R v Sepulveda

The applications 12 In late September or early October 2002 the appellant filed a notice of motion, returnable on 4 October 2002, in which he claimed an order - "1. That leave to present an amended or substituted indictment in the trial of Heriberto Sepulveda be refused pursuant to s 63A of the Criminal Procedure Act 1986". 13 Section 63A of the Criminal Procedure Act 1986 ("the Act") provides - "(1) An indictment may not be amended after it is presented, except by the prosecuting authority: (a) with the leave of the court, or

(2) This section does not affect the powers of the court under section 64.

(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment." 14 If s 63A applied and there was no consent of the appellant, it was for the Crown to obtain leave and not for the appellant to move for refusal of leave. At the hearing of the application the issue was treated as one of leave to be obtained by the Crown. 15 The application was heard by Shadbolt DCJ on 8 October 2002. The appellant's position, as stated in the affidavit in support of the application and taken up in submissions, was that he would be unfairly prejudiced because the counts concerning Bassam Daaboul had not been the subject of committal proceedings and he had been denied the opportunity to seek an order under s 48E of the Justices Act whereby Bassam Daaboul attended and was cross-examined. The appellant's counsel informed the judge that, after the notice of motion was filed, the Crown had offered to consent to a Basha inquiry in respect of Bassam Daaboul prior to the trial starting. The Crown's position in submissions was that the application was very late (which rather missed the point), but more particularly that "when there are ex officio charges laid there is no committal in any event, and it's just whether your Honour is of the view that there should be some Basha type enquiry". 16 In the course of submissions the judge was provided with the statements of Jamil and Issam Daaboul, to make the points that their statements included reference to a relationship between the appellant and Bassam Daaboul and that Bassam Daaboul was said to be present at some material events, and perhaps (it is unclear) with the statement of Bassam Daaboul and the particulars which the Crown had provided. The statements of Jamil, Issam and Bassam Daaboul were in the appeal papers, but not the particulars. The appellant's counsel said that his application was not to "sever [Bassam Daaboul] from the indictment … but to have committal proceedings in respect of him", although he said that "one never knows after the committal proceedings involving Bassam, there may be an application to sever the indictment". 17 After hearing the submissions and retiring for a short time, the judge said - "I haven't had an opportunity to - or I will not have an opportunity to this moment to give a judgment in the matter, but what I intend to do is to proceed by way of a Basha enquiry. And so in short the orders that I make is the application for a return of the matter to the - I give leave to present the amended indictment, and the further orders that I propose, is that a Basha enquiry be heard before me in respect of Bassam Daboul [sic]. Now the next practical - and I will give reasons for that at an opportune time. The next problem is the practicalities. When would you wish to proceed with that Mr Stratton?" 18 The appellant's counsel then orally made application that his Honour "stay the counts in the indictment concerning Bassam Daaboul", saying that he made the same submissions as he had on the issue of leave to amend the indictment. The judge said that in the light of what he had said "that application would also fail". The appellant's counsel agreed, and the judge said, "So I will refuse that for the reasons which I'll subsequently give in respect of the first matter". 19 There was then reference to an appeal, and after some discussion the matter was adjourned pending the filing of an appeal and its outcome.

