Easterday v The Queen
[2001] WASCA 175
•11 JUNE 2001
EASTERDAY -v- THE QUEEN [2001] WASCA 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 175 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:111/1999 | 21 MAY 2001 | |
| Coram: | SCOTT J | 11/06/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Claim for privilege allowed in part | ||
| PDF Version |
| Parties: | CLARK ERVIN EASTERDAY THE QUEEN AUSTRALIAN STOCK EXCHANGE LTD DEAN EDWARD IRELAND LEONARD LANCELOT IRELAND |
Catchwords: | Court's practice and procedure Early return of subpoena Claim for public interest immunity for confidential Australian Stock Exchange Ltd surveillance report documents Information sought available elsewhere Claim for privilege upheld in part only Prosecution arising out of alleged "salting" of mineral claim Referral to Court of Criminal Appeal under s140 Sentencing Act 1995 New or fresh evidence sought via subpoena |
Legislation: | Sentencing Act 1995, s 140(1)(a) |
Case References: | Alister v R (1984) 154 CLR 404 CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19 Ireland & Anor v The Queen, unreported; CCA SCt of WA; Library No 940233; 6 May 1994 R v Jumeaux, unreported; SCt of WA (Seaman J); Library No 940534; 22 September 1994 R v Saleam (1989) 16 NSWLR 14 RAN v The Queen (1996) 16 WAR 448 Sankey v Whitlam & Ors (1978) 142 CLR 1 Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104 ACC v The Daniels Corporation International Ltd [2001] FCA 244 Air Canada v Secretary of State for Trade [1983] 2 AG 394 Alister v The Queen (1984) 154 CLR 404 Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 Borg v Barnes (1987) 10 NSWLR 734 Carter v Hayes (1994) 61 SASR 451 Chapmans Ltd v ASX Ltd (1994) 51 FCR 501 Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359 Commissioner of Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501 Connell v The Queen (No 6) (1994) 12 WAR 133 Conway v Rimmer [1968] AC 910 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Duncan v Cammell Laird [1942] AC 624 Finch v Grieve (1991) 22 NSWLR 578 Gallagher v R (1986) 160 CLR 392 Ilic v R [2000] WASCA 411 Maddison v Goldrick [1976] 1 NSWLR 651 Malesecca & Zayler (1994) 74 A Crim R 210 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 60 Marks v Beyfus [1890] 25 QBD 494 Mickelberg v R (1989) 167 CLR 259 Middleton v WA (1996) 17 WAR 201 National Employer's Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 R v Agar [1990] 2 All ER 442 R v Clowes [1992] 3 All ER 440 R v Governor of Brixton Prison; ex parte Osman [1991] 1 WLR 281 R v Hallett [1986] Crim LR 462 R v J (No 1) (1994) 13 WAR 342 R v Keane [1994] 1 WLR 746 R v Polley (1997) 68 SASR 227 R v Saleam [1999] NSW CCA 86; BC9902028 R v Ward [1993] 1 WLR 619 Somerville v Australian Securities Commission (1995) 60 FCR 319 Spargos Mining NL v Standard Chartered Australia Ltd (1989) 1 ACSR 311 Waind v Hill & National Employers' Mutual General Assocation Ltd [1978] 1 NSWLR 372 Zarro v ASC (1992) 36 FCR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EASTERDAY -v- THE QUEEN [2001] WASCA 175 CORAM : SCOTT J HEARD : 21 MAY 2001 DELIVERED : 11 JUNE 2001 FILE NO/S : CCA 111 of 1999 BETWEEN : CLARK ERVIN EASTERDAY
- Applicant
AND
THE QUEEN
Respondent
- Applicant
AND
THE QUEEN
Respondent
- Applicant
AND
THE QUEEN
Respondent
(Page 2)
Catchwords:
Court's practice and procedure - Early return of subpoena - Claim for public interest immunity for confidential Australian Stock Exchange Ltd surveillance report documents - Information sought available elsewhere - Claim for privilege upheld in part only - Prosecution arising out of alleged "salting" of mineral claim - Referral to Court of Criminal Appeal under s140 Sentencing Act 1995 - New or fresh evidence sought via subpoena
Legislation:
Sentencing Act 1995, s 140(1)(a)
Result:
Claim for privilege allowed in part
Representation:
CCA 111 of 1999
Counsel:
Applicant : Mr N J Mullany
