R v Houlton

[1999] NSWCCA 100

CITATION:

R v HOULTON [1999] NSWCCA 100

FILE NUMBER(S):

CCA 60493/98

HEARING DATE(S):

18 May 1999

JUDGMENT DATE:

18 May 1999

PARTIES :

REGINA
(Crown)

v

Edward Joseph Curtis HOULTON
(Applicant)

JUDGMENT OF:

James J at 31; Barr J at 2; Carruthers AJ at 32

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	94/51/0236
LOWER COURT JUDICIAL OFFICER:	Bell DCJ

COUNSEL:	DN Howard (Crown) SE Loomes (Applicant)
SOLICITORS:	CK Smith (Crown) H Schleiger & Associates (Applicant)
CATCHWORDS:	Criminal Law - indictment - application for permanent stay of proceedings refused - whether leave to appeal should be granted
ACTS CITED:	s 5F Criminal Appeal Act
CASES CITED:	R v Carter, Court of Criminal Appeal 5.9.95 unrep R v Steffan (1993) 30 NSWLR 633 R v Matovski (1989) 14 NSWLR 720 Jago v District Court (1989) 169 CLR 123 Walton v Gardiner (1992-1993) 177 CLR 378 R v Nicholson, Court of Criminal Appeal 22.7.98 unrep
DECISION:	Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60493/98

JAMES J
BARR J
CARRUTHERS AJ

Tuesday, 18 May 1999

REGINA v Edward Joseph Curtis HOULTON

JUDGMENT

1   JAMES J: I will call upon Barr J to give the first judgment.

2 BARR J: This is an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act against an order made by his Honour Judge Bell in the District Court on 12 August 1998 refusing a permanent stay of proceedings on an indictment charging the applicant with eighty-five counts of fraudulent misappropriation. The acts constituting the offences are said to have been committed between August 1989 and September 1992, when the applicant was practising as a solicitor. The total sum involved exceeds $400,000.

3 His Honour’s order was an interlocutory judgment or order for the purposes of s 5F, but since his Honour has not certified that it is a proper one for determination on appeal the applicant may not proceed with the appeal without the leave of this Court. Leave will be granted only where the decision the subject of the application is attended by sufficient doubt as to warrant the matter being argued on appeal, or where the interests of justice otherwise require the intervention of the Court at the interlocutory stage. R v Carter, Court of Criminal Appeal, 5 September 1995, unreported; R v Steffan (1993) 30 NSWLR 633; R v Matovski (1989) 14 NSWLR 720.

4   The principles to be applied in an application for a permanent stay of proceedings may be found in Jago v District Court (1989) 169 CLR 123 and Walton v Gardiner (1992-1993) 177 CLR 378. The summary of Deane J in Jago v District Court at 60 will suffice for present purposes. His Honour there said:

An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.

5   The broad history of this matter may be summarised as follows. In August 1994 the applicant was charged. On 20 October 1994 he was committed to the District Court for trial. On 3 April 1995 a draft indictment was served. On 26 February 1996 the applicant was arraigned at Coffs Harbour and pleaded not guilty to the charges. On 20 May 1996 the trial was due to commence at Coffs Harbour but a misunderstanding had occurred about whether the trial should be by jury or by judge alone. The Crown required a trial by jury but the hearing time had apparently been estimated as appropriate for a judge alone trial. It appears as though the Court had insufficient time to hear the trial. As well, the applicant served medical evidence on the Crown, some of which was fresh, disclosing an intended defence of non-insane automatism. The trial date was vacated. The revised estimate was up to one month of hearing time.

6   The trial was fixed to commence on 21 July 1997 but in May 1997 the fixture was vacated because it was realised that there would be insufficient time to hear the trial at the forthcoming sittings. This is unfortunate because a special request had previously been made by counsel for the applicant on the occasion of the vacation of the first hearing date that a special fixture be arranged.

