Te Waiti v The State of Western Australia - [2019] WADC 159

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   TE WAITI -v- THE STATE OF WESTERN AUSTRALIA [2019] WADC 159
CORAM:   SLEIGHT CJDC
HEARD:   3 SEPTEMBER 2019
DELIVERED          :   21 NOVEMBER 2019
FILE NO/S:   IND 1637 of 2018
BETWEEN:   HAYDEN PAORA TE WAITI

AND
THE STATE OF WESTERN AUSTRALIA

Catchwords:

Criminal procedure - Negotiations between defence counsel and the State - State to add an additional charge if accused enters pleas of not guilty - Whether the conduct of the State affects the integrity of the court process - Stay application based upon an abuse of process

Criminal procedure - Application for severance - Turns on its own circumstances

Legislation:

Criminal Procedure Act 2004 (WA), s 90(1), s 133, cl 7(3)(a) div 2 sch 1

Result:

Application for stay dismissed

Order for separate trial in relation to count 5 on the indictment

Representation:

Counsel:

Applicant	:	Ms S Oliver
Respondent	:	Mr R Arndt

Solicitors:

Applicant	:	Sarah Oliver
Respondent	:	State Director of Public Prosecutions

Case(s) referred to in decision(s):

AB (A Pseudonym) v CD (A Pseudonym) [2018] HCA 58
Barac v Director of Public Prosecutions (DPP); Barac v Stirling [2007] QCA 112
Culverwell v Ginbey [2016] WASC 3
De Jesus v The Queen [1986] HCA 65
Jago v District Court of New South Wales (1989) 168 CLR 23
Le v The Queen [2019] WADC 11
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Mansell v the State of Western Australia [2009] WASCA 140
Moevao v Department of Labour [1980] 1 NZLR 464
R (Corner House Research and Another) v Director of the Serious Fraud Office [2008] UKHL 60
R v Anderson [1994] 2 Qd R 409
R v Cranston [1988] 1 Qd R 159
R v Grey [2000] NSWCCA 46
R v Kray [1970] 1 QB 125
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
Zammit v The State of Western Australia [2007] WASCA 66

SLEIGHT CJDC:

Background

The accused is charged on an indictment dated 7 May 2019 (the second indictment) with:
1.four counts of conspiring to sell a firearm without a licence in circumstances of aggravation in that he was selling three or more firearms without a licence (counts 1 to 4 on the indictment);
2.one count of possession of methylamphetamine, with intent to sell or supply it to another (count 5 on the indictment); and
3.one count of conspiring to sell or supply a prohibited drug, namely methylamphetamine, to another (count 6 on the indictment).
The accused makes an application for a permanent stay of count 5 on grounds that the conduct of prosecutors of the Office of the Director of Public Prosecutions (WA) (the DPP) was improper and to allow the prosecution to proceed would be an abuse of process.
Alternatively, the accused seeks a severance of count 5 on the indictment.

The State's case

The State's case in relation to each of the charges is as follows:[1]
Counts 1 to 4
Between 4.30 pm on 18 June 2016 and 8 am on 19 June 2016, associates of the accused attended a property in Oakford and located a gun safe inside the house. The associates opened the safe and stole four firearms and ammunition from inside the safe. The firearms stolen were a .308 calibre bolt action rifle, a .22 calibre Lithgow rifle, a .177 calibre Anschutz air rifle and a .177 calibre Crossman air rifle. Between 4.15 am and 2.26 pm on 19 June 2016, the accused conspired with co-offenders (McShane and Davis) to try and find a person to purchase the firearms that were stolen. Throughout the course of the day the accused discussed having a potential buyer for the .308 rifle who would be willing to pay $1,500 cash for it and pick it up immediately. The accused later referred to having a purchaser willing to pay $4,000 but was unsure if the purchaser wanted the .308 only or the .308 and another of the firearms. It is alleged the accused enlisted the help of Davis to arrange a meeting with the purchaser. The accused and McShane were to meet the buyer with the two firearms in exchange for the $4,000.
At about 1.50 pm on 20 June 2016 police arrested Davis and searched his property in Seville Grove. There police located three of the stolen firearms and the ammunition in a vehicle parked at the property. The remaining firearm, a .177 calibre air rifle, was located by police buried in a garden bed at a property in Huntingdale during the execution of a search warrant on 30 June 2016.
The accused was identified through a series of telephone communications with the co-offenders.
Count 5
During intercepted telephone communications, the accused stated to the co-offender McShane that he had been given half an ounce, being 14 g of methylamphetamine and that they discussed the sale of the methylamphetamine to others.
Count 6
Between 22 and 23 May 2016, the accused conspired with the co‑offender McShane to supply an associate with a 'half-ball', being 1.75 g of methylamphetamine for $600. Other weights discussed between the accused and McShane were 28 g, 14 g and 3.5 g of methylamphetamine. The accused was identified through a series of telephone communications with the co-offender.
[1] As per the amended statement of material facts dated 9 May 2019.

