R v Jeisman - [2014] SADC 11

District Court of South Australia
(Criminal)
R v JEISMAN
[2014] SADC 11
Ruling of His Honour Judge Slattery (ex tempore)
13 January 2014
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Application by accused for an extension of time to elect for trial by judge alone - application made at a directions hearing held one day prior to the commencement of the trial - at the time of arraignment the accused had not been supplied by the prosecution with certain depositions or other electronic material which were to be led by the prosecution during the trial – submitted by counsel for the accused that in the alleged absence of the necessary evidentiary trail going to questions of proof, the accused did not give consideration to the question of election of trial by judge alone - – application not opposed by the prosecutor - whether special reasons for an extension of time existed.
Held: application granted – obligation generally upon the prosecution to furnish the accused with a proof of the witness’ proposed evidence – the prosecution delivered further relevant material to the accused very late - special reasons for an extension of time existed and it would be unjust to refuse the application.
Controlled Substances Act 1984 sub-s32(3), sub-s32(5) ; Juries Act 1927 s7, S8; Juries Rules Rule 16, Rule 17, Rule 18; Criminal Law South Australia Para. 700.7(7) (at page 1311), referred to.
Acre Development Pty Ltd v National Companies and Securities Commission and Anor (1987) 46 SASR 238 , applied.
The Queen v Gavare [2011] SASCFC 38; The Queen v Haydon (2000) 76 SASR 265 , discussed.
Baskerville v Martin [1967] SASR 142; Saturno v Dunsmore (1981) 28 SASR 4; Barwick v Crichton (1983) 36 SASR 142; Jurowshi v Sallis (1984) 36 SASR 261 ; Jess v Scott (1986) 12 FCR 187; R v Von Einem (1985) 38 SASR 207 ; Fairclough v Stewart-Rattray (2012) 278 LSJS 435 ; White v South Australia (2007) 96 SASR 581; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238; Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531; Goldsmith v Newman (1992) 59 SASR 404; R v Van Beelen (1974) 9 SASR 163 ; R v Utans (1982) 29 SASR 592 ; R v Cox (1997) 196 LSJS 3, considered.

R v JEISMAN
[2014] SADC 11
JUDGE SLATTERY

In this matter the defendant is charged on information with the offence of trafficking in a controlled drug contrary to sub-s32(3) of the Controlled Substances Act 1984.
The allegations are that the defendant left a home at an address at Ferryden Park that was under police observation. The defendant was the focus of the police observations of this home. He was riding a bicycle and was carrying a dog. He was then stopped by police and on his person police found a plastic bottle container which held a number of plastic bags, each of which (apart from two) contained prohibited substances. Police also discovered a knife and cash. I am informed by Mr Graham for the defendant from the bar table, (and it is not in contest), that the weight of the substance within the bags on the person of Mr Jeisman weighed less than 2 g and therefore the presumption for the purposes of sub-s32(5) of the Controlled Substances Act does not apply.[1]
[1] Section 32
Following the apprehension of the defendant the police searched the home that the defendant had left. I am informed by counsel that no one else was present at the home at the time of this search. During this search, the police found a number of items including a phone, electronic scales and other paraphernalia. The focus here is upon the phone found in the house. The finding of the phone in turn gives rise to a number of issues including the ownership of the phone and the prominence of material stored on the phone, especially text messages, photos and videos.
I have before me two documents in this matter; the first being an application for a directions hearing dated 6 January 2014. That application seeks the matter be called on for a directions hearing today and to make an application for a trial by Judge alone. Accompanying that application is a formal application for trial by Judge alone. It is dated 7 January 2014 and is signed by the defendant. In it the defendant makes a formal election pursuant to s.7(1)(a) of the Juries Act 1927 to be tried by Judge alone. The document also informs the Court that Mr Jeisman, the defendant, has been advised in relation to this matter by his solicitor and fully understands the action he has taken.
Attached to that document is a second certificate signed by Ms Danni Stephens, solicitor. In that certificate Ms Stephens advises the Court that she has informed Mr Jeisman (although no name is inserted in the certificate, it is agreed at the bar table the relevant person is the defendant) of all the matters relating to him making the election pursuant to s.7(1)(a) of the Juries Act in respect of the charges for which he has been committed for trial, namely trafficking in a controlled drug.
