R v Joyce

[2003] NSWCCA 84

CITATION:	Regina v Joyce [2003] NSWCCA 84 revised - 9/04/2003
HEARING DATE(S):	31/03/2003
JUDGMENT DATE:	8 April 2003
JUDGMENT OF:	Dunford J at 1; Simpson J at 2; Hidden J at 3
DECISION:	Leave to appeal refused
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against interlocutory orders - refusal to grant permanent stay of retrial - refusal to order production of documents on subpoena - relevant considerations on stay application
LEGISLATION CITED:	Criminal Appeal Act 1912 (s5F)
CASES CITED:	Dietrich v The Queen (1992) 177 CLR 292 Jago v District Court of NSW (1989) 168 CLR 23 Nye v State of NSW [2002] NSWSC1267 R v Crisologo (1997) 99 ACrim R 178 R v H [2002] NSWCCA 355 Walton v Gardiner (1993) 177 CLR 378
PARTIES :	Regina James Patrick Joyce
FILE NUMBER(S):	CCA 60048/2003
COUNSEL:	P Ingram (Crown) R A Bonnici (Applicant)
SOLICITORS:	S E O'Connor (Crown) Wesley Community Legal Service (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	92/11/0125
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

60048/03

DUNFORD J
SIMPSON J
HIDDEN J

8 April, 2003

REGINA v James Patrick JOYCE

Judgment

1 DUNFORD J: I agree with Hidden J.

2 SIMPSON J: I agree with Hidden J.

3 HIDDEN J: This is an application under s 5F of the Criminal Appeal Act for leave to appeal against interlocutory orders made by Dodd DCJ on 16 and 17 December 2002.

4 The applicant is awaiting retrial upon two charges of dangerous driving causing grievous bodily harm. There had been a trial in May 2002 before Woods DCJ, but the jury was unable to agree upon a verdict in respect of either charge. An application to the Director of Public Prosecutions to discontinue the proceedings was refused. On 16 December 2002 Dodd DCJ heard an application for a permanent stay of the proceedings. At the outset of the hearing counsel for the applicant called upon a subpoena to the Director of Public Prosecutions to produce certain documents but, objection having been taken by the Crown prosecutor, his Honour declined to order production of those documents. On the following day his Honour gave judgment refusing the application for a permanent stay. It is against both those decisions that the present application for leave to appeal is brought.

The first trial

5 The applicant is a medical practitioner. At 8am on Sunday, 4 February 2001 he completed a twelve-hour shift at the emergency department of the Shoalhaven Hospital in Nowra. At about 11am, after going to church and attending to some personal needs, he set off to drive to his home at Wollongong. At a point on the Princes Highway north of Berry his car travelled to the wrong side of the road and collided with an oncoming car, causing injuries to the driver and passenger in that car. He himself was injured.

6 At the first trial evidence was given by two witnesses who were driving their cars behind the applicant’s. Both witnesses observed the applicant’s car veer to the incorrect side of the road on a number of occasions and one of them, Mr Whyte, also saw it veering to the kerbside of the road. On several occasions Mr Whyte sounded his horn and flashed his lights to gain the applicant’s attention, but on each occasion the applicant responded by an apparently offensive gesture with his middle finger.

7 It was the Crown case that the applicant was too tired to drive, a fact of which he should have been aware when he began his journey or during the course of it, and that he continued to drive after Mr Whyte had alerted him to his lack of attention to the roadway. The defence case took no issue with the course of driving described by the witnesses. Rather, it was contended that that course of driving was involuntary because the applicant was in a dissociative “fugue” state at the time.

8 The applicant gave evidence at the trial. Among other things, he said that he felt “quite OK” to drive on the morning in question but that he remembered nothing of the journey after getting into his car. The defence relied upon the expert evidence of Dr Thomas Clark and Dr Robert Kaplan, psychiatrists, and Dr Peter Marantos, respiratory and sleep physician. In the light of the history provided to them, including the applicant’s account of significant psychological pressure from personal and family issues arising in the months prior to the accident, they considered it likely that he was in a dissociative state at the relevant time. The two psychiatrists also diagnosed him as suffering from bipolar disorder, and Dr Kaplan saw that disorder as a factor in his dissociative state.

