R v Taylor No. DCCRM-98-390

R V TAYLOR
[2000] SADC 57

CHIEF JUDGE WORTHINGTON
Criminal

This is an application by the accused for a permanent stay of an information on the grounds of abuse of process. He is charged with committing burglary and assault occasioning actual bodily harm on the morning of 19 November 1997. For present purposes, the matter can be outlined as follows.
The complainant, then 80 years old, was in bed asleep when just after midnight she was awakened by the presence of a man in her bedroom. She says that he unsuccessfully tried to remove a television set from her bedroom. He left the room but after she discharged a starting pistol, he returned and attacked her, causing injuries to her face, hands, back and right leg. She is unable to identify her assailant. The Crown case rests heavily on a thumbprint which, if the evidence is accepted by the jury, came from the accused and was found on the outside upper frame of the complainant’s bedroom window later that morning. The jury will be asked to find that although this window was not the point of entry for the intruder, it had been lowered during that night in an attempt to enter through it.
The accused’s trial before a Judge of this court and jury started on 29 September 1998 and lasted 3 days. He was convicted on both counts by a majority verdict. On 14 December 1998 the Court of Criminal Appeal allowed an appeal by the accused and ordered a retrial.
The retrial commenced before me sitting with a jury on 15 July 1999, starting with a voir dire which continued on 16 July. The accused was then taken to hospital suddenly and the voir dire was not resumed until 11 October 1999. On 12 October 1999, a jury was empanelled and the trial proper commenced. On the next day I declared a mistrial.
A new trial was due to commence on 31 January 2000 before another Judge of this court and jury but that was vacated because of the unavailability of a witness. In the event, the trial commenced before me with a jury on 2 May 2000. The whole of that day and part of the next day were occupied with a voir dire. Evidence began on 3 May and continued on 4 May. I dismissed an application by Mr Moffa, for the accused, for a mistrial at the end of the complainant’s evidence in chief, but as the result of further matters arising during her cross examination, he made a further application for a mistrial. I heard submissions on the morning of 5 May and declared a mistrial. Mr Moffa intimated then that if the DPP presented the accused for trial again, he would apply for a stay. On 8 May the Director advised that the accused would be presented for trial and this application was heard on 9 May. By consent, I excused the accused from filing a written application.
The matters germane to the order of the Court of Criminal Appeal for a retrial and the two subsequent mistrials, are as follows. A more complete description of the circumstances of each mistrial is to be found in reasons for those rulings given on 12 October 1999, 4 May and 5 May 2000.
In the course of giving evidence at the first trial, the complainant said that although she had not met the accused prior to 19 November 1997, he was a neighbour that she had seen with his dog and at some earlier time, he had been to her house. She said that the accused came to her house late in the morning after the assault. The complainant proposed to sell her home and she had put the word out that there was some furniture for sale. The accused told her that was why he had come that morning but the Crown case is that he came to contaminate the scene by leaving his fingerprints and thus, to destroy the value of any fingerprint evidence indicating his presence earlier that day. In her evidence in chief, although the complainant described the intruder, she did not identify him as the accused. In cross-examination, she agreed that she could see her attacker’s face, whereupon counsel for the accused (not Mr Moffa) put to her that it was not the face of the accused. She said that it was and repeated this when it was put to her again. The Crown Prosecutor relied on that dock identification but the learned trial judge did not direct the jury about the proper use that may be made of such evidence. All three judges, Prior, Lander and Wicks JJ., allowed the appeal because the jury were not directed on this issue. Prior and Wicks JJ., also allowed the appeal because the prosecutor relied on that evidence.
During the second trial starting on 15 July 1999, it is fair to say that the prosecutor had difficulty controlling the complainant as a witness, especially in getting her to heed the questions. The trial miscarried because of an answer the complainant gave in her evidence in chief which was capable of being understood by the jury as identifying the accused as the intruder. This occurred in circumstances which, in my opinion, meant it could not be remedied by a direction to the jury.
Difficulties arose during the complainant’s evidence in chief in the third trial that commenced on 2 May 2000. Again, the complainant was sometimes undisciplined and not responsive in her answers. The first application for a mistrial was based on two grounds but one is not relevant. The other arose out of two passages of evidence she gave concerning the presence of the accused at her home on the morning after the attack, amounting to a dock identification. I ruled that it was open to the jury to have understood the combined effect of those passages as evidence of a suspicion she had entertained on 19 November 1997 that the accused was her assailant. I refused the application because, in my opinion, the detriment to the accused was capable of being cured by a direction to the jury.
