Le v The Queen - [2019] WADC 11

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   LE -v- THE QUEEN [2019] WADC 11
CORAM:   SLEIGHT CJDC
HEARD:   27-28 AUGUST 2018
DELIVERED          :   24 JANUARY 2019
FILE NO/S:   IND 294 of 2016
BETWEEN:   MINH CANH LE

NHI VAN LE
LIEN BICH THI NGUYEN
AND
THE QUEEN

Catchwords:

Application for a permanent stay or alternatively a conditional stay - Two separate indictments - Two previous lengthy trials aborted - Non-disclosure by Crown - Whether in the interests of justice to grant application

Legislation:

Criminal Procedure Act 2004 (WA), s 90

Result:

Permanent stay of Counts 2 - 26
Conditional stay in relation to Count 1

Representation:

Counsel:

First Applicant	:	Mr D P O'Haire
Second Applicant	:	Mr T F Percy QC
Third Applicant	:	Dr C J Hampson
Respondent	:	Mr R Maidment QC, Mr D W L Renton

Solicitors:

First Applicant	:	Forbes Kirkby, Lawyers and Consultants
Second Applicant	:	V L Legal, Barristers and Solicitors
Third Applicant	:	Legal Pathways
Respondent	:	Commonwealth Director Of Public Prosecutions

Case(s) referred to in decision(s):

AB (A Pseudonym) v CD (A Pseudonym) [2018] HCA 58
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
DPP v Dinh [2016] VCC 99 (Unreported, County Court of Victoria, Hannan J, 15 February 2016)
DPP v Nguyen [2015] VCC 1104 (Unreported, County Court of Victoria, Hannan J, 14 August 2015)
Jago v District Court of New South Wales (1989) 168 CLR 23
Joud v The Queen [2011] VSCA 158
Moevao v Department of Labour [1980] 1 NZLR 464
R v Benbrika (Ruling No 3) [2011] VSC 342
R v Le [2018] WADC 57
R v Lewandowski [2003] WADC 108
R v Ulman-Naruniec [2003] SASC 437
Rogers v The Queen (1994) 181 CLR 251
Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65
The State of Western Australia v Rayney [2011] WASC 326
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
Truong v The Queen [2004] HCA 10
TVM v The State of Western Australia [2007] WASC 299
United States of America v Leal-Del Carmen (9th Cir, No 11-50094, 14 September 2012); 697 F 3d 964 (9th Cir, 2012)
Walton v Gardiner (1993) 177 CLR 378

SLEIGHT CJDC:

This decision concerns an application by the three accused for an order to permanently stay a Commonwealth prosecution (indictment number 294 of 2016). A trial commenced on the 8 May 2017 but the jury was discharged on 8 June 2017. The circumstances of the trial being aborted will be described later in this decision.
The prosecution is closely linked to another prosecution by the Commonwealth (indictment number 293 of 2016). The accused, Minh Canh Le and Nhi Van Le (Michael Le), were accused persons in both prosecutions. The accused, Lien Bich Thi Nguyen (the accused Ms Nguyen), was not an accused person in 293 of 2016. The nature of the link between the two prosecutions will be detailed in this decision. The trial in 293 of 2016 commenced on 11 October 2017 and after approximately seven months the hearing was aborted on 7 May 2018. The Commonwealth discontinued the prosecution in 293 of 2016 on the 27 August 2018.
The trial in 294 of 2016 was relisted to commence in March 2018 but was vacated as the trial in 293 of 2016 was still in progress. The trial in 294 of 2016 was again relisted to commence in August 2018 but was vacated in light of this application for a permanent stay. At this point in time it has not been relisted.
Both prosecutions were conducted by the office of the Commonwealth Director of Public Prosecutions (CDPP).

Background

In January 2013 a joint Australian Federal Police (AFP) and Western Australian Police Service operation (Operation Polo) commenced to investigate the activities of the Le family who operated in the Perth metropolitan area a substantial market garden business. The original source business of the Le family was growing tomatoes which were supplied to a number of supermarket chains, including Woolworths and IGA. Listening device warrants were obtained by the police and the police intercepted and recorded thousands of conversations and SMS messages. Some of the intercepted material was in English, some in Vietnamese, and some in a Malaysian dialect (a combination of Mandarin, Cantonese and Hokkein).[1]
[1] ts 643 of trial in 294 of 2016.
Initially, investigators thought that the Le family were involved in drug trafficking because of the large amounts of money that were being transacted. A number of the earlier telephone interception warrants had been obtained under the Misuse of Drugs Act 1981 (WA). Later, investigators formed the view that the money transactions that were under investigation related to the provision of unlawful non‑citizen workers to market gardeners and the laundering of funds received from that labour hire.
On 28 March 2014 police executed search warrants on a number of properties in the Perth suburb of Carabooda and also on a premises in the Perth suburb of Thornlie. The premises were owned or controlled by members of the Le family. On executing the search warrants it is alleged the police located approximately 320 workers residing at the various premises.[2] Of these about 180 were legal workers.[3]
[2] ts 660 of trial in 294 of 2016.
[3] ts 676 of trial in 294 of 2016.
During the police execution of warrants they seized a thumb drive at a property of the Le family at 74 Safari Place, Carabooda which contained an Excel spreadsheet listing unlawful non-citizen workers, business financial statements, amounts paid to each employee and copies of invoices issued.[4]
[4] ts 662 of 294 of 2016.
In broad terms, the allegation of the Crown is that Michael Le and Minh Canh Le (the Le brothers) were operating a labour hire business for the Le family. The Le family consisted of the two accused, Michael Le and Minh Canh Le, their mother, another brother and two sisters. The labour hire business employed an overseas workforce in Australia and then by a series of money laundering activities, concealed their activities. It is alleged the workforce consisted of:
1.Non-citizens who were lawfully in Australia and permitted under the terms of their visa to work in Australia;
2.Non-citizens who were in Australia on a visa which did not permit them to work in Australia, and;
3.Non-citizens who had overstayed their visa and therefore were not entitled to stay in Australia, let alone work in Australia.[5]
[5] ts 631 of 294 of 2016.
In this decision I will refer collectively to last two categories of workers as unlawful non-citizens.
The Crown's case was those workers who held visas to be in Australia but could not work in Australia were under the control of the accused Michael Le, and that the money produced from this workforce was laundered primarily through a company PNL Corporation Pty Ltd (the PNL stream). The charges relating to the use of this workforce were the subject of the prosecution in 293 of 2016. On the Crown's case those workers who did not hold any visa and therefore were illegally in Australia were controlled by the accused Minh Canh Le, and the money produced from this workforce was laundered primarily through a company NVH (the NVH stream). The charges relating to the use of this workforce are the subject of the prosecution 294 of 2016. However, the two streams were on occasions intermingled. This meant that on some occasions the workforce controlled by Mr Michael Le was provided to the stream controlled by his brother, Mr Minh Canh Le, and vice versa. Where this occurred it is alleged adjustments were made financially between the two streams.[6]
[6]See ts 819 onwards in 293 of 2016.

