the Supreme Court. Relevantly, the prosecution conceded that there had been delays in the Magistrates Court.
(e)Reasonable requests by the accused for information to which he is fairly entitled have been met with unreasonable delay. The accused made many requests for the material. In particular, the accused through his lawyers sent an email on 26 April 2018 noting that they should have all the evidence before the matter is listed for trial. As stated above, on 24 May 2018 when the matter was listed for directions, the prosecution indicated that the outstanding surveillance evidence had been disclosed and that the AFP had advised that it had no further material in relation to the matter. The Court’s processes have therefore been used in a manner that is unfair to the accused person, regardless of whether the accused person is on bail. The prosecution further argued against a conditional stay on the basis that this is not a second or third trial and that the trial has not yet been held. That, it must be said, is not the test. The prosecution also argued that this is not an “extreme” case. That again, it must be said, is not the relevant test. The test for a conditional stay is not that it must be an “extreme” case. It is clear that there is not an identical test for a conditional stay as opposed to a permanent stay. The consequences are well acknowledged at law to be different.
69. For the foregoing reasons, there have been exceptional circumstances demonstrated: see Zonneveld (No 2) at [25] and [27]. A conditional stay is called for. There is proved fault on the part of the prosecution which has caused a vacation of the trial date. The test is not one confined to fairness only in a forthcoming trial: see Zonneveld (No 2) at [31] and [33]. Applying the test outlined in Zonneveld (No 2) for a conditional stay, there has been in this case exceptional circumstances, as outlined in the chronology and in (a)-(e) above, which warrant a conditional stay. I so order.
Order
70. On 28 September 2018, I made the following orders:
1.The proceedings be stayed until the Director of Public prosecution pays to the accused the reasonable costs incurred by him in relation to the prosecution application of 28 September 2018 to vacate the hearing date of 8 October 2018, and the costs wasted as a result of the adjournment of the trial, such costs to be agreed or failing agreement to be assessed by a judge.
2.Upon the Director of Public prosecutions paying the costs referred to in order 1, the matter be returned to the list on the application of the Director for further pre-trial directions.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 26 October 2018 |
0
12
0