R v Faiello - [2005] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FAIELLO
Reasons for Ruling of His Honour Judge Millsteed
17 May 2005
CRIMINAL LAW
Possessing ecstasy for sale – application to stay proceedings – abuse of process – threat by DPP to prosecute material defence witness – threat unfair and inconsistent with previous undertaking - possibility of witnesses refusing to give evidence – potential prejudice to defence case – proceedings permanently stayed.
Controlled Substances Act 1984 s32(1) (e), referred to.
R v Faiello & Newman [2003] SADC 89; Maxwell v The Queen (1995) 184 CLR 501; DPP v Shirvanian (1998) 44 NSWLR 129 ; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) CLR 509; Barton v The Queen (1980) 147 CLR 75; Rogers v The Queen (1994) 181 CLR 251; Rona v District Court of South Australia (1995) 63 SASR 223; The Queen v Von Einem (1991) 55 SASR 199; Ridgeway v The Queen (1995) 184 CLR 19; Walton v Gardiner (1993) 177 CLR 378; Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA); The Queen v Mohi (2000) 78 SASR 55; Williamson v Trainor [1992] 2 Qd R 572; 56 A Crim R 102, considered.

R v FAIELLO
[2005] SADC 48
Introduction

Nicola Faiello (“the applicant”) is charged upon information of the Director of Public Prosecutions (“the DPP”) with possessing a prohibited substance, namely ecstasy, for sale contrary to section 32 (1) (e) of the Controlled Substances Act 1984 (“the CSA”). The applicant has applied for an order permanently staying the information on the ground that it is an abuse of process.
Factual Background
The events leading to the application are as follows. On the morning of Sunday 23 September 2001 the police arrested and charged the applicant and his friend Ursula Thompson with taking part in the sale of ecstasy. On the prosecution case, police officers saw the applicant in a motor vehicle handling a bag in which there were 112 tablets containing ecstasy. The motor vehicle, which was owned by Ms Thompson, was parked in the city near a nightclub called Rise. The police separately questioned the applicant and Ms Thompson. They denied any knowledge of the tablets. The applicant said that he went to the car to drive a friend home and that he was looking for an item from the motor vehicle’s stereo system when the police approached him. He denied handling the bag of tablets.
The applicant and Ms Thompson were subsequently charged upon a joint information in the Magistrates Court with possessing ecstasy for sale. The applicant was committed for trial on 14 February 2002, but the magistrate found that Ms Thompson had no case to answer. On 25 March 2002 the applicant was arraigned in this court upon an information charging him with possessing ecstasy for sale and pleaded not guilty.
On 17 April 2002 Natalie Newman gave a signed statement to her solicitor Mr Ey in which she claimed that the ecstasy tablets belonged to her and a group of friends which did not include the applicant or Ms Thompson. Ms Newman said that on the morning of 23 September 2001 she attended Rise nightclub with Ms Thompson where they met the applicant and other friends. Ms Newman subsequently purchased the tablets from a dealer through an acquaintance named Tony. The drugs were purchased for herself and nine friends for their personal consumption. Each of the purchasers gave her a sum of money for his or her share of the tablets. After purchasing the tablets Ms Newman put them in a bag which she placed in Ms Thompson’s car for safe-keeping. The drugs were to be taken to a party that was to be held later that day. Ms Newman did not inform the applicant or Ms Thompson that she had put the tablets in the car. The applicant subsequently left the nightclub to drive a friend home in Ms Thompson’s car. He was then apprehended.
A copy of Ms Newman’s statement was provided to the Director of Public Prosecutions. On 29 May 2002 Ms Newman was interviewed, in the presence of her solicitor, at the Adelaide Police Station by Detective Peter Mann. She gave an account consistent with her statement. On the basis of her statements to her solicitor and the police Ms Newman was charged in the Magistrates Court with possessing ecstasy for sale. On 26 July 2002 she pleaded not guilty and was committed to this court for trial.
On 30 August 2002 the DPP filed an information in this court jointly charging the applicant and Ms Newman with the offences of possessing ecstasy for sale and possessing methylamphetamine for sale. Apparently they were charged with the latter offence because the ecstasy tablets contained traces of methylamphetamine. Ms Newman was also charged separately on the same information with fabricating evidence with the intention of influencing the proceedings against the applicant. The applicant and Ms Newman were arraigned on 2 September 2002 and pleaded not guilty.
