Tasmania v C
[2022] TASSC 23
•25 November 2020
[2022] TASSC 23
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v C [2022] TASSC 23
PARTIES: STATE OF TASMANIA
v
C, H L
FILE NO: 999/2019
DELIVERED ON: 25 November 2020
DATE PUBLISHED: 13 April 2022
DELIVERED AT: Hobart
HEARING DATES: 2 July 2020
JUDGMENT OF: Brett J
CATCHWORDS:
Procedure – Pleas – Plea in bar – Plea of autrefois acquit or autrefois convict – Whether valid plea after dismissal of charge – Magistrate dismissing a complaint does not amount to an acquittal – Indictable crime commenced by the filing of an indictment in the Supreme Court – Accused not in jeopardy of conviction.
Aust Dig Criminal Law [3101]
Procedure – Adjournment, stay of proceedings or restraining proceedings – Stay of proceedings – Abuse of process – Circumstances and considerations to a Court in deciding whether proceeding should be stayed – Consequences of delay – Application for a permanent stay of proceedings refused.
Acts Interpretation Act 1931 (Tas), s 38.
Criminal Code (Tas), ss 7, 310(3), 351(6), 355(1)(b)(v) and 361.
Justices Act 1959 (Tas), ss 56A, 59 (1) (f) and 62.
Gilham v The Queen [2007] NSWCCA 323, 73 NSWLR 308; Island Maritime Limited v Filipowski [2006] HCA 30, 226 CLR 328; Jago v District Court of New South Wales (1989) 168 CLR 23; Maxwell v Horten [2011] TASMC 25; Neasey v Strickland (1995) 5 Tas R 228; R v Carroll (2002) 213 CLR 635; R v Dabhade [1993] QB 329; R v Hill (1982) 7 A Crim R 161; R v McConnon [1955] Tas R 1; Rogers v The Queen (1994) 181 CLR 251, referred to.
Aust Dig Criminal Law [3054]
REPRESENTATION:
Counsel:
Appellant: D G Coates SC
Accused: M Flanagan
Solicitors:
Appellant: Director of Public Prosecutions
Accused: Murdoch Clarke
Judgment Number: [2022] TASSC 23
Number of paragraphs: 30
Serial No 23/2022
File No 999/2019
TASMANIA v H L C
REASONS FOR RULING BRETT J
25 November 2020
The accused has been charged on indictment with one count of rape. The allegation is that on or about 19 August 1993, he had vaginal sexual intercourse with the complainant without her consent. He has pleaded to the indictment pursuant to s 355(1)(b)(v) of the Criminal Code that he has already been acquitted summarily of an offence in respect of which he might have been indicted upon the charge contained in the current indictment. This plea in bar asserts the principle autrefois acquit.
Section 361 of the Code provides that in the case of such a plea, the judge shall determine it in such manner and upon such evidence "as he thinks fit". A discretion is afforded to the trial judge to order that any question of fact necessary for that determination be tried by a jury. The parties have agreed in this case that I should determine the plea on the basis of the Crown papers, together with court records relating to earlier proceedings. Further, the defence argues that even if I reject the plea in bar, I should, on the basis of the circumstances surrounding the earlier proceedings, order a permanent stay of proceedings on the indictment, or, in the alternative, refuse to admit critical evidence in the trial. The parties have agreed that the stay application should also be determined now on the basis of the Crown papers and documentary evidence.
The crime alleged in the indictment relates to events which took place on 20 August 1993. At that time, both the complainant and the accused were 17 years of age. According to the complainant's proof of evidence, they met for the first time at a party at the residence of a mutual friend. After leaving the party, the complainant returned a short time later to collect property, including her keys, which she had inadvertently left there. The accused had taken possession of her keys and refused to return them. The complainant alleges that during an argument over the keys, which took place in a garden area outside the house, he attacked and raped her.
It is clear from the Crown papers that the allegation was reported to police, and an investigation was conducted shortly after the commission of the alleged crimes. The Crown papers contain a copy of the complainant's statutory declaration, together with statements of a number of witnesses taken in 1993 and 1994. Other aspects of the investigation included the collection and testing of forensic samples, and photographs. On 29 August 1993, police conducted a recorded interview with the accused. In the interview, the accused agreed that he had attended the relevant party where he had met a female whose first name and description were consistent with those of the complainant. However, he denied raping or having consensual sexual intercourse with her, or assaulting her. At the conclusion of the interview, the accused was charged with one count of rape and one count of aggravated assault.
