R v Mohi - [2000] SASC 384

R v MOHI
[2000] SASC 384

Criminal Jurisdiction (Reasons for Decision)

1................ MARTIN J........ The applicant, Raymond Mohi, was charged with Assist An Offender contrary to s 241(1) of the Criminal Law Consolidation Act 1935. He was presented for a joint trial with Brett Williams and Lawrence Hersbach who are charged with murder. The applicant was alleged to have assisted Williams and Hersbach after they had committed the murder. He sought a permanent stay of the prosecution. On 8 November 2000 I granted the application and ordered that the trial of the applicant be stayed until further order. I now set out my reasons for that decision.

Prior to the empanelling of the jury, objection was taken to the admissibility of two statements in narrative form that had been given by the applicant to police in February and March 1999. The objection was primarily on the basis that the statements were involuntary. The voir dire examination commenced with the calling of Detective Nigel Laity who gave evidence of the circumstances in which the statements had been obtained. Early in the cross-examination of Detective Laity, in view of some of his answers, I invited counsel for the Director of Public Prosecutions (“the Director”) to consider his position. After a short adjournment, counsel properly advised that he would not seek to lead evidence of the two statements.
Subsequently, counsel for the applicant applied for an order that the trial of the applicant be permanently stayed on the basis that to permit the prosecution to proceed would amount to an abuse of the processes of the court. In order to understand the basis of the application, it is necessary to set out details of the manner in which the investigating police officers dealt with the applicant and the response of the Director to the situation created by the investigating officers.
As a result of information received, police discovered the deceased’s body near Owen on 27 June 1999. It is the Crown case that Williams and Hersbach murdered the deceased during the early hours of Saturday 30 January 1999. Police inquiries commenced in February 1999. In the course of those inquiries information was received that the applicant was present when the deceased was murdered and that he had been involved in washing away the deceased’s blood at the scene of the murder. On 23 February 1999 the investigating officers attended at the applicant’s premises with the intention of speaking with him. At that time, notwithstanding their belief that the applicant had committed an offence during the aftermath of the crime of murder, the investigating officers had decided to treat him as a witness. They did not have any evidence that the applicant had been involved in the attack upon the deceased and they considered that he would be more value as a witness.
At the request of the police, the applicant accompanied them to the Christies Beach Police Station where he was interviewed and a statement in a narrative form was prepared. In response to a suggestion by Detective Laity that the interview could be recorded on audio or video, the applicant said he would not take part if the interview was recorded. The applicant did not wish to be treated as an offender and he felt he would be treated in that manner if the interview was recorded.
During cross-examination, Detective Laity confirmed that he and the other investigating officer made a decision that the applicant was needed as a witness. At that time, Detective Laity believed that he and the other officer were entitled to make that decision. He now understands that, in serious matters such as the investigation he was conducting, the decision whether to charge a person in the position of the applicant or to treat him as a witness is a decision to be made by the Director.
Detective Laity agreed that he and the other investigating officer were endeavouring to convey the impression to the applicant that they did not wish to charge him and wanted him as a witness. They ensured that he was taken to areas of the police station where he would not be seen as an accused person. He was interviewed in a witness room. Importantly, Detective Laity agreed that when the applicant said he did not wish the interview to be recorded, Detective Laity said to him words to the effect “That’s okay, you are a witness, you are not going to get charged.” In addition he agreed that, prior to commencing the interview, in effect he told the applicant that he was a witness and that any statement he gave to the police would not be used in evidence against him.
Against that background the applicant cooperated with the police and provided them with a detailed statement. In that statement the applicant gave details of an attack upon the deceased in which he took no part and which led to the deceased’s death. He admitted assisting in the placing of the deceased in the boot of a vehicle and that he washed blood off both the rear of the vehicle and the driveway of the premises where the crime was committed. The statement, if accurate, provided strong evidence against Williams and Hersbach and amounted to a clear admission of the offence with which the applicant was eventually charged.
