HULL v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MCHUGH and CLARKE JJA 18 February 1988, 11 May 1988 [1988] NSWCA 71 CRIMINAL LAW & PROCEDURE — abuse of process — stay of criminal trial sought — charges of supply and possession of cocaine — accused discharged at committal — ten months later ex officio indictment filed — further delay of two years to original date of trial — delay in supply of particulars — application for permanent stay — stay provided to co-accused but denied to claimant — Summons for relief — held (1) (by Kirby P and McHugh JA, Clarke JA contra) jurisdictional error shown on the part of the trial judge (Bell DCJ) authorises intervention by the Court; (2) (by the Court) But relief should in the circumstances be denied. (Per Kirby P) on the ground that no abuse of process was shown nor would the trial be unfair and the case was not so exceptional as to warrant a stay. Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685 applied; (per McHugh JA) although the delay of two years after ex officio indictment was a prima facie breach of the accused's speedy trial right, as it occurred largely with the consent of the accused that breach was not made out nor was it shown that a trial now would be oppressive. Rutkowski & Ors v The Director of Public Prosecutions & Ors, unreported, CA, 25 March 1988 referred to; (per Clarke JA) on the ground that the trial judge had applied the correct test and no error had been shown. Kirby P By the law of this State there is no enforceable legal right to a speedy trial whether constitutional or otherwise. See Jago v The District Court of New South Wales & Ors, unreported, CA, 10 May 1988. Accordingly, the claimant's summons for a stay of a criminal trial set down for hearing in the District Court on 22 August 1988 must be considered by reference to the principles for the granting of relief where the continuance of a criminal prosecution would amount to an abuse of process or where, having regard to the delay in the prosecution or other supervening events, a criminal trial would now be unfair. The applicable principles are conveniently stated in the judgment of the Court in Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685. Special leave to appeal from the decision in Watson was refused by the High Court of Australia. Dismissing the Attorney-General's application, Mason CJ emphasised the exceptional nature of the jurisdiction and the caution and infrequency with which it would be exercised. His Honour categorised the nature of the relief as "supervisory/discretionary. If the function of the Court is supervisory (as I am prepared for this case to assume) it is necessary for the claimant to show a relevant error in the exercise of his jurisdiction by the trial judge such as will attract the supervisory jurisdiction of this Court. In accordance with the practice sanctioned in Watson, the application for a stay first came before the trial judge (Bell DCJ) on 27 November 1986. His Honour dismissed the application for a stay. In the course of doing so, his Honour referred to the delay "from 1 December 1983 to 7 April 1986" as "not such an excessive period as to constitute a denial of natural justice or abuse of process". Although it was relevant for his Honour to have regard to the interval of time from the time when the claimant was 2 UNREPORTED JUDGMENTS discharged in his committal proceedings to the time when the first application for a stay was made, this was not the interval of time which was properly the focus of his attention in judging the claimant's assertion of an abuse of process. As McHugh JA has pointed out, the original information was dismissed at the committal on 1 December 1983, when the magistrate held that a prima facie case had not been established against the claimant. Accordingly, that proceeding had terminated in the due course of the law. Therefore, to judge whether the later prosecution of the claimant upon the Attorney-General's ex officio indictment directed on 8 October 1984 was an abuse of process, it was necessary for the trial judge to have regard to the delay which followed the first return upon that proposed indictment. Those proceedings first came before the District Court on 19 October 1984. Had the present application for a permanent stay not been filed, the claimant would have stood his trial at a hearing in the District Court which was set down to commence on 12 May 1986. Accordingly the attention of Bell DCJ should have been addressed to the delay between October 1984 and May 1986, although it would have been proper for his Honour to take into account, in judging the effect of that delay, any prejudice suffered by the claimant having regard to the fact that the events out of which the ex officio indictment arose occurred as long ago as 3 September 1981. Because Bell DCJ addressed his attention to the incorrect period of delay relevant to the prosecution of the claimant on the ex officio indictment, I am of the view, alike with McHugh JA, that sufficient jurisdictional error has been shown on the part of his Honour such as to authorise the intervention of this