These charges were contained in complaint 7233/93, which was made on 29 August 1993. I have been provided with the complaint and a written record of proceedings sheet retained in the records of the Magistrates Court. Those documents disclose that the accused appeared on a number of occasions until, on 15 December 1993, there is an entry in the record of proceedings sheet that the accused "elects uncontested committal proceedings". It is not clear when he entered pleas of not guilty. The record discloses that, after making that election, the matter was adjourned to 4 March 1994, for the conduct of the committal proceedings.
On 4 March 1994, the matter was adjourned to 12 April 1994. The record of 12 April 1994 discloses that the accused was legally represented and that he adhered to his pleas. The following entry then appears:
"Tender no evidence
Dismissed".
The record also discloses that the proceeding was conducted by Magistrate M Hill (as he then was).
On 19 June 2018, the complainant made a statutory declaration which confirms the events in 1993 and refers to the earlier prosecution. At the time of making that declaration, the complainant was 42 years of age. In the declaration, she describes going to court to identify the accused. She recounts intimidating conduct on the part of the accused and his family while she was waiting outside the court. It seems that she responded to this intimidation by leaving before giving evidence. She also alleges that she subsequently remained in fear of the accused and was stalked by him. Although the accused does not accept these allegations, it is uncontroversial that the complainant remained an unwilling witness until her statutory declaration in 2018.
The accused was again charged with the crime of rape on complaint made on 22 August 2019. Pursuant to s 59(1)(f) of the Justices Act 1959, he pleaded that he had previously been found not guilty of the offence, and was committed to this Court for trial. The indictment was filed on 13 March 2020.
The plea in bar
The plea of autrefois acquit will, if made out, "prevent the prosecution from asserting the contrary of what has previously been judicially determined in favour of an accused": Rogers v The Queen (1994) 181 CLR 251 per Deane and Gaudron JJ at 16. The rationale for this and other related principles was described by Gaudron and Gummow JJ in R v Carroll [2002] HCA 55, 213 CLR 635 at [86] as follows:
"[86] The interests at stake in a case such as the present were discussed in Rogers v The Queen and in Pearce v The Queen. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature." [Footnotes omitted.]
Mr Flanagan spent considerable time developing arguments under each of the headings of finality, incontrovertibility and double jeopardy. However, as noted by the High Court, these are principles which underpin and justify the principle of autrefois acquit. If the plea is made out, then the prosecution must fail. Otherwise, the plea will not succeed, although the issues of abuse of process and the objection to evidence must be separately considered.
The plea which has been raised by the accused is that the accused "has already been acquitted … summarily, of an offence in respect of which he might have been indicted upon the charge to which he is called upon to plead". The argument is that according to the record, upon the prosecution tendering no evidence, the magistrate dismissed the complaint, and hence the charges contained in it. Mr Flanagan submits that this amounts to a summary acquittal of the charge of rape, and establishes the plea under s 355(1)(b)(v). He submits that even if the magistrate was without jurisdiction or otherwise in error in making that decision, it still amounts to an acquittal and is incontrovertible unless and until the acquittal has been set aside upon appeal or by some other lawful process. Counsel argues that this has not happened and, accordingly, the plea should be upheld.
There are a number of difficulties with this argument. Firstly, the plea relies upon the existence of a previous acquittal. In this case, there is no doubt that the magistrate purported to dismiss the earlier complaint, after the prosecution had failed to present evidence for the purpose of the committal hearing. Mr Flanagan's submission that this dismissal amounts to an acquittal, relies on the analogy with the determination by a magistrate of a summary offence. When the prosecution tenders no evidence before a magistrate at the hearing of a summary charge, the effect is that the prosecution, upon being put to proof, declines to present any evidence to support the charge. The result is that the prosecution has not proved its case and the outcome of the hearing is an acquittal. See my comments as a magistrate in Maxwell v Horten [2011] TASMC 25 and the decision of Blow J (as he then was) in Tasmania v Finnegan [2013] TASSC 74.