Prosecution in 293 of 2016

In the prosecution of 293 of 2016 the Crown alleged that the Le brothers used the illegal workforce in two ways:
(i)The unlawful non-citizen workforce controlled by Mr Michael Le was used to provide labour to the tomato growing business operated by a Le family company TLF Nominees Pty Ltd trading as TLF Exports. The workforce was housed in a tomato packing shed controlled by Mr Michael Le.[7] The Crown alleges that to conceal the fact that TLF Exports was using unlawful workers, an unlawful arrangement was entered into with Ms Thi Phuong Pham (Ms Pham) who resided in Melbourne. It is alleged that a number of companies[8] controlled by Ms Pham, but primarily a company PNL Corporation Pty Ltd, issued fake invoices purporting to relate to the provision of labour to TLF Exports. Between January 2013 and May 2014, it is alleged payments of approximately $1.8 million were made to the two companies controlled by Ms Pham. It is alleged the funds were deposited into the bank accounts of the companies controlled by Ms Pham and subsequently converted to cash through a series of complex transactions. It is alleged the cash was used to pay the illegal workforce and the balance paid to the Le family.
(ii)It is alleged that between June 2013 and November 2013 Mr Michael Le entered into arrangements to supply workers to Sumich Evoo Australia, a legitimate and independent business, operating an olive farm. It is alleged that Mr Michael Le accessed workers through the business operated by his brother Minh Canh Le, knowing that the workers supplied would in part be unlawful non-citizen workers. It is alleged that $552,356.80[9] was paid by Sumich Evoo Australia for the workforce provided by the companies controlled by the Le brothers. These funds were deposited into a bank account of a company controlled by Pham and, again through a series of complex transactions, eventually converted to cash and paid to the Le family.
[7] ts 1,024 of 293 of 2016.
[8] ts 1,015 of 293 of 2016.
[9] ts 1,016 of 293 of 2016.
The indictment charged Michael Le and Minh Canh Le and three other persons with various offences. The charges against Michael Le and Minh Canh Le can be summarised as follows:
1.Michael Le was charged with one count of conspiring with Ms Pham to deal with money the proceeds of crime the value of which was $1 million or more contrary to s 11.2A and s 400.3(1) of the Criminal Code (Cth).
2.Michael Le and Minh Canh Le were jointly charged with five counts of harbouring an unlawful non-citizen contrary to s 233E(3) of the Migration Act1958 (Cth).
3.Three co accused, Jhih-han Chen, Huu Cuong Nguyen and Van Thi Hoang, were each charged with money laundering charges.
On the Crown's case, Mr Michael Le was the principal controller of the workforce which was established to supply a workforce for the family tomato growing business and also the workforce hired out to Sumich Evoo Australia, although some of the labour was accessed through the accused, Minh Canh Le. It was alleged that Mr Michael Le was the principal person behind establishing the money laundering structures with Ms Pham. The Crown alleged that Jhih-han Chen was an administrative assistant to Mr Michael Le. The Crown alleged that Huu Cuong Nguyen and Van Thi Hoang were money couriers.

Prosecution in 294 of 2016

In prosecution 294 of 2016 the Crown alleges that the labour hire business of the Le brothers provided labour to 25 legitimate and independent Western Australian businesses (other than Sumich Evoo Australia). It is alleged that the businesses mainly dealt with the accused, Minh Canh Le and the accused, Ms Nguyen. It is alleged that labour invoices were issued for the provision of the workforce from companies established by Tuyet Anh Nguyen (who resided in Melbourne) on instructions from Minh Canh Le. There were two companies, NVH Contractor Pty Ltd (NVH) and HVW Contractors Pty Ltd (HVW). It is alleged that the operation of these two companies was effectively under the control of the Le brothers. It is alleged these companies were used for the purposes of laundering money received from the businesses to whom labour was provided. Between 1 January 2013 and 3 May 2014 it is alleged approximately $13.5 million was deposited into bank accounts of either NVH or HVW. Of this amount approximately $9 million was converted into cash by a series of complex transactions and eventually paid to the accused, Ms Nguyen. The money dealt with was generated in part from legal workers hired out and in part from illegal workers hired out. It is alleged that after the money was laundered the accused, Ms Nguyen on receiving the cash, and acting under instructions from the Le brothers, arranged payment of wages to the illegal workforce. The remainder of the money would then be distributed between the members of the Le family.
The indictment charged four accused, Michael Le, Minh Canh Le, Lien Bich Thi Nguyen and Wen Qing Tan, with various offences, which can be summarised as follows:
1.The four accused were jointly charged with conspiring to deal with money the proceeds of crime the value of which was $1 million or more contrary to s 11.2A and s 400.3(1) of the Criminal Code (Cth). (Count 1)
2.Minh Canh Le and Wen Qing Tan were jointly charged with 23 counts of harbouring an unlawful non-citizen contrary to s 233E(3) of the Migration Act 1958 (Cth). (Counts 2 – 24) Michael Le was jointly charged with them on two of these counts (count 23 and 24).
3.Michael Le and Minh Canh Le were jointly charged with two additional counts of harbouring (counts 25 and 26) an unlawful non-citizen contrary to s 233E(3) of the Migration Act 1958 (Cth) (the two unlawful non-citizens being Hng Hung Hock and Heng Soon Bey).
On the 7 April 2017 Wen Qing Tan (also known as Jason) pleaded guilty to all charges. Tan was sentenced to a total term of 5 years 6 months with eligibility for parole after 3 years and 6 months. Tan was sentenced on the basis that Tan primarily provided assistance by managing the illegal workforce by arranging work for them, on occasions moving them between houses and arranging payment of wages to them.[10]
[10] Sentencing before Scott DCJ on 27 April 2007 (ts 3 - 4).

