R v S, MD - [2015] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v S, MD
[2015] SADC 121
Reasons for Ruling of Her Honour Judge Davey
20 August 2015
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
An application by the accused seeking an order staying the trial of an ex-officio Information dated 18 August 2015.
Held: Application refused.
Evidence Act 1929 s34P(4), referred to.
Rona v District Court of South Australia (1995) 63 SASR 223; Jago v The District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1995) 177 CLR 378; R v H, GJ [2014] SASCFC 34; R v B, GN [2014] SASCFC 109, considered.

R v S, MD
[2015] SADC 121

The accused is charged with a number of sexual offences. An ex-officio Information dated 18 August 2015 charges the accused with 11 offences of a sexual nature concerning two complainants, LAS and KLD. The accused seeks an order staying the trial of that ex-officio Information.
Context of the Application
The accused was previously charged on an Information of the Director of Public Prosecutions (DPP) dated 29 September 2014 with four charges in relation to sexual offending upon LAS. The trial of the matter was listed to commence on 17 August 2015. The commencement of the trial was delayed until 19 August 2015 because of the listing arrangements of the court. The DPP laid the ex-officio Information on 18 August 2015. In other words, after the date when the trial was listed to commence, the prosecution changed the nature and extent of the charges and in particular, added a complainant, namely KLD.[1] In addition to filing the ex-officio Information, on 18 August 2015 the DPP filed a Notice of Intention by the Director of Public Prosecutions to Adduce Evidence of Discreditable Conduct (Discreditable Conduct Notice). At the outset of the proceedings on 19 August 2015, counsel for the accused noted that the Discreditable Conduct Notice was not given in accordance with s34P(4) of the Evidence Act 1929 and the relevant rules of court. The DPP sought leave to extend the time required to file the relevant notice.
[1] At the time of the Information of 29 September 2014, the third count referred to KLD in respect of an allegation of an act of gross indecency. That charge was based on an allegation made by LAS and at that stage there was no statement of KLD filed in the court.
When the proceedings commenced, counsel for the accused made it plain that there were a number of objections to the conduct of the proceedings. In addition to his objection to the extension of time to file the Discreditable Conduct Notice he foreshadowed applications to exclude evidence and a possible application to sever (order separate trials) in respect of the charges relating to the two complainants. During submissions I raised whether the accused’s real complaint was that the trial of the ex-officio Information caused unfairness to the accused. In the event, the accused made an oral application for a stay of proceedings in respect of the ex-officio Information of 18 August 2015. No objection was taken to the form of the application and I have heard argument in support of that application.
History of the proceedings
On 16 January 2014 the accused was arrested and charged with a number of sexual offences allegedly committed upon LAS. The matter proceeded in the Adelaide Magistrates Court. The charges were major indictable charges and the records of the court indicate that the DPP had conduct of the committal proceedings.
The accused was committed for trial to this court and an Information dated 29 September 2014 was filed in this court. He was arraigned on 29 September 2014 and pleaded not guilty to the charges. At a directions hearing on 28 October 2014 the matter was listed for trial to commence on 17 August 2015. I note that the transcript of proceedings on 28 October 2014 records counsel for the prosecution telling the court ‘there was a possibility of another complainant coming forward’. Counsel for the accused told the court that he was not sure as to the identity of the further complainant and counsel for the prosecution informed the court that he could not provide details of the possible additional complainant. The accused asked that the matter be listed for trial and it was. No further directions hearing was sought by either party.
The next time the matter came before the court was on 11 August 2015 wherein the defence made application for abridgement of time in respect of subpoenas. On or about 6 July 2015, the prosecution filed in the court a statement of KLD dated 29 October 2014. Attached to that declaration was a lengthy statement from the deponent dated 5 September 2002 wherein a number of detailed, serious allegations of sexual offending were made against the accused. I understand that the defence was also provided with a copy of this statement at about that time (i.e. 6 July 2015). It is not disputed that defence counsel made a number of enquiries thereafter of the DPP as to whether KLD would be called to give evidence, the nature of her evidence and whether there was to be any other charge. I was also told during submissions that the existence of allegations by KLD must have been known to the prosecution (perhaps without the detail) prior to 29 October 2014 as the declaration had been obtained as a result of a request by the DPP.
