R v Burgoyne[2008] QDCPR 1

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   The defendant seeks an order for the permanent stay of an indictment on the ground that to allow the Crown to proceed would amount to an abuse of process.

Background

2. [2]
   The indictment was presented on 25 August 2008. The indictment charges the defendant with grievous bodily harm, alternatively assault occasioning bodily harm and a count of common assault. All offences are alleged to have occurred on the 20th of October 2004 at Bundaberg. The complainant in each instance is the former partner of the defendant. It is alleged that the complainant sustained a broken hip. The defendant was interviewed and charged on 22 October 2004.

3. [3]
   The matter proceeded by way of a full hand up committal hearing without cross-examination of any witnesses on 28 June 2005. The defendant was committed for trial. The matter proceeded to trial before His Honour Judge Dearden in the District Court at Bundaberg on 25 October 2006. The charge against the defendant was a single count of unlawfully doing grievous bodily harm to the complainant alleged to have occurred at Burnett Heads on 20 October 2004. There was no alternative charge of the assault occasioning bodily harm nor was there a charge of common assault.

4. [4]
   The Crown Prosecutor's opening indicated that the Crown relied on the first part of the definition of grievous bodily harm in section 1(c) of the Criminal Code, namely that the injury was said to be a bodily injury of such a nature that if left untreated would endanger or be likely to endanger life.

5. [5]
   The complainant's original treating doctor, Doctor Robinson, was not available at the trial. The Crown therefore called a substitute doctor, Doctor Richard Khor. In evidence-in-chief Dr Khor indicated that the injury sustained by the complainant fell within the legal definition of grievous bodily harm. The evidence addressed the issue of the likelihood of the injury resulting in the death of the complainant. Dr Khor said that "if you left this injury untreated it could be - it could be directly or indirectly cause death.". However, under cross-examination it became apparent that Dr Khor did not consider that he was suitably qualified to comment on the issue. His evidence in cross-examination included the following:

● “I'm an emergency department physician, for complex matters or orthopaedics you may need to call an orthopaedic witness. So the main mechanism in the emergency setting that we worry about is the - if you left a fracture like that untreated it could sever an artery that lies in the area and then the bleeding would cause death;"

● That it was impossible to state the possibility or probability of such an outcome - "I think that you'd need an orthopaedic surgeon to provide better facts on that matter";

● When it was suggested by defence counsel that he was not really qualified to comment on the likelihood of the injury causing death, Dr Khor agreed that he was not;

● When it was suggested by defence counsel that he did not know whether this was a more or less serious example of this type of injury, Dr Khor agreed, saying "Not having seen the patient, I wouldn’t be able to make a decision."

6. [6]
   At the conclusion of Dr Khor's evidence, defence counsel, Mr Harrison, made an application in the absence of the jury for a directed verdict of not guilty on the ground that based on the medical evidence, the Crown could not establish that the injuries constituted grievous bodily harm.

7. [7]
   It was submitted that the appropriate course was a directed verdict of acquittal rather than the discharge of the jury.

8. [8]
   In the course of discussions, the Crown prosecutor sought an adjournment for the purpose of obtaining instructions. Prior to the adjournment the learned trial judge said:

"Yes. It would seem to me - and I'm happy to make a ruling on it, if you want to, but it would seem to me that Mr Harrison's submission is, on the state of the evidence, inevitable."

(transcript pages 35 - 36)

9. [9]
   After the adjournment, the Crown prosecutor indicated that the Crown would enter a nolle prosequi and the indictment was returned to him for that purpose.

10. [10]
    On 14 February 2007, the defendant was served with a notice to appear in relation to a charge of assault occasioning bodily harm in respect of the same incident. Prior to the committal hearing, the charge was increased to grievous bodily harm.

11. [11]
    The committal hearing was held on 7 February 2008. The complainant was required to give full evidence. The original treating doctor, Dr Robinson, remained unavailable, and Dr Chandry, an orthopaedic surgeon was called to give evidence. However, it now appears that Dr Robinson may be available to be called at any further trial.

12. [12]
    An indictment was presented against the defendant in this Court on 27 June 2008. That indictment charged the defendant with one count of grievous bodily harm and one count of common assault.

13. [13]
    On 25 August 2008 the Crown entered a nolle prosequi in respect of that indictment and presented a further indictment charging the defendant with the offences that I have mentioned, namely; count 1 grievous bodily harm, alternatively count 2 assault occasioning bodily harm, and count 3 common assault.

