R v CHRYSSOMALLOS

[2019] SASCFC 129

Supreme Court of South Australia

(Court of Criminal Appeal)

R v CHRYSSOMALLOS

[2019] SASCFC 129

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

24 October 2019

CRIMINAL LAW - PROCEDURE - PROSECUTION - NOLLE PROSEQUI

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED

Application for permission to appeal by the Director of Public Prosecution against direction to the jury by a judge requiring that the respondent be acquitted of three of four counts contained in a District Court information.

The respondent was charged with one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). He was also charged with three counts in the alternative. The conduct particularised in the alternative counts was the same conduct alleged to constitute the unlawful sexual relationship charged in count 1.

The Judge intimated that he would not leave count 2 to the jury as it was not made out.  The prosecutor informed the jury that the Director would no longer proceed with counts 2, 3 and 4. The Judge directed the jury to deliver verdicts of not guilty in respect of those counts. The jury returned verdicts of not guilty to counts 2, 3 and 4.

The Judge expressed the view that if the case were to proceed on count 1 he should direct the jury to ignore the evidence of the conduct alleged in counts 3 and 4. Counsel for the defence applied for a mistrial. The Judge declared a mistrial.

The Director contends that the Judge erred in directing the jury to acquit in relation to counts 2, 3 and 4 because the entry of a nolle prosequi had the result that there was no longer a charge before them upon which to enter an acquittal.

Held by Parker J (Kelly J and David AJ agreeing) allowing permission to appeal, allowing the appeal:

1.  In determining whether a nolle prosequi was entered and accepted by the court it is necessary to consider:

•  was a determination made by the prosecution not to proceed in relation to a particular count;

•  was that intention communicated to the Court; and

•  did the Court refuse to accept the nolle prosequi on the basis that it would be an abuse of process to allow it to be entered?

2.  Although the Judge had earlier intimated an intention to direct an acquittal on court 2, he did not give such a direction until after the prosecutor had informed the Court that the Director would not proceed with counts 2, 3 and 4.

3.  The decision of the Director not to proceed with counts 2, 3 and 4 was clearly stated in the presence of the jury. The Court did not decline to accept the nolle prosequis on the basis that their entry would amount to an abuse of process or cause unfairness to the respondent.

4.  Upon the entry of the nolle prosequis in relation to counts 2, 3 and 4 the trial of the respondent in respect of those counts had concluded. The Judge had no power to direct the jury to return verdicts of acquittal on those three counts and the jury had no power to return verdicts of acquittal.

5.  Verdicts of acquittal quashed.

Criminal Law Consolidation Act 1935 (SA); Criminal Procedure Act 1921 (SA) s 157(1)(b)(ii), referred to.
Beckett v New South Wales (2013) 248 CLR 432; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; R v Howard (1992) 29 NSWLR 242, applied.
C, MG v Police [2010] SASC 268; DPP (SA) v B (1998) 194 CLR 566; R v Economou (1989) 51 SASR 421; Wilson v Police (2003) 85 SASR 422, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"nolle prosequi"

R v CHRYSSOMALLOS
[2019] SASCFC 129

Court of Criminal Appeal:       Kelly and Parker JJ, David AJ

1. KELLY J:             I agree with the reasons of Parker J.

2. PARKER J:          This is an application for permission to appeal by the Director of Public Prosecutions under s 157(1)(b)(ii) of the Criminal Procedure Act 1921 (SA) against a direction given to the jury by a Judge requiring that the respondent be acquitted of three of the four counts contained in a District Court information.

3. At the conclusion of the appeal hearing the Court granted permission to appeal, upheld the appeal and made orders quashing the verdicts of acquittal entered on counts 2, 3 and 4. The Court indicated that it would publish reasons later. These are those reasons.

   Background

4. The respondent was charged with one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA") (count 1). He was also charged with three further counts in the alternative.

5. Count 2 charged the respondent with one count of aggravated inciting or procuring a child to commit an indecent act contrary to s 63B(1)(a) of the CLCA. The indecent act relied upon by the Crown was the viewing of pornographic material by the complainant. The alleged circumstance of aggravation was that the complainant was a child of whom he had custody as a guardian.