Respondent : Mr M P Bugg (as observer)
Subpoenaed Party : (Australian Stock Exchange Ltd) Dr J T Schoombee
Solicitors:
Applicant : Bostock & Ryan
Respondent : State Crown Solicitor
Subpoenaed Party : Mallesons Stephen Jaques
(Page 3)
CCA 112 of 1999
Counsel:
Applicant : Mr N J Mullany
Respondent : Mr M P Bugg (as observer)
Subpoenaed Party : (Australian Stock Exchange Ltd) Dr J T Schoombee
Solicitors:
Applicant : Bostock & Ryan
Respondent : State Crown Solicitor
Subpoenaed Party : Mallesons Stephen Jaques
CCA 113 of 1999
Counsel:
Applicant : Mr N J Mullany
Respondent : Mr M P Bugg (as observer)
Subpoenaed Party : (Australian Stock Exchange Ltd) Dr J T Schoombee
Solicitors:
Applicant : Bostock & Ryan
Respondent : State Crown Solicitor
Subpoenaed Party : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Alister v R (1984) 154 CLR 404
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19
Ireland & Anor v The Queen, unreported; CCA SCt of WA; Library No 940233; 6 May 1994
R v Jumeaux, unreported; SCt of WA (Seaman J); Library No 940534; 22 September 1994
R v Saleam (1989) 16 NSWLR 14
(Page 4)
RAN v The Queen (1996) 16 WAR 448
Sankey v Whitlam & Ors (1978) 142 CLR 1
Case(s) also cited:
Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104
ACC v The Daniels Corporation International Ltd [2001] FCA 244
Air Canada v Secretary of State for Trade [1983] 2 AG 394
Alister v The Queen (1984) 154 CLR 404
Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
Borg v Barnes (1987) 10 NSWLR 734
Carter v Hayes (1994) 61 SASR 451
Chapmans Ltd v ASX Ltd (1994) 51 FCR 501
Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359
Commissioner of Australian Federal Police v Propend Finance Ltd (1997) 188 CLR 501
Connell v The Queen (No 6) (1994) 12 WAR 133
Conway v Rimmer [1968] AC 910
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Duncan v Cammell Laird [1942] AC 624
Finch v Grieve (1991) 22 NSWLR 578
Gallagher v R (1986) 160 CLR 392
Ilic v R [2000] WASCA 411
Maddison v Goldrick [1976] 1 NSWLR 651
Malesecca & Zayler (1994) 74 A Crim R 210
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 60
Marks v Beyfus [1890] 25 QBD 494
Mickelberg v R (1989) 167 CLR 259
Middleton v WA (1996) 17 WAR 201
National Employer's Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
R v Agar [1990] 2 All ER 442
R v Clowes [1992] 3 All ER 440
R v Governor of Brixton Prison; ex parte Osman [1991] 1 WLR 281
R v Hallett [1986] Crim LR 462
R v J (No 1) (1994) 13 WAR 342
R v Keane [1994] 1 WLR 746
R v Polley (1997) 68 SASR 227
R v Saleam [1999] NSW CCA 86; BC9902028
R v Ward [1993] 1 WLR 619
(Page 5)
Somerville v Australian Securities Commission (1995) 60 FCR 319
Spargos Mining NL v Standard Chartered Australia Ltd (1989) 1 ACSR 311
Waind v Hill & National Employers' Mutual General Assocation Ltd [1978] 1 NSWLR 372
Zarro v ASC (1992) 36 FCR 40
(Page 6)
1 SCOTT J: By an application dated 16 June 2000 the applicants have sought orders for the early return of a subpoena directed to the Australian Stock Exchange Ltd ("ASX") to produce eight groups of documents identified in the subpoena attached to the application.
2 Before dealing with the applications in any detail, it is necessary to set out in summary form the history of these proceedings.
3 The charges against the applicants arose out of the mining activities of the applicants on a mining tenement in the Mt Gibson area of this State ("the tenement").
4 In March 1990 exploratory drilling on the tenement after assay results were obtained revealed what were thought to be economic gold levels. In July 1990, Acarus Pty Ltd and Noranda Exploration NL entered into an option to purchase the tenement from the applicants for $6M with other terms and conditions. Acarus Pty Ltd and Noranda Exploration NL proposed to progress the development of the prospect via Perilya Mines NL ("Perilya"). Perilya is a publicly listed company quoted on the ASX.
