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R v Johnston

R v Johnston

Case [2021] NSWDC 321 16 July 2021

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District Court

New South Wales

Medium Neutral Citation: R v Johnston [2021] NSWDC 321
Hearing dates: 09 July 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 43

Catchwords:
CRIMINAL PROCEDURE – sexual assault offence – prosecutor inadvertently omitted to inform Magistrate of the Director of Public Prosecution’s election for trial on indictment – guilty plea entered in Local Court – permanent stay application – whether ex officio indictment abuse of process – whether loss of inadvertent advantage to avoid the imposition of a sentencing option generates unfairness which warrants a permanent stay

Legislation Cited:
Crimes Act 1900 (NSW) s 61KC
Crimes (Sentencing Procedure) Act 1999 (NSW) s 58
Criminal Procedure Act 1986 (NSW) s 263
Director of Public Prosecutions Act1986 (NSW) s 7
Inclosed Lands Protection Act 1901 (NSW) s 4

Cases Cited:
Adler v District Court of New South Wales (1990) 19 NSWLR 317
Barton v The Queen (1980) 147 CLR 75
Hermanus v R (2015) 44 VR 335
Iqbal v R [2012] NSWCCA 72
Island Maritime Ltd v Filipowski (2006); 226 CLR 328
Jago v District Court of New South Wales (1989) 168 CLR 23
Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333
Peiris v R (2014) 240 A Crim R 114
Petroulias v R (2007)176 A Crim R 302
R v Bartalesi; R v Fragassi (1997) 93 A Crim R 274
R v Edwards (2009) 83 ALJR 717
R v El Masri [2005] NSWCCA 167
R v Moore (2015) 91 NSWLR 27
Tony Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 32
Walton v Gardiner (1993) 177 CLR 378
Watson v Attorney-General(NSW) (1987) 8 NSWLR 685
Webb v R; Webb v R (2012) 225 A Crim R 550
Williams v Spautz (1992) 174 CLR 509

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Director of Public Prosecutions (NSW)
Mr P Johnston (applicant)
Representation:
Counsel:
Mr T Anderson for the applicant
Mr C Triscari (solicitor advocate) for the Director of Public Prosecutions (NSW)
Solicitors:
Legal Aid for the applicant
Solicitor for the Director of Public Prosecutions (NSW)

File Number(s): 2020/00353507
Publication restriction: Nil.

Judgment

On 26 February 2021, the Director of Public Prosecutions (the DPP) issued an ex officio indictment under s 7(2)(c) of the Director of Public Prosecutions Act1986 (NSW), by which the applicant was charged with the offence that, on 7 September 2020, at Summer Hill in the State of New South Wales, he intentionally touched a person sexually, without her consent to the touching and knowing that she did not consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW).
The applicant applies for a permanent stay of the proceeding on the basis that it amounts to an abuse of process.

The Facts

The background facts are uncontroversial. The account below is taken from the applicant’s submissions, which, in relation to this part of those submissions, the Crown accepted.
On 16 September 2020, the applicant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Johnston

Details

AGLC: R v Johnston [2021] NSWDC 321
Case: [2021] NSWDC 321
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the case of R v Johnston, the defendant was charged with a sexual assault offence. The Magistrate had inadvertently not been informed by the prosecutor of the Director of Public Prosecution’s election for trial on indictment. Johnston entered a guilty plea in the Local Court. Johnston subsequently applied for a permanent stay on the basis that the inadvertent omission to inform the Magistrate constituted an abuse of process. Johnston argued that the unfairness caused by the inadvertent advantage gained warranted a permanent stay. The court was required to determine whether the ex officio indictment was an abuse of process and whether the unfairness generated by the inadvertent advantage warranted a permanent stay.

The court considered the relevant statutory provisions and case law regarding abuse of process and the circumstances in which a permanent stay should be granted. The court found that the ex officio indictment was not an abuse of process because the Director of Public Prosecution’s election was a valid exercise of prosecutorial discretion. However, the court acknowledged that the inadvertent omission to inform the Magistrate of the election had caused unfairness to Johnston. The court considered whether this unfairness was significant enough to warrant a permanent stay. The court found that the unfairness caused by the inadvertent advantage did not generate unfairness of such a degree as to warrant a permanent stay.

