R v Boungaru [1993] NTSC 34; 113 FLR 211 (13 May 1993)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MARTIN CJ CWDS Indictments HRNG DARWIN #DATE 13:5:1993 Appearances not available ORDER Stay of proceedings ordered. JUDGE1 MARTIN CJ Upon the accused appearing before the Court on 19 April, an indictment was presented charging that on 24 May 1992 at Maningrida he murdered Robert Bruce. His counsel applied, before a plea was entered, to quash the indictment pursuant to s339 of the Criminal Code. It provides that the Court may quash, amend or stay proceedings on an indictment if it is shown that it is calculated to prejudice or embarrass the accused in his defence to the charge. 2. It was claimed on behalf of the accused that prior to and during the course of the committal proceeding upon the charge of murder, his legal representative understood that the prosecutor would only be seeking to have him committed for trial for manslaughter. The committing magistrate did in fact only commit for manslaughter, but only after considering the material before him and in the light of the prosecutor's indication to him, after all the evidence was in, that he was not submitting that the accused ought to be committed for trial on a charge of murder, and counsel for the accused responding: "In those circumstances I have no submissions". 3. The accused sought to establish in this application that it would be unfair to permit the Crown to proceed upon the indictment for murder when he had understood prior to the commencement of the committal proceedings that although he had been originally charged with that offence, the prosecutor would not be pressing that he be committed for trial for that offence, but only manslaughter. It is not possible to make a firm finding as to how that understanding arose. Both the prosecutor before the committing magistrate and counsel who appeared for the accused gave viva voce evidence before this Court, but neither has a clear recollection of what passed between them, although it is clear the question was discussed. There was nothing in writing emanating from either of them which tends to confirm or deny any such understanding. Such writing as there is is equivocal. It comprises two memoranda from the prosecutor to counsel for the accused. The first was dated 24 August and contained copies of all statements of prospective witnesses provided to the prosecutor, and sought advice as to whether any of the witnesses would not be required to attend. The following day there was a further memorandum referring to a telephone conversation between the prosecutor and counsel for the accused of that morning confirming that twelve of the prospective witnesses would not be required by the accused to attend, but that their statements could be tendered. That left six witnesses to be called. 4. Counsel for the accused before this Court relied heavily upon the arrangements made as to the attendance of witnesses to give viva voce evidence as being highly indicative of an understanding on the part of counsel, who appeared at committal, that his client was not facing a risk of being put up for trial for murder. The argument was reinforced by reference to the way the committal was conducted, that is, not in the manner it would normally be expected if a person was facing the prospect of being committed for murder. 5. When the proceedings opened before the committing magistrate on 27 August counsel for the accused was not present, but no doubt with a view to assisting his Worship the prosecutor indicated that it was anticipated that the proceedings would conclude on that day, perhaps by lunch time. Counsel for the accused arrived a little later, and upon being informed of that by his Worship said: "I had some further discussions ... and we've shortened it even further ... ". The charge of murder was then read to the accused. 6. Nothing is recorded to indicate that the anticipated shortness of the proceedings was based upon a prior indication or undertaking from the Crown that a charge of murder was not being pursued. After his Worship had retired briefly to consider the evidence at the close of the Crown case and had returned to the bench, the prosecutor said: "... it may possibly assist if I indicate that I will not now be submitting that the defendant ought to be committed for trial on a charge of murder .... simply manslaughter". Counsel for the accused responded: "In those circumstances I have no submissions .... I have made my submissions". There is no clear indication as to when the prosecutor decided not to press for committal for murder nor as to when he informed counsel for the accused of that fact. Just what submissions were being referred to by counsel for the accused is uncertain. His Worship then proceeded to make a finding that there was not sufficient evidence to constitute a prima facie case of murder, but that there was in relation to manslaughter. 7. In support of his submissions before this Court, counsel for the prosecutor relied upon the prosecutor's evidence that it was his practice to confirm agreements such as are here in question in writing, and that had such an agreement been reached prior to the commencement of the committal, the prosecutor would normally have informed the magistrate at the beginning. Neither of those things were done. The evidence is all one way when it comes to showing that the view of counsel for the defence, prior to the committal, was that manslaughter was the appropriate charge and that he had pressed that upon the prosecutor, but there is no evidence that the prosecutor agreed to substitute that charge prior to the commencement of the committal. Both sides work from what is known to a reconstruction of what the prosecutor or counsel for the accused must have believed at relevant times based upon his normal practice or behaviour. 