In the matter of an application by Ts to stay proceedings on indictment [2002] ACTSC 102 (27 September 2002)

Last Updated: 1 October 2002

IN THE MATTER OF AN APPLICATION BY TS

TO STAY PROCEEDINGS ON INDICTMENT

[2002] ACTSC 102 (27 September 2002)

CATCHWORDS

CRIMINAL LAW - stay of proceedings sought after filing of indictment but before arraignment - various grounds relied on to show abuse of process - alleged prior dismissal by magistrate of charges identical to counts in indictment - alleged unlawful arrest of young person - alleged unlawful extension of time for interview with young person - alleged unlawful taking of identifying material from young person - no ground established - whether trial would be abuse of process - it would not.

CRIMINAL LAW - application for stay of proceedings before arraignment - application to be made in civil jurisdiction - usual practice as to costs.

Children and Young Persons Act 1999, s 84

Children and Young Persons (Consequential Amendments) Act 1999, s 3

Vortouni v McDonald (unreported, NSW Court of Appeal, 16 February 1995)

Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583

Joseph Anthony Basha (1989) 39 ACrimR 337

No. SCC 105 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 27 September 2002

IN THE SUPREME COURT OF THE )

) No. SCC 105 of 2001

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF an application by TS to stay proceedings on indictment

ORDER

Judge: Miles CJ

Date: 27 September 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The Notice of Motion dated 30 April 2002 be dismissed.

2. The applicant pay the costs of the Director of Public Prosecutions.

1. This is an application by a Notice of Motion dated 30 April 2002 seeking that certain charges against TS (the applicant) be dismissed, alternatively that those charges be stayed permanently.

2. There is no power in the Court to dismiss criminal charges on notice of motion.

3. I turn to the alternative form of relief, namely a stay of proceedings. The notice of motion does not identify the charges sought to be stayed. The history of proceedings against the applicant shows that a number of informations were laid against him before 13 June 2001 by Joseph Izidor Zuzek (the informant). There are three such informations. They are and allege, respectively:

Charge 1349/2001 - 4 November 2000 did assault Andrew Vocisano and thereby occasioned to him actual bodily harm;

Charge 1350/2001 - 4 November 2000 did assault Vincenzo Vocisano and thereby occasioned to him actual bodily harm;

Charge 1351/2001 - 4 November 2000 did have on his person an offensive weapon, to wit, metal teeball/baseball bat, in circumstances which indicated intent to use the said weapon to commit an offence involving actual or threatened violence.

4. Proceedings on these informations came before a Magistrate on 27 June 2001. They were heard at the same time, presumably by consent, against other persons who were alleged, as I understand it, to have participated jointly with the applicant in the offences alleged in the informations.

5. The case for the informant was part heard at about 1.50 pm when counsel for the applicant submitted that the charges should be dismissed on the ground that the applicant is a young person and statutory provisions which make necessary certain consent before the informations could be laid were not complied with.

6. The Magistrate ruled as follows:

"I'm not satisfied on the information that I have and the evidence that has been given in relation to these consents that they have not been properly considered and that therefore by that virtue are invalid. So therefore, as I say, based on the evidence before me, I regard the information as being valid information."

7. The proceedings continued and it appears that the Magistrate found that there was a prima facie case on each of the informations which justified committal for trial. The applicant was committed for trial accordingly, as I gather were the other two defendants.

8. I was told that an indictment against the applicant and the other two persons has been filed. I have found a document on file SCC 107 of 2001, which looks like an indictment signed on behalf of the Director of Public Prosecutions. There are three accused, the applicant and the other two persons previously referred to, and three counts. They are as follows:

FIRST COUNT	THAT on the 4th day of November 2000 at Canberra in the Australian Capital Territory [second and third accused] assaulted Andrew Vocisano and occasioned to him actual bodily harm.
SECOND COUNT	AND FURTHER THAT on the 4th day of November 2001 at Canberra aforesaid [the applicant], [second and third accused] assaulted Vincenzo Vocisano and occasioned to him actual bodily harm.
THIRD COUNT	AND FURTHER THAT on the 4th day of November 2001 at Canberra aforesaid [the applicant], [second and third accused] assaulted Andrew Vocisano and occasioned to him actual body harm.

9. The document in the file does not bear any endorsements from the registry to indicate that it has been accepted formally for the purpose of filing. However, it should already be obvious that this is only one minor defect in the many defects in the presentation of this matter.

10. As far as I am aware, the applicant has not been arraigned. The applicant and the Director of Public Prosecutions, who appeared by counsel to oppose the application, appeared to be prepared to treat the application as if the criminal jurisdiction of the Court to try the applicant had been enlivened by the filing of the indictment. As I have indicated, there does not appear to have been a proper filing. In any event, in my view, the criminal jurisdiction is not enlivened until arraignment.

11. I note in passing that a date for trial has not yet been allocated. The applicant might still elect for trial by judge alone.