History of the proceedings

The matter has a somewhat convoluted history. The accused was originally charged in the Magistrates Court with two charges that he:
(1)conspired with another to commit the indictable offence of selling an unlicensed firearm; and
(2)conspired to sell and supply to another a prohibited drug namely methylamphetamine (this charge related to the 1.75 g of methyamphetamine).
The statement of material facts served on the accused by the police in relation to the firearm charge alleged that the conspiracy was with a co-offender McShane to arrange a sale of two unlicensed firearms.
The accused pleaded guilty to both charges and was committed to the District Court for sentencing. The State filed in the District Court an indictment dated 31 October 2018 (the first indictment) charging the accused with the following offences:
(a)On 19 June 2016 at Byford, the accused conspired with others to sell firearms, namely a .308 calibre bolt action rifle, a. 22 calibre Lithgow rifle, a .177 calibre Anschutz air rifle and a .177 calibre Crossman air rifle, while not being a holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so (count 1).
And that the accused did so in circumstances where he was selling three or more firearms without a licence or permit under the Act entitling him to sell any of them.
(b)On 22 May 2016 and 23 May 2016 at Byford, the accused conspired with Brody Edward McShane to sell or supply a prohibited drug, namely methylamphetamine, to another (count 2).
The accused maintained the plea of guilty in the Magistrates Court in relation to the charge contained in count 2 on the first indictment but made an application to the court to set aside the plea of guilty entered in the Magistrates Court to the firearms charge. The grounds of the application were essentially on the basis that the accused pleaded guilty to the possession of an unlicensed firearm charge on a statement of material facts which referred to only two firearms. It was submitted that this was significantly different to a charge alleging aggravating circumstances of three or more firearms as it meant that the accused was liable to a higher penalty due to the pleaded aggravated circumstances.
When the matter came before me on 28 March 2019 I observed that the original charge in the Magistrates Court of conspiring to commit an indictable offence of 'selling an unlicensed firearm' did not disclose an offence known to the law. There is no such offence as being in possession of an 'unlicensed firearm'. The offence under the Act is selling a firearm without a licence to do so. Accordingly, the accused could not be bound by his earlier plea on the incorrectly worded firearm charge in the Magistrates Court.
Following my decision which permitted the accused to enter a plea of not guilty to the firearm conspiracy charge on the first indictment, the State then filed an application dated 9 May 2019 substituting the first indictment with the second indictment so that the accused was then charged with the six offences as outlined above (including count 5 which was added as an ex officio charge pursuant to s 83(6) of the Criminal Procedure Act 2004 (WA) (CPA)).

The application for a permanent stay of count 5

The allegation in this case is that during negotiations the State in effect threatened the accused that if he did not plead guilty to the firearm charges the State would prosecute the additional charge of possession of 14 g of methylamphetamine with intent to sell or supply to another. It is alleged that this charge was far more serious and created the effect of blackmailing the accused into pleading guilty to the firearm charges. It is this process which the accused contends should persuade the court to make an order permanently staying count 5 on the indictment.

Discussions between the DPP and counsel for the accused prior to the filing of the second indictment