5 In summary, the original assays from the tenement which revealed economic gold levels turned out to be false and subsequent drilling revealed that not only was there no economic gold on the tenement but that there was very little if any gold there at all.
6 The applicants were subsequently charged on indictment with ten counts of false pretences and one count of conspiracy to defraud. The conspiracy related to the creating of a false impression that there were high concentrations of naturally occurring gold at the tenement. The false pretences charges related to the monies obtained by the applicants from the proposed purchases and others connected with the purchase of the tenement.
7 The applicants went to trial and were convicted of the offences in July 1993. They were sentenced to terms of imprisonment. Those terms of imprisonment have been served.
8 In October 1993, the applicants (or two of them) appealed to the Court of Criminal Appeal. The appeal was heard on 20 to 22 October 1993 and on 6 May 1994 the appeals were dismissed.
9 The matter arises again because on 1 June 1999 the then Attorney General for the State of Western Australia referred the matter to the Court of Criminal Appeal for a second time, exercising the power contained in
(Page 7)
- s 140(1)(a) of the Sentencing Act 1995. The appeal is listed for hearing in the November 2001 sessions of the Court of Criminal Appeal.
10 The applicants have applied for the early return of subpoenas prior to the hearing of the appeals so that certain lines of inquiry can be fully investigated prior to that time. The applicants contend that if the inquiries that they wish to conduct prove fruitful, it may result in either new or fresh evidence being available to the Court of Criminal Appeal which could result in the appeals being allowed and their convictions overturned.
11 The applicants have sought access to a number of documents and some parties have agreed to provide to the applicants the documents which they seek. The contentious matter, the subject of this application, arises out of a surveillance referral (No 15/90) being a report by an investigator into insider trading. The investigation was carried out on behalf of the ASX. (The report will be referred to as report No 54/90).
12 Report No 54/90 has in part already been provided to the applicants. The report has substantial portions blacked out. The ASX, through counsel, maintains that public interest immunity applies to the document to protect from disclosure those portions of it that have been concealed. The applicants on the other hand, maintain that the concealed information would assist them in preparation for the appeal, in that information contained within the report, which is concealed from them, would be subject to investigation and the investigations may reveal information which would uncover the motivation of others to have salted the core samples, an issue which was central to the trial of the charges in the indictment.
13 Counsel for the ASX opposed the applications on a number of grounds, specifically:
(a) that the concealed portion of the report would reveal the methodology of the ASX's market surveillance division. In addition it is said that the concealed portion of the report would reveal the names of persons under investigation or persons connected to parties under investigation, which the ASX would maintain should be kept confidential.
(b) The ASX maintains that to reveal the portions of the report the subject of contention would undermine the frankness of informants and the revelation of material to the ASX surveillance officers.
(Page 8)
- (c) The ASX contends that if the information is revealed, their sources of information may diminish and that in turn would constrain the ASX from performing its public function in acting as a market regulator and watchdog for the Stock Exchange.
14 As already indicated, counsel for the applicants maintain that the information sought should be revealed so that the applicants can investigate and if necessary obtain evidence from other parties who either stood to gain from, or did gain from the increased value of the shares in Perilya.
15 Counsel maintains that such evidence may indicate that there were others who could have profited from the contaminated core samples and who may have been responsible for the contamination of them. In support of that contention, counsel pointed out that the case against the applicants at trial was a circumstantial one and was left to the jury on that basis. Part of the case against the applicants was that they stood to gain substantial sums of money from the contaminated samples and because of their intimate connection with the tenements and the sampling process, they were the most likely persons to have instigated the fraud.
16 In dealing with the application generally, it is important to note that the existence of report No 54/90 was in general terms revealed in the course of the trial. A police officer, T J Zappa, testified as to his investigations with the ASX in his evidence. It is not necessary to repeat the whole of his evidence on that topic but specifically in cross-examination he was asked at trial transcript page 1982:
"You can't recall now whether you investigated off market transactions as well as on the Stock Market transactions? Can you recall?---I asked the Australian Stock Exchange to advise me of their investigations of it and I have a report. I would have to check it to tell you what the extent is."