The court dismissed the application for a permanent stay. The court found that the unfairness caused by the inadvertent omission to inform the Magistrate of the election was not significant enough to warrant a permanent stay. The court noted that the unfairness could have been avoided if Johnston had raised the issue at the earliest opportunity. The court found that the appropriate remedy was to impose a sentence that took into account the unfairness caused by the inadvertent omission. The court ordered that Johnston be sentenced in the Local Court, taking into account the unfairness caused by the inadvertent omission.

Orders

Orders of the court

See paragraph 43

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Johnston [2021] NSWDC 321

Most Recent Citation

R v Grgeta [2004] SADC 108

Cases Citing This Decision

Commissioner of Police v Smith [2023] NZHC 3384
Citation 1

…45 See R v Johnston (1986) 2 CRNZ 289 (CA) at 291. 46 Commissioner of Police v Marshall [2021] NZHC 1819. 47 At [13].…
Martain v The King [2023] SASCA 104
Citation 2 (Para 25)

…because of the importance placed by the law on the sanctity of human life but also because of the need for general deterrence.[28] [28] R v Johnston (1985) 38 SASR 582 at 585-586 per King CJ; R v Payne (2004) 89 SASR 49 at [50], [70] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ; R v Watkins (2013) 118 SASR…
Trewren v The King [2023] SASCA 100
Citation 3 (Para 10)

…because of the importance placed by the law on the sanctity of human life but also because of the need for general deterrence.[18] [18] R v Johnston (1985) 38 SASR 582 at 585-586 per King CJ; R v Payne (2004) 89 SASR 49 at [50], [70] per Doyle CJ, Nyland, Sulan, Anderson and Mullighan JJ; R v Watkins (2013) 118 SASR…
Bubner v The Queen [2022] SASCA 27
Citation 4 (Para 22)

…ssessing the gravity of the offence.[21] The unintended consequences of an offence must always be taken into account.[22] [20] The Queen v Johnston (1985) 38 SASR 582 at 585 per King CJ; R v Hietanen (1989) 51 SASR 510 at 517 per King CJ (with whom Mohr J agreed); R v Edwards [2016] SASCFC 145 at [31] per Blue, Lovel…
R v McIntyre [2020] SASCFC 101
Citation 5 (Para 22)

…any injury, emotional harm or significant risk resulting from the offending (s 11(1)(c)). [12] R v Hietanen (1989) 51 SASR 510 at 517; R v Johnston (1985) 38 SASR 582; R v Edwards [2016] SASCFC 145 at [31].…
R v Akol [2020] SASCFC 75
Citation 6 (Para 9)

…to observations made by Doyle CJ in R v Nemer (2003) 87 SASR 168, [4]-[7] (with whom Prior and Vanstone JJ agreed). [21] R v Johnston (1985) 38 SASR 582, 585 (King CJ).…
Singh v Lynch [2020] NSWCA 152
Citation 7

…ian Broadcasting Authority (1998) 194 CLR 455; [1998] HCA 28 R v Johnston (1985) 38 SASR 582 Rennie Golledge Pty Ltd v Ballard (2012) 82 NSWLR 231; [2012] NSWCA 376 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Rootes v S…
Ramsay v The Queen [2020] SASCFC 4
Citation 8

…CLR 270; MJDH v Director of Public Prosecutions (2013) 116 SASR 180; Law v Deed [1970] SASR 374; R v Kreutzer (2013) 118 SASR 211; R v Johnston (1985) 38 SASR 582; R v Wooldridge (2015) 123 SASR 422; R v Copeland (No 2) (2010) 108 SASR 398; R v Bagnato (2011) 112 SASR 39; Attorney-General (SA) v Tichy (1982) 30 SASR…
R v Edwards [2016] SASCFC 145
Citation 9 (Para 30)

