R v Kalachoff
[2017] ACTSC 310
•25 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kalachoff |
Citation: | [2017] ACTSC 310 |
Hearing Date: | 25 August 2017 |
DecisionDate: | 25 August 2017 |
Before: | Mossop J |
Decision: | The application in proceedings dated 21 August 2017 and filed on 23 August 2017 is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – trial of an alleged indigent person – Dietrich application – alleged abuse of process by Crown – alleged forensic disadvantage – stay of proceedings not granted |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 76 Crimes Act 1900 (ACT), ss 20, 24 Human Rights Act 2004 (ACT), s 22(2)(f) |
Cases Cited: | A-G (NSW) v Milat (1995) 37 NSWLR 370 Dietrich v The Queen (1992) 177 CLR 292 Williams v Spautz (1992) 174 CLR 509 |
Parties: | The Queen (Crown) Brock Kalachoff (Accused) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr J Masters (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Marjason & Marjason (Accused) | |
File Numbers: | SCC 225 of 2016 SCC 226 of 2016 |
MOSSOP J:
Introduction
The accused’s retrial is scheduled to commence next Wednesday 30 August 2017. By application in proceedings, filed with leave in Court on 23 August 2017, the accused has sought orders on the following terms:
That the prosecution in these proceedings be permanently stayed due to:
(a) the decision to proceed to a second trial being an abuse of process; and/or
(b) the accused not being able to get a fair trial.
The grounds for the application are set out at some length in the application in proceedings.
The accused relied upon the affidavits of his solicitor, Mr H Marjason, dated 21 August 2017 and 24 August 2017.
The background to the present application is as follows.
The accused is facing a charge of recklessly inflicting grievous bodily harm and an alternative charge of assault occasioning actual bodily harm. His first trial commenced on 5 June 2017 before a jury of 12. At that trial he was represented by a solicitor and counsel on a pro bono basis. The jury was discharged shortly before its conclusion on a joint application by the Crown and defence arising from inadmissible evidence being inadvertently provided to the jury in the transcript of a taped record of interview.
Following the discharge of the jury, the solicitor for the accused wrote, on 15 June 2017, to the Attorney-General of the ACT seeking an ex-gratia payment for the costs of the aborted trial. That was notwithstanding the fact that he had incurred no costs because solicitor and counsel appeared pro bono. On 1 August 2017 the Chief Minister and Treasurer responded stating:
I have reviewed your request and have determined that while the events are unfortunate, they do not meet the requirements to warrant an Act of Grace payment. As such, I have not agreed to your request.
On 9 August 2017 the solicitors for the accused wrote to the ACT Director of Public Prosecutions (‘Director’) asking the Director to reconsider whether it is in the public interest to prosecute the accused again, or in the alternative, that the Director undertake to pay the accused legal costs of the retrial in accordance with legal aid scales.
By letter dated 9 August 2017, the Director responded to letters of 12 July and 8 August 2017, which were not in evidence. That letter indicated that the proceedings would be prosecuted again and described the circumstances in which the material that led to the jury’s discharge was included in the material provided to the jury so as to demonstrate that the Crown was not at fault. The letter did not expressly deal with the request that the Director fund the representation of the accused.
Subsequently on 24 August 2017, the Crown made express that, which the accused’s solicitor understood to be the case, namely that the Director would not fund the representation of the accused.
The accused has made an application to Legal Aid ACT on the day that the affidavit was sworn and, unsurprisingly, no response had been received. Subsequently on 24 August 2017, the Commission wrote to the accused stating that “your application for legal assistance has been refused because on the information provided your income is higher than the amount allowed by the Commission”.
So far as the financial position of the accused is concerned, the affidavit of Mr Marjason, his solicitor, provides relevantly:
“the accused cannot afford to privately pay for legal representation;
…
The applicant has no savings ...”
There is no other evidence as to the assets, income, or liabilities of the accused.
The solicitor for the accused is not prepared to act on a pro bono basis in the second trial. He is not in a position to appear without counsel. He is not prepared to guarantee counsel’s fees without those fees being lodged in trust. He is confident that he could retain counsel on legal aid rates but not confident that he could do so in time for a trial commencing on 28 August 2017. As I have pointed out above the trial is now listed to commence on 30 August 2017.