7   On 23 June 1997 the applicant wrote a letter to the Attorney-General raising a number of matters, particularly the applicant’s financial condition and the fact that he had been advised that his grant of legal aid was about to be terminated. The letter was treated as a no bill application and in a reply dated 4 November 1997 the Director of Public Prosecutions informed the applicant that it was intended to proceed with the trial. Insofar as that circumstance delayed the setting down of a hearing, therefore, there was a delay of a little over five months.

8   On 18 May 1998 there was a third trial date. In view of the estimated hearing time, namely about a month, and of the risk that there might be insufficient time for the case to be heard at Coffs Harbour in ordinary sittings, a judge made a special visit to that city intending to hear the matter, no matter how long it took. Unfortunately, the fixture had to be vacated, this time by consent, because of new material which emerged in a report of a psychiatrist, Dr Rickarby, bearing on the health of the applicant and his ability to cope with a trial.

9   Judge Bell heard the application which resulted in the order against which leave is now sought to appeal on 11 August 1998 and delivered judgment on the following day. He received an affidavit from the applicant, who was cross-examined. Documents were tendered, including a statement of facts. Some of the documents have been put before this Court and the Court has a transcript of the evidence and a copy of his Honour’s reasons for judgment.

10   As appears from his Honour’s reasons for judgment, the applicant’s principal grounds in support of the application were as follows:

(1) notwithstanding the age of the matter, the applicant still did not know how many witnesses the Crown intended to call at the trial;

(2) the passage of time had substantially interfered with his ability to adduce evidence at the trial, particularly evidence as to his state of health and the drugs he was taking at the times set forth in the indictment;

(3) Dr Rickarby thought that the applicant was suffering from a major depression with pathological grief at the time of the matters set forth in the indictment and that he could not represent himself at trial;

(4) although the applicant had a grant of legal aid, it was a condition that he pay to the Legal Aid Commission a contribution of $2000. He could not afford to pay any such sum. In his affidavit he swore that his income was $334 per week and his expenditure $335 per week. So he was effectively without legal representation.

(5) the delay had exacerbated the applicant’s serious health problems.

11   Having heard the evidence and the arguments on both sides, his Honour came to a number of conclusions, which may be summarised thus:

(1) The matter had never been left in abeyance and the applicant had not been inconvenienced by court procedures, which included the holding of several call-overs which the applicant had decided not to attend.

(2) Ever since the charges were laid the applicant had been aware of the state of the proceedings and although he had protested to the Attorney-General about delay, among other things, he had never complained to the Court or applied for a special fixture or for an expedited hearing.

(3) There was no factual basis for the claim made by the applicant in his affidavit that during 1996 and 1997 he believed that the Crown did not intend to proceed with the charges. The frequency of call-overs demonstrated the contrary.

(4) Allowance had to be made for the complexity of the case as a whole and the number of witnesses who would have to be called, necessitating a time frame longer than normal.

(5) The applicant had not been advised with precision which witnesses the Crown intended to call, but there were about one hundred, the estimated number having been increased from the original thirty-nine about six months before the hearing before his Honour.

(6) From the beginning of the prosecution the applicant had conceded having committed the acts relied on by the Crown but, as his Honour put the matter, “challenged the mens rea elements of the offences.” That fact was not properly appreciated by the office of the Director of Public Prosecutions, which had been “reprehensively inefficient” in taking some three and a half years to obtain a relevant psychiatric report.

(7) Even though the nature of the defence had never changed, the Crown had decided to call one hundred witnesses instead of the original thirty-nine. The increase was not explained by the medical report served. This was a matter about which the applicant was entitled to complain.

(8) His Honour did not accept the claim by the applicant to have had difficulty in obtaining evidence since there was no evidence of any attempt to investigate the availability of evidence.

(9) Although criminal proceedings would produce stress, his Honour did not accept that the applicant’s health would be endangered. His Honour referred to the extent to which the applicant had taken on onerous responsibilities and commitments in community life and work.

