Mickelberg v The Queen - [2003] WASCA 292

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MICKELBERG -v- THE QUEEN [2003] WASCA 292

CORAM: MURRAY J

HEARD: 25 NOVEMBER 2003

DELIVERED : 28 NOVEMBER 2003

FILE NO/S: CCA 136 of 2002

BETWEEN:
RAYMOND JOHN MICKELBERG
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 137 of 2002

BETWEEN :PETER MICKELBERG
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal - Order directing Commissioner of Police to produce certain records to Court of Criminal Appeal - Whether complied with - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

CCA 136 of 2002

Counsel:

Appellant: Dr J J Edelman
Respondent: No appearance

Solicitors:

Appellant: Lawton Gillon
Respondent: State Director of Public Prosecutions

CCA 137 of 2002

Counsel:

Appellant: Mr M Bennett
Respondent: No appearance

Solicitors:

Appellant: Bennett & Co
Respondent: State Director of Public Prosecutions

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

Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970137; 1 April 1997
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970439; 13 August 1997

Case(s) also cited:

Nil

MURRAY J: I have been in the process of managing these appeals to their hearing before the Court of Criminal Appeal which is to commence on 1 December. I recently heard an application on behalf of both appellants for orders that:
1.The Commissioner of Police, within 24 hours, deliver into the custody of the Supreme Court the unedited running sheets and serials pertaining to the investigations conducted by the West Australian Police into the Perth Mint Swindle.
2.The Honourable Court inspect the unedited running sheets and serials and determine whether or not the editing of the serials and running sheets was conducted in accordance with the reasons for decision of his Honour the Chief Justice on 1 April 1997 and:
2.1if it is determined that the running sheets and serials were not edited in accordance with the reasons for decision of his Honour the Chief Justice on 1 April 1997, the Commissioner of Police, within 7 days, deliver to the appellants (by their solicitors) copies of the running sheets and serials edited strictly in accordance with any further directions which should be made by his Honourable Court;
alternatively
2.2If it is determined that the running sheets and the serials have been edited in accordance with the reasons of his Honour the Chief Justice on 1 April 1997, then the Commissioner of Police, within 7 days deliver to the appellants (by their solicitors) copies of all running sheets and serials pertaining to the investigations conducted by the Western Australian Police into the Perth Mint Swindle edited only so as to delete:
2.2.1the names, addresses and telephone numbers of informants;
2.2.2the names, addresses and telephone numbers of alternative suspects;
but retaining (absent any names, addresses and telephone numbers) all information obtaining or discovered by the Western Australian Police Service in the course of the investigation.'
The application was supported by two affidavits. One was an affidavit of a Mr Napper, an experienced former English police officer, who described himself as the director of marketing development with the Centre for Forensic Science at the University of Western Australia. He deposes to reading running sheets and journal entries attributed to a police officer, then Detective Sergeant D L Hancock. His perusal of that material leads him to express an opinion upon the completeness of the record provided. In my view, the affidavit is clearly inadmissible on the appeals, but in any event, in view of the generality of its content it provided no assistance in the resolution of the application before me, so far as the content of the document is capable of bearing upon the subject matter of that application.
As to the application, there is a history to which I should briefly advert. On 1 April 1997, the Court heard and determined an application that the Commissioner of Police should produce to the Court of Criminal Appeal police running sheets and documents described as "serials pertaining to the investigation of what came to be described as the Perth Mint swindle" in respect of which the appellants were ultimately charged and convicted. An objection had been taken to the production of the documents on the ground of public interest immunity. In the reasons then given; Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970137; 1 April 1997, the Court accepted that the documents the subject of the application, speaking generally, were of a kind to which the claimed privilege would attach. Nonetheless, the Court ordered that:
"All police running sheets and serials should be produced to the Court in an edited form, identifying those police officers who said things or did things in the presence of one or other of the Mickelbergs or who made inquiries in relation to the conduct of the Mickelbergs in connection with events the subject of these proceedings."
It was accepted that that would permit the deletion from the produced running sheets and serials of those documents which, although part of the inquiry, dealt with matters irrelevant to the investigation of offences ultimately alleged to have been committed by the Mickelbergs. Further, the persons who might be identified were the police officers involved in investigations concerning the Mickelbergs. Investigations of other suspects and material identifying informants were to be deleted. Hence the way in which the proposed order sought in paragraph 2.2 of the application is framed.
The editing process was undertaken by a police officer having some knowledge of the investigation, Inspector Mann. Where necessary he took the advice of a solicitor employed by the State Director of Public Prosecutions. There is no evidence to suggest that Mann did not apply himself to the task honestly and diligently and there is no evidence to suggest that the solicitor who advised him, behaved in any way improperly.
However, soon after the editing process had been completed and the result was available for the inspection of the appellants, questions arose as to the appropriateness of the editing process which had occurred. A further application was brought to the Court and heard by the Court of Criminal Appeal on 13 August 1997. Again, reasons were given by the Court on that date: Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970439; 13 August 1997.