The police did not caution the applicant. Detective Laity said that when the applicant admitted that he assisted in placing the body in the boot, the officers simply “continued to let the statement flow”. The applicant subsequently read and signed the statement. He then accompanied the officers to the premises where the crime had been committed and indicated areas of relevance. The officers later conveyed the applicant to his home.
Some days after the first interview with the applicant, the investigating officers discussed whether the applicant should have been given a caution at the point in his statement when he admitted assisting the principal offenders. The issue was also discussed with other members of the investigation team. According to Detective Laity, without any firm decision being made, it was decided that they would continue to treat the applicant as a witness.
Nearly four weeks later on 20 March 1999, police again approached the applicant at his home for the purpose of obtaining a further statement. He was unable to accompany them immediately and they returned later that day. The applicant accompanied the officers to the Christies Beach Police Station where a further interview was conducted and a narrative statement prepared. The officers did not caution the applicant. They continued to treat him as a witness. The applicant read and signed the second statement and the officers conveyed him to his home.
During cross-examination, Detective Laity agreed that when the officers attended at his house in March, in substance the applicant was told that there were matters to be clarified and that he should not worry because the police were not charging him. Detective Laity properly acknowledged that the manner in which they treated the applicant and obtained information from him would have conveyed to the applicant that he was being treated as a witness. He agreed that the applicant believed both that he was a witness and that what he said to the police could not be used against him.
For the purposes of the preliminary hearing, the Director presented the applicant as a witness. As required by s 104 of the Summary Procedure Act 1921, the Director filed in the Magistrates Court the statements of witnesses for the prosecution on which the prosecution intended to rely in its case against Williams and Hersbach. Those statements included the narrative statements of 23 February 1999 and 20 March 1999 signed by the applicant. It is reasonable to assume that the Director intended that the committing Magistrate should rely upon the statements of the applicant and that the Magistrate did so.
Williams and Hersbach were committed for trial on 12 October 1999. An Information was filed by the Director in this Court on 15 November 1999 charging them with Murder. The applicant was included in the list of witnesses on the back of that Information. At a directions hearing on 14 January 2000 before a Supreme Court Judge, the trial was fixed to commence in July 2000. On 18 February 2000, at the request of the Director, a subpoena was issued by the Court requiring the applicant to attend at this Court on 17 July 2000 for the purposes of giving evidence.
In opposing the application for a permanent stay, counsel for the Director tendered a number of affidavits sworn by officers of the Director’s office. It appears that the impression conveyed to the applicant and to the community at large that an unqualified decision had been made in 1999 to call the applicant as a witness at the trial did not reflect the true thinking of officers employed by the Director. One of those officers (“the solicitor”) took control of the matter when the statements of the various witnesses were provided to the Director by the investigating police officers. Those statements included the statements of the applicant dated 23 February and 20 March 1999. The solicitor deposed that until committal he treated the applicant as a Crown witness, but as a witness “who was facing possible charges arising out of the matters raised in his statements”. On 29 April 1999 the solicitor discussed with a senior investigating officer the issue of whether the applicant should be charged. On 10 June 1999 the solicitor advised a legal representative of the applicant’s girlfriend that the applicant was not charged with any offence, but that he could be charged in due course.
The solicitor took the view that a decision should be made by a senior officer employed by the Director, but he made no attempt to refer the matter to a senior officer prior to the preliminary hearing of the charge against Williams and Hersbach. As mentioned, that hearing occurred on 12 October 1999. An application by counsel for Williams and Hersbach that the applicant be called to give evidence at the preliminary hearing was successfully opposed by the solicitor.
On 10 November 1999 the solicitor sent a memorandum concerning the case against Williams and Hersbach to a more senior solicitor, together with a draft of an Information and a list of Crown witnesses. In the memorandum the issue of whether the applicant should be charged or offered immunity was raised. No action was taken. As mentioned, an Information was filed on 15 November 1999 and the applicant was named as a witness. Williams and Hersbach were arraigned on 15 November 1999.
