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Wednesday, 17 November 2010

Disclosure, adjournments and guilt — Part 1

Earlier this year I discussed Police v Beard [2010] SASC 49, an appeal against a magistrate summarily dismissing a charge because the prosecution hadn't complied with certain pre-hearing obligations.

The Court there listed six points to guide summary case management.

[6] The following propositions emerge from these cases.
  1. The procedure for hearing and determining a Magistrates Court matter in which the defendant pleads guilty or not guilty is set out in ss 64, 67, 68 and 69 of the Summary Procedure Act 1921 (SA).
  2. These provisions require that the final disposal of the matter must take place at a properly convened hearing with a Magistrate sitting in open court.
  3. Rule 8 of the Magistrates Court Rules 1992 (SA) provides for a system of case-flow management in the Magistrates Court and as part of that system rule 26 provides for the holding of pre-trial conferences. The purpose of such conferences is procedural and is aimed at assisting the processes of case-flow management.
  4. Although a pre-trial conference may be converted in to a hearing in open court before the Magistrate, it must be made clear that this procedure is being adopted and that the procedural requirements of the taking of a plea and the subsequent conduct of a trial or sentencing hearing are observed.
  5. The Magistrate cannot summarily dismiss a matter at a pre-trial conference nor can the matter be dismissed in the absence of the procedural requirements to which reference has been made.
  6. The case-flow management system provided for in the rules must be read subject to the statutory requirements. In an appropriate case an application may be made for a permanent stay on the ground of an abuse of the process of the Court. This procedure is available in a wide variety of circumstances which include a situation where the prosecutor has misused the rules of procedure. In a less serious case it may be appropriate for the Court to make costs orders against the prosecution.
Police v Beard cited several authorities which now seem pretty helpful when considering our own pre-hearing processes under Chapter 3 of the Criminal Procedure Act. And of course, we now have Charter s 25 (rights in criminal trials) which provides additional protections for the accused. In particular, s 25(2)(c) provides for timely hearings, and 25(2)(b) provides for adequate time and facilities, which could include disclosable information in the ken of the prosecution.

In Police v Childs (2000) 76 SASR 425 the defendant was charged with two counts of damaging property. The charges were adjourned several times to a pre-trial conference — similar it seems to a summary case conference here. At that conference, the accused elected to plead guilty through his counsel to the first charge, and the prosecutor applied for the second charge to be stood down pending possible resolution. The magistrate refused, and dismissed the charge.

The Supreme Court held there the magistrate had no power to dismiss a charge before a plea was taken because the relevant SA legislation required a plea first before a magistrate could then consider — and hence dismiss — a charge. Here, Criminal Procedure Act 2009 ss 27 and 28 provide that a charge must be heard and determined in accordance with Chapter 3, similar in effect to those SA provisions.

In Police v Slater (2003) 86 SASR 189 the accused was charged with disorderly behaviour, using indecent language and three counts of assaulting police. At a subsequent pre-trial hearing counsel for the defendant applied for dismissal of the assault charges, partly because she claimed the police hadn't complied with disclosure obligations as directed. The prosecutor argued otherwise, and submitted in any event the appropriate remedy was an adjournment with costs.

The magistrate dismissed the three assault charges, and fined the defendant for the other two offences. No plea was entered to the assault charges.

The Supreme Court allowed the prosecution appeal, applying Police v Childs, and also adding:
[29] ...it was, in my view, an incorrect and erroneous exercise of the discretion to dismiss the assault counts on the complaints in so in a peremptory fashion, simply because the prosecution had failed fully to comply with earlier orders for the production of certain documents.

[30] The magistrate should have afforded an opportunity for the further material which the defence required to be provided. He could have ordered that the matters go to trial at that stage, with supplementary orders designed to ensure that complete discovery, as requested by the defence, was made by the prosecution a reasonable time ahead of the hearing.

[31] Attempts to convert case flow management procedures into overly rigid procedural orders which put a prosecution out of court in such a peremptory fashion should not be encouraged. There is a public interest in the maintenance of prosecutions. There is a public interest, if police officers are alleged to have been assaulted, in having the charges dealt with and ventilated properly. That interest is not well served by such a heavy-handed application of case flow management procedures.

