R v Drozd

[1993] QCA 224

IN THE COURT OF APPEAL [1993] QCA 224

SUPREME COURT OF QUEENSLAND

Appeal No. 10 of 1993

Brisbane
[Drozd v. Director of Public Prosecutions]

BETWEEN

EDWARD CHARLES DROZD

Applicant/Appellant

- and -

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

The Chief Justice Mr Justice Pincus Mr Justice Davies

Judgment delivered 17 June 1993
Joint Reasons of Pincus J.A. and Davies J.A., the Chief

Justice separately. All concurring as to the order made.

APPEAL DISMISSED

CATCHWORDS:	CRIMINAL LAW - STAY OF PROCEEDINGS - fresh witnesses' statements adduced after criminal committal proceedings - whether lack of opportunity to cross-examine witnesses on the statements at committal would result in unfair trial - whether difficulties in preparation of defence case unless cross-examination at committal possible.
Counsel:	Mr J A Jerrard Q.C., with him Ms C Holmes for the appellant
Mr R V Hanson Q.C., with him Mr J E L Taeffe for the respondent
Solicitors:	Messrs Boe and Company for the appellant
Director of Public Prosecutions for the respondent

Hearing Date: 24/02/93
IN THE COURT OF APPEAL

Q UEENSLAND

Appeal No. 10 of 1993

B risbane

Before the Chief Justice
Mr Justice Pincus

Mr Justice Davies

B ETWEEN :

EDWARD CHARLES DROZD

Applicant/Appellant

A :  ND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 17/06/93

I have had the advantage of reading the reasons prepared

by Pincus J.A. and Davies J.A. and am in agreement with what
they say. I desire to add some additional observations.

The applicant had sought an order for a stay as a means

of achieving the result that the two proposed additional Crown
witnesses could be cross-examined in further committal
proceedings. For this and for no other purpose the applicant

sought an order, the effect of which would delay the trial.

Some procedural questions arise and they were debated

before us but I do not feel the need to say anything on those
aspects beyond remarking that I accept that the Court will
generally have a range of options available to avoid any
consequence of unfairness in a trial. It will have some
discretion in fashioning a remedy to achieve a proper result:

cf. Jago v. The District Court of New South Wales and Others

(1989) 168 C.L.R. 23 at 31 per Mason C.J.
It was submitted that the judge below applied too narrow
a test when he said that the applicant, if he was to succeed,
would have to show some abuse of process by the Crown.
Depending upon the way in which it is intended that this
phrase should be understood, it may be unduly narrow to
express the matter in this fashion: cf. Jago (supra) at 29.
However, the judge, in coming to his conclusion, did consider
a broad range of relevant circumstances. He then refused to

make the order sought.

In the end the fate of the application and others like it
must be judged according to the effect which will be caused to
the trial of the accused person involved. It has to be borne
in mind that applications of the present kind, if granted,
will themselves dislocate the ordinary trial processes so that
strong cases in justification ought to be shown for the Court
to grant a stay.

It happens from time to time that the Crown will be aware

of relevant additional witnesses after committal proceedings
have concluded. It will not follow that the committal
proceedings must, in some fashion, necessarily be reopened or
recommenced. It is, of course, the practice in such cases for
the Crown to provide the defence with the additional
witnesses' statements promptly. In my view, notwithstanding
the full supervisory jurisdiction which this Court possesses
and its undoubted jurisdiction in a proper case to intervene,
the circumstances would be unusual where the Court will act in
a way which compels the reopening of committal proceedings
rather than leave control of the matter to the trial judge. A
judge presiding at trial has a full discretion to proceed in a
way which will avoid injustice to the accused. I consider
that if application is made to the Court prior to trial it
will most frequently be the expressed preference of the Court
not to intervene in a way which will override, in advance, the
trial judge's discretions.

