R v Hanlon (No 2) - [2022] SADC 128

District Court of South Australia
(Criminal: Application for Stay of Proceedings)
R v HANLON (No 2)
[2022] SADC 128
Reasons for Ruling of his Honour Judge Heffernan
24 October 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
FAIR TRIAL
OPPRESSION
FOREDOOMED TO FAIL
The defendant is charged with one count of abuse of public office and two counts of dishonestly dealing with documents. Charges laid in the Magistrates Court were dismissed. The Director has filed an ex officio Information based on the same factual background as the Magistrates Court charges. The defendant contends that the proceedings are an abuse of process because the prosecutor at committal conceded no case to answer. He further submits that the charges are foredoomed to fail.
Held: Application dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 238 and 251; Criminal Procedure Act 1921 (SA) s 103; District Court Criminal Rules 2014 (SA) 49(1)(d), referred to.
R v Hanlon [2022] SADC 85; Barton v The Queen (1980) 147 CLR 75; Walton v Gardiner (1993) 177 CLR 378; R v Gagliardi and Filippidis (1987) 45 SASR 418; R v Petroulias (No 1) (2006) 177 A Crim R 153; R v McGee (2008) 102 SASR 318; Jago v District Court (NSW) (1989) 168 CLR 23; Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; Rona v District Court (SA) (1995) 63 SASR 223; R v Ratcliff, Stanfield & Utting [2007] SASC 297; R v Mellifont (1992) 64 A Crim R 75; CB v Director of Public Prosecutions (NSW) (2013) 231 A Crim R 522; Johnson v Miller (1937) 59 CLR 467, considered.

R v HANLON (No 2)
[2022] SADC 128
[Criminal Jurisdiction]

The defendant is charged on ex officio Information dated 22 October 2021, with one count of abuse of public office and two counts of dishonestly dealing with documents.
The defendant has made a pre-trial application pursuant to Rule 49(1)(d) of the District Court Criminal Rules 2014 seeking that these proceedings be stayed.
The defendant seeks the following orders:
1.An order that this action be permanently stayed on the grounds that the laying of the ex officio Information dated 22 October 2021 (the ex officio Information) is an abuse of process: and/or
2.In the alternative to paragraph 1, an order that each count on the ex officio Information be permanently stayed or dismissed on the grounds that the prosecution of that count is foredoomed to fail.
In the alternative to those two orders should I not grant them, the defendant seeks an order for a temporary stay of proceedings until such time as the prosecution provides further and better particulars of each of the charges.
I have previously summarised in detail the background of the allegations and the procedural history of this matter in an earlier ruling relating to an application for a subpoena.[1] It is not necessary for me to again set out in detail the factual and procedural background to this matter.
[1] [2022] SADC 85.
The written particulars to this application are lengthy but can be summarised as follows.
Stay for abuse of process
The defendant was originally arrested and charged on 5 May 2020, with two counts of abuse of public office, three counts of deception, five counts of dishonestly dealing with documents and one count of acting dishonestly. Several of those counts related to a trip he had made to Berlin in September 2017. That trip was purported to be taken in his capacity as the Chief Executive (‘CE’) of Renewal SA. The trip was funded by that body. The prosecution alleged at the time of committal that the defendant’s purpose in travelling to Berlin was personal and not for business reasons connected to his role as CE. In effect, the prosecution allegation at the time the charges were first laid in the Magistrates Court, was that the accused had tried to dress up a holiday in the cloak of a business trip.
During the committal proceedings, the defendant made clear to the prosecution and the court that it was his intention to make a submission of no case to answer. Before the oral examination phase had concluded, a conference took place between the defendant’s representatives and the prosecutor. The prosecutor conceded that the prosecution could not establish that no work was done by the defendant whilst in Berlin and as a consequence it could not establish a case to answer against him on any of the counts on the Magistrates Court Information. When the matter was called back on the prosecutor repeated that concession and conceded there was no case to answer. Faced with that concession, the presiding Magistrate found no case to answer on each count.
