[2024] SADC 39

Prosecution: R Counsel: MR M FOUNDAS, WITH HIM MR S ADAMS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: DOUGLAS LAURENCE BAILEY Counsel: MR C KUMMEROW - Solicitor: NORTH EAST LAWYERS Hearing Date/s: 20/10/2023 File No/s: DCCRM-21-837 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal: Application for Stay of Proceedings) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v BAILEY [2024] SADC 39 Reasons for Ruling of her Honour Judge Deuter 17 April 2024 CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS The Applicant was first charged with one count of Aggravated Causing Harm with Intent to Cause Harm by an Information dated 13 August 2021. The offending was alleged to have occurred on 15 October 2009. The mother of the Applicant’s partner, Ms Smit gave a statement to police denying any involvement in the offending. The complainant alleged that he was assaulted by two men and Ms Smit. The police never charged Ms Smit with any offence, and in December 2020 police determined there was no corroborative evidence to implicate Ms Smit. A trial was listed for hearing on 22 August 2022 in this court. The Prosecution advised defence counsel that Ms Smit was to be called as a Crown Witness. On 23 August 2022 the Prosecution filed a new, Ex officio Information alleging three counts of Aggravated Causing Harm with Intent to Cause Harm. Ms Smit was included on the Information as a Prosecution witness. After voir dire argument, including whether the Prosecution would call Ms Smit as a witness, the trial was vacated on 24 October 2022. The trial was re-listed to commence on 9 October 2023. There were still pre-trial issues to be determined. The Prosecutor advised the court that, despite proofing Ms Smit he had not determined if she was a witness of truth. She remained on the Information as a Prosecution witness. Ultimately, for a number of reasons, including how the Prosecutor had opened his case to the jury regarding Ms Smit, and other matters, the jury was discharged and the trial vacated on 13 October 2023. The Applicant immediately sought a stay of the criminal proceedings. Argument was heard on 20 October 2023. The basis of the application was that the continuation of the proceedings would constitute an abuse of process given the Prosecution’s refusal to call Ms Smit as a witness and refusal to particularise whether Ms Smit was in a joint criminal enterprise with the accused or anyone else. HELD: -- 1 of 35 -- 1. That the application for a permanent stay of the proceedings is dismissed. 2. That there be a temporary stay of the proceedings until: (i) The Prosecution either: 1. Confirms that they will call Ms Smit as a Crown witness and particularise that she is not part of any joint criminal enterprise to assault the complainant on the night of the offending; or 2. Maintains that Ms Smit is not a witness of truth and declines to call her, but particularises that Ms Smit was not part of a joint criminal enterprise to assault the complainant on the night of the offending; and confirms that Ms Smit will not be cross examined about any assault or alleged joint criminal enterprise against the complainant. And (ii) The Prosecution has paid the applicant's costs of the second aborted trial listed to commence on 9 October 2023. Criminal Law Consolidation Act 1935 (SA) s 24(1); Joint Criminal Rules 2002 (SA) r 39.1(1)(d); Evidence Act 1929 (SA) s 34P; Criminal Procedure Act 1921 (SA), referred to. R v Apostilides (1984) 154 CLR 563; Webb v The Queen (1984) 181 CLR 41; R v Power (1996) 87 A Crim R 407; Nguyen v The Queen (2020) 269 CLR 299; Barton v The Queen (1980) 147 CLR 75; R v Ulman-Naruniec [2003] SASC 437; R v B, P [2016] SASCFC 30; Rona v District Court of South Australia (1995) 63 SASR 223; Jago v The District Court of New South Wale (1989) 168 CLR 23; Strickland v DPP (2018) 266 CLR 325; Dupas v R (2010) 241 CLR 237; Walton v Gardner (1993) 177 CLR 378; Rogers v The Queen (1994) 181 CLR 251; Walton v Gardiner (1993) 117 CLR 378; R v Mosely (1992) 28 NSWLR 735; R v Fisher (2003) 56 NSWLR 625; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; R v M, RS [2018] SASCFC 37; Ratten v The Queen (1974) 131 CLR 510; Johnson v Miller (1937) 59 CLR 467; R v S [1998] QCA 271; R v Franco [2003] SASC 140; CB v DPP (2013) 231 A Crim R 522; McAuliffe v The Queen (1995) CLR 108; R v C, S (2018) 132 SASR 171; Grant v The Queen [2010] SASCFC 61; R v Edwards [2009] 83 ALJR 717; Police v Pakrou (2008) 103 SASR 124; R v Davis (1995) 81 A Crim R 156; R v Jacobi [2012] SASCFC 115; C. Corns, Judicial Termination of Defective Criminal Proceedings : Stay Applications, (1997) University of Tasmania , considered. -- 2 of 35 -- R v BAILEY [2024] SADC 39 Introduction 1 By an Information dated 23 August 2022 (the second Information) the applicant is charged with three counts of Aggravated Causing Harm with Intent to Cause Harm (Causing Harm with Intent) contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (CLA). All offending is alleged to have taken place on 15 October 2009 at the White Sands Caravan Park. 2 The complainant alleges that he was assaulted by the applicant, and two unknown males, in the presence of the applicant’s partner, June Smit (Ms Smit). He was in a relationship with Ms Smit’s daughter, Samantha Creek (Ms Creek) at the time. The application 3 The applicant has filed an application pursuant to Rule 39.1(1)(d) of the Joint Criminal Rules 2002 (SA) seeking an order that the second Information be permanently stayed (the application). This is on the grounds that the continuation of the proceedings would constitute an abuse of process; is unfair; and will bring the administration of justice into disrepute. 4 In the alternative, the applicant seeks a temporary stay until such time as the Director of Public Prosecutions (DPP) agrees to provide further particulars regarding the Crown case, specifically in relation to the involvement of Ms Smit and whether she will give evidence on the Prosecution case, and that the DPP pay his costs thrown away in a sum to be agreed or determined by the Court. 5 The grounds for seeking the permanent stay are formulated as follows: The failure to call June Smit in conjunction with the Prosecution maintaining the possibility that the jury can reason that she was part of the joint criminal enterprise and will cross examine her on that if called by the defence, is an abuse of process, is unfair to the defendant, and will bring the administration of justice into disrepute. 6 In relation to the alternative of a temporary stay, the grounds for such an order are that: 1. The Prosecution can only remedy the abuse of process [by] confirming that they will call June Smit as a Crown witness and particularising that Smit is not part of any joint criminal enterprise to assault the complainant on the night of the offences; or 2. The Prosecution maintain their position that Smit is not a witness of truth and decline to call her, and particularise that Smit is not part of a joint criminal enterprise to assault the complainant on the night of the alleged offences and confirm that Smit will not be cross examined about any assault or alleged joint criminal enterprise against the complainant. -- 3 of 35 -- [2024] SADC 39 2 3. Unless the Crown agrees to these orders, the Prosecution should be stayed and costs thrown away be ordered. Factual Background 7 The complainant has always alleged that he was assaulted by the applicant, Ms Smit, and two unknown men. 8 Prior to 15 October 2009, the complainant, Ms Creek and their baby son had been living with Ms Smit at her home at Salisbury North. The applicant, who was in a relationship with Ms Smit, was also living at the property. 9 The Prosecution allege that in about April 2009, the complainant and the applicant had an altercation. As a result, Ms Smit asked the complainant to move out of her home. The complainant, Ms Creek, and their son moved to live in a two bedroom cabin at the White Sands Caravan Park (the cabin). 10 Ms Creek’s evidence to police was that the complainant started behaving violently towards her. As a result of the complainant’s aggression, she asked Ms Smit and the applicant to attend at the cabin, and to help remove her and her son safely. 11 The complainant alleges that he was woken by the applicant at approximately 1:00am on 15 October 2009. A torch was shone in his face, and he could see the applicant and two other men standing over him. The applicant then began hitting him to the face with a baseball bat. The other two men allegedly used a fire poker and metal pole to strike the complainant. 12 The complainant alleges he was able to escape the cabin, but was pursued by the applicant and the other two armed men. He was repeatedly struck in the neck and back and stomped on. A glass door was shattered as the complainant tried to escape. 13 The applicant’s case is that the assault was a result of him acting in self-defence. He says there were no other men in the vicinity of the cabin. 14 Ms Smit in her statement to police, sworn on the night of the offending, denied being involved in the assault upon the complainant. She expressly denied any involvement in a joint criminal enterprise with two unknown men. Her account was consistent with that of Ms Creek. 15 On 30 December 2020, it was determined that the DPP would not proceed with any charges against Ms Smit, as there was no corroborative evidence to implicate her in the offending. 1 1 SAPOL detailed occurrence report SAP0006482926. -- 4 of 35 -- [2024] SADC 39 3 Procedural History 16 An initial Information was filed on 13 August 2021 (the first Information). This followed the applicant’s return to Adelaide, when he handed himself into police on 18 December 2020. The first Information charged the applicant with a single count of Aggravated Causing Harm with Intent on 15 October 2009. The Information contained a list of Prosecution witnesses. These included Ms Creek, but not Ms Smit. At a callover on 8 December 2021, the matter was listed for a five day trial to commence on 22 August 2022 (the first trial). 17 On 8 August 2022, Ms Smit voluntarily provided a further sworn statement to police, setting out the background of the relationship between the complainant and Ms Creek, and what had occurred on the night of 15 October 2009. Her statement had not materially changed from her earlier statement. 18 The DPP subpoenaed Ms Creek to attend to give evidence at the first trial, although the Prosecutor did not initially intend to call her, as she was deemed uncooperative. The Prosecutor later advised the defence, on 19 August 2022, that Ms Smit was to be called by the Crown as a witness. 19 The first trial did not commence until 23 August 2022 before Judge Heffernan. The trial started with a full day voir dire canvassing multiple issues. The DPP filed the second Information on the same day, amending the charges to include charging the three counts of Aggravated Causing Harm with Intent. The Information listed both Ms Creek and Ms Smit as Prosecution witnesses. This was consistent with advice from the Prosecutor on 19 August 2022 to defence counsel that Ms Smit would be called to give evidence at trial. 