R v Faiello and Newman No. DCCRM-02-224

R v NICOLA ROCCO FAIELLO AND NATALIE JOANNE NEWMAN
[2003] SADC 89
CHIEF JUDGE WORTHINGTON
CRIMINAL

The first accused, Mr Faiello, and the second accused, Ms Newman, complain of abuse of process. The following outline will suffice for present purposes.
On Sunday, 23 September 2001 the first accused and Ms Ursula Thompson were arrested and charged by police for taking part in the sale of a prohibited substance, ecstasy. On the Crown case, the first accused had been seen by police officers in a car, owned by Ms Thompson, holding a bag in which there were 112 tablets containing ecstasy.
The DPP subsequently charged them jointly with possessing ecstasy for sale. The first accused was committed for trial on 14 February 2002, but the magistrate found that Ms Thompson had no case to answer. The first accused appeared in this court on 25 March 2002 for arraignment on the charge of possessing ecstasy for sale.
On 17 April 2002 the second accused gave a signed statement to her solicitor in which she said that, inter alia, the ecstasy tablets belonged to her and not the first accused, and she gave an account of how they came into her possession and how they came to be in the car owned by Ms Thompson. A copy of that statement was sent to the DPP, and on 29 May 2002 she was interviewed at the Adelaide Police Station by Police Officer Mann in the company of her solicitor. On the basis of that statement and the interview, she was charged with possessing ecstasy for sale. On 26 July 2002 she pleaded not guilty and was committed for trial to this Court.
The Director then filed an information in this Court on 30 August 2002 jointly charging both accused with two offences: possessing methylamphetamine for sale and possessing ecstasy for sale. These were counts 1 and 2 on the information presented for the 2 September 2002 sessions. It is said that the charge concerning methylamphetamine was included because there were traces of it in the tablets. For present purposes, nothing turns on that. The second accused was also charged separately on the same information with fabricating evidence (count 3). The evidence alleged to have been fabricated was contained in the statement she gave to her solicitor and her interview with Mr Mann. Both accused were arraigned on 2 September 2002 and pleaded not guilty.
There were then a number of directions hearings, and on 15 January 2003 the matter was set down for trial on Tuesday, 3 June 2003. For reasons unassociated with this case, the trial could not start until the following day, 4 June. However, on 23 May 2003, just after he had received the brief, Mr Schapel, for the second accused, requested the DPP for particulars of the count of fabricating evidence. On 28 May, six days before the trial was due to begin, the Director filed a fresh information in this court and sent a copy to Mr Schapel. That information charges the first accused with one count of possessing ecstasy for sale on 23 September 2001 and charges the second accused with fabricating evidence between 16 April 2002 and 30 May 2002. Thus, both drug charges against the second accused were removed in the new information, as was the charge of possessing methylamphetamine for sale against the first accused. On 29 May the Director replied to Mr Schapel’s request for particulars. In short, those particulars state that the substance of her statement and her interview regarding the ecstasy tablets is a fabrication.
There are a number of applications before the court. At this stage I am concerned with the application by each accused pursuant to Rule 8 to quash or stay the proceedings on the ground of an abuse of process. I deal first with the application by the second accused.
The trial process begins with the information laid before the magistrate, and those proceedings continue as a single entity until there is a verdict at the conclusion of the trial or the proceedings are otherwise disposed of. I respectfully adopt the remarks of Lander J in R v Jason Hackett (1996) 185 LSJS 156 at 165 where he said:
‘In my opinion, the Information which is laid before the Magistrate commences the same proceedings which are in due course determined by a Judge or a Judge sitting with a jury. The information which is laid before the Magistrate generates a procedure which requires the Magistrates Court to determine whether there is sufficient evidence to put the defendant upon his trial. They are not separate proceedings, in my opinion, to those proceedings which are in due course heard in the superior court. ............................... They are one and the same proceedings, in my opinion, from start to finish’.
The proceedings against the second accused began with the information laid in the Magistrates Court charging her with possession of ecstasy for sale. There is no doubt that this charge was based on the evidence constituted by the statement of 17 April 2002 and parts of her interview with Mr Mann on 29 May 2002. Her first appearance in the Magistrates Court was on 21 June 2002 and, as mentioned, she was committed for trial on 26 July 2002. The additional charges against her were laid ex officio by the Director. Neither accused has yet been arraigned on the information filed on 28 May.
Having regard to the nature of the trial process, it is necessary to look at the proceedings against her as a whole. They began in the Magistrates Court and the charge upon which she was committed for trial was possession of ecstasy for sale on 23 September 2001. The charge she now faces at trial is wholly inconsistent with that charge, i.e., alleging that the basis relied on by the Crown for the charge on which she was put upon trial is a complete fabrication. This is not a case where further consideration of the evidence relied on at the committal hearing has resulted in the framing of a charge thought to be more appropriate - eg a more or less aggravated form of charge - cf. R v Koolmatrie (1989) 52 SASR 482 at 498. The charge she faces at the time of trial is not only of a wholly different character to the one on which she was sent to trial, it totally contradicts the Crown case on which she was committed for trial. Nothing is left of the basis upon which she was committed for trial and Mr Lesses, for the Director, informs the court that the charge against the second accused of possession for sale has now been completely abandoned. Although the focus of the drug charges and the fabrication charge comes from the events of 23 September 2001, that is where the connection ends. The facts alleged to have given rise to the charge of fabricating evidence did not occur until April and May 2002.
Although it is a power that should be exercised only with great care, it is well established that a court may permanently stay criminal proceedings for abuse of process if the interests of justice demand it. It is a matter of balance between ensuring that charges are properly presented for trial and not granting a stay on insufficient grounds, on the one hand, and policy considerations which require the court to ensure the integrity of its own process, on the other.
In Williams v Spautz (1991-1992) 174 CLR 509, in their joint judgment Mason CJ, Dawson Toohey and McHugh JJ referred to the two fundamental policy considerations that arise. They said at p.520:
‘The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.’
In describing the circumstances in which such considerations may arise, their Honours referred to Richardson J in Moevao v Department of Labour(1980) 1 NZLR 464 where he said that the court may intervene ‘if it concludes ................... that the court processes are being employed for ulterior purposes or in such a way ....................... as to cause improper vexation and oppression’ (at 481).
Mr Schapel put a number of submissions based on the information itself. It is unnecessary to consider his submissions in relation to ulterior purpose. Whether the total change in character of the proceedings has been brought about by, as suggested, a perceived forensic advantage to the Crown by framing the information of 2 September 2002 in the way it was, or whether there is some other explanation for the history of this matter, the end result is that the second accused is facing trial on a totally contradictory charge to the one on which she was sent to trial. Moreover, in the process of getting there, for some nine months, in conjunction with the first accused, she faced the charges of possessing ecstasy and methylamphetamine for sale as well as the contradictory charge of fabricating the evidence on which those two charges were based. It cannot be said that the drug charges were alternatives to the charge of fabricating evidence; they were mutually exclusive of each other.
Looked at as a whole, the proceedings against her are such that they have caused oppression and, in my opinion, are a misuse of the court’s procedures. It is fundamental to the criminal justice system that the accused be aware from the start of proceedings of the charge being faced. There is ample authority for that proposition, eg Barton v The Queen (1980) 147 CLR 75. That was not done here, and to allow the charge of fabricating evidence to proceed to trial would be to ignore that principle. In my opinion, the Director can get no assistance from the fact that, during the period between September 2002 and last week, the current charge was included with the mutually exclusive charges based on her statement. At best, that left her in a state of uncertainty about the Crown case (or cases) against her, and when the position was clarified a few days ago it became clear that the case being brought to trial is wholly inconsistent with how these proceedings began in the Magistrates Court.
In the circumstances, it is unnecessary to deal with the other submissions by Mr Schapel concerning the power of the Director to lay an ex officio information and the detriment said to flow from there having been no preliminary hearing on the fabrication charge.
For the reasons given, the second accused has made good her complaint that there has been an abuse of process, such that the charge against her in count 2 of the information dated 3 June 2003 should be permanently stayed.
I turn now to the application by the first accused.
In support of his application, the first accused does not rely on the information as it now stands but as it was between September 2002 and the filing of the fresh information on 28 May 2003. Nevertheless, there is some common ground in the two applications, and the principles enunciated in the authorities to which I have already referred are germane to his application.
Ms Powell QC, for the first accused, submits that the information of 2 September 2002 was internally inconsistent, inconsistent with the facts as known to the Director, and not capable of being sustained. To the extent that both accused were charged with possessing drugs for sale on 23 September 2001, she submits that inherently these charges were mutually exclusive and that, as a result, it was effectively asking the court and, in particular, the jury to decide which of the two of them was guilty of either or both of those offences, which could never substantiate a case to answer against either of them (R v Conlon and Conlon (1982) 30 SASR 176 per Cox J at 184). In addition, she submits that at all material times after the arraignment in September 2002 and until the matter was set for trial in January of this year, the Crown at a number of directions hearings pressed for those charges to be set down for trial, asserting that it was ready to proceed, although at a directions hearing on 15 May 2002 the then prosecutor made mention of a possible nolle for the first accused.
It is submitted that he was equally burdened by the presence of the charge against the second accused of fabricating evidence which was wholly inconsistent with the joint charge of possession for sale. While I accept that the inconsistency in both relying upon and disavowing the confession of the second accused might have given the Crown a forensic advantage in prosecuting that information, it does not necessarily follow that this created an inherent and unavoidable inconsistency in the case against the first accused. Such matters may have been the subject of applications under Rule 9, but that does not bear on what is before me now.
The Crown case against the first accused of possessing drugs for sale has at all times been based on events that occurred on 23 September 2001. They include the observations of the police officers shortly before and at the time of his arrest, the search of him personally, the search of his room at his parents’ house and the interviews that were conducted by the police. That has not changed.
It is true that for some nine months the second accused was jointly charged with possession for sale based on the evidence of the second accused which was also the subject of the then count 3. However, I do not accept that it follows that the charges against each accused of possessing drugs for sale were necessarily mutually exclusive. There is no evidence to suggest a joint enterprise, but, nonetheless, given the circumstances in which the second accused said that she left the bag of tablets in the car, it cannot be said to be inevitable that there is no possibility of a finding of ownership on her part and of possession on his part for the purposes of the charge. It may be that such a possibility is remote and that the evidence to support it is not strong, but that would not be relevant to this application.
I do not accept that the information of September 2002 was such that, on its face, it was unsustainable against the first accused. I accept that the situation in which he found himself while he was a co-accused on that information was unsatisfactory and that he faced some anguish and uncertainty as a result of the charges against the second accused. But, unlike the second accused, the charge upon which he now faces trial is the same as the one he faced at the start of these proceedings and it has never been repudiated by the Director, even if, for some time, there was an additional component. Further, I am not persuaded that the matters canvassed in the directions hearings, including the mention of a possible nolle, advance the cause of the first accused on this application.
For these reasons, the first accused has not established that there was an abuse of process in relation to him, and the application is refused.
There will be a permanent stay of count 2 in respect of the second accused.

[2003] SADC 89

6 June 2003