Milenkovski v The State of Western Australia [No 2]
[2011] WASC 273
•3 OCTOBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2011] WASC 273
CORAM: McKECHNIE J
HEARD: 16 SEPTEMBER 2011
DELIVERED : 3 OCTOBER 2011
FILE NO/S: MCS 10 of 2010
BETWEEN: STEVE MILENKOVSKI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Lengthy delay - Late disclosure by prosecution - Consequences for accused - Whether constitutes changed circumstances
Legislation:
Bail Act 1982 (WA), sch 1, pt C
Result:
Home detention bail granted
Category: B
Representation:
Counsel:
Applicant: Ms L B Black
Respondent: Mr B Hollingsworth
Solicitors:
Applicant: Kate King Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hedgeland v The State of Western Australia [2011] WASC 181
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 201
Milenkovski v The State of Western Australia [2010] WASC 87
Milenkovski v The State of Western Australia [2011] WASCA 99
R v Mantase (Unreported; SCt of Vic; 21 September 2000
Rayney v The State of Western Australia [2011] WASC 3
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34
McKECHNIE J:
What this case is about
Does a delay of eight months from the time when a trial should have commenced, the applicant having been in custody since 25 February 2010, constitute changed circumstances sufficient to grant bail when the applicant has previously been refused bail by a judge and the Court of Appeal?
The issues
1.Was the prosecution principally responsible for the delay? Yes.
2.Having regard to the Bail Act 1982 (WA) does the delay constitute changed circumstances sufficient to make it appropriate for the grant of bail? Yes.
Background
The applicant is charged on indictment dated 27 July 2011:
Count 2: On 4 December 2009 at Stirling, Steve Milenkovski and [another] had in their possession a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another.
Count 5: On 25 February 2010 at Yokine and elsewhere, Steve Milenkovski [and others] attempted to possess a prohibited drug, namely, methylamphetamine with intent to sell or supply it to another.
The counts on the indictment referrable to other people relate to the transactions the subject of counts 2 and 5.
On 30 April 2010, Blaxell J delivered judgment refusing bail and his decision was confirmed by the Court of Appeal on 15 April 2011: Milenkovski v The State of Western Australia [2010] WASC 87; Milenkovski v The State of Western Australia [2011] WASCA 99.
The applicant's trial was scheduled to commence on 8 August 2011 and run for some weeks. It did not proceed and has been adjourned to 23 April 2012. Although the reason for the adjournment is relatively clear, the cause underlying the reason is in controversy. The applicant asserts that the substantial reason was continuing late disclosure by the prosecution. The prosecution contend that an adjournment was inevitable because the defence did not realise it was lacking pivotal evidence until shortly before the trial and, in any event, under the Bail Act, the application should be refused.
The Bail Act
The background and framework to the Bail Act are explained in Milenkovski [39] ‑ [41] (McLure P) who also sets out the proper approach to its construction.
Attention is therefore drawn to the questions in the Bail Act (a) ‑ (g). Matters relevant to consideration of cl 1(a) are set out in pt C 3.
The effect of the previous judgments on this application
Although the Court of Appeal held, by majority, that the primary judge had made an error, that error did not affect the outcome.
No challenge is made to those findings. The applicant's case is entirely based on changed circumstances. I am bound by the findings made by Blaxell J, as confirmed by the Court of Appeal. Nevertheless, I will set out the matters under the Bail Act and those findings before dealing with the changed circumstances.
The Bail Act: Schedule 1 pt C
1.Bail before conviction to be at discretion of bail authority, ...
[S]hall be at the discretion of the judicial officer ... and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant -
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
Clause 1(a) in turn is informed by pt C cl 3:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
Clause 3 (a) The nature and seriousness of the offence or offences
Clearly the offences are very serious and if convicted he faces the prospect of very lengthy terms of imprisonment: Blaxell J [38].
Clause 3 (b) The character ... associations ... of the accused
The applicant has no significant prior record of offending: Blaxell J [24].
The prosecution have adduced evidence in this application that the applicant, at the time of his arrest, was a member of the Comancheros Outlaw Motorcycle Gang, Perth Chapter. A photograph tendered by the prosecution at the hearing shows the applicant in Comancheros colours. At par 80 of the affidavit of Detective Senior Sergeant Taylor, sworn 13 September 2011, a series of the applicant's associates and their backgrounds is set out. Ms Black argues against any reasoning of guilt by association and this is a fair point. On the other hand, the statute requires consideration of the applicant's associations. I find that the applicant has deep associations with a motorcycle gang and connections with others who are of bad character. While not itself decisive it is a factor of some weight adverse to the grant of bail.
Clause 3 (c) The history of any previous grants of bail to him
Blaxell J noted that the applicant had previously stood trial for serious drug charges and was acquitted. He was released to bail on those charges and fully complied with all bail conditions [26].
Clause 3 (d) The strength of the evidence against him
Blaxell J described the case as 'a very strong circumstantial case' [36]; McLure P [19]. Before me, Ms Black commenced her submissions by conceding that the case against the applicant was very strong. Notwithstanding, Mr Hollingsworth wished to spend quite some time persuading me to substitute the adjective 'strong' with the adjective 'overwhelming'. The precise adjective makes no difference whatever to the outcome.
