R v Peter Gavranich [No 1]

[2018] NSWDC 401

District Court

New South Wales

Medium Neutral Citation:	R v Peter Gavranich [No 1] [2018] NSWDC 401
Hearing dates:	3 December 2018
Date of orders:	03 December 2018
Decision date:	03 December 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The application to file the fresh indictment is allowed.
Catchwords:	CRIMINAL PROCEDURE RULING – Fresh indictments – ex officio indictment – ex officio indictment after guilty plea to an original count – implied admissions – accused “snookered” – before an ex officio indictment – procedural fairness – stay considered – leave consideration – prejudice and injustice – leave granted.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Firearms Act 1996
Cases Cited:	Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 Borodin v R [2006] NSWCCA 83 Di Simoni (1981) 147 CLR 383 Houlten v R (2000) 49 NSWLR 383 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1999) 194 CLR 610 Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53 X7 v The Queen [2014] NSWCCA 273
Category:	Procedural and other rulings
Parties:	Peter Gavranich (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (For the offender) Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)   Solicitors: Mr M Ward (For the offender) Ms J Azad (For the Director of Public Prosecutions)
File Number(s):	2017/00394008

Judgment

Introduction

1. On 26 June 2018, an indictment was presented against Peter Gavranich in the Wollongong District Court. Gavranich accepted his guilt in relation to a charge that he threatened to use an offensive weapon with intent to commit the indictable offence of intimidation: s 33B(1)(a) Crimes Act 1900. He said he was not guilty of a further charge of breaking and entering the dwelling house of Courtney Dunk and committing the serious indictable offence of intimidation while armed with a dangerous weapon: s 112(3) Crimes Act 1900. That matter was listed for trial today: 3 December 2018. This morning the Crown sought my leave to present a fresh indictment: s 20(1) Criminal Procedure Act 1986. Notice of the Crown’s intention had been given to the defence in mid-November 2018, although the proposed Indictment was only filed and served last week.

2. That indictment contains five counts; the fifth is in the alternative. Count 1 mirrors the original count one: with a minor and insignificant change in the particulars. Count 2 in the proposed indictment alleges possession of a loaded firearm in a public place offences: s 93G(1)(a)(i) Crimes Act 1900. Count 3 alleges possession of a shortened firearm without being authorised to do so: s 62(1)(b) Firearms Act 1996. Count 4 mirrors the original count 2. Count 5 is charged as an alternative to count 4, as against the possibility that while the break and enter and commit serious offence occurred, doubt might be held as to whether the accused was armed with a dangerous weapon: s 112(2) Crimes Act 1900.

Facts Not in Dispute

3. It is not in dispute that in the early hours of Saturday, 30 December 2017, Peter Gavranich sent a Facebook messenger video to Courtney Dunk. The video shows Gavranich in a car. He is able to be identified by the tattoos on both his forearms. He is holding a bolt action firearm. He says, “you want to fucking push me Courtney? Right let’s go. You and your fucking smart arse dog mates. Fucking go. You want to fucking go cunt, let’s fucking go.”

Fresh Evidence after plea entered

4. After the guilty plea but before trial, a police ballistics expert examined the video. He concluded that the weapon shown in it was, at law, a shortened firearm and, as is obvious from what is depicted, it was both loaded and in the possession of Gavranich.

Defence objection to the ex-officio counts

5. Mr Khan, who appears for the accused, had no objection to the alternative count 5, as it is a statutory alternative, and its inclusion could create no prejudice. It is submitted, however, that significant prejudice and injustice could be caused to the accused if I gave leave to present counts 2 and 3.

6. In a nutshell, Mr Khan submits that these counts came only after the accused had had admitted his guilt in relation to possession of an offensive weapon; that is, after the Crown has received a significant forensic advantage, his admitted possession of the offensive weapon. He said it was not now for the Crown to rely upon that admission and present additional counts relating to the very incident where a guilty plea had been entered before the current Indictment was presented. He says, as a consequence, he has taken from him the real choice given to any accused to put the Crown to proof. He submits it is, in a sense, oppressive to charge by way of ex officio indictment further offences relating to the same factual circumstances that led to the original plea of guilty.

7. Ms Steadman, solicitor, appears for the Director relies upon Borodin v R [2006] NSWCCA 83. There Howie J, for the Court, said:

“Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point … It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.” At [25]

No usual objection

8. This is no usual objection to variation of an indictment. The trial has not started. There is no jury; the Director of Public Prosecutions having consented to the defence application for a judge alone trial. It is not suggested the defence are disadvantaged in meeting the count – to the contrary, it is suggested they can’t meet it, and if it had been preferred earlier, could never have met it.