The judge's reasons 20 Shadbolt DCJ published his reasons on 11 October 2002. 21 In stating what had occurred the judge described the second indictment as an ex officio indictment, saying - "What thereafter happened was that an ex officio indictment in respect of the counts concerning Bassam Daaboul was preferred against the accused so that counts 1 and 2 concern Issam Daaboul, 3-8 inclusive Jamil Daaboul and counts 9-21 involve Bassam Daaboul." 22 The judge posed the question "whether this court has power to refuse leave when the indictment is in the nature of one ex officio". After referring to the unexaminable power to file ex officio indictments discussed in Barton v The Queen (1980) 147 CLR 75 and the function of the Director of Public Prosecutions in that respect in place of the Attorney General, see s 7 of the Director of Public Prosecutions Act 1986, his Honour said - "It would appear therefore, that s 63A of the District Court Act must be read down so as not to include indictments in the form of ex officio ones for, were it to be otherwise, no ex officio indictment could be brought in the circumstances of the present case without the leave of the court. If the legislature sought to curtail the powers of the Director of Public Prosecutions in this regard and in this manner it would have done so by amendment to that Act not by an amendment to the Criminal Procedure Act. Absent any clear indication that the intendment of s 63A is that it should apply to all indictments including those containing a count or counts brought ex officio, then I consider that s 63A must be limited to indictments other than those brought under s7 of the Director of Public Prosecutions Act 1986." 23 Underlying this was the earlier description of the second indictment as an ex officio indictment, although the judge also described it as in the nature of and in the form of an ex officio indictment and recognised that some counts only were "brought ex officio". It is plain enough that the judge held that s 63A did not apply to the presentation of the second indictment, and accordingly that leave to amend the first indictment was not necessary. 24 The judge then said - "If I be wrong in that regard then I would certainly exercise my discretion in favour of the Crown. Whilst no power resides in this court to refuse leave to amend or to remit such a matter to the Magistrate for a committal proceedings, the District Court nevertheless retains power to ensure fairness in its own proceedings Barton v The Attorney General for the State of New South Wales [sic], Barron v The Attorney General of New South Wales 1987 10 NSWR @ 215. This can be obtained whether by permanent stays, stays upon terms or inquiries in the sense outlined in The Queen v Basha 1989 39 A Crim Reports @ 337. The advantage of a committal proceeding to an accused lies in four matters which were set out in Barton v The Attorney General for the State of New South Wales [sic] at page 99 in the judgment of Gibbs and Mason JJ where their Honours said - 'But it is one thing to supplement the evidence given before a magistrate by furnishing a copy of a proof; it is another thing to deprive the accused of the benefit of any committal proceedings at all. In such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath; (2) the opportunity of cross examining them; (3) the opportunity of calling evidence in rebuttal; (4) the possibility that the Magistrate will hold that there is no prima facie case or that the evidence is insufficient to put him on trial or that there is no strong or probable presumption of guilt.' This analysis has been applied in Barron v Attorney General @ page 221. In the present case 1&2 of those matters could be overcome by a Basha enquiry, number 3 is in reality only a notional advantage and in regard to 4, a ruling on the non existence of a prima facie case would have to abide the Crown calling its evidence before the jury. The jurisdiction to order an acquittal because of insufficiency of evidence or lack of probable presumption of guilt is now no longer an available discretion in this court R v R 1989 44 ACrim Reports. In the instant case, no particular injustice is indicated over and above the absence of the advantages available in a committal as set out in Barton v The Queen. It would therefore seem that any latent injustice could be overcome by such an inquiry prior to trial which overall appears to this court to be the only avenue to redress any imbalance having regard to the absence of any jurisdiction to order a committal proceeding or to refuse leave to amend the indictment to include an ex officio indictment containing a number of counts . It was that course which I intended to pursue when Mr Stratton QC asked for a permanent stay of the counts on the indictment relating to Bassam Daaboul which was refused on the grounds outlined above." (underlining added)

Comment 25 With respect, a degree of confusion is apparent. 26 On 8 October 2002 the judge had made an order giving "leave to present the amended indictment". He appears to have meant leave to amend the first indictment, on the basis that s 63A applied, not to have meant that s 63A did not apply - in the latter event, there would have been no question of leave at all. Read now in the transcript, the Crown's submission earlier set out may have been that s 63A did not apply "where there are ex officio charges laid", but it did not stand out and the submission does not seem to have been understood in that way at the time. 27 When he published his reasons, however, the judge held that s 63A did not apply to the presentation of the second indictment. The result should not have been a grant of leave to amend the first indictment, and as a matter of form the appellant's notice of motion should have been dismissed. The reasons did not meet, but rather denied the basis of, the order earlier made. 28 The judge then went on to say, "If I be wrong in that regard then I would certainly exercise my discretion in favour of the Crown", and apparently to give reasons why he would do so. From the words "If I be wrong in that regard" he meant that, if s 63A did apply to presentation of the second indictment, he would grant leave to amend the first indictment, and was not referring to a discretion to stay proceedings on the new counts in the second indictment. That is supported, albeit faintly, by the reference to exercising his discretion "in favour of the Crown", apt to where it was for the Crown to obtain leave under s 63A and less apt to where the appellant sought a stay. 29 But the reasons then given focussed on declining the appellant's application for a stay. In the first of the underlined parts of the reasons earlier set out, the immediate starting-point was that "no power resides in this court to refuse leave to amend", and the judge turned to the inherent power to ensure fairness as distinct from the power to grant or refuse leave under s 63A. In the second of the underlined parts of the reasons he referred again to "the absence of any jurisdiction … to refuse leave to amend the indictment to include an ex officio indictment containing a number of counts". In short, the judge considered that a Basha enquiry would meet any injustice to the appellant from proceeding on the new counts in the second indictment, being an indictment as to which the court had no role in granting or refusing leave because s 63A did not apply. This was not amendment territory, but stay territory. 30 Thus it may be questioned whether the judge did say that, if leave were necessary, he would have granted it, and more particularly whether he appropriately gave reasons for doing so. Hindsight and study of the transcript are appellate luxuries, and this is not intended critically. But it suggests complications in the appeal. 31 The complications were not recognised in the submissions of the appellant or the Crown, or appreciated by myself until preparing these reasons. The appeal was conducted on the basis that there was a leave order to be appealed against, as there was because the judge did not revoke the order made on 8 October 2002 upon concluding that s 63A did not apply to the presentation of the second indictment; on the basis that the judge had exercised a discretion under s 63A in favour of the Crown; and on the basis that the reasons explained the exercise of the discretion under s 63A as well as the exercise of the discretion whether or not to stay proceedings. 32 It is wrong to subject to over-meticulous analysis the course of proceedings before, or the reasons of, a trial judge conducting a busy list. So far as possible the real issues raised at first instance and the essential reasoning of the judge should be identified and addressed, with procedural stumbles and infelicities of expression put aside. That should be done in this appeal, and I am prepared to proceed on the bases on which the appeal was conducted.

