R v FRANCO

[2008] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v FRANCO

[2008] SADC 126

Reasons for Decision of Her Honour Judge McIntyre

2 September 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS

Application for stay of proceedings when alternative remedies available to the accused - whether District Court has jurisdiction if matter has been "improperly" committed - discussion of general principles of abuse of process - application for stay of proceedings dismissed.

District Court Criminal Rules 1987 Rule 8; Controlled Substances Act 1984 s32(1)(b), s32(1)(e); Criminal Law Consolidation Act 1935 s277, referred to.
R v Harris (No.3) (1990) VR 305 ; R v O'Neill (1989) 53 SASR 1; Barton v R (1980) 147 CLR 75 at 95 ; Williams v Spautz (1992) 174 CLR 509 at 529; R v Barton (1980) 147 CLR 75 at 111; Jago v District Court of New South Wales and Others (1989) 168 CLR 23 at 45-48; R v McGee (2008)  SADC 8 AT [19]-[34]; R v Pfitzner (1976) 15 SASR 171; R v Maggs [2008] SADC 105 ; Johnson v Miller (1937) 59 CLR 467, considered.

R v FRANCO
[2008] SADC 126

The Application

1. The accused applied, pursuant to Rule 8 of the District Court Criminal Rules, for the following orders:

   1.      That the fresh information filed on 6 May 2008 be quashed.

   2. In the alternative, the Information be permanently stayed or    stayed until further order.

   3.      Such further order, orders or directions as the court deems fit.

2. The application is supported by an affidavit of Mr Mancini sworn on 7 May 2008. 

3. I heard argument on the application on 8 May 2008.  I gave a ruling, with brief reasons, declining that application on Friday 9 May 2008.  These are the detailed reasons for that ruling as requested by the accused. 

   Background

4. On 14 July 2006 the accused was committed for trial on a charge of taking part in the production of methylamphetamine contrary to s.32(1)(b) of the Controlled Substances Act (1984) (“The Act”)

5. On 14 August 2006 the accused was arraigned in the District Court on an Information dated 14 August 2006. The first count alleged that he and Golda Marie Reading took part in the manufacture of methylamphetamine contrary to s.32(1)(b) of the Act between 1 August 2005 and 11 August 2005 at Paralowie. The second count alleged possession of methylamphetamine for sale contrary to s.32(1)(e) of the Act on 11 August 2005 at Paralowie.

6. On 6 May 2008 the prosecution filed a fresh Information alleging two counts of taking part in the manufacture of methylamphetamine.  Count 1 is particularised as having occurred at Paralowie on 20 July 2005.  Count 2 is alleged to have occurred at Paralowie on 11 August 2005.  The accused’s application relates to that information (“the May information”). 

7. The defence says, correctly, that there was no committal in relation to the May Information.  It is further said that it was issued without prior notice to the accused and without his consent.[1]

   [1] Affidavit of Mr Mancini  sworn 7 May 2008 para. 13

8. The prosecution says that the evidence giving rise to the two counts in the May information is set out in the statement of witnesses which were relied upon as forming the basis for the committal of the accused for trial to the District Court.  In addition the prosecution relies upon the statement of Golda Marie Reading dated 6 August 2007 that was made available to the defence in August 2007.  The prosecution says that the accused has been on notice that the prosecution intended to lead evidence regarding his movements and actions on 20 July 2005 in relation to the prior Information and specifically the count of taking part in the manufacture of methylamphetamine said to have occurred between 1 August 2005 and 11 August 2005.  There is no new evidentiary material.  The prosecution says further that there is nothing new in the allegation that the accused was involved in the production of methylamphetamine on 20 July 2005.  All that is changed is that he now faces a criminal charge arising out of his activities on that day. 

9. Mr Niarchos QC, for the accused, conceded that the DPP was able to lay the May information, as the accused had not been formally arraigned.  This is clearly correct[2].  The Director of Public Prosecutions retains discretion to file an Information in court for an offence that does not strictly correspond with the charges upon which the accused has been committed for trial.  Such a practice is not uncommon and there is no jurisdiction in the court to review a decision by the Director to present a new information arising out of the same facts upon which the accused was committed for trial.[3] 

   [2] R v. Harris (No. 3) (1990) VR 305;

   [3] R. v. O’Neill (1989) 53 SASR 1

10. Accordingly, the May information has been properly laid.  The issue is whether it should be quashed or stayed as the accused contends.