6. Counts 3 and 4 alleged that the respondent had unlawful sexual intercourse with a person aged under 14 years contrary to s 49(1) of the CLCA. The conduct alleged in count 3 was that the respondent had caused the complainant to perform an act of fellatio upon him. The conduct alleged in count 4 was that the respondent had inserted his penis into the complainant’s anus.

7. The conduct particularised in the alternative counts 2, 3 and 4 was the same conduct alleged to constitute the unlawful sexual relationship charged in count 1.  In each instance, the relevant conduct was alleged to have occurred between 1 June 2013 and 6 June 2017.

   The events at trial

8. Late in the Crown case the Judge intimated that whether the watching of pornography by a child was an “indecent act” (count 2) was not a question of fact to be determined by the jury, but rather a question of law for his Honour to decide.  Subsequently the prosecutor informed the Court that she had had some discussions with defence counsel concerning count 2.  Before the prosecutor stated the results of those discussions, the Judge indicated that he would not leave count 2 to the jury as it was not made out.  The prosecutor then suggested that the Director might lay a fresh information alleging that the conduct which formed the basis for count 2 was an act of gross indecency.  The Judge expressed the view that this action would not cause any prejudice to the respondent.  The Court was then adjourned for lunch.

9. When the matter resumed, the Judge stated that he had reconsidered the issue and would not permit the laying of a fresh information with respect to count 2. Instead, the Judge would direct the jury to acquit the respondent of count 2. His Honour had previously expressed the view that s 63B(1)(a) of the CLCA required that the child had been incited or procured to commit an indecent act. However, the watching by the complainant of a pornographic video did not constitute an indecent act committed by her.

10. The prosecutor then informed the Court that she had been instructed to enter a nolle prosequi in relation to counts 3 and 4.  The Judge asked whether it was possible to enter a nolle as the respondent was in the charge of the jury.   The prosecutor submitted that the Judge could still accept a nolle prosequi.

11. Following some brief discussion about evidentiary issues, the Judge indicated that he considered the proper approach would have been only to charge the respondent with count 1.  The prosecutor indicated that she could not disagree with that position.  The Judge then stated:

    Alright; I think that probably the best course is for you to announce in front of the jury that the director does not proceed on those three counts, and then I’ll direct acquittals and we’ll press on.

12. The prosecutor responded with the comment “Thank you”.  After some further brief discussion about other issues, the Judge stated:

    So if you just tell me in front of the jury or tell the court that the director is not proceeding -

    To which the prosecutor responded: “I will do so”.  The Judge then continued:

    On those counts, then I’ll direct an acquittal and we’ll press on. 

    After the jury returned to Court, the prosecutor stated:

    … I advise that the Director of Public Prosecutions will no longer proceed with the second third, and fourth counts on the information, leaving only count 1.

13. The Judge then explained to the jury that as the respondent was in their charge it was necessary to direct them to deliver verdicts of not guilty in respects of counts 2, 3 and 4. The jury then returned verdicts of “not guilty” to counts 2, 3 and 4.

14. Subsequently, the Judge expressed the view that if the case were to proceed on count 1 he should direct the jury to ignore the evidence about oral and anal intercourse, i.e. the conduct alleged in counts 3 and 4.  In response, the prosecutor submitted that the jury could still rely on the evidence of the complainant in its entirety.  After the Judge indicated that he did not accept that proposition he asked defence counsel whether she was seeking a mistrial declaration.  Defence counsel acted on that suggestion and made an application. The Judge then declared a mistrial.  His Honour explained to the jury that this was necessary because if the trial were to proceed he would have been required to direct the jury to ignore much of the evidence that they had heard. 

    The Director’s submissions

15. Senior counsel for the Director has informed the Court in his written submissions, and has also given an oral undertaking to the Court, that should the appeal succeed and the verdicts of acquittal on counts 2, 3 and 4 be set aside, those charges will not be relaid. However, the Director does intend to proceed with the prosecution of the allegation made in count 1 that the respondent had maintained an unlawful sexual relationship with a child. If the acquittals on counts 2, 3 and 4 are not quashed, the Director is concerned that the submission will be made that the acquittals are a bar to the prosecution proceeding with a charge that the respondent maintained an unlawful sexual relationship during the period covered by those three counts. The Director is also concerned that it will be submitted that the prosecution cannot seek to prove the unlawful sexual relationship by leading evidence of conduct that was the subject of the directed acquittals. The Director notes that the trial judge made an intimation to that effect.

