JSM v R [2010] NSWCCA 255

New South Wales Court of Criminal Appeal

CITATION: JSM v R [2010] NSWCCA 255

HEARING DATE(S): 30 September 2010

JUDGMENT DATE: 11 November 2010

JUDGMENT OF: McClellan CJatCL at 1; Hoeben J at 59; Johnson J at 60

DECISION: Leave to appeal granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - leave to appeal against interlocutory orders - discussion of the legislative amendments to Division 3 Part 3 of the Criminal Procedure Act 1986 (NSW) - whether indictment could be presented out of time - trial can proceed given statutory effect of s 129(4) of Criminal Procedure Act 1986 (NSW) - CRIMINAL LAW - consideration of public interest in charge negotiation between accused and the prosecution

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986

CASES CITED : R v M [2010] NSWDC 200

PARTIES: JSM (applicant) The Crown

FILE NUMBER(S): CCA 2009/8421

COUNSEL: P Hamill SC/G Bashir (applicant) P G Ingram (Crown)

SOLICITORS: Uther Webster Evans (applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/8421

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 16 September 2010

IN THE COURT OF CRIMINAL APPEAL 2009/8421

McCLELLAN CJ at CL HOEBEN J JOHNSON J

THURSDAY 11 NOVEMBER 2010 JSM v R Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against interlocutory orders made by Berman DCJ. The applicant was charged with a number of offences on 27 July 2007. Other persons were also charged and their trial is fixed to commence on 5 October 2010. One of the co-accused has been in custody bail refused for in excess of 3 years and accordingly it is important that the trial not be delayed. For this reason the present application has been dealt with expeditiously. 2 The appeal was heard on 1 October 2010, and on 2 October 2010, the Court made orders granting leave to appeal but dismissing the appeal. These are my reasons for joining in the orders of the Court. 3 The judgment in the District Court relates the history of the matter drawing upon the affidavit of Ms Vivian Evans, the solicitor for the applicant. As I have indicated below a substantial complaint of the applicant has now been overcome diminishing the applicant's concern with respect to his prosecution. 4 On 27 July 2007, the applicant was charged with the offences of solicit to murder, make false accusation, two counts of supplying a prohibited drug, two counts of possessing a firearm and a count of possessing ammunition. He was granted bail on 21 December 2007. 5 The matter was listed before the Local Court in February 2008 when the Director of Public Prosecutions sought an adjournment. That adjournment was granted in the expectation that negotiations would take place between the applicant's legal representatives and the Director of Public Prosecutions. Negotiations did take place with the matters being mentioned before the court on a number of occasions. 6 In April 2009 the solicitor for the Director of Public Prosecutions who had been acting in the matter indicated that a trial advocate had been appointed and all negotiations would need to start again. During the course of that discussion the solicitor for the Director of Public Prosecutions apparently said that before negotiations could continue the applicant would have to provide an induced statement. A statement was taken from the applicant by the police during the course of April and May 2009 and was signed on 8 May 2009. In April 2009 the Director of Public Prosecutions advised the applicant's solicitor that 3 further charges were to be laid. 7 The committal hearing was fixed for 11 May 2009 when an application was made to waive the hearing pursuant to s 68 of the Criminal Procedure Act 1986. That order was made and the proceedings were adjourned to the District Court for arraignment on 12 June 2009. 8 By May 2009 Mr Michael O'Brien had been appointed as the prosecutor. Mr Bellanto QC was retained by the applicant and in June 2009 they commenced to negotiate. The matter was listed before the Chief Judge of the District Court on 12 June 2009 and was adjourned for further mention on 24 July 2009. 9 By letter dated 23 June 2009 Ms Evans wrote to Mr O'Brien, in the following terms (AB 283): "We are instructed that our client would be prepared to plead guilty to the following: 1. accessory after the fact to maliciously wound with intent (s 350 of the Crimes Act ); 2. make fake (sic) (false) accusation (s 314 of the Crimes Act ), regarding the events on or around 1 October 1998; and the following be placed on a Form 1: 1. supply prohibited drug not less than commercial quantity (s 25(2) of the Drug, Misuse and Trafficking Act ), in relation to the event which occurred around 10 October 1998; 2. possess defaced firearm (s 66(b) of the Firearms Act ), regarding the event which occurred between 1 July 1998 and 10 October 1998." 