R v MARTIN - [2017] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v MARTIN
[2017] SADC 73
Reasons for Rulings of His Honour Judge Tilmouth
5 July 2017
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Consideration and discussion of the constituent elements of the offence of the abuse of public office. Application for permanent stay refused.
Criminal Law Consolidation Act 1935 s 238(3)(b), s 251(1), s 258; R v Austin [2013] SASCFC 133; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Smith [1995] 1 VR 10; R v McGee (2008) 102 SASR 318; Williams v Spautz (1992) 174 CLR 509; Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Ridgeway v The Queen (1995) 184 CLR 19; Question of Law (No 2) (1992) 61 SASR 1; R v Bilick and Starke (1984) 36 SASR 321; R v Austin (1995) 84 A Crim R 374; R v R (1989) 18 NSWLR 74; Shum Kwok Sher v Hong Kong Special Administrative Region (20052) 5 HKCFAR 381, referred to.
R v Beare [2011] SADC 157; Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63, applied.
R v Chapman [2015] QB 833; R v Jansen [2013] NSWCCA 301, considered.

CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
Application for conditional stay based on an intimation that the prosecution does not propose to call a witness, dismissed as premature.
Whitehorn v The Queen (1983) 152 CLR 657; Richardson v The Queen (1974) 131 CLR 116; R v Jensen [2009] 23 VR 591; R v Evans [1964] VR 717; Apostilides v The Queen (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450; Dieham v Director of Public Prosecutions (NAURU) (2013) 88 ALJR 34, referred to.

R v MARTIN
[2017] SADC 73
Contents
Applications for stays
The charges
The statutory offence of the abuse of public office
The remedy of stay in the criminal law
Defence contentions
No evidence of significant detriment to the public
No proof of the requisite degree of seriousness
No evidence of publication
No evidence of corruption in the sense of no ‘benefit’
No evidence of loss of control of confidential information
Conditional Stay
Conclusion and orders
Applications for stays

The accused is before the court charged on Information, with 10 counts of the abuse of public office, allegedly committed between mid-September 2010 and late October 2012.[1]
[1] The Information at the time of hearing charged 12 counts, however the DPP has since presented a 10 count indictment.
He moves to have the Information permanently stayed on the ground that the charges are ‘doomed to fail’, or alternatively conditionally stayed until the prosecution undertake to call a witness considered by the defence to be essential to the fair presentation of the prosecution case at trial. As the trial is due to commence in early September 2017, these reasons deal sparsely with the facts. These are briefly referred to only for the purposes of identifying the subject matter under discussion. The following reasons explain why both applications must fail.
The charges
The accused was a Detective assigned to the Major Crime Investigation Branch of the South Australian Police (SAPOL) at all relevant times. The crux of the charges are that he deliberately and systematically passed on to two journalists, sensitive or confidential information acquired by him in the course of performing his duties as a Detective. This information related to seven separate major crime investigations then on foot, during the period of time charged. The prosecution case is essentially circumstantial. It is largely based on intercepted and covertly recorded telephone conversations and SMS messages passing between the accused and the two journalists concerned. It is not proposed by the prosecution to call those journalists in the trial.
The particulars of the charges in each case are that the accused ‘being a public officer improperly used information that he had gained by virtue of his public office with the intention of securing a benefit for himself or for another person’, namely the journalist(s) involved. Elements of the case against the accused include evidence to the effect that he had no lawful authority to disclose any such information, that he did so in breach of general police orders and protocols, and by ignoring several specific warnings of superior officers.
The statutory offence of the abuse of public office
The offence of an abuse of public office is contained within Part 7 Division 4 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and is caste in these terms:
Part 7—Offences of a public nature
Division 4—Offences relating to public officers
251—Abuse of public office
(1)A public officer who improperly—
(a)exercises power or influence that the public officer has by virtue of his or her public office; or
(b)refuses or fails to discharge or perform an official duty or function; or
(c)uses information that the public officer has gained by virtue of his or her public office,
with the intention of—
(d)securing a benefit for himself or herself or for another person; or
(e)causing injury or detriment to another person,
is guilty of an offence.