16. The Director submits that a nolle prosequi can be entered at any time between the laying of the information and the verdict.  However, the Court may decline to accept a nolle so as to prevent an abuse of process.[1]  The Director further submits that it cannot be disputed that in this case the nolle prosequis, if entered, were entered prior to the jury returning a verdict.

    [1]    Question of Law Reserved on Acquittal(No 3 of 1995) (1996) 66 SASR 450; R v Economou (1989) 51 SASR 421; DPP (SA) v B (1998) 194 CLR 566; Wilson v Police (2003) 85 SASR 422; C, MG v Police [2010] SASC 268.

17. The Director submits that in determining whether nolle prosequis were entered and accepted by the Court, it is necessary to consider three matters, i.e.:

    ·Was a determination made by the Director not to proceed in relation to each count;

    ·Was that intention communicated to the Court; and

    ·Did the Court refuse to accept the nolle prosequis on the basis that it would be an abuse of process to allow them to be entered?[2]

    [2]    Question of Law Reserved on Acquittal(No 3 of 1995) (1996) 66 SASR 450.

18. The Director submits that it is quite clear that the prosecutor unequivocally stated that her instructions were not to proceed on counts 3 and 4 and that she was to enter a nolle prosequi in relation to those two counts. 

19. The Director concedes that the position is less straightforward in relation to count 2 because the Judge had informed the prosecutor that he would not permit the laying of a fresh information and would direct the jury to acquit on count 2.  Nevertheless, the prosecutor subsequently informed the Court in the presence of the jury that the Director would not proceed on counts 2, 3 and 4.

20. In relation to the third matter, the Director observes that counsel for the respondent did not object to entry of the nolle prosequis nor did she suggest that this action was an abuse of process or would give rise to unfairness.  In fact, the prosecutor informed the Court that the respondent did not suggest that there was any unfairness.  The Judge expressly agreed with that observation.  There was also no suggestion that the allegations comprised in the particulars of counts 2, 3 and 4 could not be used to prove count 1 or that would somehow amount to unfairness. 

    The respondent’s submissions

21. The respondent observes that the Director is bound by the manner in which the prosecution was conducted.  The respondent does not suggest that the prosecutor was incompetent but rather that legitimate forensic decisions were made by which the Director is bound.  Further to that submission the respondent contends that the Director has a wide discretion to determine what charges should be laid in respect of any particular matter.  In this case it had been decided to lay counts 2, 3 and 4 as alternatives to count 1.  The Director must have been aware that the evidence in relation to counts 2, 3 and 4 would have been relevant to count 1 and, as the prosecutor ultimately conceded, it would have made the task of the jury simpler if the Director had proceeded only on count 1.

22. After initially seeking leave to amend the information so as to replace count 2 with a charge of gross indecency, after the Judge intimated that his Honour did not consider that count 2 could be made out, the prosecutor agreed to a process whereby she would inform the jury that the Director did not intend to proceed with count 2 and that the Judge would direct an acquittal in relation to that count.  Furthermore, the respondent submits that the prosecutor, of her own volition, determined to discontinue the prosecution of counts 3 and 4.  Once again, the prosecutor agreed with the suggestion made by the Judge, that upon her stating that counts 3 and 4 would be discontinued, his Honour would direct an acquittal.

23. In those circumstances, the respondent submits that it is implicit that the prosecutor made a forensic decision to discontinue counts 2, 3 and 4 in the manner that was agreed with the Judge so as to simplify the task of the jury in relation to count 1.  This was a legitimate forensic decision that binds the Director. 

24. The respondent also observes that in light of the undertaking that counts 2, 3 and 4 will not be relaid, it is not apparent that the application for permission to appeal has any utility. 

25. In this light, the respondent submits that the real complaint by the Director concerns the decision of the Judge to declare a mistrial when the prosecutor had contended that the evidence adduced in relation to counts 2, 3 and 4 remained relevant and admissible in relation to count 1.  The respondent does not disagree with the version of the events at trial advanced by the Director save that he contends that it is not correct that the trial Judge had determined that the prosecutor would inform the jury of the decision not to proceed on counts 2, 3 and 4.  The respondent submits that the true position was that the prosecutor agreed with the Judge that she would inform the jury that the Director would not continue with counts 2, 3 and 4 and that there would be directed acquittals. 