The appeal 33 The first question in the appeal was whether, in the events that had happened, s 63A applied so that leave to amend the first indictment to the second indictment was necessary. The Crown did not submit that, from the filing of the second indictment on 17 May 2002 apparently without complaint from the appellant, there was implied consent to any amendment within s 63A thereby occasioned. No doubt in many cases there is unexpressed consent to amendment, although proper practice would ensure that consent is expressed or leave is given. We do not know enough of what occurred on 17 May 2002 to come to a view, even if we were asked to do so. 34 The second question was whether, if s 63A applied, error has been shown in the judge's exercise of his discretion to give leave to amend the first indictment to include the counts concerning Bassam Daaboul. 35 The third question, arising if s 63A did not apply or the grant of leave remained, was whether error had been shown in the judge's exercise of his discretion in declining to grant a stay of proceedings on the counts in the second indictment concerning Bassam Daaboul. As the appeal was conducted, the answer to the third question turned on the same considerations as the answer to the second question.

The application of s 63A 36 The history of proceeding by way of indictment is discussed in cases such as Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 689-90, Barton v The Queen at 88-90, R v Hull (1989) 16 NSWLR 385 at 388-93 and Grassby v The Queen (1989) 168 CLR 1 at 12-14. It is not necessary to go into it; the following is sufficient to place s 63A in context. 37 The prosecution of an indictable offence is ordinarily initiated by laying an information before a magistrate, followed by committal proceedings under the Justices Act and, if the alleged offender is committed for trial, the provision to the court, in the name of the Attorney General or the Director of Public Prosecutions, of a written charge of the commission of the offence. The document is called an indictment, and is "presented" to the court. But the prosecution of an indictable offence may also be by the immediate presentation of an indictment, without the prior laying of an information and committal for trial, on the initiative of the Attorney General or the Director of Public Prosecutions. The document is still an indictment, but is customarily known as an ex officio indictment. 38 Thus s 10 of the Act now provides - "(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.

(2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.

(3) This section does not apply to offences that is [sic] required to be dealt with summarily.

(4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily." 39 Presentation of an indictment does not automatically follow committal for trial. The matter then goes to the appropriate prosecuting authority, which may decide not to present an indictment or may decide to present an indictment charging the commission of an offence or offences differing, in detail or in substance, from that or those on which there was committal for trial. 40 As discussed in Barton v The Queen and Grassby v The Queen, the power to prosecute by an ex officio indictment is independent of the procedure via an information and committal proceedings. An ex officio indictment may even be presented not only without the prior laying of an information and committal for trial, but also when the magistrate has declined to commit for trial on the offence charged. 41 An indictment may charge the commission of one or, subject to certain limitations, a number of offences by separate "counts". 42 When one speaks of amending an indictment after it is presented, therefore -

(a) the indictment which is amended may be either an indictment following committal for trial or an ex officio indictment, or an indictment containing some counts of charges on which the alleged offender has been committed for trial and some counts of charges on which the alleged offender has not been committed for trial;

(b) the amendment may be of the existing counts, and may be to overcome a slip or a technical difficulty or of substance;

(d) the amendment may be by adding counts, and the added counts may be of charges on which the alleged offender has been committed for trial or of charges on which the alleged offender has not been committed for trial. 43 What is the purpose of requiring that amendment, at first sight to an indictment of whichever origin and in any of the ways, be only with leave or by consent? 44 Section 63A of the Act was added by the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 ("the 2001 Act"). 45 Prior to its addition, s 64 of the Act provided for amendment of an indictment with leave - "64(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes."

This power to amend has been held to be ample, provided no injustice is caused ( R v Clarke (1993) 71 A Crim R 58; R v Lars (1994) 73 A Crim Rep 91). It is, however, confined to where an indictment is defective. Amendment otherwise of an indictment was not regulated by the Act. 46 The stated purpose of most of the amendments to the Act made by the 2001 Act was to enable the court, on a case by case basis, to impose pre-trial disclosure requirements on both the prosecution and the defence in order to reduce delays in complex criminal trials (s 47A as added to the Act). As well, however, the 2001 Act added s 53A, replaced s 54, and added s 63A, all dealing with indictments. 47 Prior to the 2001 Act, the Act did not regulate the manner of presentation of an indictment. Section 53A enabled provision to be made by the regulations or the rules of court for the manner of presentation of an indictment, including by filing the indictment in the court registry. 48 Prior to the 2001 Act, the then s 54 enabled orders to be made as to the time of presentation of an indictment, but the time within which an indictment could be presented was otherwise not regulated. The new s 54 provided that an indictment had to be presented "within 4 weeks after the committal of the accused person for trial" (s 54(2)), and for extension of the time by the regulations or court order and the courses the court could take if the indictment was not presented within the required time. 49 Additionally to s 64, s 63A then dealt with amendment: for convenience, it is repeated - "64(1) An indictment may not be amended after it is presented, except by the prosecuting authority: (a) with the leave of the court, or (b) with the consent of the accused.