10 The letter also indicated that the applicant was prepared to give evidence in accordance with a statement which he had provided and then said: "In relation to the second event evolving (sic) the drugs and the false statement, as you are aware from our client's statement, our client would have a defence of duress and on that basis, we cannot recommend that he plead guilty to the charges associated with that event. In considering the facts regarding your proposal that our client plead to the charge of 'accessory before the fact to shoot with intent to murder', we do not consider that the events pre-dating the actual shooting which involved our client in any way, constitutes acts of an accessory. Our client did not know of the facts and circumstances in relation to the committed offence. Our client had no intention at any time of assisting the commission of the crime, and in fact, he thought his acts would prevent any such crime from occurring. We do not see that there is any cause or link between our client's actions and the commission of the offence. …" 11 Negotiations continued with Mr O'Brien who indicated that he wished to assess the applicant as a witness before he could reach any agreement. On 15 July the necessary meeting occurred when Ms Janelle Gaggin, solicitor, was also present. Thereafter Ms Gaggin indicated to the applicant's solicitor that the matter had been referred to the Office of the Director of Public Prosecutions. 12 Because of the delay an order was made granting the Crown an extension to 4 September 2009 to file an indictment. In a conversation of 2 September 2009 which the applicant's solicitor had with Ms Gaggin the solicitor said that Ms Gaggin said "I have been speaking to the Director's office every 2 days, and I am told it is a complex matter and needs to be considered. However, I am aware that your client is anxious and hopefully we will have a response shortly." 13 Notwithstanding the orders of the court no indictment was filed by 4 September 2009. 14 By letter dated 15 September 2009 Ms Gaggin wrote to Ms Evans and said, inter alia: "… I have been advised that the Deputy Director is considering the matter and is aware of the importance of the defence enquiries. I will advise you as soon as a recommendation is made." 15 On 6 October 2009 Ms Evans made a file note of a conversation she had with Ms Gaggin on that day in which Ms Gaggin is reported to have said: "Her understanding is that our proposal of 23 June 2009, was the proposal that was accepted however she could not confirm this with Michael O'Brien for two weeks as he is on leave. …" 16 By letter dated 21 October 2009 Mr O'Brien wrote to Ms Evans in which he said: "I refer to your email of 23 June 2009, addressed to Michael O'Brien, Crown Prosecutor, attaching letter also addressed to him, of the same date. Your proposal has been considered by the Crown. The Crown will accept a guilty plea from [the applicant] to the following; 1. Accessory after the fact to shoot with intent to murder (s 350 and s 29 Crimes Act 1900); 2. Make false accusations w/i to subject other to investigation (s 314 Crimes Act 1900) regarding the events on or around 1 October 1998; And the following placed on a Form 1 – these charges relate to the events on or around 9 October 1998: 1. Supply prohibited drug not less than the commercial quantity (s 25(2) Drug Misuse & Trafficking Act 1985); 2. Possess defaced firearm (s 66(b) Firearms Act 1996. This offer is on the basis that [the applicant] will give evidence against his co-accused, Christopher Poniris, regarding the three events concerning the victim: that is, the first drug and gun incident on and around 1-9 October 1998, the second drug and gun incident on and around 18 March 1999 and the shooting of [the victim] on 28 November 2002. Could you please confirm that your client accepts the plea offered by the Crown. Your client will then be arraigned and a sentence date sought. I note your client's fears for his safety once his statement is served on the co-accused. The OIC is overseas to the end of October. On his return, this office will consult with him regarding having Mr Poniris' bail revoked." 17 On Ms Evan's copy of the letter she has endorsed the applicant's acceptance of the proposal outlined by Mr O'Brien. Ms Evans confirmed the situation by letter dated 3 November 2009. In that letter she asked when it was proposed that the applicant would be arraigned and said that before the applicant could be sentenced: "… we would need to consider the following: 1. an Agreed Statement of Facts; 2. any indemnities and immunities from the Prosecution, that our client will need to secure, including any evidence to be given at the Trial of either Mr Poniris or Mr Follert, and any evidence that [the applicant] may have given before the NSW Crime Commission." 18 Ms Evans also expressed concern about the applicant's safety having regard to the fact that he was prepared to give evidence against the co-accused. 19 Ms Evans followed with a further letter dated 16 November 2009 seeking a response. Ms Gaggin responded by letter dated 17 November 2009 indicating that a statement of facts had been drafted and a report in relation to a prospective indemnity was being prepared. 