R v Rushton - [2004] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RUSHTON
Reasons for Ruling of His Honour Judge Smith
20 August 2004
CRIMINAL LAW
Criminal law procedure - Rule 8 application - no power to lay ex-officio indictment - dismissed.
Criminal Law Consolidation Act 1935 s21, 47A, referred to.
R v Alice Wai Yee Liew Unreported, DCSA, J Vanstone, 2.12.02; Kolalich v Director of Public Prosecutions for the State of New South Wales (1991) 173 CLR 222 ; R v O’Neil (1989) 53 SASR 1, considered.

CRIMINAL LAW
Abuse of process - permanent stay application - only excercised in exceptional cases - fairness to the accused - balancing interests - weighing process of all factors - no unfairness so as to prejudice the trial - application dismissed.
Jago v The District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1991-1992) 174 CLR 509; Maevao v Department of Labour (1980) 1 NZLR 464; Walton v Dardiner (1992-1993) 177 CLR 378; R v Ulman-Naruniec [2003] SASC 437; R v Bunting & Others (No 2) [2003] SASC 250, considered.

R v RUSHTON
[2004] SADC 114
Introduction

The defendant is charged on an ex officio indictment with the following offences:
First Count
Wounding with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Michael John Rushton on the 22^nd day of December 2001 at Holden Hill, unlawfully and maliciously wounded Edward Charles Williams, with intent to do him grievous bodily harm.
Second Count
Threatening a Person with a Firearm. (Section 47A of the Criminal Law Consolidation Act 1935)
Michael John Rushton on the 22^nd day of December 2001 at Holden Hill, without lawful excuse, threatened Edward Charles Williams with a firearm.
In this application the defendant applies to quash the above ex officio indictment; or alternatively to stay the trial on the indictment until there has been a committal hearing.
I turn to the history of this matter.
History
On the 8^th October 2002 in the Holden Hill Magistrates Court the defendant, Michael John Rushton, was charged with attempted murder. He was granted bail. There followed a number of adjournments during which time negotiations took place. Then on the 8^th May 2003 the Director of Public Prosecutions (DPP) filed a fresh Information alleging the offence Wounding with Intent to do Grievous Bodily Harm. There following several more adjournments. Then on the 23^rd June 2003 Mr Grasso SM granted an application by the defence to cross-examine witnesses Williams, Wanganeen and Power. The committal hearing was adjourned to 26^th September 2003 to enable this to be done. Power was the only witness to attend court. He gave evidence. The hearing was adjourned to 28^th October 2003 to set a date for a further hearing. The Magistrate ordered that the witnesses Williams and Wanganeen file affidavits explaining their failure to attend. The affidavits which were sworn on the 27^th October 2003 were duly filed. The excuses for non-attendance were unsatisfactory to say the least, though both witnesses did confirm their continued willingness to give evidence. Clearly exasperated, the Magistrate on the 28^th October 2003 dismissed the Information.
An ex officio Information was filed in this Court on 2 April 2004 for the charges of Wounding with Intent to do Grievous Bodily Harm and Threatening a Person with a Firearm.
This Application
Pursuant to Rule 8 of the District Court Rules 1992 the defendant now applies for the following orders:
“1. That the ex officio indictment filed by The Director of Public Prosecutions herein be quashed;
2. Alternatively, that the trial upon the indictment file herein be stayed until such time as the Accused is committed for trial upon indictment pursuant to the order of a Magistrates’ Court.”
Particulars of the grounds relied upon are as follows:
“A. The Director of Public Prosecutions does not have power to lay an ex officio indictment before the District Court.
B. Alternatively, that the laying of an ex officio indictment before the Court in the circumstances of this case amounts to an abuse of process of the Court.”
Argument by Defence
Ground One: No power to lay ex officio
Counsel for the defendant, Mr Edwardson, contended that the DPP has no power to lay an ex officio indictment. Mr Edwardson quite properly drew my attention to the decision of Her Honour Judge Vanstone (as she then was) in R v Alice Wai Yee Liew (Unreported, DCSA, J Vanstone, 2.12.02). Judge Vanstone said at page 2:
“... the Director does have the power to lay ex officio informations and that he has that power by virtue of s7(1)(a) of the Act [Director of Public Prosecutions Act (1991)]. I see no reason to read down the words of the subparagraph, notwithstanding that ex-officio informations have an historical significance of their own.”
In Kolalich v Director of Public Prosecutions for the State of New South Wales (1991) 173 CLR 222 Mason CJ, Deane, Gaudron and McHugh JJ said at 227:
“The DPP clearly has power to present an ex officio indictment charging a person with an offence notwithstanding that the committing magistrate has declined to make an order committing him for trial on a charge of that offence.”
Further, the exercise of the power to lay an ex officio indictment is not fettered by, for instance, the magistrate’s decision to dismiss the original Information (see R v O’Neil (1989) 53 SASR 1 at 7)
This contention was made in the face of the above wall of authority only out of an abundance of caution.
Ground Two: Abuse of Process
I turn to the application to stay the proceedings as an abuse of process.
Only exercised in exceptional cases
The court has an inherent discretionary power to stay proceedings to avoid an abuse of its processes, but this power will only be exercised in an extreme case or in the most exceptional of circumstances. In Jago v The District Court of New South Wales (1989) 168 CLR 23 Mason CJ explained the use of the discretionary power in the following terms (at 31):
“Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed”.
Also in Jago (at 76) Gaudron J said:
“The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. .... Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson [1987] 20 Leg Rep SL 1, “sparingly, and with the utmost caution”.”
Similar views were expressed in Williams v Spautz (1991-1992) 174 CLR 509 (per Mason CJ, Dawson, Toohey and McHugh JJ at 529):
“It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is “a heavy one”, to use the words of Scarman LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR at p498; [1977] 2 All ER at p582 and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances”.
Fairness to the Accused
Fairness to the accused is one of many factors to be considered, but is not viewed as a sole criterion for a stay proceedings, or even a predominant factor. In Jago Mason CJ (at 30) adopted the explanation for the rationale posited by Richardson J in Maevao v Department of Labour (1980) 1 NZLR 464. He said 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 accused. 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.”