On 27 January 2000 the solicitor sent a further memorandum to the senior solicitor seeking a decision as to whether the applicant should be charged. According to the evidence of Detective Laity, it was in January 2000 that he was asked by someone from the Office of the Director to explain the status of the applicant. Detective Laity said that he provided to the Director a statement concerning his involvement with the applicant and the undertakings that he had given to the applicant. He informed an officer employed by the Director that he and other officers had treated the applicant as a witness and that he, Detective Laity, was under the impression that because the applicant had not been cautioned, the applicant’s statements would not be used against him.
According to the affidavit of the solicitor, soon after his memorandum of 27 January 2000 he was instructed by a senior prosecutor that the applicant should be charged with assisting an offender. On 16 February 2000 the solicitor advised a senior investigating police officer that the applicant should be charged. That advice was repeated on 18 February 2000, the day upon which the subpoena was issued requiring the applicant to give evidence. On 21 February 2000 the solicitor met with investigating officers and the senior prosecutor advised those officers that the applicant should be charged. That advice was confirmed by a letter delivered to the investigating officers that day.
The applicant was arrested and charged on 20 March 2000. The arrest occurred, therefore, twelve months after the second statement had been taken from the applicant and a little over four weeks after the police had been advised that he should be charged.
An affidavit of the senior prosecutor who made the decision to charge the applicant was also tendered. She understood that “no deals had been done” with the applicant. Following her reading of the evidence, she decided that it was appropriate to charge the applicant and another person. During initial submissions in this Court, counsel for the applicant suggested that the decision to charge the applicant was based upon an unfair purpose, namely, to ensure that the applicant was presented with Williams and Hersbach. Counsel suggested this purpose arose because the prosecution had knowledge that Williams and Hersbach may attempt to blame the applicant. The senior prosecutor denied that, in arriving at the decision, she directed her mind to the issue of any possible defence that would be raised by Williams and Hersbach. I unhesitatingly accept her evidence and counsel did not pursue the earlier submission.
Outside of discussions within the Office of the Director and with investigating police, the first “public” hint that the applicant’s status was under review came during a directions hearing in this Court on 18 February 2000. The Director informed this Court that matters relating to the status of the applicant and another witness needed to be “clarified”.
The Crown did not seek to lead the statements of 23 February and 20 March 1999, but intended to rely upon an admission that the applicant was said to have made to an acquaintance soon after the offending. The applicant is alleged to have told the acquaintance that, having seen the attack upon the deceased, he cleaned the driveway and a vehicle. In those circumstances, counsel for the applicant accepted that the only specific prejudice that could arise from the conduct of the police was the possible use by Williams and Hersbach during cross-examination of the applicant of the statements made by the applicant. This could only occur if the applicant gave evidence in a joint trial with Williams and Hersbach. The potential for such prejudice could readily be cured by ordering that the applicant be tried separately from Williams and Hersbach. Subject to that issue, counsel was unable to point to any basis upon which a trial would be unfair. Counsel’s submission centred upon the proposition that the applicant had been misled and that the Director should be bound by the conduct of the police and by the conduct of his officers. She eschewed any suggestion that the prosecution was motivated by an improper purpose.
It is unnecessary to canvass the numerous authorities concerned with the general principle that this Court possesses an inherent power to protect its own processes from abuse. In Jago the District Court of New South Wales (1989) 168 CLR 23 at 30, Mason CJ cited with approval the following passage from the judgment of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482:
“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular applicant. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”
In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ also referred to the passage from the judgment of Richardson J with approval. Their Honours made the following remarks which are of general application:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of 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 (pp 392 and 393).
...