The nature and effect of a nolle prosequi

14. [14]
    The effect of a nolle prosequi was considered by Carter J in Re Seidler [1986] 1 Qd R 486 at 488-489. The entry of a nolle prosequi does not constitute an acquittal of the charge. Nor does it prevent the presentation of a further indictment: R v Doyle [1988] 2 Qd R 434; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450 at 458.

Abuse of Process

15. [15]
    The inherent power of the Court to order the stay of an indictment to prevent an injustice may only be exercised in exceptional or extreme cases: Jago v District Court of New South Wales (1989) 168 CLR 23 at 31, 34 per Mason CJ.

16. [16]
    In Williams v Spautz (1992) 174 CLR 509 Mason CJ Dawson, Toohey and McHugh JJ said:

"It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution." (at 519)

17. [17]
    In Jago Deane J said:

"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed." (at 58)

18. [18]
    The determination of whether the indictment should be permanently stayed requires a balancing of "fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice": Walton v Gardiner (1993) 177 CLR 378 at 396.

19. [19]
    The stay of criminal proceedings is not confined to prosecutions that have been brought for an improper purpose. In Ridgeway v The Queen (1995) 184 CLR 19 Toohey J said:

"A stay of criminal proceedings gives effect to the view that it 'would offend the courts' sense of justice' if the accused had to stand trial in those circumstances. In the more precise terms articulated by Lord Diplock in Hunter v Chief Constable:

'It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.'"(at 60)

20. [20]
    Mr Brown for the defendant placed considerable reliance on the judgment of the Court of Criminal Appeal in R v Jell ex parte Attorney-General [1991] 1 Qd R 48. In that case the Court accepted that the trial judge had the power to refuse to return to return the indictment to the Crown Prosecutor following a ruling that the Crown could not establish an essential element of the charges. As a consequence of the refusal to return the indictment the trial judge directed the jury to return verdicts of not guilty. Thomas J (as his Honour then was) said:

"Jago was a case involving conflict between the desire of the prosecuting authority to proceed, and the power of the court to direct that it proceed no further if the court took the view that its process would be thereby abused or that the accused could not have a fair trial. The present case is concerned with an apparent desire by the prosecuting authority to end a particular prosecution and with the court's perception that it should not be permitted to do so, and that the matter should be terminated in a more conclusive way. Although these situations at first glance seem very dissimilar, upon analysis the conflict is essentially the same.

It is the positive consequence of entering a nolle prosequi in the given circumstances which is the basis of a possible undue oppression of the accused person. The negative aspect is the halting of a particular prosecution. The present contest arises not from a desire by the prosecutor to exercise the power to halt a prosecution, but rather from a desire to use at will a procedural device to keep alive the right to prosecute the person concerned. From the accused's point of view it may be a very oppressive privilege that a particular prosecution be halted. We are not concerned in the present case with the conventional exercise of the Attorney-General's power to relieve an accused person of a burdensome prosecution. We are concerned with the potential exercise of the power for the purpose of preserving another opportunity to convict the person by presenting another case against him on another occasion.

Examples may be postulated. The right may be asserted when a case has gone badly for the prosecution and it is conceivable that it might turn out better on a re-run; or when the prosecutor has taken risk by proceeding without a witness who was on holidays, and whose evidence it was hoped would be covered by some other witness who did not come up to proof, so that the prosecutor feels the accused will unfairly escape conviction; or it may occur when the prosecution has chosen to formulate a particular charge, which, after hearing the defence submissions it wishes it had not done; or where the prosecution has legally miscued and the limited powers of amendment make conviction on that trial impossible; it may be too late to amend the indictment and the prosecutor may decide that the only way in which the accused can be convicted will be to start again with another indictment framing a different charge, even though it arises out of the same facts. I do not imply that these are common occurrences, but they need to be identified as some of the less meritorious situations where a prosecutor may make a decision to enter a nolle prosequi, and when the court before which the accused person is being tried may have an entirely different perception." (at 62)

21. [21]
    In R v Mellifont (1992) 64 A Crim R 75 Derrington J ordered the permanent stay of an indictment for perjury. The first trial of the defendant concluded following favourable rulings made by the trial judge that were subsequently reversed. The defendant's second trial concluded when the Crown entered a nolle prosequi following a ruling of the trial judge. The Court of Criminal Appeal held that the trial judge applied incorrect principles. The Crown presented a further indictment. Derrington J regarded the stage the trial had reached as an important factor. His Honour said:

"He (the defendant) has undertaken virtually a full trial up to the point of an essential decision and has not been convicted. Because the matter had advanced so far and had resulted in a determination of such significance he must be regarded as having already been seriously placed in jeopardy." (at 80)

His Honour continued:

"In the assessment of the factor of unfairness to the applicant, the nature and extent of the original jeopardy must be relevant. The arguments presented here suggested that there is a fixed level of jeopardy which must be attained before it can be regarded as a factor at all, but this may not necessarily be so because the varying degree of jeopardy may produce differing degrees of unfairness to an accused, depending on all the circumstances, and it is the latter which then must go into the balance against competing factors. There is no fixed formula as to the stage which the original process must have reached. 'The touchstone in every case is fairness.': Jago per Mason CJ at 33." (at 80 - 81)

Conclusion

22. [22]
    The unavailability of Dr Robinson or another appropriately qualified medical practitioner at the defendant's trial on 25 October 2006 could have formed the basis for an application by the Crown for an adjournment of the trial. When the inadequacy in the Crown's proof of the element of grievous bodily harm became apparent the Crown could have sought a further medical opinion or even at that stage sought an adjournment of the trial.

23. [23]
    The Crown elected to proceed to trial in reliance upon the evidence of Dr Khor to prove an essential element of the charge. I accept that the defendant's trial had not progressed to the same stage as Mellifont. The Crown Prosecutor in the present case indicated that there were four potential Crown witnesses. (transcript page 2.) However it appears that it was envisaged that only two witnesses would actually be called, namely the complainant and Dr Khor. (transcript page 12.) The complainant commenced her evidence-in-chief and then Dr Khor was interposed. It was after Dr Khor's evidence and at the conclusion of day 1 of the trial on 25 October 2006 that the Crown entered a nolle prosequi. I therefore do not regard the different stage of the trial in Mellifont as a significant distinguishing feature.

24. [24]
    The Crown now wish to rely upon the second part of the definition of grievous bodily harm in section 1(c) of the Criminal Code namely "any bodily injury of such a nature that, if left untreated, would ... cause or be likely to cause permanent injury to health". The Crown evidently wish to cover the contingency that the medical evidence may be insufficient by adding the alternative charge in count 2 of assault occasioning bodily harm.

25. [25]
    In addition, as I have mentioned the Crown have added count 3, a charge of common assault. Ms Wooldridge candidly accepted that there was evidence in the possession of the prosecution at the time of the earlier trial that would have sustained that additional charge. Ms Wooldridge accepted that it was open to order a permanent stay of the alternative charge of assault occasioning bodily harm and the further charge of common assault if I reached the conclusion that those further charges caused prejudice to the defendant.

26. [26]
    Mr Brown for the defendant did not submit that the defendant would suffer any particular prejudice by the continuation of the present charges. He did not suggest that any potential defence witness was unavailable.

27. [27]
    The party seeking a stay bears the onus of adducing sufficient evidence to enliven the jurisdiction of the court: R v. His Honour Judge Kimmins and Hicks ex parte Attorney-General, Appeal number 103 of 1995, judgment delivered 21 June 1996 at page 6. In the R v His Honour Judge C F McLoughlin and Cooney ex parte Director of Public Prosecutions [1988] 1 Qd R 464 the Full Court held that the entry of a nolle prosequi to circumvent the unavailability of a witness did not give rise to an abuse of process.

28. [28]
    In Barac v. DPP, Barac v. Stirling [2007] QCA 112, the institution of a charge of trafficking in a dangerous drug after an agreement to discontinue that charge was held not to amount to an abuse of process.

29. [29]
    The variety of factors that arise for consideration make a comparison with other cases of limited assistance. However, a number of decisions illustrate that fairness and prejudice to the defendant are factors that may prevail over the legitimate public interest in the prosecution of offenders: Williamson v Trainor [1992] 2 Qd R 572, R v Lorkin (1995) 15 WAR 499, DPP v A (a child) (2001) 23 WAR 331.

30. [30]
    I have reached the conclusion that the continuation of the present indictment would be unfair to the defendant. The Crown should not be afforded an opportunity to present a modified case against the defendant broadening the basis of the offence of grievous bodily harm by reliance on further medical evidence. The Crown took a risk by conducting the trial in the absence of Dr Robinson or a suitably qualified medical practitioner.

31. [31]
    I have considered the legitimate public interest in the prosecution of serious offences but I have concluded that that factor is outweighed by fairness to the defendant.

32. [32]
    The requirement to maintain public confidence in the administration of justice is in my view preserved by insistence that in appropriate cases individuals are not subjected to successive prosecutions in respect of the same subject matter: Jago per Deane J at 58. I have concluded that to permit the prosecution to proceed would offend notions of justice: Ridgeway v. The Queen at 60.

Order

33. [33]
    I order that the indictment presented against the defendant on 25 August 2008 be permanently stayed.