R v Johnston

[2021] NSWDC 321

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

1. 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).

2. The applicant applies for a permanent stay of the proceeding on the basis that it amounts to an abuse of process.

The Facts

3. 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.

4. On 16 September 2020, the applicant was charged with one offence pursuant to s 61KC(a) of the Crimes Act 1900 (NSW), which is a Table 2 offence carrying a maximum five years custody and a second offence under s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW), which is neither a Table 1 nor 2 offence. Both offences were alleged to have occurred on 7 September 2020. The applicant was arrested on 16 September 2020 and his parole was revoked in relation to another matter. He has been in custody since that time.

5. The matter first came before the Local Court at Burwood on 17 September 2020. The applicant’s second appearance before the Court was on 1 October 2020 at which point he pleaded guilty before LCM B. Williams to both charges and his facts and antecedents were tendered for sentencing. The matter was then transferred to LCM Horan for sentence the same day.

6. Sentencing submissions began on 1 October 2020 and her Honour LCM Horan raised the prospect of obtaining a Sentencing Assessment Report and Static-99 report regarding the applicant. Appropriate sentences were discussed and Ms Maranga, who appeared for the applicant at sentence, informed her Honour that by virtue of s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) her Honour could not impose a custodial sentence on the applicant.

7. Section 58 of the CSP Act prohibits the Local Court from imposing a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment, if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. The following exchange between her Honour and Ms Maranga occurred:

LCM Horan:   What you that [sic] is not affected by whether the parole’s revoked or not?

Maranga:   Yes. That's just a fact of life, your Honour.

LCM Horan:   So, what's my option?

Maranga:   Quite limited. And perhaps this is a situation where a lengthy order, a community corrections order, might be appropriate.

LCM Horan:   Do you wish to be heard. I’ve just…

Prosecutor:   Your Honour, I don’t necessarily agree with a community corrections order regarding this matter. In the prosecutions view it is a serious matter.

LCM Horan: Yes, but s 58 is a problem.

Prosecutor:   I’m just reading that now your Honour.

LCM Horan:   The Local Court limitation on consecutive sequences imposed by a Local Court – this was a District Court sequence?

Maranga:   Yes.

LCM Horan:   Does that change it?

Maranga:   No. No, your Honour. It’s just a sentence. As long as there’s an existing order.

LCM Horan:   Are you here tomorrow?

Maranga:   No, I am not in tomorrow. I am here on Wednesday.

LCM Horan:   Well, I just want to look at that and make sure that I’m not making an error.

8. LCM Horan adjourned the proceedings to 2 October 2020 to consider the issue. During the hearing on 2 October 2020 her Honour made the following observation in the context of the type of sentence which could be imposed on the applicant:

LCM Horan: "This is a really problematic file and I'll be making some sentencing remarks later and I'll be making a heavy criticism of the prosecution in it. This is a matter where very serious sexual touch another person (as said) he’s on parole, he’s got a very lengthy history of sexual assault type matters and because of s 58, and because the prosecution didn't do something about this before the pleas were entered I'm not ^[1] stuck in terms of what sentencing options I have and I'm really, I have to say very unhappy about it restart alright."

1. It was accepted that the word ‘not’ must appear by error given the balance of her Honour’s statement.

9. The matter then stood in the list for some time and later on 2 October 2020 the prosecutor returned and informed the Court and the applicant – for the first time – that there had been an administrative error and that the DPP had accepted the matter – the Court was not told when it was accepted. The prosecutor sought to have the sentence proceedings abandoned.

10. Although it is not set out in the transcript, the parties then addressed her Honour regarding s 263(3) of the Criminal Procedure Act1986 (NSW) (‘CP Act’). As ultimately set out in written submissions, the prosecution’s position was that notwithstanding the fact that it informed neither the Court nor the applicant about the decision to elect, the DPP had elected on 22 September 2020. On that basis, the prosecutor submitted that the election had been made prior to the plea of guilty being entered and the presentation of the facts, therefore s 263(3) was not offended.

11. The applicant’s position was that having entered the plea of guilty, and the facts relied upon by the prosecution to prove the offence having been tendered, s 263(3) prevented the Crown from electing.

