Zonneveld v The Queen (No 2)
[2018] ACTCA 31
•16 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Zonneveld v The Queen (No 2) |
Citation: | [2018] ACTCA 31 |
Hearing Date: | 10 August 2018 |
DecisionDate: | 16 August 2018 |
Before: | Elkaim, Loukas-Karlsson and Wigney JJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Conditional stay of proceedings subject to payment of costs – unfairness to the accused |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37N |
Cases Cited: | Jago v District Court of New South Wales (1989) 168 CLR 23 R v Bui [2011] ACTSC 102; 5 ACTLR 230 R v Zonneveld [2018] ACTCA 29 |
Parties: | Mark Adam Zonneveld (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Whybrow (Appellant) Mr J White SC (Respondent) |
| Solicitors Aulich Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 15 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 16 March 2018 Case Title: R v Zonneveld Citation: [2018] ACTSC 97 |
THE COURT:
This is an appeal from an interlocutory decision of Murrell CJ on 16 March 2018 (R v Zonneveld [2018] ACTSC 97). Because of its interlocutory nature, leave to appeal was required. Leave was granted by Burns J on 5 April 2018 (R v Zonneveld [2018] ACTCA 29).
Murrell CJ refused an application for a conditional stay of criminal proceedings pending the payment of certain costs by the Crown.
Application to rely on fresh evidence
Before dealing with the merits of the appeal, it is necessary to refer to an application made by the appellant to rely on fresh evidence. The fresh evidence was made up of an affidavit of the appellant, sworn on 13 July 2018, and an affidavit of the appellant’s solicitor, Mr Aulich, affirmed on 13 July 2018.
The further evidence may be summarised as a description of the appellant’s financial position. It indicates that he has few assets besides his residence. The property is subject to a mortgage of about $250,000. The remaining equity is about $550,000. The appellant has entered into an agreement with his solicitors which will require the sale of the property to meet his legal costs.
The need for the fresh evidence was said to arise from comments made by Burns J, in his reasons on the leave application, in particular at [19].
Ultimately, the application was dealt with in this way: the application was dismissed by consent, but noting that the respondent conceded that the appellant had incurred legal costs arising from his prosecution in the sum of $142,871.42. The concession did not extend to any agreement that the whole, or any specific percentage of this sum, was attributable to any fault on the part of the respondent.
The appeal
The primary judgment, commencing at [3], has a useful chronology setting out the history of the matter. It highlights, in particular, the respondent’s changing attitude to the prosecution of the appellant. The respondent finally confirmed on 13 March 2018, before Murrell CJ, that it would be proceeding on the fourth indictment filed. This indictment is limited to a conspiracy charge.
The three indictments previously filed have variously contained charges implicating a co-accused and charges of bestiality. The chronology highlights the respondent’s apparent failure to provide particulars in a timely manner and to reach a conclusion as to the manner in which it wished to prosecute the appellant.
Murrell CJ observed, from [38]:
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, never could 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.
Although the respondent sought to minimise the extent of its fault and the length of any consequent delay, the Court can see no basis to moderate or otherwise amend her Honour’s findings.
The respondent did not dispute the power of a court to make an order of the type sought by the appellant. The real appeal point in this matter arises from [42] and [43] of her Honour’s judgment. The appellant submits that her Honour incorrectly ignored her observations of fault and delay by confining the requirements for a conditional stay to unfairness that could be identified in the “imminent trial”. These two paragraphs state:
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.
The appellant submitted that the unfairness should not be so confined and could extend to the history of the matter prior to trial and, particular to this case, to the unfair and detrimental financial loss that had been imposed upon the appellant by the respondent’s conduct.
The respondent submitted that her Honour’s comments needed to be examined in the light of her reference, in [37], to the judgment of Deane J in Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’). This Court disagrees with the respondent’s submission. The statements by her Honour, in [42] and [43], are straightforward and plainly restrict the relevant unfairness to unfairness that is likely to occur in the trial.
The Court is of the view that the unfairness ought not to be limited in the manner stated by her Honour.
It is now necessary to look at the authorities for guidance as to the type and extent of unfairness which might justify a stay.
The starting point must be the decision of the High Court in Jago. Deane J said at pages 56 to 57:
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law…..
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g. adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.
Brennan J, at pages 49 to 50 in Jago, emphasised the broader relevance of prosecution to the community:
Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.
While it is true that Brennan J was generally addressing considerations for a permanent stay, a number of the factors he highlights are equally applicable to a conditional stay.
The appellant relied upon R v Bui [2011] ACTSC 102; 5 ACTLR 230 (‘Bui’). It submitted that her Honour erred by “misapplying the principles set out” by Refshauge J.