Their trial was listed to commence on 3 June 2003 but could not start until the following day. On 23 May 2003, counsel for Ms Newman requested the DPP for particulars of the fabrication charge. On 28 May, six days before the trial was due to begin, the DPP filed a fresh information in which the applicant was charged with one count of possessing ecstasy for sale and Ms Newman was charged with fabricating evidence. In the result the DPP dropped both drug charges against Ms Newman and the charge of possessing methylamphetamine for sale against the applicant.
By letter dated 29 May 2005 the DPP provided the following particulars of the offence of fabricating evidence:
“1.     Newman made two statements that contained materials that were false, namely:
(a)     her signed witness statement of 17 April 2002 statement
              (b)     her statements in her police interview of 29 May 2002
2.    The material alleged to be false in each of those ‘statements’ includes:
(a)Newman’s assertion that she was the owner (or co-owner) of the ecstasy tablets
(b)Newman’s assertion that the ecstasy tablets did not belong to Faiello and that ‘he had nothing to do with them’
(c)the circumstances in which Newman says she procured the ecstasy tablets, including the collection of money from nine other people and the cost of the purchase of the tablets and the credit arrangement thereto.”
On 4 June 2003 both the applicant and Ms Newman made application to Chief Judge Worthington for the proceedings on the joint information to be stayed on the basis that they were an abuse of process. The Chief Judge made an order permanently staying the charge of fabricating evidence against Ms Newman. His Honour found that the charge was of a wholly different and contradictory character to the charge upon which she was committed for trial and that proceedings had caused her oppression and amounted to a misuse of the courts procedures: R v Faiello and Newman [2003] SADC 89 delivered 6 June 2003 at [15].
The applicant’s counsel submitted that the information filed on 30 August 2002 was not capable of being sustained in respect of the two drug charges and that it was an abuse of process for the DPP to have maintained the information up until 28 May 2003. It was argued that the prosecution were effectively asking the jury to decide which of the two accused was guilty of either or both of the drug offences, which could never substantiate a case to answer against either of them. The Chief Judge rejected Mr Faiello’s application. His Honour considered that the cases against the applicant and Ms Newman were not mutually exclusive. Furthermore the charge upon which the applicant was to stand trial was the same one that he faced at the start of the proceedings in the Magistrates Court. In those circumstances there was no abuse of process: R v Faiello and Newman (above) at [23]-[24].
In the course of the hearing of the application before the Chief Judge, Mr Lesses counsel for the DPP, explained that the prosecution had decided to drop the drug charges against Ms Newman “as a result of a final review of the charges and a decision… to pin our colours to the mast”: transcript of hearing p76. He explained that the drug charges were discontinued because there was no evidence to link Ms Newman to the tablets except for her statements to her solicitor and the police which the prosecution considered to be false. When asked if the prosecution eschewed any charge of possession of ecstasy for sale against Ms Newman he said (transcript of hearing p13):
“[W]hen the Director says the current information replaces the previous one , we say that in entirety. That is to say that there will be no suggestion after the trial proceedings before us now that the other charge would be resurrected. So the short answer is the charge has been abandoned.”
The prosecution did not appeal against the order permanently staying the fabrication charge against Ms Newman. The trial of the applicant could not proceed immediately and was eventually listed to commence on 11 April 2005.
In early March 2005 the applicant’s solicitor wrote to the DPP. He advised that the defence intended to call Ms Newman and invited the prosecution to review the charge against the applicant. By letter dated 31 March 2005, the Acting Director Ms Abraham QC replied:
“I have reviewed this matter in light of your undertaking that Ms Newman will be called by the defence at the trial. Notwithstanding this state of affairs the Crown is proceeding with prosecution of your client.
I should point out that there is a distinct possibility of Ms Newman being charged with an indictable offence pursuant to the Controlled Substances Act 1984 in the event she gives evidence to the effect of her statement of 17 April 2002. I trust this is something that has already been canvassed with Ms Newman in conjunction with her solicitor, Mr Ey. (My underlining).”
