R v L, JN - [2014] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v L, JN
[2014] SADC 25
Reasons for Decision of The Honourable Justice Bampton
17 February 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
The defendant made an application for an order permanently staying the proceedings. The application was refused on 2 August 2013. The Director of Public Prosecutions requested detailed reasons for that refusal.
At trial, the defendant was acquitted of rape but the jury were unable to return a verdict on the alternative offence of indecent assault. At a subsequent directions hearing the prosecution informed the District Court that the Director intended to proceed to trial on the charge of indecent assault and that a fresh Information would be filed. A fresh Information was later filed.
The defendant seeks a permanent stay of proceedings on the grounds that: it is an abuse of process to institute fresh proceedings in the District Court for a minor indictable charge in circumstances where that charge should be instituted in the magistrates Court and heard and determined by that Court absent an election by the applicant; and, the Information does not comply with s 275(2) of the Criminal Law Consolidation Act 1935 (SA).
Held (dismissing the application): A retrial on the alternative charge of indecent assault is not an abuse of process. The defendant has failed to discharge the onus of establishing that a stay should be granted or that he will suffer prejudice or injustice justifying such an order. There is a partial verdict only following the December 2012 jury trial. The matter remains properly before the District Court to hear and determine the Information dated 9 May 2013. The application is dismissed.
District Court Criminal Rules 2013 (SA) s 14; Criminal Law Consolidation Act 1935 (SA) s 275(2), s 352(1)(c), s 75; Juries Act 1927 (SA) s 57(3)(b)(iii); Magistrates Court Criminal Rules 1992 (SA) r 51, referred to.
R v Draoui [2004] SASC 130; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; R v Ferravant (2007) 249 LSJS 242; Barton v The Queen (1980) 147 CLR 75; Clayton v Ralph and Manos (1987) 45 SASR 347; Moevao v Department of Labour [1980] 1 NZLR 464; R v Ulman-Naruniec (2003) A Crim R 531; Benbolt v The Queen (1993) 60 SASR 7; R v MMJ, R v CJN [2013] SASCFC 51, considered.

R v L, JN
[2014] SADC 25
Criminal: Application for stay of proceedings

BAMPTON J: The defendant made an application pursuant to rule 14 of the District Court Criminal Rules 2013 (SA) for an order permanently staying these proceedings against him. I heard and refused the application on 2 August 2013. I determined that the Information was properly laid in the District Court and the trial of the matter should proceed in the District Court. I stated that I would supply detailed reasons upon request. The Director of Public Prosecutions (the Director) has now requested more detailed reasons.
Background
By Magistrates Court Information dated 18 January 2011, the defendant was charged with rape. On 30 March 2012, the defendant was committed to the District Court for trial. On 30 April 2012, the defendant was arraigned on the District Court Information dated 30 April 2012 on the count of rape.
The circumstances of the alleged offending are that on or about 21 November 2010 the complainant slept at the defendant’s premises. At about 3.00am the following morning the complainant alleges he woke up and felt a weight lift off him. He alleges his jeans and jocks were around his knees, his penis was erect and wet, and the defendant was lying on the mattress next to him.
The matter proceeded to trial before a jury in the District Court on the charge of rape on 12 December 2012.
The defendant was acquitted of rape but the jury were unable to return a verdict on the alternative offence of indecent assault.
At a directions hearing on 12 February 2013 the prosecutor informed the Court that the Director intended to proceed to trial on the charge of indecent assault and that a fresh Information would be filed. The matter was listed for a retrial to commence 19 August 2013.
A new Information was filed in the District Court on 9 May 2013 alleging the alternative charge of indecent assault.
The application
The defendant’s application dated 8 July 2013 seeks a permanent stay of proceedings on the grounds that:
1.It is an abuse of process to institute fresh proceedings in the District Court for a minor indictable charge in circumstances where that charge should be instituted in the Magistrates Court and heard and determined by that Court absent an election by the applicant.
2.The Information does not comply with s 275(2) of the Criminal Law Consolidation Act 1935 (SA).
The defendant’s submissions
The defendant’s counsel argued that the Information dated 9 May 2013 was a fresh proceedings alleging minor indictable offending and as such should have been laid in the Magistrates Court unless the defendant elected to have the matter heard in the District Court. It was submitted that the Director had abused his power by laying the charge in the District Court and subjecting the defendant to a retrial on an alternative minor indictable charge of indecent assault. Counsel referred to s 57(3)(b)(iii) of the Juries Act 1927 (SA) which provides that if the jury reaches a verdict that the accused is not guilty of the major offence, but then is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence, fresh proceedings may be taken against the accused on a charge of the alternative offence.
Counsel contended that “fresh” proceedings are synonymous with “new”, and in this case the prosecution by laying the new Information had started the proceedings again. The Information had been laid in the wrong court and as such there should be a permanent stay of the proceedings.
