R v Tran

[2017] SADC 128

District Court of South Australia

(Criminal)

R v TRAN

[2017] SADC 128

Reasons for Decision of His Honour Judge Tilmouth (ex tempore)

23 November 2017

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GROUNDS FOR GRANTING OR REFUSING - ABSENCE OF MATERIAL WITNESS

This matter comes before the court set for trial for a fifth time. Two previous trials did not proceed, one following a successful severance application and one because of a mistrial. The remaining two were vacated because the prosecution failed to procure the attendance of the same critical witness, despite assurances the matter was ready for trial on both occasions. The failure to produce the witness was a result of the breakdown of informal arrangements to secure his attendance made by the investigating police. The defence brings applications for a permanent stay on account of an abuse of process, or alternatively a conditional stay on condition the prosecution first pay the costs of the defence thrown away.

Held:

1. The case is insufficiently exceptional to justify a permanent stay, particularly as there is no unfairness in the trial process itself.

2.  It is appropriate in the circumstances to require the prosecution to undertake to pay limited and reasonable costs attendant upon the adjournment on the second occasion the witness was unavailable, in light of the incomplete and unsatisfactory explanation given for the situation.

Rona v District Court of South Australia (1995) 63 SASR 223, referred to.
Rona v District Court of South Australia (1995) 63 SASR 223; R v Fisher (2003) 56 NSWLR 625; Jago v The District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; R v Ulman-Naruniec (2003) 143 A Crim R 531, applied.
R v McGee (2008) 102 SASR 318; Williams v Spautz (1992) 174 CLR 509; R v Rowe (2004) 237 LSJS 474; R v Ling (1996) 90 A Crim R 376; DPP v B (1998) 194 CLR 566; R v Lorkin (1995) 15 WAR 499; R v Ward (1993) 96 Cr App R 1; R v Solomon (2005) 92 SASR 331; Cooley v State of Western Australia (2005) 155 A Crim R 528; R v Lipton (2011) 82 NSWLR 123; R v Mosley (1992) 28 NSWLR 735; R v Seebag Unreported judgment, Court of Criminal Appeal, New South Wales, 16 February 1993, No 60493/92; R v Marzilli [2015] SADC 45; R v F, BR [2013] SADC 138; R v S [2017] SADC 48, considered.

R v TRAN
[2017] SADC 128

The stay applications

1. The Court has before it pre-trial applications for a permanent stay, or alternatively a conditional stay of the trial of four charges of money laundering laid against the accused, Mr Tran.  The permanent stay is essentially based upon the protracted course of the proceedings, whereas the conditional stay relates to what might be generically described as misconduct on the part of the prosecution.  This case is an acute illustration of the problems constantly dogging the expeditious disposal of criminal trials in this court. 

   Summary proceedings

2. The charges relate to transactions occurring on 19 July 2012 in Adelaide.  A truncated chronology of the events founding the applications is as follows.  Mr Tran was arrested on 3 February 2014 on two counts of money laundering and bailed to appear on 31 March 2014 in the Adelaide Magistrates Court, when the matter was listed for a pre‑trial conference and orders for disclosure were made.  The two charges were listed for summary trial on 30 June 2014.  However, on 27 June 2014, a fresh Information was filed so that when the matters came on for summary trial, it did not proceed as the prosecution indicated Mr Tran would be joined on a separate Information jointly charging him with his sister.  The Court made an order for costs as against the South Australian Police as the prosecutors at the time.  Eventually, the two counts of money laundering were summarily dismissed for want of prosecution, but on 12 September 2014, Mr Tran was committed for trial on the joint Information.

   District court proceedings

3. That Information was replaced by an ex officio Information, which included the summary charges previously dismissed for want of prosecution, filed in this Court jointly charging Mr Tran with his sister, and to which he entered pleas of not guilty on 13 October 2014 upon arraignment.  The matter was later set for trial to last 20 days on 2 September 2015.  An application by the defence for severance was listed but not reached on 21 August 2015, but subsequently granted on 28 August 2015, when certain concessions were made by the defence on that contingency.

4. The next trial date was vacated on 16 August 2016 during a directions hearing, because the prosecution indicated a critical witness was unavailable, despite the fact that it gave an assurance and certified the matter was ready to proceed for trial at a callover on 15 July 2016.  This fact was advised to defence counsel by email shortly beforehand from Mr Hill of the Director of Public Prosecution’s Office (DPP) who was assigned to prosecute.  In this note of 9:55am that morning, Mr Hill indicated he was ‘advised this morning’ that ‘the witness was in Europe’, without providing an explanation of how that state of affairs came about.  No explanation was provided either to the Judge who vacated the trial and none was provided in the course of the present applications.