12. LCM Horan made orders that the parties file and serve submissions on the application of s 263 of the CP Act and the matter was heard by her Honour on 20 October 2020. Her Honour gave judgement, finding that a valid election had been made by the DPP on 22 September 2020. Her Honour’s reasoning was, in part:

"The DPP communicated an election to the police prosecution on 22 September 2020. Annexure C of the affidavit comprises a print out of the COPS entry with one entry in which it reads and I quote, “DPP advise – elect”…I am of the view that since the police prosecutor referred the matter to the DPP, the DPP determined to proceed on indictment and the DPP notified the police prosecutor in writing that he was electing to proceed [on] indictment prior to the entry of the plea of guilty and the facts being tendered in the Local Court, s 263(3) is not offended by the matter now proceeding by way of an election. Notwithstanding the fact that this was not communicated to the Court on 1 October 2020 prior to the play not guilty Bing entered and the facts being tended.[sic]"

13. Her Honour’s ruling was appealed by the applicant to the Supreme Court. But in the period between the filing of the appeal and its hearing, the Crown filed an ex officio indictment and informed the applicant that the Local Court proceedings would be discontinued and the matter proceed in the District Court. Consequently, the Supreme Court proceedings were irrelevant; for all practical purposes. The Magistrate’s decision in finding a valid election was found to be in error, but it was a pyrrhic victory as the Supreme Court declined to make an order 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.

14. As indicated in parts of Cavanagh J’s reasons (at [25]-[27] and [80]-[88]) the current application was foreshadowed in that proceeding, but his Honour refrained from venturing any opinion about its prospects.

Principles for stay application on the ground of abuse of process

15. There is also no dispute about the relevant principles, as articulated in the applicant’s written submissions.

16. The District Court has the power to stay proceedings on indictment by reason 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].

17. In Jago, Mason CJ considered that underlying the power of the court to grant a permanent stay was the court’s inherent jurisdiction to prevent abuses of process. Mason CJ had noted, at 33, that “the touchstone in every case is fairness” pointing out that the relevant test of fairness involved a balancing process having regard to the interests of the accused, as well as the community’s right to expect that persons charged with criminal offences are brought to trial.

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]:

“In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances (references omitted.)”

19. The court must be satisfied that the continuation of the proceedings would involve unacceptable injustice, or unfairness, 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]; Jago at 31, 58–61, 76.

20. The grant of a permanent stay is an “exceptional remedy”[2] and it is within the public interest that serious allegations, such as of the kind here, are disposed of on their merits: Island Maritime Ltd v 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]

21. In Williams v Spautz, the plurality (at 520) identified two policy considerations which are to be taken into account in dealing with abuse of process in the context of criminal proceedings. The first is the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are being used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.

22. At 519, the plurality observed (in terms later echoed by Edelman J) that if a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that “there are no other means .. of bringing about a fair trial.”

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:

“It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial.”

24. At 101, their Honours determined that in deciding whether to grant a stay, the Court will balance the interests of the accused with the interests of the community.

25. The Crown also relies upon the observations of Edelman J in Tony Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 32 at [248] where his Honour said:

“A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court….”

The parties’ arguments

The applicant’s submissions

26. The applicant acknowledged that his application was not the usual type of application reliant upon notions of abuse of process to stay a proceeding brought by the issue by the Director of an ex officio indictment. He was not saying that because of conduct by the prosecutor he cannot now get a fair trial. His concern, rather, is an apprehension that because of the proceeding he will lose the prospect of certainly avoiding a custodial penalty that would have been imposed in the Local Court because of s 58 of the CSP Act.

27. The applicant submits that the Crown was seeking to capitalise upon the errors for which the prosecution is responsible, in not finalising the sentencing proceeding in the Local Court following the prosecution’s acceptance of his guilty plea. There were two errors. The first was the inadvertent non-disclosure by the police prosecutor of an election having been notified by the Director to the prosecutor. The second was the errors of the learned Magistrate in determining that the Director had made an election which the Crown could rely upon to effectively halt the sentencing proceeding in the Local Court. It matters not, for this purpose, that these errors were either inadvertent (in the case of the prosecutor) or resulted from the lawful exercise of power (in the case of the Magistrate). The end result was the same: the sentencing proceeding should have been resolved in the Local Court, irrespective of whatever limitations; such as that which may arise because of the operation of s 58 of the CSP Act.

