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District Court 16 September 2010

R v M

[2010] NSWDC 200

Public order & justice offences
CRIMINAL LAW JUDGMENT NOTICES OF MOTION CHARGE BARGAINING LACK OF PRECISION INDUCED STATEMENT

Citation: R v M [2010] NSWDC 200
Court: District Court of New South Wales
Date: 16 September 2010
Judge(s): Berman SC DCJ

Background

The accused, referred to as M, was charged in July 2007 with a serious array of offences including soliciting murder, drug supply, firearms offences, and perverting the course of justice. Over the following two years, his solicitor engaged in protracted charge bargaining negotiations with various solicitors from the Office of the Director of Public Prosecutions (DPP), with the accused offering to plead guilty and give evidence against co-accused in exchange for a more favourable charge outcome.

In May 2009, the accused provided a formal induced statement. An induced statement is one taken on the promise that its contents will not be used against the maker in criminal proceedings, except to establish falsity. The accused then waived his committal and was committed for trial on 14 counts. Despite ongoing negotiations, no firm agreement on reduced charges was ever finalised, and the indictment that eventually came before the District Court did not reflect the terms the accused believed had been agreed.

The accused filed Notices of Motion seeking relief relating to the conduct of the trial, including a stay of proceedings. The Crown simultaneously sought orders under section 129 of the Criminal Procedure Act to proceed on the indictment as filed. The applications were heard together over four days, with urgency because a co-accused had been in custody on bail refused and the trial was due to commence on 5 October 2010.

  • Whether the charge bargaining process gave rise to enforceable commitments that bound the Crown to specific, reduced charges
  • Whether communications described as "off the record" or "unofficial" between prosecution and defence lawyers were appropriate or legally significant
  • Whether the induced statement had been obtained in a manner that affected the fairness of the proceedings
  • Whether the indictment filed out of time should be accepted by the Court under section 129 of the Criminal Procedure Act
  • Whether proceedings should be stayed on abuse of process grounds
  • Whether the Crown Prosecutor should be disqualified from appearing because of possession of allegedly "confidential" material, including the induced statement, agreed facts, and psychological reports relating to the accused

Decision

Berman SC DCJ described the history of the matter as a "rather sorry history" demonstrating what can go wrong in charge bargaining, particularly where lawyers on both sides had acted with a lack of precision. Communications characterised as "off the record" or "unofficial" were identified as inappropriate given that the liberty of a person was at stake. However, those deficiencies did not, of themselves, produce the legal remedies the accused sought.

On the question of whether any binding agreement had been reached on charges, the Court found that the imprecision of the negotiations meant no enforceable charge bargain had crystallised. The accused's reasonable expectations, while understandable given the course of communications, did not translate into a legal entitlement to have the prosecution confined to the specific charges he had hoped for. The Court directed that the trial proceed on the indictment as filed under section 129 of the Criminal Procedure Act.

The stay application on abuse of process grounds was rejected. The Court applied the well-established principle, drawn from authorities including Jago v District Court (NSW) (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378, that a stay is a remedy of last resort. The circumstances here did not reach the threshold required.

On the disqualification question, the Court held that the material in the Crown Prosecutor's possession, including the induced statement, agreed facts, and psychological reports, did not constitute genuinely "confidential" information in the relevant legal sense. The accused had voluntarily provided the induced statement in pursuit of a favourable deal. The psychological reports added little beyond a diagnosis of Asperger's Syndrome, which the Court found was not a significant factor. Applying a test analogous to judicial or juror bias (derived from R v MG (2007) 69 NSWLR 20), the Court concluded that a reasonable, informed lay observer would have no concern about the same prosecutor appearing for the Crown at trial.

Orders Made

  • The trial of M is to proceed on the charges in the indictment filed by the Crown with the Registry (pursuant to section 129, Criminal Procedure Act).
  • The Notices of Motion are dismissed, except to the extent of any in camera application.
  • The accused's response under section 138(b) of the Criminal Procedure Act is extended to 29 September 2010.

Key Takeaways

  • Charge bargaining conducted with imprecision, and through communications styled as "off the record," does not necessarily produce enforceable agreements binding the Crown to specific charges, even where the accused has taken significant steps such as providing an induced statement and waiving committal.
  • A stay of criminal proceedings for abuse of process remains a remedy of last resort. The procedural failures and negotiating imprecision documented here were not sufficient to satisfy that high threshold.
  • Material voluntarily provided by an accused in pursuit of a favourable charge outcome, including an induced statement and agreed facts, does not automatically acquire the character of "confidential information" capable of disqualifying a Crown Prosecutor from appearing at trial.
  • The District Court applied a bias-style test to the disqualification question: whether a reasonable, informed lay observer would have concerns about the prosecutor's possession of the relevant material. On these facts, that test was not satisfied.
  • Communications between prosecution and defence lawyers that are characterised as "unofficial" or "off the record" were identified by the Court as inappropriate in proceedings where personal liberty is at stake, even though they did not generate the legal relief sought.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 129, 138
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)

Cases
- Jago v District Court (NSW) (1989) 168 CLR 23
- Walton v Gardiner (1993) 177 CLR 378
- Williams v Spautz (1992) 174 CLR 509
- Rogers v The Queen (1994) 181 CLR 251
- R v MG (2007) 69 NSWLR 20
- R v Janceski (2005) 64 NSWLR 10
- R v Halmi (2005) 62 NSWLR 263
- Connelly v DPP [1964] AC 1254
- R v Croydon Justices; ex parte Dean [1993] QB 769
- Farrow Mortgage Services Pty Ltd (in liquidation) v Mendall Properties Pty Ltd [1991] 1 VR 1
- R v Georgiadis [1984] VR 1030
- Barac v DPP [2006] QSC 421; Barac v Stirling (2006) 187 A Crim R 456
- Moevao v Department of Labour [1980] 1 NZLR 464
- R v Peters (1995) 83 A Crim R 142
- R v Trainor (1991) 56 A Crim R 102
- R v Milnes and Green (1983) 33 SASR 211
- R v Mohi (2000) 78 SASR 55
- Chu Piu-Wing v AG [1984] HKLR 411
- R v Betesh (1975) 30 CCC (2d) 333; R v Crneck, Bradley and Shelley (1980) 116 DLR(3d) 675; R v Remple (1993) CanLII 201; R v Chen 2009 ONCJ 453