R v S, PD - [2017] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, PD
[2017] SADC 48
Reasons for Ruling of His Honour Judge Beazley
9 May 2017
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application by accused for an order staying proceedings against him, and for other orders - trial on Ex officio information listed for hearing on 19 July 2016 - DPP lays fresh Ex officio information which is provided to the accused on 14 July 2016 - fresh Information contains new count - alleged failure of prosecution to disclose material in a timely fashion - whether irretrievable unfairness to accused - trial date inevitably vacated - whether costs ought be ordered in criminal case in other than exceptional case - Court has power to make a temporary stay order conditional upon the prosecution paying costs to address substantial unfairness.
Held: Save for the vacation of the trial date, the orders sought by the applicant are refused.
District Court Criminal Rules, 2014, (SA) Rule 49; Criminal Law Consolidation Act, 1935, (SA) ss 49(5); 63B(1)(b)(i); 63B(3)(a); 63B(3)(b), referred to.
R v Issakidis [2016] NSWSC 1290 and [2015] NSWSC 834; R v Mosely [1992] 28 NSWLR 735; R v Ulman-Naruniec [2003] SASC 437; Petroulias v R (2007) 176 A Crim R 302; R v Bui [2011] ACTSC 102; R v Selim [2007] NSWSC 154; R v Jacobi [2012] SASCFC 115; Hermanus v R [2015] VSCA 2; R v Liddy [2002] SASC 19; Jago v District Court (NSW) (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; R v Marzilli [2015] SADC 45; R v Fisher [2013] NSWCCA 41; Walton v Gardiner (1995) 177 CLR 378, considered.

R v S, PD
[2017] SADC 48
Introduction

By Ex officio information dated 19 July 2016, the accused (‘the applicant’) is charged with 12 offences, of a sexual nature. Seven of those counts were allegedly committed by him against complainant ‘D’, while the other five counts were allegedly committed by him against complainant ‘E’, between 20 September 2010 and 24 April 2013.
A prior Ex officio information, dated 19 April 2016, had charged the applicant with 11 offences.
The trial of the applicant had been listed for hearing to commence on 19 July 2016. The applicant had elected to be tried by Judge Alone.
It was not a priority listing, and no Judge had been allocated to hear the trial as at the date for trial.
On 12 July 2016, the DPP had provided DVD’s to the applicant’s solicitor containing in excess of 47,000 pages of Facebook material, some of which may have been relevant to the counts on the information. A number of fresh declarations were provided by the DPP in the days prior to the trial date.
On 14 July 2016, the DPP had provided to the applicant’s solicitor the Ex officio information, to be dated 19 July 2016, which contained a new charge against the applicant.
On 18 July 2016 the applicant’s solicitor filed an application seeking various forms of relief including a permanent stay of the proceedings.
The Application
In his application, the applicant sought the following orders:
1.   the prosecution upon the ex officio information for trial on 19 July 2016 containing 12 counts, be stayed;
2.   the prosecution upon the ex officio information for arraignment on 19 April 2016 containing 11 counts, be stayed;
3.   in the alternative to orders 1 and 2 above, that any prosecution of the applicant be stayed unless and until the prosecution pay to the solicitors for the accused, an amount agreed or adjudged by this Honourable Court to represent the costs thrown away in the preparation for the aborted trial of this matter;
4.   in the further alternative to orders 1 and 2, that, to the extent necessary, there be an adjournment of the commencement of the trial;
5.   in the alternative to order 3 above:
Counts 1 and 3 be stayed;
Count 8 be stayed;
6.   the witnesses Ben Marsland, [‘D’] and [‘E’] be called and examined on the voir dire prior to the commencement of the trial;
7.   certain evidence identified in grounds appealed to the application;
8.   the accused be permitted to read and search the disclosed downloads of the Facebook sites of the complainants [‘D’] (two downloads) and [‘E’].
The application was supported by an affidavit of the applicant’s solicitor David Stokes sworn on 18 July 2016.
Mr Stokes deposed ‘that the applicant is a self-funded litigant but one with limited means … the applicant does not have sufficient funds to pay the services of a solicitor, counsel and investigations if the trial is vacated [but] there is insufficient time to prepare the trial set for 19 July 2016’.
The listing Judge briefly heard submissions as to the adjournment of the trial. He had insufficient time to determine that application.
On 20 July 2016, one day after the date appointed for trial, I heard the applicant’s full application.
Following the respective submissions of counsel, I removed the subject proceedings from the list of cases and fixed a fresh date for the trial to commence on 22 May 2017.
The adjournment of the trial was inevitable. I make no criticism of the conduct of either party nor that of their solicitors. Indeed both solicitors had used their best endeavours to maintain the trial date. However, and, with the benefit of hindsight, it ought to have been apparent to them by, at the latest 19 April 2016, that they were not ready for trial, and that it could not proceed on 19 July 2016.
I reserved my decision on the various forms of relief sought by the applicant. I now set out my reasons for the other orders that I propose to make.
In order to appreciate the applicant’s submissions, it is necessary to set out a brief overview of the subject proceedings.
The background facts in chronological order
There was ultimately little dispute as to the facts. I have sourced them from the Court records; the affidavit of the applicant’s solicitor, Mr Stokes, sworn on 18 July 2016; the answering affidavit of the DPP solicitor, Ms Zuckerman, sworn on 19 July 2016, and concessions made by the respective counsel. Those facts are as follows:
·The complainant, ‘D’, approached the police in October 2014, asserting, inter alia, that she had received inappropriate Facebook messages from the applicant.
·The applicant was arrested, on 15 October 2014 on charges relating to complainant ‘D’. His Facebook profile was obtained by the police on that day. On 16 October 2014, Detective Brevet Sergeant Marsland purported to downloaded all of the data allegedly on ‘D’s’ Facebook account.