…
The requirement of ‘acting improperly’ proscribed by s 251(1), is informed by s 238 of the CLCA, in this way:
238—Acting improperly
(1)For the purposes of this Part, a public officer acts improperly, or a person acts improperly in relation to a public officer or public office, if the officer or person knowingly or recklessly acts contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by public officers of the relevant kind, or by others in relation to public officers or public offices of the relevant kind.
(2)A person will not be taken to have acted improperly for the purposes of this Part unless the person's act was such that in the circumstances of the case the imposition of a criminal sanction is warranted.
(3)Without limiting the effect of subsection (2), a person will not be taken to have acted improperly for the purposes of this Part if—
(a)the person acted in the honest and reasonable belief that he or she was lawfully entitled to act in the relevant manner; or
(b)there was lawful authority or a reasonable excuse for the act; or
(c)the act was of a trivial character and caused no significant detriment to the public interest.
The elements of the offence were described by Beazley DCJ in R v Beare,[2] in practically identical terms approved in R v Austin,[3] as follows:
1.   That the accused was, at the time of the first count – a public officer.
2.   That the accused obtained information by the time of the first count which he had obtained by virtue of his public office.
3.   That the accused on the occasion of the first count used the information which he had obtained by virtue of his public office.
4.   That the accused so used that information, which he had obtained by virtue of his public office, intending to secure a benefit for himself or another person from the use of that information.
5.   That when using the information in the manner outlined in element 4 above, the accused, being a public officer, used that information improperly.
[2] [2011] SADC 157, emphasis in original.
[3] [2013] SASCFC 133, [18].
It can be seen that the nub of the offence is obtaining and using information gained in the course of public office with the intention of improperly securing a benefit. The terms of s 138(1) of the CLCA insofar as they expand upon the element 5 in Beare ‘improperly’, focus on the ‘standards of propriety generally and reasonably expected by ordinary decent members of the Community to be observed by public officers’. Secondary aspects of acting improperly are expressed in negative terms in the succeeding sub-sections of s 238 of the CLCA.
These affect the standards of propriety, in that the conduct must be serious enough so as to warrant the imposition of a criminal sanction (ss 2), that the public officer must have acted dishonestly or without lawful excuse, and in a manner that was neither trivial nor caused significant detriment to the public (ss 3). Hence, s 238 does not serve to add additional elements to the offence constituted by s 251 of the CLCA. Rather, it imposes minimum standards of impropriety, in effect by placing a bottom line under the minimal degree of impropriety necessary to constitute the offence of the abuse of a public office.
This construction is consistent with the evident purpose lying behind the introduction of the statutory offence, when both provisions were first enacted.[4] This was to ensure minor improprieties and mere negligence were not escalated into ‘major criminal offences’.[5] At the same time the common law offences of breach of trust and fraud by a public officer were abolished.[6] It is equally a construction best serving to harmonise the goals of penalising serious misconduct in the execution of public duties, but not insignificant or inconsequential improprieties committed in the course of performing those duties: Project Blue Sky Inc v Australian Broadcasting Authority.[7]
[4]    Statutes Amendment and Repeal (Public Offences) Act 1992 No 35 effective from 6 July 1992.
[5]    Legislative Council 31 March 1992, Hansard pp 3671-3672.
[6]    Section (13) of Schedule II of the Statutes Amendment and Repeal (Public Offences) Act.
[7] (1998) 194 CLR 355, [70].
It is perhaps a moot point whether the onus of proof falls on an accused to demonstrate ‘lawful authority or a reasonable excuse’ for the purposes of s 238(3)(b) in light of s 5B of the CLCA, but as that point was not raised during the course of this application it can be put to one side. These reasons proceed on the assumption that should an accused raise a reasonable doubt as to any one of the matters referred to s 238(1), (2) and (3), an acquittal must result.
It can be further seen that the structure of the offence itself under s 251 of the CLCA, is that the elements of the offence are cumulative. In contrast, the base limits of impropriety under s 238(2) and (3) are disjunctive, so that the presence of any one will have the effect of rendering the conduct other than improper. In that regard I respectfully agree with Judge Beazley when he observed in Beare:[8]
… it is for the jury as ordinary decent members of the Community to determine what is ‘proper’ having regard to reasonable contemporary standards.
