R v F, BR; R v R, GA
[2013] SADC 138
•23 October 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, BR; R v R, GA
[2013] SADC 138
Ruling of Her Honour Judge Bampton
23 October 2013
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GROUNDS FOR GRANTING OR REFUSING - ABSENCE OF MATERIAL WITNESS
Trial listed to commence on 2 April 2013. Trial date vacated on 4 April 2013 on application of prosecution. Material witness not available. Defendants agreed matter not ready to proceed but argued matter should be stayed pending payment of their costs thrown away as a result of the trial not proceeding.
R v Cavanagh & Shaw (1972) 56 Cr App R 407; R v Ulman-Naruniec (2003) 143 A Crim R 531; R v Cox [1997] 196 LSJS 3; R v Mosely (1992) 28 NSWLR 735; R v Seebag (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 16 February 1993), considered.
R v F, BR; R v R, GA
[2013] SADC 138Criminal: Application
BAMPTON DCJ.
The defendants R, GA and F, BR make application pursuant to Rule 14 of the District Court Criminal Rules seeking an order that the proceedings against them be stayed until such time that the Director of Public Prosecutions pay their reasonable costs incurred for the trial listed to commence 2 April 2013. The application is supported by an affidavit of the defendant’s solicitor, Richard Stanley, sworn 25 May 2013.
By Information dated 3 September 2012, R, GA (the defendant R) was charged with rape and jointly charged with F, BR (the defendant F) with indecent assault. On 23 May 2013 the Director filed an Ex Officio Information charging the defendant R with one count of rape, three counts of create risk of harm and jointly charging him with the defendant F with one count of aggravated indecent assault.
Background
The defendants were arraigned in the District Court on 3 September 2012.
At the first directions hearing on 10 October 2012 an order was made that the Director make outstanding disclosure by 13 November 2012 and the matter was listed for trial to commence on 2 April 2013. Further directions hearings held on 11 and 19 December 2012 and 22 January 2013 dealt with issues of disclosure.
At the directions hearing on 22 January 2013, the Director provided to the defence an audio recording and the trial date of 2 April 2013 was confirmed.
At a further directions hearing on 28 March 2013 on the application of the Director, I abridged time for the issue and service of subpoenas directed to three prosecution witnesses. Significantly, no complaint was made at that time by the defence about disclosure other than counsel for the defendant R informing me that there were some outstanding disclosure issues that would take an hour or so to sort out on the first day of trial.
When the matter was called on for trial on 2 April 2013, the defendants complained about outstanding disclosure and the unavailability of witnesses. I adjourned the matter to 4 April allowing time for inquiries to be made regarding the issues raised and noting that it was unlikely the trial would commence on the adjourned date.
On 4 April 2013 the prosecutor confirmed that the matter was not ready to proceed to trial and made an application to vacate the trial due to the unavailability of material prosecution witnesses namely ZC, WA and Dr Karen Sandercock. I strongly expressed my concerns regarding what appeared to be a complete lack of preparedness for trial.
Counsel for the defendants agreed the trial should not proceed. They argued that the trial should not be adjourned but that the proceedings should be stayed pending payment of their costs thrown away. Counsel for the defendant R argued the matter was:
… not in a fit state to proceed at present and the prosecution should not proceed unless and until the prosecution can give your Honour an assurance that they are in a position to call the material witnesses that they need to prove their case, amongst the other things, and have made adequate disclosure of relevant material in a timely fashion.[1]
[1] T29.13-19 (4 April 2013).
I declined to order a stay and adjourned the matter to a directions hearing.
On 23 May 2013 I was informed that the Ex Officio Information referred to above had been filed and that the defendants had filed the application for the stay. The stay application was referred to argument on 22 July 2013.
The Argument
The defendants assert they have suffered unfairness and prejudice in having to bear the costs of the trial which was unable to proceed due to fault of the prosecution. The defendants ask the Court to find the prosecution was unready to proceed due to the failure to ensure material witnesses were available to give evidence, the late disclosure and the failure to file a Notice of Intention to Adduce Discreditable Conduct in accordance with s 34P of the Evidence Act 1929. In written and oral submissions the defendants’ counsel detail the late disclosure by the Director.
The defendants submit that they sought disclosure of significant material from the Director on 31 August 2012. Some, but not all of the material, was disclosed in the following months.[2] In the days preceding the commencement of trial between 28 March and 2 April 2013, the following material was disclosed:
1.Notes taken by Dr Karen Sandercock from the complainant’s attendance at Yarrow Place.
2. A statement of the complainant dated 16 May 2012.
3. A statement of the investigating officer dated 23 March 2013.
4.Notes of counsel’s attendance at the scene of the alleged incident on 1 April 2013, to conduct for the first time, a walkthrough of the incident with the complainant and the investigating officer.
[2] Affidavit of Stanley paras 8-9 sworn 21 May 2013.
Further disclosure was made between 2 and 4 April and following the vacation of the trial date.
The defendants contend that the Director did not advise them at any time prior to commencement of trial as to the unavailability of or difficulties in locating witnesses.
The defendants argue that it is extraordinary that the witnesses’ attendance at trial had not been secured and in the case of the witness ZC, proper inquiry had not been made to identify her whereabouts. It was argued that there has been no timely or proper explanation by the prosecution as to why the witnesses’ attendance at trial was not able to be secured.
In those circumstances, the defendants argue that the prosecution’s failure to secure witnesses’ attendance at trial or to advise them in a timely fashion of their unavailability has resulted in unfairness to them insofar as they were ready to proceed and now carry the burden of costs caused by the prosecution’s failure.