However, those principles are not applicable, or even analogous, to the committal proceedings before the magistrate in this case. Section 38 of the Acts Interpretation Act 1931 clearly distinguishes between the determination of summary proceedings, which are required to proceed in accordance with the Justices Act 1959, and proceedings in respect of a crime, which must be conducted "by indictment in accordance with the provisions of the Criminal Code". The proceedings before the magistrate did not involve the determination of a charge of a summary offence, nor were they proceedings under the Code in respect of a crime. Section 7 of the Code provides that proceedings against a person for a crime shall be initiated by indictment. The proceedings before the magistrate were committal proceedings, conducted in accordance with s 56A of the Justices Act as it was then in force. Section 56A(6) provided:
"(6) If the defendant pleads not guilty or cause to show, the defendant shall be asked to choose one of the following courses:
(a) that the defendant requires the depositions of witnesses to be taken before a justice and proposes to dispute that an order for committal be made;
(b) that, while not disputing that an order for committal be made, the defendant requires the depositions of one or more witnesses to be taken before a justice before the order for committal is made;
(c) that the defendant does not require any depositions of witnesses to be taken before a justice."
It is uncontentious that the election by the accused of "uncontested committal proceedings", as noted in the record of proceedings sheet, is a reference to the course of proceedings specified in s 56A(6)(b).
The committal proceedings before the magistrate were not proceedings conducted to determine the charge against the accused. In fact, they did not constitute a judicial proceeding at all. The magistrate was conducting an administrative function in the nature of a preliminary investigation. His Honour was not hearing the charge and he had no power to acquit the accused of it. The determination of the charges was not the question before him. This is all made clear by Zeeman J in Neasey v Strickland (1995) 5 Tas R 228, a case in which a question arose as to the power of a magistrate to dismiss a charge after finding that there was no case to answer after a contested committal. His Honour said:
"[18] The learned magistrate had no jurisdiction to dismiss the charges under the Code because he was required to conduct a merely preliminary investigation. As to those charges, the submission by each applicant that he had no case to answer is to be taken as having been a submission that he should not be committed for trial because he had no case to answer (see Cox v Coleridge (1822) 1 B and C 37; [1822] Eng R 19; 107 ER 15). The test as to whether a defendant should be committed for trial is that expressed by Hutley JA in Wentworth v Rogers (1984) 2 NSWLR 422 which was adopted by at least two of the members of the Full Court in R v Farrell A42/1995 as being the test applicable for the purposes of the Justices Act, s62(a). A determination by the learned magistrate that the applicants should not be committed for trial, which is implicit from his ruling that they had no case to answer, did not confer upon him any power to dismiss any matter of complaint. Indeed it was still open to the Crown to indict (R v McConnon (1955) Tas R 7).
[19] A decision that the evidence is not sufficient to commit a defendant for trial for an indictable offence is not an order of adjudication determining issues between the parties and does not authorise the dismissal of the charge (R v Nichol (1979) 26 ACTR 19). I am not aware of it ever having been suggested that such a course is authorised. It follows that the orders of dismissal of the charges under the Code made by the learned magistrate are nullities."
It is clear that the magistrate's power was limited to committing the accused for trial in accordance with s 62, but the power of committal only arose after the required depositions had been taken. The magistrate also had power to commit under s 62 if an order for committal had been disputed under s 56(6)(a), but the magistrate was of the opinion that the evidence was sufficient to put the defendant on trial for the indictable offence, or the defendant had not required depositions of witnesses to be taken (s 56(6)(c)). Section 61 provided that where depositions had been taken but the justices were of the opinion that the evidence was not sufficient to put the defendant on trial for any indictable offence then, if the defendant was in custody, he was to be discharged as to the complaint under enquiry. This discharge meant that the accused would be discharged from custody without the need to be admitted to bail, and does not constitute an acquittal: R v Hill (1982) 7 A Crim R 161. Otherwise, the legislation was silent as to the power of the magistrate to deal with the complaint. It follows that the magistrate's only power after the conduct of committal proceedings in the case of an accused who was not in custody, was either to commit in accordance with s 62, or to refrain from committing for trial. See R v McConnon [1955] Tas R 1 at 3.
The only significance of the failure of the prosecution to present evidence at the committal hearing for the purpose of depositions after the accused had elected uncontested committals, but before the conduct of those proceedings, was an indication that the prosecution had decided that it would not proceed further on the complaint, in the sense that it would not be seeking an order for committal. In any event, because the depositions had not been taken, the magistrate had no power to make the order of committal. The proceedings were thereby left in a state of abeyance, although, of course, the accused was then subject to bail. There is no doubt that the magistrate had power to discharge the bail order and thereby relieve the accused from his bail obligations, in a similar way to what takes place when a complaint alleging a summary offence is adjourned sine die.