In the present case the Crown had offered to call first

at the trial the two additional witnesses concerned so that
the defence, if it wished, could cross-examine them on the
voir dire. The applicant, in response to this offer, could
point to no more substantial disadvantage to his cause than
the speculative possibility that the two witnesses, if
questioned at that stage, might provide answers which the
defence would wish to check and follow up. Yet the defence
had made no effort to obtain access to these two potential
Crown witnesses, both presently in custody, for the purpose of
questioning them and ascertaining what information might be
available from them by that means. This indicates the

essential flimsiness of the basis of the application for stay.

However, apart from this consideration, the situation with

which the Court is confronted is one where it should not
interfere by disrupting the normal processes in advance of the
trial but should leave any matters which remain outstanding
and which may constitute some disadvantage for the defence to
be dealt with by the trial judge when the trial commences.

I agree that the appeal should be dismissed.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10 of 1993

Brisbane

Before The Chief Justice Mr Justice Pincus Mr Justice Davies

[Drozd v. Director of Public Prosecutions]

BETWEEN

EDWARD CHARLES DROZD

Applicant/Appellant

- and -

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JOINT REASONS OF PINCUS J.A. AND DAVIES J.A.

Judgment delivered 17 June 1993

This is an appeal from an order of a single judge of the Supreme Court dismissing an application for an order that an indictment presented against the appellant on 3 April 1992 be stayed until the holding of a further committal, to take the evidence of two witnesses who have given statements recently.

The charge made by the indictment is, in brief, that the

appellant conspired with certain others to import narcotic
goods into Australia, consisting of a quantity of cannabis
resin. On 3 January 1992 the appellant was extradited from
the United States of America and on 3 February 1992 was
committed for trial. The committal proceedings were concise;

a solicitor acting for the appellant consented to the

tendering of witnesses' statements under s. 110A of The

Justices Act 1886, waiving cross-examination.

There followed a substantial amount of correspondence

between the appellant's solicitors and the Commonwealth
Director of Public Prosecutions leading up to the first date
fixed for the trial in the Supreme Court, namely 1 February
1993; the trial did not then take place because of the
pendency of this appeal. It is unnecessary to set out the
details of the correspondence we have mentioned and enough to
say that in January 1993 the Director informed the appellant's
solicitor that William Bruce Kirk and Dale Stuart Kirk, two of
the appellant's alleged co-conspirators, were willing to give

evidence against him and statements had been taken from them.

The appellant has copies of those statements and the

respondent Director either has made or will make available to
the appellant's solicitors a copy of the taped interviews with
the Kirks. More generally, the appellant does not complain of
any lack of co-operation on the part of the Director; he
simply contends that there should be a further committal so
that the Kirks, whose statements were not presented at the
committal described above, may be cross-examined on oath.

Mr Jerrard QC, leading counsel for the appellant in this Court, does not contend that the committal already held and concluded may be re-opened, but says that the indictment should be stayed, with the result that if the Director wishes to pursue the matter further it will be necessary for fresh proceedings to be instituted and a second committal held. At that committal the appellant would not seek to cross-examine any persons other than the two Kirks.

Before the learned primary judge it was contended on

behalf of the appellant that unless a stay were ordered there
could not be a fair trial because of the inability of the
defence to cross-examine the Kirks, test them on oath and then
subsequently investigate the truth of their evidence. In this
Court Mr Jerrard did not contend that the lack of opportunity
to test the evidence of the Kirks at a committal would in
itself justify a stay; he based the contention that a trial
held without a further committal would be unfair principally
on the foundation that, if there were no advance cross-
examination of the Kirks, the appellant's solicitor would be
unable properly to investigate the case against the appellant,
before the trial.

There was no contention on behalf of the respondent that

the Court lacks jurisdiction to stay the proceedings; the
question is whether the present is an appropriate case in
which to do so. Something more must be said concerning the
facts in the matter; but it is convenient first to consider
the nature of the Court's jurisdiction to stay a criminal
proceeding on such a ground as this. It is clear that a stay
will not be granted simply because some difficulty in
according perfect justice to the accused is apprehended.

In Jago v. District Court of New South Wales (1989) 168

C.L.R. 23, there was a long delay in bringing an accused to trial, but a stay sought on that ground was refused. Mason C.J. saw the power to stay in cases where a fair trial was said to be unavailable as being one to be used "only in the most exceptional circumstances" (31), and his Honour referred with approval (at 34) to the statement of Wilson J. in Barton (1980) 147 C.L.R. 75 at 111. We shall quote more of it than did Mason C.J.; Wilson J. 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."