20 Ms Gaggin wrote a further letter on 18 December 2009 in response to an email from Ms Evans indicating that a submission in relation to the indemnity had been forwarded to the Director of Public Prosecutions and if the Director agreed would be forwarded to the Attorney-General. Enclosed with that letter was a statement of agreed facts, a draft indictment and a proposed Form 1. 21 The applicant continued to be anxious about progress in the matter and Ms Evans continued to correspond by email and letter. A comprehensive letter setting out the relevant circumstances was forwarded by Ms Evans to Ms Gaggin on 26 February 2010. 22 Shortly thereafter indictments were apparently served on the co-offenders but the applicant's name was not included. Understandably this caused concern to the applicant and the matter was taken up with Ms Gaggin by letter which was faxed to the Director's chambers on 1 March 2010. 23 That letter was met with a response by the Director in a letter dated 3 March 2010 which was in the following terms: "I refer to your facsimile dated 26 February 2010 concerning progress of the above prosecution. I note the concerns that you have expressed, however much of what you relate is in the nature of the normal, often prolonged charge negotiation process that occurs in many criminal maters. I can confirm that, regardless of what may be discussed between Crown and defence representatives, any proposal that involves no further proceedings on any charge, the laying of an ex officio charge or a recommendation to the Attorney General as to whether a grant of immunity should be made, must be referred to me for decision. Sometimes I may agree with a recommended course, sometimes I may disagree. Such matters are never merely 'procedural'. In the present case approval was granted in September 2009 for the Crown Prosecutor to continue charge negotiations with you and your counsel. A final proposal in terms of a specific plea offer and a request for the grant of an indemnity from prosecution for your client in respect of some matters were referred to me one week before Christmas 2009. The matter received immediate attention. Clarification of some issues was sought together with some additional information. Regrettably, there has been a slight delay in that regard but that has now been resolved. The question of an indemnity is one for the Attorney General and when a decision is communicated to me I will let you know. Any concerns that you may have about your client's safety should be taken up with police." 24 By letter of the same date the Director indicated that the request for an indemnity was being considered. 25 The application for an indemnity was rejected by the Attorney-General. Notwithstanding, the applicant decided that he was still prepared to give evidence against the co-accused Mr Christopher Poniris in relation to the three events including the shooting of the victim. Ms Evans wrote on 4 May 2010 saying: "on that basis, can you please confirm that the Crown will be in a position to file an indictment, in terms outlined in our offer dated 21 October 2009, so that [the applicant] can be arraigned on 10 May 2010, when this matter is next before the court." 26 In anticipation of a sentencing hearing Ms Evans enclosed a psychological report in relation to the applicant obtained from Dr Peterson. Dr Peterson had assessed the applicant as suffering from Asperger's Disorder. 27 Mr Bellanto QC subsequently became aware from discussions with Mr O'Brien that the offer made on 21 October 2009 was not to be proceeded with. That caused Ms Evans significant concern and she raised the matter with Ms Gaggin by letter dated 6 May 2010. In that letter she said: "As far as our client is concerned, the DPP is bound by the offer that it made on 21 October 2009, and we do not consider that there is a basis to withdraw the offer, based simply on the fact that a new Crown Prosecutor has taken a different view, or does not necessarily agree with the decision made, as we understand it, by the Director on or about 21 October 2009 to approve the offer that was put by Mr Michael O'Brien in that letter." 28 The Director of Public Prosecutions ultimately responded by letter dated 10 May 2010 in which he said he had reviewed the material and stated: "I consider that there has been no charge negotiation by which either your client is or I am bound to a particular outcome or plea. Considerations of fairness and ethical propriety, similarly do not require the outcome you advocate." 