…the conduct which is punished or to any rational purpose of punishment. (Footnotes omitted) [10] (2011) 111 SASR 219. [11] (2015) 123 SASR 422. [12] (1985) 38 SASR 582. [13] R v Johnston (1985) 38 SASR 582, 585.…
R v Wooldridge [2015] SASCFC 125
Citation 10 (Para 12)

…age in Johnston ,[7] where King CJ considered the need for a proper assessment of the extent of the moral turpitude involved in the offending.[8] [5] (1985) 38 SASR 582. [6] R v Johnston (1985) 38 SASR 582 at 586 (King CJ, with whose reasons White J agreed). [7] At 585. [8] Moral turpitude and, in particular, turpitu…
R v Pickard [2011] SASCFC 134
Citation 11 (Para 21)

…considerations, including rehabilitation, must also be taken into account.[29] [29] R v Thompson (1975) 11 SASR 217 at 222 per Bray CJ; R v Johnston (1985) 38 SASR 582 at 585-586 per King CJ (White J and Millhouse J agreeing); R v Godwin [2001] SASC 295; (2001) 80 SASR 195 at [23] per Prior J (Nyland J and Lander J…
R v Singh [2011] SASCFC 128
Citation 12 (Para 13)

…however, the demands of deterrence should ordinarily be reflected in the duration of the licence disqualification. (Underlining is mine) [2] (1985) 38 SASR 582. [3] (1985) 38 SASR 582 at 585. [4] (1985) 38 SASR 582 at 586. Discussion…
R v Thach [2010] SASCFC 16
Citation 13 (Para 29)

…this area, suspension of a sentence should not be lightly resorted to. Nevertheless it remains an option for use in appropriate cases.[51] [50] (1985) 38 SASR 582. [51] Ibid at 586.…
R v Hitanaya [2010] NTCCA 3
Citation 14

…tzgerald (2004) 59 NSWLR 493; R v Hermann (1988) 37 A Crim R 440; R v Holder and Johnston [1983] 3 NSWLR 245; R v JO (2009) 24 NTLR 129; R v Johnston (1985) 38 SASR 582; R v Osenkowski (1982) 30 SASR 212; R v PDW (2009) 25 NTLR 72; R v Riley (2006) 161 A Crim R 414; R v Salameh , unreported, New South Wales Court of…
CHAPMAN v Police [2009] SASC 196
Citation 15 (Para 25)

…mits imposed by reason and considerations of justice, as to operate as a deterrent to those who might be inclined to engage in dangerous driving. [2] (1985) 38 SASR 582, 584.…
The Queen v Lane [2005] NTCCA 16
Citation 16 (Para 22)

…angerous conduct, so the maximum of 14 years is to be seen in that light: Baumer v The Queen (1988) 166 CLR 51 at 55. As King CJ said in R v Johnston (1985) 38 SASR 582 at 586: “The typical dangerous driver is not a hardened criminal. The thought of prison is as frightening to him as it is to almost all citizens who…
R v VENETSANOS [2004] SASC 401
Citation 17 (Para 6)

…eral deterrence weigh heavily in the scales when it comes to fixing a penalty. That has been recognised in many cases. See, for example, R v Johnston (1985) 38 SASR 582 at 585; R v Godwin (2001) 80 SASR 195 at [23]; R v Peake (2002) 221 LSJS 407 at 410.…
R v Grgeta [2004] SADC 108
Citation 18 (Para 18)

…ear to motorists that they are not to engage in deliberate escapades of dangerous driving which present major risks to other road users: R v Johnston (1985) 38 SASR 582; Ween v R (1992) 164 LSJS 476. However, this factor of general deterrence need not necessarily be given great weight where an offender’s mental proce…
R v Payne [2004] SASC 160
Citation 19 (Para 8)

…In The Queen v Johnson (1985) 38 SASR 582 the Crown Prosecutor argued that the prevailing standards of punishment for causing death by dangerous driving were too lenient, and referred to community concern about the number of road fatalities and in particular to the “deadly combination” of youth, speed, alcohol and co…
Wood v The Queen [2002] WASCA 95
Citation 20

