R v N G P - [2022] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v N G P
[2022] SADC 15
Reasons for Decision of her Honour Judge Telfer
16 February 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
The accused was charged with seven separately particularised counts of sexual offending. Prior to trial, a further information was laid charging maintaining an unlawful sexual relationship with a child.
The accused applied for a stay of proceedings on the further information on the basis that a continuation of the prosecution would be oppressive or unfair. The accused relied on a loss of forensic opportunity previously held in relation to the earlier information.
Decision: Application dismissed.
Criminal Law Consolidation Act 1935 (SA) s 50; Director of Public Prosecutions Act 1991 (SA) s 7; Criminal Procedure Act 1921 (SA), referred to.
R v Koolmatrie and others (1989) 52 SASR 482 at 495 per Perry J; R v Gagliardi and Filippidis (1987) 45 SASR 418 at 433; Jago v District Court (NSW) (1989) 168 CLR 23 at 47, 57 per Deane J; R v Milnes and Green (1983) 33 SASR 212 at 226 ; R v Faiello and Newman (2003) 227 LSJS 479; R v B [1999] SASC 403, considered.

R v N G P
[2022] SADC 15

The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The complainant in the matter is his biological daughter. The accused has made an application for a stay of proceedings on the basis that a continuation of the prosecution would be oppressive or unfair.
Background
In order to properly understand the basis for the application it is necessary to recount some of the history of the matter.
The complainant first provided a statement to police recounting her allegations in September of 2018. As a result of that information the accused was interviewed and reported in November 2018. The report resulted in him appearing in court for the first time in March 2019. The matter progressed and the accused was committed for trial to this Court, first appearing for arraignment on 24 January 2020.
The accused was committed for trial on one count of maintaining an unlawful sexual relationship with a child, with specific particularised charges laid as alternatives. It is relevant to note therefore that the accused had a committal on the charge that he now faces for trial.
Notwithstanding the charges committed, the information laid after committal to this Court charged the accused with seven separately particularised counts of sexual offending.
The matter was listed for trial to begin on 14 September 2021. In the week prior to trial, as a result of further information becoming available to the prosecution, a decision was taken to lay a fresh information charging maintaining an unlawful sexual relationship with a child, the primary charge that the accused was originally committed on.
On the day originally listed for the trial to start an application was made for the date to be vacated. Defence counsel indicated that the laying of a fresh information meant that they were not in a position to begin. The prosecution did not oppose the application in all the circumstances and the matter was vacated.
Application
The accused now applies for an order that the information charging him with maintaining an unlawful sexual relationship with a child be permanently stayed as an abuse of process. It was submitted that the prosecution’s conduct effectively deprived him of forensic opportunities that were open to him to defend the charges laid on the previous information. These opportunities related to whether the charged acts could be proved to have happened when alleged and when particularised. It was submitted that the broadening of the particularised date range for the maintaining charge undermined that forensic approach, and to allow the prosecution to continue in those circumstances would be unfair and oppressive.
The accused further contends that the changing of the charge at the late stage obliged him effectively to re-think the entire defence approach, and such an imposition contributed to the oppression occasioned by the prosecution’s conduct.
Relevant Law
The offence of maintaining an unlawful sexual relationship with a child creates an offence which anticipates that the evidence in support of it may not permit the degree of particularity and specificity that is otherwise required to prove unlawful sexual acts charged as separate offences.[1] The elements of this offence are as follows:
1.The accused knowingly maintained a relationship with the complainant;
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant;
3.The complainant was a child during the period of the relationship;
4.The accused was an adult during the period of the relationship.
[1] Criminal Law Consolidation Act (1935) SA s 50(4).
Section 50(4) of the Criminal Law Consolidation Act makes it clear that the prosecution is not obliged to particularise the specific sexual acts that would be necessary where charges are laid relating to specific sexual acts.
Section 50(11) requires the court sentencing for an offence against that provision to fix a penalty which is consistent with the verdict of the trier of fact, but which reflects the general nature of the unlawful sexual acts which have been proved beyond a reasonable doubt, to a maximum penalty of life imprisonment.