·In consequence of information provided to them by ‘D, the police interviewed complainant ‘E’, and her draft statement, dated 2 January 2015, was prepared. The police obtained a copy of ‘E’s Facebook account at that time. It appears not in dispute that ‘E’ did not wish to proceed with her complaint, and accordingly, she did not sign her statement at that time. The applicant was not informed of ‘E’’s complaint at that time.
·On 10 April 2015, the applicant’s solicitor sought the Facebook log of chats between ‘D’ and the applicant. On 25 June 2015, the DPP purported to provide a ‘full copy of that log’ and a ‘full print out from Facebook’. It now appears that the respective solicitors were not ad idem as to the scope of the request by the applicant.
·On 30 June 2015, an information was filed in the Magistrates Court charging the applicant with 7 counts relating to the complainant ‘D’.
·On 16 July 2015, a Magistrate found that there was no case to answer in respect of 3 counts of causing or inducing ‘D’ to expose her body. The Magistrate accordingly dismissed those charges.
·By Ex officio information dated 17 August 2015, (‘the first information’), the applicant was charged again with all seven offences of a sexual nature, alleged to have been committed by him against complainant ‘D’, between 26 March 2012 and 25 April 2013. The alleged offences were two counts of procuring a child to engage in sexual activity; two counts of unlawful sexual intercourse by a person in a position of authority; and the three counts of causing or inducing a child to expose her body, which had been dismissed by the Magistrate.
·On 17 September 2015, this Court ordered that the trial of the seven charges on the first information, should commence on 19 July 2016 with an estimate of 5 days. At that time the Court also ordered that the trial proceed by Judge alone, without a jury. On that occasion, counsel for the applicant informed the Court that the applicant had sought from the prosecution, details of telephone calls and SMS messages said to be the basis of some of the counts.
·Counsel for the DPP conceded that ‘there has been some recent requests from my learned friend’s instructor in relation to obtaining access to the applicant’s Facebook account which is something they are not able to do because police, investigating the matter, have changed the passwords on that account. Some of the charges relate to communications via Facebook and there has also been a request for some call charge records and those matters will be attended to’.
·On 29 October 2015, the applicant’s solicitor was invited, by the solicitor for the DPP to make direct contact with the investigating officer who would facilitate access to the applicant’s Facebook account. It is unclear as to whether such contract was made by the applicant’s solicitors.
·On 15 January 2016, the complainant ‘E’ decided to sign her 2 January 2015 statement. That statement formed the basis of 4 counts to be joined to the first information. On 25 January 2016, ‘E’ signed another statement, which statement was not disclosed to the applicant until 14 July 2016.
·On 11 February 2016, the Court was informed by counsel for the DPP that while a large number of materials had been provided by the prosecution to the applicant, the second complainant ‘E’ had now been located. Counsel informed the Court that discussions were taking place to determine whether a fresh Ex officio information would be filed to join the charges in respect of ‘E’ with those in the first information in respect of ‘D’; or, alternatively, whether there should be a full committal hearing in relation to the charges in respect of ‘E’. Both counsel indicated that they wished to keep the trial date of 19 July 2016, but with the caveat that ‘given all that has occurred … in the matter it would be appropriate to see where all those issues are at’.
·On 17 March 2016, the Court sought an intimation from counsel for the DPP as to whether the ‘listing of 19 July 2016, was realistic’ (my emphasis). Counsel replied that she thought it was realistic but conceded that other material may be outstanding once the other charges were joined. She explained that she had not yet discussed with the applicant’s counsel whether he would prefer the ‘matter go through a formal committal’. Counsel for the applicant presciently said that ‘there is no prospect of this man facing a trial in July on similar charges’ (my emphasis). He did however intimate that the applicant may consent to an ‘Ex officio – perhaps unlikely but it may well be – but we can only consider that once we have received the material’.
The Court adjourned the directions hearing to 19 April 2016 saying:
At that time I would expect the Ex officio has been filed with sufficient time, so two to three weeks, for defence to consider their position in respect of that trial date because, [counsel for the applicant] if there is going to be an application to vacate the trial, the sooner the better so someone else can use it’.
·On 5 April 2016, the DPP provided to the applicant, an Ex officio information to be dated 19 April 2016 (‘the second information’), then containing 11 counts. Four were new counts, which had been joined, namely those involving the complainant ‘E’. These were three counts of causing or inducing a child to expose her body, and one count of procuring a child to commit an indecent act, which were alleged to have been committed by the applicant between 10 March 2013 and 16 March 2013.
·On 19 April 2016, the applicant’s solicitor informed the Court that counsel was considering the question of severance of the new charges and sought an adjournment of the directions hearing until 10 May 2016. Counsel for the DPP informed the Court that the estimate of the length of the trial was now 7 days. The Court fixed 2 June 2016 as the date for hearing of any severance application by the applicant.
·On 21 April 2016, the complainant ‘E’ provided the police with a further statement. That statement, unsigned, was provided to the applicant on 22 June 2016.
·On 10 May 2016, the applicant’s solicitor informed the Court that particulars of the new charges had been requested but had not been provided by the DPP. The Court confirmed the trial date of 19 July 2016, and the severance application date of 2 June 2016. The latter date was subsequently abandoned by the applicant.
·On 17 June 2016, counsel for the applicant informed the Court that he still had not had the opportunity to consider the severance question and sought three weeks adjournment to consider it, despite its closeness to trial. He informed the Court that a matter currently before the Court of Criminal Appeal ‘may have some bearing on the question of what needs to be proved … I can say that I won’t be asking for the trial date to be vacated if the CAA hasn’t brought down the decision’.[1] He estimated the trial to take 7 to 10 days.
