R v VITOR - [2017] SADC 85

District Court of South Australia
(Criminal)
R v VITOR
[2017] SADC 85
Ruling of His Honour Judge Beazley (ex tempore)
23 May 2017
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
EVIDENCE - DOCUMENTARY EVIDENCE - JUDICIAL DOCUMENTS AND PROCEEDINGS - CONVICTIONS
STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
VOIR DIRE
Application by accused for an order permitting him to cross-examine witnesses for the prosecution to establish that another individual 'S' had pleaded guilty to having sold the drugs, the subject of the charge against the accused - whether there is an exception to the rule against hearsay to permit such cross-examination - whether the accused is permitted to tender a copy of the record of conviction of 'S' pursuant to s 42 of the Evidence Act.
Held: Application dismissed.
APPLICATION BY ACCUSED FOR STAY OF PROCEEDINGS
Whether the prosecution has changed its position as to the alleged rule of the accused, and accordingly whether it results in a miscarriage of justice - whether the proceedings ought to be stayed -whether irretrievable unfairness to the accused.
Held: Application dismissed.
District Court Criminal Rules, 2014 (SA) Rule 49; Evidence Act s 42, referred to.
Bannon v The Queen (1995) 181 CLR 1; khalid Baker v The Queen (2012) HCA 27; R v Martin (2002) QCA 443; R v Stasi & Makris (2005) SASC 241; R v Errigo (2005) 91 SASR 62; Ridgeway v R (1995) 184 CLR 19; Shirvanian v DPP (1998) 44 NSWLR 129; R v Walton (1989) 166 CLR 283; Batistas v Roads & Traffic Authority of NSW (2006) 226 CLR 256; R v Glennon (1992) 173 CLR 592; R v S, P D [2017] SADC 48; R v Issakidis [2016] NSWSC 1290; and [2015] NSWSC 834; Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, considered.

R v VITOR
[2017] SADC 85
Introduction

By information dated 15 June 2015, the accused is charged with one count of trafficking in a controlled drug. It is trite that the word 'traffic' in that charge may include selling a drug, having possession of a drug intending to sell it or taking part in the process of the sale of the drug.
The particulars of the alleged offence, in the Information, are that the accused on 24 June 2014, at Woodville Park, trafficked in a controlled drug, namely, methylamphetamine, knowing or being reckless as to the fact that the substance was a controlled drug.
The background to the alleged offence, on the prosecution case, is that the accused's mobile phone, from about 20 June 2014, recorded conversations between the accused, ‘A S’, and others capable of establishing that the accused was a wholesaler of a large quantity of drugs, and that he was involved in a drug deal whereby ‘A S’ would be a retailer of the drugs.
There was no expert evidence nor voice identification evidence to be called to establish that the voice on the mobile phone was that of the accused. The prosecution case was one based on circumstantial evidence.
In addition the prosecution case is that the police became aware that there would be a meeting on 24 June 2014 at Woodville Park.
Accordingly a police officer would be called as a witness and depose that he observed a silver Navarra motor vehicle enter those premises on that day. As it transpired that vehicle was registered to another person – one ‘M’.
In fact the only prosecution witness to that event was Detective Brevet Sergeant Parker. He did not identify the person who drove that vehicle, save that he wore a black jumper. Shortly after arrival, ‘S’ arrived in another vehicle and entered the same premises. About half an hour later ‘S’ exited the premises, returned to his vehicle and drove away. The driver of the ‘M’ vehicle, identified only by the black jumper, returned to that silver Navarra.
As I say he was not identified by age, size or other appearance. He was not identified by Detective Parker as being the accused. In addition when that driver returned to the silver Navarra, he was accompanied by another unidentified person. That other person had not previously been seen by Detective Parker. He or she must have been at the premises before ‘S’ and the individual in the black jumper arrived.
The police did not enter the Woodville Park house. Detective Parker could not therefore depose to how many persons were in the house, let alone who they were. He can depose that there were at least three persons at that Woodville Park house. Nothing was noted by Detective Parker about that third person, whether the person was male, female, or any description at all.