In the course of cross examination about 24 hours after this occurred, the complainant, again not responding to a question, made a remark that could be characterised as giving the jury a strong hint that she believed the accused was the intruder. There were other instances during her evidence of gratuitous remarks that gave cause for concern. The combined effect of all that led me to conclude that the position had changed from one where the matter could be dealt with by a direction to the jury, to one where her evidence had become so contaminated by attempts to identify the accused as her assailant, that I was no longer confident the offending evidence could be disentangled and put to one side by a properly instructed jury.
Mr Moffa submits that there are four fundamental defects which, when taken together, should lead the Court to order a permanent stay of proceedings. Although he does not rank those points in any order, it is fair to say that the primary thrust of his argument is a submission that the complainant cannot be prevented from giving inadmissible and prejudicial evidence purporting to identify the accused, and that this submission is strengthened by three other factors, namely the quality of the complainant’s evidence, the changing nature of it and overall weakness in the Crown case. In the result, he submits, the accused is prejudiced because although it is a necessary part of the accused’s defence for his counsel to explore inconsistencies in various statements by the complainant, especially those describing her assailant, to do so runs the very severe risk that based on her previous behaviour, she will take the opportunity to identify the accused in some way. In other words, he submits, the accused will not get a fair trial. Before dealing with his argument, it is necessary to refer briefly to the principles to be applied.
The DPP is independent of any direction or control and has the sole discretionary power to prosecute indictable offences (Director of Public Prosecutions Act 1991 - s7 and s9). There can be no doubt that the court has power to interfere with the exercise of that discretion and to stay the trial of an accused if it is satisfied that to permit it to continue would be “so unfairly and unjustifiably oppressive as to constitute an abuse of process [but] ................ the court would only be so satisfied in an exceptional or extreme case” (Walton v Gardiner (1992-1993) 177 CLR 379 at 392 per Mason CJ, Deane and Dawson JJ. approving the approach adopted by the NSW Court of Appeal). Dealing with the matters to be considered by a court undertaking that exercise, their Honours said at 395-396:
“ ...... 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.”
There are various reasons why an application may be made for a permanent stay on abuse of process grounds. Here, it is based on a submission that the accused cannot have a fair trial. There is ample authority for the proposition that a court should not grant a stay unless it is satisfied that there are no other means, such as directions to the jury, by which a fair trial can be given (eg. Williams v Spautz (1991-1992) 174 CLR 509 per Mason CJ, Dawson, Toohey and McHugh JJ. at 519).
Turning to the matters raised by Mr Moffa in support of his application, I shall deal firstly with his submission that the Crown, and for that matter the court, will be unable to prevent the complainant from giving inadmissible evidence of identification. This is not a case of there being an inherent vice in the complainant’s evidence such that the very giving of it will create an insuperable problem. The matters causing concern are superfluous to her evidence and the effect of the offending evidence on the fairness of the trial will be a matter of degree. Because of what has happened before me, I will firstly consider the argument on an assumption that she will identify, or at least attempt to identify, the accused at the next trial. It does not follow as a matter of course that any detriment to the accused could not be remedied by a direction to the jury. That would depend on a number of considerations, such as:
·.. when it occurs
·.. how often it occurs
·.. the circumstances in which it occurs, including the nature of the topic under examination
·.. the way in which that evidence is given
·.. the overall state of her evidence and the significance of the offending evidence
The trial judge will be required to make an assessment of all the circumstances to decide whether there is a detriment to the accused and if so, whether it can be cured by a direction. That is a matter on which minds may legitimately differ. On the first application for a mistrial during the third trial, I formed the opinion that any prejudice to the accused could be remedied by a suitable direction to the jury. I refer to this example to emphasise that it is not just a matter of whether the complainant will give the offending evidence, but where in all the circumstances that will lead. There are too many variables to enable a prediction to be made. It is not possible to say that if the complainant is called to give evidence, there will inevitably be an incurable detriment to the accused.