29 In a later letter written on 13 May 2010 explaining his decision the Director said: "… I note that in the course of protracted charge negotiations Mr O'Brien, Crown Prosecutor, made a proposal with which you subsequently indicated agreement but subject to additional conditions. In any event the proposal put in the course of discussions by Mr O'Brien for your consideration had not been approved by me or by one of my Deputy Directors and such approval would have been necessary to give effect to any charge negotiation outcome. The conditions attached to the proposal and counter-proposal ultimately were not met. I have considered the matter and decided that the charges against your client should proceed to trial; however, I note that charge negotiations are continuing with the Crown Prosecutor, Ms Nanette Williams, and it is likely that there may be some further developments in that regard next week." 30 Ms Evans responded by letter to Ms Gaggin of the same date confirming that she had been told by both Mr O'Brien and Ms Gaggin that the Deputy Director, Ms Donna Woodburne SC had considered the matter before Mr O'Brien made the offer of 21 October 2009. Ms Evans expressed concern that the Director's letter was at odds with this position. She asked that the matter be reconsidered and urged that the Director confirm the offer communicated in the letter of 21 October 2009. This did not occur. 31 As a result the applicant was arraigned on a variety of charges extending beyond those referred to in the letter of 21 October giving rise to these proceedings. 32 The applicant brought a motion in the District Court in which he sought an order staying the proceedings and, in the alternative, orders which had the effect of a Crown Prosecutor and instructing officer who were not familiar with the content of the induced statement, the agreed facts or the psychological report being appointed to prosecute the trial. Delivery up of those documents was also sought. 33 Berman DCJ was rightly critical of the manner in which the matter had been administered in the Office of the Director of Public Prosecutions. Apart from the difficultly occasioned to the applicant the effect has been to significantly delay the trial of the co-accused. As I have already indicated one of those person has been remanded without bail for in excess of 3 years. Such a state of affairs should simply never have occurred. 34 During the course of submissions before his Honour there was a discussion about the recent legislative amendments to Division 3 of Part 3 of the Criminal Procedure Act 1986. These amendments followed an enquiry into the criminal trial process in this State in which representatives of the District Court participated. The findings of the Inquiry were embraced by all members of the Committee and resulted in amendments to the legislation. It is plain from his Honour's comments (p 86, 13 September 2010) that he misunderstands the nature and purpose of those amendments. They were enacted to ensure that where necessary criminal trials are effectively managed so as to minimise their duration. The committee appreciated that the listing procedures in the District Court ensure an early hearing date for all trials but the information provided to it left no doubt that some of those trials were unnecessarily lengthy and with effective pre-trial management, which identified the issues to be litigated and the form in which evidence relevant to those issues would be tendered, significant time savings could be achieved. Perhaps his Honour had not had the opportunity for a careful reading of the Inquiry's report. 35 His Honour's judgment (R v M [2010] NSWDC 200 at [30]) reflects a similar misunderstanding. This Court was told that when the trial proceeds it is estimated to take 8 weeks. Although the evidence will comprise significant telephone intercept and listening device material there has not presently been any attempt to determine the most efficient manner in which the trial can be conducted. The issues have not been identified and no attempt has been made to assist the parties to reach agreement about the nature and form of the evidence which must be tendered in relation to those issues. From the information available to this Court it would seem that this is a case of the type which gave rise to the concerns identified by the Inquiry and which led to the legislation. I trust that this case has "slipped through the net" rather than reflecting the approach taken to all trials where telephone intercept and listening device material forms a substantial part of the prosecution evidence. 36 A number of issues were considered by Berman DCJ which were the subject of submission to this Court. The first of those issues was the effect of s 129 of the Criminal Procedure Act 1986. That section provides as follows: "(1) In this section, relevant court , in relation to a matter, means the Supreme Court or the District Court before which the matter has been listed for trial or mention. (2) An indictment is to be presented within 4 weeks after the committal of the accused person for trial, except as provided by this section. (3) The time within which the indictment is to be presented may be extended: (a) by the regulations or (subject to the regulations) the rules of the relevant court, or (b) by order of the relevant court. (4) If an indictment is not presented within the time required by this section, the relevant court may: (a) proceed with the trial if an indictment has been presented, or (b) adjourn the proceedings, or (c) take such other action as it thinks appropriate