The State of Western Australia v RGS
[2024] WADC 34
•22 MAY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RGS [2024] WADC 34
CORAM: RUSSELL DCJ
HEARD: ON THE PAPERS
DELIVERED : 22 MAY 2024
FILE NO/S: IND ALB 12 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
RGS
Catchwords:
Criminal law and procedure - Suitors' Fund Act 1964 (WA) - Application for certificate - Criminal proceedings discontinued and new trial ordered - Certificate granted
Legislation:
Suitors' Fund Act 1964 (WA), s 14(1)(c)(ii)
Result:
Certificate granted
Representation:
Counsel:
| The State of Western Australia | : | No appearance |
| Applicant (Accused) | : | No appearance |
Solicitors:
| The State of Western Australia | : | Director of Public Prosecutions |
| Applicant (Accused) | : | Hammond Legal |
Case(s) referred to in decision(s):
The State of Western Australia v AJC [No 2] 2016 WADC 52
The State of Western Australia v Quartermaine [2012] WASC 138
RUSSELL DCJ:
Introduction
RGS (Applicant) applies for the grant of a certificate pursuant to s 14(1)(c)(ii) of the Suitors' Fund Act 1964 (WA) (Act) arising out of the adjournment of his trial in February 2023 and a new trial having been ordered (Application).
The Application was filed on behalf of RGS by his solicitors on 5 March 2024 supported by an affidavit sworn by the Applicant's lawyer, Robert James Graydon, on 28 February 2024. The Applicant also relies on a written outline of submissions dated 2 May 2024.
The State has not filed any submissions or sought to be heard on the Application, which I have determined on the papers.
For the reasons that follow, I am satisfied it is appropriate that a certificate be granted to the Applicant under s 14(1)(c)(ii) of the Act on the basis that his first trial was discontinued on 23 February 2023, and a new trial ordered for reasons that were not attributable in any way to the act, neglect or default of the Applicant or his counsel or solicitor.
Relevant background
The Applicant was charged on Albany indictment 12 of 2022 dated 19 January 2023 with:
(a)one count of unlawfully and indecently dealing with a girl under the age of 13 years, contrary to s 189(1) and s 189(2) of the Criminal Code, alleged to have occurred on a date unknown between 1 February 1981 and 1 February 1982; and
(b)four counts of indecent dealing with a girl under the age of 13 years, contrary to s 189(1) and s 189(2) of the Criminal Code, alleged to have occurred on dates unknown between 25 March 1985 and 25 March 1991.
The trial of the charges in the indictment was listed for hearing for four days from 20 to 23 February 2023. I will refer to that trial as the First Trial.
The First Trial commenced on 20 February 2023 before me as the trial judge and a jury.
Prior to commencement of the First Trial, the Applicant's counsel and the prosecutor informed the court that they had discussed certain evidence of one of the witnesses to be called by the prosecution. The prosecutor informed the court that such evidence would not be led from that witness.
Contrary to what is erroneously stated in the affidavit sworn in support of the application, the court did not make any order, by consent or otherwise, to the effect that that, or any other evidence, was not to be led or adduced from the witness. Rather, the court was informed that there had been a discussion and an understanding between counsel for the Applicant and the prosecutor that the State would not lead certain evidence from the witness.
During the course of the witness' evidence on 22 February 2023, the witness disclosed information during cross‑examination which concerned matters relating to the evidence discussed between the Applicant's counsel and the prosecutor. It was submitted the evidence was irrelevant and therefore inadmissible, and prejudicial to the Applicant.
The trial was adjourned until the following day, 23 February 2023, for the Applicant's counsel to take instructions.
On 23 February 2023, an application was made on behalf of the Applicant that the jury be discharged and the trial recommence before another jury at a later date.
I considered written and oral submissions made by both counsel for the Applicant and for the State. It is not necessary for me to repeat the submissions or the evidence that was adduced.
Counsel for the Applicant and the State both made submissions to the effect that neither of them was in a position to make appropriate forensic decisions for the cross‑examination and re‑examination of the witness to continue, and that it would be unfair to both parties for the trial to proceed without further investigation and any further disclosure being provided.
In the circumstances, I was satisfied that it was in the interests of justice and fairness to both the Applicant and the State to exercise my discretion under s 116 of the Criminal Procedure Act2004 (WA) to discharge the jury before it returned its verdicts, and for the trial to recommence before a different jury on a date to be fixed. I therefore made orders for the jury in that trial to be discharged and not be required to deliver verdicts, and that the trial be adjourned and relisted to commence before another jury at a later date, to be fixed.
On 23 February 2023, the jury was discharged, and the First Trial did not proceed.
At a trial listing hearing on 24 April 2023, a new five-day trial was listed to commence on 12 December 2023 (New Trial). The New Trial commenced before another judge and jury on 12 December 2023 and concluded on 15 December 2023, with the jury returning verdicts of guilty on counts 1, 2 and 5 on the indictment and verdicts of not guilty on counts 3 and 4.
On 8 February 2024, the Applicant was sentenced by the judge who presided over the New Trial.
Applicable legal principles
Section 14 of the Act provides, relevantly:
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 -
(d)…
… 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 hearing of the proceedings was so discontinued.
The factors to be considered in an application under s 14 of the Act were outlined by Commissioner Sleight (as his Honour then was) in the The State of Western Australia v Quartermaine,[1] and summarised by Stavrianou DCJ in The State of Western Australia v AJC [No 2].[2] I refer to and respectfully adopt his Honour Judge Stavrianou's summary, without repeating it.
[1] The State of Western Australia v Quartermaine [2012] WASC 138.
[2] The State of Western Australia v AJC [No 2] 2016 WADC 52 [14].
On an application under s 14(1)(c)(ii) of the Act, the applicant must satisfy two criteria:
1.first, that a criminal proceeding was discontinued and a new trial ordered; and
2.second, 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.
Disposition
I am satisfied that the hearing of the criminal proceeding (the First Trial) was discontinued on 23 February 2023 and a 'new trial' was ordered within the meaning of s 14(1)(c)(ii) of the Act. I am also satisfied that the discontinuance of the First Trial and ordering of the New Trial was for a reason that was not attributable to the act, neglect or default of the Applicant or his counsel or solicitor.
In the circumstances that transpired, and the evidence given, it was, in my view, necessary to exercise my discretion to discharge the jury in the First Trial, a position accepted on behalf of the State, and for a new trial to be ordered for further investigations to be made and any further relevant disclosure to be provided.
Conclusion
For these reasons, I am satisfied that the Applicant is entitled to a certificate under s 14(1)(c)(ii) of the Act, and I grant that certificate in relation to the First Trial, being the proceedings which commenced on 20 February 2023 and concluded on 23 February 2023.
It is a matter for the Appeal Costs Board to determine if any additional costs have been incurred as a result of the New Trial, which proceeded from 12 - 15 December 2023, and the amount, if any, payable from the Suitors' Fund.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
BN
Associate to Her Honour Judge Russell
22 MAY 2024
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