[8] [2011] SADC 157, [18 5.1]
It follows from the above analysis that the question of proof of the five constituent elements of s 251 is one thing, whereas the question of whether there is serious impropriety of the kind contemplated by s 238(1) of the CLCA, is for the jury to determine, guided by the minimum standards of impropriety set forth by s 283(2) and (3). These are not elements or ‘sub-elements’ of the offence of the abuse of public office as such; rather they are attributes or base levels or standards of impropriety necessary to sustain the charge.
The remedy of stay in the criminal law
It is long accepted that the courts have the power to stay criminal proceedings that are bound to fail, as an aspect of the inherent jurisdiction to prevent an abuse of process: R v Smith,[9] R v McGee.[10] It is on the other hand a power rarely exercised, bearing in mind the heavy onus an applicant bears to demonstrate a stay is necessary in order to prevent an abuse of process: Williams v Spautz,[11] Jago v District Court of New South Wales.[12] Even then the power is usually exercised only in rare or exceptional circumstances: Jago v District Court of NSW.[13]
[9] [1995] 1 VR 10.
[10] (2008) 102 SASR 318.
[11] (1992) 174 CLR 509, 529.
[12] (1989) 168 CLR 23, [31], [34], [60], [76].
[13] (1989) 168 CLR 23, 34, 38, 52.
An aspect of this jurisdiction is the power to stay criminal proceedings foredoomed to fail, as to do otherwise would amount to an abuse of process: Walton v Gardiner,[14] Ridgeway v The Queen,[15] R v Smith.[16] In approaching that question, the procedure is akin to an advance ruling of no case to answer, in that it must be demonstrated the evidence such as it is, is not capable in law of supporting a conviction: Question of Law (No 2).[17] This necessitates that the court takes the evidence of the primary facts ‘considered at its strongest from the point of view of the case for the prosecution’: R v Bilick and Starke.[18] The court should not, and is in no position to form preliminary views as to the weight of the evidence, or of the likelihood of the return of not guilty verdicts: R v Austin,[19] R v R.[20]
[14] (1993) 177 CLR 378, 392-393.
[15] (1995) 184 CLR 19, 41.
[16] [1995] 1 VR 10, [15], [28]-[29], [32].
[17] (1992) 61 SASR 1, 5.
[18] (1984) 36 SASR 321, 337.
[19] (1995) 84 A Crim R 374, 380.
[20] (1989) 18 NSWLR 74, 81-81.
With the above principles in mind, it is now proposed to deal with the several contentions of defence counsel by subject matter.
Defence contentions
No evidence of significant detriment to the public
The defence contends the terms of s 238(3)(c) of the CLCA, require the prosecution to prove the use of the information gained during the course of the investigations, actually caused significant detriment to the public interest. In furtherance of this proposition, it was submitted that the phrase ‘caused no significant detriment to the public interest’, necessitates a ‘qualitative assessment’ of the practical effect or consequence of the conduct in terms of the type of detriment to the public interest, that was more than trivial or negligible. Based on these primary considerations, the submission was that there was no such detriment.
As demonstrated earlier, s 238 of the CLCA does not of itself lay down the elements of the offence of the abuse of public office. The terms of s 238(1)-(3) simply serve to inform the minimum standards of impropriety in the use of information obtained in the course of the public office. The element of the offence in question is an indivisible ‘impropriety’. This is quintessentially a question for the jury to determine, according to ‘the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by’ police officers: s 238(1) CLCA.
In assessing this issue, the entire context of use must be considered, including whether the use of information was serious enough irrespective of the consequences, as was observed in the context of the common law position in AG’s Reference No 3:[21]
[58] It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in R v G [2004] 1 AC 1034, will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.
[59] The consequences of some conduct, such as corrupt conduct, may be obvious; the likely consequences of other conduct of public officers will be less clear but it is impossible to gauge the seriousness of defaulting conduct without considering the circumstances in which the conduct occurs and its likely consequences. The whole should be considered in the context of the nature of the office and, as Sir Anthony Mason NPJ stated in Shum Kwok Sher v HKSAR 5 HKCFAR 381, the responsibilities of the office and office holder.