5. A third trial commenced on 21 September 2016 before another Judge of the Court, when a jury was empanelled.  It became apparent during the course of a no case to answer submissions on the second day, that there was a misunderstanding as to the nature and extent of the concession previously made by defence counsel and over the use to be made by the prosecution of an agreed bundle of documents, to the point that the trial Judge was persuaded to declare a mistrial and discharge the jury.

6. A fourth trial was set to commence on 7 March 2017.  Mr Wilson of the DPP who was then prosecuting, advised defence counsel in late February 2017 that the same witness was again not available to give evidence on that date and was again in Europe.  In his email sent at 12:24pm on Sunday 5 March 2017, Mr Wilson rightly described the course of events as ‘a completely unacceptable situation, particularly in circumstances where the trial has previously been vacated for the same reason’.  This missive followed a note to Mr Wilson sent by an Investigating Officer from SAPOL the previous day, informing him that he telephoned the witness ‘on (or about) 23 February 2017 and advised him of the court date’, during which he gained the impression ‘that he wasn’t aware of that date’.

7. A formal order vacating the trial was made on 6 March 2017 and the matter was listed for trial on 20 November 2017.  In the meantime, yet another Judge of the Court considered other preliminary issues on 17 March 2017 when he gave an indicative, although not a final ruling, in respect of that matter.

   Legal principles

8. The principles which attend applications for stays are authoritatively determined and are not in doubt.  Stated briefly for the present purpose, the principles devolve from the inherent jurisdiction of the criminal court to prevent an abuse of its processes: R v McGee.[1]  It is nevertheless, a power rarely exercised bearing in mind the heavy onus an applicant bears to demonstrate a stay is necessary in order to prevent an abuse of process:  Williams v Spautz,[2] and Jago v The District Court of New South Wales.[3]  It is in light of these principles that these applications stand to be considered.

   [1] (2008) 102 SASR 318.

   [2] (1992) 174 CLR 509 at 529.

   [3] (1989) 168 CLR 23 at [31], [34], [60] and [76].

   The application for a permanent stay 

9. The application for a permanent stay is mounted on a number of combined bases, some of which may be dismissed without requiring much discussion.  There is nothing of substance in the submission that anything turns on the filing of an ex officio Information.  That course was on the face of matters, a proper exercise of an unfettered prosecutorial discretion.  In any case Ms Powell QC did not claim there was any procedural prejudice arising from that course and she did not seek the usual remedy for such situations in a Bashar inquiry.  Likewise, the defence complaint that Mr Tran was ‘singled out’ for prosecution when others were involved in some of the transactions, is of no substance because most gave evidence in the prosecution case against Mr Tran’s sister and were therefore, necessarily accepted by the prosecution as witnesses of truth, so that nothing of consequence turns on this situation.

10. Of greater substance is the course of events as detailed above, particularly the fact that a critical witness was not produced for trial on two occasions when he should have been, and after the prosecution provided successive assurances that the matter was ready for trial.  Although the other aspects of the course of these proceedings might be regarded as unfortunate, there is no identifiable fault on either side so far as the consequence of the severance argument is concerned, and otherwise there is no such fault at the hand of either party so far as the other postponements are concerned.

11. It remains a matter of disquiet that the critical witness was not made available by the prosecution on two occasions when assurances were given that the matter was ready for trial.  Such assurances inherently contain a warrant that the necessary witnesses are available on the trial date and will be called by the prosecution.  The failure to produce the witness breached both the successive undertakings and the case flow management principles, enshrined in the rules of Court.

12. The importance of compliance with those rules was emphasised by the Full Court in Rona v District Court of South Australia,[4] which King CJ described as an ‘essential equipment for courts exercising criminal jurisdiction’.  His Honour then continued:[5]

    I consider therefore that the conduct by the DPP of a prosecution other than in accord with the procedural directions given by the Court or the undertakings and assurances given to the Court, may amount to an abuse of the process of the Court and found the jurisdiction to stay the proceedings.  If that were not so the DPP would be immune from the case management regime and “the power of a Court to control its own processes and proceedings”.

    [4] (1995) 63 SASR 223 at 227.

    [5]    At 227.

13. It was held in Rona that an attempt by the DPP to depart from the unequivocal assurances given at a status conference amounted to an abuse of process, giving rise to the power to stay those proceedings, although the facts of that case are quite different from this, and therefore need not be considered any further.