9 The Crown relied upon the evidence of another psychiatrist, Dr Yvonne Skinner. She disagreed with the finding of dissociative fugue, which she described as a rare type of dissociative disorder resulting from overwhelmingly stressful events. She considered fatigue to be a more likely explanation of the applicant’s erratic driving.

10 Woods DCJ determined that both sane and insane automatism should be left to the jury, the latter because of the evidence about the applicant’s bipolar disorder. The course his Honour took was to ask the jury to determine firstly whether the Crown had established that the applicant’s driving was voluntary. It was upon this issue that the jury could not agree.

The application in the District Court

11 The application for a stay of proceedings before Dodd DCJ centred upon the decision by the Director of Public Prosecutions to proceed with the applicant’s retrial. It was said that that retrial would be an abuse of process because the Director had failed “properly and fairly” to follow his own prosecution guideline in arriving at that decision. The relevant part of that guideline is as follows:

Where a trial has ended without verdict consideration should be given to whether or not a retrial is required. Factors to be considered include:

· whether or not the jury was unable to agree (or the trial ended for other reasons);

· whether or not another jury would be in any better or worse position to reach a verdict;

· the cost of a retrial to the community and to the accused.

12 It was for this reason that the subpoena to the Director, to which I have referred, was issued. It sought the production of:

All internal DPP recommendations and related material and any other recommendations and related material from any other person including the Police, Government Ministers or Public Servants, The Crown Prosecutor’s Office and any other interested civilians -
1) in relation to the Application of Dr. James Patrick Joyce to discontinue Proceedings (No Bill Application)
2) all reasons documented or noted for the refusal by the DPP to grant the said application.

The Crown prosecutor resisted production of those documents on the basis that they were protected by legal professional privilege and that, in any event, no legitimate forensic purpose had been shown for seeking them. In declining to order production, Dodd DCJ upheld the claim of legal professional privilege (perhaps now better described as “client legal privilege”: see Part 3.10 of the Evidence Act ).

13 Argument for the applicant was directed to the two matters in the prosecution guideline bearing upon the decision to proceed to retrial: whether or not another jury would be in a better or worse position to reach a verdict, and the cost of the retrial to the community and to the applicant. Counsel for the applicant relied upon a detailed analysis of evidence in the first trial to be found in the application to the Director to discontinue the proceedings, which was before his Honour.

14 Put shortly, it was argued that the preponderance of the expert evidence favoured the proposition that the applicant’s driving was involuntary. Reliance was placed upon aspects of the applicant’s behaviour after the accident which were said to be consistent with his being in a dissociative state, and it was put that his course of driving itself was explicable by that condition, rather than by fatigue. Given the burden of proof borne by the Crown upon the issue, it was argued that a finding of guilt was unlikely and, in any event, would not withstand appellate challenge. It was also argued that there was a real prospect that the jury at a second trial would again be unable to agree upon a verdict, given that the central issue of sane or insane automatism was one of some complexity.

15 The application was supported by an affidavit of the applicant’s solicitor. Among other things, that affidavit referred in general terms to the costs which the applicant had already incurred and was likely to face in the event of a retrial, which was estimated to take some weeks. No amounts were specified and there was no evidence of the applicant’s financial position. In the course of argument his Honour summarily rejected an argument based on the likely cost to the community and the applicant of a retrial, and he made no reference to that matter in his reasons for dismissing the application.

16 His Honour accepted the written submissions of the Crown prosecutor, which he attached to his reasons. Those submissions asserted the independence of the discretion vested in prosecution authorities: Jago v District Court of New South Wales (1989) 168 CLR 23, per Gaudron J at 77, and the fact that it is only in rare cases that a court would intervene in the exercise of that discretion by the remedy of a permanent stay: Jago per Mason CJ at 34; R v Crisologo (1997) 99 ACrim R 178, per Simpson J at 190. The Crown argued that the applicant had failed to establish either of the relevant tests for a stay, that is, that the trial would be unfair: Jago, or that the prosecution would inevitably fail: Walton v Gardiner (1993) 177 CLR 378 in the joint judgment at 393, and per Brennan J at 411.