[1] That matter of R v Richards [2016] SASCFC 79 concerned the construction of s 63B(3)(b) of the Criminal Law Consolidation Act, 1935, (SA). The judgment was ultimately delivered on 28 July 2016.
Counsel for the DPP intimated that a prosecutor had not yet been allocated for the trial, adding that: ‘I can’t predict when a prosecutor would be allocated’. Counsel for the applicant intimated that he would be in a position, by 1 July 2016, to determine whether a severance application would be made, but not in a position to argue it at that time. Counsel for the DPP was reported as informing the Court that ‘I don’t think the trial date was ever fixed’. I infer that she in fact explained that the length of trial had not been fixed.
·On 1 July 2016, counsel for the applicant informed the Court that because of a new declaration by one of the complainants, the applicant was not in a position to yet determine whether to pursue the severance application. Notwithstanding this state of affairs, the Court confirmed the trial date for the charges on the second information, to commence on 19 July 2016. It granted leave to the applicant to apply for severance of the counts, if so advised, by 6 July 2016. The Court noted that with ‘the exception of a subpoena issue the matter is ready to proceed’.
·Some 17 additional witnesses’ statements were provided by the DPP between 30 June 2016 and shortly before the trial date. The DPP accepts that some such declarations were provided by ‘new’ witnesses, however most of the other declarations were prepared to either meet specific requests made by the applicant, or to add to previous declarations made by witnesses.
·On 7 July 2016, Counsel for the DPP informed Counsel for the applicant that the complainants had been communicating by Facebook. On 12 July 2016, the DPP provided, to the applicant’s solicitor, a copy of the chat log of those conversations which were detailed in some 543 pages.
·On 12 July 2016, DVD’s containing the Facebook sites of complainant ‘D’; complainant ‘E’; and the applicant, were provided to the applicant’s solicitors. Mr Stokes deposed that in excess of 47,000 pages of Facebook material had been disclosed in the week prior to the trial date. He conceded that ‘much of the material will not be relevant … but the difficulty comes in disentangling the relevant from the irrelevant’. The DPP asserts that disclosure had been made of this material previously, when it was left to the applicant’s solicitors to access it from the investigating officer. He asserts that the DVD’s were provided by the DPP to enable the applicant to electronically, and therefore more easily search the material.
·On 14 July 2016, the DPP provided to the applicant the Ex officio information to be dated 19 July 2016, (‘the third information’) which included the additional count, referred to hereafter as count 8.
It provided:
Statement of Offence
Communicating with the intention of making a child amenable to sexual activity. (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935 (SA))
Particulars of Offence
Daniel Symons between 20 September 2010 and 5 June 2012 at Adelaide, made communication for prurient purpose with the intention of making ‘E’ a child under the age of 17 years, amenable to sexual activity.
·On 15 and 16 July 2016, the applicant’s solicitors were provided with six declarations from the four new witnesses.
·By letter dated 18 July 2016 counsel for the prosecution provided particulars for each of the counts on the third information. In addition he set out the nature of the evidence to be called by the prosecution in respect of the fresh count 8.
·On 18 July 2016, the applicant filed the aforesaid application pursuant to Rule 49 of the District Court Criminal Rules.
·On 20 July 2016, the applicant was arraigned before me on the third information. He pleaded not guilty to each of the 12 counts. Following the arraignment, Counsel for the DPP intimated that count 12 on that information would be withdrawn. Count 12 had charged an offence of procuring a child to commit an indecent act on 16 March 2013 in respect of complainant ‘E’.
The applicant accordingly faces trial on 11 counts, on the third information, and has elected to be tried by a Judge Alone without a jury.
The Prosecution Case in Overview
Both complainants in this matter were cadets of an ambulance service. The applicant was an officer at that organisation. He held positions with responsibility, inter alia, for event planning. It is the prosecution case that he attended events with cadets who were expected to follow his directions, instructions and counselling.
The prosecution asserts that, accordingly, he was a person in a position of authority, vis a vis, the complainants.
It is alleged that, shortly after meeting the complainants, the applicant initiated contact with them on Facebook, and engaged in extensive communication with them via that medium.
The prosecution alleges that, while the complainant ‘D’ was under the age of 17, the applicant discussed sexual matters with her, and communicated with the intention of procuring her to engage in sexual activity.[2] This forms the basis of count 1 on the information.
[2] Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a).
Count 3 alleges similar offending conduct by the applicant in relation to complainant ‘D’, this time, when she was of or above the age of 17.
The prosecution alleges that, on two occasions, the applicant engaged in unlawful sexual intercourse with complainant ‘D’.[3] This conduct on those two occasions constitutes the respective counts 2 and 7 on the information.
[3] Ibid s 49(5).
The prosecution alleges that the applicant used Facebook to make repeated requests for intimate photographs of the complainants, which requests, on occasions, were complied with. It is alleged that the applicant acted in a manner which caused or induced a child to expose her body.[4] This conduct is the subject of counts 4-6, in respect of complainant ‘D’; and of counts 9-11 in respect of complainant ‘E’ on the information.
[4] Ibid s 63B(1)(b)(i).

The ‘new’ count 8 relates to online communications with complainant ‘E’, when she was under the age of 17. It is alleged by the prosecution that the communications were for the purpose of making her amenable to sexual activity.[5]
[5] Ibid s 63B(3)(b).
In so far as either of the complainants were of or above the age of 17 years at the time of the relevant offences, the prosecution asserts that the accused was ‘a person in a position of authority’ to them respectively.[6] The applicant denies being in a position of authority, and denies, in any event, having committed any of the charged offences.[7]
[6] See Criminal Law Consolidation Act 1935 (SA) ss 49(5), 63B(7).
[7] T. p9.