The stay application
On 8 April 2005 Mr Faiello filed a Rule 8 notice in which he applied for a stay of proceedings on grounds of abuse of process. The hearing of the application proceeded before me on 11 April 2005. Mr Faiello was represented by Ms Powell QC. Mr Lesses appeared for the prosecution.
Ms Powell submitted that it was unconscionable for the DPP to threaten Ms Newman with a possible prosecution under the CSA if she gave evidence in accordance with her previous statements in light of the undertaking given to the Chief Judge and the DPP’s earlier decision to drop the drug charge against Ms Newman because the DPP considered those statements to be false. Ms Powell argued that while Ms Newman remained under the threat of prosecution I would be obliged to give her a self-incrimination warning. There was a likelihood, or at least a substantial risk that Ms Newman might refuse to testify resulting in an impairment of the applicant’s capacity to defend himself.
In short, Ms Powell submitted that the DPP’s conduct was unconscionable and oppressive in that it jeopardized a fair trial of the applicant and also served to bring the administration of justice into disrepute in the sense that right thinking members of the public would perceive the DPP’s conduct as an attempt to influence the outcome of the applicant’s trial.
Ms Lesses opposed the application. In relation to the Acting Director’s letter of 31 March 2005 he confirmed that the DPP would consider charging Ms Newman with an offence under the CSA if she gave evidence at the applicant’s trial in accordance with her previous statements and submitted that I would be obliged to give Ms Newman a self-incrimination warning. He disputed that the DPP’s stance in relation to Ms Newman was unconscionable and inconsistent with the undertaking given by the DPP to the Chief Judge on 4 June 2003 and with the DPP’s earlier decision to drop the drug charges. He submitted that the undertaking was given only in relation to the offence of possessing a prohibited substance for sale and that Ms Newman remained liable for other offences under the CSA, namely, possessing a prohibited substance for supply and taking part in the sale of a prohibited substance (s32(1)(e) and s32(1)(d) respectively).
Mr Lesses further submitted that a stay should not be granted unless it had been established that the prosecution’s conduct would result in the applicant receiving an unfair trial. He argued that the applicant would not suffer unfairness if Ms Newman refused to give evidence because her account did not exclude the applicant’s guilt. In the alternative he submitted that the stay application was premature because until Ms Newman refused to give evidence it could not be said that that the applicant would suffer actual unfairness.
The power to stay
Decisions made by the DPP as to whether or not to prosecute and as to the nature of the charge to be laid or prosecuted are insusceptible of judicial review: Maxwell v The Queen (1995) 184 CLR 501 at 534. As Gaudron and Gummow JJ observed in Maxwell (at 534):
“The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”
However, it is well established that a criminal court has an inherent jurisdiction to prevent an abuse of its process. One remedy available to the court is the power to grant a permanent stay of proceedings. That power, however, should be exercised only in exceptional circumstances because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional functions of determining disputes: DPP v Shirvanian (1998) 44 NSWLR 129 Mason P at 134; see also Jago v District Court (NSW) (1989) 168 CLR 23 Mason CJ at 34; Williams v Spautz (1992) 174 CLR 509. Mason CJ, Dawson, Toohey and McHugh JJ at 529.
The power to stay criminal proceedings for abuse of process may be invoked to ensure that proceedings will not result in an unfair trial: Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23 or to stop proceedings instituted for an improper purpose: Williams v Spautz (1992) 174 CLR 509. But, contrary to Mr Lesses’ submission, the jurisdiction to stay proceedings is not limited to cases (absent improper purpose) where the accused will necessarily receive an unfair trial. The circumstances in which abuse of process may arise are extremely varied and not limited to fixed categories: Rogers v The Queen (1994) 181 CLR 251 Mason CJ at 255; Rona v District Court of South Australia (1995) 63 SASR 223 King CJ at 226. The court is empowered to stay proceedings where the prosecution embarks upon a course of conduct which is of a sufficiently oppressive kind as to jeopardize the proper operation of the court’s functions: The Queen v Von Einem (1991) 55 SASR 199 Duggan J at 210.