8. The nature and purpose of committal proceedings has been described as being to receive, examine and permit the testing of evidence introduced by the prosecutor, in order to determine whether there is sufficient evidence to warrant the person charged being put on trial, Moss v Brown , referred to by Gibbs ACJ and Mason J in Barton v The Queen ; at p98. At p99 their Honours confirm that committal proceedings constitute an important element in the protection which the criminal process gives to an accused person. Barton's case arose from the presentation of ex officio indictments without antecedent committal proceedings. That case is distinguishable from this upon two grounds. First, the indictment is not presented ex officio and second, there were committal proceedings. However, the principles are much the same. Here there were no real proceedings upon the charge of murder at the committal stage, counsel for the accused resting upon an assurance he believed he had from the prosecutor that that charge would not be pressed. Upon that basis the committal proceedings, as between the Crown and the accused, proceeded on the part of the accused as if the charge was manslaughter. At the conclusion of the committal the prosecutor did not seek to have the accused committed for trial on the charge of murder, and the magistrate did not so proceed. 9. After the committal another counsel for the Crown determined that an indictment be presented charging murder. It is not suggested that there is evidence beyond that put forward at the committal available to justify that change of heart. It simply seems that the prosecutor having charge of the preparation of the indictment takes a different view to that put forward by the prosecutor at the conclusion of the committal proceedings and accepted by the magistrate. 10. Assuming that counsel for the accused understood, at the commencement of the committal proceedings that his client was not at risk of being committed for murder, then there has not been any such proceedings in relation to the charge of murder because nothing was done to test the evidence with that charge in mind. The detriment to the accused is plain. The loss of the opportunity to cross-examine Crown witnesses before trial will be irremediable (per Stephen J in Barton's case at p105). The seriousness of the loss is aggravated by the charge being that of murder. If a trial were allowed to proceed on that basis it 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" (per Wilson J in Barton at p111). 11. The evidence suggests that counsel for the accused considered that there was no need for him to be concerned that his client might be committed for trial for murder. His approach to his task upon the committal proceedings tends to show that. The reduction in the number of the witnesses proposed to be called by the prosecutor at the committal hearing also points in that direction. However, the charge put at the commencement of the hearing was that of murder, and it was not until after all of the evidence was in and his Worship had considered it that the prosecutor indicated to the magistrate that he was not seeking a committal for that offence. Whether the view taken by counsel for the accused was based upon something said by the prosecutor or whether upon a confident expectation as to the outcome of the committal based upon other factors is not established. In all of the circumstances of the case it is not appropriate to make a finding that counsel for the accused was negligent in looking out for his client, nor is it appropriate to make any finding of bad faith on the part of the prosecutor. At best the evidence points to a misunderstanding on the part of counsel for the accused, a misunderstanding which means that there has been no real committal proceeding in respect of the charge of murder. Evidence of file notes or confirmatory memorandum could well have helped to show what had passed. 12. Before considering the appropriate remedy it is necessary to look at the further factor, that is, the indictment is for murder although the accused was committed for manslaughter. When a person charged with a crime has been committed for trial and if, in the opinion of the person responsible for presentation of the indictment, the evidence produced at the preliminary proceedings is such that he ought to be charged with some further or other offence, he may present an indictment charging such further or other offence (Criminal Code s299). As Muirhead J said in Siugzdinis and Mauri v The Queen , the decision of the magistrate upon the committal proceeding is not always the end of the matter. His Honour proceeds to make valuable comments regarding the importance of following the procedural system incorporated into the and the Code. As to s299 itself, his Honour said (at p6): "S299 of the Criminal Code provides for charges to be altered, but the wording of the section indicates that this is basically to ensure the charge is supported by the evidence at the preliminary proceedings. The section must not be regarded as a warrant by which the Crown substitutes its views for those of the magistrate". 13. At p11 he described the power as "corrective". With respect, it would be a mistake to seek to cut down the powers under s299 by applying what his Honour said in the context of that case to all cases. The provision expressly authorises the person responsible to add or substitute charges for offences to those upon which an accused has been committed. Had the misunderstanding not arisen in this case and his Worship simply committed the accused for trial for manslaughter, then provided the responsible person was of the opinion that the evidence was such that the accused ought to be charged with murder, there is no reason why he should not present an indictment accordingly. The practice is not new (R v Martin However, that does not mean that the Court is deprived of any of its statutory or inherent powers to quash or stay an indictment altered in accordance with s299, if to proceed upon it would produce unfairness to the accused. 14. Unfairness has occurred to the accused arising from his counsel's mistake. Balancing the interests of the accused against that of the Crown representing the community, it would be unjust for the indictment to proceed to trial at this stage in its present form. Further proceedings will be stayed accordingly.