It is unnecessary that I recite the full history of the discussions between the DPP and the accused's counsel. I observe that initially the accused was not charged with any offence relating to the subject of count 5 on the indictment (that is, in relation to 14 g of methylamphetamine). Discussions had taken place between Mr Graham of the DPP and counsel for the accused prior to committal with the aim of resolving the matters in such a way that all charges could be dealt with summarily. As mentioned above, the police initially charged the accused with an offence of conspiring to sell or supply to another a prohibited drug namely methylamphetamine (this related to 1.75 g) and conspiring with another, namely Brody McShane, to commit the indictable offence of selling an unlicensed firearm. Negotiations initially took place between the DPP on the footing that both charges related to 'each way' offences and could be dealt with summarily.
On 18 July 2018, the matters came before the Magistrates Court and the Chief Magistrate made the correct observation that the conspiracy charge under the Misuse of Drugs Act 1981 (WA) (MD Act) was a strictly indictable offence and had to be committed to the District Court. Later that same day counsel for the accused emailed Mr Graham enquiring as to whether the State would be prepared to amend the conspiracy charge under the MD Act to a charge of possession with intent to sell or supply which would enable the charge to be dealt with summarily.
In an affidavit dated 20 June 2019, counsel for the accused deposes that on 6 August 2018 Mr Graham indicated that he had discussed the matter with a Senior State Prosecutor and that 'there would be scope' for the matter to be dealt with summarily should the accused enter pleas of guilty.
According to the affidavit of counsel for the accused, before anything was resolved, on 3 September 2018, the day prior to the accused coming back before the Magistrates Court, Mr Graham telephoned counsel for the accused and stated that Ms Keane, a Senior State Prosecutor, had reviewed the matter and had instructed him that all matters were to be committed to the District Court. He further told counsel for the accused that if pleas of guilty were not entered, the DPP would add separate charges in the indictment for each firearm the subject of the single charge of conspiracy to sell an unlicensed firearm (the misconceived charge I mentioned earlier) and add a possession with intent to sell or supply charge in relation to the 14 g of methylamphetamine. He further informed counsel for the accused that if pleas of guilty were entered to the existing two charges, the accused could be committed and the matter proceed to sentencing without the additional charges being added.
Subsequently Mr Graham forwarded to counsel for the accused an email which confirmed the State's position as follows:[2]
I received the assessment back and discussed the matter with my SSP.
If the matter is to proceed to trial, the correct handling of the evidence contained in the intercepted materials and appropriate form of the firearm charges would require 4 x further counts on the indictment. These would entail singular conspiracy charges for each individual named firearm (as opposed to all four on the same count) with the aggravating circumstance of 3 or more named on each count. In addition, a further count in relation to the methylamphetamine (PWISS ½ ounce) would also be preferred.
I have also discussed the possibility of resolving the matter through the manner suggested by you in our discussion. If received in writing it is likely to be accepted - I will be able to notify you with absolute certainty hopefully by end of day tomorrow. That would be a plea of guilty to both conspiracy matters to be sentenced on indictment in the District Court, with the possession of the unlicensed firearm to be remitted to the Magistrates Court.
(emphasis omitted)
[2] Affidavit of Sarah Jane Oliver affirmed 20 June 2019 at par 20.
Counsel for the accused deposes that she did not appreciate that the reference to the methylamphetamine charge was a reference to an additional drug charge to the charge that was pending against the accused at that time.
It was subsequent to this email that on 4 September 2018 the accused pleaded guilty in the Magistrates Court to one count of conspiring to commit the indictable offence of selling an unlicensed firearm and also pleaded guilty to one count of conspiring to sell and supply to another, a prohibited drug, namely methylamphetamine (that is, 1.75 g of methylamphetamine). The accused was committed to the District Court for sentencing. Subsequent to this the State filed the first indictment. The conspiracy charge relating to firearms pleaded the aggravating circumstances of there being more than three firearms and therefore to that extent was not consistent with the firearm conspiracy charge to which the accused had pleaded guilty in the Magistrates Court which related to only two firearms.
After the State filed the first indictment the accused made an application to the District Court to set aside the plea of guilty entered in the Magistrates Court to the conspiracy charge relating to firearms. The accused maintained his plea of guilty on the conspiracy charge relating to the 1.75 g of methyamphetamine.
Counsel for the accused in her affidavit deposes that on 7 February 2019 she had a discussion with Ms Keane during which:
(i)Ms Keane stated that if the accused was successful in changing his plea on the firearms charge and the matter was to proceed to trial, then the DPP would separate the firearms charge into four separate aggravated firearm charges.
(ii)Ms Keane stated that the DPP would also add a new charge of possession of methylamphetamine with intent to sell or supply relating to the 14 g of methylamphetamine mentioned in the telephone intercept material.
(iii)Ms Keane informed counsel for the accused that this count had been identified prior to committal but that she had taken the view that it was not in the public interest to prosecute the accused for this alleged offence, given he had entered pleas of guilty on the existing charges and had been committed for sentencing.
(iv)Ms Keane stated that she would reconsider the decision if the matter were to proceed to trial, as the State would then be required to adduce evidence and there would be a greater public interest in proceeding with the charge concerning the 14 g of methylamphetamine.
(v)Ms Keane commented that such a further drug charge would obviously have serious consequences for the accused if he were convicted and that Ms Keane hoped that counsel for the accused would get instructions in relation to the matter.
The State filed two affidavits in response to the application for a stay, being an affidavit of Mr Graham sworn on 19 August 2019 and an affidavit of Ms Keane sworn on 20 August 2019.
The affidavit of Mr Graham indicated that prior to the committal of the charges from the Magistrates Court he conducted a review of the case and prepared a case assessment memorandum on 30 August 2018. Included in his review was a thorough review of the audio intercept recordings and further materials in relation to the two co-offenders McShane and Davis. On listening to the intercept material he formed the view that there was sufficient evidence to establish a prima facie case against the accused of possession with intent to sell supply in relation to the 14 g of methylamphetamine. He also concluded that there was specific reference in the intercept material which suggested that the conspiracy to sell a firearm related to four firearms and not two firearms as initially alleged in the statement of material facts prepared by the police.
Mr Graham deposes that he presented his case assessment memorandum to Ms Keane and the State changed its position based upon its increased familiarity with the evidence. He confirmed that he then communicated with counsel for the accused on 3 September 2018, as deposed by counsel for the accused, that if pleas of not guilty were entered, the DPP would add separate charges in the indictment for each firearm the subject of the conspiracy to sell a firearm charge, and add a possession with intent charge in relation to half an ounce of methylamphetamine. However, he informed counsel for the accused that if pleas of guilty were entered to the existing charges no additional charges would be added. Mr Graham confirmed that he sent an email confirming the State's position as deposed by counsel for the accused in her affidavit.
Ms Keane in her affidavit deposed that on reviewing Mr Graham's memorandum on 3 September 2018 she formed the view that the evidence revealed that there was a prima facie case for alleging the conspiracy relating to firearms related to four firearms (not two as originally alleged) and also that there was a prima facie case that the accused had committed a further offence of being in possession of 14 g of methylamphetamine with intent to sell or supply to another. Ms Keane then instructed Mr Graham to contact counsel for the accused to advise her of the State's preliminary views and ascertain the accused's intentions. This led to Mr Graham contacting the accused's counsel on 3 September 2018 as detailed in the affidavit of counsel for the accused. Ms Keane further deposes that after the accused made an application to the court to set aside his plea of guilty to the firearm charge in the Magistrates Court she contacted counsel for the accused as she was concerned there may have been some confusion between the parties and that the accused's counsel may not have fully appreciated the State's position on the charges if the matter was to proceed to trial. Ms Keane does not dispute the content of her discussion with counsel for the accused as described. However, she deposes in her affidavit that at no time did she threaten or blackmail counsel for the accused or the accused. She further deposes that she engaged in and authorised negotiations that were entirely consistent with the exercise of sound prosecutorial discretion and the DPP guidelines.