The police, however, elected to stop ‘S’ and for some reason did not pursue nor stop the silver Navarra.
A search of ‘S's’ vehicle revealed $1,215 in cash, digital scales and other drug paraphernalia along with a Tupperware container wrapped in electrical tape. In that container was 26 g of methamphetamine. ‘S’ was arrested and charged. He did not identify the accused as the supplier of the drug.
The prosecution case, which is a circumstantial case against the accused, is that he was the driver of the ‘M’ vehicle and that he delivered the Tupperware container to ‘S’ at those premises. No-one saw the driver carry the Tupperware container. As I say, nothing has been said of the other person, the third person, or what his/her role was, nor whether he or she had the container before the other two arrived. The circumstantial evidence appears to consist of the fact that the accused was observed to drive ‘M’s’ vehicle days later in the company of other associates of ‘M’, that the accused’s mobile phone was used to make contact with ‘S’; and DNA evidence.
The accused's DNA along with two others was found on the tape of the Tupperware container. That of course establishes that at some time the accused had touched the tape, whether it be at ‘M’s’ house, ‘M’s’ vehicle, the home of the unknown third person, or elsewhere, is unknown. Subsequently the police conducted various investigations of the accused including entering into his parents' premises at Norton Street, Angle Park on 25 October 2014. Various items were collected at those premises under a general search warrant. Some of them were located in the family shed. They were found alongside documents which were dated sometime in 2008.
On 27 October 2014 at Claremont Avenue Oakden, the police conducted a further search. Finally they searched the accused's home, at Brebner Drive, West Lakes.
The voir dire
A voir dire hearing was conducted prior to the trial commencing. The accused brought three applications pursuant to rule 49 of the District Court Rules, seeking, inter alia, that:
1.   the evidence obtained at the Norton Street premises be excluded.
2.   that expert evidence of that material obtained at Norton Street also be excluded.
3.   that certain pieces of evidence obtained from the Oakden premises be excluded.
4.   that certain evidence to be called as to the position of the accused's mobile telephone at certain times on 24 June 2014 be excluded.
5.   that various calls alleged to have been made to and from the accused’s mobile phone be excluded.
6.   that evidence suggesting that he later purchased some acetone which, amongst other uses, can be a chemical used in the manufacture of methamphetamine, also be excluded.
As to item 6, it transpired that the purchase of the acetone occurred months after the events, the subject of the charge.
In most of those matters I provided ex tempore rulings as to the admissibility or inadmissibility of that material. In some of the matters it was agreed between counsel that the parties would undertake some further investigations. None of those issues are in dispute.
However, and of some significance, counsel for the accused made two oral applications. These became the principal issues on the voir dire.
The oral applications
There were two principal issues raised orally by the accused which were the subject of some detailed argument. There is a common basis for the orders sought by the accused on each issue.
Each involves a very important point of law, in consequence of the conviction and sentence imposed upon ‘S’ in December of 2014.
They are respectively:
·that the court ought to permanently stay the prosecution for reasons to which I will return shortly.
·that the court ought admit evidence that ‘S’ had indeed pleaded guilty to the subject offending and had been sentenced in this court on 5 December 2014.
I will deal with that latter question first, namely, whether the accused ought to be permitted to cross-examine witnesses to prove the conviction of ‘S’.
Relevance of ‘S’s’ guilty plea
The DPP seeks to tender as evidence, various telephone intercepts. It seeks to establish that the recipients of various calls were the accused and ‘S’.
The accused, as it transpired, was not charged until about October 2014. ‘S’ had already indicated his plea of guilty in the Magistrates Court to the charge particularised as selling a controlled drug, namely, methamphetamine.
Accordingly ‘S’ and the accused were not joined together in the one Information. ‘S’ was remanded to this Court for sentence in December of 2014. Indeed, before the sentencing judge, there appears to have been no reference to any involvement by the accused.