    Grounds

11. Particulars of the grounds relied on in support of the application that the May information be quashed or stayed are set out in the application.  I will not repeat them.  They were detailed under headings in the application as follows:

    ·Election by prosecution

    ·Duplicity

    ·Particulars

    ·Delay

12. Mr Niarchos QC submitted that the DPP must make an election as to the information upon which it is proceeding and that it was necessary for a nolle prosequi to be entered in relation to the information that was not to proceed.  He further contended that the May Information was bad for duplicity and that inadequate particulars had been provided.  Finally, he submitted that the May Information should be quashed due to delay and the destruction of exhibits.

    General considerations

13. There are some general considerations that I should bear in mind whilst considering this application. 

14. The accused is entitled to a fair trial.  The Court has an inherent power to stay proceedings in order to prevent an abuse of process and to ensure a fair trial.[4]

    [4] Barton v R (1980) 147 CLR 75 at p95

15. The onus of satisfying the court that an abuse of process exists lies on the party alleging it.  The onus is a heavy one.  The power to grant a permanent stay of proceedings is discretionary and should be exercised in only the most exceptional circumstances.[5]  The case law clearly establishes that a permanent stay is a step of last resort.  There must be 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.[6] 

    [5] Williams v Spautz (1992) 174 CLR 509 at 529

    [6] R v Barton (1980) 147 CLR 75 at 111

16. The prejudice must be real and substantial rather than presumed; there is no power to grant a permanent stay of proceedings on the ground of presumptive prejudice.[7]

    [7] Jago v  The District Court of New South Wales And Others (1989) 168 CLR 23 at 45-48

    Fresh Information

17. It is incumbent on the prosecution, as contended by the defence, to advise which Information it is proceeding upon.  Much has been made of the refusal of the prosecution to enter a nolle prosequi in relation to the earlier charges.  The submissions put to me appear to confuse the entering of a nolle prosequi with an election.  The DPP indicated, through his counsel Mr Pearce QC, that he wishes to proceed on the May information in substitution for the prior information.  He further indicated that he would not enter a nolle prosequi in relation to the previous information at the stage of proceedings we were then at.

18. The defence referred to R v Harris[8], a decision of the Supreme Court of Victoria.  This decision makes it plain that the prosecution is entitled to file a second information before arraignment and that the prosecution must, upon the filing and laying of a second information, thereafter elect as to which information it wishes to prosecute and it must do that before the arraignment takes place.  This is precisely what has occurred in this matter.  In Harris (supra) the Court considered what should occur once an election took place and stated that:

    For present purposes, I consider that the appropriate order is that when the crown    elects upon which inditement it wishes to proceed, I should order that proceedings       on the other inditement be permanently stayed.  Upon appropriate application     immediately before or after arraignment, I therefore propose to make such an        order.[9]

    [8] Note 2 above

    [9] p309

19. No such application was made to me, nor was the accused arraigned on the May information.  The Rule 8 application before me was an application to quash or permanently stay the Information dated 6 May 2008. 

20. It is plain from this decision that the DPP is not required to enter a nolle prosequi in order to make a valid election.  The election requires no more than a clear indication as to which information the DPP intends to proceed upon.  Further, I do not consider that the refusal of the DPP to enter a nolle prosequi in relation to the previous information, at that stage of the proceedings, caused any disadvantage to the accused.  There was no ambiguity about the information upon which the trial would proceed.  It was the May information.  Other steps could be taken in relation to the earlier information.

    Particulars

21. The second basis upon which it was contended the May Information be quashed or stayed was the failure to provide adequate particulars.

22. Section 277(1) of the Criminal Law Consolidation Act 1935 (“CLCA”) provides that every Information shall contain a statement of the specific offence or offences and such particulars as are necessary for giving reasonable information as to the nature of the charge.

23. It is contended by the defence that what has been provided by the prosecution, as set out in the May Information and by way of what was stated on the transcript by counsel for the DPP, does not conform to the requirements of s.277(1)

24. The May Information complied with the requirements of s.277(1) of the CLCA in that it provides a statement of a specific offence. The issue is whether the particulars provided give reasonable information as to the nature of the charge.