in the circumstances of the case. (5) The prosecutor has no right to an adjournment merely because an indictment has not been presented. (6) The relevant court must, in exercising any power under this section, have regard to the fact that the Crown does not have a right of appeal if the accused person is acquitted. (7) This section does not affect the powers of the relevant court under section 21" 37 Section 129(2) provides that an indictment is to be presented within 4 weeks after the committal of the accused person for trial. In the present case that did not occur but an order was made extending the time for the presentation for the indictment until 4 September 2009. The order for extension was made pursuant to s 129(3)(b). No doubt because of the negotiations which were taking place which meant that by September the ultimate form of the indictment had not been established, and perhaps the matter was overlooked, a further application for an extension was not made. Accordingly the question which was raised is whether an indictment may now be presented. The applicant submitted that it could not and that accordingly he could not be tried for any offence. This would be a surprising result. 38 Section 129(4) effectively provides that if an indictment has been presented, but it is out of time, the court may nevertheless proceed with the trial. That is the present circumstance and accordingly the court has a discretion to proceed with the trial. 39 Subsection (5) was inserted in order to avoid the possibility of the Crown unilaterally obtaining an adjournment by not presenting an indictment. Quite how this subsection works in practice is difficult to understand. Without the presentation of an indictment there could hardly be a trial. However, it is unnecessary for this Court to consider subsection (5) in these proceedings. 40 As I have indicated I am satisfied that pursuant to s 129(4) the District Court can proceed with the trial although the indictment was not filed as required by the order made pursuant to s 129(3). 41 It was submitted that when determining that the trial could proceed Berman DCJ applied the wrong test. His Honour said in relation to this issue that (at [54]-[56]): "Because of the importance of an accused person who has been committed for trial actually facing trial I am satisfied that I should exercise my powers under s 129(4)(a) or (c) in such a way that sees the Court exercising its jurisdiction to try the accused unless the circumstances are such that the proceedings would be stayed. Similar considerations apply to the question of whether I should exercise my powers under s 129 as apply on the question of whether I would order a stay of the proceedings and one of the most important issues in this regard concerns whether the conduct of the Crown has been such as to prejudice the accused. It matters not, as far as the accused and Crown are concerned, whether the accused's success is achieved by me refusing to make appropriate orders under s 129, or whether I grant a stay. As similar considerations arise no matter which issue is considered, in particular issues relating to public policy which encompass the issue of detriment or prejudice to the accused, I will not, except where necessary make reference to the precise way in which Ms Bashir seeks to achieve particular outcomes for her client. The Crown submission, which I accept, is that questions such as whether Mr O'Brien had authority from the Director of Public Prosecutions or a Deputy to make his offer and the issue as to whether it was unconditionally offered and accepted do not need really to be determined. That is because the accused can point to no relevant detriment such that even if Mr O'Brien had no authority and even if the offer and acceptance were unconditional, the Crown should nevertheless be entitled to proceed to trial against [the applicant] on charges other than those the subject of Mr O'Brien's letter. However as I have heard argument on the matter and as I have reached a firm view in relation to both of those issues I will later indicate my findings." 42 The applicant submitted that because the Crown sought an order pursuant to s 129(4) that the trial proceed it bore the onus of establishing that such an order should be made. It was submitted that Berman DCJ erroneously cast a burden on the applicant when his Honour said: "When this was drawn to Miss Bashir's attention she relied on what she said was the onus on the Crown to demonstrate why an application for exercise of appropriate power under s 129 should be granted. But given that one of the specific matters sought in a notice of motion filed on the accused's behalf was a stay of proceedings, where the onus is clearly on the accused to demonstrate that the court's processes are being misused, questions of who bears the onus do not really assist Miss Bashir." 43 There are some difficulties with his Honour's stated approach to the issue although they may amount to no more than imprecision of expression in an ex tempore judgment. Because s 129(2) provides that an indictment is to be presented within 4 weeks after the committal or as otherwise provided by the section and the Crown had failed to comply with the orders made by the District Court, the applicant was entitled to have the proceedings stayed unless the court exercised its discretion under s 129(4) to allow the trial to proceed. Accordingly the question was whether or not it was in the interests of justice to allow the trial to proceed notwithstanding the failure to file an indictment within the time required. That question had to be answered by considering relevant matters, including the public interest in the applicant facing trial for the matters upon which he had been charged but that was only one of the matters requiring consideration. The interests of the applicant and any prejudice occasioned to him together with considerations arising from any agreement entered into by the Office of the Director are matters which had to be weighed in the balance. The public interest is ensuring appropriate propriety in negotiation between an accused person and the prosecutor is a matter which the court must be alert to protect. 44 Further grounds of appeal allege that Berman DCJ erred in the process of finding relevant facts. In particular it was submitted that he erred in failing to draw the inference that the Crown Prosecutor had acted with the authority of the Director of Public Prosecutions in sending the letter dated 21 October 2009. 45 Although Ms Gaggin gave evidence before Berman DCJ no other officer of the Office of Director of Public Prosecutions, a Deputy Director or the Director gave evidence. It will be obvious that some or all of those persons, but in particular Mr O'Brien, were in a position to assist the Court. It was not suggested that they were not called because they were unavailable. 46 In the course of his reasons his Honour said at ([104]): "I should at this stage say something about the circumstance that a number of people involved in the charge bargaining process, did not give evidence. I have already referred to the fact that some people involved in the charge bargaining process on the prosecution side did not give evidence, in particular Mr O'Brien, but it is worthy of note that Mr Bellanto was, so the evidence shows, clearly involved in the charge bargaining process as well, having conversations with Mr O'Brien as well as correspondence with him. Mr Bellanto did not give evidence either and indeed for the first two days of this hearing he appeared for the accused, his junior Ms Bashir taking over after a clash of dates meant that Mr Bellanto was required to appear in another matter." 47 The applicant is critical of this analysis and in my opinion that criticism is well founded. It is apparent from the correspondence that it was represented to the applicant that the question of the form of his indictment had been referred to a Deputy Director, Ms Woodburne SC being identified. Beyond confirming that this representation had been made I cannot identify anything which Mr Bellanto QC could have added to the available evidence. 48 There are two questions in relation to the letter of 21 October. The first question is whether the Director or a Deputy Director authorised Mr O'Brien to write the letter. The second question is the effect of that letter in the negotiations. 49 In his letter of 10 May 2010 the Director expressed the view that there was no charge negotiation by which he was bound. In his earlier letter of 3 March 2010 the Director recorded that although approval had been given by his office for the prosecutor to continue charge negotiations a final proposal, including a request for an indemnity was not referred to him until the week before Christmas in 2009. Both letters were in evidence before his Honour. If either Mr O'Brien or the Director or his Deputy had given evidence, unless they contradicted the statement in the letters they could not have assisted an understanding of the position. Accordingly, although the applicant submitted otherwise I do not accept that without any of those persons being called the inevitable inference was that the letter of 21 October 2009 was authorised by the Director or his delegate. 50 The second issue relates to the proposed grant of an indemnity from prosecution. It is apparent that a part of the negotiation with Mr O'Brien involved the applicant receiving an indemnity from prosecution for various alleged offences. Any evidence which he is to give at trial may provide a foundation for his own prosecution. The letter of 21 October 2009 makes no reference to indemnities which were ultimately a matter for the Attorney-General. However, the fact that indemnities were of concern to the applicant and were part of the negotiation is plain from the letter from his solicitor of 3 November 2009 in which that issue is raised. No doubt the expectation which the applicant had when receiving the letter of 21 October 2009 was that as part of the "package" indemnities would be granted. It may also be that Mr O'Brien believed that they would be forthcoming although he did not refer to them in his letter. However, he could not grant an indemnity that being a matter for the Attorney-General on the recommendation of the Director. As it happens those indemnities were not granted although the applicant later through his solicitor, indicated that he was nevertheless prepared to give evidence if his offer to plead to limited charges was accepted. That subsequent offer was of course rejected. 