R v Smith

[2004] QDC 416

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Smith [2004] QDC 416
PARTIES:	R Applicant v PHILLIP SMITH Respondent
FILE NO:	230/04
DIVISION:	Criminal
PROCEEDING:	Pre trial hearing
ORIGINATING
COURT:	District Court, Ipswich
DELIVERED ON:	13/10/04
DELIVERED AT:	Ipswich
HEARING DATE:	13/8/ 2004
JUDGE:	Richards DCJ
ORDER:	Application refused
CATCHWORDS:	Application for stay of proceedings – abuse of process
Barton v R (1980) 147 CLR 75, Jago v The District Court of New South Wales (1989) 168 CLR 23 Re Jenkin (1994) 1 Qd R 266 R v J F Mc Loughlin and Cooney (1988) 1 Qd R 464 R v Foley (2002) QCA 552
COUNSEL:	Mr Lehane for the Crown Ms McGuinness for the Accused
SOLICITORS:	Mr Lehane for the Crown Hooper & Hooper for the accused

1. The accused is charged with one count of sodomy. The offence is alleged to have occurred between 31 December 1979 and 1 January 1981. The accused was charged on 16 May 2002 and a committal was held on 18 September 2002. No indictment was presented within 6 months and no application for extension of time was made pursuant to s 590 of the Criminal Code.

2. On 1 October 2003 the police re-charged the accused with the same offence and the matter was re-committed to the District Court on 19 May 2004. An indictment was presented on 21 May 2004. The reason for the delay in presentation of the first indictment was because of inefficiencies within the Director of Prosecutions office in that the clerk, who had charge of the file, simply lost track of the date and did not present the indictment within the mandatory six month period. In those circumstances it is unlikely that an application under s 590 of the Criminal Code would have been successful. The second indictment was presented to circumvent the provisions of s 590 of the Criminal Code.

3. It is suggested that there has been prejudice suffered by the accused as a result of this procedure in that the complaint is old, it is uncorroborated and the complainant has had mental difficulties over the years. However, in reality, the true prejudice to the accused in this matter is the delay in bringing the matter to the attention of the police in the first place. There has been no prejudice pointed to on this application over and above that already caused by this first delay.

4. As a result of the actions of the DPP the complainant has had to endure cross- examination on two occasions in the magistrates court. In that regard, any prejudice that has been occasioned has been suffered by the victim of the offence rather than the accused. Although it must be noted that any delay in a criminal prosecution causes significant anxiety for an accused person.

5. The real issue in this case is whether the Crown, having recharged the accused rather than attempting to comply with s590 of the Criminal Code, has acted in a way that amounts to such an abuse of process that the indictment should be stayed.

6. There is no doubt that the court has jurisdiction to grant a stay of criminal prosecution to prevent an abuse of process[1]. However it is also clear that the decision to stay an indictment should only be taken in very rare cases. It must be kept in mind that the community expects trials to be fair, to take place within a reasonable time, but also where there is a case to prosecute, to proceed to trial. It is only in an extreme case that permanent stays should be granted and the making of an order for a permanent stay on the basis of delay alone will usually be very rare.[2]

   [1] See Barton v R (1980) 147 CLR 75, Jago v The District Court of New South Wales (1989) 168 CLR 23

   [2] See Jago v The District Court of New South Wales (supra).

7. In Re Jenkin (1994) 1 Qd R 266 the court discussed the previous provisions of s 590 of the Criminal Code which were similar to the current provisions and caused the accused to be discharged when an indictment was not presented after application. In that case the court held by majority, that a person committed for trial for an indictable offence who is entitled to be discharged pursuant to s 590(3) of the Code, was entitled to be discharged from the consequences of a committal for trial but not from liability to further prosecution for the same offence. The wording of the section at that stage was:

   “where a person committed for trial who has made application pursuant to sub-s 1 is not brought to trial by the last day of the sittings of the court next following the sittings during which the application is made, he is entitled to be discharged.”

8. Much of the case centred on a discussion of what was meant by the words “entitled to be discharged”. It was decided by majority that those words merely meant discharged from the consequences of his committal including any orders in relation to bail or custody but not from further prosecution.

9. The amended version of s 590(3) is much clearer in its intent:

   “if an indictment is not presented before the expiry of the period or any extension of the period the person is entitled to be discharged from the consequences of his or her committal.”

   Based on the reasoning in Re Jenkins (supra), the highlighted phrase must mean that the accused person is no longer subject to the orders made subsequent to his committal, but it does not amount to a caveat from further prosecution.

10. The case of R v Foley (2002) QCA 552 was also raised in argument. In that case an ex officio indictment was presented by the Crown after an application under s 590(2) had failed. The court held that exofficio indictments could only be presented in situations where there had been no committal, committal on a different charge,or a refusal to commit. The case turned on an interpretation of the provisions of the code relating to exofficio indictments and as such is of limited use in this situation.

11. This is an unusual case. If this were happening as a matter of routine there would be a stronger argument that the Crown was abusing the processes of court. It is important to keep in mind that there was no conduct on behalf of the victim which led to the indictment of being presented out of time. Further it is the prosecution who has suffered the most prejudice by having a second committal.

12. One would hope that this is a rare case where presentation of the indictment was being made after the expiration of the six month period. One would hope that the Crown would be careful not to create a situation where witnesses are put through the rigours of a second committal, however, on the authority of re Jenkin (supra) there is no bar to the prosecution recharging the accused with the offence or presenting another indictment in relation to the same offence.

13. In R v C F McLoughlin and Cooney (1988) 1 Qd R 464 a stay was initially granted where the crown withdrew an indictment when a adjournment application was refused. The crown presented a fresh indictment at a later stage and a successful application for a stay was made. The court of appeal in allowing the appeal against that order held ( at 472):

    If, therefore, there has been some conduct on the part of the prosecuting authority which might generally be regarded as an abuse of process, it would need to result in prejudice to an accused in his obtaining a fair trial in order to justify a stay of proceedings.”

The manner in which the prosecution has proceeded in this case has done nothing to enhance the reputation of that office. To deliberately set out to by pass the provisions of the criminal code, demonstrates a disturbing lack of regard for the procedures of the court ,however, in the absence of any demonstrable prejudice to the accused the application should be dismissed.

1. Accordingly the application is refused.