And as highlighted in R v Chapman:[22]
(T)he motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct’.
[21] [2005] QB 73, [58].
[22] [2015] QB 833, [18].
The public interest in this case encompasses the effective and efficient investigation by SAPOL of serious crime. This is obviously in the mutual public interest. A component of this interest includes the preservation and control of information gathered during an investigation, as well as the protection of privileged police methods and confidential police sources. The loss of the ability to control the release of information into the public arena during the course of investigations of major crimes, is capable of constituting an actual and significant detriment to the public interest. For instance, potential witnesses may be reluctant to disclose information to police in the course of an investigation, confidential sources may become inhibited or less than forthright with police, and the victims of crime and their families may feel aggrieved when uncontrolled personal information is released into the public domain.
Furthermore, the premature release of sensitive material may inhibit the course of an investigation, or serve to frustrate the ‘controlled’ release of information in such a way as SAPOL might determine to best enhance the chances of a successful investigation. Hence it was said in R v Jansen:[23]
[26] The sentencing judge was clearly aware that the applicant’s “criminality” in relation to the offence was not limited to the release of confidential information on three occasions, but extended to the other acts including those involving him creating a false record of his activities to mask him absenting himself from duty. Of the former, his Honour found that whilst the offender was not the instigator, the misconduct was clearly premeditated, involving the offender knowingly “enmeshing himself in organised criminal activity … putting the safety of others at risk” (ROS 16). The sentencing judge said:
Inherent in an offence like this is a breach of trust. He released a relatively large volume of sensitive police intelligence. The risk to public safety was significant. There is evidence that the safety of members of the public as well as [of] one police officer and her family were jeopardised. Activity like this has the potential to compromise police investigations and prosecutions and disclosing police methods to the criminal milieu.
His offending involved more than one act. He had no control over the documents once they were handed over to his co-offender Sheta. They could be copied many times over. The form in which they appeared would give them authenticity. This type of offending is much more serious than a case where somebody provides information from a computer database over the telephone or orally. As the Court understands it, only the material he handed over to his co-offender on 9 March has been recovered by the police.
…
Offences like this have a real potential to undermine public confidence in the police’s ability to maintain confidentiality in relation to information supplied by members of the public. The flow-on of such lack of confidence will be a reduction in the flow of information to the Police Force from the public. In the Court’s view this is a very serious example of an offence of this type.
Although the Offender said he was remorseful, he made concerted efforts to minimise his criminality by claiming he acted under duress. In the circumstances the Court is not persuaded that this is a case where the Offender is genuinely remorseful.
[23] [2013] NSWCCA 301, [26].

Still further, is may not always prove easy for the prosecution to demonstrate to whom the information was disclosed, or further disclosed, and hence to quantify the full extent of the damage done. These are all considerations for the jury to weigh according to the standards of propriety expected.
No proof of the requisite degree of seriousness
The resolution of this issue is obviously closely allied to the question of detriment. The submission here is in essence that whatever the level of proven misconduct may be, it was only ever likely at worst to give rise to disciplinary or administrative sanction within SAPOL. The principle is beyond doubt, as clearly emerges from the judgment in Shum Kwok Sher v Hong Kong Special Administrative Region,[24] in a passage quoted with approval in R v Chapman:[25]
… there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice.
[24] (2002) 5 HKCFAR 381, [56].
[25] [2015] QB 833, [18].
The court in Chapman proceeded to apply this principle to cases of leakages to the media:[26]
Those employed by the state in public office will generally be in breach of the duty owed by them to their employers or commanding officers by providing unauthorised information to the press. However, information is sometimes provided by such persons in breach of that duty where the provider of that information may benefit the public interest rather than harm it. The provision of the information may well in such a case be an abuse of trust by the office holder to his employer or commanding officer, even if the disclosure of the information may be in the public interest. It may therefore result in disciplinary action and dismissal of the officer holder. That is because the abuse of the trust reposed in the office holder by the employer/commanding officer in such a case is viewed through the prism of the relationship between the office holder and his employer or commanding officer. That is not the prism through which a jury should approach the issue of the abuse of the public’s trust in an office holder.
[26] Ibid [33].
