R v M

[2010] NSWDC 200

CITATION:	R v M [2010] NSWDC 200
HEARING DATE(S):	6 - 7 September 13- 14 September
JUDGMENT DATE:	16 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	I make the following orders. 1. Pursuant to S 129 Criminal Procedure Act the Court will proceed with the trial of M on charges contained in the indictment which has been filed by the Crown with the Registry. 2. Except insofar as an application was made for the proceedings to be held in camera, dismiss the Notices of Motion. It is agreed that, as a consequence of the orders I have just made, I should also order that the accused's response pursuant to S138(b) Criminal Procedure Act be extended to 29 September 2010.
CATCHWORDS:	CRIMINAL LAW - Judgment - Notices of Motion - Charge bargaining - Lack of precision - Induced statement - Indictment filed out of time - Case management - Whether stay should be granted - Crown Prosecutor in possession of "confidential information' - Powers of Crown Prosecutors
LEGISLATION CITED:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Criminal Procedure Act 1986 Firearms Act 1996
CASES CITED:	Barac v DPP [2006] QSC 421 Barac v Stirling (2006) 187 A Crim R 456 Chu Piu-Wing v AG [1984] HKLR 411 Connelly v DPP [1964] AC 1254 at 1301 Farrow Mortgage Services Pty Ltd (in liquidation) v Mendall Properties Pty Ltd [1991] 1 VR 1 Jago v District Court (NSW) (1989) 168 CLR 23 Moevao v Department of Labour [1980] 1 NZLR 464 at 482 R v Betesh (1975) 30 CCC (2d) 333 (Ont Dist Ct) R v Chen 2009 ONCJ 453 (CanLII) R v Crneck, Bradley and Shelley (1980) 116 DLR(3d) 675 R v Croydon Justices; ex parte Dean [1993] QB 769; 3 All ER 129 R v Georgiadis [1984] VR 1030 R v Halmi (2005) 62 NSWLR 263 R v Janceski (2005) 64 NSWLR 10 R v MG (2007) 69 NSWLR 20 R v Milnes and Green (1983) 33 SASR 211 R v Mohi (2000) 78 SASR 55 R v Peters (1995) 83 A Crim R 142 R v Remple (1993) CanLII 201 (BC S.C) R v Trainor (1991) 56 A Crim R 102 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 at 519, 529,
PARTIES:	The Crown M
FILE NUMBER(S):	DC 2009/00008421
COUNSEL:	Mr C Maxwell QC - Crown Mr A Bellanto QC (6 & 7 September only), Ms G Bashir - Accused
SOLICITORS:	Director of Public Prosecutions Uther Webster & Evans

JUDGMENT

Introduction

1 I have before me Notices of Motion, filed on behalf of the accused Joseph Stephen Metlej, seeking orders relating to the future conduct of criminal proceedings involving him. As well, the Crown asks me to make orders under section 129 Criminal Procedure Act. The issues raised in the applications by both sides were so common to both applications that they were heard together over 4 days.

2 Mr Metlej was charged by police with a number of offences on the 27 July 2007. Others were charged as well. The trial of those others, and perhaps Mr Metlej as well, is due to commence on the 5 of October 2010 and one of the co-accused has been in custody, bail refused solely in relation to the charges for which he will be facing trial. There is thus considerable urgency in dealing with the matters before me. One result of this urgency is that this judgment is longer than it should be. As Mark Twain was reputed to have said “If you want me to give a two-hour presentation I am ready today. If you want only a five minute speech, it will take me two weeks to prepare.”

3 In broad terms the applications concern whether, and in what manner, and on what charges, the accused should face trial in this Court, as well as subsidiary questions relating to the identity of those appearing for the prosecution. It was agreed that an application regarding the right of the prosecution to retain certain documents could await developments following delivery of this judgment.

4 The evidence before me reveals a rather sorry history, demonstrating many of the things that can go wrong in charge bargaining, particularly where many of the lawyers involved have acted with a certain lack of precision. Further, the evidence revealed communication between lawyers acting for the prosecution and lawyers acting for the accused which was said to be “off the record” or “unofficial”. It is difficult to accept that such communication is appropriate when the liberty of a human being such as Mr Metlej is at stake.

5 Most of the relevant history of this matter is conveniently set out in an annexure of the accused’s solicitor Ms Vivian Evans sworn 31 August 2010 together with the annexures to that affidavit.

6 Soon after the accused was charged on 27 July 2007, communication commenced between the solicitor for the accused, (who has remained his solicitor throughout these proceedings) and a number of solicitors from the office of the Director of Public Prosecutions, (the identity of whom has changed on a number of occasions). Relatively early in those negotiations it was made clear by the accused’s solicitor that if agreement could be reached on the nature of the charges to be proceeded with against her client, he would both plead guilty and assist the prosecution by giving evidence against his co-accused. A solicitor from the office of the Director of Public Prosecutions therefore wrote to Ms Evans on 15 April 2009 advising that the Director of Public Prosecutions had approved the taking of an induced statement from her client. The letter says:

“the inducement that will be offered to your client will be in the usual terms as follows:

I am making this statement after a promise held out to me by … that no information given in it will be used in any criminal proceedings against me in any Court in New South Wales, except in respect of the falsity of my statement or for the purpose of establishing a falsity of evidence given by me as a witness.”

7 The letter from the solicitor for the Director of Public Prosecutions goes on

“once taken, the statement made by your client will, of course, be confidential, and treated accordingly by this office. It will only be disclosed when, and if, an agreement is reached that your client is to be a witness in this matter.”

8 Quite shortly after this letter was sent to Ms Evans, the police started taking an induced statement from Mr Metlej. This was a lengthy procedure and it extended over a number of days. The terms of the inducement at the beginning of the induced statement were consistent with that set out in the letter of 15 April 2009, the ellipsis (see [6] above) being replaced by the words “Nicholas COWDREY, the New South Wales Director of Public Prosecutions” Eventually the accused signed the induced statement on 8 May 2009.

9 In the meantime however, proceedings in the Local Court were continuing. There was the complication, of course, that Mr Metlej was not the only person involved in those committal proceedings. His co-accused were involved as well. On top of that there was the further complication that, for obvious reasons, they were not to be told about the charge negotiation that was taking place or that Mr Metlej had offered to give evidence for the Crown. Ms Evans therefore wrote to a solicitor advocate within the Office of the Director of Public Prosecutions, Ms Turner, expressing her concern that if her client did not plead guilty in the Local Court he would not receive the maximum discount on his sentence. Ms Turner wrote back to Ms Evans saying

“it is agreed by this office that Mr Metlej offered to plead guilty to a serious charge, and to provide assistance to the prosecution in this matter, at a very early stage after the full brief of evidence was served”.

10 It was pursuant to that indication from Ms Turner that the accused therefore waived his committal proceedings, with the consent of the prosecution, and he was committed for trial on 11May 2009. The committal charges were quite serious, and there were quite a few of them as well.

11 The accused was committed to stand trial on a total of 14 offences:

• one count of solicit to murder,

• two counts of make false accusation against another,

• four counts of supply a prohibited drug,

• four firearm offences,

• one count of shoot at with intent to murder, and

• two counts of doing an act with intent to pervert the course of justice.

12 Negotiations continued between lawyers acting for Mr Metlej and lawyers acting for the Director of Public Prosecutions. On 23 June 2009 Ms Evans wrote to Mr Michael O’Brien, a Crown Prosecutor, in these terms:

“We refer to your email to Mr Anthony Bellanto QC dated 16 June 2009 in relation to the proposal that you are prepared to put to the Director”.

13 Ms Evans then went on to make a suggestion that her client would be prepared to plead to two counts: accessory after the fact to maliciously wound with intent; and make false accusation, with one supply prohibited drug matter and one firearm matter placed on a Form 1.

14 In July Mr O’Brien met the accused, in the presence of both the accused’s solicitor, and Mr O’Brien’s instructing solicitor in order to assess what sort of witness Mr Metlej would make for the Crown.