I agree with the prosecutor’s contention that the trial of the matter did not proceed primarily because material witnesses who were required by both parties were unavailable.
As conceded by the prosecutor during argument, in hindsight, more could have been done by the investigating officer to locate witnesses and secure their attendance for trial.
The witnesses, in particular the witness ZC, were required by both prosecution and defence. The defendants chose to agree that the trial should not proceed and chose not to argue that it should proceed without the witnesses. They could have urged me to order the trial commence, notwithstanding that they were seeking further disclosure.
The prosecutor contended that whatever may be said of the deficiencies in the prosecution’s preparation of this matter for trial, the defence bears some responsibility for in effect insisting on a comprehensive brief to one considered to be scant and requiring certain witnesses to be called at trial, rather than the trial proceeding in their absence.[3]
[3] R v Cavanagh & Shaw (1972) 56 Cr App R 407.
Whilst the prosecution can be criticised for inadvertently allowing the situation to arise whereby the trial could not proceed due to the unavailability of material witnesses, I agree with the prosecutor’s submission that this is not an exceptional case.
The prosecutor argued that the defendants put forward a totally inconsistent argument asserting on one hand that they would have been ready to proceed with the trial had material witnesses attended while on the other, asserting that the failure of the prosecution to meet a number of defence requests, prevented them from being in a position to allow the trial to proceed. The defendants imply that the late and further disclosure and the late filing of the s 34P notice meant that the prosecution exclusively was unready to proceed. It was submitted these arguments mask the fact that leaving aside the reasons, defence were in fact not willing to proceed with the trial.
Conclusion
An order for a stay pending payment of costs has only been made once in South Australia in the matter of R v Ulman-Naruniec (Ulman-Naruniec).[4] The stay order in that matter was made against a history of the defendant’s first trial ending in a hung jury and her second in a conviction which was successfully appealed. The defendant’s third trial was stayed pending payment of her costs associated with the first and second trials and disclosure of crucial evidence.
[4] (2003) 143 A Crim R 531.
The Court of Criminal Appeal considered that the conduct of the DPP was a flagrant breach of its duty of disclosure and that conduct had created an unfairness to the accused which should be alleviated by requiring the DPP to remedy it if it wished to proceed with a third trial.
Ulman-Naruniec reaffirms that orders staying proceedings until payment of a defendants’ costs are reserved for extreme cases where the prosecution has fallen far short of its duties. This is not one of those cases.
Both parties in this matter considered the absence of the witness ZC to be fatal to the prospects of the trial proceeding. The defendants argued that they did not want the trial to proceed in the absence of ZC or the witness WA.
It is clear that the defendants had made a number of requests for information and material from the prosecution at various stages after the matter had been listed for trial. As acknowledged by the prosecution in its written outline, some requests had been long standing, some not so, and some had been made on the day of the trial in respect of recent information provided by the complainant only the day before.
The defendants were not prepared to allow the matter to proceed to trial until the material witnesses were available, and until their requests for information and material had been satisfied. The prosecutor correctly characterises the situation when he says, that as unhappy as all of the parties and the court were with the situation, the order that the trial not proceed was not opposed by the defendants.
The authorities relied upon by the defendants are distinguishable from the circumstances in this case. In the matter of R v Mosely[5] and R v Seebag,[6] the adjournment sought was opposed by the defence. The defendants wanted to proceed. In this matter, the defence did not want the matter to proceed.
[5] (1992) 28 NSWLR 735.
[6] (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 16 February 1993).
As submitted in paragraph 35 of the prosecution outline of argument, the application to vacate the trial arose out of the prosecution’s duty to call or present material witnesses. It followed that given the unavailability of witnesses that both parties desired to be present, the appropriate remedy was an adjournment of the trial. The defendants chose not to oppose the trial not proceeding arguing that the matter should be stayed. Had the defendants opposed, the prosecution may have been forced to proceed to trial without the witnesses.
This is not a case involving an extraordinary oversight. In the words of Sulan J in Ulman-Naruniec:[7]
No system is perfect. Not every investigation or trial can be perfect. In any system which relies upon human beings, errors will occur. There are, however, circumstances in which the failure to discharge a party’s obligations are so serious that the court will intervene to protect an abuse of its processes. There will be occasions, although rare, in which the court will decide to order a stay or to set aside a conviction, if the conduct of the prosecution has been such as to cause prejudice to the accused and the court concludes there cannot be a fair trial.
[7] (2003) 143 A Crim R 531 at [146].
This is a case of inadvertent human error. The error was recognised albeit very late, it was acknowledged and explained to the defendants and the court. The error and unpreparedness of the prosecution does not inflict such prejudice on the defendants such that there cannot be a fair trial. It as an example of a ‘regrettable but common feature of our trial practice’[8] which I hasten to add is not to be condoned. Any prejudice suffered in the circumstances of this matter is remedied by adjournment of the trial.
[8] R v Cox [1997] 196 LSJS 3 (Cox J).
The conduct of the prosecution has not been so deplorable such that I am prepared, in the interests of justice, which includes the balancing the interests of the defendants, the complainant and the community, to intervene and order a stay pending payment of the defendants’ costs.
I adjourned the trial to ensure fairness to the prosecution and the defence. This was the most appropriate remedy for any prejudice that might be occasioned by the unavailability of the witnesses and the late disclosure.
I decline to order a stay of the prosecution of this matter until such time that the Director of Public Prosecutions pay the defendants’ reasonable costs incurred for the trial listed to commence 2 April 2013.
I refer this matter to a directions hearing to be listed for trial.