Court, assuming our intervention to be so limited. I do not consider that Bell DCJ erred in expressing difficulty with the conception of a constitutional right to a speedy trial. On the contrary, in this respect I consider that his Honour's observations are consistent with the later authority of this Court in Jago. What, then, should be done by way of relief? Sometimes it is appropriate, jurisdictional error having been shown, to return the Proceedings to the District Court for the correct exercise of the stay jurisdiction, having regard to the principles clarified in the judgment of this Court. Such a procedure upholds the primacy of the trial judge in a criminal trial. Cf Rutkowski & Ors v The Director of Public Prosecutions & Ors, unreported, CA, 25 March 1988. However, in the present case the new trial date is fixed. There have already been considerable delays. This Court has all of the relevant facts. It is therefore appropriate for it to Proceed to exercise its jurisdiction and to Consider, for itself, whether to Provide the stay sought. When regard is had to the four considerations mentioned in Watson and the additional considerations of the public interest in the trial of serious criminal charges referred to in Carver v Attorney-General for New South Wales, unreported, CA, 2 July 1987; (1987) NSWJB 149, it is my view that the claimant has not made out a case for the exceptional relief which he seeks and which this Court must provide "sparingly, 'with the utmost caution" and such that "its exercise is not encouraged (See Mason CJ in Watson, above.) So far as the length of the delay is Concerned, there would appear to be no reason why the claimant and the Crown should not have been ready to proceed to trial on 4 March 1985. The application for the vacation of that date was made on 13 February 1985 jointly by the claimant and the Crown. As McHugh JA has pointed out, although there was a delay in the supply of Particulars and in selecting the count upon which the Crown was to proceed, (which delay Bell DCJ URJ HULL v DISTRICT COURT OF NEW SOUTH WALES (McHugh JA) 3 considered reprehensible) it does not appear to have caused actual Prejudice to the claimant. For most of the period in question, the claimant was overseas. Although the delay of more than two years is Considerable, much of it appears to have occurred with the acquiescence of the claimant. So far as the reasons given by the prosecution to justify the delay or Concern, they are unconvincing as they relate to the delay for particularisation of the charge; but as they refer to the acquiescence of the claimant, who was legally advised, they are persuasive. So far as the responsibility of the accused to assert his rights are concerned, I have referred in Jago the limited extent to which it is reasonable to expect an accused person vigorously to press for an early trial. But at the most, in this case, it can be said that the claimant went along with the delays and some of them at least appear to have suited his extended overseas business journeys. Most importantly, no specific prejudice to the accused has been alleged, save for the presumptive prejudice which always accompanies delay in the trial of criminal charges. It is in this respect that it is relevant to have regard to the delay dating back to the events out of which the charges arise (in 1981) and the disappointment and inconvenience that naturally enough accompanied the belated revival of the prosecution after the magistrate in 1983 had held that a prima facie case had not been made out. There is no suggestion in this case of the death or disappearance of relevant witnesses in the relevant interval of time. The events which form the basis of the prosecution occurred on a single day and at a particular place. It is not as if the claimant is belatedly put to the obligation of remembering and reconstructing numerous transactions over a prolonged period. Finally, the charge against the claimant is conventionally regarded as an extremely serious one. It is so regarded by Parliament, as reflected in the penalties which may be imposed upon conviction. Accordingly, there is a high public interest in having such charges determined by a jury in accordance with law. In such circumstances, and particularly bearing in mind the cautionary words of Mason CJ in dismissing the application in Watson, I do not regard this as a case for the exceptional intervention of the Court to provide a permanent stay of the further prosecution of the claimant. His disappointment at the belated revival of the proceedings after his discharge by the magistrate is understandable. So too is a sense of grievance that a co-accused succeeded in the application for a stay where he did not. But the position of the co-accused was distinguishable. Proceeding by ex officio indictment was available to the Attorney-General. Once that process was initiated, the delay in the prosecution from that time was not so great as to invite the intervention of this Court. Particularly is this so as the great part of the delay to the time when the trial would ordinarily have taken place occurred with