Counsel argued the decision in R v Draoui[1] (Draoui) was distinguishable because Mr Draoui was originally charged with multiple offences of dishonesty, only one of which was a major indictable offence. Following committal to the District Court, a new Information alleging only the minor indictable charges was substituted for the original Information. Mulligan J considered whether it was an abuse of process for the Director to proceed to trial in the District Court on an Information on which no major indictable offences were charged and the accused had not elected to be tried in the District Court. His Honour stated:[2]
Once this matter was in the District Court it is for the District Court to hear and determine the Information including a substituted Information. There is no power of which I am aware which would enable the District Court to remit an Information to the Magistrates Court on any ground. Let alone the ground that it now only contained minor indictable offences.
[1] [2004] SASC 130.
[2] [2004] SASC 130, [11].
The prosecution’s submissions
As submitted by counsel for the prosecution, the discretion invested in the Director to place an accused person on trial is absolute and cannot be controlled by the Court.[3] It follows that the Director is not prohibited from laying an Information in the District Court alleging a minor indictable offence.
[3] R v Ferravant (2007) 249 LSJS 242, [26]; Barton v The Queen (1980) 147 CLR 75, 88-94; Clayton v Ralph and Manos (1987) 45 SASR 347, 365.
As stated in Jago v The District Court of New South Wales & Ors (Jago),[4] the Court has inherent discretionary power to stay proceedings to avoid an abuse of its processes and “the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed” and it is a question of whether “the continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial”.[5] Put another way, is “the continuation of the proceedings inconsistent with the recognised purposes of the administration of justice and so constitutes an abuse of process”.[6]
[4] (1989) 168 CLR 23, 31.
[5] (1989) 168 CLR 23, 30.
[6] Moevao v Department of Labour [1980] 1 NZLR 464, 482.
For the Court to exercise its inherent discretionary power to stay proceedings “there must be a fundamental defect which goes to the root of the trial” such that there is nothing the trial judge can do to alleviate or prevent the unfairness and prejudice caused by the defect.[7]
[7] Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23, 34.
In R v Ulman-Naruniec (Ulman-Naruniec),[8] Sulan J set out the general principles relating to stay applications:[9]
1.That there is prejudice caused by an abuse of process.
2.That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trial.
3.That there is no remedy available which will alleviate the prejudice.
4.That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.
[8] (2003) 143 A Crim R 531.
[9] Ibid, [205].
Following Jago and Ulman-Naruniec, the defendant, who carries the onus of establishing that a stay of proceedings should be granted, must not only demonstrate that there has been an abuse of process, he must also demonstrate that the abuse causes prejudice or unfairness which cannot be alleviated.
There is no doubt that the District Court has jurisdiction to hear and determine minor indictable offences. As submitted by the Director, the only difference between a Magistrates Court trial and a District Court trial is that a Magistrate has the power to award costs in the event the charges are withdrawn or dismissed.[10] The accused has the right to elect for a trial by judge alone in the District Court. The District Court has all the powers to hear and determine the Information. The maximum penalty is the same whether dealt with by a Magistrate or a Judge of the District Court.
[10] Magistrates Court Criminal Rules 1992 (SA), r 51.
Pursuant to s 75 of the Criminal Law Consolidation Act 1935 (SA) the charge of indecent assault is an automatic alternative to the charge of rape. The jury in this matter were not able to return a verdict on the alternative charge of indecent assault. In Benbolt v The Queen, King CJ said:[11]
If a jury finds a verdict of not guilty on the offence charged … but disagrees as to another alternative, there is a partial verdict only, limited to the verdicts of not guilty and the accused may be tried again on a charge for the offence concerning which the jury disagreed.
[11] (1993) 60 SASR 7, 17.
It follows that as the jury in this matter were not able to return a verdict on the alternative charge “there is a partial verdict only, limited to the verdict of not guilty” on the count of rape and the defendant may be tried again (my emphasis) on the alternative offence “concerning which the jury disagreed”. Accordingly, as the Director submitted the charge of indecent assault remains a valid alternative and remains before the District Court until a verdict is returned at trial or the Director withdraws the charge.
The defendant pleaded not guilty to a count of rape on the Information dated 30 April 2012. He pleaded not guilty not only to the allegation of rape, but also to the alternatives implicit in the charge. As is the case with all defendants the defendant in this matter is required to come to trial prepared to contest all available alternatives which he does not admit.[12]
[12] Benbolt v The Queen (1993) 60 SASR 7, 19; R v MMJ, R v CJN [2013] SASCFC 51, [207].
It does not matter that the alternative charge is a minor indictable charge and not a major indictable charge. As stated by Mulligan J in Draoui, “once this matter was in the District Court it is for the District Court to hear and determine the Information including a substituted Information.”[13]
[13] [2004] SASC 130, [11].
A retrial on the alternative charge of indecent assault is not an abuse of process. The defendant has failed to discharge the onus of establishing that a stay of the proceedings should be granted. He has not established he will suffer prejudice or unfairness justifying an order permanently staying these proceedings. There is a partial verdict in this matter following the jury trial in December 2012. The matter remains properly before the District Court and it is for the District Court to hear and determine the Information dated 9 May 2013.
The application is dismissed.
I refused the defendant’s request that I reserve his application for a permanent stay of the proceedings for consideration and determination by the Full Court. I also refused permission to appeal my decision dismissing his application pursuant to s 352(1)(c) of the Criminal Law Consolidation Act 1935 (SA). I was not satisfied that there were special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial.