R v Kalachoff (No 3)
[2019] ACTSC 264
•26 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kalachoff (No 3) |
Citation: | [2019] ACTSC 264 |
Hearing Date: | 26 August 2019 |
DecisionDate: | 26 August 2019 |
ReasonsDate: | 8 October 2019 |
Before: | Burns J |
Decision: | See [22] |
Catchwords: | CRIMINAL LAW – Application for permanent stay, and in the alternative a temporary stay or vacation of the trial day – Applicant awaiting third trial – charge of recklessly inflicting grievous bodily harm with an alternative charge of assault occasioning actual bodily harm |
Legislation Cited: | Human Rights Act 2004 (ACT) s 22 |
Cases Cited: | Jago v District Court (NSW) (1989) 168 CLR 23 Maxwell v The Queen (1996) 184 CLR 501 R v Trong Ruyen Bui [2011] ACTSC 102; 5 ACTLR 230 |
Parties: | The Queen (Crown/Respondent) Brock Kalachoff (Accused/Applicant) |
Representation: | Counsel P Dixon (Crown/Respondent) J Masters (Accused/Applicant) |
| Solicitors ACT Director of Public Prosecutions (Crown/Respondent) Marjason & Marjason (Accused/Applicant) | |
File Numbers: | SCC 225 of 2016; SCC 226 of 2016 |
BURNS J
The applicant, Brock Kalachoff, is awaiting trial on a charge of recklessly inflicting grievous bodily harm, with an alternative charge of assault occasioning actual bodily harm, arising out of an incident said to have occurred on 19 December 2015. This will be the applicant’s third trial on these charges. His first trial commenced on 5 June 2017, but the jury was discharged shortly before the conclusion of the trial due to inadmissible evidence inadvertently being provided to the jury in a transcript of a taped record of interview. The second trial commenced on 30 August 2017, but unfortunately the jury were discharged on the sixth day of the trial because they could not reach a unanimous verdict. The same counsel (Mr Masters) and solicitor (Mr H Marjason) acted for the applicant pro bono at both trials. The applicant’s third trial is due to commence on
11 September 2019.
By an application dated 12 August 2019, the applicant sought orders:
(a)that his third trial be permanently stayed as an abuse of process;
(b)in the alternative, that his third trial be temporarily stayed until the Legal Aid Commission transfers the grant of aid to the firm of Marjason & Marjason solicitors, or the State (sic) otherwise funds representation by the firm and counsel in the previous two trials; or
(c)in the alternative, that the trial listed on 11 September 2019 be vacated and relisted to the November 2019 or December 2019 trial sittings.
The application came before me on 26 August 2019. Because of the imminence of the applicant’s trial I considered it desirable to hand down my orders at that time, with reasons to be provided at a later date. I dismissed the application, and these are my reasons for doing so.
The grounds upon which the applicant sought a permanent stay of the third trial were, in summary:
(a)the decision to proceed to a third trial is an abuse of process;
(b)the accused would not be able to get a fair trial;
(c)a third trial would undermine the administration of justice; and
(d)it would not be in the interests of justice to conduct a third trial.
In support of these grounds, the applicant asserted:
(a)that the Crown case now being advanced is different to that which was initially advanced;
(b)that the first trial had been aborted through the fault of the Crown, and the Crown had used that opportunity to successfully challenge in the course of the second trial a ruling on admissibility of evidence made in the first trial;
(c)that, due to no fault of his own, the applicant is not able to secure the same defence team as represented him in the first two trials due to lack of funds and a refusal by the Legal Aid Office (ACT) to grant legal aid permitting his previous lawyers to remain in the third trial; and
(d)
that he is not able to get a fair trial at common law and as required by the
Human Rights Act 2004(ACT) (Human Rights Act).
With regard to the possibility of a temporary stay of proceedings, the applicant submitted that if it was in the public interest to proceed with a third trial, the trial should be stayed until such time as the Territory (including, for this purpose, the
Legal Aid Office and the Office of the Director of Public Prosecutions) funded his chosen legal representatives to appear at the trial.