The Director of Public Prosecutions (the Director) laid an ex officio Information in this court charging the defendant with one count of abuse of public office and two counts of dishonestly dealing with documents. The defendant observes that no additional evidence was disclosed by the prosecution prior to laying the ex officio Information. He submits that he has, in effect, been charged for the same conduct with respect to which the Director conceded no case to answer in the lower court (the concession).
Given the concession made by the prosecution, the defendant contends that it is an abuse of process for the prosecution to depart from that position and to now conduct its case on the basis that it does not have to prove that no work was done.
Stay - Prosecution Foredoomed to Fail
Central to this argument is the contention that each count on the ex officio Information requires proof beyond reasonable doubt that the defendant did not undertake any work connected with Renewal SA affairs whilst in Berlin. It is contended that the prosecution case is foredoomed to fail because the evidence does not and cannot account for every movement or utterance of the defendant whilst he was in Berlin. It is incapable of rebutting the explanations which the defendant has volunteered as to his reasons for the travel. It is also incapable of rebutting what he says he did, why he did it and how it related to his role at Renewal SA. In short, the defendant says that the evidence is incapable of establishing that he did no work at all in relation to Renewal SA affairs whilst in Berlin.
The prosecution opposes both grounds of the application. It submits that it is not necessary for it to prove beyond reasonable doubt that no work was done by the defendant whilst in Berlin in order to make out any of the charges.
It is well established that the onus of establishing an abuse of process lies on the party asserting it.
Defence submissions
The defendant conceded that the court does not have jurisdiction to review the decision of the Director to file an ex officio Information.[2] Rather, the defence application is based on the contention that the court should stay the proceedings because the processes and procedures of the court are being used as instruments of unfairness and injustice.[3] If that is accepted, the effect of the Director doing so has the tendency to bring the administration of justice into disrepute, with a potential consequent erosion of public confidence in the system of justice.[4]
[2] Barton v The Queen (1980) 147 CLR 75.
[3] Walton v Gardiner (1993) 177 CLR 378, 392-3.
[4] Ibid.
In filing the ex officio Information, having conceded no case to answer at committal, and in reformulating its position to present its case on the basis that it is not necessary to prove that no work was done in Berlin, the defendant is subjected to manifest unfairness at the hands of the prosecution. The filing of the ex officio Information is asserted to be unprincipled, disingenuous, and motivated by factors extraneous to the proper discharge of the Director’s duties. The conduct of this prosecution by the Director is, in effect, oppressive and an affront to the public conscience.[5]
[5] R v Gagliardi and Filippidis (1987) 45 SASR 418.
Counsel referred me to the observations of Olsson J in R v Gagliardi and Filippidis that in the ordinary course the finding of no case to answer at committal proceedings results in the finalization of a matter and that proceedings on an ex officio Information will be a rare exception confined to a limited category of circumstances.
Counsel for the defendant submitted that the Director’s own Statement of Prosecution Policy and Guidelines acknowledges the exceptionality of an ex officio Information. I was referred to Guideline No. 4:
… On the other hand, a decision to indict, notwithstanding the accused was discharged at the committal proceedings, will not constitute as great a departure from accepted practice. The result of committal proceedings has never been regarded as binding on those who have the authority to indict. An error may have resulted in the magistrate discharging the accused, and in such a case the filing of an ex officio information may be the only feasible way that the error can be corrected. Nevertheless, a decision to indict following a discharge at the committal proceedings should never be taken lightly. An ex officio information should not be presented in such cases unless it can be confidently asserted that the Magistrate erred in declining to commit, or fresh evidence has since become available and it picked can be confidently asserted that, if the evidence had been available at the time of the committal proceedings, the magistrate would have committed the accused for trial. In the event that fresh evidence is received, consideration will be given to reinstituting the committal proceedings.
The defendant emphasised that this was not a case in which new evidence had come to light. This was a case in which the prosecution is proceeding on what are, in effect, the same charges against the same factual background. Further, the committal process was cut short as only three of the potential witnesses from whom it was proposed oral evidence would be received at committal gave evidence.