51 Berman DCJ found, correctly that Mr O'Brien did not himself have the power to terminate any prosecution. If by his letter of 21 October 2009 he was indicating that a Director or Deputy Director had made such a decision the evidence from the Director's letter is to the contrary. Berman DCJ found that no determination had in fact been made by the Director of Public Prosecutions or anyone else with the relevant authority. This finding was open to his Honour and has not been shown to be in error. 52 It was submitted to Berman DCJ on behalf of the applicant and the submission was repeated in this Court that by reason of the circumstances the applicant would suffer a detriment of such severity that the court should stay the proceedings. Three matters were identified. Firstly, the making of an induced statement, secondly the preparation of a statement of agreed facts intended to be used in the sentence proceedings and thirdly the provision to the Crown of the psychological reports. The latter two matters were also identified as reasons why the Court should order that a prosecutor who had no knowledge of these documents should be appointed to prosecute the trial. 53 In my opinion the provision of the induced statement has not occasioned any relevant prejudice to the applicant. He made that statement at a time when it had been indicated to him that it would be necessary for him to make such a statement before he could enter negotiations in relation to the charges to be included in the indictment. It was never suggested to him that the making of the statement would necessarily result in any reduction of the charges. It remains the fact that the statement cannot be used in relation to any prosecution of him. 54 In relation to the statement of agreed facts and the psychological reports I have difficulty in identifying any prejudice which would be occasioned to the applicant if their contents were known to the ultimate prosecutor. However, any prospective problem in relation to them has been removed by the Crown undertaking that the prosecutor and instructing solicitor appointed to prosecute the trial will have no knowledge of their content. 55 In these circumstances apart from the applicant's disappointment that the negotiations have not resulted in a lessening of the charges I can identify no relevant prejudice to him. 56 Further submissions were made by the applicant which do not in my opinion bear upon the outcome of this appeal. The applicant criticised his Honour for finding that the applicant "had not fulfilled, even in part, his side of the bargain." It was submitted that there was nothing more which the applicant could have done and the only reason he had not as yet pleaded guilty was because of the conduct of the prosecutor. This submission is correct but in my view of no consequence. If I had been satisfied that there was an agreement which was binding on the Crown I may have concluded that the Court should make orders which precluded the Crown from departing from that agreement. It may not have been relevant that at the point at which the issue was being considered the applicant had not actually been arraigned and had not accordingly pleaded guilty. It is apparent that the applicant in this case had taken whatever steps he could and offered to take whatever steps were necessary to make good his offer. 57 It was further submitted that Berman DCJ had erred by focusing on the question of who had the power to determine that the proceedings should be discontinued when he should have been concerned with questions of the court exercising its power to prevent injustice, abuse of process and conduct bringing the judicial system into disrepute. I do not accept this submission. In the course of analysing the relevant circumstances his Honour was required to consider whether or not the power of the Director to discontinue proceedings had been lawfully exercised although of course ultimately considering whether the proceedings were an abuse of process. It is apparent from his Honour's reasons for judgment, in particular [120] that his Honour did consider whether there would be an abuse of process if the prosecution was allowed to proceed. This was, of course, the ultimate issue and in my opinion it has not been demonstrated that his Honour erred by resolving that issue in favour of the Crown. 58 It was for these reasons that I joined in the orders of the Court which granted leave to appeal but dismissed that appeal. 59 HOEBEN J: I agree with McClellan CJ at CL. 60 JOHNSON J: I agree with McClellan CJ at CL. **********