20 During the voir dire on 23 August 2022, issues regarding the witnesses to be called by the Prosecution were discussed. The Prosecutor indicated that, there were concerns regarding Ms Creek’s reliability and credibility, when the applicant’s counsel pressed for her to be called by the Prosecution as a witness.2 The Prosecutor confirmed his intention to call Ms Smit to give evidence.3 This position changed after a break. The Prosecutor told Judge Heffernan that after having taken further instructions from Ms Smit, it appeared she was not a witness of truth, however he required more time to fully proof her.4 21 The trial was ultimately vacated on 24 August 2022, with Judge Heffernan noting, in addition to other issues, that the Prosecution did not know in relation to Ms Smit:5 …whether or not a witness who is central to the narrative and directly inconsistent on extremely material points to the accused is going to be regarded as a witness of truth and 2 Voir Dire 23 August 2022, T24.11-15. 3 Ibid at T59.25-26. 4 Ibid at T65.21 – T66.2. 5 Ibid at t72.1-4. -- 5 of 35 -- [2024] SADC 39 4 called or not, having put the witness’s name on the Information and indicating that the witness was going to be called. 22 The trial was relisted to commence on 9 October 2023. On the Friday before trial, over 12 months after the first trial was vacated, the Prosecutor indicated to the court that he had finished proofing Ms Smit. He had not yet concluded whether she would be called as a witness of truth.6 It was a decision he did not want to rush, and he sought a delayed start to the trial. 23 Ms Creek continued to be unwilling to attend court.7 No subpoena for her attendance had yet been filed. A decision was made not to lead her evidence by tendering her police affidavits unless the Prosecution was satisfied that she was a witness of truth. The Prosecution expected Ms Creek would not comply with a subpoena out of fear for the complainant.8 Ultimately, a subpoena (FDN17), was issued by the DPP, however this could not be served upon Ms Creek.9 24 At a pre-trial directions hearing on 6 October 2023, defence counsel repeatedly pressed for the Prosecution to call Ms Smit as a material witness.10 The situation had therefore not changed since the aborted trial before Judge Heffernan the year prior. It was said that the defence case was self-defence and defence of another, namely Ms Creek, for Count 1. Counts 2 and 3 were to be defended on the basis that the applicant was not present.11 25 As at 6 October 2023, a subpoena had not yet been served on Ms Creek. When questioned about the delay, given the previous hearing before Judge Heffernan in August 2022, I was told by the Prosecutor that it was a ‘regrettable oversight’.12 26 When counsel appeared in court on 9 October 2023 to tease out the outstanding pre-trial issues, I was informed that the Prosecutor had now made an assessment that Ms Smit was not a witness of truth. He sought additional time to provide particulars to defence counsel. 27 On 10 October I was advised that, in particularising the assaults and the injuries caused, the Prosecution was alleging that Ms Smit had stabbed the complainant with a sharp object, cutting the webbing of his left hand and left chest. This raised the issue of a joint criminal enterprise involving the applicant and Ms Smit.13 An email had now been forwarded by the Prosecution to defence counsel (on 9 October 2023), that set out the reasons why Ms Smit would not be called: 6 Hearing 6 October 2023 at T2 and T10. 7 Ibid. 8 Ibid at T2 – T6. 9 T46. 10 Hearing 6 October 2023 at T11. 11 T19. 12 Hearing 6 October 2023 at T4-5. 13 T56. -- 6 of 35 -- [2024] SADC 39 5 1. She [Ms Smit] has a clear allegiance to the accused in this case. 2. Ms Smit gives an account of the same incident that the complainant describes. There is no reasonable possibility the complainant ran from his cabin wearing only his underwear twice in one night. Her account does not accord with the other evidence on the brief. 3. The complainant’s account of suffering penetrating injuries in cabin 35 is corroborated by the trail of blood and his yelling heard by the Hines family. Ms Smit’s account is she saw no blood in the cabin and heard no yelling. She cannot explain the presence of the blood in circumstances where if her account was true she should be able to. 4. Ms Smit could not explain inconsistencies between her affidavits and original interview with police regarding her arrival time at the caravan park and her reason for being with the accused earlier in the day. In [his] opinion those inconsistencies are on matters of importance and are not readily explained by the passage of time. 5. Meeting with her and having proofed her. Her presentation was poor in relation to those inconsistencies. 6. Ms Smit failed to make appropriate concessions in relation to the latter inconsistency during proofing. She refused to admit she told police in her interview that the accused was staying with her at the time. Her attention was drawn to that section (page 2) of her interview transcript more than once and she refused to admit she told police that. I then took the time to get the recording of the interview. I played that to her in the proofing. It was not until then that she admitted the inconsistency. Ms Smit did not explain that inconsistency, but rather responded that she can no longer remember why she was with the accused that day. 7. On at least one version of the events (the complainant’s) she is an accomplice to the offending and has a motive to provide a false account. Please note this factor, although mentioned, is no way determinative of my decision. 28 When it was put to the Prosecutor that he had been the one who had added Ms Smit’s name to the Information as a Prosecution witness his response was:14 MR ADAMS: Yes, that decision - yes, the decision to include her on the information wasn't the result of considered thought. It was really for completeness at the time. I drafted the information. I perhaps should have been more careful when I put her name on. HER HONOUR: The issue of being an accomplice is quite a major one, which was always there. Because the victim has always said that. MR ADAMS: Yes, that's right. The information that I drafted including June Smit's name wasn't present on the original information and shortly after I filed that fresh information it was apparent that I wasn't intending to call Ms Smit as a witness. It all happened in August last year when there was a flurry of activity on the file. I think that the presence of her name on the information doesn't matter so much. 14 Hearing 9 October 2023 at T109. -- 7 of 35 -- [2024] SADC 39 6 29 Extraordinarily, these statements were made despite the fact that Ms Smit had been treated as a Prosecution witness for 14 years. The Prosecutor went on to confirm his current view that Ms Smit was not truthful. This was more than a mere suspicion and was based on the inconsistencies set out in the above email.15 The Prosecutor relied upon the complainant’s evidence that Ms Smit was present in the cabin during the assault and stabbed him.16 This was further complicated by the fact that she has a strong allegiance to the applicant, her then partner.17 30 Counsel for the applicant submitted that Ms Smit was properly included on the Information in line with the principle in R v Apostilides18 (Apostilides), that not only witnesses who are consistent with the prosecution case theory should be include on the Information. Rather all witnesses who can give evidence relevant to the elements of the crime charged should be included.19 He also referred to the argument before Judge Heffernan 14 months previously, where the same Prosecutor had told the court he did not think Ms Smit should be on the Information, but he had not yet proofed her. Despite this, he told Judge Heffernan that he was certainly intending to call her.20 31 It was argued that Ms Smit should be called by the Prosecution, and that, the Prosecutor could raise his concerns regarding her allegiance to the applicant in his address to the jury.21 It is for the jury, not the Prosecution, to draw inferences in relation to a witness’s inconsistencies. Defence counsel challenged the reasons provided by the Prosecutor as to why he would not call Ms Smit as a witness.22 He argued that the Prosecution had not reached the high standard required for excluding the evidence of an eye witness. This was especially important as the only other eye witness, Ms Creek, had not yet been served with a subpoena.23 32 Defence counsel asked that I invite the Prosecutor to reconsider their position and call Ms Smit as a witness. He also requested that the DPP tender Ms Creek’s police affidavits with agreed redactions, in the absence of her ability/willingness to give evidence in person, for the purpose of allowing her relevant evidence to go before the jury.24 33 On 11 October 2023, after argument regarding the ‘harm’ suffered by the complainant, and a letter from the DPP regarding the particulars the Prosecutor would rely upon regarding the three counts on the Information, I made a ruling on the evidence that could be led to establish the particularised injuries. By this ruling 15 T110. 16 T58 and T79. 17 T58. 18 (1984) 154 CLR 563. 19 T111. 20 T111 – T112. 21 T112 – T113. 22 T113 – T118. 23 T118. 24 T118 – T119. -- 8 of 35 -- [2024] SADC 39 7 I allowed the Prosecution to lead evidence of various cuts and lacerations described as: • Cuts to the head • Cuts on the left thigh, and • Lacerations to the left leg. 34 These injuries were to be led to provide context around the particulars of the three counts as to the injuries sustained by the complainant. This was particularly relevant in relation to some of the alleged offending involving smashed glass. 35 However, in the absence of any medical evidence to be led, the evidence of fractures to the complainant’s skull and a damaged tendon to his right hand was deemed inadmissible. It had not been specified how those injuries occurred or how they related to the particulars provided by the DPP. There was no pleaded connection to any of counts 1, 2 or 3. The particulars in count 1 only referenced injury to the left shoulder. 36 My ruling led to defence counsel raising the evidence of Ms Smit, given that the Prosecutor in a letter to defence counsel of 10 October 2023 had stated: In addition to the injuries inflicted by the men in the cabin, on the Prosecution case Ms Smit stabbed the complainant with a sharp object in his cabin cutting the webbing of his hand between his fingers and his left upper chest … 37 It was argued that this evidence should not be led where Ms Smit was not charged as a co-accused and the offending was not charged as a joint criminal enterprise.25 I proceeded to invite the Prosecution to call Ms Smit as a witness. The Prosecutor advised the court he would not call her as a witness for the reasons previously set out in his email of 9 October 2023.26 38 On 12 October 2023, I ruled that no evidence of Ms Smit stabbing the complainant should be led, given the Prosecution’s clear position that they would not call her as a witness. In those circumstances, I found that evidence of Ms Smit, stabbing the complainant would be highly prejudicial to the applicant. 