R v Martin (No 4) No. Sccrm-95-206 Judgment No. S161

R v MARTIN (No 4)
[1999] SASC 161

Criminal

Debelle J

This is an application for a permanent stay of an information on the ground that it is an abuse of the process of the court.
The applicant is charged with the murder of his father. Although there have been four trials, it must be noted that the first of those trials was aborted at a very early stage. At the first trial the accused had been put in charge of the jury and the prosecutor had opened. Before any witness was called, a juror informed the court that a prosecution witness was known to him and the jury was discharged. A fresh jury was empanelled that afternoon. The accused has been tried on three subsequent occasions and on each occasion has been found guilty by a jury. He has appealed against each of the verdicts and each of his appeals has succeeded. On each occasion a retrial was ordered. The Director of Public Prosecutions intends to proceed with the fourth trial. That decision has prompted this application for a permanent stay of the information.
In each trial it has not been disputed that somebody had entered the home of the victim, pointed a shotgun at the back of his head, and shot him at close range. The victim was probably asleep when he was shot. The issue at each trial was whether it was the applicant who had shot the victim.
A central feature of the prosecution case against the applicant was that the victim was killed between 4 o’clock and 7 o’clock in the morning of Friday 16 December 1994. The prosecution conceded that, had the murder not occurred between those times, it would have been impossible for the applicant to have committed it. The applicant has an innocent explanation for his whereabouts at all other relevant times.
Another critical feature of the prosecution case was evidence that the applicant had confessed to the crime to a Ms F. The alleged confession was made at a nightclub at which the applicant worked and was made on the evening of Saturday 17 December. At that time the victim had not been discovered. He was discovered at about 10.30am on Sunday 18 December. Ms F had gone to the nightclub with a friend, Ms Bligh. Ms F said that, while she and the applicant were alone together for a short time, the applicant had said that he had killed his father with a shotgun. She said that she did not then know whether to believe the applicant. Ms F and Ms Bligh left the nightclub with a male friend called Schloite. Ms F learned of the discovery of the victim from a television news broadcast on the Sunday. The next day she went to the police. It was the prosecution case that Ms F’s knowledge that a shotgun had been used could only have been gained from the applicant. Although Ms F had seen the television news broadcast on Sunday 18 December, that report had said nothing about a shotgun being used.
Thus, the case against the applicant turned on the evidence of Ms F and the jury’s assessment of its credibility. Each of the appeals have concerned matters relating to her evidence. The first appeal was allowed on the ground that the trial judge had failed adequately to warn the jury against making impermissible use of certain evidence from witnesses who said that Ms F had told them of the alleged confession and had failed to canvass adequately certain matters going to the credibility of the evidence of three principal witnesses for the prosecution. The second appeal concerned the admissibility of evidence led to rebut a suggestion made in cross-examination of Ms F that her evidence had been fabricated. The evidence was held to be inadmissible. The third appeal concerned matters put to the jury by prosecuting counsel in his final address concerning the use to be made of the evidence of Ms F. It was held that the comments made by the prosecuting counsel were the result of an impermissible line of reasoning and should not have been made. It was held that the comments rendered the verdict unsafe. This summary shows that each appeal has been limited to a particular aspect of the conduct of each trial. In none of the appeals was there any attack on the admissibility of the primary evidence of Ms F.
The power to order a permanent stay of criminal proceedings for an abuse of process is well settled: Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Rogers v R (1994) 181 CLR 251. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief it sought in the second proceeding. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392 to 395; Rogers v R (supra) at 255 per Mason CJ. The inherent jurisdiction of a superior court to stay its proceedings for abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness: Walton v Gardiner (supra) at 393.
As the High Court has pointed out, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a balancing of a variety of factors: Rogers (supra) at 395. Those factors include the requirement of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: see Jago (supra) at 30 to 34, 59 to 61, 72, 76 to 78 and Rogers (supra) at 395 at 396. The applicant in this case does not submit that the prosecution is being instituted as an instrument of oppression or for an improper purpose but, instead, that there are reasons why the prosecution would result in an unfair trial. In such cases, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial: Williams v Spautz (supra) at 519 per Mason CJ, Dawson, Toohey and McHugh JJ.