As was pointed out in Jago [See, in particular, (1989) 168 CLR at pp30-34, per Mason CJ; pp59-61, per Deane J: p72, per Toohey J; pp76-78 per Gaudron J.], the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and consideration. Among those factors and considerations are the requirements 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” (pp395 and 396).
Gaudron J pointed out in Jago that the power of the court “to control its own processes and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.” As mentioned, counsel for the applicant did not rely upon the commonly argued ground that the delay in prosecution will result in such unfairness or oppression as to amount to an abuse of the court’s processes. Rather, the applicant relies upon all aspects of the conduct of the police in treating the applicant as a witness and upon the adoption of that position by the Director through his officers.
Counsel for the Director argued that, in the absence of any unfairness attending the trial, there was no basis upon which the Court could find that a continuation of the trial would amount to an abuse of process. I do not agree. As Richardson J pointed out in Moevao, the question of fairness to an accused may be an important consideration, but the focus is on the misuse of the court process by those responsible for law enforcement. In Williams v Spautz (1992) 174 CLR 509, the High Court was concerned with prosecutions instituted for an improper purpose. In a joint judgment Mason CJ, Dawson, Toohey and McHugh JJ observed that where a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose “it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped” (p 519). Their Honours also observed (p 519):
“It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principle proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it.” (my emphasis)
In the majority judgment in Walton to which I have referred, their Honours observed that when the remarks in Williams v Spautz are properly understood in context, there is nothing in those remarks “which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing”. Their Honours added that a careful examination of those remarks “discloses that they lend some support to a denial” of such a proposition (p 395).

The critical question is whether the interests of justice demand that the power to stay the prosecution be exercised. The fairness of a trial is only one factor of many which bear upon those interests. The onus of satisfying the court that an abuse exists lies upon the party alleging it. That onus is a heavy one and the power to grant a permanent stay “is one to be exercised only in most exceptional circumstances” (Williams v Spautz at p 529.)
Counsel for the applicant relied heavily upon the decision of Staughton LJ, with whom Buckley J agreed, in R v Croydon Justices, Ex parte Dean [1993] QBD 769. In many respects, the facts are similar to those relating to the applicant. The appellant was aged 17. During the course of a murder investigation the applicant and others were arrested on suspicion of murder. In two separate interviews the appellant made statements which were untrue, but admitted taking part in the destruction of evidence. His statements amounted to potentially important evidence against one of the other persons arrested for the murder. The appellant was released from arrest and made a witness statement. He said that he was willing to assist the police. The custody record at the police station contained remarks that the appellant had been eliminated as a suspect and had provided a statement to act as a prosecution witness. Notwithstanding that the appellant had admitted the offence with which he was eventually charged, no charge was laid and he was released. Five days later he undertook three further periods of interview, prior to which he was told that he was not under arrest and was free to leave at any time. During the course of the interview he admitted that he had not been entirely truthful with the police. At the conclusion of the interview the police explained to the appellant that he was a prosecution witness and had their protection. During the following day, with the assistance of his solicitor, the appellant prepared a statement which formed the basis of a further witness statement that he made to the police. He also attended at the scene of the crime to assist in the inquiries.
Approximately four weeks after the police had first spoken to the appellant, an officer of the Crown Prosecution Service decided that he should be charged with the same offence to which he had admitted in the first interview. Notwithstanding that decision, a week later the appellant made two further statements. He was not cautioned or offered legal advice, nor was he told that he was to be charged. The officer who arranged for the additional statements to be taken said he was awaiting instructions in writing from the Crown Prosecution Service to charge the appellant and had forgotten that fact when he sent the officers to obtain the additional statements.
The appellant was formally charged a little over five weeks after he had given his first statement in which he admitted the offence. Throughout that period he had been treated as a witness. The Court accepted that the police had told the appellant that he was to be used as a prosecution witness and that he would not be prosecuted for offences associated with the murder.