26. The respondent also submits that the suggestion by the Director that the Judge failed to assess whether the evidence could suffice to prove counts 3 and 4 before directing the jury to acquit on those counts is not relevant because of the conduct of the prosecutor. The Director is bound by that conduct.

    Consideration

27. The High Court held in Beckett v New South Wales that the prosecution “may enter a nolle prosequi at any time after the indictment is signed and before the return of the verdict”.[3]

    [3] (2013) 248 CLR 432 at [3], French CJ, Hayne, Crennan, Kiefel and Bell JJ.

28. In Question of Law Reserved on Acquittal (No 3 of 1995) Debelle J observed that “the entry of a nolle prosequi is no more than a statement than that the prosecution is unwilling then to proceed with the prosecution”.[4]  The entry of a nolle prosequi does not require any particular process or formality provided that the intention is clearly and distinctly communicated to the Court.[5] 

    [4] (1996) 66 SASR 450 at 458.

    [5] Ibid at 457; R v Howard (1992) 29 NSWLR 242.

29. I agree with the Director’s submission that in determining whether a nolle prosequi was entered and accepted by the Court it is necessary to consider the three matters referred to at [17] above.

30. The first two matters can be considered concurrently. They are whether a determination was made by the Director not to proceed in relation to each count and was that intention communicated to the Court.

31. Although the Judge had intimated his intention to direct an acquittal on count 2, he did not do so until after the prosecutor had informed the Court that the Director would not proceed with counts 2, 3 or 4.  The decision of the Director not to proceed with counts 2, 3 and 4 was clearly stated in the presence of the jury.  I therefore consider that the first two requirements identified by the Director have been met.

32. I also agree with the submission of the Director that it is quite clear that the Court did not decline to accept the nolle prosequis on the basis that their entry would amount to an abuse of process or cause unfairness to the respondent.

33. The further question is the legal effect of the entry of a nolle prosequi that has not been rejected by the court.  The answer is provided by the finding of the High Court in Beckett that: [6]  

    The entry of the nolle prosequi brings the proceedings to a halt without determination of guilt.  It does not bar the subsequent prosecution of the accused on the same charge.

    [6] (2013) 248 CLR 432 at [3], French CJ, Hayne, Crennan, Kiefel and Bell JJ.

34. To like effect, Debelle J (Mullighan and Nyland JJ agreeing) stated in Question of Law Reserved on Acquittal (No 3 of 1995) that: [7]

    Once a nolle prosequi has been entered, the Court can no longer proceed with the trial of those matters charged in the indictment to which the nolle prosequi relates.  The trial is at an end and the only task is for the Court is to discharge the accused.

    [7] (1996) 66 SASR 450 at 457-458.

35. It is quite clear from these authorities that upon the entry of the nolle prosequis in relation to counts 2, 3 and 4, the trial of the respondent in respect of those counts had concluded.  Accordingly, the Judge had no power to direct the jury to return verdicts of acquittal on those three counts and the jury had no power to do so.  The prior exchanges between judge and prosecutor were immaterial.

36. It is apparent from the observations of the High Court in Beckett, to which I referred at [27], the fact that respondent was in the charge of jury did not preclude the entry by the prosecution of the nolle prosequis. The High Court made clear that a nolle may be entered at any time between signing of the information and the return of the verdict. 

37. As the nolle prosequis were not rejected by the Court, the result was to bring the trial to an end in so far as counts 2, 3 and 4 were concerned.  Thus, as I have previously said, the Judge had no power to direct an acquittal on those three counts and the jury had no power to return verdicts of acquittal.  For these reasons, the Court quashed the verdicts of acquittal returned by the jury on counts 2, 3 and 4.

1. It was not necessary to consider several alternative or additional contentions advanced by the Director in his written submissions.

   Conclusion

2. For these reasons, I joined in the order of the Court granting permission to appeal, upholding the appeal and quashing the verdicts of acquittal entered on counts 2, 3 and 4.

3. DAVID AJ:            I agree with the reasons of Parker J.