General principles of an application for a permanent stay

The application for a permanent stay by the accused is brought pursuant to s 90(1) of the CPA, or alternatively, an inherent jurisdiction to do so as recognised at common law.
Section 90(1) of the CPA provides as follows:
A superior court to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
The concept of 'in the interests of justice' is one that should not be narrowly defined and will vary from case to case. It necessarily involves a judicial evaluation of a number of factors. The relevant factors are not capable of exhaustive definition. The weight to be given to any individual factor will vary from case to case depending upon the circumstances. The concept of 'in the interests of justice' is potentially wider than the concept of an 'abuse of process', and involves a weighing up of a whole range of factors.[3]
[3] Le v The Queen [2019] WADC 11 [37] – [39].

At both common law and under the CPA a permanent stay order based upon an abuse of process will occur only in exceptional circumstances. The rationale for this is the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime.
In exceptional circumstances a permanent stay order can be made based upon the conduct of the prosecutorial authority. In Jago v District Court of New South Wales,[4] Mason CJ quoted with approval the decision of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour,[5] who stated at (481):[6]
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.
[4] Jago v District Court of New South Wales (1989) 168 CLR 23.
[5] Moevao v Departmentof Labour [1980] 1 NZLR 464.
[6] See also AB (A Pseudonym) v CD (A Pseudonym) [2018] HCA 58 [10].
In Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions,[7] (Strickland) Kiefel CJ, Bell and Nettle JJ stated as follows:[8]
Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.
(footnotes omitted)
[7] Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53.
[8] Strickland [106].
It is clear from the authorities that an order for a permanent stay based upon the conduct of the Office of the Director of Public Prosecutions is highly exceptional.[9]
[9] See for example comments in R (Corner House Research and Another) v Director of the Serious Fraud Office [2008] UKHL 60 [30] – [31] (Bingham LJ).
A case of interest and of some closeness to the present case is that of Barac v Director of Public Prosecutions (DPP); Barac v Stirling[10] (Barbac). That case concerned a negotiated agreement whereby the Queensland Director of Public Prosecutions (QDPP) agreed to discontinue charges of drug trafficking on the basis the accused consented to being committed for sentence on the remaining drug charges. However, after the accused had pleaded guilty pursuant to this understanding, the QDPP, upon its consideration of a report of a forensic accountant in relation to the accused's financial affairs, charged the accused with the drug trafficking offences that had been earlier discontinued. An application for a permanent stay based upon the reversal of the decision of the QDPP was dismissed as was the appeal against that decision. Keane JA in his decision stated as follows:[11]
The kind of prejudice which has been regarded as enlivening the discretion to stay a prosecution is that prejudice which detracts from the prospects of a fair trial. A person accused of crime is put to expense and is made to undergo stress in every prosecution. Sometimes that expense is increased and the stress is exacerbated by inefficiency, and even on occasion incompetence, on the part of those charged with the responsibility of presenting the case for the Crown. It has never been said that these circumstances, alone and without more, justify a stay of proceedings. The strong public interest in the conviction and punishment of serious offences may be displaced by 'the paramount public interest' that the administration of criminal justice proceed fairly in a case where a prosecution is pursued for an improper purpose or with no prospects of success; but in a case where a decision not to prosecute has been reversed simply because the prosecution believes that stronger evidence has become available to it, the paramount public interest is not engaged. In such a case, absent some real and incurable adverse effect upon the accused's prospects of a fair trial, a mere change of mind on the part of the prosecution is not, of itself, a sufficient basis for ordering a stay of proceedings. As Wilson J said in Barton v The Queen, in cases where the defect in procedure said to prejudice an accused person involves no more than prosecutorial inefficiency, the defect must be '... of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.'
(footnotes omitted)
[10] Barac v Director of Public Prosecutions (DPP); Barac v Stirling [2007] QCA 112.
[11] Barac [24] (Keane JA).
The test that arises from these authorities is whether the conduct of the prosecution has been such that it is appropriate to take the highly exceptional step of staying the prosecution on count 5 so as to prevent the administration of justice from falling into disrepute.