It may therefore be accepted as a general proposition that there is misconduct of the kind in question here that could conceivably fall within the province of SAPOL to take disciplinary action. The release of the information in issue was in breach of the 2008 Police Standing Orders and contrary to specific instructions issued by two successive Officers in Charge in 2009 and 2012. The fundamental fact remains however that this question is inexorably tied to the central question whether the officer behaved improperly.
In this way it is open to conclude that the offences were sufficiently serious and therefore not trivial, particularly bearing in mind the accused’s responsibilities as a Detective in the Major Crimes Branch. A further measure of potential seriousness is the accused’s knowledge of the degree of impropriety involved.[27] As seen earlier, this is a jury question, as it is open to a reasonable jury properly directed, to conclude that more than trivial or disciplinary issues are involved in each charge.
[27] DPP’s Reply, para 130.
No evidence of publication
The next contention put forward by Mrs Shaw QC for the accused, was that an essential component of the test in s 238(3)(c) of the CLCA is proof of publication. She submitted this was a pre-condition to an assessment of the nature of the detriment resulting from the misuse of the information.
Translated to the facts of the individual charges, the defence submission proceeded in respect of all counts other than count 2, that there was no evidence of the publication by either journalist of any information conveyed to either by the accused. As to count 2 itself, it was put that the journalist concerned refrained from publication of the information actually conveyed by the accused, and instead published on the basis of information reported that police were investigating a ‘possible murder’ acquired from other sources. As to count 10, the information conveyed by the accused was information said to be obtained from another source, other senior police and subsequently published as an exclusive, shortly before an official police media release.
In respect of counts 1, 3 and 6 it was said that much of that published material was already in the public domain. As to count 4, the conversation in which certain information was conveyed by the accused, took place when the journalist was already aware of it, and in respect of count 5 disclosure came after the suspect was taken into custody and at a time when the investigative proposal referred to, was already rejected by SAPOL. Counts 7-9 were in essence claimed to be known by the journalist(s) from other sources and/or released to the public by SAPOL shortly afterwards.
The precise details of the defence submission are contained in paragraphs 37-73 of the ‘Outline of Argument – Reply’. A synopsis of the prosecution case count by count appears at paras 26-88 of the ‘Prosecution Reply to an Application for a Permanent Stay’, excluding as I understood matters, the uncharged acts referred to therein.
Defence counsel relied heavily in developing this submission on what was written in R v Chapman:[28]
[36] We therefore turn to examine the second way in which the standard of seriousness can be judged by reference to the harm to the public interest. In our view, in the context of provision of information to the media and thus the public, that is the way in which the jury should judge the seriousness of the misconduct in determining whether it amounts to an abuse of the public’s trust in the office holder. The jury must, in our view, judge the misconduct by considering objectively whether the provision of the information by the office holder in deliberate breach of his duty had the effect of harming the public interest. If it did not, then although there may have been a breach or indeed an abuse of trust by the office holder vis-vis his employers or commanding officer, there was no abuse of the public’s trust in the office holder as the misconduct had not had the effect of harming the public interest. No criminal offence would have been committed. In the context of a case involving the media and the ability to report information provided in breach of duty and in breach of trust by a public officer, the harm to the public interest is in our view the major determinant in establishing whether the conduct can amount to an abuse of the public’s trust and thus a criminal offence. For example, the public interest can be sufficiently harmed if either the information disclosed itself damages the public interest (as may be the case in a leak of budget information) or the manner in which the information is provided or obtained damages the public interest (as may be the case if the public office holder is paid to provide the information in breach of duty).
[28] [2015] QB 833, [36].
Whatever the precise factual situation count by count may be, the defence submission reads too much into these observations. Of course publication and the consequences of publication, may be significant factors in reaching the conclusion that the public interest was harmed. However, it is not a precondition for it. The offence of the abuse of public office is constituted and completed by the improper misuse of information by the public officer, of which proof of publication is neither an element nor ‘sub-element’ of the completed offence. I do not apprehend that any different view was taken in R v Beare.[29]
[29] [2011] SADC 157.
