R v Laughton & Laughton - [2013] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v LAUGHTON & LAUGHTON
[2013] SADC 58
Reasons for Ruling of Her Honour Judge Davey
6 May 2013
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application for permanent stay sought by applicants on the basis that the continuation, in the circumstances, would give rise to an abuse of process. The prosecution had previously charged another offence founded on the same facts. The defendants argue they suffer oppression and accordingly, a further prosecution should not be permitted. Any oppression is not of a kind which should give rise to a permanent stay.
HELD: Application refused.
Criminal Law Consolidation Act 1935 s 243(a), s 256(1), referred to.
Moevao v Department of Labour [1980] 1 NZLR 464; Jago v District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Nicholas v The Queen (1998) 193 CLR 173; Connelly v Director of Public Prosecutions [1964] AC 1254; R v Carroll (2002) 213 CLR 635; R v McGee and McGee (2008) 102 SASR 318; Island Maritime Ltd v Filipowski (2006) 226 CLR 328, considered.

R v LAUGHTON & LAUGHTON
[2013] SADC 58

On 30 April 2013 I heard an application to stay the proceedings. After hearing the argument I dismissed the application. These are the reasons for my decision.
The defendants are sisters. They are charged with Fabricate Evidence (s 243(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA)). It is alleged that on 19 August 2010, Jenine Laughton was pulled over by police and was required to submit to an alcotest. The result of the breath analysis showed that she had 0.157 grams of alcohol per 100 millilitres of blood. She then requested a blood test kit which was provided by police and she was directed to take the kit directly to a medical practitioner or hospital for the purposes of obtaining the blood sample.
The prosecution alleges that Jenine Laughton’s sister, Kerri Laughton attended at the Mount Barker Hospital and provided a blood sample posing as her sister, Jenine Laughton.
The defendants were originally charged with Attempting to Pervert the Course of Justice contrary to s 256(1) CLCA. On 10 November 2011 that trial was heard before Ms Kossiavelos SM. The trial proceeded with agreed facts and legal argument. There was no oral evidence. On 5 April 2012 the accused were acquitted. The prosecution appealed to the Supreme Court against the orders of acquittal; that appeal was heard before Doyle CJ. Chief Justice Doyle found that the learned special Magistrate erred in her reasoning with respect to the acquittal but in response to a notice of contention made on behalf of the defendants, found that the defendants could not be guilty of the offence charged. Chief Justice Doyle found that s 256(1) CLCA was not the appropriate charge in respect of the conduct alleged, rather the defendants should have been charged with the offence of Fabricate Evidence. Accordingly, he dismissed the appeals and did not disturb the orders of the learned Special Magistrate. The Chief Justice delivered his judgment on 13 June 2012.
On 15 August 2012, a new Information was laid in the Mount Barker Magistrates Court jointly charging the defendants with the major indictable offence of Fabricate Evidence. On 15 February 2013 the defendants filed an application in this court seeking the following order: “That the prosecutions be permanently stayed as an abuse of process”.
The general principles applicable to a stay of criminal proceedings on the basis of abuse of process are settled. An abuse can arise in many different circumstances. The categories of potential abuse are not fixed. The High Court has approved[1] the following remarks of Richardson J in Moevao v Department of Labour with respect to the principles underlying the law of abuse of process:[2]
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike...the second aspect of the public interest...is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice...
The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor...that the Court processes are being employed for ulterior purposes or in such a way...as to cause improper vexation and oppression...
[1] See for example Jago v District Court of New South Wales (1989) 168 CLR 23 at 29-30; Williams v Spautz (1992) 174 CLR 509 at 520; Walton v Gardiner (1993) 177 CLR 378 at 394; Nicholas v The Queen (1998) 193 CLR 173 at 256.
[2] [1980] 1 NZLR 464 at 481-482.
There is no disagreement between the parties that the question of whether this matter should be permanently stayed is decided by balancing factors including fairness to the accused, legitimate public interest in the disposition of serious offences and also the need to maintain public confidence in the administration of justice.[3]
[3] Walton v Gardiner (1993) 177 CLR 378 at 393-394.
The defendants contend that a continuation of the prosecution impermissibly controverts their acquittals for the offence previously charged. It is argued that the defendants suffer oppression and accordingly, a further prosecution should not be permitted.
The defendants argue that oppression arises in a number of ways. Firstly, the conduct of the proceedings thus far led the defendants to disclose their position as to the factual circumstances alleged whereby they agreed facts in the Magistrates Court proceedings. The defendants argue that even if that evidence (of the agreed facts) is not admitted against them on the trial before this Court, the defendants have suffered oppression in the nature of a forensic disadvantage because, by agreeing those facts, they had disclosed their instructions which information is now available to the prosecution in this matter.
I note that the evidence of the defendants agreeing or admitting facts in the previous proceedings is not necessarily admissible in this Court. If the prosecution sought to lead that evidence in this Court then the court has a discretion to exclude that material. A permanent stay of the proceedings is not the only remedy for such mischief, if indeed that arises.