Seriousness of charges

The outstanding charges against each of the three accused in 294 of 2016 are serious charges. The maximum penalty in relation to the charge of entering into an agreement to commit the offence of dealing with the proceeds of crime contrary to s 11.2A of the Criminal Code (Cth) is a term of imprisonment of 25 years and/or a fine of $255,000. The maximum penalty in relation to charges of harbouring an unlawful non‑citizen is a term of imprisonment of 10 years and/or $170,000.
The seriousness of the charges against the three accused is also demonstrated by the penalties that have been imposed for those persons involved in the alleged scheme of harbouring the illegal workforce and providing a labour hire service that was concealed by elaborate money laundering procedures. I have already mentioned the penalty imposed upon Wen Qing Tan.
Two other persons, Hng Hung Hock (also known as Burger) and Heng Soon Bey, were convicted in the Perth District Court following pleas of guilty of various charges. Both offenders were charged with one count of dealing with money believed to be the proceeds of crime, the value of which was $1 million or more. They were both also charged with 23 harbouring offences. They were both sentenced on the basis they were acting on instructions from the Le brothers. They were responsible for managing the illegal work force both as to work, housing and transport. They also arranged payments to the illegal workforce. They received very little gain by their involvement and were described by the sentencing judge as being 'at the lower level'.[11] Both were sentenced on 2 April 2015 to a term of imprisonment of four years with a non-parole period of 2 years 6 months. The sentencing judge stated that but for their undertaking to give evidence he would have made the non-parole period four years.
[11] ts 58, 60 of IND 1803 of 2014.
Two others, Tuyet Anh Nguyen and Vinh Quong Dinh, were convicted in the County Court of Victoria following pleas of guilty to one count each of recklessly dealing with proceeds of crime valued at $1 million or more. Tuyet Anh Nguyen was sentenced on 13 August 2015. She was sentenced on the basis that together with Minh Canh Le, she created and controlled companies for the purposes of laundering and concealing the proceeds and profits derived from the unlawful non‑citizen workforce and avoiding the payment of tax. She was paid $2 per hour worked by each worker, earning $5,000 - $7,000 a week. At sentencing, her Honour Judge Hannan stated that this was 'sophisticated, planned offending at a high level' and noted that Nguyen's role in the scheme was significant.[12] Nguyen was sentenced to 2 years 10 months imprisonment, to be released on a recognisance release order after 1 year and 5 months.
[12] DPP v Nguyen [2015] VCC 1104 (Unreported, County Court of Victoria, Hannan J, 14 August 2015) [8].
Vinh Quong Dinh was sentenced on 15 February 2016 on the basis that he was involved in transporting cash which had been laundered through a series of transactions to the principal offenders, the Le brothers, in Western Australia. He was sentenced on the basis that he was paid a wage of between $1,000 and $2,000 per week and did not share in the profits. A sentence of 16 months imprisonment, to be released after 8 months on a recognisance release order, was imposed. At sentencing, her Honour Judge Hannan noted that this was 'serious offending' and was at the 'high end of recklessness'.[13]
[13] DPP v Dinh [2016] VCC 99 (Unreported, County Court of Victoria, Hannan J, 15 February 2016) [11].
Another co-offender Ms Pham, following a plea of guilty in the County Court of Victoria, was convicted of dealing with money intended to become an instrument of crime, valued at $1 million or more. Ms Pham was sentenced on 19 October 2016 by his Honour Judge Montgomery on the basis that she issued fake invoices by entities controlled by her, purporting to relate to the provision of labour to conceal the fact that the Le family were utilising an unlawful non‑citizen workforce. The money paid pursuant to those invoices was converted to cash and returned to the principle offenders, minus Ms Pham's commission. She was sentenced to 3 years imprisonment, to be released after serving 22 months on recognisance. This was a reduced sentence given Ms Pham's co-operation with prosecuting authorities.

Why the first trial in 294 of 2016 was terminated

The trial in 294 of 2016 was listed to commence on 24 April 2017. In late March 2016, Dr CJ Hampson was approached to take over the representation of Lien Bich Thi Nguyen as her existing representation was unable to continue due to a conflict of interest. Dr Hampson filed a notice of acting as counsel on 10 April 2017. As a part of pre‑trial disclosure the Crown had informed the accused that it was open for their counsel to attend the offices of the AFP and view all intercept material relating to Operation Polo but that they would not be provided with copies of communications between co-accused and third parties without the consent of those parties. This was based upon supposed privacy reasons. It was only during the trial that discs were cut containing copies of intercept material and copies of these discs provided to counsel for the accused. At that time, for reasons that are unclear to me, it was believed by the Crown that the discs contained 25,000 intercept calls but in fact there were approximately 66,000 intercept calls on the discs.[14] However, this did not constitute the full quantity of intercept calls as the AFP then knew and CDPP ought to have known. The total quantity was 110,693.[15] Of the intercept material disclosed prior to the trial in 294 of 2016, the Crown indicated it would be relying on only 250 calls. However, the CDPP provided to the accused transcripts of approximately 1800 telephone intercepts and police summaries of approximately 10,000 telephone intercepts.
[14] ts 11,274 of 294 of 2016.
[15] See details provided later in this decision.

The attention of counsel for all three accused leading up to the trial appears to have been focused on the financial records and efforts being made to agree to a chart tracing the movement of money which the Crown relied upon for the purpose of establishing its allegation of money laundering. Dr Hampson says that the first time he became aware of the telephone intercept material (over and above the 1800 transcripts and 10,000 summaries) was on the 19 May 2017, approximately one week after the commencement of the trial.[16] During the course of the trial Mr Hng Hung Hock, a rollover witness for the Crown, gave his evidence-in-chief. Dr Hampson identified that there were approximately 3700 intercept calls which were relevant to Mr Hock's evidence and estimated he would require four to six weeks to properly consider the material given the volume of the material and the need for many of the intercept calls to be translated into English. Given these circumstances Dr Hampson applied to have the jury discharged and the trial adjourned. The application was supported by the accused Minh Canh Le. However, the accused Michael Le did not join the application and sought an order that, if necessary, the trial continue for the charges against him alone.
[16] Affidavit sworn 8 August 2018 at [13].
On 8 June 2017 the trial Judge, his Honour Judge Scott, concluded that it was not in the interests of justice for the trial to continue and accordingly discharged the jury and adjourned the trial. In his decision his Honour commented as follows:
It seems to me that there is fault that can be laid at the feet of all parties who have been involved in this application to some extent.[17]
[17] ts 2,511 of 294 of 2016.
His Honour further stated:
Insofar as the calls are concerned on one hand I accept what Mr Bevilacqua [counsel for the Crown] says, that the Commonwealth disclosed 25,000-odd calls which were on disc. On the other hand, I have to say from a practical standpoint given that a significant number of those calls were foreign calls, in my view disclosure per se of just discs when - in circumstances where one of the accused was unrepresented for - until mid-2016, and those foreign calls were not transcribed, places a significant load on practitioners, particularly those who do not have the resources available to them for backup.
On one hand I am critical of the - not of the Commonwealth but I'm critical of the police officers who intercepted these calls for not having provided the Commonwealth with, it seems to me, sufficient instructions and observations as to the content of these calls, some of which there were summaries for and a good deal of them were not. And the other hand, one might say that defence could have been more energetic in endeavouring to find a practical way to be able to listen to these calls.[18]
[18]ts 2,512 of 294 of 2016.
Subsequent to the termination of the trial in 294 of 2016 it has been revealed that there is substantially more telephone intercept material than the items disclosed in the trial of 294 of 2016. An affidavit of K M Addiscott[19] (a federal agent with the AFP whose task was to coordinate disclosure processes) states that on the 19 June 2015 she sent to the CDPP an email attaching a spreadsheet of the intercept calls for Operation Polo. The total number of intercept calls directly relating to Operation Polo was 110,693. The CDPP acknowledges receipt of this email but did not disclose the extent of this intercept material until searches and enquiries were made in April 2018, at which time the full extent of this intercept material was disclosed.[20] The failure to disclose this material appears to be due to an oversight at the office of the CDPP. One possible explanation is a lack of resources being applied to the preparation of these complex prosecutions.[21]
[19] Sworn on 28 July 2019.
[20] Affidavit of Edward James Cade sworn 27 July 2017.
[21] Affidavit of Sarah Jane Oliver affirmed on 6 August 2018 at [6].