25. Particulars must be sufficient but not framed in a way that is oppressive or unfair.  They must identify the case to be met by the accused; they must have certainty and must not be framed too wide.[10]

    [10] R v McGee (2008) SADC 8 at para [19]-[34]

26. I was referred to the decision of R v Pfitzner[11] and in particular to the comments of Wells J:

    Particulars in an information tend to belie their own name.  They are an aid, that     can never be more than an aid, to determining what exactly the defence have called   on to answer.  Even where, at the end of the trial, they are indisputably correct as     they stand, they could not, on their own, have performed the broad task of ensuring that the forensic contest is directed to the same issues, and that the accused is treated fairly.[12]

    [11] (1976) 15 SASR 171

    [12] Above note 11 p192

27. This clearly draws a distinction between evidence and particulars.  The particulars in the May Information identify the nature, date and location of the asserted offences.  The May information is more specific in terms of the date of the offence of taking part in the manufacture of methylamphetamine than the prior information the prior information alleging a date range rather than a specific date. 

28. Further the prosecution provided information concerning the evidence that it will be relying upon in relation to these charges on the transcript on 5 May 2008 and 8 May 2008. 

29. Mr Niarchos QC submitted that the case the accused was to meet and the specific act or acts he is alleged to have performed on the two separate counts charged on the May Information remained unclear.  The prosecution it is said failed to provide specific particulars of physical elements of the offence committed on each of the counts.  That failure has a number of consequences including that the accused does not know precisely the case that he is to meet and the manner on which it is alleged to have been committed.  I note the comments of the Chief Justice in R v Maggsdealing with similar charges where it was said:

    The prosecution case was that the jury should find that immediately before the       police entered the shed, Mr Maggs was taking part in the production of    methylamphetamine, using the equipment and the chemicals and the liquids found         in the shed.  The prosecution did not claim to identify any particular act on the part   of Mr Maggs that made him guilty of the offence as charged, and did not need to.[13]

    [13] [2008] SADC 105 at para 18

30. It is plain therefore that the prosecution does not have to identify any particular act on the part of the accused in this matter to make good the charge of taking part in production.  The concept of taking part in production is a wide concept as is made plain by the Chief Justice in Maggs[14].

    [14] Above note 13 at para 20

31. The combination of the particulars and the exposition of the evidence upon which the prosecution will be relying more than adequately enabled the accused to know the nature of the charge he must meet. I see no basis under s.277 CLCA requiring further particularisation of the charges.

    Duplicity

32. It is said that there is either latent or actual duplicity in the two charges outlined in the May Information.  It is a fundamental principle that a count may only charge one offence[15].  Duplicity can occur when a single count purports to charge more than one offence or if the evidence led in support of the count reveals the commission of a number of offences each of which could be the offence referred to in that count. 

    [15] Johnson v Miller (1937) 59 CLR 467

33. The charges in the May Information identify two separate activities on two separate dates.  The counts on their face do not apparently refer to more than offence.  It appears therefore that there is nothing objectionable about the form of the counts.  The issue is therefore whether evidence to be led reveals a number of possible offences each apparently fitting the requirements of the single count. 

34. The defence relies on R v Maggs.[16]The accused in that case was also charged with two counts of taking part in the manufacture of methylamphetamine.  The Court of Criminal Appeal allowed an appeal against conviction on a second count on the basis that the evidence could not support conviction of two separate offences as separately charged.  Mr Niarchos QC referred in particular to the comments of the Chief Justice at paragraphs 36 to 37 of the decision. 

    [16] [2008] SADC 105

35. The facts in the matters of Maggs[17] however were somewhat different to the present case.  The accused there was charged in relation to two quantities of liquid located on the same day.  The liquids were liquid methylamphetamine the subject of count 1 and pseudoephedrine the subject of count 2.  The difficulty was that the evidence before the jury did not support a conclusion that two separate processes of production or manufacture had been undertaken.  It was possible that the liquid, the subject of count 2 was the residue of the source of the liquid the subject of count 1.  Further, the jury had not been directed to consider the matters that had to be decided if two convictions were to be recorded.  On that basis it was held that each batch of liquid could not constitute a separate charge and the accused’s conviction on the second count was set aside.