I think it is extremely unlikely that the magistrate, who was by then a very experienced magistrate, and went on to become Deputy Chief and then Chief Magistrate, was purporting to do anything more than administratively acknowledge that the committal proceedings had, for practical purposes, ended and the accused was relieved from further appearance in respect of those proceedings, when he noted that the complaint was dismissed. I think it is improbable that his Honour would have thought that he had the power to acquit the accused of these indictable crimes. It is obvious in my view that by purporting to dismiss the complaint, the magistrate was simply relieving him from ongoing bail obligations. The magistrate's note that he had dismissed the charge does not amount to an acquittal for the purpose of this plea.
Further, and in any event, it is well established that it is a "key precondition" of a plea of autrefois acquit that the accused must have been in jeopardy on the charge: Island Maritime Limited v Filipowski [2006] HCA 30, 226 CLR 328, per Gleeson CJ, Heydon and Crennan JJ at [11]. An accused will not be in the requisite jeopardy unless, in the proceedings, there is a possibility of a valid conviction. Broome v Chenoweth (1946) 73 CLR 583 per Dixon J at 599; Island Maritime Limited v Filipowski at [12] and [20]. Clearly, there was no possibility of such a result in respect of the proceedings before the magistrate, because those proceedings, as already noted, did not amount to an adjudication of the charges. The proceedings by which an indictable crime can be prosecuted, resulting in conviction or acquittal, can only be commenced by the filing of an indictment in the Supreme Court, which are then conducted in accordance with the Code, s 7. It is these proceedings in which an accused would be in jeopardy of conviction. The complaint in the Magistrates Court did not commence the prosecution of the charges. It simply commenced the preliminary investigation whereby, under the provisions already discussed, a magistrate might commit the accused to the Supreme Court for trial. Of course, committal pursuant to this process is not necessary to enable a charge of an indictable offence to proceed before the Supreme Court. Section 310(3) of the Code provides that a "Crown Law Officer may file an indictment against any person for a crime whether he has been committed for trial or not". It is clear that this power exists notwithstanding that after committal proceedings, a magistrate has refrained from making the order of committal.
This is consistent with authorities which support the proposition that an acquittal sufficient to support a plea of autrefois acquit in respect of an indictable crime will only arise where the adjudication has been made after the commencement of the trial: see R v Dabhade [1993] QB 329; Gilham v The Queen [2007] NSWCCA 323, 73 NSWLR 308 per McLennan CJ at CL at [173]-[174]. Under the Code, the trial of an indictable offence commences when the accused is brought before the Supreme Court on an indictment and called upon to plead to the indictment: see s 351(6).
It follows that the accused was not in jeopardy of conviction during the relevant proceedings, and the magistrate's order did not amount to an acquittal of the charge. Therefore, autrefois acquit has not been established and the plea in bar cannot succeed.
Permanent stay of proceedings
The accused seeks a permanent stay of proceedings on the indictment as an alternative to the plea in bar. Mr Flanagan's submissions refer to a number of considerations which are said to inform a conclusion that it would be unjust to allow the prosecution to proceed on this indictment, given the way in which the proceedings in 1994 came to an end. These include the principles of incontrovertibility and finality. The submissions relating to these considerations rely heavily on the final and binding nature of the magistrate's order dismissing the complaint. For the reasons already given, that order was either not intended to amount to an acquittal, and even if it did, was beyond jurisdiction and a nullity. Accordingly, the order itself will not support a permanent stay of proceedings.
However, the accused also relies on the delay in filing the indictment. It is argued that this delay has had consequences which enliven the Court's discretion and warrant the grant of a stay. The particular consequences are as follows:
· Having been informed that the prosecution was not going to proceed with this case, and then having the case dismissed, the accused has then lived his life assuming that the matter was at an end.
· The delay will result in general prejudice, as well as specific prejudice arising from legislative and procedural changes in the intervening period, which make it easier for the prosecution to establish the case against him.
The grant of a permanent stay in criminal proceedings is a remedy applied by the courts to prevent an abuse of process and, in particular, an abuse of prosecutorial power, in circumstances in which the result will be an unfair trial and/or the administration of justice will be brought into disrepute. Mere delay will not justify a stay in proceedings, although it can be relevant to the question of whether a stay is required to prevent an abuse of process: Jago v District Court of New South Wales (1989) 168 CLR 23. In that case, Mason CJ said at 33-34:
"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR at 102, 106; Sang [1980] AC at 437; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24 at 31–32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo [1972] USSC 146; (1972) 407 US 514; Bell v DPP [1985] AC 937, as explained in Watson (1987) 8 NSWLR at 685, and Gorman v Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256 at 263–264.