The second defect put forward by Mr Moffa is the quality of Ms White’s evidence. He submits that because of her age, now 84 years, the quality of her evidence is, and will be, such that its quality will not be as high as that of a mature but younger person. He likens the process to a bell curve such that the very young and the elderly are less reliable as witnesses. I do not accept the premise. In any event, it is a matter for the jury to assess the value of a witness’s evidence and that includes their assessment of the person giving it. It is true that the complainant, as she described it herself, has a tendency to ramble but she struck me as being a very intelligent woman. It will not be necessary for a trial judge to make a finding about that but it serves to illustrate that any assessment about the quality of her evidence is very much in the province of the jury.
The next defect advanced by Mr Moffa is the changing nature of the complainant’s evidence. I need not canvass all the matters upon which he relies but in particular, he points to the different descriptions she has given at various times (to the police and at each of the trials) of the appearance of the intruder. Again, the reliability of that evidence is very much a matter for the jury, and it may well be that it is ultimately to the accused’s advantage that there are discrepancies in her descriptions, some of which have been given on oath. However, I do not see how this can add to the strength of the stay application.
The fourth defect is that the Crown case lacks strength. Among other things, Mr Moffa points to the sole thumbprint on the bedroom window which, he submits, is the only true incriminating evidence. He further submits that when this is seen in the context of other deficiencies in the Crown case which I need not stay to repeat, the accused will have good grounds at the end of the prosecution case to either submit no case to answer or invite a Prasad direction. In answer, Ms Chapman, for the Crown, points out that with regard to the thumbprint, the submission overlooks evidence that the position of the print is consistent with the person who made it having his right hand curled over the top of the window as if to pull it down. Moreover, she submits, it is proposed to read to the jury the evidence given by the accused at his first trial explaining how the fingerprint came to be on the window, with a submission that he was telling lies, not to be relied upon as indicating consciousness of guilt but as being such a fanciful explanation that he could not be regarded as credible on this topic. In any event, Ms Chapman submits, I am not called upon to consider whether the Crown is likely to make out a case to answer but whether the Crown is clearly unable to make out a case to answer. I accept that submission. The decision in Walton v Gardiner shows that the proper enquiry when considering a contention that the case is so weak that to allow the trial to continue would be an abuse of process, is whether, on the state of the evidence, the proceedings “can be clearly seen to be foredoomed to fail” (per Mason CJ, Deane and Dawson JJ at 393) or, as it was put by Brennan J at 411, they “will inevitably and manifestly fail”. There is no difference in substance between these formulations of principle and that has not been shown here.
In my opinion, therefore, none of the other three points add weight to Mr Moffa’s primary submission about the inability of the complainant to be restrained from giving offending evidence.
With regard to the first trial, I do not consider that the complainant can be criticised for making the dock identification, in light of the questions asked of her by the then defence counsel. Given her belief, whether soundly based or not, her response was not surprising. Bearing in mind what happened at the other two trials, there is certainly a good chance that she will give identification evidence again, but not necessarily so. Having now twice seen great misfortune result from her volunteering comments on this topic, it is possible that she has been impressed by the need not to do so and to refrain from doing it. The risk of a further mistrial cannot be excluded but that is not the test. Even if she does give the offending evidence, it does not necessarily follow that it cannot be cured by a direction.
Mr Moffa submits that given the history, it will be unfair to present the accused for trial for a fourth time. In The Queen v Donald (1983) 34 SASR 10, Mitchell ACJ, with whom Wells J agreed, said at 13:
“There may be situations in which the continued presentation of an accused person for trial after one or more aborted trials amounts to harassment of the accused. In such circumstances the court will properly stay the proceedings”.
I do not consider that the presentation of the accused for trial again will amount to harassment. Although this will be the fourth occasion on which he has been presented, only one trial has gone to a verdict. The other two have been stopped at a very early stage in the Crown case. On each occasion, the only witness apart from the complainant, has been a police officer giving short and fairly uncontroversial evidence about the layout of the complainant’s premises. In the second trial the complainant did not complete her evidence in chief and in the third trial, she was part-way through her cross-examination when the trial was stopped. There is still a great deal of evidence that has not been called, other than in the first trial. The fact that a retrial has not been completed is because of the court’s concern that he receive a fair trial.
The accused is charged with serious offences and there is a legitimate public interest in the charges coming to trial. For the reasons given, I am not satisfied that the accused cannot receive a fair trial. The application is dismissed.

[2000] SADC 57

12 May 2000