Drozd v Director of Public Prosecutions [1993] QCA 224

It was submitted that the judge below applied too narrow a test when he said that the applicant, if he was to succeed, would have to show some abuse of process by the Crown. Depending upon the way in which it is intended that this phrase should be understood, it may be unduly narrow to express the matter in this fashion: cf. Jago (supra) at 29. However, the judge, in coming to his conclusion, did consider a broad range of relevant circumstances. He then refused to make the order sought.

In the end the fate of the application and others like it must be judged according to the effect which will be caused to the trial of the accused person involved. It has to be borne in mind that applications of the present kind, if granted, will themselves dislocate the ordinary trial processes so that strong cases in justification ought to be shown for the Court to grant a stay.

It happens from time to time that the Crown will be aware of relevant additional witnesses after committal proceedings have concluded. It will not follow that the committal proceedings must, in some fashion, necessarily be reopened or recommenced. It is, of course, the practice in such cases for the Crown to provide the defence with the additional witnesses' statements promptly. In my view, notwithstanding the full supervisory jurisdiction which this Court possesses and its undoubted jurisdiction in a proper case to intervene, the circumstances would be unusual where the Court will act in a way which compels the reopening of committal proceedings rather than leave control of the matter to the trial judge. A judge presiding at trial has a full discretion to proceed in a way which will avoid injustice to the accused. I consider that if application is made to the Court prior to trial it will most frequently be the expressed preference of the Court not to intervene in a way which will override, in advance, the trial judge's discretions.

In the present case the Crown had offered to call first at the trial the two additional witnesses concerned so that the defence, if it wished, could cross-examine them on the voir dire. The applicant, in response to this offer, could point to no more substantial disadvantage to his cause than the speculative possibility that the two witnesses, if questioned at that stage, might provide answers which the defence would wish to check and follow up. Yet the defence had made no effort to obtain access to these two potential Crown witnesses, both presently in custody, for the purpose of questioning them and ascertaining what information might be available from them by that means. This indicates the essential flimsiness of the basis of the application for stay. However, apart from this consideration, the situation with which the Court is confronted is one where it should not interfere by disrupting the normal processes in advance of the trial but should leave any matters which remain outstanding and which may constitute some disadvantage for the defence to be dealt with by the trial judge when the trial commences.

This is an appeal from an order of a single judge of the Supreme Court dismissing an application for an order that an indictment presented against the appellant on 3 April 1992 be stayed until the holding of a further committal, to take the evidence of two witnesses who have given statements recently.

The charge made by the indictment is, in brief, that the appellant conspired with certain others to import narcotic goods into Australia, consisting of a quantity of cannabis resin. On 3 January 1992 the appellant was extradited from the United States of America and on 3 February 1992 was committed for trial. The committal proceedings were concise; a solicitor acting for the appellant consented to the tendering of witnesses' statements under s. 110A of The Justices Act 1886, waiving cross-examination.

There followed a substantial amount of correspondence between the appellant's solicitors and the Commonwealth Director of Public Prosecutions leading up to the first date fixed for the trial in the Supreme Court, namely 1 February 1993; the trial did not then take place because of the pendency of this appeal. It is unnecessary to set out the details of the correspondence we have mentioned and enough to say that in January 1993 the Director informed the appellant's solicitor that William Bruce Kirk and Dale Stuart Kirk, two of the appellant's alleged co-conspirators, were willing to give evidence against him and statements had been taken from them.

The appellant has copies of those statements and the respondent Director either has made or will make available to the appellant's solicitors a copy of the taped interviews with the Kirks. More generally, the appellant does not complain of any lack of co-operation on the part of the Director; he simply contends that there should be a further committal so that the Kirks, whose statements were not presented at the committal described above, may be cross-examined on oath.

Mr Jerrard QC, leading counsel for the appellant in this Court, does not contend that the committal already held and concluded may be re-opened, but says that the indictment should be stayed, with the result that if the Director wishes to pursue the matter further it will be necessary for fresh proceedings to be instituted and a second committal held. At that committal the appellant would not seek to cross-examine any persons other than the two Kirks.