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': Barton (1980) 147 CLR at 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute'."
In the same case, Deane J listed the "five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances". They are:
· the length of the delay;
· reasons given by the prosecution to explain or justify the delay;
· the accused's responsibility for and past attitude to the delay;
· proven or likely prejudice to the accused; and
· the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.
In this case, there is no doubt that the delay is a lengthy one, but that is not of itself unusual in cases involving sexual crimes. It is well-known that crimes of this nature have significant and long-term psychological consequences for the victim, and this often explains delay in prosecution. The prosecution has explained the delay in this case on that basis. The accused accepts that the complainant was an unwilling witness until she made her statutory declaration in 2018, although the reasons provided by her for that unwillingness, threatening and intimidating behaviour on the part of the accused, are not accepted. However, Mr Flanagan submits that this case can be distinguished from other cases involving historic sexual crimes because of the fact that the accused was charged in 1994 and the case proceeded to the extent discussed, but then went no further because the prosecution tendered no evidence at the committal, and the magistrate purported to dismiss the complaint. In addition to the arguments already discussed, it is submitted that this circumstance makes a further prosecution of this case at this time oppressive because the accused believed that the matter was at an end, and has lived his life with that belief ever since. It seems that the argument is that this oppression will not exist in a case in which the accused has not been informed of the allegation, or charged with it, at or near the time of its alleged commission.
I do not accept this argument for two reasons. Firstly, there is no evidence as to what was said in court when the proceedings were dismissed, nor is there any evidence that the accused had the asserted belief. Further, even if he did, such belief was not justified or legally correct. He was not entitled to rely on the magistrate's order to assume that the proceedings had been brought to an end in his favour, and in particular that he had been acquitted of the charge. Although he was not committed for trial, the prosecution was able to pursue the charge at any time by filing an ex officio indictment. There is no time limit applicable in respect of a crime of this nature. Secondly, it is difficult to understand how the accused is now in a worse position than someone who was not informed at an early time of the allegations or that a prosecution would be brought against him. Such a person may have had no opportunity to gather and record evidence which might assist in his defence. That disadvantage does not apply to the accused. He was well aware of the nature and particulars of the allegations against him, and of the crimes to be prosecuted, soon after their alleged commission. He was interviewed by police and the record of that interview is available. Prosecution statements were gathered and forensic testing was undertaken, and all of it disclosed to the accused, in a timely way.
Further, the accused does not assert any specific prejudice, apart from the legislative and procedural changes. Those changes include the replacement of committal proceedings with preliminary proceedings, the removal of the right to cross-examine a complainant in a case such as this in preliminary proceedings except in exceptional circumstances, and the introduction of the Evidence (Children and Special Witnesses) Act 2001, which may result in the complainant giving evidence by audio visual link. Mr Flanagan also referred to the enactment of s 194M of the Evidence Act 2001. I do not accept that the introduction of these procedural and evidentiary reforms in the intervening period result in the consequence that this trial will be "necessarily unfair so that any conviction would bring the administration of justice into disrepute". On the contrary, the reforms must be seen as improvements in the trial process. Although their practical effect may make it easier and less distressing for the complainant to give evidence, that in itself cannot amount to unfairness. The amended procedures contain adequate safeguards to ensure that the accused receives a fair trial. In particular, the accused will have adequate opportunity to cross-examine the complainant, and if he chooses, give or adduce evidence in his defence. The mere fact that the accused may have been able to gain some forensic benefit from the procedures which applied in 1994, compared to those now in place does not establish unfairness, and nor does it bring the administration of justice into disrepute.
While I accept that the delay may result in some general prejudice, I think this will be substantially obviated by the comprehensive investigations conducted and evidence gathered shortly after the alleged events. Further, any significant forensic disadvantage suffered by the accused because of the consequences of delay, must be the subject of an appropriate and cautionary direction to the jury. Evidence Act, s 165B(2). Ultimately, I am not satisfied that the delay will result in an unfair trial, nor does it bring the administration of justice into disrepute. On the other hand, the charge against the accused relates to a serious crime. There is a clear public interest in having this allegation determined by a trial. The application for a permanent stay of proceedings is refused.
Having regard to the provisions of s 355(3) of the Code, given that the plea in bar has been determined against the accused, he should be called upon to plead afresh. Although I suspect that my ruling will have largely dealt with the matters upon which the objection to evidence is based, any questions relating to the admission of evidence can be dealt with after the fresh plea has been taken.
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