Submissions

Counsel for the accused submits that the ex officio count 5 has been included for an improper purpose, being to improperly pressure or compel the accused into pleading guilty to other counts on the indictment.
Counsel for the accused further contends that the DPP has been in breach of its own guidelines. In particular, reliance is placed on cl 57 of the Director of Public Prosecutions: Statement of Prosecution Policy and Guidelines 2018 (WA) (DPP Guidelines) which states:
Charges should never be instigated or continued in order to provide scope for plea negotiation.
Counsel for the accused submits that it should be inferred that the State had an improper motive for presenting the ex officio count 5 given the seriousness of the charge and the statement that it would only be added to the indictment if the accused pleaded not guilty to the firearm charges.
It is submitted that, while it might be proper in the course of negotiations for the State to agree to withdraw a charge or reduce the seriousness of the charge, it is improper to inform an accused person that a more serious charge will be added if he does not enter a plea of guilty.
The State disputes that it has acted improperly in any way or threatened to 'blackmail' the accused into pleading guilty.
The State submits that it was acting in accordance with the prosecution policy and guidelines in the exercise of its discretion. The decision to charge the accused with count 5 on the indictment was made after an assessment of the case by the Senior Public Prosecutor, Ms Keane. The decision to indicate to counsel for the accused that the charge under count 5 would not be preferred if the accused entered pleas of guilty to the firearm charges was a decision made in accordance with the guidelines on public interest considerations of avoiding expenditure and uncertainty of trial. A relevant consideration was that the firearm charges carry a maximum penalty of 14 years and if the accused pleaded guilty to those charges then he was likely to receive a significant term of imprisonment. Any term of imprisonment on the drug charge was likely to be reduced under the totality principle.

