QUESTION OF LAW RESERVED ON ACQUITTAL CASE STATED: R v Michael Charles Baenisch No. SCCRM 95/360 Judgment No. 5679 Number of pages - 24 Criminal law - jurisdiction, practice and procedure - [1996] SASC 5679 - SASC 1996 case summary

QUESTION OF LAW RESERVED ON ACQUITTAL CASE STATED: R v Michael Charles Baenisch No. SCCRM 95/360 Judgment No. 5679 Number of pages - 24 Criminal law - jurisdiction, practice and procedure - [1996] SASC 5679 - SASC 1996 case summary — Zoe

[86]

The Court of Criminal Appeal in Western Australia has recently examined these issues in R v Lorkin, an appeal by the Crown against a directed verdict of an acquittal. The accused had been charged with stealing property on 26 March 1993 including goods belonging to one Bond. The indictment was dated 1 December 1993. The trial was due to commence on 1 March 1995. On 28 March 1995 the Crown applied for an adjournment because of the unavailability of two witnesses including one named Bond. The Court was told that Bond was in the United States of America and it was not known when he would return. He was said to be a principal witness and the Crown could not proceed without him. The other witness could not be found. Attempts to serve subpoenas had been made only a very short time, a week or so, before the trial was due to commence. The application for an adjournment was opposed on the ground of delay to proceedings which had already been unduly delayed. The application for the adjournment was refused. When the trial began on 1 March 1995, the prosecution sought to enter a nolle prosequi. Counsel for the accused sought an undertaking from the prosecutor that, in the absence of any new evidence, the Crown would not file a fresh indictment. In the absence of such an undertaking, counsel for the accused submitted that the Court should not receive the nolle prosequi and direct an acquittal. Counsel for the Crown refused to give the undertaking. Applying the reasoning in R v Jell, the trial judge refused to accept the nolle prosequi. After further submissions, a jury was empanelled. Counsel for the Crown then informed the Court that the Crown would not be calling any evidence and the trial judge then directed an acquittal which the jury returned. The Crown appealed on the ground that the trial judge did not have jurisdiction to decline to accept a nolle prosequi. In the alternative, if he did have jurisdiction, it was submitted that he ought not to have refused the entry of the nolle prosequi. Further, it was contended that the trial judge had erred in refusing to grant the adjournment.

[94]

The Position in South Australia 44. I conclude this overview of the decisions in Australian courts with a reference to two decisions in this Court. In R v Economou [1989] SASC 1670; (1989) 51 SASR 421 Matheson J had to consider a number of questions arising out of the entry of a nolle prosequi. It was not necessary for the purposes of that decision to examine whether the Court had the jurisdiction to refuse to permit the nolle prosequi to be entered. The present issues were, however, mentioned in Rona v District Court of South Australia [1995] SASC 4922; (1994) 63 SASR 223. In that case, the Court held that the power to stay proceedings to prevent abuse of process was not a means to punish non-compliance with caseflow management procedures and directions. An argument was advanced on behalf of the Director of Public Prosecutions that the difficulties in that case might have been avoided by the entry of a nolle prosequi which would leave the Director free to proceed subsequently on a fresh information. It was not necessary to decide the issue but King CJ (with whom Mohr and Olsson JJ agreed) expressed the view that he was inclined to follow the decision in R v Jell. After noting the traditional view that a nolle prosequi may be entered at any time before verdict, King CJ said at 228: "It may be that the development in Australia of a deeper understanding of the inherent power of the criminal courts to prevent abuse of their processes leads to the conclusion that the courts have power to act in a way which achieves what is now achieved by practice in England, by refusing to act on a nolle prosequi where to do so would permit an abuse of process. In R v Saunders (1983) 2 Qd R 270 the court refused to act on a nolle prosequi entered during trial and directed an acquittal. In R v Jell; Ex parte Attorney-General (1991) 1 Qd R 48, the Full Supreme Court held that a trial judge has a discretion to refuse to accept a nolle prosequi if to do so would be an abuse of process.

[120]

Under our present procedures an accused person comes to Court having been made aware of the change and its particularity, the evidence to be led in support of the charge and the witnesses who are to give evidence. The date and place of trial is fixed in advance. It is the expectation of the parties, the Court and the community that the trial will proceed to a conclusion on the merits and the appropriate verdict or verdicts given. It must be acknowledged that the Court must dispense justice with impartiality and fairness "both to the parties and to the community which serves" and it possesses the necessary power to prevent its processes being employed in a manner which gives rises to unfairness: Jago v The District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at p28 and Walton v Gardiner (1993) 177 CLR 389 per Mason CJ, Deane and Dawson JJ at p493. In those cases as in R v Sang [1979] UKHL 3; (1980) AC 402 at p455 and Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, the observations of Richardson J in Maevao v Department of Labour (1980) 1 NZLR 464 at p481 were approved, namely that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike and that "unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of the concern that courts' processes may lend themselves to oppression and injustice. The use of a nolle prosequi to avoid the entry of the appropriate verdict or verdicts during the course of a trial would clearly constitute an injustice and, consequently, an abuse of the process of the Court. To avoid a trial by this mechanism in circumstances where the accused has come to court prepared for the trial on the appointed day, may also amount to an abuse of process: Rona v District Court of South Australia & Anor [1995] SASC 4922; (1994) 63 SASR 223. As King CJ said, at pp228-229: "If the reasoning and decision in Jell (supra) are sound, and they certainly accord with my sense of justice, there is no reason why the same should not apply where the trial has not begun but the date for trial has been fixed in accordance with the regular procedures of the court. When the accused appears for trial on that date, the interests of justice may demand that, if the prosecution does not wish to proceed and there is no valid reason why the accused should remain exposed to prosecution in respect of the alleged conduct, there be a verdict of not guilty by direction. There may of course be valid reasons why a nolle prosequi should be accepted even during trial. A vital witness may be incapacitated or there may be suspected witness tampering causing a vital witness to change his story. Other examples can readily be imagined. Where, however, there are no such reasons and the power to enter a nolle prosequi is used in a manner which would operate oppressively to the accused or would amount to defiance of procedural directions given by the court, there must be a serious question as to whether the court may not protect its process from abuse by declining to accept the nolle prosequi."

QUESTION OF LAW RESERVED ON ACQUITTAL CASE STATED: R v Michael Charles Baenisch No. SCCRM 95/360 Judgment No. 5679 Number of pages - 24 Criminal law - jurisdiction, practice and procedure

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QUESTION OF LAW RESERVED ON ACQUITTAL CASE STATED: R v Michael Charles Baenisch No. SCCRM 95/360 Judgment No. 5679 Number of pages - 24 Criminal law - jurisdiction, practice and procedure (1996) 66 SASR 450 [1996] SASC 5679 (28 June 1996)

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Legislation Cited (8)

Cases Cited (33)