In Bui, Refshauge J ordered a conditional stay pending payment of an accused’s costs after finding that there was “proved fault on the part of the prosecution which has caused the vacation of the trial date”. His Honour made the order after acknowledging that “a conditional stay order should be an exceptional remedy”. He found exceptional features for the following reasons, at [98]:
In this case, there are particular features which make this case exceptional. They include:
(a)that the accused, through his lawyers, flagged in detailed submissions at committal nearly two years ago, some of the gaps in evidence that have only recently been addressed;
(b)that there has been some unwarranted and unexplained delay in obtaining and providing the evidentiary material to address these gaps;
(c)that this material was supplied very late and too close to the trial to permit the trial to proceed fairly on the date allocated over a year previously, at which time no intimation was given that further material was to be provided;
(d)that delay was also experienced prior to the committal proceedings when case management hearings were adjourned because of unpreparedness of the prosecution; and
(e)that reasonable requests, by the accused, for information to which it was fairly entitled have been met with obstruction and unreasonable delay.
The appellant has submitted that the features relied upon by Refshauge J to establish exceptional circumstances, while not precisely the same in this case, are of a similar type and would justify the imposition of a conditional stay. Murrell CJ specifically agreed with the view expressed by Refshauge J in Bui, but went on to say at [37]:
I would add that “substantial unfairness” to the accused does not mean general unfairness, but rather, 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.
Hodgson JA, albeit dealing with a permanent rather than conditional stay, said in R v Littler [2001] NSWCCA 173; 120 A Crim R 512 that the remedy was “extraordinary” and only one of “last resort”.
Specifically in relation to a conditional stay pending the payment of costs, Murrell CJ referred to this passage from the judgment of Santow JA in R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 (‘Fisher’) at [7]:
The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness.
In Fisher the appeal was from a decision of a District Court Judge, Blackmore DCJ, who had restricted the reasons for the granting of the stay to unfairness in the trial itself. Simpson J said at [36]:
Appreciation of the power of the court to make orders of the kind made in R v Mosely persuades me that Blackmore DCJ was in error in unduly confining his consideration to whether the applicant had established that a further trial would be unfair; that is, his Honour considered that the passage quoted from Dietrich limited the circumstances in which the stay could be granted to those in which a trial would not be a fair one…
The authorities plainly establish that a conditional stay pending the payment of costs should only be made where there have been exceptional circumstances. In Fisher the phrase “gross unfairness” was used. While this is not a precise description, it does appropriately illustrate the extent of unfairness which must exist.
Further, in deciding whether appropriate circumstances apply a court should look not only at the trial itself but at all of the circumstances which involve the process of the court from the instigation of a prosecution through to the ultimate trial. These circumstances may involve a consideration of costs incurred by a defendant in his or her defence of the charges that are faced. As stated by Deane J in Jago on page 57:
The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.
Ultimately it is necessary to look at whether or not a court’s process has been used in a manner that is unfair to the accused person. Also in Jago the Chief Justice said at page 28:
The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness.
Having identified error in her Honour’s approach to the requisite test, it now falls upon this Court to decide whether or not, on the application of the broader test, the discretion to impose a conditional stay should be exercised by this Court. No suggestion was made by either party that if error was identified, the matter should be remitted to her Honour for further consideration.
There can be no doubt that the respondent’s conduct in the preparation of the criminal proceedings against the appellant was unsatisfactory and productive of significant monetary cost to the appellant. It may also have delayed the proceedings for some time, although the respondent submitted that the delay would not have been extensive.
This Court, while agreeing with her Honour’s description of the respondent’s conduct, is not of the view that there has been unfairness to the extent that might be described as gross or otherwise sufficient to create the exceptional circumstances necessary for the exercise of a discretion in the appellant’s favour.
Moreover, in considering the discretion, the Court is of the view that the capacity for the trial itself to be fair is a factor to be taken into account. In this case the appellant has unquestionably suffered a financial detriment. It is not such, however, that his trial will be unfair. In addition, the discretion requires the Court to take account of the community’s demand for serious offences, as this one is, to be expeditiously pursued.
If there has been delay, it only emphasises the need for the trial to now proceed without any further impediment.
In summary, the Court agrees with the appellant that her Honour should not have applied a test that was confined to fairness only in a forthcoming trial. The Court further agrees that matters during the whole of the court process may be taken into account in deciding if there have been exceptional circumstances giving rise to the entitlement for a conditional stay.
The Court does not, however, agree that the circumstances identified by the appellant are so exceptional, or so grossly unfair, that a court would exercise its discretion to make the orders sought by the appellant.
Thus, although by a different path, the Court has reached the same conclusion as the Chief Justice. Accordingly, the appeal is dismissed.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Justice Wigney. Associate: Date: |
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