39 Both Ms Smit and Ms Creek in police statements swore that the stabbing did not take place. In those circumstances, without the Prosecution charging Ms Smit as part of a joint criminal enterprise with the applicant, or at all, with any offence, I found that the evidence of the stabbing should not go before the jury. It could not be used by them to infer the assaults by the applicant had occurred, as part of a joint enterprise. 25 T130 – T131. 26 T183. -- 9 of 35 -- [2024] SADC 39 8 40 In addition, the Prosecution sought to tender photographs of some blood in the cabin. Whilst this could be explained by injuries occasioned by the use of the baseball bat and fire poker, I was of the view that the amount of blood supported a case involving a stabbing in the cabin. I found that evidence of a stabbing in the cabin, where there was no evidence of what weapon was used, or exactly how it occurred, was highly prejudicial to the accused and should not be led. 41 On 12 October, the Prosecutor also advised the court that Ms Creek was unable to be located. He refused to tender her police statements as he had some concerns about the truthfulness of her account, given the complainant’s version of events, and the Prosecutor’s own assessment of the scene evidence.27 These concerns of the Prosecutor were reached without him, or anyone from his office, speaking to Ms Creek. 42 A jury was empanelled on 12 October 2023. This was done prior to several rulings, regarding the admissibility of photos showing pools of blood, had been determined. The jury pool had been waiting several days and I made the decision to proceed with an empanelment and allow the remaining pool to leave. The Prosecutor would open his case, and thereafter the matter would be adjourned so further argument on the photos could proceed, before commencing the evidence on 13 October 2023. 43 The Prosecutor opened to the jury on 12 October 2023. Immediately after the opening was delivered, defence counsel made an application for a mistrial, and that the jury be discharged.28 After initial discussion, argument on the application was heard on 13 October 2023. 44 Defence counsel set out seven aspects of the Prosecution opening that gave rise to their application:29 (i) References being made on five separate occasions to the graphic nature of the scene in circumstances where the admissibility of a number of the crime scene photographs had not been determined. This included an opening statement to the jury that the complainant was the victim of a ‘violent and bloody attack’30 and that he was found lying ‘in a pool of blood’.31 (ii) Reference to Ms Smit being at the scene with the complainant and Ms Creek,32 in circumstances where the Prosecution had specifically disavowed a reliance on any criminal enterprise involving Ms Smit, and had refused a judicial invitation to call her as a witness. Defence counsel argued that the Prosecution had left open for the jury the possibility that 27 T160. 28 T218. 29 Defence submissions filed 12 October 2023. 30 T208.12. 31 T212.8-9 32 T209.17-23; T209.38 – T210.1. -- 10 of 35 -- [2024] SADC 39 9 Ms Smit was a willing participant in a joint criminal enterprise to assault the complainant. (iii) The harm the subject of Count 1 had been particularised as a piercing injury to one shoulder. The Prosecutor opened on a fire poker having pierced both the complainant’s shoulders.33 (iv) An incorrect characterisation that an eye witness, Russell Hines (Hines) had identified one of the men involved in the assault as the applicant.34 This was where Hines’ description of the two men he saw did not resemble the applicant. It was argued that it was for the jury to decide whether, from Hines’ description, they could infer one of the men was the applicant. (v) An uncharged allegation that one of the males involved in the joint criminal enterprise threatened Hines.35 Defence counsel argued that as a threat is an assault, the Prosecution had left it open for the jury to infer that the applicant was liable for this assault as part of the joint criminal enterprise. It was also submitted that the Prosecution had not alerted the defence that this evidence was going to be led as required by s 34P of the Evidence Act (SA) 1929 (Evidence Act). (vi) Reference to the applicant having ‘fled the jurisdiction in a hurry’, and an invitation to the jury to use that evidence to assess, with other evidence, whether this led to an inference that the applicant was one of the men involved in the assault upon the complainant.36 Defence counsel argued that careful direction must always be given to the jury when flight is to be used as circumstantial evidence. This direction should have been given during the opening, so that when hearing that evidence, the jury understood how it could be used from the outset. (vii) Reference being made to one of the three men present at the assault ‘keeping watch’ outside the cabin as part of the joint enterprise,37 when there was no evidence in the Prosecution brief that this occurred. Defence counsel submitted that the only evidence was that the witness Hines encountered a male outside. It was therefore misleading for the Prosecution to elevate this evidence, and assert a possible inference the jury could draw from Hines’ evidence. 45 Defence counsel argued that the multiplicity of issues, without direction, and before the trial judge had ruled on the photographs, amounted to real prejudice to the applicant. Applying the High Court’s test in Webb v The Queen38 it was 33 T209.31-32. 34 T211.25-28. 35 T211.22-25. 36 T212.12-21, T215.36 – T216.2. 37 T213.36 – T214.3. 38 (1984) 181 CLR 41 at 53. -- 11 of 35 -- [2024] SADC 39 10 submitted that the Prosecution opening ‘gave a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially’. 46 The Prosecutor submitted that there was no prejudice in the manner in which the facts were put before the jury, nor the description of what had occurred on the night the complainant was assaulted. In relation to his description of Ms Smit being at the scene, the Prosecutor denied that this inculpated her in a joint criminal enterprise. He argued that he had put the issue of ‘flight’ in the correct way and that the uncharged acts described by Hines could be left to the jury with clear directions as to their use. 47 I reached the decision that the jury may not be able to discharge their duty impartially as a result of the florid nature of the Prosecutor’s opening, particularly regarding the description of the crime scene. This was in circumstances where I had not yet ruled on whether all photos of the scene could be tendered. 48 I was also concerned that Ms Smit had been introduced to the jury in circumstances where I had invited the Prosecution to call her as a witness at trial, and they emphatically refused to do so. The Prosecutor had in his opening used the words ‘joint criminal enterprise’, whilst saying that Ms Smit was in the cabin with two other men and she had come between those two men and Ms Creek. 49 I also found that in introducing ‘flight’ into the opening, the Prosecutor had not articulated how the jury could use that evidence, taking account of what was said in R v Power39; that the uncharged threats against Hines had not been explained in the context of s 34P of the Evidence Act; and that describing the man outside the cabin as ‘keeping watch’ was all prejudicial to the accused. 50 I discharged the jury as the multiplicity of issues that raised concern, led me to the conclusion that the Prosecution’s opening was prejudicial to the applicant, and that the prejudice could not be cured by later directions to the jury. 51 As a result of my ruling discharging the jury, and in preparation for the trial to commence the following week with a new jury, further rulings were made on the remaining photographs and what evidence could be led.40 52 The issue of Ms Smit’s role and her involvement in any trial was then raised again. The Prosecutor stated that on the complainant’s evidence, and in relation to count 1, she was in the cabin, as Ms Creek’s mother, to pick up her daughter. She was there with the other two men. The Prosecution did not need to prove her involvement in a joint criminal enterprise beyond reasonable doubt. The Prosecution were not running that case, but there was no problem with the jury ultimately reasoning that was the case.41 Although the Prosecution was not 39 (1996) 87 A Crim R 407. 40 T262 – T263. 41 T264 – T265. -- 12 of 35 -- [2024] SADC 39 11 conducting a case of joint criminal enterprise involving Ms Smit, if the evidence established that, then that case could be put to the jury.42 53 Defence counsel submitted that this was a course of action the Prosecution should not be able to take, as it was highly prejudicial to the applicant. If the Prosecutor does not determine whether, on the evidence in the Crown case, he will allege that Ms Smit is part of the joint criminal enterprise until the end of the Crown case: (i) it makes it difficult to use matters raised by Ms Smit in her statements to cross-examine the complainant; and (ii) Ms Smit could not be called to give evidence as an uncharged co-accused without warnings against self-incrimination.43 54 It was submitted that after 14 years, it was critical that the Prosecution confirms its case, given that until the commencement of trial Ms Smit was always treated as a Prosecution witness in that: (i) She had attended proofings with the DPP and provided statements; (ii) She has had her right to silence abrogated by police and the Prosecution for 14 years; (iii) Ms Smit was placed on the Information by the current Prosecutor, 13 years after the offending; (iv) The current Prosecutor told Judge Heffernan in August 2022 that although he had not briefed Ms Smit he certainly intended to call her; (v) Until the Prosecution opening in this trial, Ms Smit had never been included as part of a joint criminal enterprise. 55 Defence counsel argued that he could not properly conduct his case until the Prosecution adequately and unequivocally particularised the role of Ms Smit in the offending. 56 The defence proceeded to make application for a stay of the proceedings until the Prosecution particularised their position in relation to Ms Smit. Counsel sought further time to provide written submissions. In the circumstances, the trial was vacated.44 The Stay Application 57 The argument for a stay in the proceedings was heard on 20 October 2023. 42 T266. 43 T268. 44 T273 – T274; T277. -- 13 of 35 -- [2024] SADC 39 12 58 The applicant relied upon several legal issues in making his application. I will address these first. (1) Legal Considerations (i) The duties of the Prosecutor in conducting their case 59 Defence referred to the case of Nguyen v The Queen (‘Nguyen’).45 It was submitted that a fundamental principle derived from this case is the obligation of the Prosecution to run their case fairly in all aspects, and in accordance with the due administration of justice. 