In Police v Long & Long [2004] SASC 381, the defendant brothers were charged with assaults. The case had many directions hearings and pre-trial conferences, but when the scheduled three-day hearing started (but before any pleas were taken), the prosecutor applied for an adjournment because certain forensic testing was not completed. The magistrate stood the case down for a short time to consider that application before returning and suddenly announcing the charges would be dismissed, without hearing from the parties.

That appeal was allowed, again because no plea was entered so the magistrate had no jurisdiction to determine the charge. The Supreme Court opined that the magistrate would have been entitled to refuse the adjournment and force the prosecution on.

And in Police v Turbitt (2005) 92 SASR 480 a magistrate dismissed charges after the prosecution failed to provide material as and when ordered. The Supreme Court considered that amounted to much the same thing as a permanent stay — I'm not certain: is it the same, even if it has much the same effect? — and the circumstances fell short of those required for a permanent stay, given there were still 3 months until the hearing. The Court also considered the prosecution was denied procedural fairness by the magistrate's refusal to hear any explanation for the apparent non-compliance.

At [52], the Supreme Court referred to Queensland v JLH (1997) 189 CLR 146, and it's oft-quoted observation at 154 that ‘Case management is not an end in itself,’ and then went on to observe:
[54] The proper role of case flow management principles is to ensure the prompt and efficient disposal of court business. The application of such principles is always subject to the ultimate objective of the court, the attainment of justice. Rules of court in any jurisdiction exist to facilitate the attainment of justice. It is therefore incongruent to apply them in such a way as to obstruct that goal. Justice requires that an accused be tried according to law; not according to case management principles. In the circumstances, the order of dismissal was entirely inappropriate.

Of course, no principle of case management can compel the accused to disclose their case and thereby abrogate their right to silence: R v Ling (1996) 90 A Crim R 376; [1996] SASC 5856.

Following on from this, if an accused person does enter a guilty plea, that plea is an admission of every element of the offence.
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty: Maxwell v The Queen (1996) 184 CLR 501 at at 510 - 11.

One consequence of this principle is that if a person pleads guilty to an offence when either the evidence doesn't support the allegation or there is actually no such offence known to the law, the accused should be permitted to change their plea lest a miscarriage of justice occurs. (See changes of pleas here and here.)

The appropriate course if the court considers the accused should plead not guilty (and the accused acts on that suggestion), or they refuse to plead, is adjourn the charges for determination: DPP v Yeo (2008) 188 A Crim R 82. In Yeo, the NSW Supreme Court considered it an error of law when the magistrate refused to accept a guilty plea and summarily dismissed the charge because she considered the summary of the offence didn't make out the offence. The Supreme Court held that the appropriate course should have been to adjourn the charge for a hearing on its merits.

One unanswered question from all of this is what remedy does the Court have if the prosecution or accused don't or won't comply with their disclosure obligations? (The accused has only two: alibi and notice of expert evidence.) In the first instance, an accused person may seek an order compelling disclosure, under s 46 of the Criminal Procedure Act.

But what then? Adjournments with costs, initially.

And then? In Foskett v Burgess (1998) 102 A Crim R 448 the Victorian Supreme Court suggested estoppel might operate at least when a party failed to comply with pre-hearing obligations — in that, case, notice by the accused of proposed expert evidence. But later in DPP v Sarossi (2000) 110 A Crim R 376 it doubted if estoppel applied to the criminal law. I guess there comes a stage where, if the accused has satisfied the Court material ought be disclosed, a failure or refusal to provide that will provide grounds for a stay (which Sarosi noted is effectively the same as estoppel) until the prosecution complies with the order.

It seems then that the new procedures oblige parties to follow the courts timetable, but the accused can't waive their right to silence, and the courts shouldn't refuse to exercise jurisdiction — which is what a stay or dismissal amounts to: Police v Turbitt at [61] — if the prosecution won't comply with its obligations.

Perhaps the simplest remedy might simply be adjournments to a date to be fixed, with an order that the charges not be re-listed until the prosecution complies with any disclosure order?

In Part 2, I’ll discuss the Criminal Procedure Act’s disclosure provisions in more detail.

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