The State of Western Australia v Castle
[2017] WADC 164
•20 DECEMBER 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: KARRATHA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CASTLE [2017] WADC 164
CORAM: LEVY DCJ
HEARD: 11 & 15 DECEMBER 2017
DELIVERED : 20 DECEMBER 2017
FILE NO/S: IND KAR 46 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
STEPHEN ROBERT CASTLE
Catchwords:
Criminal law - Abuse of process - Whether indictment complies with Schedule I, cl 8 of the Criminal Procedure Act 2004 (WA) - Latent Duplicity - One offence alleging multiple acts of stealing - General deficiency
Legislation:
Criminal Code Compilation Act 2013 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA) s 44
Result:
Accused's application dismissed
Representation:
Counsel:
The State of Western Australia : Mr L Gabriel
Accused: Mr A Oswald
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Oswald Legal
Case(s) referred to in judgment(s):
Atherley v The State of Western Australia [2017] WASCA 53
Barton v The Queen (1980) 147 CLR 75
Caratti v The Queen [1984] WAR 313
Clyne v New South Wales Bar Association (1960) 104 CLR 186
GNR v The State of Western Australia [2015] WASCA 5
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Jago v District Court of New South Wales (1989) 168 CLR 23
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
R v Lorkin (1995) 15 WAR 499
Williams v Spautz (1992) 174 CLR 509
LEVY DCJ:
Introduction
On or about 4 April 2017 Stephen Robert Castle pleaded guilty in the Magistrates Court at Karratha to charge WN 118 of 2016 being the offence that:
[B]eing the servant of Canila Pty Ltd trading as Warmun Roadhouse, stole Australian currency to the approximate value of $41,564.11 the property of Canila Pty Ltd trading as Warmun Roadhouse which came into his possession on account of his employement with Canila Pty Ltd trading as Warmun Roadhouse.
On 3 October 2017, the accused was committed on the 'Fast Track' system to be sentenced in the District Court sitting at Karratha on 11 December 2017.
The Director of Public Prosecutions for Western Australia (DPP (WA)) subsequently filed indictment KAR 46 of 2017 alleging a similar, but differently worded offence, namely:
Between 6 May 2016 and 21 October 2016 at Warmun he being a servant of Canila Pty Ltd trading as Warmun Roadhouse, stole the sum of $41,564.11 in money being the amount of a general deficiency, the property of Canila Pty Ltd trading as Warmun Roadhouse.
The accused also faces 10 other charges of stealing as a servant (WN 119 of 2016 – WN 128 of 2016) all of which he has also pleaded guilty to and are listed in Karratha Magistrates Court. These charges relate to offences against the same complainant. The other charges listed in Karratha Magistrates Court are as follows:
Charge No Date of Offence Amount
WN 119/16 22 October 2016 $700.00
WN 120/16 27 October 2016 $525.00
WN 121/16 28 October 2016 $119.00
WN 122/16 30 October 2016 $150.00
WN 123/16 31 October 2016 $422.40
WN 124/16 3 November 2016 $254.65
WN 125/16 5 November 2016 $150.00
WN 126/16 7 November 2016 $300.00
WN 127/16 9 November 2016 $500.00
WN 128/16 10 November 2016 $150.00
KAR46/2017
The State contends that the sum of $41,564.11 was stolen by the accused over the course of 168 separate Electronic Funds Transfer at Point of Sale transactions in the period between 5 May 2016 and 21 October 2016. Despite the fact that the charge encompasses 168 separate transactions, the State submits that it is appropriate to bring one charge alleging the total sum of $41,564.11 stolen by the accused as constituting the amount of a general deficiency.
While both charge WN 118/16 and indictment KAR 46/2017 are similar, the charge now pleaded on indictment is different in that it specifically pleads that the money stolen represents 'a general deficiency'. Charge WN 118/2016 did not specifically plead that allegation.