the apparent acquiescence of the claimant. The summons should be dismissed with costs. McHugh JA By summons filed in the original jurisdiction of this Court, Ivan Rodney Hull (the claimant) seeks an order that a criminal trial pending in the District Court of New South Wales be stayed permanently. On the 27th November, 1986 Judge Bell refused an application by the claimant to stay the trial although he made an order in favour of a co-accused. In Rutkowski & Ors v The Director of Public Prosecutions & Ors (29 October 1987), I pointed out that the jurisdiction of this Court to stay proceedings on a criminal charge pending in the inferior courts of justice is discretionary. When a party has litigated a stay application before a court which has jurisdiction, this 4 UNREPORTED JUDGMENTS Court, in the exercise of its discretion, ought not to interfere in the matter unless there was jurisdictional error on the part of the inferior court. Accordingly, the issue here is whether the learned District Court Judge fell into jurisdictional error in refusing the application. The claimant contends that his Honour fell into error in that he failed to have adequate regard to the conduct of the Prosecution in delaying the filing of an ex officio indictment and in Supplying Particulars of overt acts. He also Contended that his Honour erred in Principle in distinguishing between the nature of the overall injustice to the co-accused and the claimant. The facts. On 3rd September 1981 the claimant was arrested and charged with two Counts of supplying Cocaine (one actual and one deemed) and a count of Possession of Cocaine. Committal proceedings were fixed for the 19th November, 1981. The claimant was not granted bail until the 30th October, 1981. The Committal was heard for two days on the 19th and 20th November, 1981. It was then Stood over to the 31st May, 1982 for a hearing which was estimated to take nineteen days. On the 1st May, by reason of the illness of the magistrate, the parties were informed that the Case could not be heard for the nineteen days. On the Ist May, 1982 the matter was Stood over for hearing on the 8th November, 1982. The hearing length was estimated at ten days. The matter resumed on the 8th November, 1982 and Continued until the 19th November, 1982 when fresh charges of Conspiracy to supply a drug of addiction were laid. On the 19th November the co-accused of the claimant, Willie James Jennings, was discharged on the Conspiracy charge and on the charge of actually supplying the drug. But he was Committed for trial in respect of the charge of "deemed supply". The charge against the claimant was stood over to the 4th December, 1982 for further hearing. It was again Stood over. On the 13th January, 1983 it was stood over for hearing on the 18th July, 1983 when it was estimated that the hearing would last ten days. The further hearing of the charge against the claimant took place between the 18th and 29th July, 1983 when the matter was stood over until the 25th November, 1983. On the latter date the matter was stood over to the 28th November, 1983. It was again stood over until the 1st December, 1983 when the magistrate held that a prima facie case against the claimant was not established. The informations against the claimant were discharged. On the 8th March, 1984 the Assistant Commissioner of Police requested the Under Secretary that an ex officio indictment should be filed against the accused. On the 4th September, 1984 a Crown prosecutor recommended that an ex officio indictment against the accused should be filed. On the 8th October, 1984 the Attorney-General directed that an ex officio indictment against the claimant should be filed. When the matter came before the District Court on the 19th October, 1984 there was no appearance for the accused and a certificate and warrant for his apprehension was issued under s25 of the Justices Act, 1902. On the 22nd October, 1984 the accused, who had been arrested on warrant, appeared at the District Court where he pleaded not guilty to each count. He was granted bail conditionally. The matter was stood over until the 21st November, 1984 for mention. On the 14th November, 1984 the matter was mentioned and the proceedings were stood over for trial for one week to the 4th March, 1985. On the 13th February, 1985 there was a joint application for the trial date to be vacated. Neither the claimant nor the Crown were ready for trial on 4th March, 1985. Bail was continued. The matter was stood over until the 13th March, 1985 URJ HULL v DISTRICT COURT OF NEW SOUTH WALES (McHugh JA) 5 for mention. On the 21st February, 1985 the claimant sought and was granted a variation of his bail conditions On the Ist March, 1985 a further bail variation was sought to allow the accused to travel overseas. The application was granted. On the 6th March, 1985 the accused's Solicitors sought particulars of the overt acts of conspiracy, On the 13th March, 1985 Ducker DCJ directed the Crown to furnish Particulars of the overt acts by the 8th April, 1985. He stood the matter over for mention until the 15th April, 1985. notwithstanding the