Generally speaking, there is no abuse of process in the bona fide prosecution of a person for a criminal offence: Williams v Spautz (supra) at 535. However, there may be situations where the continued prosecution of an accused person after one or more aborted trials amounts to an unfair harassment of the accused: R v Donald (1983) 34 SASR 10 at 13 per Mitchell ACJ. It must be remembered that the power to order a stay is extraordinary and must be exercised with caution: R v Milnes and Green (1983) 33 SASR 211 at 226, R v Vukov and Romeo (1986) 40 SASR 498; and Jago (supra) at 31, 60 and 76. In those cases and in others it has been said that the power will be exercised in “rare” or in “exceptional” circumstances. It is undesirable to fetter the discretion to order a stay with such epithets but they are useful reminders of the proper restraint which must be exercised: see Kite (1992) 60 A Crim R 226 at 229 to 230. The ultimate touchstone must, of course, be fairness to the accused: Jago (supra) per Mason CJ at 33.
Mr Edwardson, who appeared for the applicant, relied essentially on three grounds which, he said, demonstrated that it would be an abuse of process to require the applicant to undergo a fourth trial. Mr Edwardson repeatedly said that the accused had previously been tried on four occasions and the next trial would be the fifth. Given that the first trial required the jury to be discharged, it is technically correct to say that the proposed trial will be the fifth. Nevertheless, that is to overstate the position since the jury was discharged at a very early stage in the first trial when the trial had barely begun. To all intents and purposes the accused has only been tried on three prior occasions and I will refer to the proposed trial as the fourth trial.
The first ground relied on is that the witness Ms F has given evidence on four occasions, that is to say, at the committal hearing and at each of the three trials. So, it is said, she is by now a well-rehearsed and experienced witness with the issues clearly defined in her mind and the jury will not have the benefit of assessing her credibility in the same way as they would with a witness who had not given the same evidence on prior occasions. Although some weight must be given to the fact that this will be the fifth occasion on which she gives evidence, there are at least two reasons why this factor does not require a stay. First, it is a factor which exists whenever a retrial is ordered: R v Barlow [1996] 2 NZLR 116 at 125. In addition, the argument is two-edged. Should Ms F depart from the evidence given on any one of the four prior occasions, she will no doubt be pressed with that in cross-examination. In that sense, a retrial does not necessarily result in advantages only for the prosecution. This is not a sound basis for ordering a permanent stay of prosecution.
The next ground relied on was that the third trial miscarried because of the conduct of the prosecution. This has the effect, it was said, of denying the applicant the advantages of rulings as to the admissibility of evidence made by the trial judge. Mr Edwardson contended that the question whether the evidence is admissible may be revisited at the trial and, if a contrary ruling is made, the applicant will be at a disadvantage in this trial. There is more than one reason why this ground does not succeed.
The power to stay proceedings is to be used to prevent abuse of process and is not to be used merely as a punishment for a prosecutor’s misconduct: Rona v District Court of SA (1995) 63 SASR 223 at 229 per King CJ. Thus, the issue is not whether the prosecutor was guilty of misconduct at the third trial but whether his conduct will result in unfairness in the fourth trial of such a kind as to require a stay of proceedings. The third appeal was allowed on the ground that the prosecutor had used an inadmissible line of reasoning in his address to the jury for the purpose of seeking to reinforce an argument that Ms F had esoteric knowledge which she could only have gained from the applicant’s confession to her. Although it was asserted in the notice of appeal that the prosecutor’s reasoning was inconsistent with earlier rulings of the trial judge concerning the admissibility of other evidence which the prosecution had applied to lead to show that Ms F had esoteric knowledge, the court did not allow the appeal on that ground. There is nothing in the reasons of the court to suggest that the prosecutor had deliberately engaged in conduct to circumvent the ruling.