15 When matters continued on without a resolution, Ms Evans wrote to Ms Janelle Gaggin, another solicitor employed in the Office of the Director of Public Prosecutions who by then had carriage of the matter. In that correspondence Ms Evans expressed her concerns. Ms Gaggin wrote back,

“I forwarded your letter to the Director’s chambers. I have been advised that the Deputy Director is considering the matter and is aware of the importance and the defence enquiries. I will advise you as soon as a recommendation is made”.

16 It was around this time that an order made by Justice Blanch allowing the Crown an extension of the time to file an indictment to 4 of September 2009 expired.

17 On 6 October 2009 Ms Gaggin had a telephone conversation with Ms Evans. Ms Evans’ file note is:

“her understanding is that our proposal of 23 June 2009, was the proposal that was accepted however she could not confirm this with Michael O’Brien for two weeks as he is on leave”.

18 The next matter, and this very significant, is that on 21 October 2009, Mr O’Brien wrote a letter, on Crown Prosecutor's Chambers letterhead, to Ms Evans (the letter was drafted by Mr O'Brien, typed by Ms Gaggin, and then signed by Mr O'Brien). Because of its importance I will quote the letter in full.

Dear Ms Evans,

Re: Director of Public Prosecutions –v- METLEJ.J

CASES No. 2721971

I refer to your email of 23 June 2009, addressed to Michael O'Brien, Crown Prosecutor, attaching letter also addressed to him, of the same date.

Your proposal has been considered by the Crown. The Crown will accept a guilty plea from Mr. Joseph Metlej to the following;

1. Accessory after the fact to shoot with intent to murder (s350 and s29 Crimes Act 1900);
2. Make false accusations w/i to subject other to investigation (s314 Crimes Act 1900) regarding the events on or around 1 October 1998;

And the following placed on a Form 1 – these charges relate to the events on or around 9 October 1998:

1. Supply prohibited drug not less than the commercial quantity (s25(2) Drug Misuse& Trafficking Act 1985);
2. Possess defaced firearm (s66(b) Firearms Act 1996.


This offer is on the basis that Mr Metlej will give evidence against his co-accused, Christopher Poniris, regarding the three events concerning the victim, William Metlej: that is, the first drug and gun incident on and around 1 – 9 October 1998, the second drug and gun incident on and around 18 March 1999 and the shooting of William Metlej on 28 November 2002.

Could you please confirm that your client accepts the plea offered by the Crown. Your client will then be arraigned and a sentence date sought.

I note your client’s fears for his safety once his statement is served on the co-accused. The OIC, Detective Sergeant Kerfoot, is overseas to the end of October. On his return, this office will consult with him regarding having Mr Poniris’s bail revoked.

Yours faithfully

Michael O’Brien

19 A comparison between the committal charges and those mentioned in Mr O’Brien’s letter reveals that the Crown Prosecutor was offering to terminate:

• one count of solicit to murder,

• one count of making false accusation against another,

• three counts of supplying a prohibited drug,

• three firearm offences,

• one count of shooting at with intent to murder and

• two counts of doing an act with intent to pervert the course of justice,

at the same time as suggesting that a Bill would be found for a charge which had not been a subject of committal proceedings – accessory after the fact to shoot with intent to murder. It is not surprising that the accused was keen to accept Mr O’Brien’s offer.

20 On the copy of the letter exhibited to Ms Evans’ affidavit is her handwriting and what appears to be the accused’s signature. That writing reads as follows;

I hereby instruct you to accept the proposal as outlined in this letter. I understand that I may be facing a gaol sentence by pleading guilty to the offences.

Dated 2 ^nd November 2009 – (signed)Joseph Metlej

21 The next communication between the lawyers appears to have been on 3 November 2009 when Ms Evans wrote directly to Mr O’Brien, the Crown Prosecutor. Again because of the importance of this letter I will quote it in full.

Dear Mr O'Brien,

Re: Metlej –ats – Police

We thank you for your letter dated 21 October 2009 and confirm that we have received confirmation in writing from our client, that he accepts the Plea offered by the Crown.

Can you please advise us when you propose that our client be arraigned.

Due to Mr Bellanto’s commitments, we would not be in a position to take a sentence date until February 2010, and would expect that it may take two days.

In the interim however, we would need to consider the following:

1. an Agreed Statement of Facts
2. any indemnities and immunities from the Prosecution, that our client will need to secure, including any evidence to be given at the Trial of either Mr Poniris or Mr Follert, and any evidence that Mr Metlej may have given before the NSW Crime Commission.


Further, we note that the Police have agreed to provide a Letter of Assistance, detailing the length of time it took to prepare the Induced Statement, and assessing the value of the Induced Statement in the circumstances, and whether or not any other charges are contemplated with other persons that have been referred to in the Induced Statement.

We would like, if possible, to have at least a draft of the Agreed Statement of Facts for us to consider, before the Arraignment.

We note that the service of Mr Metlej’s statement on the co-accused, will be co-ordinated with detective Sergeant Kerfoot, who we understand, should have now returned form overseas. We would like to discuss the timing of this, with both you and the OIC, to ensure that our client’s safety and that of his family, is properly considered and protected in the circumstances.

We thank you for your assistance and look forward to hearing from you in relation to the proposed Arraignment date.

We also look forward to receiving a copy of the proposed indictment and the Form 1.

Thank you in anticipation.

Yours faithfully

(signed) Vivian Evans

22 Thereafter matters went downhill. I will return to what happened in more detail later but in a nutshell the Crown has filed an indictment, out of time and without the leave of the Court, containing a series of counts against Mr Metlej which involve much more extensive criminality than that involved in the counts Mr O’Brien said the Crown would accept pleas to. It is to be noted that that indictment does not represent the committal charges either. It represents the charges the Crown wishes to proceed on now that Mr O’Brien’s position as Crown Prosecutor prosecuting Mr Metlej has been taken over by a new Crown Prosecutor, Ms Williams. It is the only indictment which has ever been filed against the accused.

23 Between Mr O’Brien’s letter of 21 October 2009, and the plea negotiations really falling off the rails in May this year, work was done by both sides to have the matter prepared as a sentence matter. To this effect the accused served upon the Crown two psychological reports. The psychological reports largely repeated the history that the accused had given in his induced statement, but also suggested that the accused was suffering from Asperger’s Syndrome.

24 In the course of the plea negotiations breaking down, Ms Evans wrote directly to the Director of Public Prosecutions, Mr N R Cowdery AM QC. Mr Cowdery said, by way of letter dated 13 May 2010:

“the proposal put in the course of discussions by Mr O’Brien for your consideration had not been approved by me or by one of my Deputy Directors and such approval would have been necessary to give effect to any charge negotiation outcome.

25 On the same day Ms Evans wrote to Ms Gaggin saying,

“We can recall from discussions with both Mr O’Brien and yourself, that the Deputy Director Donna Woodburn, had been given the matter to consider before Mr Michael O’Brien had made the offer of 21 October 2009.

This seems to be at odds with Mr Cowdery’s letter and was relevant to Mr Cowdery’s decision to withdraw the offer.”

26 It is the position of the accused, advanced by Ms Bashir who appeared on his behalf, that the letter from Mr Cowdery of 13 May 2010 misstates what had occurred in his chambers (by which I mean the chambers occupied by the Director and his two Deputies), and that the position advanced by Mr O’Brien in his letter of 21 October 2009 was approved by a Deputy Director of Public Prosecutions. She says that the explanation for Mr Cowdery saying something which is not in fact the case is that he has been misled.

27 It will be necessary in the course of my judgment to refer to other factual circumstances but what I have said so far is sufficient to outline the present position of the prosecution involving Mr Metlej.

28 What the accused now seeks is, ultimately, that I make an order which would have the effect that he could not be prosecuted for anything at trial in this Court, whether on the indictment which has been filed, the committal charges, or the terms of the “agreement” reached with Mr O’Brien. If that is rejected Ms Bashir says that I should send the matter back for further committal and that I should make subsequential orders to return Mr Metlej to, as far as possible, the position he was in in the early part of 2009. If that application fails Ms Bashir asks that I stay any prosecution other than one on the “agreed” counts. And if that application fails, the final application is that I restrain certain named Prosecutors from appearing on the prosecution of Mr Metlej.