    [17] Above note 16

36. It is plain from the decision in R v Maggs[18] that, had there been evidence leading to a conclusion that the liquid the subject of count 1 was the product of a process of production or manufacture separate and distinct from the process of production or manufacture involving the liquid the subject of count 2, the charges would not have been duplicitous. 

    [18] Above note 16

37. In this matter the two counts are three weeks apart.  There is evidence that, if accepted, is capable of establishing two separate processes of manufacture.  Each count will need to be considered separately and the jury directed accordingly.  In those circumstances I do not consider the charges to be bad for duplicity.

    Destruction of Exhibits

38. The accused submits that for the reasons set out in the application at paragraph 10 and in the Affidavit of Mr Mancini dated 7 May 2008 at paragraphs 14 to 18 the May Information ought be quashed or permanently stayed because:

    ·There is nothing which can now remedy the prejudice arising out of the delay and destruction of items of physical evidence;

    ·The prosecution has not produced any evidence that there was fingerprinting or other analysis of the “destroyed” items;

    ·The inability to undertake forensic testing and other investigations as identified goes to the root of the fairness of the trial itself. 

39. Mr Mancini in paragraph 14 of his affidavit indicates that the prosecution has provided witness statements of police that attended at the Paralowie premises and seized various items.  The witness statements indicate that numerous items seized by police on 11 and 12 August 2005 were destroyed.  The destruction of these items was without notice to the accused, in the absence of his consent, undertaken at a time when the only relevant charge he was facing was that before the Adelaide Magistrates Court and whilst he was in custody.  Mr Mancini’s affidavit makes it plain that not all the items seized were destroyed.  The exhibit list annexed to his affidavit indicates that there are a number of exhibits sampled and retained.  In effect what has been destroyed is the hardware and some of the chemicals but the balance of evidentiary samples have been kept.  These items are the materials, on the prosecution case, that give rise to the suggestion that drugs were being produced.  These remain available for inspection and examination. 

40. It is not contended by the accused that the destruction of the evidence was unlawful or that the requirements of s.52A of the Act were not complied with. 

41. The previous Information included a charge of taking part in the manufacture of methylamphetamine between 1 August 2005 and 11 August 2005.  The DPP relied upon the same exhibits.  There was no complaint about the destruction of exhibits in relation to that information. 

42. It is said that there now arises, by reason of count 1, the need for forensic analysis in respect of all items and substances seized at the Paralowie premises including those which have apparently been destroyed.  It is said:

    The need and importance for doing so has only now occurred by virtue of the fact    that the prosecution case has significantly changed in the laying of count 1 that he        took part in the production of methylamphetamine on 20 July 2000 (sic) that being      “an earlier cook” using the same equipment.[19]

    [19] Affidavit of Mr Mancini sworn 7 May 2008  para 16

43. The disadvantage identified is the inability to test for fingerprints or DNA.  Presumably the intention is to establish that some other person’s DNA or fingerprints are on the items and/or that the accused’s fingerprints or DNA are not on the items.  Given the lapse of time between 20 July 2005 and 11 August 2005 when the items were seized it is by no means certain that any such examination would have assisted in relation to the charge on 20 July 2005. 

44. Accordingly it is my view that the accused cannot show prejudice that is real and substantial rather than presumed by reason of the destruction of these items.

45. I also note that the defence does not have to prove that someone else undertook the manufacture of methylamphetamine on 20 July 2005 in order to escape conviction.  It is for the prosecution to prove that it was the accused.   The lack of DNA/fingerprint evidence relating to the activities on 20 July 2005 may be an issue for the prosecution and, no doubt, will be the subject of defence comment to the jury.

    Delay

1. The submissions concerning the delay in lodging the May Information formed part of the submissions in relation to the destruction of evidence.  No other prejudice arising from delay was asserted.  In any event, whilst it is unfortunate that the May Information was laid at such a late stage, it is plain that the accused’s activities on 20 July 2005 were previously relied upon by the DPP as an uncharged act.  That this was clearly understood by the accused is evident by the accused’s application under Rule 9 dated 1 May 2008 seeking, inter alia, to exclude evidence relating to these activities.  The activities on 11 August 2005 were included in the previous Information.

   Conclusion

2. For these reasons I made the Ruling on 9 May 2008 declining the accused’s application under Rule 8 of the District Court Criminal Rules.