Against that background Staughton LJ, with whom Buckley J agreed, identified the following principle (p 778):
“In my judgment the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process. Mr Collins [counsel for the prosecution] was eventually disposed to concede as much, provided (i) that the promisor had power to decide, and (ii) that the case was one of bad faith or something akin to that. I do not accept either of those requirements as essential.”
His Lordship concluded (p 779):
“In my judgment, particularly having regard to the fact that the applicant was only 17 at the time, although not, as he has since admitted, a stranger to crime, it was clearly an abuse of process for him to be prosecuted subsequently. The impression created was not dispelled for over five weeks, during which period he gave repeated assistance to the police. This case can, I think, be regarded as quite exceptional. The justices were bound to treat it as one of abuse of process.”
The Court in Croydon placed considerable reliance upon the decision of the Hong Kong Court of Appeal in Chu Piu-wing v Attorney-General [1984] HKLR 411. The Court of Appeal set aside a subpoena to a witness as an abuse of process because officers of the Independent Commission Against Corruption had previously enlisted the witness’s assistance on the basis of an undertaking by the officers that the witness would not be required to give evidence. The Court observed (pp 417 and 418):
“We think that 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 by the bargain.”
The Court also remarked that the public interest is well served by the cooperation of accomplices with investigating authorities and that this aspect of the public interest is likely to be prejudiced if investigating authorities break faith by failing to abide by promises made to such persons.
The bargain in Chu Piu-wing was found in a specific undertaking given by officers of the Independent Commission Against Corruption in return for the witness’s cooperation. Detective Laity denied that any specific undertaking was given to the applicant. Rather than an undertaking, in response to concerns expressed by the applicant, the officers reassured him that he would not be charged and would only be used as a witness. In some circumstances the difference between an “undertaking” and “reassurance” might be significant, but in the practical world of criminal investigation such distinctions are not contemplated by those whose cooperation is enlisted by means of such “reassurances”.
Support for the appellant’s case is also found in two Canadian decisions. In R v Betesh (1975) 30 CCC (2d) 233, contrary to an undertaking by the Federal Attorney-General that postal workers would not be prosecuted for criminal offences committed during a postal strike, a postal worker was charged by the State authorities with assault in connection with an incident that occurred during the strike. In upholding an application for a stay of the prosecution, the judge of the County Court in Ontario expressed the following opinion (p 251):
“The abuse [of the process of the Court] lies in the Crown reneging on an agreement made and presented to a Court. To renege on such an agreement constitutes an abuse of the process of the Court. The Crown is expected to honour the agreements it has made in relation to prosecutions.
To this I would add that the Crown is expected to honour such agreements whether presented to the court or otherwise...”
In R v Crneck, Bradley and Shelley (1980) 116 DLR (3d) 675, Krever J of the Ontario High Court granted a stay in respect of an applicant who had given a statement following an undertaking provided by Crown counsel, who then had the conduct of the case, that the statement would not be used against her and that if the statement was consistent with the known facts, the applicant would not be tried but would be called as a witness. Subsequently a different Crown counsel determined that, contrary to the earlier undertaking, the applicant should be charged.
In granting the stay, Krever J observed that there was “considerable merit” in the proposition that to allow the Crown to renege on an agreement to extend immunity from prosecution to an applicant in return for the cooperation of that person, which cooperation was given, would undermine the administration of justice and bring the entire system of the administration of justice into disrepute. His Honour referred to the principle that agreements made by a representative of the Attorney-General after consideration and consultation with experienced police officers should be carried out. However, his Honour found it was unnecessary to decide whether such principles prevailed because he reached the view that, if the Crown was permitted to withdraw from the agreement, the conduct of the Crown would have caused serious prejudice to the applicant in her defence of the charge. His Honour concluded that the cumulative effect of the prejudice and the principle that the Crown must be expected to carry out its agreement was sufficient to bring the case within the category of “most exceptional circumstances” which justified the granting of the permanent stay.