(2) This section does not affect the powers of the court under section 64.

(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment." 50 The added and new sections meant greater regulation in relation to the presentation of indictments: regulation as to how, as to when, and as to subsequent amendment. Pt 53 r 10D of the District Court Rules was subsequently gazetted to provide that an indictment may be presented "by filing a copy of the indictment with the registrar": this apparently is what was done in the present case on 17 May 2002. The purpose of more efficient conduct of trials, cognate with the pre-trial disclosure provisions, by regulating the prosecuting authorities' presentation and, relevantly, amendment of indictments is plain enough. 51 The Crown submitted that s 63A should be read so as not to interfere with the long-standing power to present ex officio indictments, and that it was restricted to "indictments that come about because of the result of committal proceedings". It is, however, difficult to see why that should be accepted. 52 First, the Act deals in many ways with indictments both after committal for trial and ex officio. Examples are s 50 as to signing, s 52 as to the court of presentation, s 53A as to manner of presentation, s 58 as to validity despite defects, and s 64 as to amendment; there are many other provisions concerning indictments which plainly apply to an indictment of whichever origin. Where s 10 of the Act recognised the different origins behind the "information (to be called an indictment)", and then dealt generally with indictments, clear differentiation would be expected if s 63A applied only to indictments after committal for trial. 53 Secondly, the evident purpose involving regulation of amendment of indictments would extend to amendment of an ex officio indictment after presentation - there is no reason for the mischief of unregulated amendment to which s 63A is directed to be any less because the indictment is an ex officio indictment. Section 63A, referring to indictments without any distinction according to origin, plainly enough applies to amendment of an indictment presented as an ex officio indictment. Indeed, the ex officio indictment may include counts on which there has been committal for trial, and only have the character of an ex officio indictment because of a difference in charge or the addition of a count. 54 Thirdly, particularly if the indictment which is amended can be an ex officio indictment it would make little sense to exclude from s 63A amendment of any indictment by a new ex officio indictment. Perhaps not inevitably, but in most cases, any amendment will be by presentation of an indictment which is an ex officio indictment in that there has not been committal for trial on the precise charges or all the charges in the counts of the indictment. That was in principle the case here. That there have not been committal proceedings as to the precise charges or all the charges in the counts of the indictment goes to why leave is necessary and is relevant to whether leave should be granted: it is not a reason for leave being unnecessary. 55 The words of s 63A, referring to "indictment" without distinction of origin (and extending to substitution of an indictment) are too intractable for acceptance of the Crown's submission, and I do not think that the stipulation in or via s 54(2) of a time after committal proceedings stands to the contrary. The time for presentation of an ex officio indictment can not readily be regulated, and so s 54(2) addresses only presentation of an indictment after committal proceedings. There is not that limitation in s 63A. 56 It does not follow that the power to present ex officio indictments is vitiated. The key lies in "amendment" and "substitution" in s 63A, by which its reach is confined. Those words must be given effect. There can be presentation of an ex officio indictment provided that what occurs is not "amendment", including "substitution"; but if what occurs is "amendment", including "substitution", the fact that what is presented is, in whole or in part, an ex officio indictment does not take it outside s 63A. It will be a question of fact in each case. What of this case? 57 The Crown submitted that there was no amendment to the first indictment, and that all that occurred was that "as a consequence of the so-called amendment to the indictment … there is a joinder of non-ex officio counts with ex officio counts". The Crown described this as a "notional amendment", as distinct from a "substantive amendment, actual amendment or effected amendment". 58 The submission rather overlooked substitution, and for the appellant the change from the first indictment to the second indictment was hardly notional. The indictment is the document, and one can debate whether addition of ex officio counts makes the indictment wholly or only partly an ex officio indictment, but the indictment is different and there is a new indictment. 59 The first indictment was arguably amended, in that four of the counts concerning Jamil and Issam Daaboul were omitted and thirteen counts concerning Bassam Daaboul were added. But in my view there was certainly substitution of the first indictment, in that instead of an indictment alleging a number of sexual offences against Jamil and Issam Daaboul there was an indictment alleging a number of sexual offences against Jamil, Issam and Bassam Daaboul. That is within the ordinary meaning of the words in s 63A. 60 In my opinion, s 63A applied such that leave to amend the first indictment to the second indictment was necessary.