60 The majority (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) stated:46 What has been said about the obligations which attach to the power or discretion of a prosecutor with respect to the tender of evidence does not detract from the need for a prosecutor to consider factors about particular evidence which may properly influence the decision whether to call that evidence. There may be valid reasons not to do so. In Richardson the prosecutor had grounds for believing that the witness in question was not credible or truthful. The prosecution could not be expected to tender the evidence of a witness whose account has been carefully prepared or is otherwise contrived. It would not be necessary for the full presentation of the prosecution case to adduce evidence which is no more than a scurrilous attack on the character of a witness or when it is clear to demonstration that it is false, as where it is contradicted by other, objective evidence. But circumstances such as these may be expected to be rare. The decision whether to tender evidence should be guided in each case by the overriding interests of justice. It should only be where the reliability or credibility of the evidence is demonstrably lacking that the circumstances may be said to warrant a refusal, on the part of a prosecutor, to call such evidence. (Emphasis added) 61 In this regard Edelman J set out that:47 Trial judges have powers to enforce the Prosecutor’s duty to act fairly in order to ensure a fair trial without descending into the adversarial area. Their powers include a range of directions and orders including, in the most extreme cases of unfairness, the grant of a permanent stay of proceedings where other measures cannot be taken to ameliorate a substantial unfairness in the trial. 62 These principles are reflected in the South Australian Legal Practitioner Conduct Rules. Rule 29.7 states that a Prosecutor must call as part of the Prosecution’s case all witnesses: 29.7.1 whose testimony is admissible and necessary for the presentation of all of the relevant circumstances, 29.7.2 whose testimony provides reasonable grounds for the Prosecutor to believe that it could prove admissible evidence relevant to any matter in issue; 45 (2020) 269 CLR 299. 46 Ibid at [44]. 47 Ibid at [66]. -- 14 of 35 -- [2024] SADC 39 13 …. UNLESS: …. (iv) the Prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable. 63 The principles set out by the High Court, pertaining to the duties of the Prosecutor and the fairness required in a criminal trial, provide a trial judge with the power to stay proceedings. (ii) Permanent stay of proceedings 64 It has long been recognised that criminal courts have the power to grant a permanent stay of proceedings in certain, but not fixed, circumstances.48 Although the rationale for granting a permanent stay of proceedings varies from case to case, the quintessential notion associated with this power is that a continuation of the proceedings would be an abuse of the processes of the court and/or unfair to the accused.49 65 The remedy of a permanent stay of proceedings is tantamount to the refusal to exercise jurisdiction where otherwise a duty to do so exists. As such, it is a power which is reserved for use only in rare or exceptional cases.50 Additionally, the onus of proof rests with the party alleging the abuse of process. This requires the party to prove on the balance of probabilities, the existence of a fundamental and ineradicable prejudice.51 66 The exercise of the power to grant a stay of proceedings is discretionary and requires a determination as to what the interests of justice require.52 A court is to decide upon the exercise of its power by balancing the interests of, and prospects of detriment to, both an accused and the Crown acting on behalf of the community.53 67 These principles were summarised by Sulan J in R v Ulman-Naruniec54. His Honour stated: Although the limits of conduct which may amount to an abuse of process to justify a permanent stay have not been defined, before the power is exercised it is, in my opinion, necessary to establish: 48 Barton v The Queen (1980) 147 CLR 75, at 95-97. 49 C. Corns. Judicial Termination of Defective Criminal Prosecutions: Stay Applications, (1997) University of Tasmania. 50 Applicant’s Written Submissions dated 23 October 2023 (FDN 32), paragraph 32. 51 R v B, P [2016] SASCFC 30, at 28. 52 Rona v District Court of South Australia (1995) 63 SASR 223, at 227-230. 53 Applicant’s Written Submissions dated 23 October 2023 (FDN 32), paragraph 34. 54 [2003] SASC 437 at [205]. -- 15 of 35 -- [2024] SADC 39 14 1. That there is prejudice caused by the abuse of process. 2. That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trial. 3. That there is no remedy available which will alleviate the prejudice. 4. That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective Prosecution of criminal cases. 68 A court’s power to grant a stay of criminal proceedings is discretionary and is only to be exercised in exceptional or extreme circumstances.55 Furthermore, a permanent stay will only be granted where there is a ‘fundamental defect that goes to the root of trial of such a nature that nothing a trial judge can do in the conduct of the trial, relieve against its unfair consequences’.56 69 The test for a permanent stay has been expressed as; ‘Whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness’.57 (a) Abuse of Process 70 In consideration of granting a stay, it is necessary to examine the principles governing ‘abuse of process’ in the context of a criminal prosecution. What constitutes an abuse of process is determined on a case-by-case basis. However, typically the question is not whether the Prosecution should have been brought, but rather whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and the community which it serves, should permit Prosecution processes to be employed in a manner which gives rise to unfairness.58 71 Justice Brennan described this as having occurred when ‘the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.59 72 Abuses of process are commonly categorised into the three following categories: 60 1. The court’s powers are invoked for an illegitimate purpose; 2. The use of the court’s procedures is unjustifiably oppressive to one of the parties; or 55 Jago v The District Court of New South Wales (1989) 168 CLR 23 (Jago) at 31; Strickland v DPP (2018) 266 CLR 325, 370 (Kiefel CJ, Bell and Nettle JJ). 56 Dupas v R (2010) 241 CLR 237. 57 Walton v Gardner (1993) 177 CLR 378. 58 Jago at [28] (Mason CJ). 59 Jago at [24]. 60 Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J). -- 16 of 35 -- [2024] SADC 39 15 3. The use of the court’s procedures would bring the administration of justice into disrepute. 73 The defining characteristics of an abusive process are: 61 1. Any vexation, oppression and unfairness to the other party; and 2. Whether the administration of justice may be brought into disrepute. 74 In determining whether to grant a stay in criminal proceedings, the court must therefore: 1. Undertake a balancing exercise to decide where the interests of justice lie.62 This involves contrasting the accused’s interest with the community’s right to the Prosecution of those charged with criminal offending.63 2. Take into account the need to maintain public confidence in the administration of justice.64 3. Consider the availability of other measures that could be used to address the defect giving rise to the alleged abuse of process.65 75 Thus, there are two aspects of the concept of abuse of process to be considered: 1. Whether there is oppression and unfairness to the other party; and 2. Whether the matter complained of brings the administration of justice into disrepute. (b) Fairness 76 In Jago¸ Brennan J articulated that the power to ensure a fair trial is ‘not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimise prejudice to either party.’66 His Honour drew a distinction between obstacles to a fair trial, which are not causative of proceedings being stayed, on the one hand, and an abuse of the process of the court, which may require a more radical remedy, on the other.67 77 Some disadvantage or presumptive prejudice to the accused does not of itself amount to unfairness. The disadvantage must be so grave as to make the trial irreparably unfair.68 61 Ibid at page 256. 62 Barton v The Queen (1980) 147 CLR 705, 101 (Gibbs ACJ, and Mason J). 63 Jago at 33 (Mason J). 64 Rogers v The Queen (1994) 181 CLR 251, 256 (Mason CJ). 65 Jago at 77-78 (Gaudron J). 66 Jago, at 24. 67 Applicant’s written Submissions dated 23 October 2023 (FDN 32), at paragraph 38; Transcript dated 20 October 2023, page 4. 68 Ibid, paragraph 40. -- 17 of 35 -- [2024] SADC 39 16 78 The operative question must always be whether the trial court can cure the prejudice to ensure a fair trial.69 It must be demonstrated that the suggested unfairness cannot be ameliorated, in that, there are no means available to overcome the difficulty said to give rise to unfairness.70 79 In Jago, Deane J differentiated between prosecutorial conduct which could amount to unfairness during trial (e.g., by the provision of inadequate or misleading particulars, or the concealment of important exculpatory evidence) but which could be dealt with by remedial orders, and conduct which would so unfairly and permanently prejudice the ability of an accused to defend himself (e.g., by calculated and unreasonable delay in bringing proceedings to trial) that no trial could be a fair one.71 80 Mason CJ in Jago said that:72 The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. At the same time, it should not be overlooked that the community expects trials to be fair … 81 This was accepted by the applicant. Any perceived unfairness must be considered in conjunction with the legitimate public interest in the disposition of charges of serious offences, and the need to maintain public confidence in the administration of justice.73 (c) Bringing the administration of justice into disrepute 82 A stay of proceedings may also be granted where the continuation of proceedings would ‘bring the administration of justice into disrepute’ by undermining the public confidence in the courts, which in turn, impedes the court’s ability to effectively discharge its functions.74 This proposition was endorsed by the majority of the High Court in Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (‘Strickland’).75 The High Court held that the defect in the trial process caused by the impugned conduct must be so profound and grave in nature that it offends the integrity and functions of the court.76 83 The majority in Strickland endorsed the trial judge’s determination that a stay was necessary due to the impossibility of ‘unscrambling the egg’ so as to remove the improper forensic disadvantage obtained by the Prosecution or to ameliorate the forensic disadvantage suffered by the appellants.77 69 Jago at 49 (Brennan J). 70 Ibid, at 34 (Mason CJ), at 46-47, 49 (Brennan J). 71 Ibid, at 50. 72 Jago at 25. 73 Applicant’s Written Submissions dated 23 October 2023 (FDN 32), paragraph 43. 74 Walton v Gardiner (1993) 117 CLR 378, at 393-394. 75 (2018) 266 CLR 378. 