Why the trial in 293 of 2016 was terminated

The trial in 293 of 2016 was initially listed to commence on 17 July 2017 but was adjourned and commenced on the 9 October 2017. At all relevant times the Crown indicated it was ready to proceed to trial, albeit that it had failed to give full disclosure of the intercept material in its possession.[22]
[22] Affidavit of Edward James Cade (CDPP) sworn on 27 July 2017.
After commencement of the trial and up to applications being made in January 2018 to the trial judge, his Honour Judge Scott, further disclosure took place on the following dates:[23]
•11, 12, 13, 16, 18, 19, 20, 26, 27, 31 October 2017.
•2, 3, 5, 5, 7, 13, 14, 17, 21, 23, 23, 29, 30 November 2017.
•1, 2, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 27, 27, 29 December 2017.
•2, 4, 5, 8, 9, 10, 11, 15, 16 January 2018.
[23] Affidavit of Huan Vu sworn 18 January 2018 attachment HV 89.
The applications made in January 2018 were made by the accused for the jury to be discharged and for a permanent stay. The applications were dismissed. However, the problem of further disclosure during the course of the trial continued to plague the trial and a further application to discharge the jury was made by the accused in May 2018. On 7 May 2018 his Honour Judge Scott discharged the jury. In published reasons delivered on 11 May 2018 his Honour detailed further late disclosure which caused him to conclude that it was appropriate to discharge the jury:
In this case, in the months leading up to the trial there were a number of case management orders made by judges of this court programming disclosure by the prosecution. The court's anticipation was that the disclosure obligations would, by the commencement of the trial, have been met to enable the trial to run smoothly.
However that was not the case. As it transpired there were many occasions during this trial when the prosecution made further disclosure amounting to a significant volume of material.
It is not necessary for me to particularise each of the occasions upon which late disclosure was given and the nature of it. Those occasions have been detailed in submissions filed in this application and in the previous application to abort this trial with which I dealt and on 23 January 2018, dismissed.
…
When I dismissed applications by the accused to abort this trial on 23 January 2018, I took the view that in the circumstances which then existed, the time which I had afforded counsel to consider late disclosure before being required to cross-examination or continue cross‑examination of prosecution witnesses, was sufficient to minimise any disadvantage in the lateness of disclosed materials. That included time out of court.
However, after that determination in late January, further disclosure from the prosecution continued and the time out of court increased. Between 23 January 2018 and 3 May 2018, excluding public holidays, the jury did not sit for approximately 40 working days. Some of those days included a juror's committed holiday extending past the Easter break, and days on which there were medical appointments for both counsel and jurors. Given the extent to which this trial exceeded the anticipated timeframe those days out were inevitable. However, in the main the days out of court related to the need for counsel to come to terms with late disclosure.
In mid-April 2018 it came to light that on 19 June 2015 the CDPP received by email an Excel spreadsheet detailing all TI warrants which had been executed by the investigative authorities. This schedule included nine warrants which had not previously been disclosed to defence in the committal brief or otherwise. It would appear that the CDPP had somehow mislaid this email and spreadsheet. It had not been brought to the trial prosecutor's attention until mid-April.
On 13 and 17 April 2018 defence counsel were provided with the telephone intercept products the subject of those warrants which comprised 34,321 audio and SMS communications during the period 28 February 2013 to 27 May 2014.
In addition on 18 April 2018 defence counsel received an email from the prosecution advising them that it had come to the prosecution's attention that Geoffrey Lim was a target of an AFP investigation conducted in 2012 named Operation Malden during which a TI warrant was executed with respect to his alleged phone. Counsel was advised that the prosecution had only received a copy of the warrant and the investigator TI summaries, copies of which were provided later that day to counsel. Geoffrey Lim was a person to whom reference was made by Hng Hung Hock, a 'rollover' witness who gave evidence in November 2017.
Further on 23 April 2018 the prosecution served defence with a disc containing the Operation Malden 18,093 TI products which did not contain investigator or other relevant summaries.
In the event since 13 April 2018 the disclosure to defence counsel comprised 53,330 TI products many of which were said to be in Vietnamese and other foreign languages.[24]
[24] R v Le [2018] WADC 57, [18] - [20], [23] - [29].
Subsequent to the termination of the trial in 293 of 2016 the Crown provided further disclosure by a letter dated 31 July 2018 which enclosed a USB thumb drive. This further disclosure included further notes, notebooks and diaries. The material on the USB thumb drive consisted of 22,558 pages.[25]
[25] Affidavit of Joanne Graham sworn the 9 August 2018 at [12].
As I mentioned earlier in this decision, the Crown discontinued 293 of 2016 on 27 August 2018. This was done by the filing of a 'notice of discontinuance' which required the consent of the court. In giving my consent on 27 August 2018 I made the following observations:
Given the enormity of this late disclosure, the trial judge, his Honour Judge Scott, had no other alternative but to discharge the jury.
The trial had commenced on 9 October 2017 and on 7 May 2018 the jury was discharged. Quite clearly, this discharge occurred because the prosecuting authorities were grossly neglectful in ensuring that proper and full disclosure occurred prior to the commencement of the trial.
The drain and waste on resources of the accused and the drain and waste on public resources were necessarily enormous. I have not received any details in the affidavit material filed of the legal costs incurred by each accused. Some of the accused, as I understand it, were on Legal Aid.
The legal costs of preparing and conducting the defence in a trial of this length and complexity would have been substantial. I would hazard a guess that it would run into hundreds of thousands of dollars.
As I have mentioned, some accused, or at least one that I am aware of, was the subject of a grant of legal aid. The amount of funding which is available to Legal Aid to provide representation for people on serious criminal charges is limited.
As a result of the waste of funds, the ability of the Legal Aid Commission of Western Australia to provide assistance to other persons is reduced. None of these costs are recoverable at law against the prosecuting authorities by way of a costs order.
In addition to legal fees wasted, a trial of this nature places an enormous psychological stress on all of the parties involved, including of course, in particular, the accused. For the duration of the trial they were subject to very strict bail conditions which prevented them from going about their normal daily lives.
Some of the impact of this upon Mr Michael Le is contained in a psychological report submitted in support of the application for a permanent stay. The accused, Ms Chen, was prevented from leaving Australia and returning to her homeland in Taiwan.
The trial in this matter placed an enormous imposition upon the resources of the Court. There were numerous pre-trial hearings dealing with case management matters prior to the hearing. Despite considerable effort on the part of the Court to ensure that all pre-trial issues were properly dealt with prior to the commencement of the trial, the Court was deceived into believing that full disclosure had taken place and that the trial would proceed without delays.
The trial estimates given by counsel were in the range of approximately 10 weeks. In fact, the trial ran for nearly 8 months.
I accept that the length of the trial is not solely due to the prosecution giving late disclosure. It was also due, in my opinion, to the perplexing forensic decision made by defence requiring proof of the continuity of documents seized by the Australian Federal Police. This led to an additional 28 witnesses being called by the prosecution.
It arose simply because the CDPP Office opened sealed exhibit envelopes in order to place the exhibits in a chronological order. Given the complexity of the case it is difficult to know how otherwise the CDPP would have dealt with these exhibits.
However, this issue did not cause the jury to be discharged, it was the late disclosure. As a result as the length of the trial a considerable drain was placed upon the judicial resources of this court and the judicial support services.
The judge was completely tied up for the full eight months of the trial, as were his staff. This places an enormous hole in the ability of the Court to meet the demand of approximately two-and-a-half thousand cases that it deals with each year.
The trial also occupied one of the two large high security courts in this building and limited the ability of this Court, that is the District Court, and also the Supreme Court, that also uses this building, to conduct other complex or high security trials.
In addition to the drain on the resources of the Court, this trial also placed enormous demands upon the jury. A jury of 18 people was initially empanelled and over the course of the trial the jury was reduced to 12. Of course, members of the jury were subject to enormous inconvenience in having to serve on a jury for such a lengthy period of time and had the added frustration that it was all in vain.
Clearly this brings the judicial process into disrepute. In addition to the demands it placed upon jurors in terms of the interruption of their normal lives, there was also the expense incurred by the Sheriff's Office, having to pay jurors during their attendance. In addition to the expense of paying members of the jury for their jury service, there was also the expense of providing interpreters for the accused. The Court incurred an expense of approximately $130,000 for interpreters.[26]
[26] ts 11,200 – 11,202 of 293 of 2016 - For the purpose of this decision the transcript has been edited.
Senior counsel on behalf of the Crown opened the Crown's submission in response to the application for a permanent stay of 294 of 2016 by acknowledging that the discharge of the jury in 293 of 2016 was solely due to the failure of the Crown to meet its prosecutorial obligations of disclosure. He stated as follows:
Your Honour, there's no doubt that the Crown is culpable and we offer a mea culpa in the most humble way that we can and acknowledge our being the cause of why we're here today. The fact is that – and I think it's acknowledged that this is not a deliberate concealment issue, your Honour's already commented on the quality of the Crown in discharging its disclosure obligations and I don't seek to quarrel with your honour's characterisation.[27]
[27] ts 11,271 of 293 of 2016 and 294 of 2016.