Mason CJ went on to say at 34 in Jago, that
“To justify a permanent stay of proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J.”
Brennan J in Jago further took up this issue by saying at 47-48:
“Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to affair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury to counteract any prejudice which the accused might otherwise suffer.”
Balancing Interests
The next step is to examine and attempt to balance the various competing interests. This balancing exercise has been described many ways but succinctly put in Walton v Gardiner (1992-1993) 177 CLR 378 where it was said at 395-396:
“As was pointed out in Jago, 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 considerations. 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.”
This sentiment was echoed in Williams v Spautz (1991-1992) 174 CLR 509, where the majority, consisting of Mason CJ, Dawson, Toohey and McHugh JJ, said at 519 that:
“If, however, 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. There are some policy considerations which support the view that the court should so satisfy itself. 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 principal 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. In the United States, great weight has been given to these factors.”
In Walton, the justices closely examined the ratio in Williams v Spautz and concluded that although they had only mentioned two considerations for granting a permanent stay, these were not exclusive. Indeed, many factors need to be examined and weighed against the facts.
In R v Ulman-Naruniec [2003] SASC 437 Sulan J said at para 205:
“Although the limits of conduct which may amount to an abuse of process to justify a permanent stay have not been defined, before the power is exercised it is, in my opinion, necessary to establish:
1. That there is prejudice caused by the abuse of process.
2.That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trail.
3.That there is no remedy available which will alleviate the prejudice.
4.That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.”
The above four considerations represent a workable distillation of the law relating to “stay applications” in this country. I turn to its application to this case.
Applying the law to this case
1. That there is prejudice caused by the abuse of process (Ulman- Naruniec [205])
Defence counsel, Mr Edwardson contended that the loss of the right of cross-examination of the two crucial witnesses, Maria Wanganeen and Edward Charles Williams, at the committal proceedings created the prejudice. The right to cross-examine the two witnesses is not lost. The witnesses have indicated their willingness to testify in court. The DPP consents to a Basha inquiry so the prejudice is answered.
2. That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trail (Ulman-Naruniec [205])
Martin J in R v Bunting & Others (No 2) [2003] SASC 250 said at para 47:
“From a practical point of view, the opportunity to submit that the evidence would have been insufficient to put the accused on trial remains open in respect of all charges. In Walton v Gardiner, in a joint judgment Mason CJ, Deane and Dawson JJ observed that regardless of the propriety of the conduct of the person responsible for the institution and maintenance of proceedings in a court, the proceedings “will constitute an abuse of process if they can be clearly seen to be foredoomed to fail” (p 393). In my view, following a Basha inquiry, if I reach the view that the evidence that the Crown intends to lead would not have been sufficient to require the accused to be put on trial or, to put it another way, that the case against the accused on one or more counts is “foredoomed to fail” because it will be incapable of establishing a case to answer, a stay of the trial on such count or counts would inevitably follow because to allow the trial to proceed on such count or counts would be to permit an abuse of the processes of this Court.”
So based on this rationale, the promised Basha inquiry should facilitate the uncovering by the defence of any fatal flaws in the prosecution case and so fuel any application for a stay of the trial at that stage.
3. That there is no remedy available which will alleviate the prejudice
The Basha inquiry will alleviate the contended for prejudice.
4. That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.
For reasons which I have already spelled out this application does not demonstrate an unfairness which is such that the interests of justices demand a stay. To the contrary, the interests of justice, bearing in mind all the identified considerations pertinent to the exercise of this discretion, require that this matter proceed albeit by way of an ex officio indictment.
Towards the end of his argument counsel Mr Edwardson submitted that if the matter is to proceed then three conditions should be met, namely:
·       All the defendant’s costs thrown away by the aborted Magistrates Court attendances and occasioned by the delay should be paid by the prosecution;
·       That a committal hearing should take place in compliance with the orders previously made by the Magistrate;
and
·       That the DPP should provide a further detailed explanation of why the hearing of evidence in the Holden Hill Magistrates Court in compliance with the Magistrate’s orders did not take place.
I agree that the prosecution should pay the costs thrown away and I will order it as a condition to the matter proceeding.
As I have made clear I am not prepared to order a committal hearing. I consider that a Basha inquiry specifically reserving to counsel the right to argue again for a stay and further allowing time after the inquiry, but before the actual trial, for the accused to carry out any investigations which are reasonably indicated, will alleviate any unfairness. Indeed I would suggest that such safeguards are available in any event.
I decline to require any further explanation of the failure of Wanganeen and Williams to attend. This topic would probably be a legitimate area for questioning in the Basha inquiry, but I do not presume to tie another Judge to that view.
Accordingly, my conclusions on the application are as follows:
·       I decline to quash the indictment, as in my view, the DPP has power to lay ex-officio Informations;
·       I decline to order a stay of the trial, and in particular I decline to order a committal hearing;
·       I order the DPP to pay the reasonable costs of the accused of and incidental to the aborted committal hearing and the applications and attendances at court in respect thereof and any reasonable costs occasioned by the delay;
and
·       I decline to order that the DPP provide further explanation of the failure of Wanganeen and Williams to attend at the Holden Hill Magistrates Court for cross-examination.
Accordingly, I dismiss the application and suggest that a date is set as early as possible for a Basha inquiry.