Brennan J. pointed out that interests other than those of the parties are involved in such an application. His Honour remarked :

"If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded

in rhetoric rather than in law and whether the legal
right of an accused, truly stated, is a right to a

trial as fair as the courts can make it.

...interests other than those of the litigants are
involved in litigation, especially criminal
litigation. The community has an immediate interest
in the administration of criminal justice to
guarantee peace and order in society. The victims
of crime, who are not ordinarily parties to
prosecutions on indictment and whose interests have
generally gone unacknowledged until recent times,
must be able to see that justice is done if they are
not to be driven to self-help to rectify their
grievances." (49, 50)

His Honour referred to these principles again in Glennon (1992) 173 C.L.R. 592. In that case, after quoting from the reasons given by Crockett J. for refusing a stay, his Honour went on :

"In my respectful opinion, his Honour's conclusion
was clearly right either on the ground that the
present case is not an `extreme case' or on the
ground - which, in my respectful opinion, is a
ground better founded on principle and more
realistic in practice - that the trial of the
applicant, provided it was as fair as the Court
could make it, would produce no miscarriage of

justice". (616)

Dawson J. agreed with the reasons of Brennan J.

Mason C.J. and Toohey J. referred in Glennon to the

remarks of Wilson J. mentioned above as authority for the view
that "a permanent stay will only be ordered in an extreme
case" and there must be a fundamental defect "of such a nature
that nothing that a trial judge can do in the conduct of the

trial can relieve against its unfair consequences" (605).

On the face of it, the appellant's claim to a stay here

seems difficult to sustain; the prospect that there might, if
no stay is granted, be some part of the Kirks' story which
cannot be easily investigated seems far from the type of
consideration which could justify the orders sought. When the

facts are examined more closely, the strength of the

appellant's case does not increase.

Mr Jerrard contended that we should infer that the

absence of the opportunity to cross-examine the two additional
witnesses would substantially disadvantage the appellant at
his trial, because if the cross-examination elicited further
details of the witness' version, inquiries could be made in
various places in Australia and overseas to check its
accuracy. Mr Hanson QC, who led for the respondent, pointed
out that some of the details which on Mr Jerrard's argument
would need to be checked were not matters with respect to
which the appellant could call evidence, but of a collateral
kind. While this is so, a more serious obstacle is that the
inference Mr Jerrard asked the Court to draw is a purely
factual one and it is a matter capable of being proved by
evidence. There is simply no evidence that any substantial
difficulty in preparing the case is likely to be encountered
in the absence of a fresh committal. The appellant's
solicitor has made an affidavit which sets out the history of
the matter but says nothing to support the factual conclusion
on the basis of which we are asked to order a stay. To
exemplify the point in a general way, Dale Kirk's statement
speaks of a meeting in Sydney at the Hyatt Hotel and names six
persons, including the appellant, who were present. There was
a conversation at the meeting which appears on Dake Kirk's
version to be of an incriminating character, so far as the
appellant is concerned. There might be a challenge to the
evidence that such a meeting took place, or to the evidence
that an incriminating conversation occurred there. In either
event, it is not evidently impossible that the solicitor could
make inquiries about the meeting from one or more of the named
persons said to have been present at it. Dale Kirk's
statement says: "I became upset because there were business
discussions in front of people who were not involved...".

At least those "not involved" might be expected to be

willing to give further information to one enquiring about the
alleged meeting. If there is at present insufficient
information to enable the solicitor to make inquiries, then as
Mr Hanson pointed out there are possible means of remedying
the deficiency other than by holding a further committal. For
example, particulars might be sought of the overt acts relied
on by the respondent. During the hearing before us the
possibility of the applicant's solicitor interviewing one or
both of the Kirks was discussed. It may be, as Mr Jerrard
argued, that an attempt to do so would prove fruitless; but
we find it of interest that no effort has been made to obtain,
by inquiry of the respondent or otherwise, any of the
additional detail whose importance is said to be such as to
necessitate a stay of the proceedings with a view to their

being recommenced.