In my view, there is no real oppression caused to the defendants by virtue of the admissions made for the Magistrates Court hearing. As Mr Grant, counsel for the Crown pointed out, the agreed facts were, in any event, easily proved by the prosecution. Also, there are numerous circumstances whereby the prosecution may become aware of the defence position vis-a-vis the facts in the course of criminal proceedings. These examples may give rise to some oppression but it has long been accepted that it is not of a kind which should give rise to a permanent stay. For example, where an appeal is allowed and a retrial ordered; the prosecution will be fully aware of the defence case including any evidence given by an accused upon the previous trial. Where a mistrial occurs, either after cross‑examination of prosecution witnesses (whereby the defence case was put to witnesses), after the defence have opened their case or the defendant has given evidence, the prosecution is not prevented from a further trial. Tactical disadvantage said to be caused by knowledge of the defence case has not been considered a matter of oppression such that it should give rise to a stay of the proceedings.
The defendants also argue that oppression is caused because the offence in s 256(1) CLCA (Attempting to Pervert the Course of Justice) is an alternative verdict/offence to the offence in s 243(a) CLCA (Fabricate Evidence). Since the defendants were acquitted of the former offence it was said that the alternative verdict was oppressive. In my view, the circumstances of this case mean that alternative verdict should not be left and I will not do so. That alleged oppression has no substance.
The defendants also rely upon Connelly v Director of Public Prosecutions[4] and R v Carroll[5] to support the submission that to proceed with this prosecution would contravene some of the fundamental principles of the criminal law and lead to oppression. Particular reliance is placed upon the judgment of Gleeson CJ and Hayne J wherein they noted the “fundamental underpinnings of the criminal law”[6] including the imbalance of the resources between prosecution and defence; the importance of finality, the seriousness for an accused person of a conviction and that prosecution can be used as an instrument of tyranny.[7] Of course, their Honours also observed that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment. The defendants acknowledge that they are not being prosecuted for the same offence as was previously dealt with but argue that to permit a prosecution to continue in respect of the same conduct is oppressive.
[4] [1964] AC 1254. Particularly per Lord Devlin at p 1359-1360.
[5] (2002) 213 CLR 635.
[6] Ibid at 643, [21]-[28].
[7] Ibid at 643, [21]-[24].
The defendants do not suggest that the prosecution have acted mala fide or set about a course of deliberately oppressive conduct. It is acknowledged that a mistake was made with respect to the charge originally laid. The defendants argue that the prosecution were on notice, or should have known, that the charge was incorrect. They point out that even when notice of contention was filed during the course of the appeal, the prosecution did not concede that point. The defendants point to the Second Reading speech wherein the then Attorney-General explained the purpose of s 256 CLCA and argued that the prosecution should have known that they had laid the incorrect charge. In that regard the defendants also rely on dicta in R v McGee and McGee[8]. The defendants argue that it should have been obvious to the prosecution that the wrong charge had been laid. As to that submission, I note that the same can be said for the defence. The defendants were represented by experienced counsel, the defect with respect to the charge should also have been obvious to the defence and nothing was said about this matter until the appeal.
[8] (2008) 102 SASR 318 at [96], [104], [260] and [261].
The defendants argue that the conduct of the matter has caused oppression to them; the proceedings were not final as they should have been and the hearing has become protracted with consequent uncertainty and stress caused to the defendants.
As to the issue of delay, in my view there was no undue delay with respect to the disposition of the matter generally nor particularly with the prosecution of the matter once the appeal was decided. There is no evidence before me of any special or additional oppression such as mental injury, unmet cost or other matter.
As a general rule, the prosecution should combine, in one Information, all charges that are intended to be laid which are founded on the same facts. There are practical reasons why this should occur together with requirements of fairness to the accused. If that does not occur, then in some circumstances a subsequent prosecution may be stayed as an abuse of process. I agree that generally speaking, where a defendant is tried on a lesser offence, he or she ought not to be tried again on the same facts for a more serious offence. To do so may cause oppression.
The prosecution relied upon Island Maritime Ltd v Filipowski[9] as an example where subsequent proceedings relying on the same factual circumstances were not unfair or oppressive. The prosecution says that in this matter, like that case, the defendants have not demonstrated actual prejudice or real forensic disadvantage. The prosecution argues that the defence did not raise the point raised on appeal (by notice of contention) during the trial before the learned Special Magistrate. They rely upon Kirby J in Island Maritime Ltd v Filipowski[10] who included the appellants’ knowledge of the defect which was not disclosed to the prosecution as a reason for refusing the application.
[9] (2006) 226 CLR 328.
[10] Ibid at [83].
Like Callinan J in Island Maritime Ltd v Filipowski[11] I conclude that these second proceedings do not constitute an abuse of process. I note the matters that he considered to be relevant to that decision. Had there been greater delay, an absence of bona fide by the prosecution, more serious prejudice to the defendants or a combination of these and other matters I might have taken a different view.
[11] Ibid at [97].
It is in the public interest for the prosecution of a serious offence to proceed. Notwithstanding the unsatisfactory way in which this matter was previously charged and the consequent delay, I am not satisfied that it would be oppressive for the trial of the defendants to continue. Accordingly, I am not satisfied that I should grant the relief sought and I refuse the application.