The State of Western Australia v Lee
[2023] WADC 142
•21 NOVEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LEE [2023] WADC 142
CORAM: BOWDEN DCJ
HEARD: 21 NOVEMBER 2023
DELIVERED : 21 NOVEMBER 2023
FILE NO/S: IND 248 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SHA RON LEE
Catchwords:
Criminal law and procedure - Suitors' Fund Act 1964 (WA) - Disclosure - Certificate granted
Legislation:
Suitors' Fund Act 1964 (WA)
Result:
Certificate under the Suitors' Fund Act 1964 (WA) granted
Representation:
Counsel:
| The State of Western Australia | : | Mr D T Carlson |
| Accused | : | Ms C Bass |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Nigams Legal Pty Ltd |
Case(s) referred to in decision(s):
Nil
BOWDEN DCJ:
Ms Lee applies pursuant to s 14(1)(c)(ii) of the Suitors' Fund Act 1964 (WA) for a certificate under that Act.
The law
Section 14 of the Suitors' Fund Act states:
14.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 -
…
(c)the hearing of any … 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 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)…
(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 -
… and … the accused in the criminal proceedings ... 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.
…
(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.
As can be seen the prerequisites before a certificate can be granted are:
(i)there must be a criminal proceeding which is discontinued and a new trial ordered;
(ii)the reason for the discontinuance must be not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor.
The factual background
Ms Lee was charged on indictment 248 of 2022 with three counts of with intent to harm did an act as a result of which the life, health or safety of a person was or was likely to be endangered and one count of unlawfully doing grievous bodily harm.
The trial commenced on 21 August 2023.
On 24 August 2023 an issue arose with late disclosure by the prosecution which resulted in the necessity for the trial to be aborted and I aborted the trial and ordered that a new trial commence on 30 January 2024.
The State accepts that there was late disclosure.
The circumstances of the late disclose were that although a crucial witness' phone records had been downloaded and disclosed the embedded files on that phone which included at least one crucial audio message/recording were not disclosed until 24 August 2023 being after the relevant witness' evidence had been completed.
The late disclose was solely as a consequence of the neglect or default of the prosecution or the West Australian police. I find that late disclosure was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor.
The witness could have been recalled however the defence had cross‑examined the witness on the basis that he had deliberately deleted messages from the phone and the recently discovered embedded files show that at least one message had not been deleted.
I accepted the defence submission that if the embedded files had been disclosed at an earlier date (as they should have been) the cross‑examination would have been different.
I was satisfied the defence had been prejudiced in the cross‑examination of a principal State witness and there was a real chance that once the contents of the embedded file were in evidence the defence attack on that witness' evidence would be diminished and that could have a flow on effect in relation to other attacks made by the defence on the witness' credibility.
Simply put the State could obtain an unfair advantage as a result of the defence adopting a line in cross-examination that they may not have taken if proper disclose was made and in circumstances where the recently disclosed embedded materials substantially rebutted the matters suggested to the witness in cross-examination. The jury was therefore discharged and a new trial date given to the parties.
Conclusion
I am satisfied that the trial was discontinued, a new trial was ordered to commence on 30 January 2024, and the discontinuance was not in any way attributable to the act, neglect or default of the accused, his counsel or solicitors. Ms Lee is entitled to the certificate and I grant that certificate in relation to the proceedings which commenced on 21 August 2023 and concluded on 24 August 2023.
It is a matter for the Appeal Costs Board to decide if any additional costs have been incurred as a result of a new trial and the amounts to be payable, if any, from the Suitors' Fund.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
22 NOVEMBER 2023
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