Conclusion on stay application

The background facts are not in dispute in this matter other than whether the representatives of the State acted bona fide in the negotiations and were driven by proper public interest considerations in presenting the ex officio charge of count 5 on the indictment. Accordingly, I make findings in terms of the background facts as set out earlier in this decision concerning discussions between the DPP and counsel for the accused.
Negotiations between counsel for the accused and the DPP in relation to criminal charges are to be encouraged so as to avoid unnecessary and protracted trials in proceedings. This is recognised by the DPP Guidelines which provide relevantly as follows:[12]
[12] Director of Public Prosecutions: Statement of Prosecution Policy and Guidelines 2018 (WA) cl 63, cl 64, cl 65 and cl 66.
A plea of guilty is a factor to be taken into account in mitigation of sentence. There are obvious benefits to the criminal justice system resulting from a plea of guilty. The earlier a plea of guilty is entered, the greater will be the benefits.
Charge negotiations between the parties are encouraged and may occur at any stage of the proceedings. They can be initiated by either party. They must be based on the evidence and the public interest. A written record of the charge negotiation must be kept.
Where the appropriate authorisation has been obtained, the prosecution may agree to discontinue a charge or charges upon the accused pleading guilty to another or others. The prosecution may also agree to amend the factual basis of a charge or charges upon a plea of guilty.
Charge negotiations should take into account:
(a)Whether the plea of guilty reasonably reflects the essential criminality of the conduct and provides an adequate basis for sentence;
(b)Whether the strength of the evidence is such that the public interest will be satisfied by the acknowledgement of guilt and certainty of conviction achieved by the negotiated plea;
(c)The benefits to the community as a result of the negotiated plea;
(d)Where there has been a financial loss, whether the accused has made, or made arrangements for, restitution or compensation; and
(e)Whether the plea of guilty will save witnesses, particularly vulnerable witnesses, from the trauma of protracted criminal proceedings.
The DPP Guidelines are simply that - a guideline. They have no legal force.[13] However, they provide a recognition of what is common and appropriate practice for the conduct of negotiations concerning criminal charges. It is common practice that defence counsel and the DPP will engage in negotiations which lead the State to abandon charges, substitute less serious charges or amend the statement of material facts in exchange for pleas of guilty. On any of these regular scenarios the accused is offered incentives or inducements to enter pleas of guilty. There is nothing untoward about such practices providing the DPP enters into such negotiations motivated by bona fides intentions of achieving an outcome which is fair to the accused and is in the public interest. In my opinion it does not matter that the negotiations take place in the slightly unusual circumstances where after viewing the evidence the DPP forms a bona fide view that more serious charges could be preferred but for the sake of finalisation, it is in the public interest to accept a plea of guilty to the existing less serious charges. In such circumstances I do not believe it is improper for the DPP to inform counsel for the accused that if pleas of guilty are not entered that the DPP will be proceeding by indictment with more serious charges.
[13] See s 24 of the Director of Public Prosecution Act 1991 (WA); R v Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 [32]; Culverwell v Ginbey [2016] WASC 3 [33].
In this matter I am satisfied that the officers of the DPP, Ms Linda Keane and Mr Graham, acted at all times appropriately, in good faith and exercised appropriate prosecutorial discretion in relation to the circumstances in which count 5 was added to the indictment.
I am satisfied that after Mr Graham prepared a case assessment memorandum on 30 August 2018 that Ms Keane, as the Senior State Prosecutor supervising Mr Graham, reviewed fully the evidence obtained by the police and following that review formed a bona fide view that the evidence established a prima facie case that the accused had committed an offence of possession of 14 g of methylamphetamine with intent to sell or supply contrary to the provisions of the MD Act. It has not been submitted by counsel for the accused that this conclusion was not available to Ms Keane on the material before her.
I am also satisfied that Ms Keane formed the bona fide view that notwithstanding the prima facie case established on the evidentiary material against the accused in relation to the 14 g of methylamphetamine that it was in the public interest not to proceed with such a charge if the accused pleaded guilty to the existing charges. I conclude that this was not unreasonable, particularly given considerations such as removing the uncertainty and expense of the trial, achieving an early finalisation and the reduction in the sentence which might be imposed if the accused was convicted of the additional charge under the totality principle of sentencing. When considering the likely impact of the totality principle of sentencing it is relevant to take into account that although the additional charge relating to the 14 g of methylamphetamine attracted a maximum penalty of 25 years or $100,000 or both, the likely penalty on conviction is likely to be 1 to 4 years imprisonment. The accused faced the same maximum penalty on the charge relating to the 1.75 g of methylamphetamine.
In relation to the firearm conspiracy charge the maximum penalty, if it related to two firearms, is 5 years imprisonment and if the circumstances of aggravation of selling three or more firearms without a licence or permit is added then the maximum penalty increases to 14 years. In my opinion, applying the totality principle if the accused is convicted on the 14 g methylamphetamine charge then the penalty he will receive is likely to be reduced to a level where it could not be inferred the decision of Ms Keane was unreasonable.
It appears that at all material times after 3 September 2018 Ms Keane was of the view that the circumstances of aggravation should be pleaded by the State on the firearm conspiracy charge. The one criticism I have of the State is that prior to pleas being entered by the accused in the Magistrates Court the circumstances of aggravation of there being three or more firearms ought to have been pleaded by way of an amendment to the firearm conspiracy charge given the significant increase in the maximum penalty. However, whatever unfairness the accused suffered as a result of this failure it has now been corrected by the orders I made on 28 March 2019 that the accused was not bound by his plea of guilty to the firearm conspiracy charge as presented in the Magistrates Court.
Finally I observe that there have been no submissions presented by counsel for the accused that the accused will not receive a fair trial in relation to count 5 on the indictment (subject to the application for severance which I will deal with later in this decision).
For the above reasons I am not satisfied that the conduct of the DPP gives rise to an abuse of process in the sense that the DPP's approach offends the integrity of the court processes and that a permanent stay order is required in relation to count 5 in order to prevent the administration of justice falling into disrepute.

Application for severance

The second application made by the accused is to sever count 5 from the indictment and that count 5 be tried separately from counts 1 to 4 of the indictment.
The application purports to be made pursuant to s 133 of the CPA. Section 133 provides the court with the power to make an order that an accused be tried separately on one or more counts on an indictment if the court is satisfied the accused is likely to be prejudiced. However, the submissions presented in support of the application go to a more fundamental question and that is whether count 5 has been properly joined on the indictment with counts 1 to 4.
Clause 7(3) of div 2 of sch 1 of the CPA provides for the joining of one or more counts on an indictment in the following circumstances:
A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
I make the preliminary observation that the State has not submitted that counts 1 to 4 are cross-admissible with count 5.
The State's submission on the hearing of the application was that counts 1 to 4 and count 5 'form or are a part of a series of offences of the same or a similar character'. The State contended that all counts are of a similar character in that they all involve an ongoing course of criminal conduct as a part of the relationship between the accused and Mr Brody McShane and each charge involves an attempted sale of items prohibited by law.
The accused submits that count 5 is quite different in nature to counts 1 to 4 for the following reasons:
(a)count 5 relates to drugs whereas counts 1 to 4 relate to firearms; and
(b)the intercept material relating to count 5 was obtained by a different warrant to the intercept material relating to counts 1 to 4.