The submissions of Counsel upon each of the clauses of the application
It is convenient to deal first with the relief sought by the applicant in clauses 6, 7 and 8, respectively, of his application.
·Clause 6 – That the two complainants and the investigating officer be examined on the voir dire prior to the commencement of the trial
The applicant’s principal ground for the above relief was that he had concerns that there had been collusion between the complainants, as allegedly evidenced by their respective communications on chat logs.
In addition he points to the fact that the charges with respect to complainant ‘E’ were joined after the committal; and after an apparent change of mind by her.
Discussion
In R v Bunting & Others (No2)[8] Martin J explained that one of the benefits of a Basha inquiry is to provide a remedy for the loss of an opportunity to cross-examine witnesses at a preliminary examination.
[8] (2003) SASC 250 at 44.
In R v Novakovich,[9] Sulan J considered an application to cross-examine witnesses in a murder case prior to the commencement of the trial. At issue was whether a witness stood to obtain reward monies, and, indeed, whether he was an accomplice to the murder.
[9] (2014) SASC 179.
His Honour noted that the trial was to be heard by Judge alone. He distinguished the dicta of Martin J in Bunting’s case; and referred to the dicta in R v Kennedy (1997) 94 A Crim R 341 at [352]; and R v Goldsmith (1992) 59 SASR 404 at 410.
He noted that the utility of a Basha inquiry is somewhat reduced by the fact of a trial by Judge alone. He said:
It follows, that if inadmissible evidence is led, the trial judge can rule on it … it is much more easily dealt with in a trial by judge alone … the issue of a mistrial due to inadmissible evidence being led at the trial is not present in a trial without a jury. The fact that defence counsel may wish to cross-examine upon topics which are relevant to the credibility and reliability of witnesses is not a sufficient reason to order a Basha inquiry.
This dicta is, with respect, entirely consistent with that of the Court of Criminal Appeal in R v Abrahamson.[10]
[10] (1994) 63 SASR 139 at [19].
King CJ noted, in the latter case, that a trial by Judge alone allows for flexibility, not otherwise available in a jury trial, to adjourn and enable other enquiries to be made. It is of course vital to provide a remedy to the applicant because of the late joinder of charges involving complainant ‘E’. However the applicant’s remedy can be adequately accommodated at trial in this case.
While I accept that the applicant’s submissions would be highly persuasive in the case of a jury trial, I do not accept that it should not be dealt with by the trial judge, who will hear the charges without a jury. I decline this application by the applicant, in Clause 6, accordingly.
·Clause 7 – the exclusion of certain evidence
The applicant sought an order for the exclusion of:
·The downloads of the Facebook sites of the two complainants, respectively, on the grounds of a lack of provenance.
·The downloads of the Facebook site of the applicant himself on the grounds of a lack of provenance, and, in addition, that the material was illegally obtained by the police.
·Other unspecified material until the DPP details the basis for tender.
·A large number of specified paragraphs of various declarations of ‘E’; ‘D’; Catherine Fletcher; Georgina Green; Lucy Holman; Ben Marsland; Jake O’Callaghan; Miriam Russell; and Kerry Whitehand.
·The applicant purported to reserve his position on five of the declarations.
·The grounds for exclusion generally relate to evidence of bad character, hearsay, and/or its prejudicial effect outweighing its probative value.
Discussion
In R v Abrahamson, supra, at [19], King CJ said:
The principle that a judge should exclude evidence, the prejudicial effect of which will outweigh its probative force can have little part to play in a trial by Judge Alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force … by contrast the trial judge is quite able to discard any of the prejudicial effect of evidence of this kind.
It was conceded by the applicant that it was more appropriate to leave this issue to the trial judge for determination.[11] That is the proper course.
[11] See T. pgs 25 and 55 on 20/7/16.
The parties may wish to reflect however upon whether such evidence ought be received, de bene esse, and ruled on subsequently by the trial judge, rather than its admissibility be argued at the commencement of the trial.
·Clause 8 – That the applicant, personally, be permitted to read and search the downloads of the respective complainants’ Facebook sites
As I understand the situation, the relevant chat logs derived from the respective Facebook profiles had been appropriately disclosed to the applicant’s solicitors as forming part of the prosecution brief.
On 12 July 2016, DVDs purporting to contain the entire downloads of the Facebook profiles were provided to defence. It is these items that contain the estimated 47,000 pages of material to which I have referred.
The DPP asserts that it was provided in electronic form to assist the applicant’s solicitors to more easily search the data. Both sides accept that the vast majority of the material will be of no relevance to the trial.
The prosecution has explained that the way Facebook stores its data is in a single data file for each profile. So, rather than, for example, a separate item being created for each chat log, all the profile data is saved together. Accordingly, the DVDs of the entire profile contain everything that the respective complainants have transmitted and received on that medium.[12]
[12] T. p30.
Counsel for the prosecution submitted that the entire profiles have always been available to the applicant’s solicitors. However, before being provided in electronic form on 12 July 2016, it was only available upon arrangement with the Investigating Officer. Clearly, this was not convenient to those solicitors particularly when access was only provided at the offices of the police.
This is why a decision was made to provide the applicant’s solicitors with the entire profiles in an electronic form.
In order to provide that material, a condition was imposed that access would be restricted to counsel and solicitor for the applicant, as well as a legally qualified law clerk at the solicitor’s office, and a private investigator. This was made a condition because of the prosecution need to protect the privacy of the complainants. The complainants had given access to their Facebook profiles to the police.