With respect to the submission that I should order a stay on the basis that each of the charges was foredoomed to fail, the defendant maintained that it was necessary for the prosecution to be able to prove beyond reasonable doubt that the defendant did no Renewal SA work whilst in Berlin. A foredoomed to fail submission is focused on the prospects of conviction and not on the propriety with which or manner in which proceedings have been instituted.[6] The defendant submitted that the court should be satisfied that all counts on the ex officio Information which would ‘inevitably and manifestly fail’.[7]
[6] Walton v Gardiner (n 3) 393.
[7] Ibid 278, 411.
It was accepted by the defendant that the test for establishing that a charge is foredoomed is stricter than the test for no case to answer.[8]
[8] R v McGee (2008) 102 SASR 318 [88].
Counsel for the defendant submitted that the prosecution must in reality be setting out to prove that the defendant did no work for the benefit of his employer whilst in Berlin. The prosecution case could not be otherwise, because if the defendant did attend to some work whilst in Berlin then unless it was nominal or qualitatively useless, he was entitled to the benefit of the daily allowance and having his airfares met by Renewal SA.
Further, it was necessary for the prosecution to disprove any reasonable hypothesis consistent with the innocence of the accused. In that regard the defendant has always contended that he visited sites in Berlin which had direct relevance to the Lot 14 redevelopment project for which he had responsibility. It was submitted that this was an obvious hypothesis consistent with innocence and there was nothing yet disclosed on the prosecution case which could rebut it.
It was submitted that each of the charges on the Information required the Director to establish that the defendant was not entitled in the circumstances to have charged to his employer the cost of his return air tickets, the cost of his train travel, or the daily allowance.
The charge of abuse of public office has been particularised by the prosecution as having improperly exercised power or influence by virtue of his position to direct a staff member of Renewal SA, Stephanie Ciui, to book airline tickets for him. No statement has been filed or served from that person and it is not suggested that she will be called as a witness. The evidence relating to the booking of the tickets suggests that it was undertaken by administrative staff of Renewal SA on their own initiative. In essence, the defendant submits that the prosecution has mis-read its own case. Document 097 appears to be an email from Mr Hanlon to Ms Ciui authorising her to make changes and cancellations to his flight bookings. Document 098 proves that the email (document 097) was not sent by the defendant, even though it was sent from his email address. It was sent by Ms Ager who had access to his email. There is no email sent by the defendant himself to Ms Ciui directing her to book the flight on which he departed from Adelaide to Berlin. Further, Ms Ager has not stated that she was directed by the defendant to arrange that flight. The consequence is that there is no evidence that the defendant improperly exercised power or influence to direct Ms Ciui to book the flight.
As to Count 2, namely the Reconciliation of Foreign Currency Spent, it was submitted that the document makes no representation beyond that the money was received and spent. It was submitted that there is no evidence to support the contention that a falsehood in the document created an impression that the funds expended by the defendant were spent in the course of his duties as CE of Renewal SA. There is no evidence from which it could be inferred that the falsification of the document misled Renewal SA as to the correct spending of the money.
As to Count 3, relating to the travel plan, it was submitted there is no evidence that the defendant was the author of that document. In addition, there was no evidence that he directed it to be prepared or had any involvement with its content. The evidence suggests to the contrary. A version of the travel plan was located on the email account of Ms Ciui. Two other versions were found in Renewal SA’s document management system. It is conceded that the travel plan document is obviously incorrect. The prosecution cannot establish who prepared that document. The only inference open is that a staff member of Renewal SA prepared it without consulting the defendant and that he signed it at some later stage because it was required by the accounts department. The prosecution cannot prove beyond reasonable doubt that the defendant dishonestly engaged in conduct intending to deceive another and by that means benefit himself. If the defendant was entitled travel to Berlin at the expense of Renewal SA, there was no benefit he could have gained by falsifying the travel plan at a later date.