The points taken by defence counsel as to the interpretation of the subject telephone calls and their place in the chronology of events, are trial issues. For the reasons given already, this remains a question for the jury to assess. For as Doyle J observed in Question of Law Reserved (No 2 of 1996):[30]
It is clear, I consider, that the generic offence (as I have described it), strikes at the public officer who deliberately acts contrary to the duties of the public office in a manner which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption. It may be that the mere deliberate misuse of information is sufficient to give rise to an offence, but the further allegation of an intent to receive a benefit clearly, in my opinion, brings the matter within the ambit of the common law offence.
[30] (1996) 67 SASR 63, 66.
No evidence of corruption in the sense of no ‘benefit’
As the Court of Appeal observed in the passage quoted above from R v Chapman, very often the requisite benefit will be constituted by payment to provide the information in breach of the requisite public duty. It can be accepted for the present that there is no such evidence here. Here again whilst payment for information is no doubt highly relevant in assessing the extent of the breach of public duty, it is not a necessary prerequisite for proof of securing a benefit. As Campbell J observed in R v Jensen,[31] ‘financial gain is not an element of the offence, even if it may frequently be an incident of it’.
[31] [2013] NSWCCA 301, [11] (Basten JA and Price J agreeing).
Indeed it was accepted in R v Austin,[32] that it is sufficient for this purpose to obtain a ‘non-financial benefit’. The nature and type of benefit at stake is simply an aspect of the measure of impropriety involved, for the jury to weigh.
[32] [2013] SASCFC 133, [19].
There is in any case sufficient evidence to suggest the accused acted to further enhance his relationship and personal friendships with the journalists concerned, or so as to ingratiate himself to them, by providing information he knew to be of newsworthy interest and hence potentially to advance their work as journalists. Correspondingly, the benefits to them included the opportunity to use the information, possibly to gain an advantage over other media outlets or by obtaining a ‘scoop’ or an exclusive report, or to further their careers and to enhance their status or effectiveness in the eyes of their employer and perhaps in the eyes of the public for that matter.
Judged by some of the conversations the accused had with the journalists, there is also some evidence that he might have traded information to gain attention for himself, or was motived by a sense of isolation at work, or by his own dissatisfaction with SAPOL. What weight is to be attached to these kinds of considerations are fundamentally jury questions.
No evidence of loss of control of confidential information
A significant component of the prosecution case is that significant detriment was caused to SAPOL and hence to the public whose interests coincide in this respect. This is articulated as the loss of control over the release of investigative information and the potential to compromise the progress of an investigation because of it. It was submitted by Mr Norman SC for the Director, that the loss of control over a major investigation operates so as to undermine the public’s confidence in the effectiveness and efficiency of SAPOL, and operates so as to deter potential witnesses or informants from coming forward with information or ‘leads’, including confidential, privileged or sensitive information, thus undermining or impeding the course of investigations, or compromising tactical Operational decisions by SAPOL in the investigative process.
It is sufficient for the purpose of this ruling to acknowledge that it is open to a jury to consider that such detriments are real and significant. What weight it will attach to such factors will depend on the evidence to be adduced by the prosecution as to the operational conditions, methods and investigative circumstances that may impinge SAPOL once it loses the capacity to selectively control the release of the kind of information involved.
Conditional Stay
The basis for a conditional stay is grounded upon advanced notice by the prosecution that it does not intend to call in the prosecution case, a witness considered critical by the defence. Here again the principles are not in doubt. Those relating to the imposition of stays discussed earlier, equally apply to this application.
As a general rule, prosecution counsel should refrain from determining whether to call witnesses by reference solely to tactical considerations: Whitehorn v The Queen,[33] Richardson v The Queen.[34] It is therefore a rule of fairness that the prosecution call all witnesses available whose ‘evidence is necessary to unfold the narrative and to give a complete account of the events upon which the prosecution case is based’: Mahmood v Western Australia.[35] This is so whether the witness is named on the rear of the information or not: Whitehorn v The Queen.[36] It is a different question altogether when a prosecutor resolves to call a witness purely for the purpose of making the witness available to the defence for cross-examination: R v Jensen,[37] R v Evans.[38]
[33] (1983) 152 CLR 657, 664-665.
[34] (1974) 131 CLR 116, 119.
[35] (2008) 232 CLR 397, [39].
