R v Lykouras

[2005] NSWCCA 8

CITATION:	Regina v Lykouras [2005] NSWCCA 8
HEARING DATE(S):	18/11/2004
JUDGMENT DATE:	4 February 2005
JUDGMENT OF:	Sully J at 1; Hidden J at 2; Howie J at 3
DECISION:	Leave to appeal against the order granting leave to the Crown to amend the indictment is granted but the appeal is refused. The appeal by the Crown against the order for separate trials is allowed and the order quashed.

CATCHWORDS:	Criminal Law - Practice and Procedure - Application by Crown to amend indictment to add alternative count - Application granted by trial judge who ordered separate trials of the two counts - whether leave to amend indictment should have been granted - if so whether separate trials should have been ordered.
LEGISLATION CITED:	Criminal Procedure Act 1986 - s 20 Crimes Act 1900 - s 52A(3)(a) Evidence Act 1995 - s 138
CASES CITED:	Beach (1994) 75 A Crim R 447 R v Gulliford [2004] NSWCCA 338 R v McBride [1962] 2 QB 167 R v Thorpe [1972] 1 All ER 929 R v Woodward [1995] 3 All ER 79 Owens (1987) 30 A Crim R 59 R v Johnston (1998) 45 NSWLR 362
PARTIES:	Regina v Paul Lykouras
FILE NUMBER(S):	CCA 2004/2633
COUNSEL:	G. Rowling - Crown J. Doris - Applicant
SOLICITORS:	S. Kavanagh - Crown G. Meakin - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/3159
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ

2004/2633 CCAP

SULLY J
HIDDEN J
HOWIE J

FRIDAY 4 FEBRUARY 2005

REGINA v PAUL LYKOURAS

Judgment

1 SULLY J: I agree with Howie J.

2 HIDDEN J: I agree with Howie J.

3 HOWIE J: This is an application for leave to appeal against an interlocutory order made by Judge Gibb in the District Court on 12 October 2004 when her Honour granted leave to the Crown to amend an indictment under s 20 of the Criminal Procedure Act. The effect of the order was to permit the Crown to add a further and alternative count to the indictment that had previously been presented against the applicant. Her Honour having granted leave to amend the indictment, however, thereupon ordered that there be separate trials of the two counts. At the hearing of this application, the Court granted leave to the Crown to file an appeal against the order granting separate trials.

4 The facts can be briefly stated. On 18 June 2004 the applicant was committed for trial to the District Court on an offence contrary to s 52A(3)(a) of the Crimes Act. An indictment was initially presented to the District Court containing a single count in the following terms:

On or about 26 October 2002, at East Hills in the State of NSW, did drive a motor vehicle bearing registration number SCF-666 when it was involved in an impact whereby grievous bodily harm was occasioned to Stravroula Galanis, and at the time of the impact, Paul Lykouras was under the influence of a drug, namely morphine and cannabis.

5 The incident giving rise to that charge took place on 26 October 2002 when the van driven by the applicant left the roadway for about 7 meters and collided with a telegraph pole. It had apparently travelled straight ahead having failed to take a sweeping curve in the road. As a result of the impact grievous bodily harm was caused to the female passenger sitting in the front seat.

6 When a police officer arrived at the scene shortly after the impact he observed the applicant “running around and jumping in and out of the white van” trying to find his mobile telephone. He also appeared to be aggressive. The officer formed the view that the applicant was under the influence of some substance. Another police officer at the scene described the applicant as having “glassy eyes and when spoken to appeared to have trouble with pronunciation and the formation of sentences”. He observed the applicant swaying from side to side, continually pacing around and closing his eyes “like he was going to fall asleep”. A third police officer also formed the view that the applicant was under the influence of some substance and appeared to have difficulty comprehending instructions.

7 The applicant was breath-tested with a negative result. He was conveyed to a hospital where a sample of blood was taken. Analysis of the applicant’s blood showed the presence of cannabis, heroin and Rohypnol. In the vehicle police found what was described as a “fit kit”, a bag containing syringes, a tourniquet and swabs. There was also found in the vehicle a can that had apparently been converted for the use of smoking a drug. The Crown intends to rely upon expert evidence based upon the analysis of the applicant’s blood to prove that, at the time of the impact of the vehicle he was driving with the telegraph pole, he was under the influence of the drugs alleged in the count in the indictment.