Prosecution submissions
The prosecution has submitted that there is no basis on which to find an abuse of process, no impediment to the accused receiving a fair trial and the charges are not foredoomed to fail. Further, it submits that sufficient particulars have been provided to the defendant to apprise him of the facts of matters and things alleged as the foundation of the charges alleged against him. When the nature of the ‘shift’ in the manner in which the prosecution now presents its case is properly understood, the defence submission can be seen to be misconceived.
With respect to Count 1, the prosecution submits that the element which is concerned with the extent of work performed by the defendant, is the element that the defendant ‘acted improperly’. The concession made by the prosecutor at committal that the prosecution was required to prove the defendant undertook no work in connection with the affairs of Renewal SA was wrong as a matter of law. The committal was conducted on the basis of the prosecution having set the evidentiary bar too high. The prosecution does not accept the defendant’s assertion that each of the charges can only be established if the Director proves beyond reasonable doubt that the defendant did not attend to any Renewal SA business whilst in Germany. It is now clear that the prosecution has corrected the previous erroneous position and this refined basis is clearly set out in the prosecution case statement. Irrespective of the concession made at committal, the prosecution case has always been that there was an overwhelming personal flavour to the Berlin trip, that the travel coincided with the end of the European business mission and that the travel claims completed after his return were false and intended to cloak the trip in a veil of business-related legitimacy. Those matters have always been the prominent features of the prosecution’s case against the accused and neither the evidence establishing those matters nor the inferences which arise from them have changed.
It was submitted that in assessing whether the defendant is exposed to an unfair trial on the charges contained in the ex officio Information, it is relevant to consider that the essential conduct alleged against him remains unchanged. The Berlin trip is alleged to have been in truth a personal trip. The documents completed on his return are alleged to have been designed to dishonestly conceal the true nature of the trip by falsely accounting for his movements and expenses by creating the impression that they were for Renewal SA purposes. It follows from that submission that the only thing that has changed in the prosecution’s theory of the evidence is that it is not required to prove beyond reasonable doubt that no Renewal SA work was done in Berlin. The prosecution submission on abuse of process in essence amounts to a rhetorical question: if the above is accepted, in what way does the filing of an ex officio Information amount to an abuse of process?
Ms Matteo SC referred the court to the characterisation of an abuse of process expounded by Brennan J in Jago’s case, namely that an abuse of process occurs:
… when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.[9]
[9] Jago v District Court (NSW) (1989) 168 CLR 23, 47.
His Honour went on to observe that a trial is only incapable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control if it can be said that an accused person’s liability to conviction is discharged by such unfairness. His Honour continued:
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge’s responsibilities are heavy but they are not discharged by abdication of the courts duty to try the case.[10]
[10] Ibid 49.
In the prosecution submission, it is essential when considering an application of this kind, for the court to keep in mind the distinction between an application for a stay for improper purpose and one based on the prevention of an unfair trial. The operative question will always be whether the court can cure the identified prejudice to ensure a fair trial
The prosecution accepted that proceedings may be stayed where they can clearly be seen to be foredoomed to fail.[11] It also accepted that a stay may be ordered where the continuation of the prosecution might bring the administration of justice into disrepute.[12]
[11] Walton v Gardiner (n 3).
[12] Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53.

The prosecution submitted, as well-established, that it is not an abuse of process for the Director to exercise his prerogative to lay an ex officio Information in a superior court, including in circumstances where a magistrate has dismissed charges the subject of the Information at committal. In the prosecution submission, the decision of the Full Court in Rona v District Court (SA)[13] does not stand for the proposition that where there is a shifting of ground by the prosecution in the presentation of its case, that proceedings must inevitably be stayed as an abuse of process. It relied on the observations of King CJ as follows:
A judgement has to be made as to what the interests of justice require. there must be a balancing process taking into account the interests of fairness to the accused in having the basis upon which his trial was to take place adhered to, the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business and “the community’s expectation that persons who are charged with offences are properly brought to trial”: Mellifont (1992) 64 A Crim R 75 at 50.[14]
[13] (1995) 63 SASR 223.
[14] Ibid 230.