Finally, with regard to the alternative order sought to the effect that the trial date be vacated and that the matter be listed in the November or December 2019 sittings, the applicant submitted that his chosen defence team are not available to appear for him at a trial commencing on 11 September 2019. It was also submitted that there were still pre-trial applications necessary in relation to the admissibility of evidence and that further investigation is needed to be undertaken in relation to the complainant’s involvement in other similar incidents for the purposes of a tendency or coincidence application.
Application for a permanent stay
The applicant relied on an affidavit sworn 12 August 2019 by his solicitor,
Henry Longfield Magnus Marjason. It set out the history of the matter, noting that
Elkaim J in the first trial had made the following rulings on evidence:
(a)evidence which the Crown proposed to lead about the possibility of the complainant suffering a medical condition affecting his brain in the future connected with this incident was inadmissible, and the Crown was restricted to leading evidence of injuries allegedly inflicted at the time of the incident, and which had manifested prior to trial; and
(b)the Crown was not entitled to lead evidence of a CCTV recording of part of the incident which gave rise to the charges. Unfortunately, the CCTV recording did not capture the whole of the incident.
In his affidavit, Mr Marjason referred at some length to the evidence which was called by the Crown at the applicant’s first trial. It is unnecessary to refer to this material in detail. After the first trial was aborted, the applicant’s solicitor wrote to the DPP asking that it pay the applicant’s costs of the aborted trial, which was refused.
At the second trial, the Crown re-agitated the admissibility of the CCTV evidence which had been ruled inadmissible by Elkaim J. The judge presiding at the second trial, Mossop J, determined that the evidence was admissible. I will interpolate at this point to observe that the applicant placed great weight on the proposition that there was some unfairness involved in the Crown seeking to revisit the question of the admissibility of the CCTV evidence at the second trial, and in the decision by
Mossop J to admit the evidence. As I consider that the ruling by Mossop J was correct, I do not accept the proposition that it involved any unfairness to the applicant. The CCTV footage did not depict the whole of the incident. However, there is no reason to believe that the jury, having been made cognisant of that fact, would have ignored the evidence of the witnesses and would not have approached the CCTV evidence in the knowledge that it depicted only part of the incident. The applicant’s real complaint is that he obtained a forensic advantage in the first trial, which he was not able to retain in the second trial.
In his affidavit, Mr Marjason refers to a decision by Mossop J in the second trial to issue a warrant for the arrest of a witness who did not attend court. It is unclear how the applicant suggests that this is relevant to the present application. In his affidavit,
Mr Marjason states that the witness was eventually treated as unfavourable by the Crown, on the basis that she suggested that the complainant was the aggressor.
The second trial concluded with the jury being unable to reach a unanimous verdict.
Mr Marjason stated that the applicant, and his legal representatives, had a “legitimate belief and expectation” that there would not be a third trial. This appears to have been based upon a comment by Mossop J to the effect that the Crown would have to give some consideration about the matter, and the decision of his Honour to dispense with bail. For my part, I cannot understand how this can be said to give rise to a legitimate expectation that the Crown would not seek to retry the applicant.
The applicant’s initial application for a grant of legal aid for his third trial was refused. An appeal from that decision was successful, and the applicant was granted legal aid. The grant of legal aid was made on the basis that the trial would be conducted in-house, that is, by lawyers employed by the ACT Legal Aid Office. As a result of the grant of legal aid on those terms, the applicant’s solicitor and barrister made arrangements which meant that they would be outside Australia on 11 September 2019. The applicant, however, has subsequently returned to Mr Marjason and requested that he and Mr Masters appear for him at his third trial. The estimate for the length of the third trial is five days.
The principles relevant to an application for a permanent stay of criminal proceedings are well-settled: Jago v District Court (NSW) (1989) 168 CLR 23. These principles were summarised by Refshauge J in R v Trong Ruyen Bui [2011] ACTSC 102; 5 ACTLR 230, at 237, where his Honour said that a permanent stay should only be granted if:
(a)other remedies cannot effectively overcome the unfairness identified by the accused who is seeking the stay; and
(b)there is “a fundamental defect which goes to the root of the trial” (per Mason CJ at 34); an “abuse of process” (per Brennan J), by which his Honour appears to mean that the due process of the criminal courts are being used improperly to harass a defendant (at 54)); where “any trial of the [accused] will necessarily be an unfair one… [and make any] continuation of the proceedings… unfairly oppressive…as to constitute an abuse of process” (per Deane J (at 61)); where “prejudice to an accused [is] so manifest that directions cannot ensure a fair trial” (per Toohey J (at 72)), or where there are “no other means…available to remedy [the lapses of propriety] which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay” (per Gaudron J (at 78)).