There are at least two reasons why it is premature to consider whether an application to lead the evidence would justify a stay of proceedings. At this stage, it is not definitely known whether the prosecution will seek to lead the evidence the subject of the ruling in the third trial. No doubt the decision to do so will depend on how the evidence unfolds at the trial. Next, even if it is assumed that it is likely that the prosecution will attempt to lead the evidence, that is not conclusive. The implications of an application to lead the evidence are matters for consideration if and when the application is made. The manner in which the issues will then be addressed will depend on how the evidence has unfolded and the nature of the issues. Thus, it is premature to consider the issues at this stage.
It is relevant to note also that there is nothing conclusive about a ruling as to the admissibility of evidence where a retrial has been ordered: Rogers (supra) at 278 to 279; Edwards (1997) 94 A.Crim.R. 204. The ruling is conclusive when a verdict is returned and the verdict remains final: Rogers (supra) at 256 to 257, 279. There is, therefore, no inherent unfairness in the prosecution applying again to lead the evidence. Whether, in the result, it is so unfair as to require a permanent stay is a matter to be considered if and when the application to call the evidence is made.
Finally, it cannot be assumed that a ruling will be made that the evidence should be admitted on the retrial. That only serves to reinforce the fact that it is premature to consider that factor at this stage.
The last ground relied upon by Mr Edwardson pointed to the fact that there had been a good deal of publicity in the media about the three trials and the three appeals. Mr Edwardson submitted that, despite appropriate precautions, it was not possible to procure a fair trial. He pointed to the fact that in circumstances such as these a fourth trial appears to be unprecedented in this country, adding that, because of the publicity, there is a real risk of impermissible reasoning by a juror that the accused is guilty because he has been convicted by juries on three earlier occasions. The risk was said to be greater given that there was a report on a television news station that the applicant had succeeded on his last appeal on a technicality. (I note, in passing, that a fourth trial is not entirely unprecedented: see Hawkins (No 3) (1994) 76 A Crim R 47 and Lewis (1998) 98 A Crim R 551).
The capacity of pre-trial media publicity adversely to affect a fair trial does not necessarily lead to the conclusion that the trial should not proceed. Although it is fundamental that an accused person has a fair trial and the importance of a fair trial should not be under-estimated, it is also important that a person charged with a serious criminal offence be tried: R v Glennon (1992) 173 CLR 592 at 598. A number of procedures are utilised by courts to avoid or minimise the risk of unfairness. They include giving express directions to the jury to exclude from their minds anything they may have heard or read outside the courtroom and the machinery of challenge for cause. These principles have been stated in such cases as Murphy v R (1988) 167 CLR 94 at 98 to 99 and at 123 to 124; R v Glennon (1992) 173 CLR 592 at 598 and 614; R v Von Einem (1991) 55 SASR 199; Yuill (1993) 69 A.Crim.R 450 by Kirby ACJ at 452 to 454; and Keough (unreported, Supreme Court of South Australia (Court of Criminal Appeal) Judgment No S5397). The courts recognise that the nature of modern media is such that it is inevitable that there will be publicity of facts and opinions which will sometimes come to the attention of potential jurors. To require, in every case, a stay or adjournment would effectively destroy the jury system which is such a vital feature of the administration of the criminal justice system: Hubbert (1975) 29 CCC (2d) 279 and 291 applied by Kirby ACJ in Yuill at 453. Thus, the capacity to give clear warnings to ignore media publicity is a useful tool. The courts are prepared to assume that jurors, properly instructed, will accept and conform to a direction by the trial judge to decide the case solely on the evidence placed before them in the court: Demirok (1977) 137 CLR 20 at 22; Murphy (supra) at 99; Glennon at 605 and at 615; and Yuill (supra) per Kirby ACJ at 454.
The history of this matter makes it imperative that the jury be given very firm warnings to disregard the result of the three previous trials and the three previous appeals and any media publicity concerning them or other aspects of this crime. Those warnings should be similar to those identified by Duggan J in Von Einem (supra) at 218. That is to say, the jury panel should be addressed before the jury is empanelled and any juror concerned as to his or her ability to reach a verdict unaffected by the publicity would be excused. Warnings and directions to the jury concerning the importance of acting upon the evidence alone would also be given. It may be useful to give other directions at later stages in the trial. That is a matter which can be considered as the trial progresses. These will be likely to cure any potential for prejudice flowing from the pre-trial publicity.