76 Jago at 100-101, 106 (Kiefel CJ, Belland, Nettle JJ). 77 Applicant’s written submissions dated 23 October 2023 (FDN 32), paragraph 47. -- 18 of 35 -- [2024] SADC 39 17 (2) Analysis of the Parties Submissions (i) The Applicant’s Submissions 84 Counsel for the applicant submitted that in the present proceedings, the Prosecution made two significant decisions in relation to the witness, Ms Smit, which has resulted in an incurable unfairness in the proceedings and in any trial.78 These decisions are forensic choices made by the Prosecution, being: a. The refusal to call Ms Smit as a Prosecution witness (despite being invited to do so by the trial judge); and b. The refusal, despite the lack of charge of a co-accused, to eschew suggesting that Ms Smit was in a joint criminal enterprise with the defendant or anyone else. 85 The applicant’s counsel outlined the following concerns in relation to the first decision:79 • The jury will not hear Ms Smit’s evidence on the Prosecution case, nor will the defence be able to cross-examine her about the complainant’s version and her version of events. Prosecution indicated a refusal to tender the statements of Ms Creek, albeit the trial judge allowing their tender, as she was an unavailable witness. There was therefore to be no evidence from two material eyewitnesses on the Prosecution case. • Prosecution in opening and closing does not need to explain why the jury should prefer the evidence of the complainant over other Prosecution witnesses. 86 The applicant argues that this amounts to a failure of the Prosecutor to discharge their duty of fairness in calling all material witnesses.80 This forensic decision alone cannot justify a permanent stay, but it would be prosecutorial misconduct amounting to a miscarriage of justice.81 In conjunction, the decision of the Prosecution to not call Ms Smit leaves the applicant with the forensic decision of whether to call her on his case. This presents a gross unfairness to the applicant where, leading up to the eve of trial, Ms Smit remained on the Information as a Prosecution witness; had voluntarily provided sworn statements, and had attended proofings with the Prosecutor.82 87 It was further argued that the applicant cannot alternatively call Ms Smit on the defence case, for the following reasons83: 78 Ibid, paragraph 48. 79 Ibid, paragraphs 50-51. 80 Transcript dated 20 October 2023, page 5. 81 Applicant’s Written Submissions dated 23 October 2023 (FDN 32), paragraphs 50-51. 82 Ibid, paragraph 52. 83 Applicant’s Written Submissions dated 23 October 2023 (FDN 32), paragraph 55. -- 19 of 35 -- [2024] SADC 39 18 • Ms Smit may inculpate herself in offences which have no statutory limitation of time attached to them; • The Prosecutor is going to put to her a concealed Prosecution case that she was part of a joint criminal enterprise, a case which was not opened on at trial; • Two pathways to guilt would be open to the Prosecution, being: i The joint criminal enterprise with the two unknown males as charged and particularised by the Prosecution in the Information; and ii A joint criminal enterprise with Ms Smit that is uncharged, but which the Prosecution submits the jury may use to reason as a path to guilt. • Ms Smit would need to be warned by the trial judge, in front of the jury, about self-incrimination, thus undermining the credibility of her evidence. 88 The necessary product of this is that the jury is not going to hear from a material Prosecution witness about events pertaining to the alleged offending. This would only leave the statements of Ms Creek to be tendered by defence, which has the appearance of partisanship with the applicant, and the Crown is likely to make submissions to the jury consistent with their view that Ms Creek is also not a witness of truth.84 89 The critical issue is, that should the jury find that Ms Smit engaged in a positive act in the commission of the offence, but do not necessarily find that the applicant actively partook in the assault, a pathway to guilt is left open in relation to the applicant by way of being a part of a joint criminal enterprise via Ms Smit’s positive actions.85 90 These two decisions by the Prosecution have undermined the applicant’s fundamental right to a fair trial, in denying the jury from hearing evidence of Ms Smit to contradict the evidence of the complainant and corroborate the affidavit evidence of Ms Creek.86 91 Defence submitted that the only available remedies are to require the Prosecution to87: a. Confirm they will call Ms Smit as a Crown witness; and/or 84 Ibid, paragraph 56. 85 Transcript dated 20 October 2023, page 7. 86 Ibid, paragraph 59. 87 Ibid, paragraph 60. -- 20 of 35 -- [2024] SADC 39 19 b. Open on the Prosecution case that Ms Smit was not part of any joint criminal enterprise to commit the offence; and c. Confirm that, if Ms Smit is called by defence, she will not be cross- examined on her potential involvement in a joint criminal enterprise. Alternative submission – temporary stay of proceedings 92 In the alternative to the above, defence counsel submitted that a temporary stay of proceedings should be granted until such a time as the Prosecution either88: a. Confirm they will call Ms Smit as a Crown witness; and b. Particularise that Ms Smit is not part of any joint criminal enterprise to assault the complainant on the night of the offending; OR a. Maintain their position that Ms Smit is not a witness of truth and decline to call her; b. Particularise that Ms Smit is not part of any joint criminal enterprise to assault the complainant on the night of the offending; and c. Confirm that Ms Smit will not be cross-examined about any assault or alleged joint criminal enterprise against the complainant. Costs 93 The applicant relies on three authorities: R v Mosely89, R v Fisher90 and R v Ulman-Naruniec91 to seek their costs thrown away of the abandoned trials. 94 In R v Mosely, the NSW Court of Appeal held that although the District Court Act 1973 provided no power to the court to make costs order in criminal proceedings, the court, in the exercise of its own discretion, could modify an invalid order staying proceedings, so that the trial of the accused would not proceed until the Prosecution compensated the accused for costs thrown away by an earlier adjournment. 95 The relevance of R v Fisher was outlined by Sulan J in R v Ulman-Naurniec, where it was said that ‘the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one but the distinction is real and important.’92 96 The applicant ultimately submitted, by reference to the abovementioned authorities, that in the present matter, as two trials had now been vacated due to 88 Applicant’s Written Submissions dated 23 October 2023 (FDN 32), paragraph 64. 89 (1992) 28 NSWLR 735. 90 (2003) 56 NSWLR 625. 91 (2003) SASC 437. 92 Ibid at [231] -- 21 of 35 -- [2024] SADC 39 20 the conduct of the Prosecution, it would be appropriate that on granting of a temporary stay of proceedings, the Crown should pay the costs thrown away by the applicant.93 (ii) Prosecution Submissions (a) A Prosecutor’s duty to call witnesses 97 It is accepted that the Prosecution bears the duty of ensuring the Crown case is presented properly to ensure that the accused’s trial is a fair one.94 The prosecutor must act with fairness and detachment, and always give consideration to the objectives of establishing the whole truth in accordance with the procedures and standards required by the law.95 98 It was submitted that one aspect of the Prosecution’s role is to determine whether a witness can give evidence capable of having some bearing on the resolution of the issues in dispute and, if so, or, in any event, whether good reason exists not to call that witness.96 Generally, prosecutors will be expected to call a material witness whose evidence goes to proof of the elements of the offence charged, notwithstanding that the account the witness might give is inconsistent with the Prosecution case.97 However, the Prosecutor is not expected to call a witness if the evidence the witness would give is plainly untruthful or unreliable.98 99 Any assessment of unreliability will involve an ability, on the part of the prosecutor, to point to ‘identifiable circumstances which clearly establish it.’99 It is therefore a misconception to speak of a prosecutor having a duty to an accused to call all witnesses who can give evidence capable of having some bearing on the issues in dispute.100 A refusal to call a witness will be justified only by reference to the overriding interests of justice.101 (b) Facts of this case 100 The Prosecution accept that Ms Smit can give material evidence relevant to the resolution of several issues in dispute. Accordingly, Ms Smit should be called to give evidence on the Prosecution case in the discharge of the prosecutor’s duty unless good reason exists for not doing so.102 101 In the present case, the Prosecutor identified the circumstances establishing unreliability and lack of credibility as set out above in his email to defence counsel of 9 October 2023.103 These facts included Ms Smit’s clear allegiance to the 93 Ibid, paragraph 72. 94 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 13. 95 Ibid, paragraph 14. 96 Richardson v The Queen (1974) 131 CLR 116 at 119; Apostilides at 573-574. 97 Whitehorn v The Queen (1983) 152 CLR 657 (Whitehorn) at 674. 98 Ibid, at 664. 99 Apostilides at 576. 100 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 17. 101 Apostilides at 575-576. 102 R v M, RS [2018] SASCFC 37 at 55. 103 Email from Mr Adams to Mr Kummerow dated 9 October 2023; Summary of Argument of the Prosecution dated 19 October 2023, paragraph 22; Trial Transcript pages 102-110. -- 22 of 35 -- [2024] SADC 39 21 applicant and the inconsistencies in her police statements. The Prosecutor concluded that Ms Smit’s overall presentation was poor. The Prosecutor was required to consider all relevant circumstances, and make an evaluative judgement based on those circumstances. The Prosecutor interviewed Ms Smit, as well as the complainant, Russell Hines, Michael Hines and Thomas Hines (the manager of the caravan park and his sons). In correspondence and in court, the Prosecutor articulated both his process of evaluation and his reasons for exercising his discretion the way he did. The Prosecution contends that he properly discharged his obligations and was not required to call Ms Smit as part of the Crown case.104 102 On the present stay application, the Prosecutor submitted that the applicant must demonstrate that the Prosecutor’s decision occasions a fundamental defect that goes to the root of the trial, causing irreparable procedural unfairness. He must demonstrate that the decision by the Prosecutor, in making his evaluative judgement on the credibility and reliability of Ms Smit, necessitates the Court taking the ‘extraordinary’ step of staying these proceedings to protect the integrity of its’ own process. 