28. For the Director now to utilise the power to issue an ex officio indictment to the applicant was productive of unfairness or injustice because the operation of s 263(3)(b) of the CP Act ousted the Crown’s capacity to make an election for the charge to be tried on indictment where, as here, a plea had been entered and the facts had been presented by the prosecutor to prove the offence. There are two aspects to the unfairness or injustice. First, there was personal unfairness to the applicant. He is now exposed to the possibility of having imposed upon him, in this Court, a custodial penalty (whether or not he pleads guilty) which, because of the effect of s 58 of the CSP Act, could not have been imposed upon him if the sentencing proceeding had been completed in the Local Court. The applicant would therefore be deprived of the chance of avoiding the imposition of a custodial penalty which certainly would have been avoided if the sentencing proceeding had been completed in the Local Court. Secondly, by exercising the power to issue an ex officio indictment in the circumstances, the Director is negating a mandatory statutory provision, which benefits accused persons generally, being s 263(3)(b) and, in so doing, undermines the public’s confidence in the administration of justice, which expects mandatory provisions to be adhered to.

The Crown’s submissions

29. The Crown flips the applicant’s argument regarding the consideration of the administration of justice by saying that if matters were allowed to stand in the Local Court, but for the errors the applicant identified, he would have received a disproportionately lenient sentence in the Local Court; and it is this outcome which would have undermined community confidence in the administration of justice. This outcome would not be justified since the original error, which has given rise to the present difficulty, was only an administrative one, arising from the crown prosecutor’s initial inadvertence in failing to inform the Magistrate of the election; compounded, thereafter, by his submission, later accepted by the Magistrate, that an election had actually been made (when that was legally wrong).

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, acknowledged the applicant’s disappointed expectation that he would be dealt with in the Local Court, but nevertheless was not persuaded that for the Director to proceed in the fashion he did would lead to an erosion of public confidence in the processes of either the Local Court or District Court. To the contrary, the Chief Judge at CL considered that public confidence in the criminal justice system may be adversely impacted if the matter did not proceed on indictment. The Crown argues, in this regard, that without the power to impose any new custodial penalty, the Local Court would have been confined to imposing a community-based sentencing option, which would have been manifestly inadequate, having regard to the objective gravity of the offending and the applicant’s antecedents. In effect, there was no proper sentencing scope for the Magistrate and this, justifiably, attracted the Director’s intervention.

29. In the absence of proof of any delinquency, by the crown prosecutor, the Director was entitled to take steps to redress the unwarranted position of advantage that the applicant was placed in because of an administrative error by the prosecutor in failing to take the step that should have been (and was intended by the Director to be) taken to avoid the situation whereby the Magistrate would have been constrained in imposing a just sentence because of the effect of s 58.

30. The Crown adds that the applicant cannot, at any rate, establish that he has suffered the loss of opportunity he apprehends. It would be open for him, if he is convicted, or enters a plea, to argue that any custodial penalty imposed by this Court should be wholly concurrent with his existing sentence, or even that he should receive a community-based order. Without being able to demonstrate that he has lost the opportunity to have that submission entertained, there is no demonstrable injustice.

31. The Crown responded to the applicant’s concern about the affront to the administration of justice if the Director could circumvent what Cavanagh J described as the “mandatory” operation of s 263(3)(b) by arguing, firstly, that the Director’s decision in exercising power is not examinable by the Court. Secondly, the terms of s 263(3)(b) cannot, properly construed, curtail the exercise of that power. For example, there is no other provision in the CP Act which sets a time limit for the Director to exercise the power.

Consideration

34. In none of the authorities cited on the applicant’s behalf was a stay granted of a proceeding issued under an ex officio indictment other than the situation where there was doubt that the applicant could obtain a “fair trial”. Most cases in this area usually involve the applicant being stripped of some procedural or substantive right affecting the adjudication of an accused’s guilt of an offence. Here, an indictment has lawfully been issued which has the effect of removing an advantage that accrued (by automatic operation of the law) to an offender’s sentencing through the bungled exercise of a right vested in the prosecuting authority. No authority was cited of a permanent stay being granted where the putative unfairness, arising from the issue of an ex officio indictment, is the effective removal of advantage that an offender could avoid the imposition of a sentencing option that would have accrued, but for the issue of the indictment.

35. It is true that that in Jago v District Court of NSW, Mason CJ determined that the right to ‘a fair trial’ extended to the whole of the criminal process (at 29). His Honour appeared, with respect, to have more obviously in mind substantive and procedural laws ancillary to the trial itself, but arguably, it would, in principle, extend to the sentencing process as well. Undoubtedly, persons convicted of crimes have an array of rights (procedural and substantive) in sentencing. Even so, an application to stay a process generated by the issue of an ex office indictment on the basis of an apprehension that an opportunity to receive a lesser sentence may be taken away has to confront the fact that sentencing outcomes not only must acknowledge the interests of an offender, but also those of the community. As was pointed out in Barton (at 101), determination of an application for a permanent stay for abuse of process of an ex officio indictment requires consideration not only of the interests of the accused, but also the interests of the community.