Counsel for the Director submitted that Croydon does not represent the law in Australia. He suggested that the principles applied in Croydon were different from those applicable in this country. However, an examination of the High Court authorities upon which counsel relied and to which I have referred does not support his contention. In addition, Croydon has been cited in the United Kingdom and in Australia on numerous occasions without disapproval. (Bennett v Horseferry Road Magistrates’ Court [1994] 1 AC 42 at 61 Lord Griffiths; R v Martin [1998] AC 917 at 946 Lord Clyde; R v Liverpool Magistrates’ Court, Ex parte Slade [1998] 1 All ER 60 at 63 Pill LJ; Hayter v L [1998] 1 WLR 854 at 857 Poole J; R v Swingler (1995) 80 A Crim R 471 at 479; Nolan v Curby - unreported NSW Court of Appeal delivered 20 December 1995; Rona v District Court of South Australia [1994] 63 SASR 223 at 231 Olsson J.) Although I doubt that I would have granted a stay in the circumstances that existed in Croydon, in my opinion the principles underlying that decision and the Canadian decisions to which I have referred are applicable to the circumstances of the applicant.
During submissions, counsel for the Director acknowledged that the jurisdiction to grant a permanent stay would be enlivened if the Director had given an undertaking to the applicant in terms similar to those of the assurances given to the applicant by the investigating police officers. He accepted that in such circumstances the Court may not, in the absence of good reason, countenance a retraction by the Director. Counsel drew a distinction, however, between undertakings or assurances given by the Director and those given by investigating police officers who were not authorised to give such undertakings or assurances. He argued that the power of the Director to determine whether charges should be laid should not be fettered by the unauthorised actions of investigating police officers.
In some circumstances, there would be considerable force in the proposition that the Director should not be bound by unauthorised undertakings given by investigating police officers. On the other hand, both the police and the Director are arms of the Executive concerned with the prosecution of offenders for serious crimes. The fact that the police are primarily concerned with the investigative phase and the Director with the next phase of prosecution does not deny the existence of an inextricable link in many respects. For example, the duty of disclosure resting upon the Director extends to the police.
Each case must be determined according to its particular circumstances. In my opinion, the mere fact that a person is initially treated by investigators as a witness and is given assurances to that effect, but is later seen as a suspect and charged after the evidence unfolds during the course of an investigation, will not in the ordinary circumstances give rise to any valid claim that a continuation of the prosecution is an abuse of process. During the investigation of crimes it is not uncommon for the status of persons questioned to change. The giving of assurances may or may not affect the admissibility of statements taken from such persons but, in the absence of other compelling facts, the existence of assurances prior to a change of status will not justify the exceptional course of staying a prosecution. It is important to bear in mind that, generally speaking, facts which justify the rejection of evidence, although often relevant to the issue of abuse of process, will not usually amount to exceptional circumstances requiring a permanent stay of a prosecution. The starting point identified in Williams v Spautz is that the court should exercise its jurisdiction to try persons charged with criminal offences unless the interests of justice demand otherwise. In the absence of any suggestion that a trial will be oppressive or unfair, it will be unusual to find circumstances that combine to demand, in the interests of justice, that the prosecution be stayed.
In my opinion, the case of the applicant was both unusual and exceptional. A number of facts combined to require that, in the interests of justice, the prosecution of the applicant be stayed. The principal facts which, in their cumulative effect, created the demand for the exercise of the discretion were as follows:
•....... On 23 February 1999 investigating police officers treated the applicant as a witness.
•On 23 February 1999 the officers told the applicant that he would not be charged and that any statement he gave to the police would not be used in evidence against him.
•....... It was after the officers gave those assurances that the applicant cooperated and provided a detailed statement.
• The applicant was not cautioned.
•....... The statement given on 23 February 1999 amounted to a clear admission of the offence with which the applicant was charged and presented for trial.