29 Not only is the matter complicated by: inexactitude of expression in communication between lawyers; problems with memory; the absence of evidence from people such as Mr Cowdery, Ms Woodburn, Mr O’Brien, and Mr Bellanto; and the need to act quickly because of the forthcoming trial date of 5 October 2010, but a close examination of the pre-trial procedures designed to promote the quick and just disposition of trials has revealed a lantana like confusion of Acts, Regulations, Rules of Court, and Practice Notes. So complicated is the inter relationship between those various things that even the standard work on Criminal Practice and Procedure in New South Wales has been unable to keep up, with the notes under S 129 of the Criminal Practice and Procedure Act making reference to a regulation which no longer exists.

30 One of the successes of case management in the District Court has been the recognition that while a judge is busy managing a trial, he or she is not available to do the more productive work of hearing a trial. That lesson appears to have been forgotten by the various proponents of the case management system under which the District Court is now expected to operate.

31 I have to make a number of decisions and I will set out now the issues I have to decide. As well as these decisions I will have to make other, subsidiary decisions along the way but in order to assist the reader to understand the structure of the remainder of my judgment I will set out the major questions I have before me as follows:

1. Do I have jurisdiction to hear the notices of motion or to hear the Crown’s application that the trial proceed on the indictment which has been filed.

2. If I do have jurisdiction, should I exercise my powers under S 129 by allowing the Crown to present an indictment against the accused, and have him arraigned on, the O’Brien counts, the committal charges, the indictment which has been filed, or at all.

3. If I allow any indictment to be presented should I stay some or all charges against the accused.

4. Should I make an order, similar to that made by the Court of Criminal Appeal in R v MG (2007) 69 NSWLR 20 concerning the identity of those Crown Prosecutors, and solicitors, who can be involved in the prosecution of the accused.

32 It will be noted that similar issues arise in issues 2 and 3 so I have dealt with them together.

Do I Have Jurisdiction?

33 Initially the parties concentrated their submissions on S 129 Criminal Procedure Act, which is in the following terms:

129 Time within which indictment to be presented

(1) In this section, relevant court , in relation to a matter, means the Supreme Court or the District Court before which the matter has been listed for trial or mention.
(2) An indictment is to be presented within 4 weeks after the committal of the accused person for trial, except as provided by this section.
(3) The time within which the indictment is to be presented may be extended:
(a) by the regulations or (subject to the regulations) the rules of the relevant court, or
(b) by order of the relevant court.
(4) If an indictment is not presented within the time required by this section, the relevant court may:
(a) proceed with the trial if an indictment has been presented, or
(b) adjourn the proceedings, or
(c) take such other action as it thinks appropriate in the circumstances of the case.
(5) The prosecutor has no right to an adjournment merely because an indictment has not been presented.
(6) The relevant court must, in exercising any power under this section, have regard to the fact that the Crown does not have a right of appeal if the accused person is acquitted.
(7) This section does not affect the powers of the relevant court under section 21.

34 However, part way through the hearing of this matter both Ms Bashir and the Crown drew my attention to S 130 of the Criminal Procedure Act, which provides that the District Court,

“has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned and any orders that may be made by the Court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial”.(emphasis added)

35 Both the Crown and Ms Bashir raised with me the question of whether I had jurisdiction to consider an application under S 129(4) given that it is common ground that Mr Metlej has never been arraigned. I am satisfied that I have jurisdiction and that S 130 has to be read subject to, at least, S 129.

36 That conclusion is clear from the wording of S 129(4). Subsection (4)(a) is only applicable “if an indictment has been presented” but no such limitation is provided in the case of what the Court may do under (b) or (c). This thus tends to suggest that the powers under subsections 4(b) and (c) may be exercised by a Court even if the indictment has not been presented and as a necessary consequence the accused person has not been arraigned.

37 Subsection 129(5) is also important. It provides that “the prosecutor has no right to an adjournment merely because an indictment has not been presented”. Those of us old enough to remember the eighties will recall that before amendments to the Criminal Procedure Act in the early nineties a prosecutor could force an adjournment of a trial simply by refusing to present an indictment. Subsection 5, and its predecessors, was designed to remove this power from a prosecutor. Clearly subsection 5 could not give the Court the power to make a decision to refuse a prosecutor an adjournment if section 130 was to be read such that it provided that the Court had no power to do so because the indictment had not been presented and the accused person arraigned.

38 I should also emphasise that if I do not consider S 129 (4)(a) and (c) as giving me the power to take action that would see the accused standing trial, then it is Ms Bashir’s argument that this Court has no jurisdiction to try Mr Metlej for anything despite having been committed on a large number of very serious offences and indicating an intention to plead guilty to some of them. The unattractiveness of that proposition is obvious, a matter recognised by Ms Bashir.

39 Although the decision I have reached is, I am satisfied, the only proper way of resolving the apparent conflict between section 129 and 130, it is regrettable that the state of the legislation is such that there should be any apparent conflict in the first place.

The Consequences of the Crown failing to file an indictment in time

40 Section 129 Criminal Procedure Act provides that an indictment is to be presented within four weeks after the committal of the accused person for trial, except as provided by that section. Subsection 3 provides that the time within which the indictment is to be presented may be extended by either the Regulations, the Rules of the relevant Court, or by order of the relevant Court.

41 Until recently there was a District Court Rule (Part 53 Rule 10E) which provided that the time for presenting the indictment was extended to eight weeks after committal if the indictment was presented at one of a number of named locations, including Sydney, but that Rule has since been repealed. Thus, pursuant to section 129(3) the time within which the indictment is to be presented can only be extended by order of this Court.

42 However Rule 10F of the District Court Rules provides that any application for extension of the time to present an indictment must be made within the four-week period provided for in S 129. It is therefore the argument of the accused that in the circumstances of this case, I have no jurisdiction to allow the Crown to present an indictment (even though the indictment has physically been presented on 24 August 2010) because there was no application made to extend the time in which the indictment may be presented within the period of four weeks after committal.

43 So what are the consequences if that is the case? What happens if a person has been committed for trial but the prosecution is now not allowed to present an indictment against that accused? The most obvious consequence is that the person cannot be tried, something of a startling proposition. If an officer of the Director of Public Prosecutions overlooked the filing of an indictment in time, if an officer of the Director of Public Prosecutions took a bribe to deliberately fail to file an indictment in time, if an earthquake prevented an indictment being filed in time, or an officer of the Director of Public Prosecutions, rushing to Court at the last minute, was hit by a bus and the indictment was not filed in time, the result that Ms Bashir says should follow is that the accused never stands trial and the question of the accused’s guilt or otherwise is never determined. But courts exist so that issues as to guilt or otherwise can be determined and ordinarily the community expects that where a person is charged with a serious offence they will not obtain an immunity from prosecution, particularly in circumstances I have postulated above.

44 Ms Bashir recognised that this was an unattractive position to take and so she had a fall back position, suggesting that the appropriate way of dealing with such a circumstance would be that committal proceedings could be re-held which would have the effect of restarting the four week clock. It would be quite contrary to the purpose of the various principles of case management which the District Court is now expected to follow to ensure that trials are not unduly delayed, for one of the consequences to be that missing a deadline means that the criminal prosecution process has to start all over again.

45 In truth the answer is to be found in subsection 129(4) of the Criminal Procedure Act. And in the circumstances that are now before me I consider that that subsection gives me the power to make orders to the effect that the Crown is able to proceed at trial against Mr Metlej on the indictment that has been filed in the registry. That is, of course, if such an order is appropriate and can be made without adversely affecting the accused’s right to a fair trial, or at the very least if the interests of the community in seeing Mr Metlej appropriately prosecuted outweigh any detriment or difficulty occasioned to Mr Metlej by the prosecution’s failure to meet the appropriate deadline.