I also note that in the statement of LAS dated 1 July 2014 (ie, prior to committal) there was a reference, (page 2, penultimate paragraph) that ‘… [KLD] and I just knew what needed to be done’. The DPP were on notice, even as at that time, of the possibility of an allegation by another family member against the accused.
At the directions hearing on 11 August 2015 counsel for the DPP informed the court that there was one complainant in respect of the ‘current’ Information and she said ‘I put my friend on notice that I intend to lay another Information which adds another complainant. I anticipate it being a persistent exploitation charge, which is subject to proofing which is being conducted later this morning’.
On 17 August 2015 (ie, the date of the listed trial) the prosecution and defence came before the court in respect of the return of materials subpoenaed by the defence. The parties sought orders permitting access to the material. Neither the court nor the defence were informed that a new charge was to be laid. The ex-officio Information was not laid until 18 August 2015 and in different terms than those mentioned to the court and the defence on 11 August 2015.
Observations as to the conduct of the prosecution
During submissions I referred to the conduct of the prosecution in respect of this matter as being disgraceful. I accept that the prosecution did not intend to cause unfairness to the defendant, waste significant public resources and cause inconvenience and possibly upset/trauma to others.
The allegations in this matter are of a most serious nature and there are complainants and possibly other witnesses whose lives are affected by the proceedings as well as the accused who has a right to a fair, timely trial. In my view, the failure by the prosecution to consider the issue of the additional complainant, the appropriate charges and make the appropriate decisions in a timely fashion is to be deplored. There are indications that these issues could have been looked at prior to committal. In any event even at the time when the matter was listed for trial the prosecution indicated that they were considering the position with respect to another complainant and yet took no proper steps until the eve of trial.
Regrettably, in my experience, this is not an isolated or rare example of inadequate preparation of a prosecution which causes delay in the trial process, unfairness to an accused and a considerable cost to the community. Having said that, the purpose of the court’s inherent powers to prevent unfairness and/or an abuse of its process is not for the purpose of punishing the prosecution.[2]
[2] See Rona v District Court of South Australia (1995) 63 SASR 223 at 228-230.
Abuse of process
The relevant legal principles in this area are now well known. I refer in particular to Jago v The District Court (NSW);[3] Williams v Spautz[4] and Walton v Gardiner.[5]I also refer to the helpful summary of principle by the Court in R v H, GJ:[6],[7]
[3] (1989) 168 CLR 23.
[4] (1992) 174 CLR 509.
[5] (1995) 177 CLR 378.
[6] [2014] SASCFC 34
[7] See also the discussion of principles in R v B, GN [2014] SASCFC 109.
20.In Jago v District Court (NSW)[8] Mason CJ essayed a statement of the principles governing the exercise of the power to stay criminal proceedings for an abuse of process as follows:[9]
In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed …
The continuation of processes which will culminate in an unfair trial can be seen as a “misuse of the Court process” which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. …
In either event the power is discretionary, to be exercised in a principal 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. …
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial ... At the same time, it should not be overlooked that the community expect trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused … In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly will be very rare …
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” … Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice in disrepute …[10]
21.The grant of a stay of proceedings is, in effect, a refusal by a court to exercise its jurisdiction to quell a controversy brought before it. The exercise of that exceptional power must take into account the availability of an appeal in which the trial procedures and resulting orders can be reviewed and remedied if there has been a miscarriage of justice. It is very important to bear in mind before exercising the discretion to stay criminal proceedings that an accused, if convicted, has a right of appeal in accordance with s 353 of the Act. If the apprehended unfairness on which an application for a stay is founded comes to pass, there will have been a miscarriage of justice within the meaning of that term in s 353(1) of the Act. It will often be the case that it is not possible to confidently say whether the trial of an accused will be unfair until the conclusion of the trial. A stay of proceedings for an abuse of process is necessarily an exceptional order because it entails a conclusion that the resulting trial will be unfair irrespective of how the evidence unfolds, no matter what evidence the trial judge might ultimately exclude, and despite any directions which might be given to the jury.