orders of the court, the accused's solicitors sought Particulars of the overt acts by letters dated 14th March, 1985 and the Ist April, 1985. On the 11th April, 1985 a further request for the Particulars was made. The matter was stood over again in April. On the 26th April the matter was stood over for mention on the 8th October, 1985. The Solicitors for the accused made further requests for Particulars of the overt acts on the 24th September, 1985 and the 27th September, 1985. When the matter came before the District Court on the 8th October, 1985, the Crown indicated that Particulars had been Supplied and that it was awaiting the submission of a no bill application. The matter was stood over for mention until the 10th December, 1985. On the 14th October, 1985 the claimant was granted a variation of his bail conditions to enable him to remain overseas for a longer period than Previously approved on the Ist March, 1985, On the 10th December, 1985 counsel for the accused gave an undertaking to have an application to stay the proceedings before the Attorney-General by the 24th December, 1985. The proceedings were adjourned for mention until the 5th February, 1986 when a trial date was fixed for the 12th May, 1987. On the 23rd December, 1985 the solicitors for the claimant forwarded the no bill application to the Attorney-General. When the matter was mentioned on the 5th February, 1986 the Crown advised the court that the application was being considered by the Crown Advocate. On the 4th April the claimant's solicitor sought a vacation of the trial date. On the 7th April the District Court made an order that the stay application be stood over for argument on the 12th May, 1986. On the latter day the matter was stood out of the list for further mention on the 20th June, 1986. On the latter date by consent the matter was stood over until the 3rd November, 1986 for argument. The hearing of the stay application took place on the 3rd-S5th November, 1986. His Honour gave judgment on the 27th November, 1986. The present summons was filed in the Court of Appeal on the 24th November, 1986. For reasons connected with the history and the outcome of the proceedings in Watson v Attorney-General (1987) 8 NSWLR 685, the summons was not prosecuted in this Court until February 1988. The trial has been fixed for hearing on the 22nd August, 1988. Bell DCJ made three important findings concerning the conduct of the proceedings. His Honour found that, while it was not alleged that a very lengthy cross-examination of witnesses by the claimant's solicitor was improper, nevertheless if the Prolongation of the case against the claimant was considered to be excessive, it was the responsibility of the claimant's legal adviser. Secondly, his Honour found that the claimant could complain with some justice of the ten months it took for the Crown to decide to Proceed by way of ex officio indictment. Thirdly, his Honour found that the delays in supplying Particulars and waiting until the 7th April, 1986 to advise that it intended to Proceed only on the count of supplying a drug of addiction was "reprehensible but 'not malicious" 6 UNREPORTED JUDGMENTS His Honour took the view that the delay from "1 December 1983 to 7 April 1986 is not such an excessive Period as to constitute a denial of natural justice or abuse of process notwithstanding the delay of ten months (which I have already described as reprehensible) in deciding to lay an ex officio indictment". The issues. With great respect to his Honour, I think that he was in error in looking at the matter from the period 1st December, 1983 to 7th April, 1986. The claimant was entitled to succeed in his application on one or both of two grounds The first ground was that his right to a speedy trial had been breached causing delay and Prejudice which made the proceedings an abuse of process or oppressive Since the original information was dismissed in the ordinary course of law, an examination of a breach of the claimant's speedy trial right can only commence when the ex officio indictment was filed on the 19th October, 1984. The second ground was that the continuation of the proceedings after the 7th April, 1986 was an abuse of process or oppressive having regard to the history of the matter from the time of the claimant's arrest on the 3rd September, 1981. The learned judge did not approach the case in this manner. Indeed, his Honour said that he had some difficulty with the conception of a constitutional right to a speedy trial. The result of his Honour's approach is that this Court must itself consider the matter. However, the claimant will not be entitled to a stay of the proceedings for breach of his speedy trial right unless the breach has resulted in the proceedings becoming oppressive or an abuse of process. The committal proceedings were commenced with due expedition, It is true that over two years passed before the committal proceedings were completed. Apart from the fact that the hearing fixed for the Ist May, 1982 was adjourned because of (he illness of a magistrate, no explanation for the delay was put before the court. As the