46 Whilst the law is full of deadlines, some of which can be extended (for example by giving a “full and satisfactory explanation”) and some of which can not (for example the time for bringing an appeal with the leave of the District Court from a conviction in the Local Court), I am not aware of any other deadline anywhere in Australia which has the effect that Ms Bashir presses upon me in the event that the Crown fails to file an indictment within time.

47 We’re not talking about summary proceedings here either. The time limit to be found in S 129 applies to offences prosecuted in the Supreme Court as well as this Court, offences including murder of course. And even the offences on which this accused was committed for trial in this Court include very serious matters indeed - attempted murder. I simply do not accept that the Legislature’s attempt to ensure speedy trials is so enthusiastic that it is prepared to accept the automatic consequence that there would be no trial at all where an indictment has not been filed in time, no matter what the cause of that failure is. I repeat: incompetence, laziness, misadventure, and even corruption could all be the cause of a prosecutor failing to meet the deadline for filing an indictment and it would be remarkable if in every such case an accused could not be prosecuted, or that new committal proceedings were required.

Should I Allow The Trial To Proceed On An Indictment, and If So, Which One?

48 It is common ground that an indictment has been filed in the registry, although complaint is made that this was done over the objection of the accused and that the “copy” served on the accused was not signed and dated.

49 Let me deal briefly with an argument based on that latter circumstance. Ms Bashir pointed to the requirement in Rule 10D that provides “if an indictment is filed with the Registrar, a copy of the indictment must be served on each accused person or the accused person’s legal representative within 14 days after the filing of the indictment”. She pointed out that whilst the version of the indictment filed in the Registry is signed and dated, the version served was not. However I am satisfied that it is correct to describe what was served as a “copy” of what was filed because the matters of substance were identical in both versions.

50 Of course the identity of the person who signed an indictment can be crucial in determining whether proceedings can properly be brought (see most obviously R v Halmi (2005) 62 NSWLR 263 and R v Janceski (2005) 64 NSWLR 281) and so if I am wrong as to whether what was served is “a copy” of what was filed, then in the alternative I find that the indictment was still presented in compliance with Sub Rule 10D(1) despite non compliance with Sub Rule 10D(2) (in this regard that I note that the statement to be found in paragraph [40] of R v Halmi was very much obiter).

51 And even if I am still wrong, and that service of an undated and unsigned version of the document meant that the indictment was not presented in accordance with Rule 10D, because the accused was not in any way prejudiced by the failure of the version served upon him to contain the date or a signature I would have exercised my powers under S 129 to allow the indictment to be presented out of time, such action being “appropriate in the circumstances of the case”.

52 And, as a final fall back position, if everything I have said so far about the issue concerning the form of the document which was served is incorrect, I would have exercised my powers under section 129 (4) to allow the Crown to present a further signed and dated version, which could be served on the accused. After all Ms Bashir pointed to no prejudice at all because the version served was not signed and dated.

53 Turning to more fundamental matters, the accused’s primary position is that I should not exercise my power under S 129(4)(a) to allow the trial to proceed on the indictment which has been presented or take any other action under S 129(4)(c) which would allow the trial to proceed on an indictment containing the committal charges, or even those counts “agreed” between Mr O’Brien and Ms Evans. To make matters clear it is the accused’s primary position that he should not face trial at all, for anything. As a fallback position the accused says that if there is to be a trial then it should be for the “agreed” counts (and I gathered that if an indictment were presented in those terms pleas of guilty would be entered).

54 Because of the importance of an accused person who has been committed for trial actually facing trial I am satisfied that I should exercise my powers under S 129(4)(a) or (c) in such a way that sees the Court exercising its jurisdiction to try the accused unless the circumstances are such that the proceedings would be stayed. Similar considerations apply to the question of whether I should exercise my powers under S 129 as apply on the question of whether I would order a stay of the proceedings and one of the most important issues in this regard concerns whether the conduct of the Crown has been such as to prejudice the accused.

55 It matters not, as far as the accused and Crown are concerned, whether the accused’s success is achieved by me refusing to make appropriate orders under S 129, or whether I grant a stay. As similar considerations arise no matter which issue is considered, in particular issues relating to public policy which encompass the issue of detriment or prejudice to the accused, I will not, except where necessary make reference to the precise way in which Ms Bashir seeks to achieve particular outcomes for her client.

56 The Crown submission, which I accept, is that questions such as whether Mr O’Brien had authority from the Director of Public Prosecutions or a Deputy to make his offer and the issue as to whether it was unconditionally offered and accepted do not need really to be determined. That is because the accused can point to no relevant detriment such that even if Mr O’Brien had no authority and even if the offer and acceptance were unconditional, the Crown should nevertheless be entitled to proceed to trial against Mr Metlej on charges other than those the subject of Mr O’Brien’s letter. However as I have heard argument on the matter and as I have reached a firm view in relation to both of those issues I will later indicate my findings.

57 Ms Bashir relies on a number of cases both within Australia and in overseas jurisdictions where Courts have taken action to ensure that agreements reached between prosecutor and accused reached as a result of charge bargaining are binding, by for example, staying proceedings involving charges other than those the subject of an agreement.

58 It was the Crown’s submission, which I accept, that the cases on which Ms Bashir relied where judges have held prosecutors to bargains which have been entered, are all cases where what flows from an unconditional offer made by the Crown, which is then accepted by an accused, is that the accused acted to his detriment in fulfilling the bargain he or she has made with the Crown. But that is not this case. Even if the accused has acted to his detriment, which I do not accept, that has not been pursuant to a bargain. (As I explain elsewhere, it was because the accused wanted to persuade the Crown to terminate serious criminal charges which had been laid against him). It is that which distinguishes the cases relied on by Ms Bashir from the one presently before me. Further, I find no relevant detriment has been suffered by the accused if he stands trial on either the committal charges or those on the indictment which has been filed.

59 The District Court has the power to protect its own processes from abuse: Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Moevao v Department of Labour [1980] 1 NZLR 464 at 482. If the interests of justice demand it, the court has the power to permanently stay a trial, such a power to be exercised only in most exceptional circumstances: Williams v Spautz (1992) 174 CLR 509 at 519, 529, Jago (id) Barton v AG; Connelly v DPP [1964] AC 1254 at 1301.

60 Ms Bashir referred to a number of cases in other jurisdictions where a Court has held that it had the power to stay a prosecution where it is brought in breach of a promise, representation, agreement or undertaking given by the prosecution: R v Mohi (2000) 78 SASR 55; Barac v DPP [2006] QSC 421; Barac v Stirling (2006) 187 A Crim R 456; R v Croydon Justices; Ex parte Dean [1993] QB 769; R v Crneck (1980) 116 DLR (3d) 675; Chu Piu-wing v AG [1984] HKLR 411; R v Betesh (1975) 30 CCC (2d) 333; R v Chen 2009 ONCJ 453 (CanLII); R v Remple (1993) Can II 201 (BC S.C.).

61 However, each of those cases can be distinguished, primarily on the basis that no relevant prejudice or detriment has been demonstrated, at the very least, none which occurred after the agreement with Mr O’Brien or, to use a synonymous expression, none which occurred in fulfilling the bargain the accused made with Mr O’Brien.

62 In R v Croydon Justices, ex parte Dean [1993] 3 All ER 129, Lord Justice Staughton and Justice Buckley of the Queens Bench Division held that the prosecution of a person who had received a promise, undertaking or representation that he would not be prosecuted was capable of amounting to an abuse of process. The Australian cases of R v Georgiadis [1984] VR 1030 and R v Milnes and Green (1983) 33 SASR 211 were considered in this case. A determinative case was said to be Chu Piu-Wing v AG [1984] HKLR 411 where it was held by McMullen V-P (at 417-418):

“there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed in the bargain”.

That much is easily accepted, but there are also competing public interests involving the prosecution of an accused for charges which appropriately reflect the conduct alleged against him by the prosecution.

63 In the Queensland Court of Criminal Appeal, in Trainor (1991) 56 A Crim R 102, a prosecution contrary to agreement between the parties was described by Ambrose J as ”unconscionable” and by Dowsett J in the following terms:

“Nothing is more likely to bring the judicial process into disrepute than to permit the Crown or police force to resile from such an agreement. I consider that the subsequent proceedings constituted an abuse of process.”