17 His Honour condensed his reasons for refusing the application in this way:

…in essence what I am being asked to do is to decide by reference to the facts of the matter that a jury in a second trial would be unlikely to agree upon a verdict, and that therefore the second trial should not take place, or alternatively, and perhaps more strongly, that even if a jury were to agree and convict the accused, that on an appeal the Court of Criminal Appeal would be bound to set aside such a conviction on the grounds that, in the old language, the conviction was unsafe and unsatisfactory.
None of the cases cited to me provide any practical support for taking such a course. I am, in effect, being asked to rush in where all of my angelic brothers and sisters before me have feared to tread. It is not a course I intend to take.

The application in this court

18 Before us, counsel for the applicant reagitated the matters which had been raised in the District Court, the focus of his argument being that his Honour erred in failing to determine whether the Director of Public Prosecutions had properly exercised his discretion to proceed to retrial in the light of the relevant prosecution guideline. However, a fresh matter of considerable importance was also raised, and to that I shall turn in a moment.

19 On the material furnished in the District Court, I can detect no error in the approach taken by Dodd DCJ, either in relation to the subpoena or in the outcome of the application for a stay. The Director’s guidelines do not have the force of law and, for the purpose of the application, his Honour was not engaged in judicial review of administrative action. His only function, as the Crown Prosecutor before him had submitted, was to determine whether the retrial would be unfair or whether the prosecution case was doomed to failure. The relevant principles were restated by Dunford J in R v H [2002] NSWCCA 355 at paras 13 & 25, and there is no need to repeat them.

20 The subpoena was the product of the same misconception of his Honour’s task. Clearly, it was open to his Honour to uphold the claim of legal professional privilege: Nye v State of New South Wales [2002] NSWSC 1267 (O’Keefe J). However, it was equally open to have declined to order production of those documents on the basis that no legitimate forensic purpose had been shown. The Director’s reasons for proceeding to retrial, and the material which was before him for the purpose of making that decision, were irrelevant to the matter which his Honour had to decide. His Honour’s function was to determine whether a stay should be granted on the evidence before him, and in the light of the principles summarised in H.

21 Nothing was put before his Honour to demonstrate that the retrial would be unfair. Nor was it established that the prosecution would necessarily fail. What emerged was that there is an issue about the applicant’s state of mind at the relevant time and that there is conflicting expert evidence about that matter. That is an issue properly to be resolved by a jury, appropriately directed.

22 However, we were asked to receive fresh evidence in the application. We have the power to do so: s 5F(4) of the Criminal Appeal Act, and we received it subject to its relevance being shown. In an affidavit of 5 March 2003, the applicant deposed that he had spent in excess of $80,000 so far on legal expenses and is unable to fund the retrial. His application for legal aid had been refused (presumably because he did not pass the means test), and an appeal to the Legal Aid Review Committee was dismissed. The affidavit also disclosed that the Chief Judge of the District Court, Blanch J, had communicated with the Attorney General to see if legal assistance might be afforded through the Legal Representation Office. We were informed from the Bar table that that approach was unsuccessful.

23 It could be, then, that the applicant would face a second trial unrepresented. It need hardly be said that this would be most undesirable, given the seriousness of the matter and the difficult issues involved. We were asked to allow the appeal on this basis, applying the principles in Dietrich v The Queen (1992) 177 CLR 292. However, it is not appropriate that this Court should consider that matter. It raises a basis for a stay of proceedings which was not argued in the District Court. In any event, the evidence is inadequate and the Crown has not had the opportunity to respond to such evidence as there is.

24 It would be open to the applicant to make a fresh application to the District Court for a stay on this basis, supported by evidence about his assets, income and commitments. That application might be seen to have considerable merit if it appeared that he would be forced to trial without legal representation. To give the matter proper consideration it might be necessary to adjourn the trial, which is currently fixed for the end of this month. These, however, are matters for the court of trial.

25 No error having been shown in the present application, I would refuse leave to appeal.

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Last Modified: 04/10/2003