history of the matter indicates, the accused was either present or represented on many occasions when the matter was before the courts. It may be that the long period of delay in hearing the committal proceedings was the result of the inability of the Crown to be ready or because of delay in listing or because t.he dates did not suit the representative for the claimant or a combination of these factors. But even if part of the delay was solely attributable to the non-availability of a magistrate, the legal representative of the claimant must bear a large part of the responsibility for the matter not being completed by November 1982 However, the conduct of the Crown in waiting ten months to file an ex officio indictment was, to repeat the words of Bell DCJ, 'reprehensible. But notwithstanding these matters, the most significant matter is that on the 14th November, 1984 the case was fixed for trial to commence on the 4th March, 1985. The claimant, however, sought to vacate the trial on the basis that he did not have adequate time to prepare his case. The Crown also appears not to have been ready to Proceed to trial on that date. There is no reason why the claimant should not have been ready for trial on the 4th March, 1985; nor is there any reason why the Crown should not have been ready for trial on that date. Moreover, on the Ist March, 1985 the claimant made an application for his bail to be varied so that he could travel overseas to attend to his business interests On the 8th October, 1985 the claimant's bail Conditions were again varied in order to permit him to travel overseas for a period of six months to attend to his business interests. This period was later extended by a period of two weeks. The proper Conclusion is that the accused was prepared to acquiesce in the delay after March 1985 in hearing his case. URJ HULL v DISTRICT COURT OF NEW SOUTH WALES (Clarke JA) 7 Again it was not until the 10th December, 1985 that counsel for the claimant indicated that an application for a no bill would be filed on or before the 24th December, 1985. On the 18th February, 1986 the Attorney-General directed that the matter proceed to trial. Yet it was not until the 7th April, 1986 that counsel for the claimant indicated that an application for stay of Proceedings would be made. It is true that the Crown unjustifiably delayed in furnishing particulars But it is also significant that no application for particulars was made until the 6th March, 1985, two days after the date on which the trial had first been fixed for hearing. Although particulars were not supplied to the accused until the 27th September, 1985, it is difficult to see how that delay contributed to delay in the hearing of the case. For most of the period while the Crown delayed in furnishing particulars, the accused was overseas. Although the delay between the filing of an ex officio indictment on the 8th October, 1984 and the proposed trial of the case on the 12th May, 1986 seems a prima facie breach of the accused's speedy trial right, nevertheless having regard to what occurred in 1985 with the consent of the accused, it is impossible to conclude that there has been any breach of the claimant's speedy trial right. Likewise, although the delay between 3rd September, 1981 and the proposed hearing in May 1986 seem to make the proceedings oppressive, more than two years of that period was attributable to conduct on the part of the claimant or his legal representative or was outside the control of the Crown. The claimant is unable to point to any specific prejudice as the result of the delay. The presumption of prejudice which flows from such a long delay has to be discounted by reason of the claimant's responsibility for a substantial part of the delay. In all the circumstances of this case, I have come to the conclusion that the case is not one which calls for the application of the exceptional power to stay criminal proceedings. The distinction between the case for the claimant and his co-accused was properly made by the learned trial judge. The co-accused was committed for trial on the 19th November, 1982. Bell DCJ found the co-accused was at all times "ready and anxious to go trial". The consequences of delay, which in the claimant's case the Crown can avoid by reference to his contributing conduct, had to be given full. effect in the case of the co-accused. Like his Honour I would draw a distinction between the two cases. In my opinion the summons should be dismissed with costs. Clarke JA The facts in this case have been carefully recorded by McHugh JA in his judgment and it is unnecessary for me to repeat them. It is established that the power to stay a criminal proceeding the hearing of which has been delayed should be exercised with caution and that only an exceptional case will attract the jurisdiction. Accordingly, this case must be approached upon the basis that there is a heavy onus upon the accused to establish that the particular circumstances of this case bring it within that exceptional category of cases in which a stay will be ordered. It is said that Judge Bell erred in law in making the statement that: "From | December 1983 to 7 April 1986 is not such an excessive period as to constitute a denial of natural justice or abuse of process. Notwithstanding the delay of ten months (which I have already described as reprehensible) in deciding to lay an ex officio indictment." 