The applicant was, accordingly, prohibited from directly accessing the material. His counsel submitted that such a condition to the release of the material is oppressive to this applicant because he is personally funding his defence. He would therefore be obliged to pay others to search this extensive material. It was submitted that he is best placed to search the material, and accordingly, he would be able to find relevant material more quickly, and at no additional cost. The question of private funding as opposed to legal aid was considered in a different context in R v Fisher [2003] 56 NSWLR 625 at [47]:
The applicant has (or his parents have) incurred very substantial expense in privately funding his legal representation. While the availability of legal aid is a relevant consideration, it does not undo the unfairness that had accrued by reason of the discharge of the jury at a very late stage in the trial. I accept that an accused person is not necessarily entitled to counsel of his or her choice, particularly when legal representation is funded by legal aid. But here the applicant had made a considered choice to be represented privately and he is now deprived of that opportunity by reason of error on the part of the Crown. In my opinion, in these unusual circumstances, fairness demands that he retain the opportunity of having the representation of his choice. (emphasis added)
The prosecution’s basis for releasing the material upon such a condition stems from all the material being stored as a single file. Accordingly, the downloads contain an enormous amount of obviously private and personal material pertaining to the complainants’ lives. It is not in dispute that most of it has little or no relevance to the criminal trial.[13]
[13] T. p32, T. p43.
The question of privacy is however a most significant issue, and itself goes to the integrity of the judicial process.
The applicant submitted that the conduct of the complainants, in discussing their evidence, should disentitle them to any right to privacy regarding this material.
I accept that a court ought to adopt all reasonable and practical measures to assist the parties in their preparations for trial. I do not, for one moment, ignore or discount the financial impact upon the applicant. He has chosen to be self‑represented rather than seek legal aid. Just as that proper decision by him ought not lead to him being treated adversely, nor must it lead to a greater cost, namely the loss of privacy. The prosecution has, in this case, provided the material in electronic form to assist the applicant’s advisors, and thereby to reduce the cost in searching the material.
In the circumstances I am not persuaded by the applicant that I should order the prosecution to allow him to view and search the material. In my view, the arrangement which was made to permit the applicant’s representatives to access and search the material outside the confines of a SAPOL office is a significant and reasonable concession.
Whilst I appreciate there are costs involved in analysing such voluminous information, it is not such an impost as to cause the Court to order what would be a significant incursion into the privacy of the complainants. Extensive costs are unfortunately an incident of contested trials, and the facts of this matter are not such that I should make an order otherwise than by consent of the parties.
I accordingly refuse the relief sought by the applicant in Clause 8.
I turn now to what was the principal form of relief sought by the applicant namely the stay of proceedings in clauses 1, 2, 3 and 5 of the application.
Applications for a stay of proceedings
The remedies sought by the applicant relate to a permanent stay of proceedings in clauses 1 and 2 thereof; alternatively a permanent stay of specific charges in clause 5 thereof; and, again, in the alternative, a conditional stay in clause 3 thereof.
·Clauses 1 and 2 - Permanent stay of proceedings
The applicant seeks such an order in respect of the third information (clause 1), and the second information (clause 2).
The relevant legal principles are well established. A criminal court has an inherent jurisdiction to prevent an abuse of its processes.
One such remedy available to the Court is the power to grant a permanent stay of the proceedings.
In Jago v District Court of NSW (1969) 168 CLR 23, Deane J, said at 58:
The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending upon the particular facts, provide examples. Where such circumstances exist the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed … an abuse of process, however, does not necessarily lead to a stay; there may be other ways of remedying the abuse.
In Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 the High Court said:
Abuse of process cannot be restricted to defined and closed categories because notions of justice and injustice as well as other considerations that bear on public confidence in the administration of justice must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of abuse of process is at large or indeed without meaning. As already indicated it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.
It is not possible to precisely delineate the categories of cases in which the power to stay proceedings for an ‘abuse of process’ might reasonably be enlivened.
In determining whether the power ought to be exercised, the court must first consider whether any unfairness, prejudice, or injustice has been established which might enliven the discretion.
It is however plain that a permanent stay of proceedings is an extreme step and will only be ordered in such cases where there is a fundamental defect of such a nature that nothing that a trial judge can do can relieve against its unfair consequences. R v Glennon (1992) 173 CLR 592 at 599.
There have been a large number of applications for a permanent stay in criminal proceedings recently in South Australian Courts. Each case depends on its own facts. Thus while a permanent stay was granted in a case where the DPP had threatened a material witness for the defence,[14] such a stay was not granted in a case where a lesser remedy of costs was adequate.[15]
[14] R v Faiello [2015] SADC 48.
[15] R v Ulman-Naruniec [2003] SASC 437; and [2002] SADC 118.
In Sedmak v Police [2008] SASC 307 Doyle CJ said:
A court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which is commonly used. An important witness might die, or fall ill, or be unavailable when a case comes to trial. One party may have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court…. that is why I emphasised the power to stay proceedings is not to be approached on the basis that the court will stay proceedings, simply because, in a general sense, it can be said that in some respect the proceedings will be unfair from the defendants point of view.
In R v Jacobi [2012] SASCFC 115, a matter which involved the ill-health of the accused, coupled with a long delay which had occurred since the alleged offences, the Court of Criminal Appeal said at [117]-[121]:
Public interest and the balancing exercise
In considering whether or not to grant a permanent stay of criminal proceedings the court must undertake a weighing process. I return to the guiding proposition set out in the joint judgment in Walton v Gardiner.⁸⁹
[T]he 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 balancing exercise has been described in other terms by the Court of Criminal Appeal in this state.⁹⁰
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
The “balancing exercise” referred to in the authorities, ordinarily, will have work to do. The nature and extent of any perceived unfairness must be weighed against the public interest in an effort to determine whether or not a continuation of the prosecution, as Bleby J has put it, “will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice”.