Section 7 of the Director of Public Prosecutions Act[2] empowers the Director of Public Prosecutions to lay charges of indictable offences under the law of the state. The manner in which this is done must comply with the Criminal Procedure Act and the rules of the relevant court. Subject to the dictates of fairness, the Director is not prohibited from laying a fresh information in the District Court which changes or amends charges on an information previously laid. The prosecution has a wide discretion to select the charges it lays and pursues. It is not the role of the court to review or supervise the exercise of that discretion.[3]
[2] Director of Public Prosecutions Act1991 s 7.
[3] R v Koolmatrie and others (1989) 52 SASR 482 at 495 per Perry J.
There is nothing unfair or oppressive per se about the prosecution laying a charge of maintaining an unlawful sexual relationship with a child where the material in their possession supports the allegation.
In R v Koolmatrie and others, Perry J observed that:[4]
It has been clear, at least since Barton v The Queen that the prerogative power of the Attorney-General to file an Information….is not examinable by the courts. It follows that the Attorney-General may in the exercise of that power file as many informations as he wishes against an accused person and whether for the same of different offences and in the same or different courts.
It is not the law, however, that a court is bound in all circumstances to embark upon a hearing of every information which the Attorney-General may present.
[4] Ibid
The court has an overarching power to decline to exercise its jurisdiction where to allow proceedings to continue would amount to an abuse of the processes of the court. So while the prosecution may lay what charges it choses, the court is not obliged to entertain them where to do so would amount to an abuse of the court’s processes. A stay in these circumstances has been described as a “remedy against prosecutorial oppression”.[5]
[5] R v Gagliardi and Filippidis (1987) 45 SASR 418 at 433.
The fundamental purpose of a criminal action is to determine whether an accused person has engaged in conduct which amounts to an offence and warrants punishment.[6] It is not an abuse of the processes of the court to lay a criminal charge created by Parliament with the purpose of having the court determine whether an accused person has committed that offence.
[6] Jago v District Court (NSW) (1989) 168 CLR 23 at 47.
An order staying an information is a refusal to exercise the courts jurisdiction because to do so would be to sanction the abuse. It is an extraordinary remedy and should be imposed only in rare and exceptional circumstances. As Cox J observed in R v Milnes and Green (1983) 33 SASR 212:
“I bear in mind however that the power to stay proceedings on the criminal side is an extraordinary one. It is no small thing, in effect, that although there may be evidence that a man committed a serious crime, perhaps very strong evidence, the Crown is not permitted to put it before a jury and get a verdict in the usual way. These reserve powers are of considerable, perhaps increasing, importance in the administration of justice and the courts must not hesitate to use them when the grounds for doing so are clearly made out. But it needs to be a clear case, in my view, not merely an arguable one.”[7]
[7] R v Milnes and Green (1983) 33 SASR 212 at 226.
Often, circumstances which threaten the fairness of a trial can be dealt with by orders which avoid that unfairness.[8] There are examples in the authorities however where courts have stayed proceedings because the prosecution’s actions have resulted in an unfair or oppressive trial. The stay imposed in those circumstances is not a punishment or sanction on the prosecution, but is an acknowledgement that to allow the process to continue would be unfair and oppressive.
[8] Jago v District Court (NSW) (1989) 168 CLR 23 at 57 per Deane J.
Two matters must be considered: whether in all the circumstances, the accused can have a fair trial, and whether the continuation of the proceedings in all the circumstances would be so oppressive to the accused so as to constitute an affront to the public conscience.[9]
[9] R v Gagliardi and Filippidis (1987) 45 SASR 418 at 433.
In Koolmatrie, the appellants were committed for trial on individual charges of assault resulting from a prison riot. New charges were then filed after committal charging various accused jointly with assaults. After a hung jury on those charges, a fresh information charging the common law offence of riot was laid. This resulted in the accused facing a different, and much more serious charge than previously, and one upon which they had not been committed for trial.[10]
[10] R v Koolmatrie et al (1989) 52 SASR 482.
In Faiello, the accused was charged at different stages of the process with possessing ecstasy for sale and fabricating evidence (based on an allegation inconsistent with the charge of possessing ecstasy for sale – relying on the falsity of a sworn statement admitting possession of the ecstasy). The charge ultimately preferred was entirely inconsistent with the charge upon which the accused had been committed.[11]
[11] R v Faiello and Newman (2003) 227 LSJS 479.