17 It is common ground that counsel for the defence did not pursue the matter further and the report was never called for in the course of cross-examination. As pointed out by counsel for the applicant in the course of his final address at the criminal trial, counsel for the prosecution relied heavily upon the proposition that it was only the applicants who had the opportunity and motivation to salt the samples.
18 Counsel for the applicants maintained that the material in the report the subject of the application would enable them to investigate the person or persons responsible for the sales of Perilya shares at or about the time
(Page 9)
- the contaminated samples were assayed. Those parties may have profited substantially as a result of the increase in the share price and have had a motivation at least equal to the applicants in having the samples contaminated so as to be able to profit therefrom.
19 Whether the applicants will be able to obtain evidence of the type which they seek is a matter not capable of resolution at this stage of the proceedings. There are many steps which the applicant would need to take before evidence in an admissible form could be obtained. Of course it is also possible that the applicants' investigations will not lead to any material that is of use to them in the form of new or fresh evidence.
20 The background of the matter having been analysed it is then necessary to turn to the legal principles which govern the application.
21 The first matter that should be mentioned is that when this matter first came on for appeal in Ireland & Anor v The Queen, unreported; CCA SCt of WA; Library No 940233; 6 May 1994, Pidgeon J, with whom Rowland and Wallwork JJ agreed, said at 44:
"It was submitted on behalf of the applicants that a possibility that has not been excluded is that a stranger may have interfered with the samples. A possible motive would be to influence the share market. Counsel drew attention to the lack of security in respect to the samples, particularly when they were outside the laboratory. I have referred to the evidence of persons inserting gold into the oil. I would consider that the chances of an outside person with no motive for doing this are not great and that it would be open to the jury to say that the circumstantial and other evidence relating to Mr Dean Ireland would exclude this."
22 It follows that the prospect of some person other than the present applicants having contaminated the sample was the subject of submission when the matter came before the Court of Criminal Appeal on the first occasion in 1993.
23 The test of whether a subpoena should run in these circumstances was considered in Alister v R (1984) 154 CLR 404 where Gibbs CJ said at 414:
"Just as in the balancing process the scales must swing in favour of discovery if documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial
(Page 10)
- (see Sankey v Whitlam (1978) 142 CLR at pp 42, 62), so, in considering whether to inspect documents with the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were grounds for thinking that the report could assist the accused. To refuse discovery for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and it would be likely to give rise to the reproach that justice had not been seen to be done."
24 Similarly in R v Saleam (1989) 16 NSWLR 14, Hunt J said at 17:
"However, as Brennan J observed in Alistair v The Queensupra, it is appropriate to adopt a more liberal approach to such matters in a criminal case. His Honour was there speaking of the exercise of a court's power to inspect documents for which a claim for public interest immunity had been made by a Crown instrumentality, to ensure that such a claim does not prevent the disclosure of an injustice suffered by an accused. In my view, such an approach is relevant also in determining whether there is a legitimate forensic purpose in having the documents produced at any stage of the criminal process, whether or not a claim of such immunity (or any other kind of privilege) is made."
25 In RAN v The Queen (1996) 16 WAR 448, Franklyn J said at 453:
"It seems to me essential that an application to inspect documents with a view only to cross examination and/or leading evidence as to credit, requires a pure identification of some basis justifying access to such documents. That is to say, some area in which the documents may, for an identifiable reason, be said to carry at least the probability of materially assisting the defence by having a substantial effect on credibility. Otherwise what he sought is no more than the right to canvas the
(Page 11)
- documents in the hope that something can be identified which may be useful to attack the credibility of a witness but which may also be insufficient to materially assist the defence. In some cases, such as Carper v Hayes (1994) 61 SASR 451 and Maddison v Goldrick [1976] 1 NSWLR 651, the 'evidentiary value' of the documents may be self-evident. In the present case the existence of documents with sufficient evidentiary value to materially assist the defence is not known and the likelihood of them being in existence is not being demonstrated. In other words, in my view, in the present case, no basis or reason for believing it to be 'on the cards' (Alistair v The Queensupra) that the documents can or are likely to materially assist the defence has been demonstrated." See also Connell v The Queen (No 6) (1994) 12 WAR 133 at 203.
26 In this case it is to be borne in mind that none of the material sought by the applicants can be said to be exculpatory of them. At best, from the applicants' point of view, the documents "may" form the basis for an inquiry, which in turn could lead to either new or fresh evidence of a type that may be admissible and exculpatory.