The DPP, objects to such evidence being brought to the attention of the jury. It refers to certain case law to which I will return shortly. The prosecution case in this trial is that the jury should infer that ‘S’ was a drug retailer, while the accused was a wholesaler.
A subsidiary question arises as to whether the accused would be or could be permitted to tender a certificate of conviction pursuant to s 42 of the Evidence Act.
The case law
The starting point is the High Court decision in Bannon v The Queen (1995)181 CLR 1, that out of court confessional statements are inadmissible in exculpation of the accused. One can see immediately there is a difference between a confessional statement made out of court and a conviction for a particular offence.
The High Court concluded that there was no exception to the hearsay rule which would render admissible, either against or in favour of an accused, hearsay evidence of a confession made by a co-accused or a third party.
In R v Hook (2001) SASC 339, one of the issues was whether the trial judge erred in refusing to permit the accused to lead evidence of a plea of guilty by a co-accused to the offence on the Information. The accused submitted that there was a change in the prosecution case, giving rise to unfairness.
Doyle CJ, said that the defence was not entitled to cross-examine Crown witnesses in that case, nor to ask whether the other party by its plea of guilty has admitted entering the premises as that was not a permissible question. Nor could the prosecutor be forced by that person's plea of guilty to put the prosecution case on a different basis. That is to say that the other party and not this accused had entered the premises.
The Chief Justice indicated that the accused could call the co-accused if he had pleaded guilty, or tender other evidence to that effect. In that case, however, the mere proof of the plea of guilty could not have advanced the defence case. His Honour noted that the price the defence has to pay for calling the other person to prove who entered the premises would be the risk that the other person might strengthen the prosecution case as to the accused's involvement.
At [28] he said:
I am inclined to think that the defence should have been permitted to prove the plea of guilty if the defence so wished. It is not clear to me that the judge did refuse to permit proof of it, but even if he did that could not have given rise to a miscarriage of justice. Proof of the fact of the plea without an explanation could not in any way have advanced the defence case.
It was consistent, in the end, with the prosecution case at trial and for that reason the argument failed.
That dicta of Doyle CJ is persuasive authority for the proposition that evidence may be led of the conviction. The case of R v Stasi & Makris (2005) SASC 241, involved the tender by consent of a certificate of conviction of a co-accused who pleaded guilty.
The Court of Criminal Appeal repeated the principle that a plea of guilty by an accused person is not of itself evidence in the case of a co-accused. The court noted that it was to the accused's advantage, however, to have before the court the information as to the co-accused's plea. The defence case was that the co-accused was responsible for the cannabis at the house and that the accused's involvement was minimal. The court did not indicate that the evidence was inadmissible but noted that the accused's submission that the certificate had provided the support for his assertion that it was the co-accused who was involved and not him, was not open.
The Court, consistent with the dicta in Hook’s case, indicated that the evidence of conviction alone did nothing to advance the accused's state. There was no suggestion that the certificate was improperly admitted.
In R v Errigo (2005) 91 SASC, the issues principally involved the refusal of the trial judge to permit evidence of conviction and also a statement of agreed facts behind the conviction.
Besanko and White JJ delivered separate Reasons. Debelle J concurred with them both. Besanko J characterised the report of a conviction as a statement that the co-accused had admitted the charge but said nothing of the precise basis for the plea. It did not therefore exclude criminal involvement by the co-accused. His Honour concluded that the report was relevant and that it may have raised a reasonable possibility that the accused did not take part in the offence. He concluded, however, on the authorities, that the report offended the rule against hearsay.
His Honour declined to express a view about whether the report could be independently admissible under s 42 of the Evidence Act.
White J noted that a statement of agreed facts had been prepared for a specific purpose and could not be admitted for the purpose of the trial. He was bound by Bannon’s case not to admit the document as there was no exception to the hearsay rule. His Honour noted that the position was different in Queensland, but said at:
This case does not provide an occasion to revisit the point as decided in previous Full Court decisions or by the High Court.
He did however express the view that the Court record could be admitted under s 42 of the Evidence Act.