Mr Jerrard emphasised the importance of a proper

committal and referred us to authority relating to that
subject. In Cordell (1984) 10 A. Crim. R. 475 there was no
cross-examination of the witnesses called at the committal;
the solicitor whom the accused thought was appearing for them
regarded his role as being only that of a friend of the Court.

Enderby J. therefore declared the committal proceedings to be

void and stayed the proceedings upon the indictment. It is
not absolutely clear to us on what legal foundation that was
done, but we find it unnecessary to discuss the case, because
the situation the Court confronted has no resemblance to the
present. In Ngalkin (1984) 12 A. Crim. R. 29, O'Leary J.
stayed all proceedings on an indictment on a ground which is
closer to that urged in the present case. There, the Crown
called only one eye-witness to the assault which was alleged,
and advised after the committal that it was intended to call a
number of other eye-witnesses at the trial. The judge stayed
all further proceedings on the indictment, apparently on the
basis that the accused had suffered "substantial detriment" by
the prosecution's failure to call them at the committal. It
is unclear whether the judge intended the stay to be permanent
or temporary, but his Honour expressed himself in terms which
suggested that it would be removed if there were a further
committal hearing to enable cross-examination of the
additional witnesses.

There was discussion before us on the question whether it

is possible, a committal having concluded and an indictment
been presented, to stay the indictment to allow the committal
proceeding to be re-opened, which appears to have been the
process contemplated in the Northern Territory case. Mr
Jerrard, as we understood him, contended that if the appeal
succeeded the order should be one for a permanent stay; he
did not say that we should, or indeed could, make an order for
a stay until a further committal proceeding should be held.
Mr Hanson suggested that it is not clear whether as a matter
of law the extradited appellant could properly be tried on a
further charge, if he succeeded in defeating the proceedings
presently pending against him by obtaining a permanent stay.
We do not determine these questions, but are obliged to say
that we are presently unconvinced that an assumption
apparently made in Ngalkin is correct, at least so far as
Queensland is concerned. The assumption is that, an accused
having been committed for trial, the Court to which the
indictment is presented may properly make an order for a
temporary or contingent stay designed to secure the
re-opening of the committal proceeding. In The Queen v.
Harry; ex parte Eastway (1985) 39 S.A.S.R. 203 at 212
King C.J. discussed the problem which arises if it is thought
that a committal proceeding has been so conducted as to create
a risk of an unfair trial, and did so in terms which suggest
that a permanent stay is the proper remedy; His Honour said :

"In extreme cases...there is undoubted power to stay
the proceedings, thereby compelling the prosecution
to lay a fresh information and to proceed to a fresh
preliminary hearing...It is hardly necessary to
stress, however, the gravity of the extreme step of
denying a trial on the Attorney-General's
information and the seriousness of the risk of
injustice which would be required to justify it".

Lastly, we note with interest a decision of the New South

Wales Court of Appeal in Barron v. Attorney-General (1987) 10
N.S.W.L.R. 215 in which Hunt A.J.A., with whom Samuels J.A.
was in substantial agreement, questioned :

"...the proposition that a trial held without prior
committal proceedings must necessarily be considered
unfair unless justified on strong and powerful
grounds". (233)

His Honour was of the opinion that the loss of the opportunity to cross-examine the Crown witnesses at committal is not necessarily of itself sufficient as a ground for a stay of proceedings.

Here, as we have explained, Mr Jerrard did not suggest

that the loss of that opportunity could without more entitle
the appellant to a stay, but relied substantially on the
contention, unsupported by evidence, that there would be
substantial difficulties in preparing the case unless the
Kirks were cross-examined at committal. In our opinion there
is no good reason to think that such additional difficulty in
preparation as might ensue from the absence of the advantage
of advance cross-examination is likely to be of critical
significance. Further, it is to our minds plain that this is
far from the sort of extreme case in which a stay could

properly be granted.

The appeal will therefore be dismissed.