Grant of leave 61 The Crown submitted that, in any event, the judge had held that leave to amend should be given, and that (a) there was no basis for refusal of leave but (b) if there was no error had been shown in the exercise of discretion. The appellant conceded that the judge had not misdirected himself in law, but submitted that his exercise of discretion was so unreasonable that it could not stand. Although it was not cited, no doubt the appellant had in mind that part of the well-known passage in House v The King (1936) 55 CLR 499 at 505 referring to a result that is "unreasonable or plainly unjust", so that it may be inferred that there has been a failure properly to exercise the discretion and the discretion is reviewed "on the ground that a substantial wrong has in fact occurred". 62 The Crown's submission that there was no basis for refusal of leave was that there was no prejudice to the appellant "that flowed directly as a consequence of amending the indictment". The absence of committal proceedings, it was said, was not relevantly a prejudice because the prosecuting authorities could have presented a separate ex officio indictment on the new counts at any time. All that flowed from the joinder of the ex officio counts with the existing counts was a question of joint trial, and although severance was mentioned the appellant did not argue for severance before the judge. In the Crown's submission, the absence of committal proceedings went only to the question of a stay. 63 In my opinion, this is not realistic. (Nor was it a submission made to the judge). By the second indictment the appellant was to be put on trial on the charges concerning Bassam Daaboul as well as the charges concerning Jamil and Issam Daaboul. Whether that should be permitted involved more than the question of joint trial, and the absence of committal proceedings was relevant. That the prosecuting authorities could have presented a separate ex officio indictment on the new counts was beside the point: they had not, but had amended the indictment. The Crown's argument would remove any force from s 63A. 64 I have earlier commented on the judge's reasons as to leave if leave were necessary. The reasons should be read as explaining that the judge considered that a Basha enquiry would meet any injustice to the appellant from proceeding on the new counts in the indictment without committal proceedings, on the question of leave as well as on the question of a stay. 65 The appellant said that the importance of committal proceedings to the system of criminal justice has often been recognised, see for example Barton v The Queen and Grassby v The Queen. He said that he had obtained orders enabling cross-examination of Jamil Daaboul and the mother of the Daabouls, and that although it was not certain there must be a real possibility that if he were able to apply in committal proceedings he would obtain a similar order enabling cross-examination of Bassam Daaboul. He said that the magistrate had declined to commit for trial on nearly half the charges concerning Jamil Daaboul, and that, although what might occur if there were committal proceedings as to the charges concerning Bassam Daaboul was speculative, that demonstrated what might be lost to him. He emphasised that the charges concerning Bassam Daaboul are of offences committed over the period 1978-1984, and that productive cross-examination could not be disregarded. 66 The judge was alive to this. He correctly saw little in the suggestion that the appellant might give evidence at a committal hearing, which did not feature on appeal, and focussed on the lost opportunities of ascertaining and testing evidence and obtaining a ruling that the appellant should not be put on trial. He considered that a Basha enquiry overcame any prejudice to the appellant in these respects, coupled with the trial judge's power to rule that there was no prima facie case. 67 In a Basha enquiry the appellant would be permitted to cross-examine Bassam Daaboul on the voir dire before he was called at the trial, see R v Basha (1989) 39 A Crim R 337 at 339. The appellant said that this was an inadequate substitute for committal proceedings. The evidence of Bassam Daaboul and the other Crown witnesses was known through their statements, and the appellant had the particulars, but he said that in the enquiry further matters could come out which might require investigation and that this could not be done (or properly done) if the trial was under way. He said that the judge conducting the trial would not be able to bring the trial on the charges concerning Bassam Daaboul to an end if he thought the evidence did not warrant putting the appellant on trial, and could only intervene if there was no evidence fit to go to the jury. 68 Again, the judge was alive to this. He did not specifically refer to it in his reasons, but in the circumstances of this case his reasons must be understood in the light of the submissions made to him, and the appellant made the same points in submissions. At one point the judge said, and the appellant's counsel acknowledged, that the trial could be adjourned if matters came out requiring investigation; that is an obvious available course, albeit maybe not ideal. 69 The discretion conferred by s 63A is not circumscribed by its words, and must be exercised having regard to the purpose of the section and all the circumstances of the case and according to what is a just outcome. Absence of committal proceedings, with the opportunities on which the appellant relied, does not of itself mean injustice. Other judges may or may not have come to the same conclusion as the judge, but I do not think it can be said that his conclusion was so unreasonable that it can not stand.