(10) The applicant’s mental health would not be endangered by the continuation of the prosecution.

(11) His Honour did not accept the evidence of the applicant about the claimed excess of expenditure over income. His Honour found that the applicant had the capacity further to explore with the Manager of the Legal Aid Commission the means of paying the contribution and that he had available the financial resources to do so. Although it might take some time to achieve such a thing, the appointment of a fixed trial date in 1999 could be arranged to accommodate it.

(12) Notwithstanding the existence of the prejudice that his Honour found the applicant had suffered, he would not be deprived of a fair trial. His Honour concluded that there was no basis for regarding the continuation of the proceedings as unfairly and unjustifiably oppressive.

12   The grounds the applicant will argue if granted leave to appeal are that his Honour failed to give sufficient weight to the following matters:

(a) the nature and extent of the various delays bringing him to trial;

(b) the past and present medical condition of the applicant and the impact of delays upon his health;

(c) the difficulty in obtaining competent legal representation for the trial; and

(d) the prejudice to the applicant because of continuing doubt as to the number of prosecution witnesses, the identity of further prosecution witnesses, obtaining evidence in support of his defence, the date of trial, the availability of legal representation through legal aid, and the ability to continue in his employment.

13   Speaking to the application for leave to appeal, counsel for the applicant sought to demonstrate that his Honour had made findings of fact which were not supported by the evidence and had taken into account extraneous matter. At p 13 of his judgment, his Honour said this:

There is no reasonable basis upon which Mr Houlton can justify his assumption during 1996 to 1997 as stated in par 15 of his affidavit that ‘the Crown did not intend to proceed.’ There is no evidence upon which such an assumption could be based. Indeed, the frequency of the ongoing call-overs demonstrated quite the contrary.

14   The Court’s attention was drawn to a submission made by the Crown Prosecutor before his Honour, to the following effect:

Your Honour, in my respectful submission, that is a matter that can readily be solved, when the matter has been determined, and when the trial date has been appropriately fixed, and then your Honour the focus will, on all people involved in the case, go to, ‘Let’s get this case on the road, who are the witnesses, what are the charges, what are the documents that we require, who do we want’ all of these things can then be attended to, your Honour. I’m not being critical of anybody, don’t misunderstand me, your Honour, but there has been, perhaps, a lack of will to get on with dealing with the nuts and bolts of the case, up to this point of time, for the very simple reason, your Honour, that people didn’t know whether they were going to run the trial or not.

15   This last part of the Crown Prosecutor’s submission was said to justify the belief, contrary to his Honour’s finding, that there was a reasonable apprehension that the trial was not going to continue. I think that what the Crown Prosecutor must have been referring to was the occasion late in 1997 when the applicant’s letter to the Attorney-General came to be dealt with by the Director of Public Prosecutions as a no bill application. In my opinion, insofar as what the Crown Prosecutor said qualifies his Honour’s finding, it does not vitiate his Honour’s judgment.

16   The next finding of fact attacked was his Honour’s statement that through the entire time since the charges were laid the applicant had been aware of the proceedings and although he protested to the Attorney-General’s Department about, inter alia, delay, he made no complaints within the court system or an application for a special fixture or expedited hearing. It was pointed out that the applicant had written a letter to the Director of Public Prosecutions on 6 March 1997 complaining about the lack of progress in the matter and asking whether it might have been decided that the matter should not proceed. The applicant also wrote the letter of 23 June 1997 to the Attorney-General, to which I have already referred.

17   I do not see the existence of these letters leading to the conclusion that his Honour was not entitled to make the finding of fact under attack, and I note that earlier in his judgment his Honour noted that counsel for the applicant had applied on the occasion of the first adjournment for the making a special fixture. I think this attack on his Honour’s finding of fact fails.