14. Rule 4 of the District Court Criminal Rules 2014 serves to promote ‘the just and efficient determination’ of criminal trials and to facilitate management and supervision of trials in accordance with a ‘system of positive caseflow management’.  Whilst the observations made in Rona,[6] are somewhat dated, they have stood and endured the test of time.  The greater demands on court time, the delays in bringing criminal cases on for trial, and the number of cases not reached because not enough judges are available to hear them, or there are no courts available in which to sit, render those observations more apposite now than they were then.  Even then the decision in Rona was affirmed by successive decisions of the Full Court in R v Rowe,[7] and R v Ling.[8]  It was referred to without criticism by the High Court in DPP v B.[9]  Rona was cited with approval in R v Lorkin.[10]

    [6] (1995) 63 SASR 223.

    [7] (2004) 237 LSJS 474 at [57].

    [8] (1996) 90 A Crim R 376 at 380.

    [9] (1998) 194 CLR 566 at [63]-[65].

    [10] (1995) 15 WAR 499 at 516-518, 529-530 (CCA, WA).

15. There was utterly no explanation at all for the failure to produce the witness on the first occasion in August 2016.  With respect to the second occasion with the trial due to commence on 6 March 2017, the explanation given by another investigating officer is an incomplete and unsatisfactory one.  It may be accepted that he reasonably understood since the witness who was subpoenaed for the trial of Mr Tran’s sister had duly attended Court and was co-operative in that respect and with scheduling conferences with the DPP, that he would comply with attending on the trial date.  One officer deposes that he advised the witness of the proposed trial date in March 2017, and that there were no concerns expressed by the witness as to that.  However he had no further contact with the witness in the meantime and no subpoena was issued to secure his attendance as a matter of caution, despite the mishap on the first occasion.  Another officer explains it was not until ‘weeks leading up to the trial’ that he became aware the witness was no longer in Australia and had travelled overseas for a conference in the United Kingdom.  This necessarily means that the Police held this information for some days at least before Mr Wilson was advised in the email of 4 March 2017, which he read the following day.  The witness was, not unsurprisingly, subpoenaed to attend for the current trial.

16. This explanation is incomplete in the sense that there is nothing before the Court as to precisely what the witness was told and what the witness understood so far as the last trial date is concerned.  The email of 4 March 2017 to Mr Wilson rather suggests such arrangements as there were, were both imprecise and too casual by far.  It is not open on the paucity of material presented to the Court, to infer the witness deliberately disobeyed the obligation to attend.  On the contrary, such information as there is tends to suggest he would co-operate.  The explanation is unsatisfactory in the sense that very little is disclosed by the officer revealing precisely what the witness was told and how it came about that the police ascertained, and when, that the witness was overseas and hence unavailable.

17. The situation is as Mr Wilson rightly said, ‘completely unacceptable’.  It must be clearly understood that the obligations resting on the DPP insofar as assurances of preparedness for trial, necessarily entails the understanding that critical witnesses are available.  Although the primary obligation inheres initially in the DPP itself, it derivatively applies to the police investigating and having conduct of cases coming before the criminal Court for trial.  To adopt the observation of Simpson J in R v Fisher[11] to the present situation, it makes no difference whether the information concerning the witness was in the possession of the Police and should have been earlier disclosed, the fact is that such fault as there was, is on the part of the prosecuting authorities, so that the DPP has to ‘live with that fact’.  It has long been the position that material is considered to be available to the Crown on the basis that it was known to the police, whether or not its existence was known to prosecuting counsel: R v Ward,[12] R v Solomon,[13] Cooley v State of Western Australia,[14] R v Lipton,[15] R v Ulman-Naruniec.[16] 

    [11] (2003) 56 NSWLR 625 at [19].

    [12] (1993) 96 Cr App R 1.

    [13] (2005) 92 SASR 331 at [116].

    [14] (2005) 155 A Crim R 528 at [57].

    [15] (2011) 82 NSWLR 123 at [80] and [106].

    [16] (2003) 143 A Crim R 531 at [140].

18. The two related aspects of the public interest in the due administration of justice relevant to stays on account of the abuse of process, are the necessity to ensure the Court's processes are not misused, as well as the maintenance of public confidence in the administration of justice: Jago v District Court of New South Wales,[17] Walton v Gardiner.[18] 

    [17] (1989) 168 CLR 23 at 30.

    [18] (1993) 177 CLR 378 at 395-396.