There was thus a unanimous decision that the evidence of a conviction of a co-accused by means of cross-examination of a Crown witness would contravene the hearsay rule and would not be allowed.
The Court also noted that the mere tendering of a report without the basis of a conviction being established would not advance the accused as it would not exclude the accused's involvement.
Interstate authorities
In R v Martin (2002) QCA 443, the Court of Criminal Appeal in Queensland, said that the admission by one accused out of court which was favourable to another accused was admissible in that State. The court in that case distinguished the decision in Bannon v The Queen.
Inevitably this was considered again by the High Court more recently in Khalid Baker v The Queen (2012) HCA 27. The Court affirmed its earlier decision in R v Bannon and said that the common law of Australia had not recognised an exception to the hearsay principles for out-of-court confessional statements. However, the High Court said that the exclusion of out-of-court statements in that case did not occasion a miscarriage of justice.
That statement did not in itself provide unambiguous support for the accused’s case. It was suggested that if there were a joint trial and at the joint trial an admission was made by one accused to exculpate the other, that evidence ought to be admitted. That would overcome the suggestion of dangers of third party confessions.
The High Court said that one very important reason for the hearsay rule is the unfairness of depriving a party against whom the hearsay was tendered of the opportunity of cross-examining the maker.
It said that:
The tender of a confession of sole guilt against the maker which is probative of his or her guilt, does not vouch for the reliability of all the assertions made in it.
Among other considerations for this approach were the myriad of reasons for one choosing not to implicate a confederate when confessing its own guilt? It said, however, that there will ordinarily be no unfairness where there's a joint trial.
The law is in an unfortunate state. The High Court noted that legislation in Tasmania, Victoria and Queensland now permits third party confessions in homicide cases to be admitted. It noted there was a clear majority of Australian jurisdictions in which third party confessions are admissible at the instance of the defence.
In the United Kingdom, following the decision in R v Myers the High Court reaffirmed that at common law the principles that govern the admission of hearsay confessions remains the same.
Despite such confusion as to the law presently, I'm obliged to rule that no questions could be asked of a police witness about whether the co-accused had been convicted. It seems, however on, the basis of R v Hook, the accused would be permitted to call ‘S’ as a witness in the trial.
This is rather odd because the accused is not required to prove anything in a trial.
I adopt the dicta of Doyle CJ in R v Hook, that it would be better in this case if the evidence of a conviction, and the basis for it, could be put before the jury as an agreed fact if such is insisted upon by the accused. The difficulty here is that there's no agreement as to the facts of the plea. In its absence the case for the accused cannot be advanced at all.
I do not need to express any view about s 42 of the Evidence Act, because the conviction of itself does not advance the accused’s case at all. I refuse the accused’s oral application to cross-examine the prosecution witnesses on this topic or to tender the record of ‘S’ conviction.
Abuse of process
The submission made by the accused is that the DPP had made submissions to the sentencing judge in the ‘S’ case that it was ‘S’ who sold the drugs, and not that he had purchased them for a wholesaler. This gives rise to the question as to whether the Information against the accused ought to be stayed as an abuse of process.
The submission by the accused is, in the ‘S’ case, it was ‘S’ who sold the drugs, and the basis of the plea, in effect, is that he alone had conducted the drug deal on 24 June 2014. At its highest the accused, if identified, could only have been purchasing the drugs from ‘S’. It was therefore said it was an abuse of process to charge the accused with trafficking in methamphetamine in the sense of him being the wholesaler of the drug on that occasion.
The alleged abuse was caused by the DPP allegedly changing the nature of its case arising out of the drug deal at Woodville.
The accused submits that the Court ought to permanently stay the prosecution on that information on the basis that it would be an abuse of process amounting to a misuse of the court's procedures. That submission of course depends upon what in fact was the basis of the plea in the sentencing of ‘S’ by a Judge on 5 December 2014.