8 The applicant participated in a record of interview during which he stated that the vehicle had been pulling to the left because he thought the wheels were out of alignment. He maintained that he had been driving at about 40-50 kph along Henry Lawson Drive and was tired at the time but in no hurry to get home. He told police that, as he approached the curve, he noticed an on-coming vehicle in the same lane as that in which he was travelling. The applicant steered his vehicle to the right to avoid a collision. Just after the other vehicle had passed him he struck the telegraph pole. He denied drinking alcohol prior to driving his vehicle or taking any drug other than an anti-depressant that had been prescribed for him. He admitted smoking cannabis at times and stated that he had used drugs in the past but added, “at the moment I am trying to be very good”. The applicant said that he had been a heroin user for about six months and admitted having items in his vehicle for using heroin. He told police he had last used heroin about a week earlier.

9 There is in the police brief the statement of a witness who observed the applicant’s vehicle driving at about 80 kph when it came into collision with the telegraph pole. The witness saw no other vehicle in the vicinity. The witness thought that the applicant was affected by drugs because of his behaviour after the collision.

10 The applicant was to stand trial on 12 October 2004. On that date the Crown made an application to Judge Gibb to amend the indictment to add a further count in the alternative being:

On or about 26 October 2002, at East Hills in the State of NSW, did drive a motor vehicle bearing registration number SCF-666 when it was involved in an impact whereby grievous bodily harm was occasioned to Stravroula Galanis, and at the time of the impact, Paul Lykouras did drive in a manner dangerous to another person or persons.

11 The amendment was opposed by Mr Doris, counsel appearing for the applicant. As has already been mentioned, her Honour granted leave to the Crown to amend the indictment by adding the alternative count but then went on to order separate trials of each of the counts, an order apparently not sought by either party. In light of the fact that the count to be added was in the alternative to the first count it is, to say the least, a somewhat curious result that the two charges should be tried separately. The reason for her Honour taking this course, however, was that, although she believed the amendment to be appropriate, she was of the opinion that the two charges were of a different nature and that there would be prejudice to the applicant if the trial of the alternative count proceeded with the principal charge.

12 The background to the application by the Crown to amend the indictment at a very late stage in the proceedings appears to be that it had been forewarned shortly before the trial that there was to be a challenge by the applicant to the admissibility of the evidence of the taking of the blood sample and the consequent analysis disclosing the presence of the morphine and cannabis. That challenge is to be on the basis that the sample was illegally taken because of a breach by police of the statutory regime governing the taking of a blood sample from the driver of a motor vehicle. The Crown, it seems as a matter of caution, sought to rely upon an alternative basis for proving that the applicant committed an offence under s 52A(3), being that he was driving in a manner dangerous by permitting his vehicle to leave the road surface.

13 Section 52A(3) of the Crimes Act provides:

(3) Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:
(a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

14 During the hearing of the application, the question was raised from the Bench whether s 52A(3) created one offence of dangerous driving occasioning grievous bodily harm, the matters appearing in (a) to (c) of the section being merely alternative ways of proving that particular offence, or created three offences, one offence being prescribed by each of (a), (b) and (c). Neither of the parties had raised this issue before Judge Gibb nor in their written submissions before this Court. The arguments of the parties seemed to have been premised upon the fact that the two charges in the indictment were for distinct and separate offences, albeit arising out of the same factual circumstances.

15 The parties asked for, and were granted, leave to make further written submissions on this issue after the Court reserved its decision. In those further submissions the Crown argued that the section created only one offence and that the alternative counts that the Crown sought to prosecute in the amended indictment were merely different ways of proving the same offence. Mr Doris argued that, whether or not there is only one offence created by the section, proper practice demanded that the Crown stipulate the specific manner in which it says that an offence in breach of the section was committed. He argued that, where the Crown is alleging that the offence was committed in more than one way, it should lay separate charges, each alleging a particular manner in which the offence was committed. In that regard he relied upon Beach (1994) 75 A Crim R 447 at 453.

16 In the present matter it is unnecessary to resolve the issue of whether a single offence is, or multiple offences are, created by the section. The Crown clearly has taken the view that it should lay individual charges for each alleged breach of the section arising from the facts surrounding the particular act of driving, and, if there is more than one, laying the charges in the alternative. There seems to me on reflection to be a real benefit in the Crown following that course: it both informs the accused and the court of the particular allegation made against the accused in each charge and it assists the court in understanding the basis upon which the jury found the accused guilty of a charge on the indictment, if a guilty verdict is returned to one or other of the counts.

17 The real dispute between the parties is whether it was unfair for the Crown to lay the further charge in all the circumstances of this particular matter. It is argued by Mr Doris that it is unfair to the accused for the Crown at this stage in the proceedings to bring the further charge, whether the new charge be a separate and distinct offence or whether it be merely a further allegation in proving the offence created by the section. He also argues that her Honour’s discretion to permit the laying of the alternative count miscarried on a number of discrete bases. The Crown contends that the only error her Honour made was in ordering separate trials of the two charges.

