R v Tracey (No 7) - [2005] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TRACEY & ORS (NO 7)
Reasons for Ruling of The Honourable Justice Nyland
9 September 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Application for a permanent stay of proceedings - two accused pleaded guilty to manslaughter - statement of agreed facts as to basis upon which pleas entered - statement as to the lack of knowledge of third accused as to presence of gun - exculpatory of third accused involvement in joint enterprise - whether prosecution bound by expression or belief of co-accused - whether prosecution entitled to proceed on manslaughter charge against third accused - third accused not party to discussions which resulted in statement of agreed facts - finding that prosecution not bound by expression or belief by co-accused - application for stay refused.
Criminal Law Consolidation Act (SA) 1935 s 241, referred to.
Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; Moevao v Department of Labour [1980] 1 NZLR 464; Williams & Ors v Spautz (1992) 174CLR 509; Walton v Gardiner (1993) 177 CLR 378; The Queen v Milnes and Green (1983) 33 SASR 211; Ridgeway v The Queen (1995) 184 CLR 19; Dal Piva v Overland Corner Station Pty Ltd and Mitolo (2004) 88 SASR 182 (FCt); Dal Piva v Overland Corner Station Pty Ltd and Mitolo (2003) 227 LSJS 136, discussed.

R v TRACEY & ORS (NO 7)
[2005] SASC 341
RULING ON APPLICATION FOR STAY OF PROCEEDINGS BY MICHAEL WALLACE:

Pursuant to an information dated 27 January 2004, Michael AndrewWallace (Wallace) was charged jointly with John Michael Craig Tracey (Tracey) and Joshua Heath Considine (Considine) with the murder of Stuart Watson on 31 July 2002 at Elizabeth Downs. Three other accused were charged on the same information with impeding the investigation into the unlawful killing of Stuart Watson.
Upon their arraignment, Tracey, Considine and Wallace each pleaded not guilty to the charge of murder. On 30 March 2005 I made an order that the trial of those accused charged with impeding offences be separated from the trial of those charged with murder. Thereafter the matter proceeded by way of a voir dire hearing which has resulted in a number of pre-trial rulings.
On 26 August 2005, Tracey and Considine were re-arraigned. On that date, each maintained his plea of not guilty to the charge of murder, but pleaded guilty to the crime of manslaughter and those pleas were accepted by the Crown in satisfaction of the information against them. Tracey and Considine were then remanded for sentencing submissions on 22 September 2005.
Wallace has, however, continued to maintain a plea of not guilty to both the charge of murder and the alternative charge of manslaughter and has been remanded for trial.
On 6 September 2005, a fresh information was laid against Wallace alleging the crime of manslaughter. Wallace has, however, filed an application for a permanent stay of proceedings against him. The particulars of the grounds relied upon are set out in his application as follows:
2.The Director is seeking to proceed to trial against the applicant on a charge of manslaughter, on the basis that the applicant knew there was a gun in his car prior to arriving at Filsoll Street, Elizabeth Downs at approximately 2125 hrs on the evening of the 31st July 2002, and that the applicant knew it was possible that the gun might be produced and/or discharged.
3.The Director has accepted pleas of guilty to manslaughter from the co-accused, John Tracey and Joshua Considine.
4.The factual basis of those pleas has been agreed by the Director and the co-accused.
5.In particular, on the material fact of whether the applicant knew the gun was in the car prior to it being discharged in Filsoll Street, the Director has accepted the facts asserted by the co-accused, that is, that the gun was concealed in the car by Tracey and Considine and the applicant did not know the gun was present in the car.
6.The Director is therefore proposing to proceed with its case against the applicant on the basis entirely inconsistent with the facts that it has agreed with the co-accused.
In his affidavit in support of that application (Exhibit SD112), Michael Wallace said:
10.I have been advised by my legal representatives that the factual basis of the pleas of manslaughter entered by Tracey and Considine, and accepted by the Director, includes that I was not a participant in any joint enterprise to take a gun to Filsoll Street on the evening of the 31st July 2002.
11.I am further advised that the factual basis of the pleas to manslaughter specifically addresses the issue of how the gun was secreted in my car without my knowledge.
It appears that Wallace has offered to plead to an offence under s 241 Criminal Law Consolidation Act 1935, as a result of his actions subsequent to the shooting of Stuart Watson, but that offer is unacceptable to the Director. The prosecution contend that Wallace was aware that the gun was in the car prior to arrival of the three men at Filsoll Street where Watson was eventually shot and killed. Wallace was therefore a party to a joint enterprise with the co-accused arising out of those events and should be prosecuted for the crime of manslaughter.