22.It will have been observed that Mason CJ cast the burden on the applicant as highly as needing to show that the trial would be “necessarily unfair”. There is some analogy in this respect with staying proceedings as an abuse of process on the ground that they are necessarily bound to fail. As a general rule, only when a criminal trial will necessarily result in a miscarriage of justice should the prosecution be stayed as an abuse of process. It does not bring the administration of justice into disrepute for a trial to proceed when there is a reasonable prospect that an accused will not be forensically prejudiced even if, ultimately, it proves not to have been possible to secure the accused a fair trial, because the miscarriage can be corrected on appeal. Indeed it is more likely to bring the administration of justice into disrepute if the criminal courts were to refuse to hear criminal charges on the ground of apprehended unfairness without attempting to redress that unfairness by adopting trial procedures which have good prospects of affording the accused a fair trial.
23.There may, of course, be some cases which call for a stay even when there are reasonable prospects that the trial might yet be fairly conducted. In that context, the vexing of the accused by the trial process is a relevant consideration. However, it is a weighty consideration against granting a stay of proceedings that a public trial of allegations of criminal offending is a fundamental element of the administration of the criminal law. It is as important to the community, as it is to an accused, that allegations are resolved in open court so that the evidence on which an offender is either convicted or acquitted is a matter of public record.
[8] (1989) 168 CLR 23.
[9] Jago v District Court (NSW) (1989) 168 CLR 23 at 30-34.
[10] Jago v District Court (NSW) (1989) 169 CLR 23 at 30-34.
There is some confusion as to the nature of the order sought by the accused. During submissions I was told that the defence did not seek an order for permanent stay of the proceedings and only an order for a stay. I do not quite understand the distinction. However, in my view, the discussions of the principles relevant to an application for a permanent stay are relevant to this application.
There is no doubt that I have a discretion to stay the proceedings which are an abuse of process in the sense that it would be an abuse of the court’s process to permit an unfair trial. The prosecution concedes that (absent a desire by the accused to the contrary) to proceed with the trial at this time would be unfair to the accused. There are many reasons why that is so including an inability of the defendant to adequately prepare for the trial. The prosecution position is that the grant of a stay should only be exercised in exceptional or extreme cases. The prosecution says that the unfairness to the defendant can be met by an adjournment of the trial and an application has been made by the prosecution to adjourn the trial to avoid unfairness to the accused by allowing time for proper preparation for trial.
The position of the accused is that the accused was prepared and ready to meet the trial of the original Information. Whilst he is on bail, the accused says that delay of the trial would cause oppression to him. I note that if the trial does not proceed at this time then a delay of at least six months is likely. There has been no mention of costs expended or lost by the accused and that has not formed any part of the application.
In my view there is undoubted unfairness caused to the accused because the prosecution failed to properly prepare and consider the matter at an earlier time, and the late change in the Information. Unfortunately, the court has limited powers to prevent this type of conduct. The charges are very serious. The community has a right to expect that persons charged with serious criminal offences are brought to trial. I must engage in a balancing process.
In the end I am not persuaded to exercise the power to stay the trial upon the ex-officio Information. The unfairness to the defendant with respect to proper preparation for the trial can be dealt with by way of an adjournment which the prosecution has now sought. I accept that there is unfairness to the defendant in having the trial delayed for a considerable period but I am not persuaded that the unfairness is such that I should make the order sought.
Consideration of cross-admissibility and the allegations by each of the complainants
In support of the prosecution position as to the stay application, counsel for the DPP made submissions as to the cross-admissibility of the evidence of each of the complainants and submitted that the evidence could be properly used for propensity purposes on account of the similarity of accounts. I note the submissions made to me in that regard.
On reflection, I do not consider that this issue is strictly relevant to the issues in the application before me, but in light of the submission and those made by the defence as to that topic, I have carefully considered the statements of each of the complainants and their descriptions of the events. I understand that there may yet be an application to separate the trial of the charges in respect of each of the complainants and if there is, I will hear and determine that issue in due course. At this stage I observe that I do not accept the prosecution’s submissions that the evidence of each of the complainants as to alleged sexual offending upon them (not witnessed by the other) is cross-admissible. I agree with the defence that there are very significant differences in the accounts given by the complainants and in my view, on the submissions I have heard thus far, the evidence would not be admissible pursuant to s34P of the Evidence Act.