The applications by the accused

The application by each accused is for a permanent stay of the prosecution in 294 of 2016. In the alternative, it is submitted that pursuant to an inherent power of the court to prevent an injustice, the court should order a conditional stay. It is not disputed by the Crown that the court has such an inherent power. Senior counsel appearing on behalf of Mr Michael Le submitted that if a conditional stay order was made then it should require the Crown to fulfil the following requirements:
(a)Pay the costs of Mr Michael Le for 293 of 2016 and 294 of 2016 prior to relisting the trial.
(b)Provide to Mr Michael Le, in both hard copy and electronic form, complete disclosure.
(c)The director of the WA office of the CDPP provide written advice to the court and Mr Michael Le that all disclosure is completed.
(d)The prosecution provide English translations of telephone intercept product which is in a foreign language.
(e)The prosecution make available the unlawful non‑citizens named on the back of the current and previous indictments and who are identified in the charges of harbouring on the current indictment.
(f)The prosecution make available Mr Chris Adams as a witness at the trial (the significance of Mr Chris Adams' evidence will be explained later in this decision).
The other two accused, Mr Minh Canh Le and the accused Ms Nguyen, also supported similar orders (although any costs awarded to the accused Ms Nguyen would be confined to 294 of 2016).

Legal principles applicable to a stay application

The application for a permanent stay by the accused is founded on s 90(1) of the Criminal Procedure Act 2004 (WA) (CPA), or alternatively, an inherent jurisdiction to do so as recognised at common law.
Section 90(1) of the CPA provides as follows:
A superior court to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
The concept of 'in the interests of justice' is one that should not be narrowly defined and will vary from case to case. It necessarily involves a judicial evaluation of a number of factors.[28] The relevant factors are not capable of exhaustive definition. The weight to be given to any individual factor will vary from case to case depending upon the circumstances.[29] The concept of 'in the interests of justice' is potentially wider than the concept of an 'abuse of process', and involves a weighing up of a whole range of factors. In Salmat Document Management Solutions Pty Ltd v The Queen[30] McKechnie J stated at [54]:
The proper approach to take is that a Judge hearing an application under s 90 of the Criminal Procedure Act 2004 is not constrained to find that a continuation of the proceedings would be oppressive or an abuse of process. The Judge is given a discretion in terms of the widest possible ambit to decide to stay a charge if it is in the interests of justice to do so. The 'interests of justice' is not susceptible of any precise definition. The content of the interests of justice can only be given form by the facts of a particular case. Illustrations from other cases where courts have decided that the interests of justice either do or do not require a stay have limited utility and almost no precedential value. Above all the touchstone is fairness. This involves fairness both to the prosecution and the defence. Fairness is relative and the Courts recognise that some trials may never be completely fair. Even Parliament has acknowledged this: Evidence Act 1906 (WA) s 31A. However, the touchstone remains fairness.
[28] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; TVM v The State of Western Australia [2007] WASC 299 [25] (McKechnie J).
[29] The State of Western Australia v Rayney [2011] WASC 326 [18].
[30] Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65.
It is well recognised in Australia that at common law, courts possess an inherent jurisdiction to stay proceedings which are an abuse of process: Jago v District Court of New South Wales.[31] There has been some judicial debate in the authorities concerning how wide the concept of an abuse of process can be taken[32] and whether it should be driven by considerations personal to the accused such as fairness and oppression. However, it is unnecessary that I expand upon the differences of opinion because the wider concept of the 'in the interests of justice' includes considerations personal to the accused such as fairness and oppression. However, any considerations of fairness to the accused necessarily 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.[33]
[31] Jago v District Court of New South Wales (1989) 168 CLR 23.
[32] See for example the individual judgments in Jago.
[33] Jago (33) (Mason CJ).