Relevant evidence

I have described earlier in this decision the statement of material facts alleged by the State in these proceedings. It is common ground that the intercept material relating to count 5 was obtained under a different warrant to the intercept material relating to counts 1 to 4. However, there were only different warrants because Mr Brody McShane changed his mobile telephone device. The statement of Detective Senior Constable Timothy James Oldfield at pages 1 to 5 of the prosecution brief makes this clear. The police obtained a warrant to monitor the phone usage of Brody McShane in relation to mobile telephone number ** **** **62. This was pursuant to warrant H16119 issued on 20 May 2016. I will refer later in this decision to the details of the monitored calls under this warrant relating to count 5. According to the statement of Detective Senior Constable Oldfield, Mr Brody McShane ceased using mobile telephone number ** **** **62. On 17 June 2016 the police then obtained a further warrant H16139 which authorised the monitoring of a further mobile phone being used by Mr Brody McShane being mobile telephone number ** **** **50. Between 17 June 2016 and 20 June 2016 calls between the accused and Mr McShane were monitored and provided the evidence of the alleged conspiracy giving rise to counts 1 to 4 on the indictment.
The text messages and telephone calls which the State relies upon in relation to count 5 are contained in the statement of Detective Senior Constable Timothy James Oldfield and marked as exhibit A. They may be summarised as follows:

^{WARRANT H16119 Brody McShane (** * 62) to Accused (* * *20)}
^CSN	^TIME	^CONTENT
¹⁰⁶²	^22/5/16 ^17:35	^{SMS BM to accused - You get any ozz}
¹⁰⁷⁶	^18:12	^{SMS accused to BM - Sorry bro. At byford I got just under half o on me}
¹⁰⁸³	^18:31	^{SMS BM to accused - Half an oz}
¹⁰⁸⁹	^18:45	^{Accused called BM. BM asks if the half o is weed. Accused says it is not. Accused says the half o was dropped on his lap. BM asks what they want for it. Accused says $4250. BM says could get full for 6. Accused says they were 'Nike Bikies' - young guys with Rebels hoodies on. Gave him timeline of about a week to sell. BM asks if it is good. BM tells him to get some chop and chop into it. Accused says he wouldn't chop. Accused asks him to let him know if he hears anyone wanting anything. BM says he knows a bloke who he has been using to load up. He says 6 for a HB and can turn it around in a day and is reliable. He suggests that may be a way out for accused. BM just left his place and had picked up some cash. BM says he can pick up accused and take him there.}
¹¹⁵⁴	^20:35	^{SMS BM to accused – She cant get it sorted so I can give me mate a hb asap}
¹¹⁷⁰	^21:08	^{SMS Accused to BM – You want one off me?}
¹¹⁷⁵	^21:14	^{SMS BM to accused - Yea were are ya}
¹²⁷¹	^23/5/16 ^11:10	^{Accused calls BM. Says that he is at Kelly's house fixing flyscreen door. BM says he was waiting for hi mate from Maddington to give him a call to reload again. Accused asks if BM 'wants him to sling him something?'. BM says yeah, it will help accused out. Accused is going to fix door then go pick up some coin.}
¹³⁰⁷	^12:26	^{SMS BM to accused - Can probably push a B if you get your cheeks into gear budge}
¹³²³	^12:55	^{SMS BM to accused - How far off are you bro my mate is good to go asap}
¹⁴¹⁸	^17:03	^{SMS accused to BM - Wat am I givin you}
¹⁴¹⁹	^17:03	^{SMS BM to accused - Yea sweet im just at the park around the corner}
¹⁴²⁰	^17:04	^{SMS BM to accused - Well i will load up me mate with a hb and yea a few points for a tickle}
¹⁴²¹	^17:05	^{SMS accused to BM - You want hb}
¹⁴²²	^17:05	^{SMS BM to accused - Yea halfy for me mate he will spin it quick}

The intercepted calls relied upon by the State in relation to counts 1 to 4 on the indictment are more lengthy and it is unnecessary that I summarise them. They occurred subsequent to the telephone intercepts concerning the drug matter, that is, after 17 June 2016 when a new warrant was obtained. The State has not in its submissions relied upon any of the content of the subsequent telephone intercepts to establish any drug dealing relationship between the accused and Brody McShane.