The accused submits that, since each of the 168 transactions are readily identifiable, each transaction represents a separate and discrete offence. Consequently, the accused submits that the current indictment:
(a) does not comply with sch I, cl 8(4) of the Criminal Procedure Act 2004 (WA) ('CPA'); and/or
(b) is latently duplicitous; and/or
(c) constitutes an abuse of process.
Both the accused (through his lawyers) and the State filed detailed written submissions setting out their respective positions. Although the accused's written submissions neither specifically pleads nor formally applies for an order staying the indictment, the thrust of the submissions appear to be to the effect that this court should make the following orders:
(a) the indictment be stayed pursuant to s 90 of the CPA; and
(b) the matter remitted to the Magistrates Court; and
(c) the charges be separated.
Facts before the Court
The Court has been provided with the following documents for the purposes of this application.
•'Brief for Fast Track' comprising little more than the 'Statement of Material Facts' for all offences including WN119/2016 – WN128/2016, together with a transcript of the electronic record of interview conducted between interviewing police officers and the accused on 10 November 2016 ('EROI').
•Copies of numerous emails exchanged between Mr John Rando, the accused's lawyer at the time, and investigating and prosecuting police officers in the period between 11 May 2017 and 15 May 2017.
It does not appear to be in dispute that, in the period between 6 May 2016 and 10 November 2016, the accused was employed as an Assistant Manager working at Warmun Roadhouse, Great Northam Highway, Warmun.
On the papers, it does not appear to be in dispute that the accused stole:
•a total of $41,564.11 when all of the 168 transactions the subject of KAR 46 of 2017 are combined; and
•the individual amounts the subject of WN 119/2016 ‑ WN 128/2016.
On 10 November 2016, the accused participated in an EROI. During that interview police officers informed the accused that some of his actions, whilst working at the roadhouse, had been captured by CCTV cameras. In particular, he was advised that he had been observed to input information into an electronic cash register. It is alleged that the information he was seen to be inputting into the cash register at various times was an electronic refund code. He is also seen to later withdraw money from the cash register.
During the course of the interview, the accused admitted that since being promoted to the position of assistant manager at the roadhouse he had employed a practice whereby he falsely represented that refunds had been given to customers of the roadhouse by inputting refund codes into the cash register. When balancing the electronic cash register at the end of the working day, he would take the amount of the falsely recorded refunds by way of cash.
Each of charges WN 119/2016 ‑ WN 128/2016 represents a charge where the accused's actions were captured on CCTV camera.
KAR 46 of 2017 (originally charged as WN 118/116) represents 168 separate occasions where, in the period between 5 May 2016 and 21 October 2016, the accused falsely recorded refund codes and withdrew a total of $41,564.11 in cash. Although electronic records for Warnum Roadhouse show that the accused purposefully inputted 168 separate refund codes into the electronic cash register (see Statement of Material Facts), none of these transactions were captured by CCTV cameras.
The accused has pleaded guilty to all acts of stealing as a servant the subject of charges WN 118/2016 – WN 128/2016. Thus, the accused has admitted committing all 178 separate transactions.
Court history relating to all charges (including WN118/2016 - WN128/2016)
The accused first appeared in Kununurra Magistrates Court on 18 November 2016 in relation to all the relevant charges (including WN 118/2016). Following his first appearance, there were numerous subsequent appearances in the Magistrates Court, including the matter being transferred to Karratha Magistrates Court.
On 4 April 2017, Magistrate Young sitting at Karratha Magistrates Court noted the issue of whether it was more appropriate to have 168 separate charges rather than one single charge represented as WN 118/2016. The matter was adjourned to enable the police to investigate or consider the appropriateness of the one charge encompassing all 168 separate transactions.
Following that appearance, the accused's then lawyer Mr John Rando, wrote to police via email enquiring about the appropriateness of separating charge WN 118/2016 into 168 separate charges.