The basis for the hearsay statements in Mr Marjason’s affidavit as to the financial position of the accused is not set out. I assume that these are his instructions from the accused. Neither the affidavit nor the answers given in cross-examination provide any reliable basis for the assessment of the accuracy of the conclusions stated in his affidavit.
The charges which the accused is facing are serious charges. The charge of recklessly inflicting bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) carries a maximum penalty of 13 years imprisonment. The alternative charge of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act carries a maximum penalty of five years imprisonment.
The Crown case is that, on 19 December 2015, the accused had an argument with the complainant in a car park at Greenway in Tuggeranong. The argument became physical. The complainant tried to walk away from the accused however the accused ran after him and punched him from behind. The accused then ran from the crime scene. The injuries suffered by the complainant, a fractured nose, an abrasion to the right knee, and a chipped front tooth, are alleged to constitute grievous bodily harm, or alternatively, actual bodily harm.
There will be an issue at trial as to the admissibility of some closed circuit television (CCTV) footage which shows part but not the whole of the incident. At the original trial, the trial Judge refused to admit that footage into evidence. The Crown has indicated that it will seek to have it admitted at the second trial.
There may also be an issue at the trial arising from the change in the complainant’s evidence relating to the circumstances in which he approached the accused prior to the interaction which led to his injuries.
Dietrich application
An accused person facing a serious charge does not have a right to be provided with Counsel at public expense. However, such a trial would normally be unfair where an indigent accused is not legally represented through no fault of his or her own: Dietrich v The Queen (1992) 177 CLR 292; A-G (NSW) v Milat (1995) 37 NSWLR 370.
Similarly, under s 22(2)(f) of the Human Rights Act 2004 (ACT) the accused has a right “to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance”.
I do not consider that there is any basis for the granting of a stay as a result of either Dietrich or the Human Rights Act. An accused person, charged with a serious offence who is seeking an adjournment or stay on the basis of the principle in Dietrich must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation, and that that inability is not due to fault on his part: Karounos (1995) 77 A Crim R 479 at 485.
In the present case there is no satisfactory evidence that the accused is unable to pay for his own representation. I have referred to the very limited evidence that was provided in the affidavit of his solicitor. Counsel for the accused submitted that an inference of indigence should be drawn from the fact that counsel and solicitor had previously acted on a pro bono basis, that there were no funds held in trust by the solicitor, the steps that had been taken to obtain funding, and that counsel appeared today on a pro bono basis. I am not satisfied that those factors collectively are sufficient to support a finding on the balance of probabilities. I note that it is remarkable, on such an application as this, that basic information about the accused’s financial affairs was not put before the Court.
In the light of this conclusion, it is unnecessary to address the other submissions that were made. It is unnecessary to consider the submission that the accused remains represented because there is a solicitor on the record who has not sought leave to withdraw. It is also unnecessary to consider the adequacy or inadequacy of the attempts made by the accused or his solicitor to obtain funding for his defence or representation on some other basis.
Abuse of process
The second ground was that the continuation of the case involves an abuse of process. The basis for this contention appeared to be an amalgam of several different matters.
First, counsel for the accused contended that there was no reasonable prospect of conviction. This appeared to be largely on the basis of evidence given at the first trial that the reason for the complainant getting out of his car prior to the alleged assault was in order to move his toolbox. During the course of his evidence this changed and he agreed that he did not get out to remove his toolbox but instead got out for some other reason. There was evidence consistent with the defence contention that the complainant was intending to fight the accused. This ground appears to be seeking to have the Court engage in an assessment of the strength of the case as it was run at the previous trial and reach a conclusion as to the prospects of the Crown case. It is fundamental that the decisions as to what cases to prosecute are matters for the Director and not matters for the Court. That was emphasised by the members of the High Court in Maxwell v The Queen (1996) 184 CLR 501 at 534. In Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [37] the plurality judgment recognised that:
the circumstances which may amount to an abuse of process are not to be narrowly confined and it is possible to envisage cases in which the exercise of prosecutorial discretion may amount to an abuse of process of the court.