Stay of proceedings 70 Before the judge the application for a stay of the counts concerning Bassam Daaboul was not said to be for a permanent stay, on the one hand, or a stay unless and until there were committal proceedings as to those counts, on the other hand. The difference is significant, and it is unfortunate that the application was not made plain: it is important that counsel properly formulate their application. 71 The context suggested that the application was for a stay unless and until there were committal proceedings, and the submissions were not consistent with an application for a permanent stay. Nor were the judge's reasons, focussed upon meeting any injustice through absence of committal proceedings; a stay even if there were committal proceedings was not in issue. However, although he earlier referred generally to "permanent stays, stays upon terms or inquiries in the sense outlined in The Queen v Basha", at the conclusion of his reasons the judge described the appellant's application as asking for a permanent stay. 72 In my opinion this was a slip, and the judge's reasoning was directed to a stay of proceedings on the new counts concerning Bassam Daaboul unless and until there were committal proceedings. The appeal should be dealt with accordingly. 73 In the notice of appeal the appellant asked that the counts "be permanently stayed or stayed upon terms", but at the hearing of the appeal counsel for the appellant did make plain that he sought a stay upon terms, namely until the conclusion of committal proceedings as to those counts. If the judge had been asked for a permanent stay and had declined, the appeal would fail. There could be no error in failing to grant a stay on terms if the judge was not asked to grant a stay on terms. 74 The appellant accepted that the considerations governing whether leave should be granted and whether there should be a stay of proceedings on terms were common to both. In substance, the submissions extended to both. It follows from what I have said that I do not think error has been shown in the judge's exercise of discretion in declining a stay of proceedings.

Orders 75 The appeal should be dismissed. Although I differ from the judge on whether s 63A applied, because he made the order granting leave to present an amended indictment the record contains the correct result. 76 DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgments of both Giles JA and Smart AJ. I agree with both of them for the reasons given by Giles JA that the Crown required leave to file the amended indictment notwithstanding that the amendments related only to ex-officio counts and that the Court had power to grant such leave. 77 I also agree that the grant of leave required the exercise of a judicial discretion, the primary issue in the exercise of such discretion being whether the accused would be unfairly prejudiced by the absence of committal proceedings in relation to the ex-officio counts, and whether any such prejudice could be overcome by another procedure. His Honour concluded that any "latent injustice" (as he described it) could be overcome by the holding of a "Basha" type enquiry prior to the trial (judgment p 8). 78 Whilst I acknowledge the force of Smart AJ's views on this issue, I consider the difficulties he foresees are more theoretical than real, particularly as the Basha enquiry is to be held "prior to" the trial, thus allowing time for further investigations or an adjournment of the trial, if necessary. For the reasons given by Giles JA I am satisfied that his Honour took into account the relevant matters and it cannot be said that his conclusion was so unreasonable that it cannot stand. 79 I also agree that the application for a stay of proceedings was not for a permanent stay (and if it were, it could not succeed), but for a stay on terms, namely until the conclusion of further committal proceedings. This application was refused for the same reasons as those given for the grant of leave to amend the indictment. I can see no error in that approach. Although not in terms, the effect of the orders (at T 12) was a stay of proceedings until the conclusion of a Basha enquiry in relation to the ex-officio counts. 80 I agree with the orders proposed by Giles JA. 81 SMART AJ: The facts and circumstances relating to the alleged offences, the history of the proceedings and the contentions of the parties are set out in the judgment of Giles JA. I agree that Shadbolt DCJ erred in his construction of s.63A of the Crimes Act 1900. It applies to all indictments. I agree that the effect of s.63A was such that leave to amend the first indictment to the second indictment was necessary. 82 However, I disagree with Giles JA as to the outcome of this appeal. In my opinion the judge exercised his discretion in a manner which was unreasonable. 83 The relevant facts are as follows:

(a) The appellant was originally charged with 22 sexual offences in respect of Jamil Daaboul and Issam Daaboul. He was committed for trial on 9 out of 19 counts as to Jamil Daaboul, the other ten charges being dismissed, and on all 3 counts as to Issam Daaboul. The offences allegedly occurred between April 1978 and December 1983.

(b) The indictment presented on 23 November 2001 contained the 12 counts on which the appellant had been committed for trial. It was on this indictment that the Crown relied when the appellant's trial was listed for hearing on 25 March 2002

(c) Up to and immediately prior to 25 March 2002, Bassam Daaboul, the elder brother of the two complainants had declined to make a statement or become involved. On that day Bassam Daaboul agreed to make a statement. The intended trial judge was told that this would result in further charges being laid against the appellant. The trial date was vacated and the matter was stood over.

(d) The Crown then prepared an amended or substituted indictment. Counts 1 and 2 related to Issam Daaboul, counts 3-8 (both inclusive) to Jamil Daaboul and counts 9-21 to Bassam Daaboul. One count against Issam Daaboul and three counts against Bassam Daaboul had been dropped. The majority of the counts relate to alleged sexual offences against Bassam Daaboul over the period from 25 March 1978 to 26 March 1984.

