The State of Western Australia v AJC [No 2]
[2016] WADC 52
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AJC [No 2] [2016] WADC 52
CORAM: STAVRIANOU DCJ
HEARD: 8 APRIL 2016
DELIVERED : 8 APRIL 2016
FILE NO/S: IND 966 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
AJC
Catchwords:
Criminal law and procedure - Suitors' Fund Act 1964(WA) - Late disclosure by the State
Legislation:
Sentencing Act 1995(WA) s 24
Suitors' Fund Act 1964(WA)
Result:
Certificate granted
Representation:
Counsel:
The State of Western Australia : Mr D T Carlson
Accused: Mr G M Rodgers
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Gary Rodgers & Associates
Case(s) referred to in judgment(s):
Grimwade v The Queen (1990) 51 A Crim R 470
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Re Suitors' Fund Act 1964(WA); Ex parte Brazier [2002] WASC 243
The State of Western Australia v Quartermaine [2012] WASC 138
STAVRIANOU DCJ:
Introduction
The accused, AJC, applies for the grant of a certificate pursuant to s 14(1)(c) of the Suitors' Fund Act 1964 (the Act) arising out of the adjournment of his trial in this court of a number of alleged sexual offences contained on an indictment dated 6 August 2015.
The adjournment was caused by the late disclosure by the State to the accused of a typewritten document entitled 'Victim Impact Statement' dated 15 March 2016 and signed by the complainant, DTY.
The background
It is necessary to outline some background:
The indictment pleads the dates of alleged offending between March 1993 and August 1994.
On 8 March 2015 DTY provided a written statement to the police concerning the alleged conduct of the accused.
On 15 March 2016 AJC pleaded not guilty to each count on the indictment. The trial commenced and on that day DTY gave viva voce evidence and cross-examination commenced. DTY's evidence continued for three days and was completed on 17 March 2016.
As part of the State's case a number of witnesses were called including DTY's mother and the investigating police officer.
At 9.58 am on Friday, 18 March 2016 whilst DTY was still in the course of her evidence, an email was transmitted by the Victim Support Service to the Director of Public Prosecutions. Attached to the email was the statement of DTY dated 15 March 2016.
On 22 March 2016 counsel for the State provided a copy of the statement to counsel for the accused. The disclosure occurred prior to the commencement of day six of the trial.
Counsel for the accused shortly after receipt of the statement applied for the trial to be adjourned and for the jury to be discharged.
On 22 March 2016 the jury was discharged.
The law
Section 14 of the Act reads:
Costs of new trial etc. where proceedings aborted etc. due to no fault of party may be met from Fund
(1)Where after the coming into operation of this Act -
(a)any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge, magistrate or justice before whom the proceedings were had or by disagreement on the part of the jury where the proceedings are with a jury; or
(b)an appeal on a question of law against the conviction of a person (in this section called the appellant) convicted on indictment or summarily is upheld and a new trial is ordered; or
(ba)an appeal commenced by a prosecutor under section 24(2)(da) or 25(3)(aa) of the Criminal Appeals Act 2004 is upheld and a new trial is ordered; or
(c)the hearing of any civil or criminal proceeding is discontinued and a new trial is ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default in the case of civil proceedings of all or any one or more of the parties thereto or their counsel or solicitors, or, in the case of criminal proceedings, of the accused or his counsel or solicitor, and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant -
(i)in the case of civil proceedings - to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of all or any one or more of the parties to the proceedings or their counsel or solicitors; or
(ii)in the case of criminal proceedings - to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,
or where after the coming into operation of the Suitors' Fund Act Amendment Act 1971 -
(d)a criminal proceeding in any court is adjourned by or on behalf of the prosecution and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant if he is satisfied that by reason of the adjournment the accused has necessarily incurred expense, to the accused stating the reason why the proceedings were adjourned and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,
and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial or as a consequence of the adjournment, then the Board may, upon application made to it in that behalf, direct the payment from moneys standing to the credit of the Fund to the party or the accused or the appellant, as the case may be, of the costs or such part thereof, as the Board may determine incurred by the party or the accused or the appellant in the proceedings before they were rendered abortive or were adjourned or the conviction was quashed or the hearing of the proceedings was so discontinued.