In Walton v Gardiner[34] Mason CJ, Deane and Dawson JJ stated that whether an order permanently staying a criminal proceeding was to be made was to be determined using a weighing up process involving a balancing of a variety of considerations. Their Honours listed the following relevant considerations (396):
the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[34] Walton v Gardiner (1993) 177 CLR 378, 376.
At common law a permanent stay based upon an abuse of process will occur only in exceptional circumstances. The rationale for this is the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime. Although such an order to stay a prosecution is exceptional, the circumstances in which such an order may arise are extremely varied and not limited to fixed categories. Likewise it would be wrong to confine the concepts of when an abuse of process occurs to situations previously considered by the courts.[35] The same approach should be taken on applications under s 90(1). The Courts should still view a permanent stay order as exceptional. In Salmat McKechnie J stated at [42] - [43]:
In deciding whether the interests of justice require a stay of an indictment a Judge should be careful not to stray beyond a proper judicial role. The institution and continuation of judicial proceedings is a wholly executive function. The Director of Public Prosecutions Act 1983 (Cth) authorises that function to be carried out by the Director. The distinction is made plain in Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514.
The other members of the majority (Gaudron and Gummow JJ) at 534 considered that there are certain decisions involved in the prosecution process that are, by their nature, insusceptible of judicial review. They added two qualifications, the second being that, of necessity, a court always retains power to prevent abuse of its process, including its criminal process (at 535). Although I have reached the conclusion that the concept of interests of justice under s 90 is wider than the concept of abuse of process as understood in the common law, nevertheless it seems wise to acknowledge and carefully segregate the limited nature of the jurisdiction I am called upon, or a Judge is called upon, to exercise. A Judge is not a Director of Public Prosecutions. It is not enough for a Judge to conclude that were he or she to exercise the prosecutorial discretion, in accordance with published prosecutorial guidelines, an indictment would not be presented or would be discontinued. A Judge can only exercise the power if satisfied that the processes of the Court, having been invoked, cannot continue in the interests of justice.
[35] Rogers v The Queen (1994) 181 CLR 251 (255) (Mason CJ).
McKechnie J went on to state at [112] that it was not a part of the exercise of the power to stay under s 90 of the CPA that an indictment be stayed in order to punish or discipline the prosecution or the investigators.
The breadth of considerations on a stay application was emphasised by Mason CJ in Jago. His Honour quoted with approval the decision of Richardson J of the New Zealand Court of Appeal in the decision of Moevao v Department of Labour[36] who stated at (481):
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizens alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.[37]
[36] Moevao v Department of Labour [1980] 1 NZLR 464.
[37] See also AB (A Pseudonym) v CD (A Pseudonym) [2018] HCA 58 [10].
Of course, in giving consideration to the question as to whether the process is so oppressive that the integrity of the court system is jeopardised, one must keep in mind that all criminal proceedings create an inherent oppression. Most accused persons are likely to suffer stigmatisation, loss of privacy, stress and anxiety resulting from a multitude of factors including disruption of their earning capacity, legal costs, uncertainty to the outcome and restrictions whilst on bail. For an innocent person, the burden involves undeserved mental, social and often financial damage. That damage will not be erased by ultimate acquittal. Life may be resumed but the mental, social and financial scars will ordinarily endure: Jago (55) (Deane J).
A case where a permanent stay was ordered is Salmat. The case primarily concerned delay and missing documents. The case involved an allegation of understating bulk mail deposits with the intention of defrauding Australia Post of fees. Central to the applicant's case for a permanent stay of the prosecution was the submission that because of what was described as inordinate delay, and a number of source documents having been destroyed in the ordinary course of business, it was impossible for the applicants to test properly the principal evidence led against them, being entries made by an employee in an exercise book for the purpose of recording the under declaration of mail. This was in the circumstances where it was found that the exercise book had significant discrepancies which called into account its accuracy. In these circumstances McKechnie J concluded the lost documents prevented the accused from properly testing secondary evidence of the exercise book entries:
The interests of justice require the indictment against each applicant is permanently stayed.
The nature of the case depends significantly on the evidence of accomplices who require corroboration by at least some independent confirmatory evidence.
Because of the inordinate delay, coupled with the destruction of documents in the ordinary course of business, the applicants are unable to have a fair trial and there is no reasonable alternative, such as a robust direction from the Judge, that will minimise the unfairness to an acceptable degree. There is now no way to scrutinise properly the figures recorded in the exercise book. Some of these figures are likely to be wrong.[38]
[38] Salmat [178] – [180].
Another case in which a permanent stay was ultimately made was the matter considered by the Court of Appeal in Victoria in Joud v The Queen[39] The case involved four accused persons who had been charged and convicted of being a member of a terrorist organisation in Melbourne and various offences relating to the operations of that organisation. The accused were charged by an indictment dated 7 December 2006. After a seven month trial each accused was convicted (on appeal against conviction, the convictions against two accused of lesser offences were set aside but not the convictions on the substantive offences). In 2009 the Commonwealth filed a further indictment charging the four accused with a conspiracy with a Sydney group of terrorists. The Sydney group had been convicted in New South Wales of a conspiracy charge to collect ammunition and other equipment to be used in the manufacture of explosive devices. It was alleged that at some point the Melbourne group had agreed to assist the Sydney group by providing equipment from a source in Melbourne. It was alleged that the Melbourne group was unable to obtain the equipment and the Sydney group eventually obtained the equipment elsewhere. The conspiracy charge against the Melbourne group related to the original plan to assist. The Crown proposed to call most of the evidence led in the first trial against the Melbourne group to prove its case on the conspiracy charge. An application was made for a permanent stay before Forrest J who concluded that given the relatively modest additional criminality of the second trial, his estimate that the second trial was likely to last nine months minimum and given the oppressive incarceration and transport conditions which the accused had endured during the first trial, that it was appropriate to make an order for a permanent stay unless the Crown could overcome the oppressive nature of a second trial. He provided the Crown with the opportunity to present undertakings to him which would reduce the oppressive nature of the second trial. After taking further evidence from the Crown he considered that the Crown's proposal to reduce its witness lists from 160 to 97 and to reduce the number of recorded conversations it intended to lead from 465 to 365, that the trial was likely to take 20 to 30 weeks. He concluded that the oppressive nature of the second trial had been reduced to an acceptable level and therefore dismissed the application for a permanent stay. The Court of Appeal overturned the decision of Forrest J on the basis that the judge had failed to adequately consider relevant issues. Nerve J (with whom Ashley and Weinberg JJ agreed) stated that the judge at first instance failed to take into account adequately:
1.the effect of the Crown decision to indict the applicant separately for the terrorism offences of the first trial and for the conspiracy (Nerve J concluded there was no legitimate reason why the first conspiracy charge should not have been joined on the indictment of the first trial);
2.the modest additional criminality involved in the conspiracy charge;
3.the overlap between the evidence to be led by the Crown in the conspiracy trial and the evidence which have been led in the first trial;
4.stress to the applicant caused by the five year delay between arrest and conspiracy trial, and any further delay which will arise in sentencing if the applicant were to be convicted of conspiracy;
5.the effect on the applicant of the lengthy first trial and of the conditions under which they were held and transported during the trial;
6.the effect on the applicant's mental condition of having to submit to another trial lasting at least five months; and
7.the public interest in ensuring that the criminal justice system did not operate unfairly and oppressively.[40]
[39] Joud v The Queen [2011] VSCA 158.
[40] Joud [134].
Central to the decision of the Court of Appeal was the fact that it concluded that the accused should have been charged with a conspiracy charge on the first indictment. Nerve J stated:
The conclusion that the prosecution discretion was exercised in good faith could not have been, and was not, challenged on appeal. But that does not resolve the question whether the prosecution was an abuse of process because of its oppressive effect on the applicants. Even where the prosecutorial discretion has not been exercised for any improper or ulterior purpose, the objective effect of its exercise may be unfairly oppressive.[41] (emphasis added)
[41] Joud [136].
The matter was remitted back to Forrest J who, after considering the matters to be taken into account as directed by the Court of Appeal, ordered a permanent stay.[42]
[42] R v Benbrika (Ruling No 3) [2011] VSC 342.
In the case of R v Lewandowski[43] Hammond CJDC granted a permanent stay of prosecution primarily on the grounds of the need to maintain public confidence in the administration of justice where the State sought to renege on an offer of immunity after the accused (a former police officer) agreed to return to the jurisdiction to give evidence concerning police corruption in a high profile criminal case.
[43] R v Lewandowski [2003] WADC 108.
A very recent decision of the High Court in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions[44] concerning an application for a permanent stay, to some extent resonates with the allegations against the accused in 294 of 2016. The case before the High Court concerned a major investigation against a number of individuals who were suspected of engaging in elaborate money laundering activities to disguise the receipt of large sums of cash from illicit activities. The primary judge made a finding that interviews conducted by the Australian Crime Commission (ACC) were conducted in breach of the ACC's statutory obligations because the ACC had been driven by requests of the AFP for the purposes of its investigation. The ACC used its coercive powers of interview to obtain for the AFP admissions from the appellants concerning alleged money laundering activities. The primary judge found that although the breach of the statutory obligations was not deliberate, officers of the ACC were reckless as to the discharge of their statutory obligations to an unacceptable degree, and that by virtue of the admissions obtained had jeopardised the appellants receiving a fair trial.[45] It was the combination of the forensic disadvantage to which the appellants suffered as a result of the unlawful use of the examination product, together with the need to protect public confidence in the administration of justice, which led the primary judge to order a permanent stay. The High Court upheld an order made by the primary judge for a permanent stay of the prosecutions against the appellants. The plurality in its decision cited with approval the judgment of Kirby J in Truong v The Queen[46] wherein His Honour stated as follows:
[R]elief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.[47]
[44] Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53.
[45] Strickland [55] - [63].
[46] Truong v The Queen [2004] HCA 10.
[47] Strickland [99] quoting Truong [135].
The plurality in Strickland went on to expand in a statement of these principles as follows:
[N]o doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligations than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit's mentality. Ultimately, these appeals turn on that distinction.[48]
[48] Strickland [100].
Later in the judgment the plurality stated in the judgment the following general principles:
Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.[49]
[49] Strickland [106].
Justice Edelman in a separate judgment also upheld the primary judge's order for a permanent stay of proceedings but emphasised that before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that can be taken to address 'any systemic incoherence that would be caused by a trial of the accused'.[50]
[50] Strickland [264].
A case in which an order was made for a conditional stay of proceedings was R v Ulman-Naruniec.[51] That case concerned a woman who collected from the post office a package on behalf of her estranged husband, Mr Naruniec. The AFP had discovered the package which contained ecstasy prior to its collection by the accused and made a substitution. The accused was charged with being a party to a joint criminal enterprise with her estranged husband. The accused denied knowledge that the package contained prohibited drugs. The Crown's case was that only the accused and Mr Naruniec were involved and there was an inherent improbability of other people being involved. A part of the Crown's case was that the accused had been involved in arranging money transfers which enabled Mr Naruniec to purchase the drugs. At her first trial there was a hung jury. On the second trial she was convicted and was sentenced to 12 years imprisonment. The conviction was set aside by the Court of Appeal and a new trial ordered. Before the third trial took place it came to light that the estranged husband Mr Naruniec had been in a de facto relationship with a woman (Ms Dziki) who was the subject of an undisclosed drug investigation. The AFP had extensive telephone intercepts (some in Polish) involving Mr Naruniec, Ms Dziki and a third person suspected of being involved in drug dealing. This evidence tended to show the accused was not involved in the crucial issue of the transfer of money. Also, the notes of a critical police officer had been lost. On a voir dire hearing prior to the third trial, the trial judge found that the non‑disclosure by the AFP and the CDPP did not involve acts of dishonesty in the form of deliberately trying to suppress the undisclosed material, and refused an application for a permanent stay of the trial. However, the trial judge ordered a stay until the Crown provided translated transcripts of the foreign language intercept material and the Crown pay a reasonable sum of the costs incurred by the accused on the first two trials. On appeal, the majority (Belby and Besanko JJ) upheld the decision of the trial judge save that they set aside the order requiring the Crown to provide translated transcripts of the intercept material. Belby J stated:
One must assume that, whatever shortcomings there may have been in the conduct of this matter to date, both the AFP and the DPP are now aware of their responsibilities and will act accordingly. The unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information can be rectified by the court ensuring the proper disclosure is made and, if necessary, by staying the trial until it is made.[52]
[51] R v Ulman-Naruniec [2003] SASC 437.
[52] Ulman-Naruniec [28].