Before the learned primary judge it was contended on behalf of the appellant that unless a stay were ordered there could not be a fair trial because of the inability of the defence to cross-examine the Kirks, test them on oath and then subsequently investigate the truth of their evidence. In this Court Mr Jerrard did not contend that the lack of opportunity to test the evidence of the Kirks at a committal would in itself justify a stay; he based the contention that a trial held without a further committal would be unfair principally on the foundation that, if there were no advance cross-examination of the Kirks, the appellant's solicitor would be unable properly to investigate the case against the appellant, before the trial.

There was no contention on behalf of the respondent that the Court lacks jurisdiction to stay the proceedings; the question is whether the present is an appropriate case in which to do so. Something more must be said concerning the facts in the matter; but it is convenient first to consider the nature of the Court's jurisdiction to stay a criminal proceeding on such a ground as this. It is clear that a stay will not be granted simply because some difficulty in according perfect justice to the accused is apprehended.

In Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23, there was a long delay in bringing an accused to trial, but a stay sought on that ground was refused. Mason C.J. saw the power to stay in cases where a fair trial was said to be unavailable as being one to be used "only in the most exceptional circumstances" (31), and his Honour referred with approval (at 34) to the statement of Wilson J. in Barton [1980] HCA 48; (1980) 147 C.L.R. 75 at 111. We shall quote more of it than did Mason C.J.; Wilson J. said :

"...in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."

Brennan J. pointed out that interests other than those of the parties are involved in such an application. His Honour remarked :

"If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.

...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." (49, 50)

His Honour referred to these principles again in Glennon [1992] HCA 16; (1992) 173 C.L.R. 592. In that case, after quoting from the reasons given by Crockett J. for refusing a stay, his Honour went on :

"In my respectful opinion, his Honour's conclusion was clearly right either on the ground that the present case is not an `extreme case' or on the ground - which, in my respectful opinion, is a ground better founded on principle and more realistic in practice - that the trial of the applicant, provided it was as fair as the Court could make it, would produce no miscarriage of justice". (616)

Mason C.J. and Toohey J. referred in Glennon to the remarks of Wilson J. mentioned above as authority for the view that "a permanent stay will only be ordered in an extreme case" and there must be a fundamental defect "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences" (605).

On the face of it, the appellant's claim to a stay here seems difficult to sustain; the prospect that there might, if no stay is granted, be some part of the Kirks' story which cannot be easily investigated seems far from the type of consideration which could justify the orders sought. When the facts are examined more closely, the strength of the appellant's case does not increase.

Mr Jerrard contended that we should infer that the absence of the opportunity to cross-examine the two additional witnesses would substantially disadvantage the appellant at his trial, because if the cross-examination elicited further details of the witness' version, inquiries could be made in various places in Australia and overseas to check its accuracy. Mr Hanson QC, who led for the respondent, pointed out that some of the details which on Mr Jerrard's argument would need to be checked were not matters with respect to which the appellant could call evidence, but of a collateral kind. While this is so, a more serious obstacle is that the inference Mr Jerrard asked the Court to draw is a purely factual one and it is a matter capable of being proved by evidence. There is simply no evidence that any substantial difficulty in preparing the case is likely to be encountered in the absence of a fresh committal. The appellant's solicitor has made an affidavit which sets out the history of the matter but says nothing to support the factual conclusion on the basis of which we are asked to order a stay. To exemplify the point in a general way, Dale Kirk's statement speaks of a meeting in Sydney at the Hyatt Hotel and names six persons, including the appellant, who were present. There was a conversation at the meeting which appears on Dake Kirk's version to be of an incriminating character, so far as the appellant is concerned. There might be a challenge to the evidence that such a meeting took place, or to the evidence that an incriminating conversation occurred there. In either event, it is not evidently impossible that the solicitor could make inquiries about the meeting from one or more of the named persons said to have been present at it. Dale Kirk's statement says: "I became upset because there were business discussions in front of people who were not involved...".