19. The courts are rightly criticised in the public arena for delays in bringing matters on for trial, but it is not so well understood that many of the causes of those delays reside with the parties in circumstances beyond the control of the court.  For instance, it is all too common these days on the defence side for late notices of objections to be filed close to and even on the eve of trials, and on the prosecution side all too commonly late disclosure serves to compromise, delay or extend the length of trials.  Trials that are delayed or occupy longer sittings times than expected, have the further consequence that following trials are not reached and are placed into the trial list, usually at least six months later, and very often much longer than that.

20. Returning to the facts of the case and by applying the above principles, nothing sufficiently emerges to otherwise compromise the fair trial of Mr Tran.  Any unfairness resides in the protracted pre-trial course of events as regrettable as they are, rather than in the fair conduct of the trial itself.  In particular, the critical witness is available and can be cross-examined as necessary according to the forensic choices of defence counsel, according to their instructions.  For those reasons, the facts fail to bring the case within the necessary exceptional class of circumstances justifying a permanent stay, at least on that account. 

    The application for a conditional stay 

21. On the other hand, the application for a conditional stay is quite a different matter.  In determining whether a conditional stay is appropriate depends equally on the above principles relevant to stays.  It requires a weighing process involving a subjective balance between a variety of factors and considerations, including 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, the need to maintain public confidence in the administration of justice: Walton v Gardiner,[19] as well as ‘the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business’: Rona v District Court of South Australia.[20]  

    [19] (1993) 177 CLR 378 at 395-396.

    [20] (1995) 63 SASR 223 at 230.

22. Even though there is no direct power to order costs in criminal proceedings brought on information in superior courts, it was held by the Full Court in R v Ulman-Naruniec,[21] that as an adjunct to the inherent jurisdiction to prevent an abuse of process, a court may exceptionally make orders for the payment of costs, effectively for the relief of unfairness sustained by an accused, in that case brought about by the inexcusable failure to disclose.[22]  In so ruling the court applied R v Mosley,[23] in which a trial judge’s order for the legal costs of an accused wasted as a result of an adjournment be paid by the Crown was upheld on the basis that the ‘Court should signify its disapproval of the Crown’s delays, and also its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him’,[24] and also in R v Seebag[25] and R v Fisher,[26] in which costs orders backed by conditional stays were upheld. 

    [21] (2003) 143 A Crim R 531.

    [22] See Sulan J at [232]-[234], Bleby J agreeing at [47].

    [23] (1992) 28 NSWLR 735.

    [24]   Per Gleeson CJ at 741.

    [25]   (Unreported judgment, Court of Criminal Appeal, New South Wales, 16 February 1993, No 60493/92).

    [26] (2003) 56 NSWLR 625.

23. It was this line of authority that led to an order for costs accompanied by a conditional stay in R v Marzilli[27] on account of unfair prejudice because of the failure of the prosecution to secure the attendance of a witness and reliance on a mode of proof doomed to fail.  On the other hand in R v F, BR[28] another Judge of this Court declined to make a costs order, even though the prosecution witnesses were not available, the Judge considering it was ‘a case of inadvertent human error’, not ‘so deplorable’ as to justify an order to stay pending payment of the defendants’ costs.  Yet another Judge of this Court refused to make such an order, on a basis that is not referable to the facts of the present case: R v S.[29] 

    [27] [2015] SADC 45 at [72].

    [28] [2013] SADC 138 at [33]-[34].

    [29] [2017] SADC 48.

1. Given the utter failure of the prosecution to explain why the witness was not available on the first occasion, and the highly unsatisfactory nature of the explanation for the second in the context of the failure to bring proceedings to trial on multiple occasions, it is entirely appropriate for this Court to order that the DPP gives an undertaking to pay some costs in respect of the discharge on that second occasion resulting from the unavailability of the witness.  This constituted an egregious and consequential failure to honour the undertaking that the matter was ready for trial and to take adequate steps to ensure the witness was available. 

2. It is in the combined circumstances necessary to give effect to the dual principles of fairness to the accused and the legitimate public interest in the orderly and prompt disposition of charges in the criminal court, so as to emphasise to police that delays of this kind on such a flimsy and lacklustre basis, is both unacceptable and impinges deeply in its consequences upon the due expedition and disposition of criminal trials. 

3. That being the case, it is proposed to order that the prosecution of this matter be stayed until the Director of Public Prosecutions (SA) provides an undertaking to the court to pay the reasonable costs of the defence taxed on the District court scale, the measure of which is a fee on brief for senior counsel, and an equivalent to a fee on brief for junior counsel for one day for the instructing solicitor. 

   Orders

4. The application for a permanent stay is refused.  The application for a conditional stay is granted on the limited basis just mentioned.  The parties have liberty to apply on short notice if so advised.