The element of unfairness need not be an evidentiary or procedural unfairness,[105] but can arise from a circumstance of unfairly oppressive conduct such that the pending trial can no longer be a fair trial.
[105] As was the case in Tony Strickland.
However, in some rare cases, s 90 of the CPA is wide enough, to permit a prosecution to be permanently stayed solely on the grounds that the order is necessary to prevent the administration of justice falling into disrepute. In such cases the cost of obtaining a conviction will be too high.[106]
[106] Tony Strickland [106].
In my opinion the failure of the Crown to fulfil its prosecutorial obligations of disclosure has cast a significant shadow of potential unfairness over the remaining prosecution in 294 of 2016 for the following reasons:
1.In my opinion it has significantly harmed the mental resilience and financial capacity of the accused persons to defend themselves in light of the exceptional length of the aborted trial in 293 of 2016 (more so for the Le brothers than the accused, Ms Nguyen).
2.The uncertainty as to whether the Crown has or will give full disclosure prior to the retrial given my finding that I am unable to accept the Crown's undertakings in relation to disclosure.
3.The disadvantage suffered by the accused in terms of the time available to examine the disclosed material to date given the lateness of disclosure.
4.The unfairness to the accused of the uncertainty of whether the Crown will be able to proceed with the trial in 294 of 2016 given the inability of the Crown to compel the attendance of key unlawful non-citizens to attend the trial.
I believe that a combination of the oppressive circumstances and unfairness factors identified above and the need to maintain the integrity of the court that the failure of the Crown to give full disclosure prior to the aborted lengthy trials in 294 of 2016 and 293 of 2016 comes very close to justifying a permanent stay of the remaining prosecution in 294 of 2016. However, I conclude that a permanent stay of all the counts in the indictment is not appropriate. Instead, I conclude that it is in the interests of justice that an order be made permanently staying all of the harbouring counts on the indictment in 294 of 2016, but there be a conditional stay in relation to the remaining count one on the indictment.
I conclude that these orders will best give effect to the balancing of the considerations referred to in Walter v Gardiner. This, of course, includes taking into account the public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime. In my opinion it is very relevant that other persons have pleaded guilty for their part in an unlawful enterprise and received terms of imprisonment. It would be a monumental step to permanently stay all counts on the indictment when the Crown's case is that the Le brothers were the principals behind the unlawful enterprise and the accused Ms Nguyen played a significant part as their assistant. Further, I have taken into account that the main charge against the Le brothers is count 1 on the indictment. This charge relies on a predicating offence of using a workforce of unlawful non-citizens to obtain the proceeds of crime and thereby partly encapsulates the culpability for harbouring unlawful non-citizens.
The order I make permanently staying counts 2 to 26 is not intended to prevent the Crown from leading evidence of any of the unlawful non‑citizens named in counts 2 to 26 being part of an unlawful workforce allegedly utilised by the accused.
The orders I make reflect what I believe is a significantly stronger case for a stay made out by the Le brothers compared with the accused Ms Nguyen, which justifies a permanent stay order of the harbouring counts on the indictment involving them. The accused Ms Nguyen was not an accused in the trial of 293 of 2016.
Although the accused Le brothers will receive a direct benefit by the permanent stay order in relation to counts 2 to 26 on the indictment, I anticipate that all three accused will receive an indirect benefit by a reduction in the length and complexity of the trial.
I conclude a conditional stay order on count 1 on the indictment (with stringent conditions against the Crown) will adequately mitigate the unfairly oppressive circumstances experienced by the accused and reduce the risk of any unfairness in relation to a trial on this remaining count.
In relation to count 1 on the indictment I believe a conditional stay order should be made with the following conditions:
(a)The Crown pay the reasonable costs of the three accused thrown away in the aborted trial in 294 of 2016 and of the Le brothers thrown away in the aborted trial in 293 of 2016. Such costs to be as agreed, and failing agreement to be assessed by a Registrar of the District Court. In the event that the costs are not agreed within 60 days the assessment of the costs is to be listed before a registrar for programming orders.
The costs be paid within 30 days of being agreed or assessed. I have included the costs of the aborted trial in 294 of 2016 on the basis that the trial should never have commenced as the Crown had failed to give full disclosure.
The costs are to be assessed under the relevant cost determination made pursuant to the Legal Professional Act (2008) for criminal proceedings in the District Court of Western Australia.
(b)The Crown comply with a direction I now make under s 27B(2) of the Evidence Act (WA). I am satisfied that the evidence relating to the money transactions constituting the alleged money laundering is so voluminous and complex that it would be difficult to assess or comprehend if it was adduced in a narrative form. Accordingly, Mr David Bay or some other appropriately qualified accounting expert is to examine the relevant documentation relating to such transactions, and prepare or verify as accurate a transactional chart of the type tendered in the previously aborted trial in 294 of 2016. A written statement is to be made by this person setting out in detail the documentation examined in the course of preparing or verifying the accuracy of the transactional chart. A copy of the written statement and the transactional chart is to be filed and served on the accused by 24 May 2019.
(c)By 24 May 2019 the Crown conduct a full review and prepare a written report of the processes undertaken by the AFP and the WA Police in monitoring and analysing intercept material in relation to Operation Polo and Operation Malden. This report is to detail the task performed by each officer involved in monitoring and analysing the intercept material, details of what notes were produced and translations obtained, and if disclosure has not occurred of any such material then further disclosure is to be given. I am not satisfied that written advice from the Director of the WA office of the CDPP by itself will provide a sufficient assurance, as such advice will depend upon information provided by the AFP and the WA Police, which I conclude in the past has been unreliable in relation to disclosure of notes. I believe that only by a full review being conducted that the court and the accused can be satisfied that full disclosure is given of all notes and other material relating to the intercept material. The notes and translations obtained are very important in a case such as this because the disclosure of the notes and translations obtained, in part, compensate accused persons for an imbalance in resources in examining the intercept material.
(d)By 24 May 2019 the Director of the WA office of CDPP file and serve on the accused a certificate that the Crown has completed disclosure of all evidentiary material relevant to the prosecution, including obtaining disclosure from all investigative agencies which exchanged information with the AFP or WA Police as part of Operation Polo or Operation Malden.
(e)Within 30 days the Crown reimburse the interpreter fees paid by the court in the trials of 293 of 2016 and 294 of 2016.
(f)Within 30 days the Crown serve on the accused a list of Crown witnesses who reside outside the state of Western Australia who the Crown consider are necessary witnesses for the Crown to have a reasonable chance of conviction against each accused. Within 90 days the Crown file and serve a certificate that it has obtained written undertakings from such Crown witnesses. The written undertakings are to be to the effect that they are willing to again travel to Western Australia to give evidence in the trial of 294 of 2016 on the basis that the Crown will cover all travel and accommodation expenses. Renewals of this certificate and these undertakings are to be given three months prior to the commencement of the relisted trial.
I do not believe that orders should be made requiring the Crown to provide English translations of telephone intercept product which is in a foreign language. In light of the quantity of material I believe this would be an unreasonable requirement. This is consistent with the rulings made by the trial judge throughout the trial in 293 of 2016. It is also consistent with the approach taken by all three judges in R v Ulman-Naruniec.
Also I conclude that it is not appropriate that I impose a condition that the prosecution make available the unlawful non-citizens named on the back of the indictment and included in the Crown's original witness list. To impose such a condition would in effect prevent the prosecution from proceeding. At the present time most of these persons cannot be located and cannot be compelled to attend Australia to give evidence. For reasons that I have given earlier I do not believe that the Crown has created an unfairness by allowing unlawful non-citizens to leave the country.
Also, I conclude that it is not appropriate that I impose a condition that the prosecution make available Mr Chris Adams as a witness at the trial. I am not satisfied that the evidence he may be able to give is sufficiently relevant to justify it being a condition of the prosecution that he be made available.
I anticipate that the retrial in this matter is not likely to be listed until sometime in late 2019 or early 2020 which should provide sufficient time for the accused to prepare for trial notwithstanding the disadvantage I identified in this decision as result of the late disclosure of material by the Crown.
I have not made any orders that the Crown pay compensation for the waste of judicial resources in relation to the aborted trials in 294 of 2016 and 293 of 2016. I believe this issue is best left to be resolved between the Federal Government and the Western Australian State Government.
I also order that the Crown have liberty to apply for an extension of any of the time limits I have set in the conditions listed in [133] above. However, a time limit will only be extended if it is in the interests of justice to do so. Subject to this liberty to apply for an extension of time, a failure to comply with any of the conditions set out in [133] will automatically trigger an order for a permanent stay of the prosecution of count 1 on the indictment.
I will hear submissions from counsel as to what further programming orders should be made in relation to the relisting of the trial in 294 of 2016.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Chief Judge Sleight
24 JANUARY 2019