18 The first basis upon which it is said that her Honour’s discretion miscarried is that Gibb DCJ should have refused to consider the question of the amendment until her Honour had ruled upon the admissibility of the evidence of the taking of the blood sample and the analysis. It was submitted that the applicant might have been successful in having the evidence of the blood analysis excluded and, if so, the charge as alleged in the original indictment was bound to fail. It is argued that the Crown should not have been permitted a “second bite of the cherry” by seeking to prove the charge another way “two years down the track”.

19 In support of the application Mr Doris has set out the arguments upon which the applicant will rely in seeking to have the evidence of the analysis of the applicant’s blood excluded from the trial. The Crown spent a significant part of its submissions to the Court in rebutting the arguments put forward by the applicant. However, I do not believe that it is either necessary or appropriate for this Court to embark upon a consideration of the merits or otherwise of the arguments for the exclusion of the evidence. The issue is to be resolved by the applicant firstly satisfying the trial judge that the evidence was obtained unlawfully and, if he is successful in that endeavour, next for the Crown to seek to have the judge exercise the discretion under s 138 of the Evidence Act to permit the evidence to be led notwithstanding the illegality involved. These steps require findings of fact upon evidence that was not before the trial judge and is not before this Court. For example, if there were a breach of the relevant statutory provisions, it would be necessary for the court to consider whether that breach was intentional or unintended. Based upon those findings of fact the court must consider the exercise of a discretion taking into account competing public interests. Even if the blood sample were taken improperly because of some technical breach of the statutory scheme, that conclusion does not by any means determine that the evidence should not be admitted.

20 In my view the present application is not resolved by this Court making some speculative assessment of the prospects of the evidence being either excluded or admitted. I do not believe that the applicant’s argument in support of the current application is made any more powerful by this Court coming to the view, if it could properly do so, that his prospects of being acquitted on the charge as originally particularised was strong because the exclusion of the evidence was very likely. Nor do I believe that it was necessary for her Honour to embark upon that exercise in order to determine whether she ought to exercise her discretion to give leave for the amendment of the indictment.

21 A substantial part of the applicant’s argument in this regard seems to me to be based upon an asserted right to seek to have the charge dismissed upon a technicality without the Crown frustrating that right by laying a charge that may have to be determined on its merits. In my view there is no such right. It may be that the applicant feels aggrieved by the Crown’s attempts to strengthen the case against him because he believed, rightly or wrongly, that the charge initially laid by the Crown would fail at the outset because the evidence of the taking of the blood sample and its subsequent analysis would be rejected by the Court. But an accused person has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of his guilt determined by reference to a single charge. It cannot be either oppressive or unfair, in my opinion, for the Crown simply to seek to prove a charge in more than one way, or to rely upon alternative charges arising from the one set of facts. This is so regardless of whether the alternative or additional allegation is raised before or after the trial commences.

22 If during the course of a trial, the Crown seeks to prove that the accused committed the offence charged in some way other than was opened to the jury or other than is set out in the particulars, the question that arises is whether the new allegation has caused the trial to become unfair because, for example, the accused has been deprived of the opportunity of meeting it by the late raising of the new allegation. If the unfairness cannot be addressed by, for example, witnesses being recalled or a short adjournment being granted to the accused, the trial judge will abort the trial and discharge the jury.

23 There is, of course, a rule of practice that precludes the Crown from raising an alternative count late in a criminal trial. But this rule is concerned with ensuring a fair trial and not with limiting the manner in which the Crown can proceed against an accused. The most recent discussion of this constraint upon the Crown’s right to conduct the prosecution as it chooses is found in R v Gulliford [2004] NSWCCA 338. In that case the trial judge formulated an alternative verdict during the defence case. The Crown had not opened to the jury on the availability of such a verdict and it goes without saying that the alternative count was not set out in the indictment. Nevertheless the alternative was left to the jury on the basis that it was capable of being proved by the evidence and the jury might not have been satisfied of all of the elements that made up the principal offence charged in the indictment.

24 In upholding the conviction on the alternative count Wood CJ at CL, with whom the other members of the Court agreed on this point, stated:

91 While it is generally inadvisable for a trial judge to raise an alternative count, which has not been suggested by trial counsel, R v Pureau (1990) 19 NSWLR 372 and R v Cameron [1983] 2 NSWLR 66 at 71, it is not forbidden. Much will depend upon the timing, whether counsel have had a proper opportunity to deal with it, and whether the defence has been prejudiced, for example in the way that the case was conducted: R v Quinn (1991) 55 A Crim R 435.