64 In R v Mohi (2000) 78 SASR 55, Martin J applied the Canadian cases of R v Betesh (1975) 30 CCC (2d) 233 (Ont Dist Ct), R v Crneck, Bradley and Shelley (1980) 116 DLR (3d) 675 and the English case of R v Croydon Justices, noting that Croydon Justices has been cited in the UK and Australia on numerous occasions without disapproval. In the circumstances of that case, where there was a detailed statement given, treatment of the applicant as a witness and assurances that he would not be charged, with trial dates fixed wherein it was proposed he would be called as a witness and the subsequent laying of charges in breach of those assurances, a stay was granted. His Honour held that it was “no answer” to claim that the DPP had not finally decided whether he was to be a witness or an accused.

65 However, in that case the accused was treated solely as a witness for 14 months, including being represented as such at the committal proceedings, despite admitting criminality on the very first occasion when he was interviewed. On the other hand, the accused in this case was always treated as an accused (and if he pleaded, an offender) who might be used as a witness. Mr Mohi was not seeking to have serious charges against him terminated when he spoke to police (without being cautioned it must be noted).

66 Martin J said that:

“The administration of justice will be brought into disrepute if, without good reason, the investigating and prosecuting authorities are permitted to decline to comply with the undertakings or assurances given to such persons that they will not be charged and to pursue prosecutions against those to whom such undertakings or assurances have been given”,

67 But no such assurance was given to Mr Metlej. And in any case, the circumstance that, as I have held elsewhere, Mr O’Brien acted without authority, the power to terminate not being his to exercise, would be, as Martin J called it “good reason” to allow the prosecution of Mr Metlej on an indictment which properly reflects the criminality alleged against him.

68 Another case I wish to refer to is one from the Supreme Court of British Columbia. In R v Remple 1993 CanLII 201 (BC S.C.) the court held that there was an abuse of process where the applicant had agreed with the Crown to plead guilty to certain charges and further and additionally where admissions had been made through his legal representatives in writing by an agreed statement of facts (pp.7-8). In Remple, Oliver J held that:

“A plea bargain, due to public policy considerations involved, is not considered a usual undertaking by either lawyer. Either party may withdraw from the bargain prior to performance. However, once the defendant has performed his part of the bargain in whole or in part, or has in reliance on the agreement acted to his detriment or been placed in a position of disadvantage, however slight, it would be improper for the prosecution to fail to fulfil the agreement” (p.7).

69 In the present case Mr O’Brien’s letter made it clear that a large number of the committal charges would be terminated only if the accused pleaded guilty to the nominated charges and gave evidence for the Crown. Mr Metlej has done neither. He has not fulfilled, even in part, his side of the bargain.

70 I note that there is reference in the decision to an agreed statement of facts being an admission. That of course would be a highly relevant matter. If the accused had made an admission which could be used against him in criminal proceedings as a result of a bargain with the Crown then, if that admission were to be used against him or her, oppression and unfairness would be obvious.

71 Not surprisingly therefore Ms Bashir relies heavily on the fact that a statement of agreed facts concerning Mr Metlej was prepared by the Crown and, apart from minor amendments, Ms Evans told the Crown that it was acceptable to her client. But, given the extreme nature of binding the Director of Public Prosecutions to an agreement reached by a Crown Prosecutor who did not have the authority to enter the agreement, it is important to consider carefully what problems for the accused, if any, arise. For multiple, and obvious, reasons involving issues arising under those parts of the Evidence Act dealing with admissions and unfairness the agreed statement of facts is simply inadmissible against the accused.

72 The judgement in Remple proceeded on the basis that the agreed statement of facts could be used against the accused in that case, but the agreed statement of facts in this case would be excluded in a heartbeat if the Crown had the temerity to try to tender it. Ms Bashir said that the statement could be tendered against the co-accused in a joint trial with her client, but how that could be done was never explained, and even if that were right then at most the appropriate order would be for a separate trial, not a stay or other order which would prevent the accused facing trial for charges which include attempted murder.

73 In attempting to demonstrate detriment to her client, Ms Bashir relied on repeated failure to comply with requirements of case management, the absence of any motion to seek an order of the Court to allow for filing of the indictment out of time (despite letters from her instructing solicitor suggesting at least the appropriateness of that course), the filing of the indictment over objection without notice to the Registry, and the delay in presenting the indictment. She also relied on the burden on the accused, and for that matter the victim, occasioned by the delay and the conduct of the prosecuting agency, in particular Mr O'Brien’s conduct in, for whatever reason, making an offer he could not keep. I have kept those matters very much in mind. But the primary purported detriment relied on by Ms Bashir concerned what were said to be consequences flowing from the induced statement, the psychological reports, and the agreed facts.

74 One of the most obvious circumstances to be considered when deciding whether the provision of the induced statement caused prejudice or detriment to the accused concerns whether he told the police much, or even anything, beyond that which they already knew. In other words, the question of detriment or otherwise could only really be determined by comparing what the accused said in his induced statement with the other evidence the Crown had available against him. But neither the Crown nor the accused provided me with much evidence at all about the actual case against Mr Metlej to be considered at trial. When this was drawn to Ms Bashir’s attention she relied on what she said was the onus on the Crown to demonstrate why an application for exercise of appropriate powers under S 129 should be granted. But given that one of the specific matters sought in a Notice of Motion filed on the accused’s behalf was a Stay of Proceedings, where the onus is clearly on the accused to demonstrate that the Court’s processes are being misused, questions of who bears the onus do not really assist Ms Bashir.

75 What I do have before me is of course the induced statement made before the bargain was reached and the psychological statements served after it. In view of the attitude I have taken to the circumstance that the induced statement pre-dated Mr O'Brien’s letter it has ultimately come down to a question of whether what occurred after the bargain was reached, namely the service of the psychological statements and the preparation of agreed facts, affects the accused’s ability to defend himself over and above the effects that result from him voluntarily providing the induced statement. In determining whether the accused has acted to his detriment pursuant to a bargain reached with the prosecution, it is clearly only conduct post bargain which is relevant, and in assessing that detriment one has to compare the position the accused was in immediately prior to the bargain with the position he found himself in at the time he became aware that negotiations had broken down.

76 It was in this area that Ms Bashir was unable to demonstrate relevant detriment at all.

77 It is clear that there has been some tardiness on the prosecution’s side. Ms Bashir relies on those delays as demonstrating prejudice to her client. One aspect of that raised by her was that the trial is due to commence on 5 October and she suggested the possibility that because of the delay then her client’s trial lawyer’s would not be able to have the matter properly prepared for trial by 5 October. However she adduced no evidence on this aspect nor did she point to any specific matter of difficulty. Of course if at a later time an application is made either to me, or to another judge, for adjournment of the trial, at least insofar as it concerns Mr Metlej, then that application would be determined on its merits. For my part in determining issues such as whether the Crown’s tardiness had prejudiced the accused, I should proceed on the basis that if a prejudice of the kind I am now discussing is demonstrated, then it can be cured.

78 As I have hinted up to now, and this was a matter I kept referring to during the course of submissions, it is very important to remember that the induced statement was made before Mr O’Brien’s letter. There could of course be no bargain at all between the Crown and the accused before offer and acceptance of a particular outcome as regards the charges the accused would face. At the very earliest that could not have come about until Ms Evans’ letter of 3 November 2009 where she told Mr O'Brien that her client had accepted his offer. But this was a considerable period of time after the induced statement had been completed.

79 So even if there is a disadvantage to the accused through having provided the induced statement it did not flow from the bargain he had made with the Crown. He entered into the procedure involved in making the induced statement, and then met with the Crown Prosecutor so that the prosecutor could assess him as a witness, as part of his efforts to persuade the Crown to accept pleas of guilty to some charges and terminate others. The accused wanted to face a smaller number of charges as well as obtain a discount for pleading guilty and assisting the authorities. That is why he entered into the charge negotiation process and that is why he made the induced statement which he did.