It is well recognised that a permanent stay of criminal proceedings will only be ordered in extreme cases.
The decision by the DPP to retry the applicant cannot, in any relevant sense, be said to be unfair. The decision of a prosecuting authority to prosecute charges will not ordinarily be subject to judicial review. In Maxwell v The Queen (1996) 184 CLR 501, Gaudron and Gummow JJ said, at 534:
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
[Citations omitted.]
There can be no suggestion that any third trial will be unfair because the Crown will seek to lead the CCTV evidence. A trial judge, in a retrial, is not bound by rulings or findings made by a trial judge at an earlier trial: R v Thompson (No 3) [2017] ACTSC 54 at [104] per Refshauge J. I am satisfied that any changes in the prosecution case from the first trial to the case which it proposes to prosecute at the third trial are minimal, and do not constitute a fundamental change in the way in which the Crown puts its case. The suggestion which permeated Mr Marjason’s affidavit, that the Crown case is inherently weak, is not a reason for staying the proceedings. An associated suggestion, that retrying the applicant would be a waste of public resources and would not be in the public interest, is also not a reason for staying the proceedings. These are matters for the DPP to consider, and no evidence has been placed before the Court to suggest that the decision made in the present case constitutes an abuse of the court processes.
Application for a temporary stay or a vacation of the trial date
Turning to the alternative orders sought in the application for either a temporary stay or a vacation of the trial date. I note that on 23 April 2018 I granted the applicant a stay of the proceedings for a period of nine months to enable the applicant to accumulate sufficient funds to retain the lawyers of his choice for the proposed third trial. The material before me now suggests that the making of this order was futile, as the applicant appears to be in no better position now, 17 months later, to finance his chosen legal representation than he was in April 2018.
This Court has no power to order the Legal Aid Office to grant the applicant legal aid on the basis that Mr Masters and Mr Marjason represent him at his trial. The lawyers employed by the Legal Aid Office are experienced in the practice of the criminal law, and there is no reason to believe that the applicant will be subject to any relevant unfairness by being represented by the employees of the Legal Aid Office at his third trial. I accepted that Mr Masters and Mr Marjason would initially have some advantage over the in-house lawyers from the Legal Aid Office, in that they had been involved in the first two trials, but that is an advantage which would be negated by access to the transcripts of the first two trials.
Mr Masters submitted that he and Mr Marjason would be prepared to act for the applicant at his third trial on a credit arrangement, but they could not do so on
11 September 2019 as they were otherwise engaged. I was not unsympathetic to the desire of the applicant to have the same legal representatives at his third trial as at his previous trials, and I accordingly made enquiries about the prospects of the trial being able to proceed in the November/December 2019 sittings. I was advised that there was no prospect that this trial would be able to be scheduled to be heard in 2019 if it did not proceed on 11 September 2019. Bearing in mind that the events which are the subject of the trial occurred nearly four years ago, and that the upcoming trial is a second retrial, I was satisfied that it was inappropriate to vacate the trial date and have a further delay in the proceedings until an appropriate date could be allocated in 2020.
Finally, the applicant’s appeal to the provisions of the Human Rights Act was misguided. Section 22(2)(d) of that Act provides that anyone charged with a criminal offences is entitled to be defended through legal assistance chosen by him or her. Section 22(2)(f) also guarantees that such a person is entitled to have legal assistance provided to them, if the interests of justice so require, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance. It will seldom, if ever, be appropriate to conflate these guarantees so as to create a hybrid guarantee that the Legal Aid Office, or the Territory, has an obligation to fund an accused person’s chosen legal team where the accused person cannot afford to do so. Such an assertion could be contrary to the provisions of the Legal Aid Act 1977 (ACT), and the Guidelines made under that Act.
Decision
For these reasons I refused the application.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
Amendments
25 November 2019 Add “(No 3)” Paragraphs: Title
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