(1a)For the purposes of this section a criminal proceeding is deemed to have been adjourned where the prosecution has notified the accused or his counsel or solicitor that a date has been fixed for the hearing of the proceedings and the proceeding is, without his consent, not listed for hearing on that day.
(1b)An application for a certificate under subsection (1) with respect to the adjournment of a criminal proceeding may be made when the proceedings come on for hearing and a certificate may then be granted in accordance with the provisions of subsection (1)(d).
(2)An amount shall not be paid from moneys standing to the credit of the Fund under this section to the Crown or to a company or foreign company that has a paid up capital of or equivalent to $200,000 or more.
The factors to be considered in an application pursuant to s 14 of the act were outlined by Commissioner Sleight (as he then was) in The State of Western Australia v Quartermaine [2012] WASC 138.
I gratefully rely upon and adopt his Honour's analysis of relevant principles, which I summarise as follows:
1.The purpose of the Act is 'to make provision in respect of the liability for costs of certain litigation; to establish a Suitors' Fund to meet that liability; and for incidental and other purposes' (see recital to the Act).
2.Section 14 of the Act, in broad terms, provides for an application being made to the Suitors' Fund by an accused in situations where the accused has incurred additional costs through no fault on the part of the accused.
3.The Act is beneficial in its operation and should not be narrowly construed: Grimwade v The Queen (1990) 51 A Crim R 470, 476 (McDonald J).
4.Section 14 of the Act provides for an automatic right to apply to the Board for payment of additional costs incurred from the Fund in circumstances that arise under s 14(1)(a), s 14(1)(b) or s 14(1)(ba).
5.Section 14(1)(c)(ii) and s 14(1)(d) give a right to apply to the Board for payment of additional costs if the presiding judge, magistrate or justice in a criminal proceeding grants a certificate under either of those subsections.
6.Other than in circumstances covered by s 14(1) of the Act, there is no entitlement to costs in indictable matters. This is consistent with the common law, where costs are not recoverable by an accused in relation to indictable offences: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 559; Re Suitors' Fund Act 1964(WA); Ex parte Brazier [2002] WASC 243 [4].
7.The accused, on an application under s 14(1)(c) of the Act, must satisfy two criteria: first, that a criminal proceeding was discontinued and a new trial ordered; secondly, the reason for the discontinuance and ordering of a new trial was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor.
8.The accused, on an application under s 14(1)(d) of the Act, must satisfy three criteria: first, that the criminal proceeding was adjourned 'by or on behalf of the prosecution'; secondly, that by reason of the adjournment the accused has necessarily incurred expense; and thirdly, that the reason for the adjournment was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor.
9.The meaning of the expression 'criminal proceeding discontinued' in s 14(1)(c) of the Act is not defined and is concerned with a situation where a trial actually commences, but for some reason other than the proceedings being 'rendered abortive', as provided in s 14(1)(a), is interrupted and a new trial ordered.
10.The entitlement to a payment under s 14 of the Act requires the accused to satisfy the Board that he has incurred additional costs by reason of the ordering of a new trial.
Section 24 of the Sentencing Act 1995 makes very clear that a victim impact statement is given 'to assist the court in determining the proper sentence for the offender'. In this case the victim impact statement was produced in the course of the trial and before any recorded conviction.
Discussion
I am satisfied as to the relevant matters required by s 14(1)(c) of the Act.
First, I am satisfied that in the present case the hearing of the criminal proceeding was discontinued on 22March 2016 and a 'new trial' ordered within the meaning of s 14(1)(c).
Secondly, I am satisfied that the discontinuance and ordering of a new trial was for a reason 'not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor'. The adjournment of the trial was regrettable particularly given the stage the matter had reached.
Fortunately, DTY's viva voce evidence was recorded. However she may need to be recalled depending upon the result of further investigations.
The adjournment was required to enable the accused to investigate previously undisclosed matters which appeared in the statement.
Conclusion
A certificate will be granted under the Act stating that:
1.The reason why the proceedings were discontinued and a new trial ordered was because of an application made by the accused for an adjournment of the trial due to the late disclosure by the prosecution;
2.The reason for the ordering of the new trial was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor.
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