103 The Prosecution contends that this is not an appropriate matter for such an ‘extraordinary’ step to be taken.105 To do so would require the court to make an evaluative judgement about the reliability of the witness (Ms Smit), and, as a corollary, to pass judgement on the discretion exercised by the Prosecutor. It is no part of the trial judge’s role to review the Prosecutor’s decision not to call a witness.106 The Prosecutor’s decision to not call a witness is discretionary and there is no rule of law requiring him to call a particular witness.107 (c) Particulars 104 There is no authority for the proposition that the Prosecution must particularise its case with respect to a non-party to the proceedings. There is no obligation to provide the particulars that have been requested by the defence in the present case. Notwithstanding this, the Prosecution has provided the particulars which confirmed that Ms Smit was not a party to the joint criminal enterprise the subject of the present charges.108 105 Section 100 of the Criminal Procedure Act 1921 outlines the requirements for particulars in an Information charging an indictable offence: (1) An information charging an indictable offence must contain— 104 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 26. 105 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 27. 106 Ratten v The Queen (1974) 131 CLR 510 at 517. 107 Richardson v The Queen (1974) 131 CLR 116 at 121. 108 Summary of Argument of the Prosecution dated 19 October 2023, paragraphs 34-35. -- 23 of 35 -- [2024] SADC 39 22 (a) a statement of the specific offence or offences that the accused person is charged with; and (b) such particulars as are necessary for giving reasonable information as to the nature of the charge. (2) Despite any rule of law or practice (but subject to the provisions of this Act), an information charging an indictable offence and laid in a court will not be open to objection in respect of its form or contents if it is framed in accordance with any requirements prescribed by the rules of that court. 106 Notwithstanding compliance with the abovementioned provision, it is accepted that an accused is entitled to request further and better particulars and that this Court has inherent jurisdiction to order the Prosecution to do so. This principle was outlined by Dixon J and Evatt J in Johnson v Miller109: The court possesses an inherent authority to require that the particulars of a charge shall be furnished…It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him…the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court’s inherent power and jurisdiction… It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. 107 There are two aspects of the need for particularity110: 1. Eliminate the risk of duplicity; and 2. Fairness is knowing the case to be met. Duplicity 108 Further particularisation is required in circumstances where there is ‘latent ambiguity’ in relation to the charged conduct as opposed to other similar charged or uncharged conduct. The Prosecution submits that this consideration can be put to one side, as each of the three locations where injuries were inflicted on the complainant have been charged separately. There is no ambiguity regarding what occasions are charged.111 Fairness in knowing the case to be met 109 The principal function of particulars is to ensure that an accused knows, with sufficient particularity, the case to be met so as to enable them to prepare and present a defence.112 An accused needs to know sufficient detail of the offence 109 (1937) 59 CLR 467, at 489. 110 R v S [1998] QCA 271. 111 Summary of Argument of the Prosecution dated 19 October 2023, paragraphs 41-42. 112 CB v DPP (2013) 231 A Crim R 522, [44]. -- 24 of 35 -- [2024] SADC 39 23 charged to enable them to preserve their position by objecting to the admissibility of all relevant evidence.113 110 Particulars in criminal proceedings in a jury trial are ordinarily given in the Prosecution’s opening address together with the information contained in the declarations of witnesses supplied by defence. In R v Franco Duggan J said:114 Although it is desirable that the Prosecution should indicate at the commencement of the trial the basis upon which it seeks a conviction, there will be cases in which the course of the evidence gives rise to the possibility of a further basis for conviction on the offence charged or the basis for a conviction on an alternative offence which is available at law. An important consideration for the trial judge in deciding whether to leave to the jury a path to conviction not previously mentioned is whether the accused has had an adequate opportunity to test evidence relevant to such reasoning, to call evidence relevant to it, and to address the jury on it. Degree of particularity varies from case to case 111 The Prosecution argued that the degree of particularisation required in any given case is a matter of judgement.115 The evidence available to the Prosecution is a relevant consideration when assessing the appropriate degree of particularity. 112 Particulars are not a treatise of the evidence, nor are they a treatise of the inferences that a trier of fact may draw from the evidence. There is a difference between the particulars of the charge, and the facts by which the charge may ultimately be proved.116 (d) Joint criminal enterprise 113 Before turning to whether further particulars should be provided, and whether the applicant can have a fair trial without further particulars, it is helpful to bear in mind the nature of a joint criminal enterprise and what it is the Prosecution must establish where liability is alleged on that basis. Where the Prosecution alleges an accused is a party to a joint criminal enterprise, the Prosecution must prove that:117 • the accused entered into an agreement with one or more others to commit the alleged offence; • while the agreement was on foot, one or more parties to the agreement did the acts necessary to commit the alleged offence; • the accused participated in the joint agreement; and 113 Johnson v Miller (1937) 59 CLR 467, 497. 114 [2003] SASC 140, [19]-[20]. 115 Summary of Argument of the Prosecution dated 19 October 2023, paragraphs 47-48. 116 CB v DPP (2013) 231 A Crim R 522, [45]; R v C, S (2018) 132 SASR 171, [40]. 117 McAuliffe v The Queen (1995) CLR 108, 113-116. -- 25 of 35 -- [2024] SADC 39 24 • the accused had the requisite state of mind to commit the alleged offence. Application of principles 114 Beyond the particulars in the Information, the Prosecution, by way of letter dated 10 October 2023, informed the applicant of whose acts comprised the charges. Only the actions of the men are particularised. The letter outlines the following: Count 1 In relation to the first element, it is alleged the accused and the other men did an acts, namely hitting the complainant with a baseball bat, metal pole, and fire poker. In relation to the third element, those acts caused harm to the complainant, namely pain. On the Prosecution case, these acts injured the complainant’s skin near his left shoulder. Count 2 In relation to the first element, it is alleged the accused and/or the other men did acts, namely hitting the complainant with a baseball bat, metal pole and pedestal heater, and stomping on the complainant. In relation to the third element, those acts caused harm to the complainant, namely pain. On the Prosecution case, those acts caused the lacerations to the complainant’s arm when the table smashed. Those acts also caused the cuts to his hands and toe when he travelled through broken glass to escape the men. Count 3 In relation to the first element, it is alleged the accused and the other man did acts, namely hitting the complainant with a baseball bat and metal pole. In relation to the third element, those acts caused harm to the complainant, namely pain. 115 The Prosecution submits that any acts of Ms Smit do not form part of the particulars. The evidence of Ms Smit stabbing the complainant has since been excluded, thus there is no remaining path by which the jury could reason that the applicant is legally responsible for the charged offence, as a result of her acts.118 Even if there was a pathway to guilt as a result of Ms Smit’s acts, the Prosecution has eschewed reliance on that. Ms Smit can no longer be cross-examined on whether she stabbed the complainant.119 116 The Prosecution noted that if the evidence was to reveal Ms Smit was a party to the joint enterprise through her state of mind and purpose for being at the cabin, that would not lead to the conclusion that the applicant was guilty. Leaving aside the fact that the Prosecution places no reliance on her acts, it is the conduct of others that forms the actus reus of the offence. 117 I pause to note that this is problematic in a jury trial. Even if Ms Smit’s acts are not relied upon by the Prosecution, this does not prevent the jury from using impermissible reasoning in finding the applicant guilty by way of a joint criminal enterprise. The evidence should not be allowed to ‘reveal’ she was a party in some way. 118 In addition to the particulars in the letter dated 10 October 2023, the Prosecutor indicated in his opening address to the jury on 12 October 2023, that 118 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 59. 119 Ibid, paragraphs 60-61. -- 26 of 35 -- [2024] SADC 39 25 on the Prosecution case Ms Smit attended the complainant’s cabin with the applicant and came between the complainant and Ms Creek. She told Ms Creek to get away from the complainant120. Defence are now on notice that a possible line of cross-examination for Ms Smit is whether she attended there believing the other men would injure the complainant.121 119 In these circumstances, it was submitted that the requirement that the Prosecution particularise its case against the applicant has been met and exceeded. Ms Smit may receive a warning against self-incrimination or may decline to give evidence on the defence case. These are not issues which will arise due to a lack of particularity in the Crown case. The Prosecution has no duty to particularise a potential case against her in a trial relating to the applicant.122 Consideration of the issues General requirements for granting a Stay Application 120 As discussed, the test for a permanent stay has been expressed as whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness. 121 It must also be determined whether the unfairness caused by the abuse of process is irreparable and no remedy available exists which would alleviate the prejudice. 122 In opposing the stay, the Prosecution cited the case of Whitehorn v The Queen (Whitehorn).123 It was submitted that it is generally accepted that prosecutors will be expected to call a material witness whose evidence goes to proof of the elements of the offence charged, notwithstanding that the account the witness might give is inconsistent with the Prosecution case.124 123 Relying upon Whitehorn, it was argued that a prosecutor is not expected to call any witness if the evidence that witness would give is plainly untruthful or unreliable. A prosecutor is not expected to call a witness ‘whose evidence he judges to be unreliable, untrustworthy, or otherwise incapable of belief’.125 Any assessment of unreliability will involve an ability, on the part of the prosecutor, to point to ‘identifiable circumstances which clearly establish it’.126 124 It is therefore necessary to consider what constitutes a material witness. In Whitehorn, Dawson J said that a material witness is one ‘whose evidence is necessary to unfold the narrative and give a complete account of the events upon 120 Transcript pages 209-210. 