On 5 September 2005 the matter of Tracey and Considine was called on for further hearing to enable me to receive the agreed statement of facts concerning the factual basis upon which each of them had entered pleas of guilty to the charge of manslaughter. That document was then tendered by Wallace’s counsel in support of Wallace’s application for stay of proceedings (Exhibit SD113).
It is clear that the issue of Wallace’s knowledge of the gun which was used to shoot Stuart Watson is central to the prosecution case against him with respect to the charge of manslaughter.
The statement of agreed facts refers to the finding by Considine of an abandoned .22 calibre rifle which was subsequently left at Tracey’s home at 19 Wilterna Crescent. On 31 July 2002 a disturbance occurred at 3 Filsoll Street which involved Considine’s sister Rebecca. Considine was at that time at Tracey’s house at Wilterna Crescent. It is agreed that Considine asked Tracey and Wallace to go with him to assist the occupants of 3 Filsoll Street. The statement of agreed facts then says:
8.The three accused travelled from Wilterna Crescent to 3 Filsoll Street immediately prior to the shooting because it was feared by Mr Considine that the Watson associates would attack Troy Murray and/or Rebecca Considine and generally cause trouble at 3 Filsoll Street. The three accused travelled to the scene of the shooting in the white Holden Commodore sedan Reg No UYL 791 driven by Mr Wallace.
9.Prior to leaving the premises at Wilterna Crescent Mr Considine spoke only with Mr Tracey (and not with Mr Wallace) about taking the rifle to 3 Filsoll Street primarily for the purpose of giving it to Troy Murray for him to scare off the Watson associates. Mr Considine obtained possession of the rifle from where he had previously secreted it at 19 Wilterna Crescent and put it in the front left side of Wallace’s car. He secreted it between the front left passenger seat and the left doors of the vehicle before Mr Wallace entered the vehicle, Mr Wallace not seeing him do so. The rifle was not subsequently commented on or seen by Mr Wallace in this position. The rifle was already loaded. (emphasis added)
There is no further mention of Wallace in Exhibit SD113, but the statement continues:
10.As they set out from Wilterna Crescent just prior to the shooting, the accused Mr Considine and Mr Tracey did not know what to expect at 3 Filsoll Street but were each aware that the rifle:
10.1   was in the car
10.2   was loaded
10.3   was primarily intended to be given to Troy Murray to protect himself, Rebecca Considine and the property at 3 Filsoll Street, but it was anticipated that the rifle might be presented in public by Mr Considine and/or Mr Tracey in circumstances where it might be discharged and cause serious injury.
…
16.The common purpose between Mr Considine and Mr Tracey, that the loaded rifle might be presented in circumstances where it might discharge causing serious injury, led to the presentation of the rifle by Mr Considine and the series of discharges referred to above. At about 9.30 pm on the 31st July 2002 a .22 bullet from one of these discharges hit the deceased in the area of the left upper quadrant of the abdomen.
The crux of the argument put by Mr Longson on behalf of Wallace with respect to the application for stay is that the Director has agreed to all of the matters set out in Exhibit SD113. That includes the statements in para 9 to the effect that the gun was secreted in the car without Wallace’s knowledge in a place at which it could not been seen by Wallace. Those matters were exculpatory of Wallace’s involvement in any common purpose with Tracey and Considine. The charge of manslaughter against Wallace should therefore be stayed.
In the course of his submissions on behalf of the Director, Mr Brebner QC provided an affidavit of Stephanie Geyer, a legal practitioner employed by the Office of the Director of Public Prosecutions (Exhibit SP114). Ms Geyer is the solicitor and junior counsel in this matter. In that affidavit, Ms Geyer refers to the fact that discussions took place between representatives of Tracey and Considine which were also attended by Mr Longson as counsel for Wallace. She indicates that the discussions at those meetings were conducted on the basis that Tracey and Considine’s representatives did not act for Wallace and that Mr Longson was present as an observer only. She says in that affidavit:
9.During the course of these discussions the DPP never intended to concede that there is no case against Michael Wallace.
10.By agreeing to paragraph 9 of the document entitled Agreed Statement of Facts Re John Tracey and Joshua Considine signed by Mr Sale, Ms Williams and myself, the DPP was intending to convey no more than that he agreed that Messrs Tracey and Considine could legitimately be sentenced on the basis that they did not speak to Michael Wallace about the rifle, that they believed that Michael Wallace did not see the rifle being secreted in the car, that they believed that he did not know the rifle was in the car in the position specified and that he said nothing to indicate that he realised that it was in the car in the position specified.