It was submitted that the defence application as to abuse of process had to be considered in light of the fact that the dismissal of charges at committal can never be guaranteed to be final in light of the Director’s power to lay an ex officio Information.[15] Further, the finding of no case to answer by a magistrate at committal is not a final determination between the parties giving rise to a potential plea of autrefois acquit.[16] It was submitted that there is no basis to the defendant’s claim of unfairness. In truth, the defendant has simply lost an opportunity of avoiding criminal liability on an asserted basis which was wrong at law. A loss of advantage is not the loss of an opportunity for a fair trial.[17] Further, even if the court took the view that the prosecution conduct of the committal had been inept, the purpose of a stay of proceedings is not to punish the prosecution.
[15] Criminal Procedure Act 1921 (SA), s 103.
[16] R v Ratcliff, Stanfield & Utting [2007] SASC 297 [32].
[17] Barton’s case (n 2) 114.
As to the foredoomed to fail argument, the prosecution submitted that the defendant’s assertion that it is required to prove with respect to each count that he did no work during his trip to Berlin is erroneous. Any other conclusion would artificially and inappropriately constrict the meaning of the term ‘acting improperly’.
With respect to the count of abuse of public office the prosecution submits that the element of acting improperly can be proven by the fact that there is no evidence that any work was done by the accused when he was in Berlin and no evidence of any preparatory business arrangements being made by him prior to his departure. That second matter is a circumstantial piece of evidence supporting the prosecution’s contention that the true purpose of his travel was for personal reasons and hence he was acting improperly. Further, the prosecution can prove inferentially that the defendant instructed Ms Ciui to book the business class flights to Berlin. The term ‘influence’ should be given a broad reading. If the prosecution is able to prove that the defendant used his position to instruct Ms Ciui either directly or indirectly to book the tickets, he would have been exercising influence in the relevant sense.
As for Count 2, the prosecution submitted that the falsity of the document is established by consideration of all of the surrounding evidence.
With respect to Count 3, the prosecution points to the expert handwriting evidence which demonstrates very strong support for the proposition that the defendant wrote the signature on the document alongside the relevant endorsement.
Consideration
I am not satisfied that the defendant has established that these proceedings amount to an abuse of process in the sense that the trial would be unfair and/or oppressive. Nor am I satisfied that the defendant has established that the prosecution is maintained for an improper purpose.
One of the central matters in dispute is whether or not in order to make out its case, the prosecution must be able to prove beyond reasonable doubt that the accused did no work whilst in Berlin. A concession to that effect was clearly made by the prosecutor at committal on the charge as particularised at that time. That question is relevant to both the abuse of process application and the foredoomed to fail application.
In my view, with respect to Count 1, it is not necessary for the prosecution to prove beyond reasonable doubt that the defendant did no work whilst in Germany in order to make out the necessary element of ‘acting improperly’. Nor is it necessary to prove that he did no work in order to make out Counts 2 or 3 neither of which includes ‘acting improperly’ as an element of the offence.
As defined in s 238 of the Criminal Law Consolidation Act 1935 (CLCA), the term ‘acting improperly’ has a broad meaning. That is no doubt intentional, because the circumstances in which a public officer could act in a way which is contrary to the relevant standard of propriety cannot be exhaustively defined. The section provides as follows:
(1)For the purposes of this Part, a public officer acts improperly, or a person acts improperly in relation to a public officer or public office, if the officer or person knowingly or recklessly acts contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by public officers of the relevant kind, or by others in relation to public officers or public offices of the relevant kind.
(2)A person will not be taken to have acted improperly for the purposes of this Part unless the person's act was such that in the circumstances of the case the imposition of a criminal sanction is warranted.
(3)Without limiting the effect of subsection (2), a person will not be taken to have acted improperly for the purposes of this Part if—
(a)     the person acted in the honest and reasonable belief that he or she was lawfully entitled to act in the relevant manner; or
(b)     there was lawful authority or a reasonable excuse for the act; or
(c)     the act was of a trivial character and caused no significant detriment to the public interest.
(4)     In this section—
"act" includes omission or refusal or failure to act;
"public officer" includes a former public officer.