At the time of the arraignment of this matter no depositions or other electronic material had been supplied by the prosecution to the defence concerning the phone, the content of the SIM card or memory card of the phone or any other matter connected with the phone. Mr Graham informs me of his instructions that for this reason no election was made by the defendant requesting a trial by Judge alone presumably on the basis that the defendant would rely upon an alleged lacuna in the evidentiary trail of proof available to the prosecution. This lacuna, as I understand the position, is that the mere existence of the phone in the house is not sufficient, without more, to identify the defendant as being associated with the phone or its content. This is significant because of the burden of proof falling upon the Director in the circumstances of this case and in the absence of the presumptions under sub-s32(5) of the Controlled Substances Act.
Thus, Mr Graham submitted, that in the alleged absence of the necessary evidentiary trail going to questions of proof, the defendant did not give consideration to the question of election (as he would have done if the situation were otherwise). The position of the defendant on the question of election revolved entirely around the evidentiary material provided by the prosecution.
Under s.7(1) of the Juries Act 1927[2] an defendant may elect to be tried by Judge alone and I am required to be satisfied that the defendant, before making the election, has sought and received advice in relation to the election from a legal practitioner. I am satisfied that the requirements of s.7 of the Juries Act have been complied with concerning the advice given to and received by the defendant, however that is not the question that is before me in this matter.
[2] 7—Trial without jury
Under the Juries Rules an defendant person may make an election pursuant to s.7(1) of the Juries Act in the manner and at the time specified in this Rule and not otherwise (my emphasis).
Under sub-rule 8(5) of the Juries Rules[3] the election to be tried by Judge alone must be made no later than the last day upon which the registry is open for business prior to the day of the defendant person’s first arraignment on the information in respect of which the trial is intended to be held.
[3] Rule 8(5) – Except in the case of an accused person committed for a trial to a circuit sittings the election may be made:
(a) by filing at the Registry of the Court of trial not later than the last day upon which the Registry is open for business prior to the day of the accused person’s first arraignment on the information in respect of which the trial is intended to be held, a notice in writing signed by the accused person making the election and a certificate complying with Rule 10;
(b) by the accused person or by counsel appearing for the accused person orally informing the Judge on the accused person’s first arraignment on the information in respect of which the trial is intended to be held of the accused person’s election and tendering to the Judge a certificate complying with Rule 10; or
(c) by filing a notice in writing signed by the accused person making the election and a certificate complying with Rule 10 within such time and in such manner as the Judge on the first arraignment of the accused person on the information in respect of which the trial is intended to be held shall direct.
That did not occur in this case for the reasons I have already outlined above.
Under Rule 16 of the Juries Rules[4] a Judge may dispense with compliance with all or any of the requirements of the Rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so. That may occur whether or not such period of time has expired under Rule 17 of the Juries Rules.[5]
[4] 16. A Judge may dispense with compliance with all or any of the requirements of these Rules, if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so.
[5] 17. A Judge may extend or abridge any of the periods of time prescribed by these Rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so and the Judge may do so whether or not such period of time has expired.
Under Rule 18[6] of the Juries Rules the appropriate procedure is to apply in chambers concerning directions for procedures to be followed and that is the procedure that has been adopted in these proceedings.
[6] 18. Where these Rules do not provide for any procedure necessary for, or ancillary to, the making of the election the accused person or any other person interested may apply to a Judge in court or in chambers for directions concerning the procedure to be followed and the matter shall then proceed in accordance with such directions as may be given by the Judge.
The question then becomes whether, as the trial Judge, I am satisfied that there are special reasons for making any order allowing an election now to be made so long after the first arraignment of this matter or that it would be unjust not to do so. Under Rule 17 of the Juries Rules, the question is whether I am prepared to extend the time period prescribed under the Rules for the making of an election. It is necessary to consider whether I may be satisfied if there are special reasons for so doing or that it would be unjust not to do so. I emphasise here the use of the disjunctive preposition “or” because both matters require my consideration separately.
