EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONSPolice v K
Part 2Conclusions
What occurred in this case, after the defendant complied with his rule 26 obligations, amounted to nothing less than a complete readjudication of the file, to use the terminology of the summary courts, or, putting another way, the decision as to whether to institute charges and what charges to institute was made afresh.
In this case, there was an adjudication in or about May 1995. A charge was laid. There were two options: s.47e or s.47b. The decision was made to proceed with s.47e.
At any time before the Rule 26 order was made, the prosecution were entitled to change that decision, laying s47b charges and withdrawing the s.47e charges.
It is moot as to whether the prosecution could do this after the Rule 26 orders were made.
But in my view, once the defendant complied with the rule 26 obligation, the prosecution is bound by the original decisions with respect to the institution of charges. The prosecution can only review its conduct of the charges.
At all material times on and after April 12, 1995, the prosecution either knew or ought to have known that the defendant had exercised his statutory right to have a blood sample taken for the purpose of forensic analysis.
The defendant revealed - by his solicitor and, at the latest, by August 8,1995 - that the charge was contested and that medical evidence was being sought, to corroborate the defendant's evidence.
On August 8 1995, Ms. H S.M. made a Rule 26 order, requiring the parties to make mutual disclosure.
The defendant's solicitor complied with the obligations the Rule 26 order imposed on the defendant and his legal advisers. She sent a letter to the prosecution unit and a copy of the medical report to the prosecution unit shortly after she received the medical report.
Sergeant W received the file because he was the negotiations sergeant deputised to handle all disclosures made and discussions held pursuant to Rule 26.
Sergeant W read the file, and saw that there had been an blood alcohol analysis. He took steps to obtain the results of the analysis. He also sought instructions and/or directions, from a superior officer.
At this point, if the witness statements had been obtained and provided in accordance with Carter v Hayes, and the s.47e charge set for trial, the conduct of the prosecution would have been less than ideal, but not oppressive or improper in any way. It was by no means certain that a court would accept the report, or accept that the condition described in it amounted to a defence to a s.47e charge.
After the defendant revealed the information which he could not have been compelled to make but for the Rule 26 order, there was not a review but a complete re-adjudication of the matter, to the point where an entirely different charge was substituted.
The prosecutors concerned knew of the decision in Marshall v Twiggs. They appear to have believed that this case meant that they could proceed with either a s.47e charge or a s.47b charge but they could not set both charges for trial. They elected to substitute one charge for another and to withdraw the original charge.
In effect, there was a fresh investigation conducted into the possible commission of a s.47b offence, almost six months after the commission of the alleged offence, some five months after a complaint alleging a s.47e offence was laid, some six weeks after a Rule 26 order was made - but not complied with by the prosecution - and within a day of the defendant's legal advisers providing detailed information about the defence, in the form of an expert report, which the defence could not have been compelled to produce but for the fact they were officers of the court and the court had made a Rule 26 order.
As a result of the fresh investigation, a charge was laid alleging a s.47b offence which ran beside the s.47e complaint until the s.47e complaint was withdrawn some six weeks later, without there ever being compliance by the prosecution with its Carter v Hayes Rule 26 obligations to disclose the case against the defendant on the s.47e charge.
Once a Rule 26 order was made, it placed the defendant under pressure to produce the otherwise privileged material to the prosecution within the period of the order, and this must be been a consideration which influenced the defendant and his legal advisers in relation to decisions as to the steps they took.
It was a court order which placed this pressure on the defendant who complied with the order. It was a court order which the prosecution ignored.
In my view, the course the prosecution took was a course which made improper use of the situation created, if not when Ms. H S.M. made the Rule 26 order on August 8, then certainly after the defence complied with the Rule 26 order. The prosecution had not and did not comply with the Rule 26 order. Instead, the prosecution laid a fresh charge after an investigation precipitated by the defendant's compliance with the court order.
I accept that the prosecutors who pursued the s.47b investigation and laid the charge had the best, not the worst of motives: they were doing their best to retrieve a situation which, as they saw it, ought never to have arisen because these matters should have been followed up at the adjudication stage.
They are perfectly correct: it should have been done at adjudication stage.
It is not difficult to see why the prosecutors were anxious: here was a man with a high blood alcohol reading, who had put two people in hospital, who might be able to successfully defend himself on a section 47e charge when the blood sample revealed that the minimum penalties for s.47e and s.47b would be the same.