Mr Brebner, in the course of his submissions acknowledged that it was an essential element of the prosecution case against Wallace that Wallace had knowledge of the gun being in the car. He argued, however, that the acceptance of the statement of agreed facts as an appropriate basis for the sentence of Tracey and Considine did not constitute an agreement that their stated beliefs with respect to Wallace’s knowledge amounted to a determination of a question of fact relating to that issue which would affect Wallace’s trial, ie his knowledge of the gun. Mr Brebner submitted that there was no inconsistency of approach on the part of the Director by reason of accepting the matters set out in para 9 of the statement of agreed facts for the purpose of sentencing Tracey and Considine but maintaining proceedings against Wallace on the basis that at the relevant time he must have known the gun was in the car.
Mr Brebner further submitted that Wallace had not been involved in the negotiations which resulted in the statement of agreed facts. He was not a party to that document and there was no formal agreement or undertaking between Wallace and the Director regarding any fact or belief that was outlined in the statement.
Both parties filed outlines of argument in which they referred to the various authorities dealing with the power of the court to stay proceedings for an abuse of process. There appeared to be general consensus that the court has the power to make an order for stay where the evidence indicates that, after balancing the right of a defendant to a fair trial and not to be unreasonably oppressed, against the interest of the prosecution in bringing the defendant to trial on a serious charge, that it would be unacceptably oppressive or unfair to an accused, or an affront to the public conscience, to permit the prosecution to succeed.
This is a matter that has been considered in a number of cases. In Jago v The District Court of New South Wales& Ors[1], Mason CJ (at 29-30) referred to the decision of the New Zealand Court of Appeal in Moevao v Department of Labour[2] wherein Richardson J said:
‘It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.’
[1] (1989) 168 CLR 23
[2] [1980] 1 NZLR 464
Mason CJ then continued in Jago (at 30-31):
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.
For the reasons given, I agree with the approach of Richardson J as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an ‘abuse of process’, I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated (at 482):
‘The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.’
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.
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.
It is clear, however, that the power to order a stay is extraordinary and must therefore be approached with caution. As Mason CJ said in Jago (at 34):
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’. (footnote omitted)
Also in Jago, Gaudron J said (at 76):
The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399; 72 ALR 1 at 12, that the ‘prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is `amenable to the jurisdiction' of the courts and other public tribunals’. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson [1987] 20 Leg Rep SL 1, ‘sparingly, and with the utmost caution’. (footnotes omitted)
This was further discussed by the High Court in Williams & Ors v Spautz[3]. In that case, Mason CJ, Dawson, Toohey and McHugh JJ commented (at 519):
If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought. (footnote omitted)
They went on to say (at 529) that:
The onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is ‘a heavy one’ … and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances. (footnote omitted)
[3] (1992) 174 CLR 509
In Walton v Gardiner[4], Mason CJ, Deane and Dawson JJ said (at 392-393):
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. (footnotes omitted)
And (at 395-396):
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. (footnotes omitted)
[4] (1993) 177 CLR 378

Mr Brebner, in the course of his submissions, cited the following passage from The Queen v Milnes and Green[5] per Cox J (at 226):
It is no small thing to say, in effect, that although there may be evidence that a man committed a serious crime, perhaps very strong evidence, the Crown is not to be permitted to put it before a jury and get a verdict in the usual way. These reserve powers are of considerable, perhaps increasing, importance in the administration of justice and the courts must not hesitate to use them when the grounds for doing so are clearly made out. But it needs a clear case, in my view, not merely an arguable one.
[5] (1983) 33 SASR 211
Mr Brebner argued that the applicant had failed to demonstrate that this was such a clear case. Accordingly, any ambiguity that may have arisen from para 9 of SD113, should be resolved in favour of the Director. Wallace had therefore failed to discharge the required onus to justify an order for stay.
The grounds upon which applications have been made to stay proceedings are many and varied. The test for whether an abuse has occurred, however, is where the relevant act or omission is one which diminishes the public confidence in the court as an institution. This was discussed by the High Court in Ridgeway v The Queen[6]. In that case, Gaudron J referred inter alia to Jago, Williams v Spautz and Walton v Gardiner and explained the matter in the following way (at 74-75):
The inherent powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice. And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice.
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. 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 (as to what constitutes 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’. (footnotes omitted)
[6] (1995) 184 CLR 19
In this case, there is no suggestion of mala fides on the part of the prosecution. The argument simply is that the Director should be bound by what is asserted to be the factual position contained in the statement of agreed facts that Wallace was unaware that the gun was in the car. Public confidence in the administration of justice would be undermined to allow the prosecution of Wallace to proceed on the charge of manslaughter contrary to the matters set out in the agreed statement of facts.