The breadth of the definition is such that the offence created by s 251 CLCA is capable of capturing, inter alia, all forms of exercising influence as a public officer which have the quality of ‘acting improperly’ as defined. Whether the exercise of influence involves acting improperly is obviously a fact specific enquiry. Taking the present scenario, there is no reason to import to the section an evidential requirement of sole purpose in the alleged exercise of the influence. If the prosecution establishes beyond reasonable doubt that the sole purpose of the defendant’s trip to Berlin was for personal reasons then there would clearly be an evidential basis on which a jury could find that he was acting improperly in directing Ms Ciui to book his tickets at the expense of Renewal SA. On the other hand, if the evidence is capable of satisfying a jury that the predominant feature of the trip was interaction with his family and not work undertaken on behalf of Renewal SA, a jury may well find that the defendant was acting improperly within the meaning of s 238 CLCA when he instructed Ms Ciui to book the tickets. That proposition was in effect conceded by the defendant in his own submissions.[18] A finding on either basis would depend on the jury being satisfied that the defendant was acting improperly at the time he exercised influence over Ms Ciui.
[18] Written Submissions of the Defendant – Permanent Stay, 23/9/22, [58] ‘….if the Defendant attended to some work for the benefit of Renewal SA then, unless that work was nominal or qualitatively useless, the Defendant was entitled to the benefit of the daily allowance and was entitled to his airfares being met by Renewal SA.’ Underlining added.
My provisional view on that matter, subject to any submissions to the contrary which may be made at trial, is that the prosecution would need to exclude as a reasonable possibility that the defendant’s intention with respect to the trip did not develop the characteristic of ‘acting improperly’ at a time after the tickets were booked. By way of example, if the defendant fully intended to conduct relevant business on behalf of Renewal SA at the time he exercised influence over Ms Ciui, and on arrival in Germany became so preoccupied with family matters that he abandoned in whole or in part the intended business activity, he is unlikely to have ‘acted improperly’ for the purposes of Count 1 as particularised. That scenario would not necessarily be fatal to Counts 2 and 3.
Having made those observations, I turn to consider the significance of what has been described as the shift in the prosecution case since committal.
The defendant points to the fact that each of the counts on the ex officio Information is based against the same broad substratum of fact as supporting its contention that he is in effect, charged with the same offences with respect to which the concession was made in the Magistrates Court. The prosecution points to the same matter as demonstrating a lack of any demonstrable unfairness to the defendant.
I dealt with the submission that the accused has been charged with the same offences as were laid in the Magistrates Court in my earlier ruling with respect to the subpoena.[19] In particular, the actus reus alleged on Count 1 on the ex officio Information is different to that alleged in the abuse of public office charge.
[19] [2022] SADC 85, [89] – [91].
This is not a case where, after committal, the allegations have been reinvestigated in a way which has permitted the prosecution to reformulate them in a manner which bears little or no resemblance to the facts and circumstances previously alleged. The defendant can hardly be said to have been blindsided by the nature of the charges. He has been on notice that he was in jeopardy with respect to the facts and circumstances surrounding the trip to Berlin since the time he was first charged. No prejudice has been pointed to which suggests his ability to adduce evidence with which to defend himself against these allegations has been compromised by reason of the prosecution shift. It has been his position since this matter was investigated by ICAC, that he did do a significant amount of work on behalf of his employer whilst in Berlin. That position can still be advanced at trial either by direct evidence from the defendant or in other ways. That the prosecution now submits, to my mind correctly, that it is not obliged to prove with respect to any of these charges that no work was done has not created an unfairness to the defendant.
With respect to the significance of the departure from the concession made by the prosecutor at committal, I am not satisfied that it has resulted in either an unfairness or oppression towards the defendant. Firstly, it was based on a mistake as to the law. The learned magistrate found no case to answer at the request of the defendant and in light of the erroneous concession made by the prosecution. In that regard, he can be seen to have been led into error. An erroneous finding of no case to answer at committal is an example of where it will be appropriate for the Director to file an ex officio Information if the error comes to his attention. I am not convinced that it is any less appropriate for the Director to do so in circumstances where the erroneous proposition has been conceded to or even promulgated by one of his prosecutors. There is a high degree of public interest in the Director being able to bring serious allegations of criminality to trial where there is a case to answer on a proper understanding of the law.[20] That public interest is not extinguished simply because an erroneous concession of this kind has been made at committal.
