R v KOSTOPOULOS - [2010] SADC 8

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v KOSTOPOULOS

[2010] SADC 8

Reasons for Ruling of His Honour Judge Brebner

14 January 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

RE-OPENING
Charge of trafficking in a commercial quantity of a controlled drug. No evidence that the substance the subject of the charge was the drug particularised. Submissions of no case to answer upheld. Application to re-open prosecution case to remedy defect in proof.
HELD: Application refused. the justice and reasonableness of the case did not compel the granting of the application.
McDonald v Camerotto (1984) 36 SASR 66; Controlled Substances (Prohibited Substances) Variation Regulations 2007, referred to.
R v Mile Unreported Ruling of Judge Herriman 12 January 2010, applied.

R v KOSTOPOULOS
[2010] SADC 8

Application by prosecuting counsel to reopen his case.
The accused is charged with trafficking in a commercial quantity of a controlled drug. The drug particularised in the information is cannabinoid.
Prosecuting counsel opened his case to the jury on the basis that the substance which was the subject of the charge was cannabis and that cannabis was a controlled drug. At the time that the offence was said to have been committed cannabis resin, cannabis oil and cannabinoid were declared by regulation to be controlled drugs but cannabis was not.
Immediately after prosecuting counsel had opened his case, a number of facts were agreed and admitted by counsel for the accused, Mr White. In particular, it was agreed and admitted that the substance which was the subject of the charge was in fact cannabis. As the evidence unfolded, and as the issues became defined by counsel, it became plain that the fundamental issue was whether the accused possessed the requisite state of mind and that there was no real contest about whether the substance which was the subject of the charge was in fact a controlled drug and the trial proceeded accordingly.
In the meantime, and apparently, by chance, Mr White became aware of a ruling of Herriman DCJ,[1] which alerted him to the possibility that proof that the substance which was the subject of the charge was cannabis might not amount to proof that it was cannabinoid as particularised. Accordingly, and at the close of the prosecution case, Mr White submitted that there was no case for the accused to answer. Given that there was no evidence led as part of the prosecution case that was capable of proving that cannabis and cannabinoid were one and the same I upheld the submission, whereupon prosecuting counsel sought to reopen his case in order to try to make good the defect if he could.
[1] R v Mile delivered 12 January 2010.
Counsel’s submissions in support of his application revealed a sorry state of affairs. Cannabinoid was declared by regulation to be a controlled drug on and from 3 December 2007.[2] The alleged offence was said to have been committed on 7 November 2008. An analyst’s certificate certifying that the substance which was the subject of the charge is cannabis was filed and it is dated 19 December 2008. The accused was committed for trial in early March 2009 and, if my ruling that there was no case to answer is correct, she should not have been.
[2] Controlled Substances (Prohibited Substances) Variation Regulations 2007.
The information of the Director of Public Prosecutions was filed in this Court on 17 March 2009. As I have said, there was no evidence led at trial which had the capacity to prove that cannabis and cannabinoid are one and the same, if indeed they are. One way or another the current situation should never have arisen. The initiation and conduct of prosecutions in the Supreme Court and the District Court involves the acceptance of heavy executive responsibilities. Those who draft and sign informations and those who ultimately prosecute charges on information are duty-bound to familiarise themselves with the relevant law and with the available evidence and to ensure that any charge is appropriately laid and that the available evidence has the prima facie capacity to prove the chosen charge.
This simply did not happen adequately in this case. The discrepancy between the analyst’s certificate and the relevant regulation should have been adverted to long ago, and rectified if it was possible to do so. Although the information is ultimately the responsibility of prosecuting counsel, I cannot be overly critical of prosecuting counsel in this case because he is plainly inexperienced but, that said, there are numerous experienced practitioners in the Office of the Director of Public Prosecutions and the difficulty should have been identified long before counsel was ultimately briefed.
Mr White cannot be criticised for not alerting prosecution to their difficulty. He admitted that the substance the subject of the charge was cannabis in good faith and on the basis of the analyst’s certificate and he was under no obligation to point out the potential problem once he became aware of its existence. Indeed, had the analyst been called and given evidence that the substance which was the subject of the charge was cannabis, Mr White could well have simply declined to cross-examine thus preserving the ultimate basis for his submission of no case to answer.
Against that background I return to prosecuting counsel’s application to reopen his case. The power to grant leave to prosecuting counsel to reopen his case is discretionary. Like all discretions, it is to be exercised in the overall interests of justice.
In McDonald v Camerotto[3] Cox J considered the exercise of this discretion, and distilled the principles informing its exercise in the context of the facts of that case in these terms:
‘On the hearing of the appeal I had the advantage of more thorough discussion of the authorities. There was a time, of course, when pleadings were very strict and any deficiency in proof was irretrievable. Those times have passed. The emphasis is now upon the justice and reasonableness of the case. Here it was a matter of a want of a certificate. The Special Magistrate had to decide whether he would allow the prosecutor to reopen his case in order to get the certificate in. Matters to be taken into account in reaching his decision included the nature of the evidence in question, whether it related to a topic upon which there was likely to be any real dispute between the parties, the reason for the prosecutor’s failure to tender the certificate at the proper time, the stage of the trial at which the application to reopen was made, whether allowing the prosecutor to reopen was likely to prejudice the defence, and whether there were any broad policy reasons such as the encouragement of bad prosecution habits that should be taken into account.’[4]
[3] (1984) 36 SASR 66.
[4] Ibid at 69-70.
Obviously his Honour was not purporting to provide an exhaustive list of relevant criteria, and indeed nor could there ever be such a list, but the considerations identified by his Honour serve to remind one that a balancing exercise must always be undertaken when one is called upon to make a discretionary judgment.
His Honour went on to review a number of cases where the exercise of the discretion to permit prosecuting counsel to re-open his case had been considered and his review serves to emphasise the truism that all cases on discretionary judgments ultimately turn on their own facts.
However, one important consideration does emerge from his Honour’s review of the cases and that is that in many instances where reopening of the prosecution case has been permitted it has been to allow prosecuting counsel to rectify a technical or formal error or omission in an otherwise good prosecution case. That is not to say that leave can only be granted to remedy technical or formal defects or omissions.
However, that is not the situation in this case where counsel seeks leave to reopen not to rectify a mere technical or formal defect in an otherwise good prosecution case, but to attempt to rectify a fundamental defect in proof. I do not know whether or not the defect is capable of rectification, and to allow prosecuting counsel to reopen his case in order to call the analyst could well cause prejudice to the accused in that Mr White will have had little, if any, notice of the evidence it is proposed to elicit from the analyst and he would thus be likely to be prejudiced in any cross-examination of the analyst which he might be minded to undertake in order to restore what is currently the status quo.
In all the circumstances, I am not persuaded that the justice and reasonableness of the case compels the exercise of the discretion to allow prosecuting counsel to reopen his case and there is also an element of the broad policy consideration identified by Cox J in McDonald v Camerotto which is present here which cannot be overlooked.
The application is rejected.