I have no doubt the prosecutors acted with the best of motives, but abuse of power can result from the best of motives as well as from the worst of motives.
No doubt the doctors who went to the High Court in Walton, who, it was alleged had abused their powers as psychiatrists, were inspired by a desire to help, not harm, the Chelmsford patients who died of the treatment these doctors ordered.
The s.47e complaint ought never have been prepared and laid before the result of the blood alcohol analysis was known, as it might have established that the defendant had a complete defence to the s.47e charge. This should have been ascertained before the matter was initially adjudicated and a complaint prepared and forwarded for a busy suburban prosecutor to lay in a busy suburban court.
While Senior Sergeant A and Sergeant W cannot be criticised for trying to ensure that an offender was brought to justice, if indeed the defendant was an offender, by the time the matter came to their attention, it was too late for them to "save the day".
If the statutory appeal period had expired, the prosecution would not have been able to lay a fresh charge. In my view, equally, the prosecution could not lay a different charge once Rule 26 had been activated and the defendant had complied with it but the prosecution had not. The nature of the defence had been disclosed at the beginning of August, but what was disclosed in September was the content of a witness statement.
The prosecution could have sought an opinion as to whether what the witness would depose to was in fact a defence to the charge laid against the defendant. They could have looked at ways of rebutting thatevidence by calling other witnesses. Had they been doing that, they would have been engaged in legitimate review of the conduct of the prosecution.
Instead, what the prosecution did was substitute a new charge which was always open to them to lay from the outset, and seek out information always available to them from the outset in order to particularise the new charge. The medical witness statement would provide no comfort to the defendant if he defended the new charge. Later the prosecution withdrew the old charge.
In my view, a "full scale reappraisal" like this cannot be held after the court has required a person charged with an offence to change his position with respect to the party prosecuting him. If it is held, as it was in this case, it may amount to an abuse of process, and in this case it did. That being the case there arises a discretion as to whether to grant a remedy.
While the statutory time limit had not expired when the s.47b complaint was laid, it was already too late to investigate the possibility of laying a s.47b charge, to re-adjudicate the matter, and to lay a s.47b charge. By the time this occurred, the defendant had been directed to make disclosure, by court order, and the defendant had complied with the court order. It was the defendant's disclosure which precipitated the re-adjudication.
It appears to me that if this complaint alleging the commission of a s.47b offence is permitted to continue any further, this would be oppressive and I find it difficult to see how a fair trial could be held. There is no discretion to exclude evidence or direction to the fact finder which can be used to cure the oppression.
In this case, the court's processes have not been "used fairly by State and citizen alike", to paraphrase Mr. Justice Richardson, and the conduct by the prosecution has been "other than in accord with the procedural directions given by the court or the undertakings and assurances given to the court", to paraphrase Chief Justice King.
There is good reason to consider that what has occurred allows "confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice," to use the words of Mr. Justice Richardson again.
The defendant has not had "the basis upon which his trial was to take place adhered to" to use the words of Chief Justice King, nor has there been maintenance of what the Chief Justice called "the integrity of the case management system and all that it implies for the efficient and just disposal of criminal business".
If charges laid in these circumstances are permitted to proceed to trial there is a very real risk that the magistrates courts will be seen as doing that which they do not allow police to do. Further, magistrates are triers of fact and law at trial, and abuse of Rule 26 orders places in jeopardy public confidence that decisions will be made impartially, because magistrates make Rule 26 orders. Magistrates cannot compel disclosure, permit the information disclosed to be improperly used, and expect to be seen as fair and impartial when they hear trials.
In my view this is an abuse of process which threatens to bring not only the courts which made the Rule 26 order and the Rule 26 extension of time for compliance order into disrepute but also other courts as well.
Remedy
I have given serious consideration to the question of the appropriate remedy.
There is no doubt in my mind that this abuse of process, while the prosecutors acted with the best of motives, is such as to endanger public confidence in the administration of justice to such a degree that a remedyought to be granted.Mr. Justice Prior has confirmed that this court has available the remedy of stay of proceedings or dismissal of the charge.
A stay of proceedings is certainly an appropriate remedy in the courts where factual decisions are made by juries.
In my view, there is little to be gained by making a stay in a magistrates court especially in circumstances like these. It is preferable to dismiss charges, a procedure which reflects the summary nature of the court.
This has the added advantage of giving the parties certainty with respect to the appropriate course for seeking judicial review.
I dismiss the charges.
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