There is, however, an underlying flaw in this argument which, in my view, is fatal to the application for stay. In my opinion, the issue of what Tracey and/or Considine believed about Wallace’s state of mind could never amount to a finding as to a question of fact which was capable of being agreed by the Director and which would effectively preclude the Director from continuing the prosecution against Wallace on the charge of manslaughter.
An analogy can be drawn with the situation which arose in the matter of Dal Piva v Overland Corner Station Pty Ltd and Mitolo[7]. In that case, the appellants and a third defendant were jointly charged with the offence of clearing native vegetation on land owned by the first appellant. The particulars of the complaint alleged that the third defendant had “caused” the clearance, and the appellants had “caused or permitted” the clearance of the native vegetation. The third defendant pleaded guilty to the charge before a magistrate, asserting that he was never instructed to clear any trees but that he only did so on the suggestion of another worker to allow for the operation of a pivot irrigation system. Those facts were not disputed by the prosecution and the third defendant was sentenced on that basis. The appellants, however, maintained a plea of not guilty to the charge.
[7] (2004) 88 SASR 182
The appellants were subsequently given notice that at their trial, the prosecution intended to lead evidence of an admission by the second appellant that he instructed the third defendant to clear the native vegetation. The appellants then applied to permanently stay the proceedings as an abuse of process. They submitted that it was unconscionable for the prosecution to accept a set of facts on the third defendant’s plea of guilty and then seek to advance a factual basis inconsistent with those facts at the appellants’ trial. The magistrate declined to order a permanent stay of the proceedings but made an order that the prosecution be restrained from calling evidence or making submissions which were inconsistent with the statement of agreed facts which had been outlined to the magistrate who sentenced the third defendant. In fact there was no formal statement of agreed facts. The prosecution had merely acquiesced in the assertions made on behalf of the third defendant.
The magistrate permitted the action to proceed only on the basis of the “restraining order” and on the basis that it was alleged that the appellant “permitted” the clearance to take place. In effect, the prosecution was required to amend the particulars alleged against the appellants by deleting the words “caused or”.
The appellants were nevertheless found guilty of the charge and the magistrate was required to sentence them on the evidence led at the trial. The prosecution then appealed to a single judge against the sentences imposed, complaining that the trial magistrate had erred in making the restraining order and that as a result of that order, the magistrate had failed to have regard to probative evidence relevant to the assessment of culpability when sentencing.
The matter was heard by Gray J who allowed the appeal[8]. He held that the prosecution was not prevented from proceeding to prove the charge against the appellants by reliance upon facts different from or inconsistent with those before the magistrate who sentenced the third defendant. In his reasons for allowing the appeal, Gray J referred to the observations of Brennan and Toohey JJ in The Queen v Rogerson (1991-1992) 174 CLR 268 wherein they said (at 280):
Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case.
The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.
[8] (2003) 227 LSJS 136
The appellants then appealed to the Full Court (supra) arguing that Gray J had erred and that the respondent was not entitled to challenge the magistrate’s ruling. The Full court was, however, unanimous in its dismissal of the appeal. In the course of his reasons, Prior J (with Debelle J concrurring) said (at 185):
A failure to contest every submission or basis for a plea by a co-defendant has no binding effect in a subsequent hearing or trial when the prosecution is put to proof. The judge was correct in holding that the magistrate erred in sentencing the appellants by treating the facts of the third defendant's plea as binding upon him when those facts were not a matter of evidence before him.
And per Bleby J (at 188):
What the third defendant said to the magistrate on his plea of guilty was quite irrelevant to and inadmissible on the hearing of the complaint against the appellants. The magistrate was required to hear and determine the case against the appellants according to law and in accordance with evidence admissible against them.
In this case, the acceptance by the Director of what Tracey and Considine believed Wallace knew about the gun as part of their sentencing submissions cannot be elevated to a finding of fact which would preclude the prosecution from proceeding to trial against Wallace if there is evidence as to his culpability in the alleged crime. The extent of Wallace’s participation in these events, which includes his knowledge about the presence of the gun, can then be determined by a jury on relevant and admissible evidence at his trial.
Further, the statement of agreed facts (Exhibit SD113) only represents an agreement between Tracey, Considine and the Director. Wallace was not a party to that agreement. Tracey and Considine’s belief as to Wallace’s knowledge of the gun is, in my view, irrelevant to the question of the appropriate sentence to be imposed upon Tracey and Considine arising out of their actions on the night in question.
In my opinion, Wallace has failed to establish that this is a proper case for a stay of proceedings against him on the charge of either murder or manslaughter. The application for stay of proceedings is therefore refused.