The meaning of the expression “special reasons” has been considered in a number of cases and in a number of contexts. In summary, it may be said that what may or may not constitute “special reasons” is a question of fact.[7] In his decision in Acre Development Pty Ltd v National Companies and Securities Commission and Anor[8] O’Loughlin J canvassed the relevant authorities and preferred the narrower interpretation as enunciated by Cox J in Barwick v Crichton[9] at [44] as follows:-
The meaning of the words “special reasons” has been considered in a large number of cases. In Gassner v Frost [1940] SASR 295, Napier J said that the words “must refer to some facts or circumstances which justify the Court in treating the case as one which falls outside the ordinary purview of the section, and referred to a contravention that was clearly distinguishable from the general run of the cases that Parliament had in mind when it provided for the penalty of disqualification. That interpretation was adopted by Bray CJ in Baskerville v Martin where his Honour added: “nothing which is common or usual factor in the ordinary typical case can constitute a special reason. There must be something extraordinary unusual or atypical.
[7] Motor Vehicles Act 1959 s102(2); Baskerville v Martin [1967] SASR 142; Saturno v Dunsmore (1981) 28 SASR 4; Barwick v Crichton (1983) 36 SASR 142; Jurowshi v Sallis (1984) 36 SASR 261 at 263; Jess v Scott (1986) 12 FCR 187; R v Von Einem (1985) 38 SASR 207 at 271.
[8] (1987) 46 SASR 238 at 243-245.
[9] Supra.
In Fairclough v Stewart-Rattray (2012) 278 LSJS 435 at [6] Judge Millsteed said the following:-
First, factors which may constitute special reasons cannot be exhaustively determined and all that can be said is the “special” is the antithesis of “general”; second, nothing which is a common or usual factor in the ordinary typical case can constitute a special reason; and third, there must be something extraordinary, unusual or atypical. It is clear that special reasons may exist in a particular case as a result of the existence of single factor or combination of factors though, in the latter case, none of them in isolation would be sufficient.
In argument I was referred by both parties to the decision of the Court of Criminal Appeal of this State in The Queen v Gavare [2011] SASCFC 38. The decision of the Court was given by Gray J.
The question on appeal in Gavare concerned four questions reserved for consideration and determination by the Full Court by the trial Judge in that matter, Kelly J. Her Honour refused an application for extension of time to make an election for a trial to be heard by a Judge sitting without a jury under s.7 of the Juries Act and Rule 8 of the Juries Rules. Her Honour relied upon the decision of Lander J in The Queen v Haydon,[10] who observed in that case that the scheme of the Rules was that, in the absence of strict compliance, a defendant was not entitled to elect for trial by Judge alone. It would only be if there were special reasons for allowing the election to be made or whether it would be unjust not to do so that an election may be permitted by a Court considering such an application.
[10] (2000) 76 SASR 265 at [52]-[54].
In para.[28] and following in Gavare Gray J considered the legislative history of the matter and at para.[53] and following his Honour considered the question of proper construction of s.7 of the Juries Act and Rule 8 of the Juries Rules.
On the question of the discretion, which is pertinent to the matter before me, his Honour held at paras.[59], [60] and [61] as follows:-
[59] The discretion of the court to dispense with compliance with the requirements of the rules or to extend time are both conditioned on the court being satisfied that either there is special reasons for so doing, or that it would be unjust not to do so. The fact that the discretion is conditioned on the above alternatives would suggest that rules were designed to facilitate an extension in an appropriate case. The use of the phrase “would be unjust not to do so” is designed, it might be suggested, to enable the court to act in a wide variety of circumstances. As the purpose of the rule appears primarily to be directed to control process and avoid abuses of process, then it may be understood that a genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules. It is relevant to note that even if the justice of the case does not call for an extension, special reasons may otherwise exist.
[60] Much has been said about the concept denoted by the expression “special reasons”. It amounts to reasons that are out of the ordinary, something that is distinct or peculiar about the case.[11] It is something that exceeds, in some way, that which is usual or common.[12] It has also been said that the phrase denotes that the discretion that it constrains is not lightly to be enlivened.[13] However, what will amount to special reasons is to be interpreted in the context in which the term is used; the expression takes its colour from the context in which it is found. As King CJ in Goldsmith v Newman observed:[14]
The expression "special reasons" is used in a number of statutes. It takes its colour necessarily from the context in which it is found and in particular from the purpose which the particular statutory provision is intended to serve. I do not think that much, if any, assistance can be gained from the interpretation of the expression where it is used in other contexts.
[61] As discussed above, one matter of concern is for the court to consider whether its processes are being abused – for example, by what is loosely described as “judge-shopping”. Another matter of concern is for the court to understand why the proposed election was not made at or before the time of the first arraignment.