80 In some respect the position the accused faces is similar to the position faced by the applicants in R v Peters (1995) 83 A Crim R 142, who also sought a stay. Simpson J applied the balancing test to be found in Walton v Gardiner (1993) 177 CLR 378 and Rogers v The Queen (1994) 181 CLR 251 by saying:

The applicants in the present case cannot avoid the circumstance that each has given sworn evidence of his own criminal conduct in serious respects. Each did this in a considered decision in an effort (successful) to avoid conviction on a more serious charge . It would be necessary to demonstrate a very grave degree of unfairness to them to outweigh the public interest in their proper prosecution and conviction on the offences of which they have sworn that they are guilty. Those elements of hardship to them, including the length and expense of the proceedings to which they have already been subject, in my view are matters of legitimate concern that can appropriately be recognised in any sentencing decision which may follow the prosecution.(Emphasis added)

81 Of course there is in the present case, no admissible evidence that the accused has admitted criminal conduct in serious respects, but nevertheless the public interest in his proper prosecution on charges which reflect the criminal conduct alleged against him is high indeed.

82 In the circumstances of this case it is impossible to see how the provision of the induced statement means that the accused has suffered a relevant detriment if the Crown is not held to the O’Brien charges, because any agreement was reached considerably after the induced statement was provided to the accused. Nor is it in any way improper for anyone in the prosecution to have regard to the contents of the induced statement in determining whether it would terminate those charges which, by implication Mr O'Brien suggested would be terminated in his letter. That was the very purpose of the offender entering into the induced statement in the first place – so that the Crown could assess what charge bargain it should offer. The accused can scarcely complain when the Crown does precisely what was envisaged, that is take into account the contents of the induced statement as part of the charge bargaining process.

83 But Ms Bashir has an argument against the proposition I have just stated. She relies on the terms of the inducement. It is necessary here to refer to another aspect of the facts before me. The evidence discloses that in the course of the prosecution considering whether it would be bound by Mr O'Brien’s letter there was a meeting between various prosecutors, including the Senior Crown Prosecutor Mark Tedeschi QC. The evidence reveals that one of the matters considered in the course of that meeting was the contents of the accused’s induced statement. One particular aspect of that statement was noted at the meeting and concern was expressed at the appropriateness of allowing the accused to plead guilty to the charges referred to in the O'Brien letter (and thus having other matters terminated) in the light of that piece of information. I am prepared to proceed on the assumption that this factor has also been considered by Ms Williams in deciding what charges to include on the indictment which has been filed.

84 It is therefore clear that the induced statement was considered by prosecutors and used by them in determining whether the prosecution would be bound by the “agreement” earlier reached by Mr O'Brien and Ms Evans. Ms Bashir says that when officers of the Director of Public Prosecutions, and Crown Prosecutors, including Mr Tedeschi QC and Ms Williams looked at the induced statement when determining whether the position advanced by Mr O'Brien was appropriate, the prosecution was using that induced statement against him. Ms Bashir’s argument is that that violated the terms of the inducement which I have quoted earlier, in that information given in the statement was used in criminal proceedings against Mr Metlej.

85 However the Crown appropriately emphasises that the terms of the inducement include the words “in any Court” and so any discussions between any officer of the prosecution in which the statement was used in deciding what charges the accused should face at trial did not amount to the use of the statement in criminal proceedings against him in Court. I accept the Crown’s argument.

86 The position advanced by the Crown is consistent with what I understood to be the purpose of the inducement in the first place. It was the law, and it remains the law, that an admission made by an accused after a promise held out to him or her is not admissible. Thus the terms of the promise are intended to prevent the admission of the statement in Court, but should not be understood as preventing other use being made of the statement even if that is adverse to the accused.

87 Ms Bashir relied on those cases which provide that an induced statement tendered on sentencing proceedings on behalf of an offender can only be used in his or her favour, and even if greater criminality is disclosed than is to be found in other evidence, the sentencing judge can not take that into account because that would be breaching the term of the inducement. But that is precisely consistent with the view I have taken about the effect of the inducement which is that, as it says, the statement may not be used against an accused in criminal proceedings “in any Court”.

88 There is a further problem with Ms Bashir’s argument. It is important to note that if Ms Bashir is right then not only was the prosecution not entitled to use the induced statement in a way adverse to the accused’s interests after the bargain with Mr O'Brien had been reached, but Mr O'Brien himself would not have been entitled to use the induced statement in a way which was adverse to the accused’s interest.

89 Thus even if in that induced statement the accused had revealed that he had a lengthy criminal history for perjury and a psychiatric condition which made it difficult for him to tell fantasy from reality, Ms Bashir says that the Crown could not use that information in deciding to decline to call the accused as a witness, because that decision would have been adverse to the accused’s interests, because the Crown would then not offer him the bargain which it did.

90 Again if Ms Bashir is right, if there was information in the induced statement which persuaded the prosecution that it was not going to call the accused as a witness at trial then the accused would have been entitled to have the Crown act on the bargain reached with Mr O'Brien, even though it was a condition of that bargain that the accused give evidence.

91 One of the matters considered by the various Courts in the authorities I have mentioned earlier were issues of public policy. Courts were concerned that if accused persons offered to give evidence for the Crown and plead guilty but then found that the Crown did not want to be held to a bargain reached, then information from those involved in crime who were willing to dob in their co-offenders would dry up. But there are other competing public policy issues as well. It would be contrary to public policy for Mr Metlej to get a very generous offer from the Crown which was conditional on him giving evidence for the prosecution, to retain an obvious benefit even if, for very valid reasons disclosed in the induced statement, the Crown decided not to call him as a witness. And I repeat, Ms Bashir’s argument includes the idea that Mr O'Brien wasn’t even entitled to take into account anything revealed in the induced statement adverse to the accused’s credibility in deciding whether to call him as a witness.

92 I therefore find that the accused has suffered no relevant detriment by the Crown using the induced statement when determining what charges it wishes ultimately to try Mr Metlej on, not only because that induced statement was made well prior to any “agreement” but also because there was nothing inconsistent with the prosecution acting in that way in the terms of the inducement.

93 Because the induced statement was taken before Mr O'Brien’s letter, but the psychological reports were served after the letter, it was important to determine whether there was anything contained in the reports which was not contained in the induced statement. Ms Bashir referred only to the diagnosis of Asperger’s Syndrome. Accordingly, could it be said that by the Crown receiving advanced notice of this diagnosis the accused suffers a detriment? Well what would happen if the matter now went to trial and the accused relied on his Asperger’s Syndrome in, for example, raising a defence of duress? Presumably the fact that the prosecution knows, well before trial, of this diagnosis means that the Crown could be forearmed by conducting research, obtaining its own opinion, and preparing cross-examination. But what would happen if the Crown was taken by surprise at trial if the accused relied on the diagnosis as part of a defence? Well the Crown would be entitled to seek an adjournment so that it could: conduct research, obtain expert opinion, or prepare cross-examination and, if the interests of justice required it, such an adjournment would be granted. It is hard therefore to see how the mere fact of the diagnosis being disclosed earlier to the Crown than it would be if no plea agreement had been reached will thus ultimately be a relevant detriment to the accused, should the matter go to trial.

94 Ms Bashir also said that the psychological reports were prepared for the purposes of sentencing rather than for the purposes of trial but, despite repeated questioning from me, she was not able to identify in any concrete way how that circumstance made any difference to the issue that I have to determine. Certainly one would not expect the diagnosis to change which, after all, is that aspect of the psychological reports which Ms Bashir says gives the Crown an advantage through them knowing about the diagnosis before the trial.

95 It is not uncommon of course for Crown Prosecutors to have advance notice of a defence that an accused intends to run, even in circumstances where the accused’s lawyers wish to retain the element of surprise. The most obvious example is where an appellate court orders a re-trial. It has never been suggested in those circumstances that the accused has suffered a relevant detriment through the prosecution knowing one possible, (even the most likely), approach that will be taken by the accused to his or her defence. This is of course relevant not only to the issue as to whether the accused has suffered a detriment through disclosure of things such as the psychological reports but also whether a Crown Prosecutor aware of those matters should be allowed to prosecute the accused at trial. Nor is it unusual for a Crown Prosecutor to be possessed of material concerning an accused which is inadmissible at trial. Take for example, admissions which were not electronically recorded, admissions made after a police officer tells a suspect “it would be better to tell the truth”, an accused’s criminal history, knowledge of other charges faced by an accused, and so on.