(e) The sexual offences alleged relating to Bassam Daaboul are generally more serious and more extensive as this table demonstrates:

Count Complainant Offence Dates Places 1 Issam Daaboul Indecent assault 1. 3.79 Maroubra 2 31.3.80 Stanmore 3 Jamil Daaboul Indecent 1. 4.79 Waterloo Assault 30. 4.81

4 " " 1. 4.82 Neutral 30. 4.84 Bay

5 " " 1. 4.82 " 30. 4.84 6 " " 1. 4.83 Lane Cove 30. 4.84 7 " " 1. 4.83 " 30. 4.84

8 " Assault with intent to commit buggery 1. 4.83 " 30. 4.84

9 27. 3.78 Waterloo 26. 3.80 Bassam Daaboul Indecent 10 Assault 27. 3.78 " " 26. 3.80 " 11 27. 3.78 " " 26. 3.80 Buggery 12 27. 3.79 " " 26. 3.80 Indecent 13 Assault 27. 3.79 " " 26. 3.80 Buggery

" Act of Indecency 15 " " " Buggery 16 27. 3.80 Stanmore Buggery 26.3.81 " 17 27.3.80 " Indecent assault 26.3.81

" 18 Buggery 27. 3.82 Neutral Bay 5. 5.83 " 19 Indecent assault 27. 3.82 " 5. 5.83

" Buggery 20 27. 3.82 Lane Cove 26. 3.84 " Buggery 21 27. 3.83 Auburn 26. 3.84

84 Thus there are 6 charges of buggery against the appellant relating to Bassam Daaboul. Under s.79 of the Crimes Act 1900, as in force between 1 October 1924 and 8 June 1984, the maximum penalty for buggery was penal servitude for 14 years. Under s.80, as in force between 6 November 1951 and 8 June 1984 the maximum penalty for assault with intent to commit buggery was penal servitude for 5 years. There is only one charge against the appellant in respect of the last mentioned offence and that relates to Jamil Daaboul. 85 As a result of the charges added to the indictment relating to Bassam Daaboul and especially those of buggery, the criminality alleged against the appellant is very much greater. Those charges extend over the longer period of 6 years, that is, from 1978 to 1984. The two charges as to Issam Daaboul cover a 13 month period from 1 March 1979 to 31 March 1980. The six charges as to Jamil Daaboul cover a 5 year period from 1979 to 1984. The offences alleged against Bassam Daaboul are said to have taken place at five different venues (Waterloo, Stanmore, Neutral Bay, Lane Cove and Auburn). Those as to Issam Daaboul at two venues (Maroubra and Stanmore) and those as to Jamil Daaboul at 3 venues (Waterloo, Neutral Bay and Lane Cove). The appellant had cleaning contracts of premises at Waterloo, Neutral Bay and Lane Cove and residences at Stanmore and Auburn. The allegations in the detailed statement of Bassam Daaboul, if proven, reveal criminality of the gravest kind which would lead to heavy sentences.. 86 It is highly probable that the trial of the charges relating to Bassam Daaboul will be the focus of any trial covering all counts because of the gravity and number of the offences alleged against Bassam Daaboul. Whether there is to be one trial covering all counts is yet to be decided. 87 As to the 13 counts involving Bassam Daaboul there is a lack of specificity as to the date on which they occurred. Four of the offences are alleged to have occurred within a two year period (counts 9, 10, 11 and 20), seven of the offences within a one year period (counts 12, 13, 14, 15, 16, 17 and 21) and two of the offences within the period 27 March 1982 and 5 May 1983 (counts 18 and 19). 88 Obviously, the appellant will wish by appropriate questions directed to Bassam Daaboul to explore whether he is able to fix the approximate date of each offence, or at least reduce the period within which they were alleged to have occurred. Further details of each offence and the surrounding incident would be important . If they cannot be supplied that will also be important. There needs to be testing and exploration of the Crown case as to the additional charges. 89 As the offences alleged took place from 19 years to 25 years ago the appellant will need a reasonable opportunity, once the committal proceedings have concluded, to gather or endeavour to gather material for use in cross-examination of Bassam Daaboul and to meet his evidence. This is likely to take some time and be painstaking because the offences alleged happened so long ago. This is not the sort of investigation which can adequately take place after a Basha Inquiry and with a pending trial. 90 Further, testing of the Crown case and the evidence of Bassam Daaboul may result in some of the alleged offences not being pursued. This is not an infrequent outcome when there are a lot of charges relating to events long ago. 91 It is generally unsound to use the vehicle of a Basha Inquiry in the circumstances which exist in a case such as this where there has been a change in the primary thrust of the Crown case, a larger number of extra counts have been added against a new defendant or accused and these allege criminality of a graver and more extensive kind. The use of a Basha Inquiry as a substitute for committal proceedings in a case such as this is a departure from sound criminal practice. 92 It is anomalous that there should have been committal proceedings in respect of the less serious charges involving the younger brothers and the lesser number of offences but no committal proceedings in respect of the substantial number of much graver charges involving the eldest brother. This is not a case of statements filling in gaps in the existing evidence and fitting into an existing framework. 93 In Basha (1989) 39 A Crim R 337 he was committed for trial on a charge of being a party to the supply by a co-accused of heroin to an undercover police officer. At the committal proceedings police officers other than the undercover officer were called as witnesses. Those other police officers had observed the meeting between Basha and the undercover officer. Prior to the trial the prosecution advised that it proposed to call the undercover officer and supplied a statement of the evidence he was proposing to give. He had not been called at the committal proceedings as he was still undercover at the time. His statement was consistent with the evidence of the other officers at the committal proceedings. In Basha there was no suggestion that the evidence of the undercover officer went beyond the real nature of the case which was made at the committal proceedings. It merely filled in the conversations which led to the actions which the other police officers had observed. It is a very different case from the present one. 94 In Barron (1987) 10 NSWLR 215 at 224 Mahoney JA in discussing the weight to be given to the absence of committal proceedings, and after reference to Barton v The Queen (1980) 147 CLR 75 at 224 said: "Gibbs ACJ, Mason J, Aickin J and Stephen JJ were, I think, of the view that the absence of committal proceedings should weigh heavily in the balance for the accused. Wilson J (at 117) said that the decision to file an ex officio indictment is not 'a decision to be taken lightly, and otherwise than for serious and compelling reasons'. A trial court should , in my opinion, prudently treat the words '… unless justified on strong and powerful grounds must necessarily be considered unfair' as the appropriate guide in arriving at its assessment of the accused's position." 95 At 233 Hunt AJA said that he could not accept the proposition in the joint judgment of three members of the High Court that a trial held without prior committal proceedings must necessarily be considered unfair unless justified on strong and powerful grounds. Hunt AJA continued: "In my judgment the views expressed by Stephen J are to be preferred, so that an applicant for a stay of proceedings is obliged to demonstrate how serious is the prejudice in his particular case caused by his loss of opportunity to cross-examine the Crown witnesses at prior committal proceedings. In the balancing process applied in deciding whether to grant the stay, it must be borne in mind that the loss of that opportunity is not of itself sufficient as a ground for a stay of proceedings."