Legal principles in relation to joinder

In Mansell v the State of Western Australia,[14] Miller JA at [26] succinctly summarised the law in relation to joinder under cl 7(3)(a) of div 2 of sch 1 of the CPA as follows:
In this State, the leading authority on the proper meaning to be given to cl 7(3)(a) is Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 (Zammit). Steytler P (with whom Wheeler and Pullin JJA agreed) analysed the provisions of cl 7(3)(a), at [22] - [34]. A number of cases are reviewed in that portion of Steytler P's judgment. What they reveal is that offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such a nexus is established if the offences are so connected that evidence of one would be admissible on the trial of the other: R v Kray [1970] 1 QB 125, at (130 – 131); Lancaster v The Queen [1989] WAR 83, at (86). What is required is a sufficient correlation to enable the offences to be described as a 'series', without straining the word beyond the meaning which it is reasonably capable of bearing: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 per Dawson J, at (9). Further, the provision allowing joinder (cl 7(3)) should not be given 'an unduly restricted meaning': Zammit per Steytler P, at [27], following De Jesus per Dawson J, at (9).
[14] Mansell v the State of Western Australia [2009] WASCA 140.
However, cross-admissibility is not the only basis for holding that there is a sufficient nexus between charges to permit their joinder.[15] In R v Kray the Court of Appeal in England stated:[16]
[O]ffences cannot be regarded as of a similar character for the purposes of a joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.
[15] R v Kray [1970] 1 QB 125, 131 (Widgery LJ); Zammit v The State of Western Australia [2007] WASCA 66 [25] (Steytler P).
[16] R v Kray (131).
In Ludlow v Metropolitan Police Commissioner,[17] the House of Lords stated that 'sufficient nexus' encompassed both law and facts relating to the offences.
[17] Ludlow v Metropolitan Police Commissioner [1971] AC 29.
In Zammitv The State of Western Australia,[18] Steytler P referred to the Queensland authority of R v Cranston,[19] where Macrossan J said of the words 'a series of offences of the same or similar character' that, however imprecise those words might be, they 'call for the administration of a test in which time, place and other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present'. He went on to express the opinion that the 'courts may find that an appropriately liberal exercise to sever is called for in doubtful cases' and that 'it will be necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character'. He suggested that this approach would 'at lease [sic] ensure that time is not wasted in trying cases involving multiple counts which appeal courts, taking a different view from the trial judge, consider do not satisfy the test and were improperly joined'.[20]
[18] Zammit [28].
[19] R v Cranston [1988] 1 Qd R 159, 164.
[20] See also R v Anderson[1994] 2 Qd R 409, 412 – 413 (Lee J).
In De Jesus v The Queen,[21] the majority of the High Court held that two alleged rapes in Western Australia on separate dates and against separate victims ought not to have been included in the same indictment. I suspect that the result may have been different today given the possibility that the two alleged rapes could be viewed as cross-admissible under s 31A of the Evidence Act 1906 (WA). Of relevance to the issues in this case, Dawson J (who formed part of the majority) drew a distinction between the concept of 'a series of offences' and 'offences of the same or similar character'. He concluded that 'offences of the same or similar character' refers more to the legal components of the offences than to the facts alleged although there could be a sufficient correlation factually of the alleged offences for them to be described as being similar in character. In relation to the requirement that there be a 'series of offences' he stated that 'what is required is a sufficient correlation to enable the offences to be described as "series" without straining the word beyond the meaning which it is reasonably capable of bearing'.[22]
[21] De Jesus v The Queen [1986] HCA 65; (1986) 68 ALR 1.
[22] De Jesus v The Queen (15) (Dawson J).

Conclusion on joinder

In my opinion count 5 should not be joined on the same indictment as counts 1 to 4. In reaching this conclusion I am influenced by the decision of Macrossan J in R v Cranston that it is often prudent to take a cautious approach in relation to the joinder of charges. Although I acknowledge that there is some commonality between the type of allegations made between count 5 and counts 1 to 4 in that the primary evidence relates to mobile communications between the accused and Brody McShane and both involve discussions to sell prohibited items, on the balance I am satisfied that the joinder is not appropriate for the following reasons:
1.Legally the alleged offence the subject of count 5 is not the same or of a similar character to the alleged offences in counts 1 to 4. Count 5 relates to an offence involving prohibited drugs and is a charge under the MD Act. The MD Act contains unique evidentiary provisions of a presumption relating to intention based upon the quantity of drugs involved. The primary elements of the charge are possession and an intention to sell or supply. The alleged offences contained in counts 1 to 4 relate to firearms and are all charges of conspiracy under the Criminal Code (WA) to commit an offence against the Firearms Act 1973 (WA). The primary elements of the charges are a conspiracy and that the conspiracy relates to committing an indictable offence of selling a firearm without a licence in aggravating circumstances.
2.In my opinion there is no strong factual nexus between the alleged offence in count 5 and counts 1 to 4. Although there is the commonality referred to above, the relationship between the accused and Mr Brody McShane is not central to the allegation contained in count 5 whereas it is central to the question of whether there was a conspiracy in counts 1 to 4. In addition, the alleged offence in count 5 took place approximately one month before the alleged offences in counts 1 to 4.
3.It has not been contended by the State that the evidence on count 5 and the evidence on counts 1 to 4 are cross‑admissible.
If I had been satisfied that there was a sufficient nexus between count 5 and counts 1 to 4 then I would have been satisfied that they constitute a 'series' of such offences.
If I had ruled that the joinder of count 5 on the same indictment as counts 1 to 4 was permitted under the CPA, an issue would then arise as to whether I should exercise a discretion under s 133 of the CPA to sever the indictment on the basis that the accused is likely to be prejudiced in the trial because of the joinder. However, this issue need not be considered given my conclusions above.
Subsequent to the preparation of these reasons, the State has indicated that it no longer opposes an order for severance of count 5 from the indictment, so that the accused should be tried separately in relation to count 5.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Chief Judge Sleight
21 NOVEMBER 2019