Zonneveld v The Queen

[2018] ACTCA 29

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Zonneveld v The Queen

Citation:

[2018] ACTCA 29

Hearing Date:

4 April 2018

Decision Date:

5 April 2018

Reasons Date:

10 July 2018

Before:

Burns ACJ

Decision:

See [21]

Catchwords:

CRIMINAL LAW – Application for extension of time – application for leave to appeal – application for stay of proceedings – charge of one count of conspiracy to perform an act or acts of bestiality – indictment severed – applicant sought particulars – application for stay – quantum of costs – whether applicant had an arguable case for relief

Legislation Cited:

Crimes Act 1900 (ACT) s 63A

Crimes Act 1900 (NSW)

Criminal Code 2002 (ACT) s 48

Cases Cited:

Barton v The Queen (1980) 147 CLR 75

Dietrich v The Queen (1992) 177 CLR 292

Jago v District Court of New South Wales (1989) 168 CLR 23

Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302

R v Bui [2011] ACTSC 102; 5 ACTLR 230

R v Fisher [2003] NSWCCA 41; 56 NSWLR 625

R v Martinello [2005] ACTSC 9

R v Mosely (1992) 28 NSWLR 735

R v Upton [2005] ACTSC 52

Parties:

Mark Zonneveld (Applicant)

The Queen (Respondent)

Representation:

Counsel

Mr K Ginges (Applicant)

Mr J White (Respondent)

Solicitors

Aulich Criminal Law (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 15 of 2018

Decision under appeal:

Court:  ACT Supreme Court

Before:              Murrell CJ

Date of Decision:         16 March 2018

Case Title:    R v Zonneveld

Court File Number:     SCC 286 of 2016

BURNS J:

1.              By an application dated 27 March 2018 the applicant, Mark Adam Zonneveld, sought orders extending time for leave to appeal from a decision of Murrell CJ handed down on 16 March 2018, leave to appeal from that decision and a stay of proceedings in SCC 286 of 2016 until such time as the appeal was determined. On 5 April 2018 I granted the orders sought by the applicant, and indicated that I would publish my reasons in due course. These are those reasons.

Proceedings SCC 286 of 2016

2. The applicant is charged with one count of conspiracy to perform an act or acts of bestiality contrary to s 63A of the Crimes Act 1900 (ACT) (Crimes Act) in conjunction with s 48 of the Criminal Code 2002 (ACT).

3. The applicant was originally charged on 7 June 2016 with a substantive offence of engaging in a sexual activity with an animal, contrary to s 63A of the Crimes Act. The charge did not provide any particulars of the alleged act, such as the nature of the act or where it was alleged to have occurred. The charge alleged that the offence occurred between 7 July 2012 and 8 February 2015.

4.              The applicant was committed for trial on 16 December 2016. The indictment filed by the Crown on 24 April 2017 was a joint indictment containing, inter alia, three counts alleging that between various dates the applicant and a co-accused, Jeffrey Lee, engaged in sexual activity with an animal, namely a dog called “Prince”. In August 2017 Murrell CJ ordered that the joint indictment be severed to the extent that the charges against the applicant and Mr Lee alleging sexual activity with the dog Prince and another dog named “Buddy” be tried separately to the other counts on the indictment.

5. Between October 2016 and December 2017 lawyers on behalf of the applicant sought particulars from the Crown regarding the charges contrary to s 63A of the Crimes Act. They were not satisfied with the responses they received. On 7 December 2017 the applicant filed an application for stay of the proceedings on the ground that the Crown had repeatedly failed to provide adequate particulars. On 11 January 2018 the Crown filed a fresh indictment, replacing the substantive offences with the one charge of conspiracy. It appears that the application for stay filed on 7 December 2017 did not proceed, in the light of the fresh indictment filed by the Crown.

6.              On 2 February 2018 the applicant filed a fresh application seeking a stay of the proceedings against him until such time as the Crown, via the office of the Director of Public Prosecutions, provided particulars of the charge of conspiracy and paid the applicant’s reasonable costs thrown away as a result of the Crown’s failure to provide particulars of the substantive offences and then abandoning the substantive offences in favour of the conspiracy charge.

7.              The application for stay filed on 2 February 2018 proceeded to hearing before Murrell CJ on 13 March 2018. On 16 March 2018 her Honour dismissed the application and published reasons. It was this decision that the applicant sought to challenge.

The reasons of Murrell CJ

8.              Murrell CJ stated that “the power to stay a trial exists because a court may prevent an abuse of its process by preventing a trial that is unfair when judged by reference to accepted standards of justice: Barton v The Queen (1980) 147 CLR 75 per Gibbs ACJ and Mason J at 95-96.” She noted that a stay of a criminal trial is a very exceptional remedy, citing Jago v District Court of New South Wales (1989) 168 CLR 23 (Jago). The determination of whether a trial will be unfair may involve a consideration of the whole criminal process leading up to the trial, her Honour said, citing Jago per Mason CJ at 29-30.

9.              Murrell CJ then reviewed a number of authorities concerning the granting of a stay in criminal proceedings. In R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 the accused Fisher was defending charges alleging offences under the Corporations Law and the Crimes Act 1900 (NSW). His defence was privately funded. His first trial proceeded for six days before being aborted due to Fisher’s ill health and the discharge of two members of the jury, also for ill health. Fisher’s second trial proceeded for almost three weeks, reaching the point at which counsel had made their final addresses and the judge was about to embark upon his directions, when the Crown produced documents to Fisher which it should have produced before the trial commenced. The trial judge formed the view that the trial could not fairly continue and discharged the jury. The Crown proposed to proceed to a third trial. The Crown declined to pay Fisher’s costs of the aborted trials. Fisher had by this point exhausted his available resources, and it was unclear whether he would be eligible for a grant of legal aid. An application for a stay of proceedings in the District Court of New South Wales was unsuccessful, with Blackmore DCJ referring to the judgment of Mason J and McHugh J in Dietrich v The Queen (1992) 177 CLR 292, in which they referred to the power to stay criminal proceedings that would result in an unfair trial. The primary judge concluded that any future trial would not be rendered unfair “by reason of [Fisher’s] inability to obtain the counsel of his choice or one of similar seniority through lack of funds.” Fisher applied for leave to appeal this decision.

10.           Simpson J, with whom Santow JA and Smart AJ agreed, referred to the decision of the New South Wales Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735 (R v Mosely) where a stay of a trial had been ordered until the Crown paid the accused’s costs thrown away by reason of a Crown adjournment of the proceedings, before saying, at [31]:

There is no inconsistency between Dietrich and R v Mosely. Dietrich is not authority for the proposition that the power of a court to stay proceedings is confined to the circumstance where a trial would be an unfair trial. That was the circumstance under consideration in that case, but no member of the court held that there were no other circumstances in which a stay might be granted.

11.           Simpson J went on to say that a further trial of the accused Fisher would not be an abuse of the Court’s process, before concluding, at [47]:

Having considered all matters, I am of the view that a R v Mosely order
should also be made in this case. The applicant has (or his parents have)
incurred very substantial expense in privately funding his legal representation.
While the availability of legal aid is a relevant consideration, it does not undo
the unfairness that had accrued by reason of the discharge of the jury at a very
late stage in the trial. I accept that an accused person is not necessarily entitled
to counsel of his or her choice, particularly when legal representation is funded
by legal aid. But here the applicant had made a considered choice to be
represented privately and he is now deprived of that opportunity by reason of
error on the part of the Crown. In my opinion, in these unusual circumstances,
fairness demands that he retain the opportunity of having the representation of
his choice.

12.           The second decision referred to by Murrell CJ was Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302. In particular, her Honour quoted the following passage of the decision, at [17]:

In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness.

13.           The third decision referred to by Murrell CJ was R v Mosely itself.

14.           The next decision referred to by Murrell CJ was R v Martinello [2005] ACTSC 9 where Connolly J stayed proceedings until the prosecution paid the costs thrown away by the accused due to a prosecution application to vacate a trial.

15.           The next decision referred to by her Honour was R v Upton [2005] ACTSC 52, where Connolly J again stayed proceedings where the Crown made a late application to vacate a trial date.

16.           Finally, her Honour referred to R v Bui [2011] ACTSC 102; 5 ACTLR 230, where Refshauge J ordered a stay pending the prosecution paying the accused’s costs thrown away after an adjournment of a trial as a result of late production of documents by the prosecution. With regard to this decision, Murrell CJ said, at [37]:

I respectfully agree with his Honour’s view that, when determining a stay application where the accused alleges prosecution fault, it is necessary to advert both to the nature and degree of prosecution fault and to whether resulting substantial unfairness can be cured otherwise than by the grant of a stay. I would add that “substantial unfairness” to the accused does not mean general unfairness, but, as Deane J explained in Jago, the prospect that a trial will be unfair in the sense that the accused may be convicted otherwise than after a fair trial.

17.           After reviewing these cases, Murrell CJ concluded:

38. Between October 2016 and January 2018, the applicant’s legal representatives made several requests for particulars of the acts upon which the Crown relied to support the substantive charges. Particulars were not provided, presumably because the evidence available to the Crown did not clearly establish that acts of bestiality had occurred. In August 2017, the evidentiary problem was drawn to the Crown’s attention in clear terms, yet the Crown pressed on with the substantive charges.

39. It was only after the applicant made an application to conditionally stay the proceedings pending the provision of adequate particulars of the substantive charges that the Crown saw fit to file a different indictment.

40. No doubt, the applicant has incurred significant legal costs in seeking particulars that were never provided and, in all probability, could never have been provided. Further, he incurred expenses associated with instituting the stay proceedings that, I infer, finally caused the Crown to question whether it should proceed on an indictment alleging substantive offences.

41. The Crown has been at fault in failing to abandon the substantive charges at a much earlier point in time. Further, in a broad sense, the Crown’s fault has caused significant unfairness to the applicant because he has been obliged to incur costs that should have been unnecessary.

42. However, there has been no substantial unfairness in the relevant sense. A stay will not be granted just because prosecution authorities pursue proceedings inefficiently or belatedly abandon ill-conceived charges.

43. In this case, the Crown’s fault does not mean that the imminent trial will be unfair in the sense that the applicant may be convicted otherwise than after a fair trial.

44. The application is dismissed.

Reasons for grant of leave to appeal

18.           It is arguable that Murrell CJ, at [42]-[43] of her reasons as set out in the previous paragraph, has applied an inappropriately narrow test in determining whether to grant a stay. It is arguable that her Honour applied a test requiring satisfaction that the proposed trial of the applicant would be rendered unfair as a result of the failure of the prosecution to properly prepare its case against the applicant. As stated above, this proposition was expressly rejected by the New South Wales Court of Criminal Appeal in R v Mosely.

19.           I was initially concerned that the evidence placed before me on this application did not set out the quantum of the costs said to have been wasted by the applicant due to the prosecution’s misconduct. I note, however, that the finding of Murrell CJ at [41] was that the Crown’s fault had caused “significant unfairness” to the applicant because he had been obliged to pay unnecessary costs.

20.           In any event, it is arguable that the quantum of costs thrown away is not of itself determinative of the issue. Where an accused person privately funds their own defence, they will usually have a limited amount which they can apply to that purpose. I do not suggest that the funds available to the Crown are unlimited, but in the vast majority of cases the Crown is able to bear an increase in the cost of proceedings more readily than an accused person. Any default on the part of the Crown which depletes the resources that an accused has available to meet criminal charges may arguably result in an unfair trial, in the sense that the accused has been denied the opportunity to devote all of his or her resources to meeting the charges. That is not to say that every action or change of forensic direction by prosecuting authorities will result in unfairness to an accused justifying a conditional stay, even where some costs have been thrown away. Much depends on the level of fault found on the part of the prosecuting authority.

21.           I was satisfied that the applicant had an arguable case for relief, and that if leave were not granted there would be no other means available to him to pursue this issue. For these reasons, I granted leave to appeal.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns.

Associate:

Date: 10 July 2018