The application was dismissed. It is sufficient to quote from pp 7‑8 of the reasons of Malcolm CJ, with whom Steytler and Wheeler JJ agreed:
"Nothing has been put before this Court to give rise to any reasonable apprehension that there has been anything other than a proper approach to compliance with the order. Specifically, Inspector Mann has given evidence on affidavit and orally that, in relation to the area of relevance, advice was obtained from Mr Randazzo of the office of the Director of Public Prosecutions.
As Mr Pallaras has pointed out to the Court, the Director and his officers are fully conscious of their duty to the court in relation to the disclosure through this particular process in relation to the running sheets and serials of any information which may be of assistance to Mr Raymond Mickelberg as an appellant in these proceedings. Nothing has been put before the Court to suggest that that duty has in any way not been fully performed by those officers in relation to the advice given to the Inspector in the context of compliance with these orders.
Nothing has been put before the Court which convinces me that any variation of the order would be justified so as to open up an area which was previously ruled to be irrelevant. For those reasons, I would dismiss the application in terms of the amended notice of motion and so far as is necessary I would give leave to the appellant to amend the notice of motion, but I would refuse the motion as amended."
In effect, that application for further orders was renewed before me. It is said that the application is grounded upon different causes for concern. I am far from convinced that that is so. The application is supported by an affidavit by Mr Peter Mickelberg. That document refers to the evidence given before this Court by one Anthony Lewandowski. It is said that that evidence would tend to establish impropriety in the course of the police investigation. In that event, it is suggested that apparently missing serials and gaps in the running sheets may be deliberate omissions designed to conceal impropriety in the police investigations by omitting relevant records.
The suggestion is speculative, as expressed in the affidavit. It is suggested that the speculation has some substance, not only because a substantial quantity of material has been omitted, but because other parts of the serials and running sheets, includes information which, having regard to the terms of the order made by the Court, need not have been included because that material would appear to be irrelevant. Some of the omissions are physically associated in the running sheets with a fingerprint allegedly found on the reverse of a cheque, which the appellants assert to be a fabrication. The suggestion is that there may be material omissions concerned with this matter.
On the hearing of the application, I declined to take the course proposed by the orders sought, paragraph 1 and 2, as a global exercise, but I indicated that I was prepared to obtain the unedited materials and peruse those particular portions of the materials in relation to which the appellants raised specific concerns. With the cooperation of the Commissioner of Police and the Crown Solicitor's good offices in obtaining serials numbered 223 to 241 inclusive from the custody of the Royal Commission Into Police Corruption, I have been able to undertake the process of inspection of the materials specifically identified as raising cause for concern, for the purpose of determining whether the editing process which has been undertaken has faithfully complied with the terms of the order originally made by this Court in April 1997.
As to the serials, the appellants identify a particular gap in the material provided. The affidavit, P 230, contains serial 222. The affidavit, P 231, contains the first page of serial 244. I have inspected those intervening serials supplied from the custody of the Royal Commission Into Police Corruption. The first in time is serial 223. It was generated on 7 July 1982, as was serial 222. The last serial in the sequence has the typewritten number 241, but next to that number, in handwriting, is the number 242. Perhaps the intention was that the serial should bear both numbers. It is undated, but serial 240 relates to information received on 12 July 1982 and so presumably serial 241/242 was generated after that date, but before serial 244, which bears the date 16 July 1982. The inquiries dealt with in the serials in this sequence have absolutely nothing to do with anything of which disclosure would be required by the terms of the order made by this Court.
I am informed by Mr King, who appeared for the Commissioner of Police, that the serial numbered 243 was not located, either in original or copy form. It was not among the material provided by the Royal Commission. I propose to return the serials provided from the custody of the Royal Commission to that agency by returning them to Mr King.
The other material to which my attention was directed was a series of running sheets covering the dates 7 July 1982 to 2 August 1982, from which there are various deletions evident in the copies provided to the appellants, or which have been deleted in their entirety, the disclosed material in that case being merely that which shows the day and date to which the running sheet applies and its consecutive page number. In this case, Mr King was able to provide the Court with copies of the relevant running sheets in their unedited form. They are pages 96 to 145, inclusive.
I have inspected this material. I am satisfied that all of it was properly deleted on the grounds of relevance. None of it relates to inquiries about or concerning the Mickelbergs or matters relevant to the case concerning them. There is nothing in the material deleted which could fall within the terms of the order made by the Court in April 1997. Included in the material deleted is material which obviously relates to inquiries quite different from that known as the Perth Mint swindle. I will return to Mr King the unedited material he provided.
The application is dismissed.