36. I do not accept the applicant’s submission that the interests of the community would support the grant of a stay on the basis that the Crown is seeking to avoid the ‘mandatory’ terms of s 263. In R v Bartalesi; R v Fragassi (1997) 93 A Crim R 274, the Court of Criminal Appeal rejected the proposition that the predecessor statutory provisions to Chapter 5 of the CP Act (of which s 263 forms a part) inhibited the Director from filing an ex officio indictment. Further, although, as was emphasised in argument, a different provision was in issue in Iqbal v R [2012] NSWCCA 72, namely s 263(2) and not s 263(3)(b), the difference is not material. In that case, the complaint was that the Director was also avoiding a mandatory statutory procedure of seeking review from the Local Court order which, it was argued, eroded confidence in the processes of the Local Court and District Court. The accused’s position in Iqbal was stronger than the applicant’s position here: the Magistrate in that case refused to allow the charge to be dealt with on indictment after the prosecutor had made no mistake when he indicated that no election had been made. But the Court of Criminal Appeal still rejected the stay application. Further, no abuse arises from the circumstance of the Magistrate’s decision being wrong in this case. This is not a case of the prosecution attempting to circumvent a decision made against the Crown (like Iqbal). The Director filed the ex officio indictment before Cavanagh J had determined that the Magistrate erred in finding that an election had actually been made. It is not a situation where the Director has sought to effectively bring a fresh proceeding after the applicant was about to be discharged in the Local Court.

37. Further, as Handley JA said in Bartalesi, in relation to the statutory predecessor to Chapter 5, the provisions are directed to the Local Court. They do not address the exercise of the District Court’s jurisdiction under s 8 of the CP Act.

38. Further, I accept the force of the Crown’s submission that the interests of the community, and confidence in the administration of justice more broadly, would be facilitated by the sentencing court imposing a sentence for the offence, on the premises that the applicant is either convicted or enters a plea, which is just in all of the circumstances; including consideration of the appropriate sentencing option with reference to all relevant circumstances, rather than being placed in the procedural straightjacket of s 58 of the CSP Act.

39. Part of that sentencing process will, if the applicant is convicted, likely involve consideration of the factor that a sentencing judge of this Court could take into account the 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]).

40. In Barton v the Queen, Wilson J (with whom Murphy J agreed) after asking rhetorically (at 114), how resort to the issue of an ex officio indictment could be an abuse of process, said:

“It cannot be simply that the loss of some advantage which may ordinarily be enjoyed, whether or not fortuitously, by other persons accused of crime, amounts to such an abuse. That loss of advantage may be felt keenly by an accused person, but this is a very different thing from saying that he has lost the opportunity of a fair trial.” [3]

3. Although, their Honours differed in the orders made by the majority, in that case, that result does not affect this statement of principle

41. I accept, also, the Crown’s submission that the applicant cannot presently establish that he has actually lost anything; but rather, that it would be open for him, if he is found guilty of, if he decides to enter a plea in respect to the offence, to argue that any custodial penalty imposed by this Court should be wholly concurrent with his existing sentence, or even that he should receive a community-based order. In this sense the posited injustice is theoretical, if not hypothetical and may not come to pass. As the High Court said in R v Edwards, the risk of injustice or unfairness is insufficient to justify a permanent stay.

42. Contrary to the applicant’s submission, I expect that confidence in the administration of justice could be undermined if the Director did not exercise his power to issue the indictment to reflect what was intended in the Local Court and to prevent the bounteous position which the applicant found himself in if, by reason of the prosecutor not having effectuated a lawful election contrary to the Director’s instruction, he was to be sentenced by the Local Court; constrained as the Court would have been by the operation of s 58 of the CSP Act. If the applicant has ‘lost’ anything, it is an advantage obtained because of the innocent, but ineffective exercise of the Director’s right to elect. Hard though it may seem to the applicant, he has no inalienable right to avoid liability for the imposition of a sentencing option for an offence that would be appropriate in all of the relevant circumstances. He obtained an advantage by accident. He has not lost the opportunity of a “fair trial” or, in the extended sense, the fair or just application of the processes of criminal justice.

43. For these reasons, I am not persuaded that the applicant has made out his case for the exceptional order for a permanent stay. The application for permanent stay is refused.

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Endnotes

Decision last updated: 19 July 2021