On 11 May 2017 Detective Senior Constable Gannaway responded to Mr Rando's email and advised him that the police had considered whether the accused should be charged with 168 separate charges or one rolled up charge encompassing all of the accused's conduct. Detective Senior Constable Gannaway advised that it was the police position that 168 separate charges would not properly reflect the seriousness of the accused's conduct. Detective Gannaway advised Mr Rando that he and other police involved in the investigation considered that the accused had in essence stolen a large amount of money from the roadhouse 'which is fundamentally owned by the community through the local Aboriginal Corporation but operated through Outback stores'. It was Detective Gannaway's view, an opinion apparently also supported by other investigating officers, that it was not in the public interest to effectively downgrade the charge by charging 168 separate offences which would 'minimise' the offences (see email sent on 11 May 2017 from Detective Senior Constable Gannaway to John Rando and others).
On 5 September 2017, the accused again appeared at Karratha Magistrates Court before his Honour Magistrate Young in relation to all charges. On this occasion the accused was not represented by Mr Rando. The record of proceedings notes (perhaps erroneously):
Still no answer from P as to whether 118/16 can be broken down into 168 charges and dealt with in MC. If still no answer, should just be committed for sentence and see whether DPP instruct P to deal with it that way.
In any event, as already noted, on 3 October 2017 the accused appeared before the Karratha Magistrates Court and was committed on the 'fast track' system on one charge of stealing as a servant being charge WN 118/16, contrary to s 378(7) of the Criminal Code Act Compilation Act 1913 (WA) ('CRC'). This offence was then worded as set out at [1]. The accused has also pleaded guilty to the 10 other separate charges of stealing as a servant, namely, WN 119/16 ‑ WN 128/16, all of which remain in the Karratha Magistrates Court. On this occasion he was represented by his current lawyer Mr Oswald.
The accused was committed to the Karratha District Court for sentence on 11 December 2017 in relation to charge WN 118/16. At that time WN 118/16 was an 'indictable-only' charge as the amount of money alleged to have been stolen the subject of that charge is $41,564.11.
On 11 December 2017 the matter came before the District Court sitting at Karratha for sentencing. Mr Oswald, who appeared as counsel for the accused, again raised the matter of whether the single count of stealing (now KAR 46 of 2017) was properly brought. The court adjourned the arraignment of the accused and allowed both the accused and the State to file written submissions as to whether or not the matter should proceed in the District Court, or whether the matter should be remitted to the Magistrates Court to be dealt with as 168 separate charges.
Stealing as a servant (s 378 CRC) and the maximum penalty applicable (s 426 CRC)
Second s 378(7) of the CRC provides that the maximum punishment applicable for the offence of stealing as a servant is 10 years' imprisonment.
The CRC also provides for a summary conviction penalty for certain stealing and like offences pursuant to s 426 of the CRC. One of the offences to which a summary conviction penalty applies is s 378(7) of the CRC (see s 426(1)(b) CRC).
Depending upon the type and value of the property stolen, the summary conviction penalties set out at s 426(2) – s 426(4) of the CRC do not exceed 2 years' imprisonment and a fine of $24,000. Relevantly, with respect to the offence of stealing as a servant, the maximum summary convictions penalties are as follows:
•Where the value of the property (not being a motor vehicle) is between $1,000 and $10,000, the offender is liable to be sentenced to a maximum of 2 years' imprisonment and a fine of $24,000 (s 426(2) CRC).
•Where the value of the property (not being a motor vehicle) does not exceed $1,000, the offender is liable to be sentenced to a maximum penalty of $6,000 (s 426(4) CRC).
Does indictment KAR 46 of 2017 comply with the provisions of sch I, cl 8 of the CPA?
Schedule I, cl 8 of the CPA is headed 'Multiple offences may be charged as one in some cases'. Clause 8(3) and cl 8(4) of sch I set out circumstances where a prosecuting authority may charge one offence encompassing a number of occasions or acts of stealing over a period of time.
Clause 8(3) specifically allows for an offence to plead one charge alleging a general deficiency in circumstances where it is 'alleged that on more than one occasion over a period a person stole property' irrespective of the fact that the charge comprises various quantities of various property stolen over a period of time.