9. A judge has no power to prevent the Director of Public Prosecutions from presenting an indictment unless an accused could be unfairly prejudiced or some fundamental injustice could result: s 20(1) Criminal Procedure Act 1986. What is argued for here is analogous to a stay of prosecution. The relevant principles were set out Jago v District Court of New South Wales: Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; see also Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 and most recently Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53.

10. Whether or not to grant a stay is a discretionary judgment. Usually, the circumstances need to be extreme for this relief to be given. The right of the applicant to a fair trial must be balanced against the right of the community to expect that people charged with serious offences will be brought to trial. A stay will be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the conduct of the trial to relieve against its unfair consequences: X7 v The Queen [2014] NSWCCA 273.

11. Here, the delay in listing the trial matter and finalising sentencing proceedings has enabled the Director to obtain an expert analysis of the video recording the subject of count 1. The guilty plea to count 1 neither assists nor detracts from that expert evidence. The guilty plea to count 1 does, however, constitute an admission to one important element of each of the two proposed counts, that is; Gavranich’s possession of the offensive weapon. The possession of that weapon is a common element to each of the proposed counts 1, 2 and 3. It is unusual for the Director to, having obtained a plea of guilty to one count, present further counts relating to the same fact situation, but there is no principle of law that prevents them doing so. Nor is there any suggestion that the guilty plea entered to count 1 was conditional on there being no further proceedings in relation to that incident.

12. Here, I can presume that the prosecution wish to reinforce the seriousness of count 1 by enabling a sentencing court to sentence for the gamut of crimes committed and revealed in the video without any straining of principles, which can restrict a court to what is proved or admitted if count 1 stood alone: see Di Simoni (1981) 147 CLR 383.

13. Having admitted possession of the weapon when the original count 1 was presented, Gavranich could hardly contest the fresh counts if I allow them. The purported unfairness is that now, having made the admission about possession, he is effectively “snookered.” He has had taken from him his right and capacity to say to the prosecution - you bring the charge; you prove that charge beyond reasonable doubt.

Consideration

14. A judge cannot dictate to the Director of Public Prosecution what charges are to be preferred or when they are preferred. A judge cannot permanently stay the presentation of counts in an Indictment except in the most extreme of situations: See Strickland v DPP (Cth) [2018] HCA 53.

15. At all stages, the prosecution had available to them the video. It can be linked to the accused. His guilty plea was a timely and considered response to the weight of the evidence in the recording and subsequent admissions made by him. Any guilty plea removes a right to trial, but in the face of overwhelming evidence, that loss of a right is rewarded by utilitarian and other benefits that can be provided on sentence: s 22 Crimes (Sentencing Procedure) Act 1999, now repealed but it applies to these proceedings and Thompson v R; Houlten v R (2000) 49 NSWLR 383.

16. The expert analysis of the offensive weapon in that video is unable to be controverted. Had the proposed ex-officio counts been preferred, initially the result would be the same as it is now. The plea of guilty to count 1 did not end the proceedings. The plea of guilty to count 1 did not dictate whether counts 2 and 3 could or should be pressed against the accused. Offences separate and distinct from that charged as count 1 are now pressed. They should be heard together. There is no utility in starting again in the Local Court. The ex- officio Indictment process is a proper one. So too is the application that these two counts be included in the proposed fresh indictment.

17. Returning to Borodin; Mr Khan’s point is not strictly technical and the inevitability of conviction on the fresh charges will in a sense prejudice the accused but in all the circumstances there is no injustice in allowing the Crown to prosecute charges clearly disclosed on the evidence available to them.

18. It was always open to the prosecution to bring these two charges, and while finality of proceedings is to be encouraged, the sentencing proceedings had not been finalised. In those circumstances, the only potential prejudice to the defence in allowing the fresh indictment to be presented is that he faces punishment for two additional offences, which the prosecution have always been in a position to prove against him.

19. I note that, as counts 1, 2 and 3 all contain common elements, the sentence for each count must recognise that there can be no double punishment for elements that are in common: Pearce v The Queen (1999) 194 CLR 610. The principles of totality will also apply: Mill v The Queen (1988) 166 CLR 59.

Order

20. The application to file the fresh indictment is allowed.

**********

Decision last updated: 17 December 2018