It was clear in Gulliford that the appellant had suffered no prejudice by the addition of the alternative count and, therefore, there was no miscarriage of justice by it being raised so late in the proceedings.

25 The point is that both the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest. I know of no occasion where a Court has refused to allow the Crown to rely upon an alternative count or an alternative way of proving the offence charged simply because to do so might deprive the accused of the chance of a complete acquittal. I do not believe that a court has such a power.

26 In the present case all that has happened is that, albeit very late in the proceedings, the Crown has sought to rely upon a further and alternative allegation of a criminal charge arising from the same facts and circumstances as that which gave rise to the initial charge brought against the applicant. As the Crown can rely upon an alternative count raised for the first time during a trial where to do so would cause no prejudice to the accused, I have difficulty in understanding how the Court can refuse to allow it to do so before the trial commences. Of course, the earlier the alternative allegation is raised, the less likely is it that the new allegation will prejudice the right of an accused to a fair trial.

27 In so far as the applicant contends that it was unfair or oppressive for the Crown to seek to frustrate his chance of being acquitted on the charge as initially laid by bringing an alternative count, the application is completely without merit. In my view it would be a very rare case indeed where a court would refuse to allow the Crown to amend an indictment before the trial commences in order to add an alternative count unless the Court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended indictment.

28 The submission that the trial judge should have either herself decided the admissibility of the evidence of the taking of the blood sample or should have empanelled a jury to determine the initial charge before permitting the Crown to lay the alternative count is equally without merit. Clearly if her Honour had taken either course, there was a real risk that the Crown would not have been able to proceed on the alternative count either because to do so would infringe the principle against double jeopardy or because it would be oppressive to require the accused to stand trial on the alternative count having been acquitted of the principal count. In any event, I have expressed my view that the applicant had no right to have the principal count determined before the issue of the amendment of the indictment was decided.

29 It is next submitted that the applicant would be unfairly prejudiced by a joint trial of the two counts. Simply put the contention is that, if the two counts were tried together, the accused would not receive a fair trial on the alternative count in light of the evidence admissible on the first count. In order to prove the principal charge alleging that the applicant was under the influence of a drug the Crown intends to lead evidence not only of the analysis of the blood sample but also of the condition of the applicant following the impact of the motor vehicle as observed by police at the scene and the finding of implements for the administration of a drug, syringes and a bong, in the motor vehicle. There are also the admissions made by the applicant of drug usage in the recorded interview.

30 Of course it may be that after a voir dire hearing, evidence of the taking of the blood sample and its later analysis might be excluded. If that occurred, the trial judge would then have to consider the relevance of the objects found in the motor vehicle, the applicant’s admissions and the evidence of the applicant’s behaviour after the impact, and the police officer’s opinion as to his condition on the charge alleging the applicant was under the influence of a drug. These are matters for determination in a proper structured way as the proceedings progress and not on an application to amend the indictment. It is far from certain to my mind that the exclusion of the evidence of the blood sample would result in the failure of the Crown to prove that the applicant was driving under the influence of a drug or drugs.

31 The Crown has submitted that evidence of the applicant’s intoxication by drugs, even if the blood analysis were excluded, would be admissible on the charge alleging that the applicant was driving in a manner dangerous: see R v McBride [1962] 2 QB 167; R v Thorpe [1972] 1 All ER 929; and R v Woodward [1995] 3 All ER 79. This may or may not be so; it depends upon the weight of the evidence to show that the applicant’s driving may have been affected by the use of drugs: Owens (1987) 30 A Crim R 59. Evidence of the applicant’s state after the impact, the fact that the alco-test failed to indicate that he was under the influence of alcohol, the presence of the implements in the vehicle connected with drug usage and his admissions may, when taken together, be evidence from which the jury could infer that he was affected by drugs to a degree. I am not to be taken as suggesting that the evidence would be sufficiently relevant to overcome its prejudicial value. I am simply indicating that this is a matter that would need to be addressed by the trial judge. For present purposes, I merely express the view that the evidence concerning the applicant’s intoxication by drugs is not necessarily irrelevant to the alternative count alleging that he was driving in a manner dangerous.