12. The power to stay proceedings in the Court is exercised in the civil jurisdiction of the Court, at least until arraignment, whether the proceedings sought to be stayed are characterised as civil or criminal. The application is in the nature of an application for a prerogative writ and not, as the motion purports, in the criminal jurisdiction: see Vortouni v McDonald (unreported, NSW Court of Appeal, 16 February 1995). It is well known that the power will be exercised only in exceptional circumstances.

PRIOR DISMISSAL OF IDENTICAL CHARGES

13. The first ground to support the application is that there were "identical charges" against the applicant on informations which had been dismissed in the Magistrates Court on separate occasions. I am not sure whether the complaint is that the charges brought in the earlier proceedings were the same as those on the informations dated 13 June 2001, or the same as those on the indictment.

14. It is clear from what I have already said that the charges in the earlier proceedings are not identical with those on the indictment. The first two counts on the indictment allege an offence committed jointly by several persons and not individually by the applicant. There is no count on the indictment alleging the offence charged on information 1351/2001.

15. The dismissal of an information alleging an indictable offence is no barrier in law to the laying of a later information alleging the same offence, unless the previous information is determined summarily in accordance with such procedures as may be provided for.

16. There is nothing before me to support any suggestion that the previous dismissal of any information alleging offences identical to those alleged in informations 1349 and 1350 were determined summarily. What evidence there is, is to the contrary. The Magistrates Court on the previous occasions treated the proceedings on the earlier informations as if they were preliminary hearings for the purpose of deciding whether the applicant should be committed for trial. Those proceedings were ministerial and not judicial. There was no determination which gave rise to a judgment (res judicata) or any issue estoppel. There was no hearing on the merits and the proceedings on informations 1349 and 1350 did not place the applicant in jeopardy of a double conviction: Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583.

17. If the dismissed informations contained charges identical with the counts on the indictment (which they did not), the argument would still have no validity. Subject to the power of the Court to prevent an abuse of process, the Director of Public Prosecutions is entitled to file an ex officio indictment at any time regardless of whether committal proceedings have been held, regardless of the charges on which the person has been committed for trial, and regardless of whether any count on the indictment is the same as that on an information which has been dismissed at the end of committal proceedings. Further, there has not been a proper inquiry with regard to the issues which would be raised by a plea of not guilty. It is open to the court of trial to allow cross-examination of the witness on behalf of the accused in order to avoid an unfair trial. Such voir dire cross-examinations by way of inquiry are not uncommon, and the enthusiasm of lawyers in attaching the names of hapless litigants to principles of law and practice have led to such inquiries becoming associated with Joseph Anthony Basha (1989) 39 ACrimR 337.

UNLAWFUL ARREST

18. The next ground was that because the applicant had been unlawfully arrested, the bringing of any charge in consequence of that arrest is an abuse of process.

19. No authority was cited for this sweeping proposition and I reject it.

20. That is not to say that the circumstances surrounding the arrest and prosecution of a person may be such that the prosecution may be unfair or oppressive, so that for a court to allow it to proceed would be to tolerate an abuse of the process of the court. No such oppression or unfairness is demonstrated in the present case.

21. It may be also that evidence obtained during the course of or in consequence of an unlawful arrest will, according to the circumstances of the case, be excluded from admission into evidence on discretionary grounds. If a prosecution were bound to fail as a result, a trial might be seen to be oppressive, unfair or a waste of time and resources and a stay granted. However, save in the most exceptional circumstances, this is a matter to be decided at the trial and not in order to avoid a trial.

22. Further, there should be, for the purpose of staying proceedings on the ground relied upon, a clear case of unlawful arrest. This is certainly not clear on the information before me. The ground for alleging that the arrest was unlawful is that the allegations of offences by the applicant should have been pursued by way of summons and not by arrest and charge. The question whether to bring proceedings other than by way of summons involves the consideration of disputed factual material which, in my view, should not be the subject of a determination in advance of the trial itself.

23. Furthermore, no authority was cited for the principle that where criminal charges have been laid pursuant to arrest rather than through the procedure of issuing a summons without arrest, the hearing of those charges should be stayed. There is no justification for such a principle. The safeguarding of a defendant's liberty can be dealt with by the appropriate court when considering whether to refuse, grant or dispense with bail. I do not know whether any application to dispense with bail has ever been made on the applicant's behalf.

UNLAWFUL EXTENSION OF TIME FOR INTERVIEW

24. The next ground is that on 4 November 2000, a Magistrate purported to give approval under s 36 of the Children's Services Act 1986 (the former Act), such approval being unlawful by reason of the previous repeal of that Act on 10 November 1999 by the Childrens and Young Persons Act 1999 (the current Act). It appears that the applicant was born on 22 October 1983. What appears to have happened is that on 27 June 2001, when the matter was part heard in the Magistrates Court, the informant gave evidence that on the morning of 13 June 2001 as a matter of urgency he put before a sergeant of the Australian Federal Police a brief to obtain consent of an authorised officer to lay an information in childrens' matters. He informed the sergeant that the mother of the applicant had little control over her son and gave the sergeant "a brief run down of the incident". It appears that the informant had no first hand material to rely on for the purpose of what he told the sergeant about the mother's inability to control the applicant. The informant then received from the sergeant a written consent to the proceedings. The document was very similar to the one used before the current Act but it had not been checked to see if it complied with the provisions of the current Act.