18   The next fact attacked was this. At p 15 of his Honour’s judgment he said:

Undoubtedly any criminal proceeding will be productive of stress for those the subject of it. In terms of Mr Houlton’s physical condition, there is no evidence that his health is endangered by the continuation of the prosecution. Indeed, the extent to which the applicant has stated he has taken on onerous responsibilities and commitments in relation to his involvement in community housing does, prima facie, demonstrate he has physical capacity and reserves of a significant order.

19   It was put to the Court that that conclusion was unfavourable in view of statements made in the report of Dr Rickarby dated 30 May 1995, a copy of which was before his Honour, and of a report of Dr Delaforce, a psychiatrist qualified by the Crown, dated 22 May 1998. In part of his report Dr Rickarby said that the applicant’s medical condition was quite serious and of bad prognosis. He had the major risk factors for myocardial infarction and stroke: major hypertension requiring closely monitored treatment, hyperlipidaemia (that is, familial elevated cholesterol or other blood lipids), previous heart attack, his smoking fifteen or more cigarettes a day, and age.

20   Dr Delaforce said this at p 7 of his report:

He has had considerable problems with his physical health and continues to require treatment for his ulcer and high blood pressure. They are medical conditions that can deteriorate with increasing and prolonged stress. During a trial his medical health would need to be closely monitored, even if he had adequate legal representation, and more frequently if he did not. Even if he was legally represented he may have acute stomach pain and/or vomiting because of the ulcer or, and much less likely, an acute complication of this high blood pressure temporarily affecting his mental functioning or something more serious such as a stroke. Such risks would be more likely if he was to represent himself.

21   His Honour took those matters into account no doubt. One of the matters his Honour would have had in mind was the age of the report of Dr Rickarby, combined with the evidence of the comparatively onerous and strenuous activities which the applicant had since undertaken. I think that his Honour in all the circumstances was entitled to come to the view that he did and I think that this attack on his Honour’s finding of fact fails.

22   Then it was said his Honour took into account extraneous matters. It was said that his Honour should have weighed the applicant’s capacity to meet the legal aid contribution by reference to his income rather than by making reference, as his Honour did, to the cost which would be required to fund a trial by privately-funded counsel.

23   I think that there is no substance in this submission. His Honour clearly had in mind the income of the applicant and made particular reference to it and his Honour was well aware that the contribution required was $2000, that substantial work towards the preparation and conduct of the trial could be done if he contributed as much as $1000, and that even that might be done by instalments.

24   Then his Honour was said to have erred in his remark that this case bears no relation to the case of R v Nicholson, an unreported decision of this Court, judgment in which was delivered on 22 July 1998. In my opinion, it matters not whether this case is like Nicholson or not. That is a question on which opinions may differ. A proper approach requires the identification of the principles to be applied and their application to the facts of this case.

25   In my opinion, these various attacks on his Honour’s findings fail.

26   I conclude that this is a case the outstanding features of which are that there has been substantial delay. Some has been the responsibility of the court system and some has occurred because of the emergence of events close to the intended trial dates. The length of the delay is particularly regrettable and this case, in my opinion, calls for the kind of special management it was given for the first time in 1998. It is indeed unfortunate that on that occasion the date had to be vacated a third time.

27   Even so, his Honour was correct in concluding that the delay did not prejudice the applicant in the conduct of his defence.

28   This Court has now been informed that the Crown intends to call only the thirty-nine witnesses originally intended.

29   It appears to me that his Honour’s decision not to stay proceedings on the indictment fell within the bounds of his discretion. In my opinion, the appeal would be unlikely to succeed if the proposed grounds were permitted to be argued.

30   I would refuse leave to appeal.

31   JAMES J: I agree with the judgment of Barr J.

32   CARRUTHERS AJ: I also agree. I would merely add that I respectfully endorse what his Honour has said, that this case calls for special case management. If this case management does not occur, one can only fear that this case may well develop into a blot on the escutcheon of the criminal justice system in this State.

33   I agree with the orders proposed by Barr J.

34   JAMES J: The order of the Court will be as proposed by Barr J. Leave to appeal is refused.

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