(Wilson J and Murphy J reached the same conclusion as Stephen J) 96 Hunt AJA was dealing with a fraud case based on false representations made orally and in writing where the delay in prosecution was not of the order of the present case. Barron had left the jurisdiction and had to be extradited. 97 Samuels JA agreed with the approach of Hunt AJA and preferred the views of Stephen J. Samuels JA referred to the view of Stephen J that the gravity of the loss of the opportunity to cross-examine "will depend upon the nature of the offence charged and of the Crown's evidence." 98 In dealing with the balancing process Samuels JA said at 219: "… the evaluation which is necessary requires consideration of factors other than the loss of the opportunity to cross-examine which Stephen J referred as likely to be the most serious detriment." 99 In the present case much more is involved than the loss of the opportunity to cross-examine Bassam Daaboul at committal proceedings. That loss can, in part, be compensated by cross-examination during the Basha Inquiry. The thrust of these proceedings is being altered and added to. If the appellant had known of the now proposed charges involving Bassam Daaboul the committal proceedings as to the offences alleged as to the younger brothers may have been conducted differently. 100 The factual background of Barron is worthy of note. There had been committal proceedings against his co-accused. Barron did not return from overseas for them but was not given formal notice of them, although he seems to have been made aware of what was happening.

The High Court refused special leave to appeal from the decision of the Court of Appal in Barton. 101 If the test formulated by Stephen J and followed by Samuels JA and Hunt AJA is applied, the appellant must succeed in any balancing exercise. That was identified by Samuels JA in these terms: "The valid comparison is between two social or community interests, one in ensuring the fairness of criminal trials and the other in ensuring the orderly and expeditious prosecution of offenders in accordance with established procedures, which in such a case as this, would include the availability of the ex officio indictment." 102 In the course of his reasons the judge did not refer to the major shift which has taken place in the proceedings and the very much graver charges the appellant will face as a result of the additional charges. These factors along with the long period of time since the offences alleged were said to have been committed give rise to an insistent demand that there be committal proceedings with the advantages they afford. It is a classic case for the testing of the evidence of Bassam Daaboul by cross-examination at the committal proceedings and then an adequate period for further investigation and the seeking and collection of further evidence to meet the Crown case after the committal proceedings have been concluded. Investigation and collecting evidence to meet the Crown case is required in respect of 13 incidents stretching over six years between 1978 and 1984. That is a formidable task and the appellant's efforts may be unsuccessful for a variety of reasons including that in truth he has no defence. 103 As to whether there is one trial of all the counts it is to be noted that the involvement of each of the brothers with the appellant overlapped in point of time. Bassam Daaboul in his statement contends that he asked the appellant not to bugger his brothers. From the materials substantial grounds appear why the prosecution would regard it as desirable that the charges involving the three brothers be heard at the one time. However, no view is expressed as to whether such a course should be followed as it is not known if the appellant objects to such a course and is able to advance substantial grounds in opposition. In such circumstances the better course is to allow the amendment. This would have the prima facie effect of permitting the trial of all the counts to take place at the one time, but be without prejudice to any application by the appellant to apply for separate trials. 104 I would dismiss the appeal from the judge's order granting the Crown leave to amend the indictment as proposed. However, I would stay the hearing of counts 9-21 of the indictment pending the holding of committal proceedings on these counts. **********

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