The public interest in the disposition of charges of serious criminal offences involving alleged sexual abuse is manifest. There also is a public interest in complainants, concerning such matters, having the opportunity to present their allegations in court so as to seek public vindication. As a matter of justice, it is important that accusers have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in an open court. In addition, although I have no evidence and I am in no position to make any findings in this next respect, where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the complainants concerned which, of itself, can be in the public interest. The fact that these complainants have not yet had their day in court before a judge and jury or a judge sitting alone is a relevant consideration when determining whether or not to grant a stay.
…
In R v Polyukhovich⁹¹ Cox J observed that “a fair trial is not the same as a perfect trial”. The fact that unfairness, even irreparable unfairness, and whether or not it derives from delay, necessarily will attend the trial of an accused will not of itself lead to a stay. In order to grant a stay, the court must be satisfied that there is an unacceptable risk to a fair trial. The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of an assessment of the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest, in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice⁹² will not be constant across all criminal proceedings.
The onus of demonstrating the existence of facts which would justify the granting of a stay is cast upon the applicant. It is also, plainly, a heavy onus.[16]
[16] Williams v Spautz (1992) 174 CLR 509, at 529.
Factors Relied Upon by the Applicant
Counsel for the applicant, Mr Abbott SC, submitted that both informations before the court should be stayed on the basis of ‘irretrievable unfairness’.[17] In respect of the third information he pointed to the fact that it was only provided to the applicant’s solicitors two working days before the trial date. The difference between it and the second information was the inclusion of the new count 8. In respect of both informations, he identified the following factors in combination which ought lead to a permanent stay:
·The recent provision of some 17 further declarations, including some from new witnesses, which the applicant suggests amounts to a “re-investigation” of the charges;
·The general, and unexplained, delay in the prosecution disclosing material to defence – for instance the statement of ‘E’ dated 25 January 2016, which was not provided for some six months, until 14 July 2016;
·The disclosure of the data from the various Facebook sites had been inadequate, with the defence only recently having been given access to the complete profiles, which totals an estimated 47,000 pages of material. He also repeated the fact that the applicant personally would not access the material;
·The apparent collusion between the two complainants, said to have been revealed by the 543 page chat log disclosed in early July 2016;
·The addition of a completely new charge, count 8 in the third information, only two days out from trial, which is said to have, in the circumstances, overloaded the information.
·The expense borne by the applicant as a self-funded accused.
[17] T. p7.
Discussion

There is with respect, nothing exceptional about any of those matters which would warrant a permanent stay of proceedings.
While I appreciate that it is the combination of factors which must be considered rather than the individual points, they confuse the difference between a ‘fair trial’ and the ‘perfect trial’ identified in R v Jacobi, supra.
The factors submitted by the applicant are directed to the trial otherwise proceeding on 19 July 2016.
As I have noted, it ought to have been plain to both parties as early as April 2016 that the proceedings were not in a position to be determined at a trial commencing on 19 July 2016.
The parties were not ad idem as to the production of material by the prosecution. The applicant had not, and still had not decided as at the date of trial, whether it would seek severance of the counts on the third information. The applicant had been allocated a specific date for that application but had abandoned it. While the addition of count 8 on the information so late in the piece was the fault of the prosecution, there were a number of reasons why the trial had been adjourned. Once the trial date of 19 July 2016 was vacated, the above factors raised by the applicant in favour of a permanent stay cease to have any force save for the question of costs. Mr Abbot submitted:[18]
…were he [the applicant] a multimillionaire, the obvious answer would be to adjourn the trial, to vacate it and put it off so the 47,000 pages of Facebook chat logs can be examined properly. But he has financial constraints… Because of his financial problems he really can’t…adjourn. And for the sake of a proper presentation of his case he really can’t…fight on so he is put in an impossible situation. It is these sorts of impossible situations that the court’s inherent jurisdiction to stay cases can be exercised. We submit that this should result in a stay of the prosecution. The alternative that we put is that it can be excused to a certain extent by a stay in the nature of the one granted in Ulman-Naruniec…
[18] T. p20.17 – T. p21.1.
It was also submitted that, given the nature of the charges, and the bail conditions typically imposed when one is subject to such charges, the applicant cannot work in his usual sphere of employment, as a nurse. This, quite understandably, compounds the financial difficulties he is said to be faced with.
I am sympathetic to the position which now confronts the applicant, and I am also conscious of the fact that the adjournment that was ultimately granted exposes the applicant to a delay of some 10 months. Unfortunately, that is not unusual or exceptional in this court, and the bail conditions to which he will be subject are common for such charges. There is absolutely no suggestion that the delay was deliberately caused by the prosecution in order to gain some advantage, of the kind referred to by Toohey J in Jago.[19] Indeed, the applicant essentially conceded as much.[20]
[19] Jago v District Court of NSW (1989) 168 CLR 23, at 72.
[20] T. p6.
It is also appropriate, in considering issues of delay, and particularly any oppression that may result from adjourning the trial, to have regard to the nature and strength of the evidence that the prosecution seeks to rely on.[21] Many of the charges rely entirely upon the objective Facebook chat records. Such evidence does not readily present problems of forensic disadvantage when a trial is beset by delays.
[21] See Police v Pakrou (2008) 103 SASR 124 [71]-[74].
The nature of the evidence contained in the recently acquired declarations is also of relevance. The prosecution asserts that at least four of these declarations were prepared in response to requests for information sought by the applicant. There were also additional declarations from each complainant, said to have been prepared following disclosures made during proofing. As to the declarations by ‘new’ witnesses; 3 are described as ‘complaint’ witnesses, but had already been identified in earlier declarations by the complainants; 4 are ‘ambulance’ witnesses known to the applicant. Their evidence is restricted on the issue of ‘position of authority’. Understood in this context, I am not satisfied that this disclosure, albeit admittedly late, amounts to a ‘re-investigation’ of the charges. It does not produce any significant prejudice to the accused, especially in light of the adjournment of the trial.