25. During the committal proceedings, and before the prosecution case closed, counsel for the applicant submitted that the consent to the prosecution given by the sergeant was invalid because there was no evidence about how he came by his assessment of the mental capacity of the young person or the mother's lack of control over the applicant. The Magistrate ruled that on the evidence the consent had been properly considered and the consent on the information was valid.

26. It is not clear whether the correctness of that ruling is challenged in the present proceedings. However, it cannot be said that the decision was clearly wrong and I make no determination that it is or should be considered wrong.

UNLAWFUL APPROVAL OF OBTAINING IDENTIFYING MATERIAL

27. A Sergeant Barnicoat gave evidence before the Magistrate that on 4 November 2000 she made application by telephone to obtain "the consent" of a Magistrate to take DNA samples from the applicant. That application was granted and confirmed by letter written by the Magistrate to Sergeant Barnicoat on 6 November 2000 in the following terms:

"I refer to the telephone application made by you on 4 November 2000, pursuant to Section 36 of the Children's Services Act 1986, seeking approval to obtain identifying material in relation to the child: TS (d.o.b. 22 October 1983) being:

1. Prints of the hands

2. Prints of the fingers

3. Material from the body of the child

I confirm that approval was given by me for you to take the identifying material notwithstanding that written approval had not been given."

28. It is submitted that the consent purportedly given by the Magistrate was no consent at all since the Magistrate purported to give that consent pursuant to a statutory power which had been abolished on 10 November 1999 by repeal of the former Act. I interpolate here that it is unwise for a judicial officer to write to a police officer in this context. The appropriate way to record the granting of consent is to place a memorandum on a file in the Children's Court. The Registrar of the Court may properly send a copy of the record to the young person and to the police officer concerned.

29. To the extent that the submission is based on the proposition that the former Act was repealed by the current Act, it proceeds on a questionable, if not false, basis. There is nothing that I can glean from the current Act which repeals the former Act expressly in total or in part. I acknowledge the Children and Young Persons (Consequential Amendments) Act 1999 in s 3 repeals ten different statutes (the amending Acts) each of which was entitled Children's Services (Amendment) Act. Each of those amending Acts was passed in a year in the period from 1987 to 1999. I have not performed the task of trying to ascertain what was left of the former Act, if anything, after all those amending Acts had been passed. In particular, I have not sought to ascertain whether s 36 of the former Act remained in force at the time the current Act repealed the amending Acts passed in the period from 1987 to 1999. Counsel and the Magistrate appear to have accepted at the committal hearing that by November 2000 s 36 of the former Act was no longer law.

30. Section 84 of the current Act deals with the same subject matter as s 36 of the previous Act. It provides in particular for the obtaining of approval for the taking of identifying material from a young person. Its terms are not co-extensive with those of s 36 of the former Act. I should think that taking s 84 into account as a whole it impliedly repeals, if nothing else expressly repeals, s 36 of the former Act. I note, although my attention was not drawn to it, that s 84(1) of the current Act provides that identifying material, for a young person, includes prints of the hands and fingers and material from the body. Section 84(2) provides that identifying material can be taken only if a magistrate has given approval. Section 84(3) provides that identifying material from the body of a young person may only be taken in accordance with the section by a doctor.

31. It is not clear to me, one way or the other, whether the Magistrate took into account the various matters that s 84 of the current Act requires. It seems to me beside the point that, to argue, as it was, that even if those matters were taken into account, the Magistrate was under the mistaken impression that the approval was being correctly sought and granted under s 36 of the former Act. However, there is no way I can make a sensible conclusion on this matter on the material available. The onus is on the applicant. The applicant has not shown that there was any illegality, oppression, or unfairness in the taking of investigation material from him. In any event, I have not been informed of the importance of that material for evidentiary purposes. The proceedings are not to be stayed for anything to do with the taking of identifying material.

OUTCOME

32. The applicant has not discharged the onus of showing that it would be oppressive or unfair or otherwise an abuse of the process of the Court to allow a trial on the indictment dated 17 December 2001 to take place.

33. It has taken some time and effort to try to flush out the basis in law of the various grounds relied upon by the applicant. Ultimately, it turns out that there is nothing in them.

34. The notice of motion is dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 27 September 2002

Counsel for the applicant: Mr G Corr

Solicitor for the applicant: Hanstein Stacy & Nyman

Counsel for the Director of Public Prosecutions: Ms S Cronan

Solicitor for the Director of Public Prosecutions: ACT Director of Public Prosecutions

Date of hearing: 3 June 2002

Date of judgment: 27 September 2002