[20] R vMellifont (1992) 64 A Crim R 75, 80.
I regard this case as distinguishable from Rona. In that case, the prosecution gave an unequivocal assurance to this court that it would proceed to trial on a particular charge of an offence. The filing of an Information alleging a different charge was associated with other breaches of a case-flow management order. This matter does not involve a breach of an assurance given to this Court, nor has there been an egregious breach of any case-flow management orders. As King CJ observed in Rona, a judgement has to be made as to what the interests of justice require. I am not satisfied that in this case, the fact that the prosecution now asserts that it is obliged to prove something less than it previously asserted at committal means that the interests of justice require a stay on the basis of unfairness or oppression. The prejudice identified by the defendant is his loss of opportunity to enjoy the benefit of the finding of no case to answer at committal. It is suggested that an unfairness or oppression arises as a result of that disappointment. It is asserted that it is particularly unfair and oppressive because since these allegations first came to light, the defendant has lost his job, he has been the subject of an ICAC investigation, and a committal process and as a result he has incurred very significant financial loss and legal expenses. None of those matters can be said to have occurred because of the concession made by the prosecutor. Had the correct position been put at the time of the no case to answer submission, the defendant would have been in the position he is now. That he has lost for the time being the expectation to be reimbursed for his legal expenses associated with the ICAC investigation and the possibility of an ex gratia payment for his legal expenses associated with the committal, does not outweigh the public interest in this matter proceeding on the ex officio Information. That is particularly so given the expectation only arose because of an erroneous concession as to the law. If the defendant is ultimately acquitted in this court, the expectation of reimbursement for his ICAC costs and the potential for an ex gratia payment for costs associated with the prosecution will again crystallise.
Further, it cannot be said that the procedural history of this matter has caused such a delay as to make the defendant’s prosecution an abuse of process. There is no suggestion that evidence has been destroyed, mislaid or that the prosecution has deliberately delayed filing the ex officio Information for improper tactical reasons. Further, and as submitted by the prosecution, whilst the usual result of finding no case to answer at committal is the conclusion of the matter, that can never be regarded as an absolute, given the prosecution power to lay on ex officio indictment pursuant to s 103 of the Criminal Procedure Act.
To the extent that the defendant’s submission relies on an allegation of improper purpose, that is a matter which I rejected in my ruling with respect to the application for a subpoena.[21] I adopt my finding and reasoning in that regard for the purpose of these reasons.
[21] [2022] SADC 85, [82] – [84].
Finally, and as submitted by the prosecution, whatever view I take of the manner in which the committal proceedings were conducted by the prosecution, the purpose of a stay in not to punish it for that conduct.
I dismiss ground one of the defendant’s application.
I turn to the question of whether or not the prosecution case is foredoomed to fail with respect to all or any of the counts.
My conclusion that the prosecution is not obliged to prove that the defendant conducted no work on the trip is partially dispositive of this argument. The prosecution’s ability to secure a conviction would be materially strengthened if it proves beyond reasonable doubt that no work was done. That is a different consideration to whether or not the charge is capable of proof on the evidence and on the basis presented.
The other reason Count 1 is said to be foredoomed to fail is the inability of the prosecution to prove that the defendant performed the alleged actus reus. As I have noted, Ms Ciui is not to be called as a witness. It is she with respect to whom the defendant is alleged to have exercised power and influence by directing her to book the tickets. The exercise of influence will need to be proven circumstantially. The prosecution submission is that it can be so proven. It points to the following matters:
1.On 7 September 2017, Qatar Airways received an email from the defendant’s Renewal SA email account authorising Ms Ciui to make changes to flights which had already been booked on his behalf.