Clause 8(4) allows for a person to be charged with one offence of stealing where it is alleged that there was more than one occasion over a period of time that the person stole identifiable property but it is not reasonably practicable to either identify:
•which of the property or what quantity of the property was stolen on each occasion (cl 8(4)(b)(i)); or
•from whom the property was stolen on each occasion (cl 8(4)(b)(ii)).
The accused submits that cl 8(3) and cl 8(4) should be read together, so that in effect cl 8(3) is limited by the pre‑conditions set by cl 8(4). In other words, unless one of the situations set out in cl 8(4)(b) apply, then the State is precluded from charging a general deficiency.
The accused's submissions in this regard misunderstands the purpose of cl 8(3) and cl 8(4). They deal with different circumstances. Clause 8(3) allows for a general deficiency to be charged and is independent of, and not limited by, cl 8(4). Clause 8(4) does not require there to be a general deficiency to exist before it has application. It can also apply to circumstances where the property the subject of the acts of stealing is something other than cash or monetary transactions.
As pointed out by the State, stealing as a general deficiency was previously codified pursuant to s 586 of the CRC. That provision, which was repealed in 2004 when the CPA came into effect, relevantly read as follows:
(1)In an indictment against a person for stealing any property the accused person may be charged and proceeded against for the amount of a general deficiency, notwithstanding that such general deficiency is made up of –
(a)any number of specific sums of money; or
(b)any number of specific articles or items of property
the taking or conversion of which extended over any space of time
…
Clause 8 of the CPA now reflects what was contained in the now repealed s 586 of the CRC.
The common law position that it is undesirable to 'lump' items together and to charge an accused with stealing or fraudulent conversion of the total amount as a general deficiency in circumstances where it is possible to identify individual items of property and to prove the fraudulent taking or fraudulent conversion of each on particular dates was specifically displaced by s 586 of the CRC (Caratti v The Queen[1984] WAR 313, 317 (Burt CJ)). Since cl 8 of sch I of the CPA now stands in the place of s 586 of the CRC, it is clear that the common law position in Western Australia no longer applies.
Consequently, KAR 46 of 2017 does not infringe cl 8, sch I of the CPA. The count on the indictment has been properly framed pursuant to cl 8(3) of sch I of the CPA.
The accused's claim that the indictment represents 'latent duplicity'
The accused's assertion that the charge is bad for duplicity and amounts to 'latent duplicity' cannot be sustained in light of the fact that cl 8 of sch I of the CPA expressly provides for a charge to contain an offence that alleges multiple acts of stealing.
In Atherley v The State of Western Australia [2017] WASCA 53 the appellant was convicted of a count on the indictment that pleaded a general deficiency arising from multiple transactions. The appellant appealed against his conviction on the basis that a separate charge of stealing should have been brought in respect of each impugned transaction. The failure to do so, so the appellant contended, resulted in a miscarriage of justice because the count was 'subject to issues of patent duplicity and the trial judge should have required the prosecution to make an election'.
As in the present case, in Atherley v The State of Western Australia it was acknowledged that the count the subject of the appeal was framed in reliance upon the provision in cl 8(3) of sch 1 of the CPA.
In Atherley, it was not asserted by the appellant that there was no power to proceed on one 'rolled-up' count, rather it was submitted that 'the power conferred by this provision should not have been exercised because it resulted in unfairness to Mr Atherley': see Atherley [33]. In dismissing the ground of appeal, the Court of Appeal noted that 'the approach taken by the trial judge is entirely consistent with s 44(2) of the Evidence Act 1906 (WA)' [34].
Notably, s 44(2) of the Evidence Act provides:
On the trial of a person charged with [stealing money], it shall not be necessary to prove the stealing ... of any specific sum of money, if, on examination of the books of account or entries kept or made by him, ... or by any other evidence, there is proof of a general deficiency and if the jury are satisfied that the accused ... stole the deficient money or any part of it.