…CA 327 Hartland v Umbagai (1999) 30 MVR 269 Plenty v Bargain [1999] WASCA 67 R v Hicks (1987) 5 MRV 1 R v Hudson (1979) 1 Cr App R(S) 65 R v Johnston (1985) 38 SASR 582 R v Liddington (1997) 18 WAR 394 R v Millar [2002] WASCA 54 R v Pinder (1992) 8 WAR 19 R v Tanner (1987) 6 MVR 371 R v Van Schayk, unreported; CCA SC…
R v Kennedy [2000] NSWCCA 487
Citation 21

…ether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience,…
R v Van Dyk [2000] NSWCCA 67
Citation 22

…ld be impossible for him to identify who was at the ranch on a particular day and at the time of the offence alleged and obtain evidence that nothing untoward happened. Some of the incidents were alleged to have happened in sheds which were open in the front and to which patrons agisting horses had access. Further, th…
R v Davenport No. Sccrm-98-150 Judgment No. S6816 [1998] SASC 6816
Citation 23 (Para 38)

…However, having regard to what was said by King CJ in The Queen v Johnston (1985) 38 SASR 582, it seems to me that the commencement point adopted by the learned sentencing Judge was unduly high and did not reflect current sentencing tariffs for these types of offence. This is readily discernible from the material to…
Baumer v R [1988] HCA 67
Citation 24

…limiting the impact of the higher maximum on the latter kind of offence. There may be much truth in the observations of King C.J. in Reg. v. Johnston (1985) 38 SASR 582, at p 586, cited by Maurice J.:…
Cleland v The Queen [1982] HCA 67
Citation 25

…7. Voluntariness. To be admissible the alleged confessional statement must be voluntary, that is, made by the choice of the accused completely free from any threats or other pressure. It may be a question of classification whether a confession induced by false representations or other trickery is vo…

See all citing cases →

Cases Cited

Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333
Citation 1 (Para 13)

…er that the matter be returned to the Local Court for finalisation of the sentencing proceeding: Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333 per Cavanagh J at [66]. The Crown subsequently withdrew the Local Court proceedings.…
Hermanus (a pseudonym) v The Queen [2015] VSCA 304
Citation 2 (Para 19)

…R v Edwards (2009) 83 ALJR 717 at [23], demonstrating that a mere risk of unacceptable injustice or unfairness is insufficient. See also Hermanus v R (2015) 44 VR 335, 341–2 [39]; Jago at 31, 58–61, 76.…
R v MOORE [2015] SASCFC 9
Citation 3 (Para 20)

…an abuse of process which justifies a stay: Williams v Spautz (1992) 174 CLR 509 at 529 and Watson v Attorney-General (NSW) at 344. 2. R v Moore (2015) 91 NSWLR 27 per Bathurst CJ at [24]…
Iqbal v R [2012] NSWCCA 72
Citation 4 (Para 30)

…The Crown cites the decision of the Court of Criminal Appeal in Iqbal v R [2012] NSWCCA 72, which did not concern s 263(3)(b), but rather, s 263(2) of the CP Act, where, at [23]-[24], McClellan CJ at CL (Davies J and Garling J agreeing) confirmed the Director’s power to proceed by way of an ex officio indictment, a…
R v Edwards [2009] HCA 20
Citation 5 (Para 19)

…ess, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The emphasis is that of the High Court in R v Edwards (2009) 83 ALJR 717 at [23], demonstrating that a mere risk of unacceptable injustice or unfairness is insufficient. See also Hermanus v R (2015) 44 VR 335, 341–2 [39];…
Island Maritime Ltd v Filipowski [2006] HCA 30
Citation 6

…Barton v The Queen (1980) 147 CLR 75 Hermanus v R (2015) 44 VR 335 Iqbal v R [2012] NSWCCA 72 Island Maritime Ltd v Filipowski (2006); 226 CLR 328 Jago v District Court of New South Wales (1989) 168 CLR 23 Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333 Peiris v R (2014) 240 A Crim R 114 Pet…
R v El Masri [2005] NSWCCA 167
Citation 7 (Para 39)