The remaining factors identified in support of the stay, include the alleged collusion between the two complainants contained within the recently disclosed chat log. Mr Abbott described this as:[22]
a record of an entirely improper association between two complainants who…would have been told…not to discuss this case with anyone.
[22] T. p14.
Whilst there is some force in Mr Abbott’s submission that such communications may be improper, the extent of any impropriety needs to be viewed in the context of the case. The counts faced by the accused, with the exception of the two counts of unlawful sexual intercourse, which were allegedly committed against ‘D’ will turn upon the objective Facebook evidence.
Indeed it will provide material for significant cross-examination of the complainants, and may adversely affect their credibility. This issue is not, in all the circumstances of this case, grounds for granting a stay of proceedings, but is rather a matter that should properly be ventilated at trial.
Finally, I am not persuaded that the addition of the new count 8 on the information in anyway overloads the indictment. Whilst it is slightly different to the other charges, in that there is no objective Facebook data supporting it, it is of a similar nature to the other charges. Particulars have now been provided to the applicant as has the nature of the evidence to be called in respect of it. It is a serious allegation, and it is in the public interest for such a serious allegation to be determined at the same time as the other alleged offences. I repeat that this will be a trial by judge alone, which will reduce the potential for any prejudice arising from the inclusion of this charge.
In all the circumstances, engaging in the balancing process as described above, and considering all the factors put forward by the applicant, I am not persuaded that they justify an order for a permanent stay of the proceedings. Any unfairness to the applicant with respect to proper preparation for the trial can be dealt with by way of the adjournment, which I have already granted. Whilst I accept that there is a degree of unfairness to the defendant in having the trial delayed for such an extended period, I am not persuaded that the unfairness is such that I should make the orders sought in respect of clauses 1 or 2. Accordingly, the orders sought staying permanently the informations are refused.
·Clause 5 – The permanent stay of counts 1, 3 and 8 of the third information
In the alternative to the stay of both informations, it is asserted by the applicant that counts 1, 3 and 8 should be stayed for, inter alia, want of particulars.
Counts 1 and 3 were included in the first information against ‘D’ alone in 2015. The lack of particulars had not prevented the applicant in his preparation for trial. In any event counsel for the Director had provided to the applicant a letter, particularising those counts on the morning of 18 July 2016. The applicant acknowledged that some particulars had been provided however asserts that the request for particulars in respect of the ‘sexual activity’ for which he was alleged to have been procuring the complainants was still outstanding.[23]
[23] T. p51.
As I understand the applicant’s submission, it is suggested that the prosecution must particularise that particular sexual activity to which the applicant is alleged to have procured the complainant in each respective charge. This was said to arise from the wording of the provision, which proscribes communicating with a person under the prescribed age with the intention of procuring them ‘to engage in, or submit to, a sexual activity’.[24]
[24] Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a).
The applicant referred to the decision of R v Richards (No 2).[25] In that case His Honour Judge Millsteed considered the substantially similar s 63B(3)(b). At the time of hearing this application, that decision was subject to an appeal to the Court of Criminal Appeal, which had, at that time, been heard but not decided. Ultimately the Court dismissed the appeal, and upheld the decision of Millsteed DCJ.[26]
[25] [2016] SADC 2.
[26] R v Richards [2016] SASCFC 79.
I am of the view that the following observations of his Honour are, for present purposes, sufficiently determinative of this issue. His Honour noted that:[27]
…in order to establish the commission of an offence under s 63B(3)(b) the prosecution is not obliged to prove that the accused person intended to make the child amenable to any specific form of sexual activity. It is sufficient that the accused intends to engage the complainant in some form of sexual activity.
[Emphasis added].
[27] R v Richards (No 2) [2016] SADC 2 [129].
This will ultimately be an issue for the trial judge to determine.
In my opinion there is no basis for a stay of proceedings on any of counts 1, 3 and 8 of the third information.
I accordingly refuse the application for a stay of counts 1, 3 and 8.
The question remains whether any of the factors raised by the applicant in respect of clauses 1, 2 or 5 justify a conditional stay on the basis that the applicant’s costs, ‘thrown away’ by the adjournment are paid by the prosecution.
·Clause 3 - Conditional stay on basis of costs thrown away
The applicant seeks an order that the proceedings be conditionally stayed until the prosecution pays the costs thrown away in a sum to be agreed or determined by the Court in default of agreement.
In criminal proceedings it has long been held that no costs are payable by or to an accused person or the Director of Public Prosecutions in the absence of statutory authority to do so. In R v Ulman-Naruniec, supra, the Court of Criminal Appeal affirmed that the District Court does not have any statutory authority to award costs in a criminal case.
What is common amongst the various authorities is that orders such as those sought by the applicant in this case are to be made only in the most exceptional circumstances and that the applicant must demonstrate injustice or unfairness for which the prosecuting authority should be held responsible. It is not a case of simply costs following the event where a trial has been adjourned because of a default by a party as in a civil trial.
The question whether criminal proceedings should be conditionally stayed as an abuse of process falls to be determined by balancing a variety of factors and considerations, including fairness to the accused and the need to maintain public confidence in the administration of justice. It is not suggested that the Director of Public Prosecutions in the sense of the prosecuting agency is at fault. At its highest the police may have been at fault. In R v Fisher [2003] 56 NSWLR 625 the Court held that where it is the fault of the police investigating agency ‘it makes no difference whether the file was in the possession of or should have been earlier produced by the DPP. The fact is that such fault was on the part of the prosecuting authorities’.
In R v Issakidis [2015] NSWSC 834 and [2016] NSWSC 1290, Beech-Jones J set out the history of applications of this kind.