96 I appreciate at once that it might be easier for an accused in the present position to show that he has suffered a detriment where he provided the psychological reports only after he thought a plea bargain had been reached, but I refer to those other examples to show that no one has ever suggested that in those examples the accused’s right to a fair trial is affected and, I repeat, the major part of what the accused told the prosecution is in his induced statement, which was done voluntarily by him in an effort to obtain favourable determination from the prosecution as regards the charges he would ultimately plead guilty to, the charges which would be terminated, as well as a discount for plea and assistance to the authorities.

97 One of the matters which is in dispute between the parties, and which is relevant to the question of whether the Crown should effectively be bound by the “agreement” is whether it was an agreement reached by those with relevant power. It is important to emphasise that by offering to accept pleas of guilty to some of the committal counts, Mr O’Brien was clearly suggesting that other counts would be terminated either through a Bill for those counts not being found or, if a Bill had been found, the proceedings terminated.

98 It is important to consider the way in which the Legislature has determined which powers should be exercised by the Director of Public Prosecutions and which may be exercised by a Crown Prosecutor. The relevant Acts are of course the Crown Prosecutors Act and the Director of Public Prosecutions Act. It is important to note that Crown Prosecutors do not have the function of “directing that no further proceedings be taken against a person who has been committed for trial…” nor do they have the function that the Director of Public Prosecutions has in determining that no Bill of Indictment would be found in respect of such a person. Thus, absent any power of delegation, the Crown Prosecutors do not have the power to terminate proceedings. If there is a decision made that there would be no Bill of Indictment found that can only be made by the Director of Public Prosecutions (or of course the Attorney General). Similarly, if there are to be no further proceedings once a Bill of Indictment is found that decision again can only be made by the Director of Public Prosecutions or the Attorney General.

99 So, whilst the Crown Prosecutor had the power to find the Bill for the new offence he did not have the power to terminate proceedings against the accused for all of the matters which I have listed above (see s 5 Crown Prosecutors Act). As I have explained, the power to terminate proceedings is one, in the absence of delegation, reserved to the Director of Public Prosecutions and Attorney General (see s 7 Director Of Public Prosecutions Act).

100 I understand, and it has been a common assumption of the parties, that the Director has delegated some aspects of that power to others, in particular he has delegated the power to terminate proceedings to the Deputy Directors of Public Prosecutions. But it has not been suggested, and again this is common ground, that Mr O’Brien had the power to terminate proceedings on which Mr Metlej had been committed to stand trial.

101 Ms Evans, the accused’s solicitor, gave evidence that she well understood that, but it was her evidence that she was given to understand through correspondence and conversation with officers of the Director of Public Prosecutions, and Mr O’Brien, that a Deputy Director of Public Prosecutions had made a decision that, if the accused pleaded guilty to the matters set out in Mr O’Brien’s letter of 21 October 2009, and asked that the matters on the Form 1 be taken into account on sentence, then the remaining committal charges would be terminated. It is the Crown’s position that neither the Director nor a Deputy Director had made any such decision and that in effect, Mr O’Brien was on a frolic of his own, whether because he misunderstood what he was told or because of some other, less attractive, reason. It may be that Mr O'Brien was simply confident that any plea bargain negotiated by him would be accepted by the Director or a Deputy Director, so confident that he didn’t need to raise in his letter the need for a Director or Deputy Director to terminate the relevant charges.

102 It has to be said that neither of the two positions advanced by the parties is a comfortable one. To find that the Director, or a Deputy Director did in fact decide that proceedings would be terminated is to find that the Director’s letter of 13 May 2010 is wrong. On the other hand to find that the Director or Deputy Directors had not made a decision to terminate proceedings is to find that Mr O’Brien was making a promise that he did not have the power to keep.

103 Added to this is the complication that neither the Director, neither of the Deputy Directors, or perhaps most importantly Mr O’Brien, gave evidence in these proceedings. Ms Gaggin, the solicitor with carriage of the matter at the relevant time, did give evidence but it is fair to say that the effect of her evidence was that she had little input or knowledge of the formalities of the charge bargaining process and that at times she was acting more like a secretary than a lawyer. I do not mean any criticism of her at all in what I have just said. As I understand it resources available to the Director of Public Prosecutions are such that solicitors such as Ms Gaggin are forced to do secretarial work if matters are to proceed efficiently, and the evidence would suggest that Mr O’Brien largely took it upon himself to conduct the charge bargaining process including, as is obvious, drafting the letter of 21 October 2009 to be sent on the letterhead of the Crown Prosecutor’s Chambers.

104 I should at this stage say something about the circumstance that a number of people involved in the charge bargaining process, did not give evidence. I have already referred to the fact that some people involved in the charge bargaining process on the prosecution side did not give evidence, in particular Mr O’Brien, but it is worthy of note that Mr Bellanto was, so the evidence shows, clearly involved in the charge bargaining process as well, having conversations with Mr O’Brien as well as correspondence with him. Mr Bellanto did not give evidence either and indeed for the first two days of this hearing he appeared for the accused, his junior Ms Bashir taking over after a clash of dates meant that Mr Bellanto was required to appear in another matter.

105 Rather than speculating as to what people would have said if they were called, I will decide this case on the evidence that I do have before me, most importantly, the contemporaneous and near contemporaneous records which are to be found as annexures to the various affidavits filed in these proceedings.

106 It is inevitable that whichever way I resolve this particular issue there will be, by implication, some criticism of some of those who represented the Crown. I must emphasise however that no such conclusion should be drawn from my remarks. The officers who might be criticised by implication were not given the opportunity to explain their conduct which, had they been able to do so, might have cast a completely different light on the decisions they reached. In particular as I accept that the Director’s letter of 13 May 2010 is accurate in so far as it says that neither he nor one of his Deputy Directors approved the offer made by Mr O’Brien in his letter of 21 October 2009, it might be thought that Mr O’Brien acted in a manner which was at least misleading. However no such conclusion should be drawn from these remarks.

107 The Crown invited me to find that faced with a choice between two unpalatable alternatives I would find that the Crown Prosecutor, Mr O'Brien, made a mistake in that he did not have the authority to write the letter he did when by implication he said that if the accused pleaded guilty to some counts and asked for some matters be taken into account on a Form 1, the remaining committal charges would be terminated.

108 It will be recalled that the submission of the accused on this matter was that the Director of Public Prosecutions had been misinformed, but the Crown drew my attention to a letter from Mr Cowdery himself of 10 May 2010 in which Mr Cowdery states “I have reviewed the material and carefully considered the issues that you have raised”. In those circumstances the Crown says that Mr Cowdery’s later letter in which he says that Mr O'Brien’s proposal had not been approved by either him or one of his Deputy Directors, is stating the Director of Public Prosecution’s position after reviewing the material and careful consideration. Thus, says the Crown, it could not be the case that Mr Cowdery has been misinformed about what he or one of his Deputy Directors did because he has reviewed that material and carefully considered the issues raised by the accused’s solicitor. I accept the Crown’s submission.

109 The Crown concedes that the mistake it is suggesting Mr O'Brien has made is not an inconsequential one. Even without cases such as Janceski (2005) 64 NSWLR 10 and Halmi (2005) 62 NSWLR 263 I would have appreciated the need for prosecutors to take great care in determining that the prosecution process is not approached casually or without a proper appreciation of the powers that are given to individuals who form part of the prosecution. But that is not to say that Crown Prosecutors are incapable of making mistakes. The evidence reveals that there had been contact between the Director’s chambers and Mr O'Brien before his letter of 21 October 2009, and one possible way of resolving the apparent conflict between Mr O'Brien’s letter, and the later letters from Mr Cowdery himself, is that Mr O'Brien misunderstood some communication between himself and either the Director of Public Prosecutions or one of the Deputy Directors. Even if that is not the explanation and in truth Mr O'Brien acted, to his knowledge, without authority, it remains the case that I am satisfied on the evidence that no determination was ever made by the Director of Public Prosecutions, or anyone else with authority to terminate proceedings, such as to endorse the proposal which Mr O'Brien set out in the letter of 21 October 2009.