…he circumstance that the case could appropriately have been disposed of in the Local Court ( Peiris v R (2014) 240 A Crim R 114 at [94]; R v El Masri [2005] NSWCCA 167 at [29]).…
Walton v Gardiner [1993] HCA 77
Citation 8 (Para 18)

…An essential consideration in the balancing exercise is the need to maintain public confidence in the administration of justice: see Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395–396 and Petroulias v R (2007) 176 A Crim R 302 per Ipp JA at [17]:…
Williams v Spautz [1992] HCA 34
Citation 9 (Para 20)

…Filipowski (2006) 226 CLR 328 at [32]. The applicant bears the onus of establishing an abuse of process which justifies a stay: Williams v Spautz (1992) 174 CLR 509 at 529 and Watson v Attorney-General (NSW) at 344. 2. R v Moore (2015) 91 NSWLR 27 per Bathurst CJ at [24]…
Jago v District Court (NSW) [1989] HCA 46
Citation 10 (Para 16)

…son of the proceedings constituting an abuse of process: Watson v Attorney-General (NSW) (1987) 8 NSWLR 685; Jago v District Court of New South Wales (1989) 168 CLR 23; Adler v District Court of New South Wales (1990) 19 NSWLR 317; Webb v R; Webb v R (2012) 225 A Crim R 550 at [64]-[71].…
Barton v the Queen [1980] HCA 48
Citation 11 (Para 23)

…With respect to the filing of ex officio indictments becoming the subject of a stay of proceedings, in Barton v The Queen (1980) 147 CLR 75 Gibbs ACJ and Mason J (at 95-96) stated:…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 58
3 mentions (from Para 6)
Crimes Act 1900 (ACT) 61KC
2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW) 263
2 mentions (from Para 10)
Director of Public Prosecutions Act 1986 (NSW) 7
2 mentions (from Para 1)
Inclosed Lands Protection Act 1901 (NSW) 4
2 mentions (from Para 4)

Medium Neutral Citation:	R v Johnston [2021] NSWDC 321
Hearing dates:	09 July 2021
Date of orders:	16 July 2021
Decision date:	16 July 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 43
Catchwords:	CRIMINAL PROCEDURE – sexual assault offence – prosecutor inadvertently omitted to inform Magistrate of the Director of Public Prosecution’s election for trial on indictment – guilty plea entered in Local Court – permanent stay application – whether ex officio indictment abuse of process – whether loss of inadvertent advantage to avoid the imposition of a sentencing option generates unfairness which warrants a permanent stay
Legislation Cited:	Crimes Act 1900 (NSW) s 61KC Crimes (Sentencing Procedure) Act 1999 (NSW) s 58 Criminal Procedure Act 1986 (NSW) s 263 Director of Public Prosecutions Act1986 (NSW) s 7 Inclosed Lands Protection Act 1901 (NSW) s 4
Cases Cited:	Adler v District Court of New South Wales (1990) 19 NSWLR 317 Barton v The Queen (1980) 147 CLR 75 Hermanus v R (2015) 44 VR 335 Iqbal v R [2012] NSWCCA 72 Island Maritime Ltd v Filipowski (2006); 226 CLR 328 Jago v District Court of New South Wales (1989) 168 CLR 23 Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333 Peiris v R (2014) 240 A Crim R 114 Petroulias v R (2007)176 A Crim R 302 R v Bartalesi; R v Fragassi (1997) 93 A Crim R 274 R v Edwards (2009) 83 ALJR 717 R v El Masri [2005] NSWCCA 167 R v Moore (2015) 91 NSWLR 27 Tony Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 32 Walton v Gardiner (1993) 177 CLR 378 Watson v Attorney-General(NSW) (1987) 8 NSWLR 685 Webb v R; Webb v R (2012) 225 A Crim R 550 Williams v Spautz (1992) 174 CLR 509
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (NSW) Mr P Johnston (applicant)
Representation:	Counsel: Mr T Anderson for the applicant Mr C Triscari (solicitor advocate) for the Director of Public Prosecutions (NSW) Solicitors: Legal Aid for the applicant Solicitor for the Director of Public Prosecutions (NSW)
File Number(s):	2020/00353507
Publication restriction:	Nil.