The starting point was the case of R v Mosely (1992) 28 NSWLR 735, where the trial was adjourned because two material prosecution witnesses had failed to attend trial. The District Court ordered that the prosecution pay the costs thrown away by the adjournment. On appeal the Court of Criminal Appeal (NSW) held that the Court had no power to award costs but that it did have power to protect an accused person from unfairness. This was achieved by means of an order that there be a conditional stay until the costs were paid.
In R v Fisher [2003] 56 NSWLR 625, the Court of the Criminal Appeal held that it would be unfair to require an accused person to stand trial a third time until his wasted costs were paid. Similar orders have been made in New South Wales in the cases of Petroulias v R (2007) 176 A Crim R 302, R v Selim [2007] NSWSC 154, R v O’Connor [2000] NSWCCA 124 and R v Issakidis [2015] NSWSC 834 and [2016] NSWSC 1102 and (2016) NSWSC 1290, and Stanizzo v Complainant [2013] NSWCCA 295.
In R v Ulman-Naruniec, supra, the Court of Criminal Appeal (SA) considered the case of an accused who was to stand trial for a third time. On the first trial the jury could not reach a verdict, while on the second she was convicted but successfully appealed. In preparing for a third trial it became apparent that the prosecution had failed in its duty to make full disclosure which may have affected the outcome of the first two trials. The trial judge had granted a conditional stay of proceedings upon condition that the prosecution undertake to pay the reasonable costs of the applicant of the earlier two trials. The Judge had made findings in relation to items of evidence said to have been lost or destroyed. The majority of the Court of Criminal Appeal dismissed the Directors appeal against a conditional stay of proceedings until the reasonable costs of the accused of the two earlier trials was paid. Sulan J described the failure of the DPP as ‘a flagrant breach of its duty of disclosure’.
The applicant seeks an order that the subject proceedings be conditionally stayed until the prosecution compensates him for costs thrown away in preparing for the adjourned trial. He relies substantially upon the reasons in Ulman-Naruniec and in R v Marzilli [2015] SADC 45.
In my view, the facts of this case are clearly distinguishable from both of those authorities.
I have already referred to the facts in Ulman-Naruniec.
In R v Marzilli, the prosecution case had proceeded for some 3½ years on the basis of joint enterprise. This was despite the fact that, at the time of the offending, joint enterprise was not a form of criminal liability known to Commonwealth Law. The prosecution ultimately switched its position, and sought to prove its case with accessorial liability, which, although similar, is a substantially different approach to liability. As such the costs incurred up to that point had, effectively, been thrown away. Rice DCJ noted that, as the trial had not yet commenced, the prejudice and unfairness to the accused was not beyond remedy.[28] However, his Honour concluded that:
I do not consider that I can or should prevent the prosecution from switching its case at this stage, but such a switch has consequences. Marzilli has been unfairly prejudiced in a substantial manner in the form of costs thrown away [by]…the continued reliance upon a method of proof that was doomed to fail. In the very unusual circumstances of this case, I consider that Marzilli should be compensated, to a limited degree, and the proceedings stayed on a temporary basis until these costs are paid.
[Emphasis added].
[28] R v Marzilli [2015] SADC 45 [58].
I am not persuaded that this case has the peculiar features of those in Ulman-Naruniec or Marzilli. As is clear, in both of those cases, the costs, were wasted in preparing to meet the prosecution case.
In the subject case the want of disclosure was the consequence of the fact that the respective solicitors were not ad idem as to what information was being sought.
While the addition of count 8 was solely the fault of the prosecution, it did not alter the basis of the prosecution case as the particulars provided by counsel for the DPP made clear. The fact of the matter is that the parties were not ready for trial, irrespective of the ‘late’ provision of the DVD’s, the late provision of the declarations and the joinder of the additional count 8. I am of course conscious of the dicta in R v Fisher, supra, with respect to the applicant being a private funder. Unlike however that case and the subsequent cases of R v Issakidis, supra, there was no evidence that the applicant had applied for legal aid. In R v Issakidis the applicant’s assets were all frozen and legal aid was denied to him.
I do not accept that this is a proper matter for costs to be paid by the prosecution.
I repeat that the respective parties were both not ready for trial. The proposed application for severance ought to have been progressed.
Accordingly I refuse the relief sought in clause 3.
·Clause 4 - Adjournment of the Trial
In clause 4 the applicant sought the adjournment on the basis that:
…there has been disclosure of a vast amount of material (many thousands of pages) by the prosecution a week out from trial and there is not enough time to go through all the materials and prepare for trial in the time available. The defence requires more time with which to read, analyse and take instructions upon that material.
In the circumstances, the application for an adjournment was not opposed by the prosecution,[29] and, at the conclusion of the hearing, I vacated the trial date. I have already explained that neither party was ready for trial. Various applications ought to have been pursued after the filing of the second information joining the charges involving ‘E’. This was despite queries from Judges from time to time. The trial was re-listed to commence on Monday, 22 May 2017. The applicant had submitted that because of his limited means he could not afford for the trial to be adjourned even though he was not ready for trial because of late disclosure.
[29] T. p47.
It would have been entirely improper for the Court to require the trial to proceed on that basis, risking an unfair trial for the applicant. See R v Davis (1995) 81 A Crim R 156. I repeat that this was not a priority trial. While undoubtedly a Judge would have been made available to hear the trial, a day had already been lost in hearing the application. An accurate estimate of the trial was 7 to 10 days. Counsel could not assure the Court of their availability after the 5 days originally set down for the trial.
Conclusion
For the reasons given above, I make the following other determinations:
1.The relief sought in clauses 1-3, 5 and 8 of the application is in each case refused;
2.The relief sought in clauses 6 and 7 of the application in each case is declined but will be considered by the trial judge;
3.I will hear the parties as to any orders to facilitate the trial to commence on 22 May 2017.