32 Ultimately, therefore, the situation may be that the applicant is before the jury only on the alternative count and without any evidence relating to his being under the influence of drugs. On the other hand he may stand before a jury on both charges. If that were the situation, I do not believe that the trial of the alternative count would be so prejudiced by the evidence relating to the principal count that separate trials would be required, assuming that the trial judge held that evidence of drug usage was inadmissible on the alternative count and even assuming that a court has power to grant separate trials on alternative counts or could ever properly exercise such a power.

33 The allegation so far as the alternative count is concerned is a relatively simple one: the fact that the applicant allowed his vehicle to leave the road and impact with a telegraph pole is itself evidence that he was driving in a manner dangerous. I do not understand why it should be thought that, notwithstanding proper directions, warnings and cautions, a jury could not determine that question uninfluenced by the evidence relating to the applicant’s drug usage. It is a common feature of trials that evidence relating to one count on an indictment contains material that is not relevant to another count on the indictment and yet that evidence may be capable of prejudicing an accused on the count to which the evidence is not relevant. Yet where both of those counts arise from the very same factual basis and are part and parcel of the one course of criminal conduct it is almost inconceivable that a court would order separate trials of the two counts, even if they were not framed in the alternative. The court simply relies upon the jury to follow the directions they are given in respect of the use to be made of the evidence relevant to the different counts.

34 The present situation is not significantly dissimilar. I find it difficult to believe that, had the indictment initially been presented to the court with the two alternative counts contained in it, any responsible counsel would have sought to obtain an order for separate trials. There is no difference, in my view, arising from the fact that the Crown sought to add the alternative count on the day of trial. It is unfortunate that the Crown should have taken the course it did so late in the proceedings, but, putting prejudice to the accused by that late decision to one side, the fact that the Crown sought to add the alternative count to the indictment on the day of trial can have no impact upon a determination of the appropriateness of adding the alternative count to the indictment or the decision to have the charges heard together.

35 The remaining basis of complaint by the applicant is that the late decision by the Crown to add the alternative count has prejudiced the ability of the applicant to defend that charge. In particular it is submitted that the delay in the Crown making the allegation contained in the alternative count has deprived the applicant of the ability to have investigations conducted as he would have done had he been initially charged with that offence. There has been an affidavit filed by the applicant’s solicitor indicating that it was his usual practice in defending such allegations to obtain opinions from an expert “Transport engineer” and a mechanic who had examined the vehicle. Neither action was undertaken in the present case because no allegation of driving in a manner dangerous had been brought against the applicant.

36 The fact that an accused has been disadvantaged by delay in preparing a defence has rarely, if ever, been a ground for staying a prosecution. It has generally been accepted that it is sufficient that the jury is made aware of the disadvantages, both presumptive and proven, suffered by an accused in meeting the Crown case because of the delay and that the jury be directed to take that matter into account in determining whether the Crown has proved the charge. The most obvious example of the use of such a direction is in child sexual assault prosecutions: see R v Johnston (1998) 45 NSWLR 362.

37 In the present case it is perhaps somewhat surprising that such inquiries have not been undertaken in view of the defence available to an accused person under s 52A(8): it is a defence if the accused shows that the impact was not in any way attributable to the fact that he was under the influence of a drug. I note that there is an expert report as to the condition of the vehicle as part of the Crown brief. However that may be, I am not satisfied that any disadvantage occasioned to the accused by the delay of the Crown in laying the allegation that he was driving in a manner dangerous is such that a trial of that allegation would necessarily be unfair. If required, the jury can be directed to take into account that the Crown has to negative that there was any defect in the motor vehicle or any other cause of the impact other than that the applicant was driving in a manner dangerous to the public and that the delay in bringing that allegation may have deprived the applicant of producing material that might raise a doubt that the Crown has satisfied that onus.

38 Similarly a complaint that there may have been witnesses to the accident who are now unavailable is a matter which is normally dealt with by directions to the jury and I cannot see why that would not be the appropriate course in the present case.

39 Finally, it was submitted that the applicant is prejudiced by the fact that there were no committal proceedings in respect of the charge alleging that the applicant was driving in a manner dangerous. While accepting the importance of committal proceedings generally in order to inform an accused of the prosecution case and to test it to a limited degree, I cannot see how the accused has been prejudiced in the present case by the failure to have committal proceedings on what is a very simple allegation based upon evidence most, if not all, of which was relevant to the charge alleging that the applicant was driving under the influence of a drug. If I am in error in my assessment of that situation, there are procedures available for overcoming any prejudice the applicant might have suffered by reason of the Crown laying the new charge ex officio.

40 I propose that the leave to appeal against the order granting leave to the Crown to amend the indictment be granted but the appeal be refused. I further propose that the appeal by the Crown against the order for separate trials be allowed and the order quashed.

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