In any event, the unfairness or prejudice that often arises in situations where the prosecution alleges one event, but leads evidence that would support more than charge, does not arise in this case. Latent duplicity, in cases where an accused denies some acts that are rolled up into the one offence, may lead to a situation where the trier of fact may find some facts proved, but not others. In such circumstances, particularly where the matter is tried by a jury, the accused would be left in doubt as to which of the facts constituting the offence on the indictment were found to be proven. Since the accused in this case admits responsibility for all 168 separate transactions, no possible confusion or prejudice arises as to which of the 168 transactions apply.
The prejudice or unfairness that may arise in cases of latent duplicity has no application in the present case.
Abuse of Process
Prior to the introduction of the CPA, the District Court had an inherent discretionary power to stay proceedings where the indictment was an abuse of process: Barton v The Queen (1980) 147 CLR 75; R v Lorkin (1995) 15 WAR 499.
The power to stay an indictment is now contained in s 90 of the CPA which provides that a superior court may 'at any time' order that a charge be permanently stayed 'if it is in the interests of justice to do so': s 90(1) CPA. This power replicates the inherent power previously relied upon and referred to in earlier authorities such as Jago v District Court of New South Wales (1989) 168 CLR 23 where it was held that an application could be made at any stage of the criminal justice process for a case to be stayed on the basis that it's continuance would result in injustice and therefore amount to an abuse of process.
The power to stay proceedings arises from the need for courts to be able to exercise effectively the jurisdiction which they have to ensure fairness in proceedings: Clyne v New South Wales Bar Association (1960) 104 CLR 186, Barton v The Queen; Williams v Spautz (1992) 174 CLR 509.
In Jago v District Court of New South Wales, Brennan J stated that (47):
An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve ... The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment ... [I]t will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him.”
The circumstances in which abuse of process may arise are extremely varied and there are no fixed categories: Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536 (Lord Diplock).
The accused submits that the filing of an indictment that alleges one offence alleging a total sum of $41,564.11, rather than 168 individual offences, none of which exceed $10,000 (and most likely do not individually exceed $1,000) constitutes an abuse of process in that:
it has been filed for an improper purpose namely to ensure [the accused] faces a harsher penalty regime than he would have faced had the State charged for each individual offence.
(see unpaginated fourth page of Defence Submissions under the heading 'Abuse of Process').
In determining whether a prosecution is an abuse of process, the court is not considering whether the prosecution should have been brought, but rather whether it should permit its processes to be employed in a manner which gives rise to unfairness: Jago (Mason CJ (28) and Brennan J (47)).
The court's power to stay proceedings on the basis that it constitutes an abuse of process is to be used only in the most exceptional of circumstances. In order to justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the proceedings of such a nature that nothing that a judge can do in the conduct of the proceedings can relieve against its unfair consequences: Jago (31 and 34) (Mason CJ).
The High Court has re‑affirmed the clear division between the executive power to present an indictment and the judicial power to hear and determine proceedings founded on the indictment. It has been held that this division is of great constitutional importance. The question of whether an indictment should be presented is, and always has been, seen as involving the exercise of an independent discretion vested in prosecuting authorities, which discretion is not ordinarily reviewable by the courts. Consequently, the power to grant a permanent stay of criminal proceedings is not to be exercised on the basis of an opinion that an indictment should not have been presented: Jago (77) (Gaudron J).
When broken down, the claim that KAR 46 of 2016 amounts to an abuse of process is in effect a challenge to the exercise of the State's prosecutorial discretion to charge the appellant with one more serious offence, rather than multiple lesser offences. The dangers of courts intruding into that area of executive function have been identified by the High Court: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 534; Jago (38); Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265; GNR v The State of Western Australia [2015] WASCA 5.
French CJ in Likiardopoulos v The Queen [37] noted that 'it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court'. However, the fact that the State's decision to prosecute the accused on an indictment that exposes the offender to a higher penalty cannot of itself constitute an abuse of process.
Having found that cl 8(3) of the CPA empowers the State to charge the accused in the manner that it has, there is no basis for this court to interfere with the DPP's decision to charge the accused in the manner it has.
Conclusion
The accused's application is dismissed.
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