•Some days after 23 February 1999, the investigating police officers considered the status of the applicant and decided to continue to treat him as a witness.
•....... On 20 March 1999, investigating police officers continued to treat the applicant as a witness and obtained a second statement from him.
•On 20 March 1999, in substance the police told the applicant that there were matters to be clarified and that he should not worry because they were not charging him.
•....... As a result of the assurances given by investigating police, the applicant believed that he was a witness and that what he said to the police could not be used against him.
•The Director undertook preparation for the conduct of the preliminary hearing concerning Williams and Hersbach.
•....... For the purposes of the preliminary hearing concerning Williams and Hersbach, the Director presented the applicant as a witness.
•An application by counsel for Williams and Hersbach that the applicant be called at the preliminary hearing was successfully opposed by the Director.
•....... The conduct of the Director, through his officers, amounted to an invitation to the Magistrate to rely upon the statements of the applicant in determining whether the prosecution evidence established a case to answer.
•On the first Information filed in this Court on 15 November 1999 charging Williams and Hersbach with murder, the applicant was listed as a witness.
•....... At a directions hearing on 14 January 2000 before a Supreme Court Judge, the trial was fixed to commence in July 2000.
•On 18 February 2000, at the request of the Director a subpoena was issued requiring the attendance of the applicant at the Supreme Court in July 2000 for the purposes of giving evidence at the trial.
•....... On 20 March 2000 the applicant was charged with the offence to which he had first confessed on 23 February 1999.
•The particulars of the offending conduct alleged against the applicant were the same particulars of offending to which he had confessed in February, 1999.
•....... There is no suggestion that, in the twelve month period between the second statement of 20 March 1999 and the charging of the applicant on 20 March 2000, further evidence had emerged that implicated the applicant in the crime of murder or that suggested he had played a greater role in assisting the offenders than had previously been apparent from the evidence.
•There is no suggestion that the applicant had changed his version or had indicated that he would not give evidence.
In my opinion, it is no answer to the cumulative force of these facts to say that those concerned with the prosecution of Williams and Herbsach within the Office of the Director had not finally decided whether the applicant was to be a witness or an accused. If of any significance, the fact that consideration was first given to this issue in April 1999, but was not resolved in the mind of those making the decision until February 2000, supports the case for the applicant. From the perspective of the accused and the community, the reassurances given by the investigating officers that the applicant would not be charged were confirmed and adopted by the conduct of the Director through his officers. That adoption came in a number of forms and over a lengthy period. No change in circumstances occurred which could amount to good reason for a change in the ostensible position previously taken by the Director.
The community expects that the police will use all legitimate investigatory techniques in the investigation of serious crime. Those techniques include the use of accomplices and lesser offenders as sources of information and as witnesses. The successful prosecution of persons who commit serious crimes is often dependent upon the cooperation of such persons. To that end it is in the interests of justice that such persons be encouraged to cooperate with investigating and prosecuting authorities. 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.
I stress that these remarks are made in the context of the particular circumstances relating to the applicant. I also stress that the mere fact that an investigating officer has treated a person as a witness and given an undertaking that the person would not be prosecuted will not, in ordinary circumstances, in itself justify the exercise of a discretion to stay a prosecution against such a person. For example, if the Director had decided in April 1999 that the applicant should be charged, while the conduct of the police in their dealings with the applicant may have resulted in the exclusion from evidence of the two statements, in my opinion that conduct would not have justified the exceptional course of staying the prosecution. In such circumstances the Director would not, by the conduct of his officers, have ostensibly adopted the assurances given by the investigating officers. I regard the apparent adoption by the Director, over a lengthy period, of the assurances given by investigating police, and the reliance by the Director upon the applicant’s statements before the committing Magistrate in the matter of Williams and Hersbach, as particularly important features. The absence of good reason for a change in position by the Director is also of particular significance.
For these reasons, I ordered a permanent stay of the prosecution of the applicant.