2.On or about 14 September 2017, the defendant’s flights to and from Frankfurt between 19 and 29 September 2017 were booked and charged to Ms Ciui’s Renewal SA corporate card.
3.The defendant’s former senior executive assistant will give evidence that it was the responsibility of Ms Ciui to make all travel arrangements, including the booking of flights for the defendant at the relevant time.
4.When the European business mission was being organised two Renewal SA employees who were to travel with the defendant had their travel and accommodation arranged by Ms Ciui.
On the basis of the above, the Director submits that an inference is readily available that Ms Ciui booked the relevant flights and that it was the defendant who influenced her to do so.
Taking those matters into consideration, along with the prosecution case that there is no evidence of any work being done by the defendant whilst overseas or that he made any preparatory business arrangements prior to his departure, I am not satisfied that the defendant has shown Count 1 to be foredoomed to fail.
The test is whether the failure of a charge can be said to be manifest and inevitable. That stricture must logically apply to at least one of the elements of the offence.[22]
[22] R v Petroulias(No 1) (2006) 177 A Crim R 153, [83].
Measured against that standard, I am not satisfied evidence going to either the actus reus or the mental element of acting improperly is sufficiently lacking to require a stay. That is not a finding that the prosecution has a case to answer on Count 1 and should not be seen to foreclose on any defence application at the end of the prosecution case. It is merely, as I have said, an assessment that I cannot conclude that the ultimate failure of the count is manifest and inevitable.
I have reached the same conclusion with respect to Counts 2 and 3.
Count 2 relates to the ‘Reconciliation of Foreign Currency Spent’ document completed on 13 October 2017 by the defendant. It is alleged that in completing that document the accused was holding out that the €1555 which was advanced to him prior to his departure were expended by him in the course of his duties as Chief Executive of Renewal SA. It is alleged that the use of those funds was dishonest because they were expended for a personal trip. The benefit alleged was the ability of the defendant to retain the €1555 which had already been spent. In other words, had it been known to his employer that the funds were spent for personal reasons he would have had no entitlement to them and would have been required to repay them.
The defendant’s submission that the document does not make any representations as to his entitlement to receive the funds and that it makes no representation that the monies were spent or how they were spent might ultimately prove successful in front of the jury. However, measured against the relevant standard, I am not able to say that it would manifestly and inevitably not be open to a jury to find that the elements of the offence are established on the evidence.

With respect to Count 3, the defendant’s submission was focused on the fact that there is no evidence the defendant created or falsified the relevant document or that he used it knowing it to be false. The evidence is capable of establishing that in signing the travel record he acknowledged that it accurately recorded his travel whilst in Germany. It would be open to a jury to find that in signing the document he adopted its contents knowing that they were false and that in that sense he either falsified it or produced a document knowing it to be false. The document became a completed document when he appended his signature to it. It cannot be said that the prosecution case is foredoomed to fail with respect to the actus reus of that charge. Nor can it be said that it is foredoomed to fail with respect to the mental element of intending to deceive Renewal SA.
I dismiss ground two of the defendant’s application.
I turn to the alternative application for a temporary stay pending the provision of further and better particulars.
I am satisfied that when the affidavits and exhibits are considered in conjunction with the particulars of the charges contained in the Information, the matters asserted in the prosecution case statement and the matters set forth in the Director’s letter of 19 August 2022,[23] the charges have been sufficiently well particularised to enable the accused to know the case which he has to meet and matters relevant to the preparation of his defence.[24] The defendant can be regarded as being sufficiently apprised of both the legal nature of the offence with which he is charged and the particular acts, matters and things alleged as the foundation of the charges.[25] The materials referred to above are also capable of apprising the defendant sufficiently to enable him to challenge the admissibility of relevant evidence.
[23] Affidavit, Matthew Selley 23 September 2022, Exhibit MS 3.
[24] CB v Director of Public Prosecutions (NSW) (2013) 231 A Crim R 522.
[25] Johnson v Miller (1937) 59 CLR 467.
I dismiss the application that the prosecution provide further and better particulars of the charges.