27 An interesting case showing the way in which these principles come into conflict was Sankey v Whitlam & Ors (1978) 142 CLR 1, which involved the request for disclosure of cabinet documents and papers. In that case Gibbs ACJ said at 38-39:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] AC 10 at 940 as follows:
'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which
(Page 12)
- aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence."
28 It is in some respects unfortunate that this case was argued on an "all or nothing" basis. In other words, the applicants sought the discovery of the whole of report No 54/90 and the respondent opposed revealing more than has already been disclosed.
29 In the course of argument both counsel accepted that the share registry of Perilya would reveal the identity of the vendors and purchasers of shares at the relevant time. What the applicants therefore seek to obtain is information as to the date of sales, the volume of sales, and the price at which those sales were effected. That information is contained in report No 54/90, although obliterated. The applicants do not need to know the identity of the brokers who handled each of the transactions, nor do they need to know the methodology of surveillance personnel. In addition, the opinions of the investigator as to whether or not insider trading occurred and the names of persons who were under suspicion at the time are, in my view, of no relevance to the applicants. The opinions of the investigator may well be inadmissible in any event and the investigation was into a matter which is not directly relevant to the appeal. It follows, in my opinion, that it would be possible for report No 54/90 to be re-prepared in such a way as to reveal additional information, and in particular the date, volume and price at which shares were sold, while still keeping confidential the other matters to which I have referred. If such steps were to be taken then, the matters which the ASX seek to keep confidential could be preserved, whilst at the same time the applicants armed with that information and with such other information as could be gleaned from the share register of Perilya, could be placed in a position where the investigations, which they seek to carry out, could be properly conducted. Such an approach is not new: see R v Jumeaux, unreported; SCt of WA (Seaman J); Library No 940534; 22 September 1994, where Seaman J said at 5:
"I accept that the accused is prima facie entitled to inspect any documents which might give him the opportunity to pursue a proper course of cross examination, which might enable him to have evidence available to tender or to have access to documents for the purposes of the trial.
(Page 13)
- All those matters are embraced in the proposition that the documents would tend to assist the accused in his defence, whether directly or indirectly. … I am of the opinion that it would be oppressive to permit the defence to inspect the totality of the material because some of it represents the intimate reflections and writings of each complainant, touching on her own thoughts which have no relationship to any legitimate forensic purpose."
30 In that case, Seaman J ultimately indicated the basis upon which the documentation was to be edited so as to give effect to his reasons.
31 In my opinion the balance of the contents of report No 54/90 are such that public interest immunity should run in order to protect the matters which I have indicated should be excised. Similarly, the identity of the brokers concerned can be of no relevance to the applicants. As I have indicated, the names of the vendors and purchasers of the shares can be ascertained through the share registry of Perilya rather than through the report. The reason for editing in that way is that the ASX obtains information from brokers in the course of investigations on the basis that the information will be kept confidential. The obligation of ASX to keep such matters confidential is contained in the ASX business rule 3.15 which provides that client information can only be disclosed by the ASX in limited circumstances. Whilst those circumstances include in rule 3.15(2)(v) "as required by law or an order of a court or competent tribunal or other lawful process" the business rules are clearly intended to obliged the ASX to maintain confidentiality wherever reasonably possible. As I have indicated, details concerning the vendors and purchasers in each of these transactions can in any event be obtained from other sources.
32 The other two documents sought by the applicant in the same subpoena consist of a one-page document disclosing share sales between 7 and 13 June 1990 and a second document both indicating dates, times, quantities and the value of share sales. The identity of vendors and purchasers at times are however reflected by code numbers. These two documents fall within the same principles as those discussed in these reasons. The contents of the documents add nothing further. All relevant information can be ascertained by the appellant through a combination of the share registry information coupled with the modified report as outlined earlier in these reasons.
(Page 14)
33 In reaching these conclusions, I have undertaken an inspection of the documents, although, in my view, it was not necessary to do so in order to determine the limited aspect of relevance to which I have referred.
34 I would finally add that the approach that I have taken to the documents is consistent with that taken by Owen and Steytler JJ to a similar document in the matter of CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19.
35 If there is any difficulty with the preparation of the report in a form appropriate to give effect to these reasons, I will grant liberty to apply to the parties so that the matter can be resolved.
0
20
1