121 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 65. 122 Ibid, paragraphs 67-69. 123 [1983] 152 CLR 657. 124 Summary of Argument of the Prosecution dated 19 October 2023, paragraph 15. 125 Whitehorn at 664. 126 Whitehorn at 674. -- 27 of 35 -- [2024] SADC 39 26 which the Prosecution is based’. 127 This includes eye witnesses to any event which assist in proving the elements of the alleged offence. In circumstances where a prosecutor decides not to call a material witness, it is incumbent upon the Prosecution to ensure that all witnesses whose names are on the Information should be made available so that they may be called by the defence.128 125 In relation to the prosecution of the applicant, defence counsel submitted that there was some concern with calling Ms Smit on the defence case.129 The Prosecution had deemed Ms Smit to not be a witness of truth, and it was easy to anticipate that this submission would be put before the jury. This was an obvious concern for the defence where, there are no other material witnesses being called to contradict the evidence of the complainant, or to support the version of events as articulated by him. This would leave then only the evidence of the applicant, which in essence he would be forced to give, abrogating his right to silence. 126 Justice Dean in Whitehorn stated that: ‘the observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations’.130 All witnesses whose evidence is necessary for the presentation of the whole picture, regardless of whether they appear on the Information, should be called by the Prosecution unless valid reason exists for refraining from calling a particular witness or witnesses, such as the interests of justice being be prejudiced.131 The only caveat upon this obligation, is that the evidence must be admissible and available. 127 In these proceedings, there are two material witnesses whose evidence ought to go before the court as a matter of fairness and completeness. Ms Creek is unavailable and cannot be contacted, and Ms Smit has been effectively neutralised by the Prosecution.132 It was argued by defence that for the Prosecution to run their case fairly, both versions from each witness should be given on the Crown case, and the Prosecutor would have to open and close on why the complainant’s version should be preferred over the evidence of other witnesses. As the DPP has failed to particularise their position, or at least disavow itself of any case involving Ms Smit as part of a joint criminal enterprise, the applicant is not able to call Ms Smit to give corroborating evidence to that of Ms Creek, meaning he would not then need to be called.133 128 The decision of the Prosecutor to not call Ms Smit on the Crown case does not of itself amount to a miscarriage of justice. Although it arguably denies the accused of a fair trial, the decision must be considered alongside a number of unusual circumstances in the current proceedings. In this regard, Dawson J 127 Whitehorn at 675. 128 Ibid. 129 Hearing of 20 October 2023, T11. 130 Whitehorn at 665. 131 Ibid. 132 Transcript 20 October 2023 at page 12. 133 Ibid. -- 28 of 35 -- [2024] SADC 39 27 stipulated that where a prosecutor decides not to call a witness, there are three important considerations: 134 1. The importance of (Ms Smit) as a witness; 2. Whether there is an absence of a satisfactory explanation for not calling [her] on the Crown case; and 3. The presentation by the Crown of the Prosecution case against the accused. 129 In Whitehorn, the witness was a child and was both the victim of the alleged offending and the only purported eye witness of its occurrence. Her evidence was of critical importance. Her absence as a witness led to the applicant’s trial becoming a debate over the authenticity and credibility of a confession. This was a confession that the accused had supposedly made during police interrogation in a secluded environment. It followed that the applicant would likely depend on the Crown for the information regarding the child’s potential evidence, without her evidence being tested by appropriate cross-examination on her behalf. 130 In considering the issue Dawson J said:135 If the Crown fails to call a witness who the trial judge considers ought to be called, no doubt he may invite the Crown to reconsider whether the witness ought to be called and if the invitation is declined, and the judge remains of the same view, he may comment upon the failure of the Crown to call the witness. But if the trial judge were to do more, he would place himself in danger of usurping the function of the Prosecutor. (Emphasis added) 131 Additionally, Deane J said:136 If those considerations stood on their own, there would be something to be said for a conclusion that, when the applicant complained of the failure of the Crown to call the child as a witness, basic fairness to the accused required that the Crown either provide clear and satisfactory reasons why she was not being called or offer to call her as a witness to permit cross-examination of her by the applicant. In the present case, however, those considerations do not stand on their own. There are other considerations, appearing from the Prosecution case against the applicant, which point far more strongly in the same direction. … … the failure of the Crown to call the child as a witness or to provide some acceptable explanation for not calling her was unfair to the accused. No doubt, prosecuting counsel acted for what appeared to him to be worthy motives: there is no suggestion at all of professional misconduct on his part. The failure to observe the requirements of fairness was not, however, insignificant in the context of the overall trial. To the contrary, it 134 Whitehorn at 665. 135 Whitehorn at 675. 136 Whitehorn at 666-669. -- 29 of 35 -- [2024] SADC 39 28 affected the whole course and conduct of the trial and created a situation in which the applicant was denied, without any satisfactory explanation, the opportunity of testing, by cross-examination of a person whom the Crown was prima facie required to call as a witness, the genuineness and reliability of a damning statement by that person of which the Crown had led hearsay evidence. The unfairness of the position in which the applicant was placed was, no doubt inadvertently, highlighted by the learned trial judge when, in summing up to the jury, he mentioned that the applicant had been denied the opportunity of cross-examining the child “about the events, and if she is mistaken as to the identity, and indeed it was not the accused who committed the act against her but some other person …”. The reference to the possibility that the child was “mistaken as to the identity” of the person “who committed the act against her” would obviously convey to the jury the trial judge's acceptance of the allegation in the Prosecution evidence that the child had stated that she had been assaulted by the applicant in the manner alleged by the Crown. (Emphasis added) 132 In the present proceedings, the Prosecution indicated that Ms Smit was available to be called on the defence case for the purpose of cross examination. As outlined above, the Prosecutor provided reasons as to why the Crown would not be calling Ms Smit.137 There are several important considerations that arise from the list of reasons outlined by the Prosecution. 133 Firstly, it must be determined whether the reasons provided by the Prosecutor constitute a satisfactory explanation as to why a material witness, whose name appears on the Information, is not to be called on the Crown case. Relevantly, in Apostilides, the Court stipulated:138 A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the Prosecutor merely has a suspicion about the unreliability of the evidence. (Emphasis added) 134 In Grant v The Queen139 (Grant), the Full Court assessed what constitutes adequate and sufficient reasons not to call a witness. In that case, it was held that the prosecutor was justified in not calling a particular witness, because the decision was made after a proofing session whereby the prosecutor had put inconsistencies to the witness which came from other objective evidence (e.g. CCTV footage). It was only after proofing the witness, that the prosecutor provided a letter to the defence clearly, articulating why the Crown was not calling the witness, and what pointed to them not being a witness of truth. The witness in question vehemently denied speaking to/knowing another individual involved in the offending, despite being shown CCTV footage of such a conversation. In relation to this factual scenario, the court said:140 137 Pages [7]-[8] of this ruling. 138 (1994) 154 CLR 563. 139 [2010] SASCFC 61. 140 Ibid at 76. -- 30 of 35 -- [2024] SADC 39 29 It was well open to the Prosecution to form the view that Mr Wheatley in his statement and at proofing had not been fulsome and frank concerning his knowledge of what occurred on the night and had actively misled the police in this respect. Furthermore, the Prosecution had strong grounds to infer that Mr Wheatley, rather than being an independent witness had been an active participant in the events on the night. The Prosecution was justified in forming the view that Mr Wheatley was not reliable, trustworthy or was otherwise incapable of belief. The Prosecution could not be confident that Mr Wheatley would not deliberately mislead the court. 135 In the current proceedings, the applicant argues that the reasons provided by the Prosecutor are grossly inadequate. Any references made to the inconsistency in Ms Smit’s evidence are made in relation to, or in comparison of, the evidence of the complainant, who as a witness, has not yet had his reliability and credibility assessed by the trier of fact. It is for the jury to determine where, if any, the inconsistencies lie. The Prosecutor’s assessment of the truth of Ms Smit as a witness appears to be tainted by the tactical approach of the Crown case. He appears to have stepped outside the role of determining whether a witness is factually correct and consistent (and thus truthful), and is instead assessing the witness in the context of the Crown’s tactical machinations. There is no positive evidence before the court which demonstrates that Ms Smit is not a witness of truth. Contrastingly in Grant, the witness made denials despite being shown evidence (CCTV) which directly contradicted his version of events. In these proceedings, there is no objective evidence or positive lies to demonstrate that Ms Smit is being purposely dishonest or is likely to mislead the court. 136 Alternatively, if the Prosecution’s reasons for not calling Ms Smit were deemed sufficient or adequate, in the interests of justice and in accordance with principles of basic fairness, the Prosecutor is still under an obligation to call her to permit cross examination by defence. The Prosecutor has explicitly refused to do so, despite being invited by the presiding trial judge, to call Ms Smit. This arguably amounts to an identifiable miscarriage of justice. 