110 In the absence of evidence to the contrary I would have drawn the inference from Mr O'Brien’s letter that he had the authority of the Director of Public Prosecutions to say what he said, but there is contradictory evidence, particularly in the two letters from the Director of Public Prosecutions himself which I have mentioned. These satisfy me that, whatever the explanation, no indication was ever given by the Director or a Deputy Director that the plea bargain offered by Mr O'Brien would be agreed to by a person with power to terminate the charges which were not referred to in that letter.

111 There is other evidence on this issue that I have taken into account. It is clear that Ms Gaggin, the solicitor at the time, was not privy to what went on between Mr O'Brien and the Director of Public Prosecution’s chambers, her file notes and oral evidence made that clear. Thus I did not find her evidence was of assistance one way or the other in determining what decision the Director of Public Prosecutions, or a Deputy had reached before 21 October 2009.

112 I note that the relevant letter from Mr O'Brien says “your proposal has been considered by the Crown. The Crown will accept the guilty plea ..” (emphasis added). Although who is encompassed by the description “the Crown” is clearly difficult to determine, I note that despite the letter being one on Crown Prosecutor's letterhead and signed by Mr O'Brien himself he refers in the first line of the letter to himself in the third person, which is consistent with him meaning that he would accept the guilty plea when he said that that is what “the Crown” would do.

113 Ms Bashir next said that it didn’t matter whether the Director of Public Prosecutions himself or a Deputy with delegated power approved Mr O’Brien’s proposal because Mr O’Brien, as a Crown Prosecutor, was an agent of the Director of Public Prosecutions.

114 As I discussed above, Parliament has specifically reserved the power to terminate proceedings to the DPP and Attorney General. If Ms Bashir’s submissions were correct, despite the clear division of powers regarding termination of proceedings, a Crown Prosecutor, and perhaps even a Trial Advocate or other solicitor employed in the DPP would be able to effectively terminate proceedings. It may be that in an appropriately extreme case, where an accused has been substantially disadvantaged by a promise held out to him by a Crown Prosecutor, then such a stay would be granted. I say that that matter would have to be extreme because an accused’s lawyers should be taken to be aware of legislation which has been in existence since criminal prosecutions were taken over by the Director of Public Prosecutions in 1987.

115 Of course it can’t be a blanket rule that offers made by Crown Prosecutors to terminate proceedings upon certain pleas being entered, which are then accepted by accused persons, can bind the person granted the legislative power to decide whether or not proceedings will be terminated. The law must allow for obvious cases such as a corrupt or lazy Crown Prosecutor and less obvious cases such as a mistake. I would even, in an appropriate case consider that it is appropriate to allow the Director of Public Prosecutions to back out of a plea bargain simply because the Director of Public Prosecutions had a change of mind or because when the initial decision was made the Director of Public Prosecutions was not in possession or all the relevant facts.

116 And one of the factors, perhaps one of the most important factors, to be considered when deciding whether a Director of Public Prosecutions should be bound is whether an accused has acted to his or her detriment in pursuance of the agreement which had been reached. As I have made clear I do not consider that any detriment suffered by the accused was sufficient to overcome the very high public policy involved in seeing the accused prosecuted on charges which the Director of Public Prosecutions himself considers appropriate.

117 Another matter in contest was whether the agreement reached between the parties was unconditional. I am satisfied that it was, but this does not, for the reasons I have given elsewhere in this judgment, mean that the Crown is effectively bound by it.

118 The offer from Mr O'Brien in his letter of 21 October 2009 was capable of being accepted either conditionally or unconditionally. It is clear that the accused instructed his lawyers to accept the proposal unconditionally. That is the effect of the handwriting on Ms Evans’ copy of Mr O'Brien’s letter. She communicates this unconditional acceptance in her letter of 3 November 2009.

119 It is true that there are some indications in the material suggesting that the acceptance may have been conditional on the accused obtaining an immunity from prosecution, see for example the second numbered paragraph in Ms Evans’ letter of 3 November 2009 and the failure to challenge Ms Gaggin’s assertion in her letter of 18 December 2009 that “Mr Metlej would not plead nor give evidence without the indemnity”, however, despite these circumstances I am satisfied that as far as the accused was concerned he had accepted the proposal advanced by Mr O'Brien and intended to communicate that unconditional acceptance to his lawyer by signing her hand written notation on Mr O'Brien’s letter and that Ms Evans intended to communicate that unconditional acceptance when she wrote on 3 November 2009. However as I have indicated I find that Mr O'Brien’s offer was made without the authority of the Director of Public Prosecutions and, even if it were made with authority, the prosecution should, in the circumstances of this case, be entitled to proceed against Mr Metlej on charges additional to those set out in Mr O'Brien’s letter.

120 Although an abuse of process can be found even without prejudice or detriment to an accused, I would not take the extreme case of denying the prosecution the opportunity to have Mr Metlej tried on the filed indictment unless his ability to receive a fair trial was effected in a demonstrable way. The balancing test found in Walton v Gardiner and Rogers v The Queen applied in R v Peters requires very clearly in my view that the Crown be entitled to have this Court exercise its jurisdiction to try Mr Metlej on the charges set out in the indictment filed with the registry.

121 That is the case whether the issue involves my powers under S 129 or a stay.

122 Finally let me turn to the question of whether I should prevent a Crown Prosecutor and solicitor who have read the induced statement and psychological reports and agreed statement of facts from appearing for the Crown at Mr Metlej’s trial.

123 The basis for the order sought by Ms Bashir was that if I did not make such an order, the accused would be prosecuted by lawyers who would be at risk of misusing confidential information. Ms Bashir relied on a series of civil cases, in particular Farrow Mortgage Services Pty Ltd (in liquidation) v Mendall Properties Pty Ltd [1991] 1 VR 1 as well as the well known case of R v MG (2007) 69 NSWLR 20.

124 In that latter case the Court held that a fair trial “requires that justice not only be done but it must be seen to be done. The appearance of a just trial is as important as its actuality” and accordingly the integrity of the judicial process and the administration of justice can be protected by staying proceedings pending the restraint of counsel or instructing solicitors.

125 It was said by Ms Bashir, that a prosecutor seeking to prosecute a trial against Mr Metlej while retaining possession of the Agreed Facts, induced statement and psychological reports is akin to a party in possession of confidential information pertaining to the very issues at the heart of the proceedings.

126 However what is it that makes such information “confidential”? As I have noted throughout my judgment the accused voluntarily provided the induced statement in an effort to obtain a favourable deal for himself from the prosecution. The psychological reports say nothing further than was contained in the induced statement beyond the diagnosis of Asperger’s Syndrome. The Agreed Statement of Facts was prepared on the basis of material contained in either the brief of evidence against the accused or the induced statement or both. The only possible way in which the relevant material can be described as “confidential” would be the reference to Asperger’s Syndrome and, as I have demonstrated, I trust, earlier in this judgment that is not a significant factor.

127 Ultimately the test applied in MG was akin to the test applied for judicial, or juror, bias, those tests focusing on what a reasonable but informed lay member of the community might reasonably anticipate. In my view such a person, with knowledge of the circumstances of the prosecution of the accused which I have outlined would feel no concern at all at a prosecutor who had read the relevant material appearing for the Crown.

128 I make the following orders.

1. Pursuant to S 129 Criminal Procedure Act the Court will proceed with the trial of M on charges contained in the indictment which has been filed by the Crown with the Registry.

2. Except insofar as an application was made for the proceedings to be held in camera, dismiss the Notices of Motion.

129 It is agreed that, as a consequence of the orders I have just made, I should also order that the accused's response pursuant to S138(b) Criminal Procedure Act be extended to 29 September 2010.

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