[11] White v South Australia (2007) 96 SASR 581, [48]-[49].
[12] White v South Australia (2007) 96 SASR 581, [98] see also Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238, 243-244. .
[13] Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531, [18].
[14] Goldsmith v Newman (1992) 59 SASR 404, 409.
In my opinion it is significant that Gray J emphasised that the Rules were designed to facilitate an extension of time in an appropriate case and that a Court was entitled to act in a wide variety of circumstances. The questions for consideration will generally revolve around an assessment of whether a case is, as a matter of fact, one that is appropriate.
Two matters are pertinent: the question of control of the Court processes and the avoidance of abuse of those processes. In those circumstances a genuine explanation must be given as to why the right was not exercised earlier (so as to meet the requirements of the Rules - refer Lander J in The Queen v Haydon) or whether, as a matter of fact, it may be shown that it would be unjust not to grant the extension of time.
I asked Mr Graham for the defendant to address the issues to which I should give consideration having regard to what fell from Gray J in Gavare. Mr Graham reiterated that at the time of the arraignment the position taken by the defendant was that there was no sufficient evidence linking the defendant to a mobile phone that the police had identified in a home which the defendant was seen leaving prior to his apprehension by police.
In that house the police did identify a mobile phone but at that time there was no evidence linking the defendant to that mobile phone in that home. That position changed in December 2013. Mr Graham informed me that at that time the prosecution provided to the defendant’s solicitors an e-crime disc which contained a significant amount of material concerning text messaging between a person using the phone and other persons. Mr Graham informed me, and Mr Wilson did not disagree, that from that time there was a significant focus in the prosecution case and the defence case upon the text messages on the phone. It is in respect of this material that the prosecution would seek to call expert evidence to inform the issue of trafficking.
Mr Graham informs me that even more material has come to light. Contained upon the memory of the phone is a pornographic video (or videos) allegedly involving the defendant and a female person. Mr Graham informs me that the video information stored on that phone may be used to link the defendant to the mobile phone. That development in the evidence to be led by the prosecution was a matter not known by the defendant before or at the time of the arraignment. Mr Graham informs me that this new information, if available at the relevant time, would have led the defendant to make a different decision about his election under s7 of the Juries Act. The prosecution did not challenge this assertion.
There is a further matter. Mr Graham informs me that today he has been informed of two further pieces of information. The first is that the police have now taken steps to identify the number of the phone used in the text messages. That is, the police can now identify the phone number of the phone that was seized that was not at that time on the person of the defendant.

The second piece of information is that a subscriber check has been made of the phone number so identified and that subscriber check identifies the defendant as the owner of the number in the SIM card on the phone. When those two pieces of information are matched, there is arguably a connection to be made as a matter of ordinary inference between the defendant, the phone and the information upon the phone, especially the text messages which the prosecution will say are incriminating in nature. These are very important issues particularly having regard to the fact that the charge involved is one of trafficking in a controlled drug. Added to that is the material contained upon the pornographic videos stored on the phone that potentially physically identifies the defendant.
None of this evidence was available to the defendant prior to the arraignment and so was not available to his advisers at that time. Mr Graham concedes that, if admitted, that material on the phone would be prejudicial to the defendant’s case. I accept that explanation.
Mr Graham also informed me in response to a question that I put to him that the position is that if the defendant had known of this material at the time of arraignment then an election would have been made at that time to be tried by Judge alone. This was not challenged by the prosecution.
On the question of abuse of process as identified by Gray J in para.[59] of Gavare, Mr Graham informs me that Mr Wilson for the Director accepts that the previous election by the defendant under s7 of the Juries Act was made before there was any disclosure about who the trial Judge in the matter would be if the application succeeded. I accept that matter and Mr Wilson does not contest it.
The second matter that Mr Graham raised was that, having regard to the state of the evidence, it has only been in the very recent past, and in particular today, that significant items of evidence have come forward from the prosecution in a way which more clearly adumbrates to the defendant the outline and approach of the prosecution about the defendant’s involvement in the alleged crime.
I am therefore satisfied that on the question of the need for the control of the Court’s procedures, and of the need to avoid abuse of process, no issue arises in relation to the question of my exercise of my discretion in this matter.
In my opinion, the application of the defendant under Rule 8(5)(a) of the Juries Rules, Rules 16, 17 and 18 of the Juries Rules and under s.7 of the Juries Act, should succeed.