At least those "not involved" might be expected to be willing to give further information to one enquiring about the alleged meeting. If there is at present insufficient information to enable the solicitor to make inquiries, then as Mr Hanson pointed out there are possible means of remedying the deficiency other than by holding a further committal. For example, particulars might be sought of the overt acts relied on by the respondent. During the hearing before us the possibility of the applicant's solicitor interviewing one or both of the Kirks was discussed. It may be, as Mr Jerrard argued, that an attempt to do so would prove fruitless; but we find it of interest that no effort has been made to obtain, by inquiry of the respondent or otherwise, any of the additional detail whose importance is said to be such as to necessitate a stay of the proceedings with a view to their being recommenced.

Mr Jerrard emphasised the importance of a proper committal and referred us to authority relating to that subject. In Cordell (1984) 10 A. Crim. R. 475 there was no cross-examination of the witnesses called at the committal; the solicitor whom the accused thought was appearing for them regarded his role as being only that of a friend of the Court. Enderby J. therefore declared the committal proceedings to be void and stayed the proceedings upon the indictment. It is not absolutely clear to us on what legal foundation that was done, but we find it unnecessary to discuss the case, because the situation the Court confronted has no resemblance to the present. In Ngalkin (1984) 12 A. Crim. R. 29, O'Leary J. stayed all proceedings on an indictment on a ground which is closer to that urged in the present case. There, the Crown called only one eye-witness to the assault which was alleged, and advised after the committal that it was intended to call a number of other eye-witnesses at the trial. The judge stayed all further proceedings on the indictment, apparently on the basis that the accused had suffered "substantial detriment" by the prosecution's failure to call them at the committal. It is unclear whether the judge intended the stay to be permanent or temporary, but his Honour expressed himself in terms which suggested that it would be removed if there were a further committal hearing to enable cross-examination of the additional witnesses.

There was discussion before us on the question whether it is possible, a committal having concluded and an indictment been presented, to stay the indictment to allow the committal proceeding to be re-opened, which appears to have been the process contemplated in the Northern Territory case. Mr Jerrard, as we understood him, contended that if the appeal succeeded the order should be one for a permanent stay; he did not say that we should, or indeed could, make an order for a stay until a further committal proceeding should be held. Mr Hanson suggested that it is not clear whether as a matter of law the extradited appellant could properly be tried on a further charge, if he succeeded in defeating the proceedings presently pending against him by obtaining a permanent stay. We do not determine these questions, but are obliged to say that we are presently unconvinced that an assumption apparently made in Ngalkin is correct, at least so far as Queensland is concerned. The assumption is that, an accused having been committed for trial, the Court to which the indictment is presented may properly make an order for a temporary or contingent stay designed to secure the

re-opening of the committal proceeding. In The Queen v. Harry; ex parte Eastway (1985) 39 S.A.S.R. 203 at 212

King C.J. discussed the problem which arises if it is thought that a committal proceeding has been so conducted as to create a risk of an unfair trial, and did so in terms which suggest that a permanent stay is the proper remedy; His Honour said :

"In extreme cases...there is undoubted power to stay the proceedings, thereby compelling the prosecution to lay a fresh information and to proceed to a fresh preliminary hearing...It is hardly necessary to stress, however, the gravity of the extreme step of denying a trial on the Attorney-General's information and the seriousness of the risk of injustice which would be required to justify it".

Lastly, we note with interest a decision of the New South Wales Court of Appeal in Barron v. Attorney-General (1987) 10 N.S.W.L.R. 215 in which Hunt A.J.A., with whom Samuels J.A. was in substantial agreement, questioned :

"...the proposition that a trial held without prior committal proceedings must necessarily be considered unfair unless justified on strong and powerful grounds". (233)

His Honour was of the opinion that the loss of the opportunity to cross-examine the Crown witnesses at committal is not necessarily of itself sufficient as a ground for a stay of proceedings.

Here, as we have explained, Mr Jerrard did not suggest that the loss of that opportunity could without more entitle the appellant to a stay, but relied substantially on the contention, unsupported by evidence, that there would be substantial difficulties in preparing the case unless the Kirks were cross-examined at committal. In our opinion there is no good reason to think that such additional difficulty in preparation as might ensue from the absence of the advantage of advance cross-examination is likely to be of critical significance. Further, it is to our minds plain that this is far from the sort of extreme case in which a stay could properly be granted.