The broad nature of the doctrine of abuse of process was explained in Ridgeway v The Queen (1995) 184 CLR 19, by Toohey J (at 60-61):
“The concept of abuse of process is not a precise one. Nor can it be; it gives effect to a concern on the part of courts that may arise in a variety of circumstances. But at the heart of the concept lies the legitimate power of the courts to stay prosecutions brought in exercise of the prerogative of the Crown. In Connelly v Director of Public Prosecutions ([1964] AC 1254 at 1354) Lord Devlin addressed the fundamental issue in this way:
“Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To Questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused”.
That passage asserts the power of the courts to act; it does not, and does not purport to, identify the scope of the power.
Generally, abuse of process derives from a concern that judicial process be not invoked for an improper purpose (the issue in Williams v Spautz) and that the process be not abused in a way that interferes with the conduct of a fair trial (the issue in Jago v District Court (NSW) and Walton v Gardiner). There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt that the accused will receive a fair trial. Equally, an accused may not receive a fair trial, by reason of delay for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior court to stay its proceedings on grounds of abuse of process is not confined to those situations (Walton v Gardiner). A stay of criminal proceedings gives effect to the view that it “would offend the courts’ sense of justice” (R v Mack (1988) 44 CCC (3d) 513 at 525) if the accused had to stand trial in those circumstances. In the more precise terms articulated by Lord Diplock in Hunter v Chief Constable:
“It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”
In Jago v District Court (NSW) (1989) 168 CLR 23 at 72, I suggested:
“To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily distinct. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are seen as understood as bearing on each other.”
Abuse of process does not necessarily lead to a stay; there may be other ways of remedying the abuse.”
Similarly in Shirvanian v DPP (1998) 44 NSWLR 129 Mason P said (at 134):
“Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers v the Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited” [1995] Crim LR 864.”
“Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway (at 41, 43)), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) (1989) 168 CLR 23), or are being conducted for a purpose which in the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown (1989) 17 NSWLR 472 at 478-479; Ridgeway (at 75).”
It is also well established that when dealing with an application to stay criminal proceedings for abuse of process, the trial judge must weigh up two competing public interests, namely the public interest in seeing accused persons brought to trial and the public interest in ensuring that accused persons receive fair trails. In Walton v Gardiner (1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ said at 395-96:
“As was pointed out in Jago (See, in particular, (1989) 168 CLR at pp 30-34, per Mason CJ; pp 59-61, per Deane J; p 72, per Toohey J; pp 76-78, per Gaudron J), “The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”
Findings

It is evident from the Acting Director’s letter of 31 March 2005 and Mr Lesses’ submissions on the hearing of this application that there is a distinct possibility of Ms Newman being prosecuted for either possessing ecstasy for supply (presumably to her friends) or taking part in the sale of ecstasy (presumably from the dealer to her friends) if she gives evidence consistent with her prior statements. Because there is a real and appreciable risk of that happening I would be obliged to give Ms Newman a warning against self incrimination: Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA) Kirby P at 420-424. It could not be doubted that in the face of such a warning Ms Newman might refuse to testify. Indeed the threat of possible prosecution might result in her declining to give evidence for the defence even if a self-incrimination warning was not administered.
I reject Mr Lesses’ submission that the applicant would not be prejudiced if Ms Newman refused to give evidence because her account did not exclude the applicant’s guilt. His argument that her account is not inconsistent with guilt seems to be predicated on the hypothesis that the applicant may have taken possession of the tablets without Ms Newman’s knowledge, after she had placed them in the car and that he did so with the intention of selling them. While that may be theoretically possible it is, in my view, a very unlikely scenario.
In any event whilst Ms Newman’s account might not exclude the prosecution’s strained hypothesis or some other similar hypothesis, it plainly provides support for the applicant’s claim that the tablets did not belong to him, that he was unaware of their existence and that he went to the car to drive a friend home. In my view, the applicant would be seriously disadvantaged in the presentation of his defence if she refused to give evidence due to a fear of being prosecuted.
I turn then to the question of whether the prosecution’s threat to possibly charge Ms Newman is improper. It is true, as Mr Lesses submitted, that the undertaking given to the Chief Judge on 4 June 2003 did not expressly include the offences of possessing ecstasy for supply or taking part in the sale of ecstasy. But I am left in no doubt that the DPP intended to convey to the Chief Judge that Ms Newman would not be prosecuted for any offence under the CSA if proof of that offence depended upon an acceptance of her previous statements.