Where it is but the first retrial, one is likely to be more ready to place reliance upon an appropriate direction and the right to challenge for cause. But the question for determination in this case is this, can the accused, if put upon his trial for the fourth time at the intended trial date in July 1999, be afforded his fundamental right to a fair trial by an independent and impartial tribunal? One is naturally more guarded when considering how effective the safeguards of a direction and the right to challenge will be on a fourth trial. However, after weighing all relevant factors, I think the safeguards are sufficient to result in a fair trial. The course of a trial of this kind and the atmosphere it will generate will assist the jury in focussing its attention on the evidence adduced at the trial to the exclusion of what they have read or heard outside the courtroom.
The relatively recent television report that the third appeal succeeded on a technicality does not require a different conclusion. So far as I know, the use of the word “technicality” appeared in one report only. I have watched a video tape of the report. There were several aspects of the report. It was introduced by a heading which announced the result of the appeal and added that the applicant’s family believed that there should be an end to the trial. At one stage a fleeting reference was made to the appeal succeeding on a legal technicality. The report concluded with two interviews, one with the appellant’s solicitor who spoke of the unprecedented fact of a fourth trial and the other with the appellant’s mother who, in effect, said enough was enough. Television reports are more fleeting in effect than a printed report in a newspaper. Nevertheless, it must be acknowledged that a word fleetingly heard may nevertheless leave a lasting impression. The use of the word “technicality” was unfortunate. But it occurred in a context where it was unlikely to leave a lasting impression on the viewer. Furthermore, directions to the jury to disregard the results of the previous trials and the previous appeals and the previous media publicity will provide a sufficient safeguard against any impression which is unfair to the accused being gained from that report.
There is one further reason why I think this fourth trial should not be stayed because of the earlier media publicity. It should not be assumed that the fact that there have been three convictions and those three convictions have been set aside on appeal necessarily operates to the prejudice only of the accused. The jury will not be informed of the reasons why the verdicts were set aside. They will know only of the fact that the appeals were allowed. A moment’s reflection shows that there is also potential for prejudice to the prosecution in publicity to the effect that there have been three convictions but three successful appeals against those convictions.
So far, I have considered separately each of the three grounds relied on by Mr Edwardson. They must also be considered together because the combined force of those arguments might lead to unfairness. But, viewed together, I do not think that a stay should be ordered. Another relevant factor is delay. Although it is now four and a half years since the victim was killed, the span of years is not so great as to cause prejudice to the accused in the preparation of his defence or to give an unfair advantage to the prosecution.
For these reasons, I do not think that there is any reason to apprehend that a fourth trial would result in unfairness to the applicant and thus require a permanent stay. Nor do I think that a fourth trial for this crime would bring the administration of the criminal justice system into disrespect or disrepute. On three occasions a jury has found the applicant guilty of this crime. Although each of those verdicts has been set aside on appeal, the community has a proper interest in the resolution of the question whether the applicant is innocent or guilty of the crime. As Cox J observed in Milnes and Green (supra) at 226, it is no small thing to say, in effect, that, although there may be evidence that a man committed a serious crime, perhaps very strong evidence, the Crown is not to be permitted to put it before a jury and get a verdict in the usual way. The applicant is charged with one of the most serious of crimes. If accepted, the evidence of Ms F constitutes strong evidence against him. Such a situation is to be contrasted with cases where the jury has disagreed on, say, two earlier trials, where it might be said that the interest of fairness requires that there be no further trial. But, even in that instance, it has been held in some instances that a third trial is not so unfair as to require a permanent stay: see, for example, Keyowski (1988) 40 CCC (3d) 481 and c.f. Jack (1996) 2 WWR 1. After examining all of the issues, I am not satisfied that, in the circumstances which have happened, to require the applicant to undergo a fourth trial would violate the fundamental principles of justice or cause such unfairness that a permanent stay should be ordered.

For all of these reasons, the application is dismissed.

[1999] SASC 161

21 April 1999