In each case, the court concluded that the course of the proceedings had resulted in a prosecution which was unfair and oppressive. In each case the conclusion was reached on the basis of the accumulation of attendant circumstances. Those authorities support the conclusion that there will be circumstances where changes to the charges preferred by the prosecution, although justified by the law, will result in an unfair and oppressive process justifying the imposition of a permanent stay.
Consideration
In this matter, the accused does not seek a stay of all charges against him. He has no objection to the prosecution proceeding on the original information which identified seven separate allegations which were charged as sexual offences. The stay is sought only on the more recent information in time which charges a single count of maintaining an unlawful sexual relationship with a child. The accused submits that the earlier information does not attract the same considerations of unfairness or oppression.
In Koolmatrie, Perry J observed that the court should be more ready to grant a stay which had the effect of confining the prosecution to their original charges than when a stay would be a refusal to exercise the jurisdiction of the court at all.[12]
[12] Ibid at 496.
The information first laid in this Court charged two counts of unlawful sexual intercourse with a person under 12 years of age and 5 counts of indecent assault. The acts were alleged to have occurred over a period between 16 October 1997 (count one) to 16 October 2004 (count seven). The prosecution case statement made it clear that other uncharged acts alleged to have been committed against the same complainant would be relied upon. There is no objection to the prosecution proceeding on the charges laid on this information.
The information to which objection is taken was laid in this court on 14 September 2021. It charges a single count of maintaining an unlawful sexual relationship with a child, alleging a date range which significantly widens the total period over which the conduct is alleged to have taken place. The single charge is alleged to have occurred between 16 October 1997 and 16 October 2008, and contains particulars of 8 types of unlawful sexual acts. Some, but not all, of these acts correspond with the acts previously charged as separate counts. Seven of the eight particulars correspond with particulars of the charge of maintaining an unlawful sexual relationship with a child upon which the accused was committed.
With some alterations, the underpinning facts and circumstances relied upon remain the same. The substance of the factual allegations remain the same. This is not a case like Koolmatrie or Faiello where a significant shift in the approach of the prosecution over an extended period of time resulted in oppression and unfairness.
The accused submitted that he has lost a forensic opportunity to challenge the specific charges on the basis that the charged date range could not be established. It is unnecessary to attempt an analysis as to whether the specific date range alleged would have, in the circumstances, amounted to a material particular and would need to be proved beyond a reasonable doubt. Much depends on the underpinning facts and circumstances.[13]
[13] See, for example, R v B [1999] SASC 403.
There can be no doubt that there is a considerable advantage to an accused in the ability to demonstrate that an act alleged to have occurred in particular circumstances in a particular timeframe simply could not have occurred in the way alleged. This is so whether the dates are found to be material particulars or not.
For the purposes of considering this application therefore I am prepared to assume that there has been a loss of some forensic opportunity. It is impossible to quantify the extent of that loss because so much will depend on the specific facts alleged by the prosecution and the evidence in the hands of the accused.
In submissions, counsel for the accused agreed that there could be no complaint of unfairness had the prosecution chosen to lay a single charge on the first information presented to this court. It was the loss of the previously held advantage that resulted, she said, in unfairness and oppression.
Decision
I have conducted the balancing exercise which is required to weigh the right of the accused to a fair trial free from prosecutorial oppression, and the interests of the prosecution in bringing the accused to trial on serious allegations.
I am not convinced that permitting this matter to proceed on the information of 14 September 2021 will result in a process which is unfair or oppressive. While the accused may well be disappointed that his trial is not as he hoped it would be, the prosecution owes an obligation to the community to lay charges which are appropriate to the seriousness of the allegations, and reflect the evidence they anticipate. That assessment is one which is within the prosecutorial discretion.
If it is necessary to address the unfairness occasioned by the timing of the prosecutions change of tack, then time is the appropriate remedy. The accused has had that time as a result of the September date being vacated.
In all the circumstances I refuse the application for a permanent stay on the Information filed on 14 September 2021.