The submissions of Mr Lesses to the Chief Judge disclose that the charge of possessing ecstasy for sale was dropped because the prosecution had determined in its “final review” of the charges that Ms Newman had fabricated her statements to protect the applicant. In the absence of those statements the DPP could not prove that she was ever in possession of the tablets. In order to prove that Ms Newman committed the offences of possessing ecstasy for supply and taking part in the sale of ecstasy the DPP would need to rely upon those same statements. There has never been any other evidence to implicate Ms Newman. It would have been entirely unreasonable and illogical of the DPP to have discontinued the charge of possession for sale and to have kept the other charges up its sleeve when they were all based on an acceptance of Ms Newman’s statements. In my opinion, it was implicit in the undertaking given to the Chief Judge that Ms Newman would not be charged with the offences which are now the subject of a possible prosecution.
It is essential to the integrity and the proper administration of the criminal justice system that the DPP comply with undertakings of the type given to the Chief Judge in the absence of good reason: see generally, Rona v The District Court of South Australia (1995) 63 SASR 223 & 226-227; The Queen v Mohi (2000) 78 SASR 55; Williamson v Trainor [1992] 2 Qd R 572; 56 A Crim R 102. There is no good reason for the DPP’s departure from the implied undertaking given in this case. It constitutes unfair and oppressive conduct.
In my opinion the DPP’s threat to prosecute is unconscionable even if the undertaking given to the Chief Judge was not intended to extend beyond the offence of possession for sale. To charge Ms Newman with other drug offences on the basis of statements which the prosecution has rejected as false would be an abuse of the DPP’s prosecution powers and manifestly inconsistent with the approach taken before the Chief Judge.
The decision to prosecute is an important an onerous responsibility. As stated in the DPP’s Statement of Prosecution Policy and Guidelines (which form part of the uniform prosecution policy adopted by the DPP’s of all States and the Commonwealth in 1990):
“A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. This basic criterion is the cornerstone of the uniform prosecution policy adopted in Australia.
The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, tends to undermine the confidence of the community in the criminal justice system.
…
The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused. There is a continuing obligation to assess the evidence as the matter proceeds.
…”
The DPP has previously rejected as unreliable the only evidence that implicates Ms Newman in offences under the CSA. To now threaten to charge Ms Newman if she gives evidence in accordance with that rejected material is blatantly unfair and inconsistent with the DPP’s decision-making policy. Indeed, in the absence of a good reason for the DPP’s changed approach one could be forgiven for thinking that the DDP was motivated by a desire to dissuade Ms Newman from giving evidence.
When pressed for an explanation for the DPP’s complete about face Mr Lesses submitted that it would be appropriate to charge Ms Newman if she gave evidence to the same effect as her statements because such evidence would amount to “a second statement …. a second confession to a potential offence or offences”. That explanation, with respect is entirely illogical. The DPP has rejected her account. Mere repitition of her account in the witness box would not transform it into a reliable one.
I do not consider that the DPP’s conduct will necessarily result in an unfair trial. It is possible that Ms Newman might choose to give evidence despite the threat of possible prosecution. But as the authorities show, the jurisdiction to stay criminal proceedings is not confined to cases where an accused person will suffer an unfair trial or where the proceedings are instituted for an improper purpose. The court may permanently stay proceedings where the prosecution embarks upon a course of conduct which is of a sufficiently oppressive kind as to jeopardise the proper operation of the courts functions. An important function of the court is to ensure that an accused person receives a fair trial. Here, the DPP has engaged in oppressive conduct knowing that it might result in Ms Newman refusing to give evidence thereby prejudicing the applicant’s defence. In my view the DPP’s conduct should not be countenanced.
Furthermore, I agree with Ms Powell’s submission that the absence of any sound reason for the DPP’s new stance in relation to Ms Newman gives rise to a perception that it has been motivated by desire to dissuade the witness from giving evidence for the defence. I do not say that that was necessarily the DPP’s motive, but right thinking members of the public would be entitled to come to that view. Such a view can only serve to erode public confidence in the manner in which justice is administered.
It was for these reasons that, on 11 April 2005, I permanently stayed the proceedings against the applicant.