137 Another relevant circumstance which adds to the overall unfairness in the case against the applicant is argued to be the unreasonable delay in bringing proceedings to trial. Delay on its own is not sufficient to warrant a permanent stay in proceedings. As the court said in R v Edwards (Edwards):141 Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair. 138 In Edwards, the court found that there was no feature of the delay that justified taking the extreme step of permanently staying proceedings. It had not been established that the prejudice arising by reason of the delay in proceedings 141 [2009] 83 ALJR 717 at 722. -- 31 of 35 -- [2024] SADC 39 30 could not be adequately addressed by directions. The delay in that case, was approximately five years, which is distinguishable from the present proceedings where the delay in prosecuting the trial is now approaching 15 years. Although the delay in proceedings can be largely attributed to the applicant being out of the country for a significant period of time, this is now the second occasion where the trial date has been vacated. 139 When the trial was set to commence before Judge Heffernan, (in August 2022) decisions pertaining to Ms Smit had not been made by the Prosecution. His Honour vacated the trial as it could not proceed in circumstances where the applicant did not know the case that was being alleged against him. There was then an admitted failing in over 12 months between August 2022 and the commencement of the trial on 9 October 2023 by the DPP, where they ought to have met with Ms Smit. The forensic decision to not call her as a witness should have been made at a much earlier stage in proceedings, with sufficient notice being given to defence. 140 The following factors support the conclusion that the Prosecution have failed to discharge their duty in presenting the case fairly and in its entirety: • The overarching interests of justice would require Ms Smit to be called, as her evidence is material and fundamental to presenting the case in its entirety, where much of the evidence is no longer available (the crime scene, weapon, witnesses etc); and where there is a lack of available eye witnesses capable of giving evidence. • The Prosecution refuses stridently to disavow themselves of the probability that the jury will reason that Ms Smit is part of a joint criminal enterprise, by stating that there was no impropriety in engaging in this line of reasoning.142 141 The Prosecutor went on to say that ‘if she says something in cross examination that’s a bridge to cross later’.143 This appears to indicate that the Prosecution is intentionally and tactically leaving the gate open. That Ms Smit can be cross examined on the basis that she is involved in a joint criminal enterprise. The danger is then that the jury can reason that the applicant is guilty through Ms Smit’s involvement in that joint criminal enterprise. This, in essence, is an example of the Crown splitting its case, and gives rise to unfairness to the applicant. 142 When the Prosecution case is considered in the context of the hearings leading up to the current trial, it is clear that prosecuting counsel’s decision not to call Ms Smit is strategic and solely structured in a way to hamper or limit the applicant’s ability to test the case against him. It obliges him to provide an explanation to the trier of fact. As the court observed in Whitehorn, such a course 142 Hearing 20 October 2023 T265. 143 Ibid at T272. -- 32 of 35 -- [2024] SADC 39 31 of action is unfair, particularly in light of the Prosecution’s refusal to call Ms Smit as a witness in spite of the court’s direction to do so. Of particular concern is the Prosecutor stating that, shortly after he had filed the fresh Information, it was apparent that he was not intending to call Ms Smit as a witness. This is inconsistent, and in direct conflict with the submission made by the same Prosecutor on an earlier occasion before Judge Heffernan in August of 2022, where he said ‘but I am certainly intending to call her’.144 He also said: ‘I think that the presence of her name on the Information doesn’t matter so much’.145 I find this indicative of an unawareness on his part as to what is required of him in discharging his duty to the Court. 143 A further disregard of his duty to the Court was the Prosecutor’s opening to the jury in the second trial. He did not follow the Court’s directions regarding disputed evidence, describing the crime scene in a way that he knew remained in dispute. This was in addition to the other issues raised by defence counsel regarding that opening, which was ultimately found to be highly prejudicial. 144 In all the circumstances, and for the reasons set out above, I am satisfied that an abuse of process exists in the present circumstances. 145 I now turn my mind to the paramount question of whether there exists a remedy capable of ameliorating the defect giving rise to the abuse of process and prevent the administration of justice being brought into disrepute. 146 A permanent stay of proceedings will not be a justifiable course of action if I am satisfied there are mechanisms available to the Court which will relieve or eradicate any, or part, of the unfairness and prejudice faced by the applicant. 147 In the circumstances, the available remedies to ameliorate the abuse of process are: • The Prosecution confirming that they will call Ms Smit as a Crown witness and particularising that she is not part of any joint criminal enterprise to assault the complainant on the night of the offending; or • The Prosecution maintaining their position that Ms Smit is not a witness of truth and declining to call her, but particularising that Ms Smit was not part of a joint criminal enterprise to assault the complainant on the night of the offending, and confirming that Ms Smit will not be cross examined about any assault or alleged joint criminal enterprise against the complainant. 148 A continuation of the proceedings, as they currently stand, would bring the administration of justice into disrepute and diminish the community’s confidence in the Court and its proceedings. Any individual charged with a criminal offence 144 Trial transcript 25 August 22 at page 59. 145 Trial transcript at page 109. -- 33 of 35 -- [2024] SADC 39 32 has a right to know the case against them. A major concern arises from the failing by the Prosecution to call a material eyewitness, despite being explicitly invited to do so by the court, and having told a previous trial judge she would be called. 149 The Prosecution’s submission that they will disavow themselves from pursuing a line of questioning pertaining to Ms Smit’s involvement in a joint criminal enterprise unless she says something in cross examination that’s a bridge to cross later’ is fundamentally flawed, as such questioning would be wholly impermissible. The Prosecution cannot seek to deploy an incidental pathway to guilt, involving an uncharged third party. 150 There is also concern after the Prosecution opening in the second trial that Ms Smit will be introduced as a key witness. If this is the case during a further trial, and Ms Smit does not give evidence, I am not satisfied that any harm to the accused could be cured by a judicial direction. There is a serious risk that any prejudice in such circumstances would be irreparable. 151 However, I accept that a permanent stay based on abuse of process is a remedy of last resort, and there must be no other means available to bring about a fair trial.146 In these proceedings, viable remedies exist, as set out above. That remedy concerns how Ms Smit’s evidence is to be led by the Prosecution as their witness on the Information. 152 I am satisfied that by Ms Smit being called as a Prosecution witness, in the manner I have set out, the prejudice to the applicant can be ameliorated. Costs 153 The applicant has sought the costs of the two mistrials in these proceedings. 154 I proceed upon the finding of the Court of Criminal Appeal decision in R v Ulman-Naruniec147 that the District Court does not have a statutory authority to award costs in a criminal matter. 155 However, in extreme cases the payment of a defendant’s costs can be ordered as a condition of a temporary stay.148 Justice Sulan found that the trial judge in ordering costs had: …considered it would be unfair to the accused to have to proceed with a third trial without being compensated for the costs she had incurred in the first two trials. The trial judge, therefore, ordered a stay until costs of the earlier trials had been paid. The order was related to the trial before him and was not an order for costs in respect of the earlier two trials. 156 In Ulman-Naruniec, Sulan J found that the District Court trial judge was ‘justified in concluding that the earlier two trials had been flawed’. This was as a 146 Williams v Spautz (1992) 174 CLR 509 at 529; R v PNJ (No 2) (2007) 99 SASR 1 at [33] per Gray J, Duggan J concurring. 147 [2003] SASC 437 at [220]. 148 Ibid at [233]. -- 34 of 35 -- [2024] SADC 39 33 result of the Prosecution’s failure to provide full disclosure, and a resulting unfairness to the accused in the present ‘third’ trial.149 157 In this matter, two trials have been aborted as a result of the same Prosecutor not having made final decisions in relation to the evidence of a material witness, Ms Smit. On the second occasion, the Prosecution refused a judicial invitation to call her as a witness. It beggars belief that the second trial was listed for hearing with Ms Smit’s name on the Information as a Prosecution witness, whilst the Prosecutor had still not decided to call her and had not proofed her. 158 The role that Ms Smit was to play in any trial was not determined until the second trial had commenced. This was the cause of the second mistrial. I order that the further condition of the temporary stay is that the DPP is to pay the applicant’s costs of the second trial, including the argument on the stay. I find that in the circumstances of the two mistrials, it would be unfair to the applicant to have to proceed with a third trial until the costs of the second trial have been paid. Order 159 I order that there be a temporary stay in this action until: (i) the Prosecution either: 1. Confirms that they will call Ms Smit as a Crown witness and particularise that she is not part of any joint criminal enterprise to assault the complainant on the night of the offending; or 2. Maintains that Ms Smit is not a witness of truth and declines to call her, but particularises that Ms Smit was not part of a joint criminal enterprise to assault the complainant on the night of the offending; and confirms that Ms Smit will not be cross examined about any assault or alleged joint criminal enterprise against the complainant. And (ii) The Prosecution has paid the applicant's costs of the second aborted trial listed to commence on 9 October 2023. 149 Ibid at [232]-[233]. -- 35 of 35 --