[36] (1983) 152 CLR 657, 674-675.
[37] [2009] 23 VR 591, [61].
[38] [1964] VR 717, 719.
These principles are qualified by a prosecutorial discretion to decline to call a witness considered to be unreliable: Apostilides v The Queen,[39] Whitehorn v The Queen.[40] All the same the courts retain a measure of judicial control over such highly discretionary decisions, particularly when the failure to call a witness remains unexplained: R v Kneebone.[41] Accordingly when charging a jury, trial judges are entitled to make such comments as are considered appropriate in the circumstances, according to the explanations or lack thereof given by the prosecution for the failure to call the witness: Apostilides v The Queen,[42] R v Jensen.[43] Furthermore, a trial judge may invite the prosecution to call the witness if unsatisfied with the explanation: Whitehorn v The Queen,[44] and in exceptional and rare circumstances, call the witness of his or her own motion: Apostilides v The Queen,[45] Dieham v Director of Public Prosecutions (NAURU).[46]
[39] (1984) 154 CLR 563, 575.
[40] (1983) 152 CLR 657, 674-675.
[41] (1999) 47 NSWLR 450, [57]-[61].
[42] (1984) 154 CLR 563.
[43] [2009] 23 VR 591, [61].
[44] (1983) 152 CLR 657.
[45] (1984) 154 CLR 563.
[46] (2013) 88 ALJR 34, [74].
It is not in the particular circumstances of this case necessary to reach a concluded view as to the merits at present, because the application for conditional stay is premature. First, although the prosecution seem determined not to call the witness for reasons that may be regarded as sound,[47] the question whether unfairness might result is not one to be determined in advance. Rather, potential forensic disadvantage to the defence is best assessed in the actual forensic context arising during the course of the trial and when the decision not to call the witness materialises. It is at this stage, or at least no later than just before the close of the prosecution case, when the bulk of the prosecution evidence will be led. Questions of unfairness or forensic disadvantage are better assessed in a sound and realised evidential setting rather than by prospective assessment.
[47] These are detailed at paras 37, 60-64, 74, 93 and 99, in particular of the DPP’s Response to the Application for a Conditional Stay.
Secondly, an important aspect of the defence submission relies on anticipated forensic disadvantage, in that it predicts material assisting the defence would not otherwise emerge unless the witness gives evidence.[48] The prosecution contends otherwise for reasons it has advanced.[49] The measure of actual forensic disadvantage capable of producing unfairness is dependent almost exclusively on the evidence that ultimately does, and more accurately in this situation, does not emerge during the course of the trial. As things stand at the moment, the suggested disadvantage is purely speculative, not to mention that it would appear to be ‘on the cards’ that the witness would decline to give evidence in the exercise of the privilege against self-incrimination. Even then, it is by no means out of the question if the witness does give evidence, that it may well prove to be adverse to the accused.
[48] These are particularized at paras 12-13 and 24 of the defence ‘Outline of Argument – Conditional Stay.
[49] See paras 105, 112-116 of the DPP’s response.
In these respects then, the application for a conditional stay is wholly premature. It is one properly determined in the actual accrued circumstances and forensic context in which the failure to call the witness finally crystallises in the trial process.
It might be mentioned that on the basis of the material presently provided by the prosecution, that the reasons for failing to call the witness appear at face value to be satisfactory enough, according to the authorities referred to earlier. Nor is it clear that the supposed disadvantage is sufficiently strong enough to warrant a conclusion that unfairness may result, still less will result, assuming in favour of the defence that the material is in any event relevant. In this respect, to postpone the question to later during the prosecution case, has the distinct potential to be advantageous to the defence.
Conclusion and orders
For the above reasons the applications for permanent and conditional stays are each refused. The former because of a misclassification of the core constituent elements of the offence of abusing a public office, and correspondingly the matters reposed by Parliament to be left in the hands of juries, and for prematurity in the case of the conditional stay. Neither are necessary in the interests of justice to prevent an abuse of process.
It might be noted that several subsidiary points were taken by defence counsel, which were essentially trial and/or jury points, and therefore not considered in these reasons.
The trial date set to commence on Monday 4 September is confirmed.