R v Zonneveld
[2018] ACTSC 97
•16 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zonneveld |
Citation: | [2018] ACTSC 97 |
Hearing Date: | 13 March 2018 |
DecisionDate: | 16 March 2018 |
Before: | Murrell CJ |
Decision: | Application dismissed. |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – application to stay criminal trial until costs of accused are paid – whether stay application should be granted – unfairness to applicant |
Legislation Cited: | Crimes Act1900 (ACT) s 63A Criminal Code 2002 (ACT s 48 Magistrates Court Act 1930 (ACT) s 88B |
Cases Cited: | Barton v The Queen (1980) 147 CLR 75 Jago v District Court of New South Wales (1989) 168 CLR 23 The Queen v Upton [2005] ACTSC 52 |
Parties: | Mark Adam Zonneveld (Applicant) ACT Director of Public Prosecutions (Respondent) |
Representation: | Counsel Mr P Walker SC (Applicant) Ms S McMurray (Respondent) |
| Solicitors Ben Aulich & Associates (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCC 286 of 2016 |
MURRELL CJ:
On 16 April 2018, the applicant and the co-accused are to be tried on the charge that between 17 March 2011 and 1 March 2015, at Canberra, they conspired to commit the offence of bestiality contrary to s 63A of the Crimes Act1900 (ACT) and s 48 of the Criminal Code 2002 (ACT).
The applicant applies for an order staying the trial until the Crown pays or undertakes to pay the costs that he has thrown away because of the Crown’s belated decision to abandon the substantive charges of bestiality.
Chronology
On 7 June 2016, the applicant was charged with one offence of bestiality involving a dog.
On 10 October 2016, the applicant’s legal representatives sought particulars of the charge, including details of the act or acts which formed the subject of the charge.
On 27 October 2016, the Crown indicated that the date range in the original charge would be narrowed and that there would be two further charges of bestiality, relating to later periods.
On 2 November 2016, the applicant’s legal representatives asked the Crown to identify with precision, for each of the three charges, the act relied upon and the dog in question.
On 3 November 2016, the Crown identified the dog but did not particularise the acts relied upon.
On the applicant’s application, and with the Crown’s consent, on 16 December 2016 the matter was committed to the Supreme Court for trial under s 88B of the Magistrates Court Act 1930 (ACT).
The co-accused was also committed for trial. He faces numerous additional and unrelated charges, including charges of using a child for the production of child pornography.
10. On 24 April 2017, the Crown filed a joint indictment against the applicant and the co-accused that contained twelve counts, including four counts alleging that the applicant engaged in bestiality by way of joint commission.
11. A second indictment dated 5 July 2017 added a further count to the indictment that affected the co-accused only.
12. On 18 August 2017, I heard an application by the Crown to lead tendency evidence and an application by the applicant to sever the indictment. In the course of discussion, I asked the Crown to identify the acts relied upon to support the bestiality charges, but the Crown did not identify the acts. I observed that the evidence upon which the Crown relied seemed to be inadequate to establish that the applicant had committed substantive offences; rather, it showed that the applicant and the co-accused had a mutual interest in bestiality.
13. I determined that the indictment should be severed, but left it to the Crown to determine which of several options it wished to pursue. I indicated that, if the applicant was to be tried with the co-accused, the trial must be confined to the bestiality charges.
14. On 24 August 2017, the Crown filed a third indictment, alleging that the applicant had committed the four offences of bestiality that were the subject of the earlier indictments.
15. On 13 October 2017, the applicant’s legal representatives again asked the Crown to identify the manner in which the applicant allegedly engaged in sexual activity with an animal. The letter referred to the decision in Jago v District Court of New South Wales (1989) 168 CLR 23, 59 (Jago), in which Deane J observed that particulars must be adequate to afford to an accused person a proper opportunity of preparing their defence. The letter also referred to comments that I had made in August 2017.
16. On 21 November 2017, the Crown responded stating, inter alia, that on the charged dates the applicant and the co-accused had jointly engaged in sexual activity with a named dog. However, the nature of the alleged sexual activity was not identified.
17. On 7 December 2017, the applicant filed an application asking that the proceedings be stayed until the Crown provided adequate particulars of the four bestiality charges and paid the costs of the application.
18. In December 2017 and on 8 January 2018, the Crown informed the applicant that it was considering amending the existing indictment or filing a new indictment. The nature of the possible change or changes was not indicated.
19. In accordance with directions that had been made by the Registrar, on 11 January 2018 the applicant filed and served submissions in support of the stay application.
20. Subsequently, the applicant discovered that, on 11 January 2018, the Crown had filed a fourth indictment, alleging that between 17 March 2011 and 1 March 2015 the applicant and the co-accused conspired to commit the offence of bestiality.
21. On 29 January 2018, the Crown particularised the conspiracy offence by reference to the statements of facts and case statements already filed.
22. The stay application was listed before Mossop J on 5 February 2018, together with an application by the Crown pursuant to s 50 of the Evidence Act 2011 (ACT). His Honour adjourned the applicant’s application to allow the applicant to request particulars and provide any draft proposed undertaking as to the costs by the Crown, and for the Crown to provide particulars of the conspiracy charge and respond to any requested undertaking as to costs.
23. The applicant sought particulars on 7 February 2018 and the Crown responded on 13 February 2018. The applicant does not seek further particulars of the conspiracy charge.
24. At the hearing of this application, the Crown confirmed that it will not proceed on the earlier indictments alleging substantive offences of bestiality and will proceed only on the conspiracy charge in the fourth indictment.