The principles relating to a permanent stay are well-known and I will save everyone a great deal of time by not repeating them at length other than to say in the case of R v S; PD (2017) SADC 48 at pp.13-15 inclusive I set out in great detail all of the case law dealing with the power to grant a permanent stay of proceedings. I adopt them as part of these oral reasons.

In short, decisions made by the DPP as to whether or not to prosecute and as to the nature of the charge to be laid or prosecuted are not susceptible of judicial review. That much is clear from the case of Maxwell v R in 1995.
It is well established that a criminal court has an inherent jurisdiction to prevent an abuse of its process. One remedy available to the court is the power to grant a permanent stay. That remedy should only be exercised in exceptional circumstances. The power to stay proceedings for an abuse of process may be invoked to ensure that proceedings will not result in an unfair trial. The jurisdiction for the stay is not limited, and indeed the circumstances in which an abuse of process may arise are extremely varied and not limited by categories. The Court is empowered to stay proceedings where the prosecution embarks upon a course of conduct which is of a sufficiently oppressive kind as to jeopardise the proper operation of the court's function. See Ridgeway v R (1995) 184 CLR 19. In Shirvanian v The DPP (1998) 44 NSWLR 129, Mason P said:
Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally.
In R v Walton which was referred the court said:
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 the crime and the need to maintain public confidence in the administration of justice.
In R v Faiello threats had been made by the DPP to prosecute a material defence witness. That was held to be unfair and inconsistent with a previous undertaking, and had the potential to prejudice the defence case and accordingly those proceedings were permanently stayed.
I return to the facts of the ‘S’ plea as best can be determined from the published transcript and also the sentencing judge's remarks.
No mention was made of the accused in the submissions to the Court on ‘S’s’ sentencing. They are unhelpful for the purpose of the accused’s application for a stay. It might be said that a fair inference from what was put by the DPP was that there had not been a sale by Mr ‘S’ at the time of the Woodville meeting. When dealing with the $1,215 cash, counsel for the DPP said that it is the prosecution submission that there is a clear inference that at least the majority of the money in the car is from previous sales of controlled substances. The DPP had sought an order for forfeiture of only a fraction of the cash. That is inconsistent with this being the proceeds of a sale on that particular day. It does not assist in determining whether the drugs were obtained from the Woodville house at that time. The matter went off on a series of issues about that accused's life and the fact that he had a significant drug habit and about the fact of him being a user of drugs. Part of the discussion was why did he have such a quantity of the drug in his possession.
The sentencing Judge then said:
He's selling out in the car when the police pinched him. It will not be determinative of sentence but I'm not a fool. Your client's level of drug use and the amount of drugs and the circumstances. I have no doubt he was a user, but I don't accept from the bar table a submission that he was trafficking in methamphetamine just for personal use.
The DPP put a submission to the sentencing Judge that it was within the discretion of her Honour to suspend the sentence. Had this case been put on the basis that ‘S’ was a rather large commercial dealer, selling all of these drugs, one would have thought it most unlikely that there could have been a submission that the sentence could be suspended? All that was put by the DPP was that a deal had occurred, not that ‘S’ was a dealer who had obtained the drugs from someone else at Woodville. The submissions are not wholly inconsistent with the prosecution case here if they can prove that this accused was a wholesaler, while ‘S’ was a retailer.
There can be no irretrievable unfairness to the accused in the subject prosecution, in consequence of the manner in which the guilty plea was conducted in the ‘S’ case.
There is nothing to indicate that the prosecution proceeded on the basis that ‘S’ was in fact a seller of drugs who sold to the accused. Although it raises a very important matter of law, it seems to me on the facts of this case that there is no proper basis for the proceedings to be stayed. Accordingly, I dismiss the application for a stay.
I will leave it to the parties to determine whether the basis of the prosecution of the plea against ‘S’ might in some way be put before the Court. It will be plain to the jury that ‘S’ went to the Woodville house, and was soon after arrested in possession of the drug. But, his conviction cannot assist the accused unless the circumstances of the plea are agreed. In the absence of an agreement between the parties, I will not permit any prosecution witness to be cross-examined in that respect.