In my opinion, for the purposes of Rules 16, 17 and 18 of the Juries Rules and, having regard to the matters put to me by Mr Graham, and not contested by Mr Wilson, there are special reasons for allowing dispensation with the compliance of the requirement of Rule 8(5)(a) of the Juries Rules and that, in my opinion, having regard to the submissions made to the Court it would also be unjust not to do so.
The special reasons are to be assessed in the background of the operation of the procedures for the provision of information on the prosecution brief from the Director to the defendant. The obligation upon the Director is well known and understood. The learned authors of Criminal Law South Australia at para. 700.7(7) (at page 1311) state the following:-
(a) Nature of the duty
The prosecution has a duty to disclose material which can be seen on a sensible appraisal by the prosecution to be potentially relevant to an issue in the case or to raise a new issue which is not fanciful: Mallard v R (2003) 28 WAR 1; R v Spiteri (2004) 61 NSWLR 369; R v Livingstone (2004) 150 A Crim R 117.
In the absence of committal proceedings, the obligation is generally upon the prosecution to furnish the defendant with a proof of the witness’ proposed evidence.[15] This is a fundamental principle of fairness that operates in the criminal law. Thus, if such information is not supplied in a reasonable time before trial, prejudice may result that in turn, requires the discharge of a jury.[16] The question of prejudice is a matter of fact for the Courts’ decision in the exercise of its discretion.[17]
[15] R v Van Beelen (1974) 9 SASR 163 at 248-249.
[16] R v Utans (1982) 29 SASR 592 at 595-596.
[17] R v Cox (1997) 196 LSJS 3.
It is inappropriate and it is not necessary to here attempt to set out guidelines about lateness and prejudice. In this case, it may accurately be said that the presumptions and assumptions made by the defendant at the time of the arraignment based upon the material to that time supplied by the Director led the defendant to form a particular view and to make a decision about how he wished his trial in this Court to proceed. The Director delivered further relevant material very late, in order to attempt to overcome some gaps in the evidence to be led on behalf of the prosecution. These apparently were the same gaps in the evidence as were identified by the defendant at the time that he made his decision prior to the arraignment. In my opinion this is a sufficiently unusual circumstance to satisfy the test.
There is no challenge in the application from the prosecution that the material was delivered late, or that it was material that had a significant bearing on the approach of the defendant to this case. It is also not in contest that had the defendant been aware of this material (as he should have been) at the day of the arraignment, he would have made a different decision. In my opinion, in the peculiar circumstances of this case, the circumstances that inform the question of “special reasons” also informs the question of injustice, although I do not need to develop the matter further. There is no evidence of some positive representation made by the Director to the defendant.
But the prejudice here and therefore the question of justice (or no) is quite narrow and specific. It is peculiar to the defendant but that is not unusual. In the assessment (objective) of injustice, the Court will often be required to take into account subjective considerations connected with the position of the defendant before it.
In the premises I make orders disposing of the need for compliance by the defendant with Rule 8(5) of the Juries Rules.

(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—$50 000 or imprisonment for 10 years, or both;
(b)     for an aggravated offence—$75 000 or imprisonment for 15 years, or both.
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)      was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.

(1)Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a)the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
(2) No election may be made under subsection (1) where the accused is charged with a minor indictable offence and has elected to be tried in the District Court.
(3) Where two or more persons are jointly charged, no election may be made under subsection (1) unless all of those persons concur in the election.
(3a) Where an information is presented to the District Court or the Supreme Court under section 275 of the Criminal Law Consolidation Act 1935 and the information includes a charge of a serious and organised crime offence (within the meaning of that Act), the Director of Public Prosecutions may apply to the court for an order that the accused be tried by judge alone.
(3b)        The court may make an order on an application under subsection (3a) if it considers it is in the interests of justice to do so (and may do so at any time before commencement of the trial of the matter, regardless of whether a jury has been constituted in accordance with this Act to try the issues on the trial).
(3c)         Without limiting subsection (3b), the court may make an order on an application under subsection (3a) if it considers that there is a real possibility that acts that may constitute an offence under section 245 or 248 of the Criminal Law Consolidation Act 1935 would be committed in relation to a member of a jury.
(3d)        An order of a court on an application under subsection (3a) may be appealed against in the same manner as a decision on an issue antecedent to trial.
(4) If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.