[footnote omitted]
It is conceivable, for example, that there might be cases in which the nature of the case was such as to suggest a collateral purpose in the bringing of the proceedings and hence support the contention that the proceedings amounted to an abuse of process: see Williams v Spautz (1992) 174 CLR 509. Similarly, there may be cases where the prosecution or continued prosecution is unjustifiably oppressive. However nothing like that arises in the present case. It will be a matter for the jury to determine contested questions of fact at the trial, including questions involved in determining any defence of self-defence.
Second, counsel for the accused pointed out that during the course of the expert evidence given by a doctor, Dr Venita Parekh, that she was cautious about interpreting the extent of injuries from photographs because of the potential for colour, lighting, and scale to be difficult to interpret. He pointed to the communication yesterday, 24 August 2017, that counsel for the Crown had spoken to Dr Parekh who said that she had first been shown the photographs of the complainant’s injuries when she was in Court during the last trial and that she considers that in the light of the photograph that she was shown, the injuries appeared to be more serious. This was said to be a matter of significant prejudice because the Crown was proposing to lead additional evidence which went beyond the report of Dr Parekh that had been previously served.
I do not accept that this disclosure is indicative of any abuse of process. Rather, it involves what appears to be proper disclosure of additional information from an expert. The Crown has not given notice of any intention to lead opinion evidence going beyond that which was previously disclosed in Dr Parekh’s report served prior to the first trial. I do not consider that the additional disclosure involves a change of position on the part of the Crown that would render the conduct of the retrial oppressive or indeed prejudicial in any material way.
Third, counsel for the accused points to the stated intention of the Crown to contend that the CCTV evidence that was not admitted at first trial should be admitted at the second trial. There is likely to be a legal issue that requires determination, namely, whether or not any ruling at the first trial is, prima facie, binding as a result of s 76 of the Court Procedures Act 2004 (ACT). The Crown has pointed to both the terms of the section and a decision of this Court which suggests that such a ruling is not binding: see R v Thompson (No 3) [2017] ACTSC 53 at [104]. It is unnecessary to attempt to resolve that issue at this stage. Even if the trial judge in the second trial reaches a different conclusion as to the admissibility of evidence than did the trial judge in the first trial, that does not render or contribute to the second trial amounting to an abuse of process.
Fourth, counsel pointed to the forensic disadvantage that would be suffered by the accused arising from the fact that witnesses called by the Crown would not be undergoing cross-examination for the first time. I accept that this might be the case. It is an inevitable consequence of the requirement that there be a retrial. There will be forensic consequences of the fact that witnesses are giving evidence for the second time that will be to the advantage of both prosecution and the accused. There is nothing that would take this case out of the realm of the usual consequences of the necessity for a retrial.
Fifth, the submissions of counsel for the accused were premised upon the jury being discharged in the first trial by reason of some default on the part of the Crown. I am not satisfied that that was the case. Following the decision to exclude the CCTV evidence, it was necessary that portions of the transcript of the accused’s record of interview be edited so as to remove references to the CCTV. That was the process which involved discussion in open court as to the passages which required removal, and as I understand it, no reference was made to the additional material which was ultimately the cause of the need to discharge the jury. In any event, there was no suggestion that any conduct on the part of the Director was deliberate. The necessity to discharge the jury was an unfortunate consequence of the necessity to ensure that the accused had a fair trial. Nothing in the matters pointed to by counsel for the accused indicates any unfair or oppressive conduct on the part of the Director that arises from the necessity for the second trial.
Considered cumulatively rather than individually, the matters relied upon by the accused do not indicate that continuation of the prosecution would in the circumstances amount to an abuse of process. On the contrary, they appear to be the usual consequences of the unfortunate necessity to retry charges.
As a consequence there is no basis for staying the proceedings on the ground that they amount to an abuse of process.
Orders
In the light of the above, the order of the Court is:
1. The application in proceedings dated 21 August 2017 and filed on 23 August 2017 is dismissed.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Justice Mossop. Associate: Date: 25 October 2017 |
0
7
3