Stay of proceedings
25. A court may prevent an abuse of its process by staying “a trial which is unfair when judged by reference to accepted standards of justice”: Barton v The Queen (1980) 147 CLR 75, 95–96 per Gibbs ACJ and Mason J. In Jago, at 57, Deane J observed that the right to a fair trial is “more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial”.
26. A stay of a criminal trial is a very exceptional remedy: Jago per Mason CJ at 31. “If permanent stay orders were to become commonplace … [the] courts would forfeit public confidence”: Jago per Brennan J at 50. The interests of the community and victims in trial proceeding must be respected: Jago per Brennan J at 54. Further, the decision about whether to present an indictment lies within the independent discretion of the prosecuting authorities and is not reviewable by the courts: Jago per Gaudron J at 77.
27. The determination of whether a trial will be unfair may involve a consideration of the whole criminal process leading up to the trial: Jago per Mason CJ at 29–30. In Jago at 57, Deane J noted that “default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one”. His Honour gave the examples of failure to supply adequate particulars to enable the proper preparation of a defence and the concealment of important evidence that assists the defence.
28. In R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 (Fisher), the Court emphasised the significance of a default or misuse of process by the prosecuting authorities when considering whether to grant a stay of proceedings. At [7], Santow JA (with whom Smart AJ agreed) said (emphasis in original):
The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weight against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness.
29. In Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302 at [17] (Petroulias), Ipp JA said:
In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness.
30. In this and other jurisdictions a number of decisions have considered the grant of a stay conditional on the prosecution paying the costs of the accused.
31. In R v Mosely (1992) 28 NSWLR 735, the prosecution had sought an adjournment on the first day of the trial because two material witnesses were unavailable. The trial judge granted an adjournment, ordering the prosecution to pay the accused’s costs. On appeal, the Court of Criminal Appeal held that the trial judge had no power to make the costs order. However, Gleeson CJ said that there was a power to stay the proceedings until the costs were paid.
32. In Fisher, a temporary stay was granted on the basis that it would be unfair for the Crown to force the accused to proceed to a third trial without first paying the wasted costs of the second trial that had been aborted due to the Crown’s failure to produce a document; this was described as a fault “of a relatively serious kind”.
33. In the first trial of Petroulias, the accused had been discharged because the jury was unable to reach a verdict. After running for six weeks, a second trial was aborted when it was discovered that one of the jurors was disqualified from being a juror. To fund a third trial, the applicant had expected to receive a large sum from a litigation funder, but the Australian Taxation Office issued a notice freezing the money. The applicant sought a stay of the third trial until the Crown paid to him the reasonable costs that he had incurred in the second trial. The Court upheld the trial judge’s discretionary decision to refuse a stay.
34. In The Queen v Martinello [2005] ACTSC 9, the prosecution had requested an adjournment on the day that the trial was scheduled to commence. Connolly J stayed the proceedings until the prosecution paid the costs thrown away by the adjournment.
35. In The Queen v Upton [2005] ACTSC 52, Connolly J stayed a re-trial when, on the Friday prior to the Monday when the trial was scheduled to commence, the prosecution applied to vacate the trial date because key witnesses could not be located.
36. In R v Bui [2011] ACTSC 102; 5 ACTLR 230, the prosecution had served the accused with a lever-arch folder of previously undisclosed material only days before the scheduled trial, necessitating an adjournment of the trial. Refshauge J ordered a stay conditional on the prosecution paying the accused’s costs on the basis that there was “proved fault on the part of the prosecution which … caused the vacation of the trial date” (at [99]) and the stay order was required to address “substantial unfairness not otherwise able to be cured” (at [95]).
37. I respectfully agree with his Honour’s view that, when determining a stay application where the accused alleges prosecution fault, it is necessary to advert both to the nature and degree of prosecution fault and to whether resulting substantial unfairness can be cured otherwise than by the grant of a stay. I would add that “substantial unfairness” to the accused does not mean general unfairness, but rather, as Deane J explained in Jago, the prospect that a trial will be unfair in the sense that the accused may be convicted otherwise than after a fair trial.
Consideration
38. Between October 2016 and January 2018, the applicant’s legal representatives made several requests for particulars of the acts upon which the Crown relied to support the substantive charges. Particulars were not provided, presumably because the evidence available to the Crown did not clearly establish that acts of bestiality had occurred. In August 2017, the evidentiary problem was drawn to the Crown’s attention in clear terms, yet the Crown pressed on with the substantive charges.
39. It was only after the applicant made an application to conditionally stay the proceedings pending the provision of adequate particulars of the substantive charges that the Crown saw fit to file a different indictment.
40. No doubt, the applicant has incurred significant legal costs in seeking particulars that were never provided and, in all probability, never could have been provided. Further, he incurred expenses associated with instituting the stay proceedings that, I infer, finally caused the Crown to question whether it should proceed on an indictment alleging substantive offences.
41. The Crown has been at fault in failing to abandon the substantive charges at a much earlier point in time. Further, in a broad sense, the Crown’s fault has caused significant unfairness to the applicant because he has been obliged to incur costs that should have been unnecessary.
42. However, there has been no substantial unfairness in the relevant sense. A stay will not be granted just because prosecution authorities pursue proceedings inefficiently or belatedly abandon ill-conceived charges.
43. In this case, the Crown’s fault does not mean that the imminent trial will be unfair in the sense that the applicant may be convicted otherwise than after a fair trial.
44. The application is dismissed.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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