8 UNREPORTED JUDGMENTS The submission is that his Honour was required in accordance with law to consider the period between the accused's arrest on 3 September 1981 and 7 April 1986. I would accept without reservation the proposition that the accused is entitled to have the Court pay regard to the period which falls between the date of the charge and the date of application for a stay. Indeed in many cases it will be important to have regard to periods which have elapsed prior to the charging of the accused. This will occur, for instance, when a charge is laid many years after the events upon which it is based. In this case, however, the charge was laid almost contemporaneously with the happening of the events which were said to give rise to it and Bell DCJ was therefore required to pay regard to the period between the date of charge and the hearing of the application for a stay. If the learned Judge had disregarded entirely the period before the accused was discharged by the magistrate I would have been disposed to the view that error had been demonstrated But that is not the position. What the learned judge did was initially to pay regard to the period between the arrest and the dismissal of the charge by the magistrate in November 1983. He did so in response to a submission by counsel for the accused that from the outset the Crown proceeded in a dilatory fashion and that the later delays for which the Crown was responsible should be judged against the background of the early neglect to proceed expeditiously The learned Judge rejected the submission that any prolongation of the case up to the point where the magistrate dismissed the accused in November 1983 should reflect adversely against the Crown. indeed he accepted the contrary submission that any delay to that point of time was the responsibility of the accused himself and there was no culpable delay for which the Crown could be held responsible. Having reached that conclusion the learned Judge then turned his attention to the ensuing period. It is said that in doing so he erred. He should have looked at the whole period and in unjustifiably breaking up that period into two sections, and in dealing with each separately, he was in error. There is a superficial attraction about this argument but in my opinion it proceeds upon a narrow construction of the reasons for judgment which is not justified. In response to submissions which were advanced by senior counsel as to particular periods of delay Bell DCJ said this: "These delays are reprehensible but not malicious. It remains to be considered whether, viewed objectively, they constitute alone or when combined with the other delays an abuse of process." This demonstrates, in my mind, that the learned Judge applied the correct test and his failure to add to the final expression of his conclusion a phrase such as 'whether viewed alone or with the other delays' does not mean that he did not apply the correct test and have regard to the totality of the delay. In my opinion on a proper reading of his reasons for Judgment he had regard to the whole period which elapsed between charge and the application, for the stay and did not fall into error in unjustifiably breaking up those periods and considering each in isolation from the other. I would, therefore, not agree with the submission that there was an error of law. On one view of the jurisdiction which this court exercises when an application for a stay has already been decided by a trial judge that rejection is conclusive against the accused. Whilst I hold the tentative view that the opinion expressed by McHugh JA in Rutkowski & Ors v Director of Public Prosecutions & Ors, (Court of Appeal, unreported. 25 March 1988) is correct it is unnecessary to reach URJ HULL v DISTRICT COURT OF NEW SOUTH WALES (Clarke JA) 9 a formal conclusion upon that matter in this case. The reason is that even if I were to approach the exercise of jurisdiction upon the basis that the the Court's powers were not fettered by the earlier consideration of the application by a trial judge I would reach the same conclusion. That is, that the summons should be dismissed. In my opinion there is nothing about this case which brings it within that exceptional category in which the demands of justice require the staying of the trial. In saying that I have had regard to the whole period of delay, the fact that at some stages the Crown has been guilty of reprehensible dilatoriness and the accused's own contribution to the delay which appears from the reasons of Bell DCJ and McHugh JA. I agree with the orders proposed. Summons dismissed with costs. Counsel for the Claimant - HP JOHNSTON QC, P GOODE Counsel for the Opponent - RN HOWIE QC, G LERVE Solicitors for the Claimant - ANDREWS & ASSOCIATES Solicitors for the Opponent - SOLICITOR FOR PUBLIC PROSECUTIONS