When a judge embarks on a consideration of the strength of the evidence against an applicant for bail, the limitations of that exercise should be remembered. First, a judge is necessarily doing so without having heard the evidence. Of course, in some cases, of which this may well be one, oral evidence may be secondary to physical evidence such as intercepted phone calls, text messages, forensic evidence and the like. Nevertheless, a judge is not conducting a trial and is not expected to spend the same time analysing the material as a trial court.
Secondly, an estimation of the strength of a case is a prediction as to the likely result that would be reached by another trial court, and in particular a jury. In a forensic contest, strong (even overwhelming) cases can be lost; weak cases can be won.
For the purpose of this application, I accept the formulation of 'a very strong circumstantial case' by Blaxell J, as confirmed by the Court of Appeal.
With those findings in mind I return to pt C cl 1(a):
[W]hether, if the accused is not kept in custody, he may -
(a)(i) fail to appear in court in accordance with his bail undertaking
This is often conveniently summarised by the expression 'flight risk'. Blaxell J held that if the applicant is not kept in custody, there will be a significant incentive for him to take flight in order to avoid punishment and the fact that his frozen property would be forfeited in the event of conviction would be unlikely to deter him from taking that step. Blaxell J's conclusion that there is a substantial risk of flight [38] was confirmed by the Court of Appeal's dismissal of ground 3: McLure P [47].
(a)(ii) commit an offence
Blaxell J considered the State had established that there was a possibility that the applicant may commit a further offence: Blaxell J [39].
This conclusion was reasonably open on the evidence: McLure P [48].
(a)(iii) and (a)(iv) do not apply.
1(c) whether the prosecutor has put forward grounds for opposing the grant of bail
This is an unusual question to be considered. Presumably the grounds of opposition must be based in reason or evidence. Normally the prosecution would oppose bail on one of the enumerated questions in pt C cl 1 or cl 3(a).
1(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate
Neither party directly argued this ground. It is unlikely to be decisive by itself in all but a handful of cases of which this is not one. The offence charged is very serious, regardless of the circumstances.
The balance of pt C cl 1:
Questions (b), (d) and (f) are not engaged in this application.
Changed circumstances
The applicant submits that the length of time kept in custody before trial and the reason behind the delay constitute changed circumstances sufficient to grant bail.
The prosecution concedes that if not granted bail the applicant will have spent 26 months in custody by the time his trial commences and further accepts that this is a very long time for an accused to be held in custody before trial. It further argues that the time must be considered in the context of all the circumstances of the case.
Delay: the principles
Because the grant of bail is an exercise of discretion, there are few cases of appellate guidance. Primary judgments give useful statements of principle but are necessarily imprecise guides as to the length of delay which would cause the decision‑maker to grant bail. In Hedgeland v The State of Western Australia [2011] WASC 181, the applicant was charged with two counts of murder and so exceptional circumstances had to be shown. Without any finding of fault by the DPP or police with respect to the delay, Simmonds J considered a delay in the order of 19 months, even a necessary one, is a matter of grave concern to the court [48]. In Rayney v The State of Western Australia [2011] WASC 3, the applicant was charged with murder. Anderson J concluded that the applicant would have spent an exceeding long time in custody by the time the trial concludes [9]. For this and other reasons bail was granted.
In Mikhail v The State of Western Australia [2010] WASC 201, Blaxell J concluded there had been continuing delay by the State in completing disclosure of its expert evidence and so the provisional trial dates had to be vacated. (Accordingly, more than two years will elapse from the arrest of Mr Mikhail until trial) [38].
He noted that if the trial had been able to proceed in September 2010, the applicant would have spent 20 months in custody [51]. If not granted bail, the likely time would exceed two years. The son of the applicant in Mikhail v The State of Western Australia also applied for bail. The same delay and reasons for it applied to him but bail was refused because of the strength of the prosecution case. Blaxell J's view was that in cases where there is unnecessary delay, the question whether this provides exceptional reasons why the accused should not be kept in custody must in a large part turn upon the strength of the prosecution case. In this regard, he said, it is self‑evident that the weaker the prosecution case and the longer the delay the greater is the prospect of a potential injustice [11]. The applicant in the present case does not have to overcome the burden of exceptional reasons.
In The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34, the applicant's first trial ended when the jury was unable to agree. The applicant had then been in custody for a year. A new trial was unlikely to occur for at least seven months. A period in custody since arrest of over 17 months was described by E M Heenan J as 'a very long time indeed' [46]. E M Heenan J noted:
The real factor for consideration in this case is whether or not there is a risk of the applicant absconding, a risk which has to be balanced against the long period in custody which he has already spent and will be required to serve before he can finally be tried on these charges. Long delays before an applicant for bail can be tried have, in a number of cases, been regarded as amounting, either by themselves or in combination with other favourable factors personal to the applicant, as constituting exceptional circumstances to justify the grant of bail. Examples of the effect of such delay, either alone or in combination with other factors, being determinative in favour of the grant of bail are provided by the cases of Saka v The Queen [2001] WASC 92 per McKechnie J at [38] - [40]; Outman v The Queen [2001] WASC 162; R v Kantzides, unreported; SCt of Vic; 9 August 1996; and A matter of an application for bail by Alexopoulos, unreported; SCt of Vic; 23 February 1998; Mokbel v Director of Public Prosecution (No 3) (2002) 133 A Crim R 141. In Pinkstone v The Queen (supra) the hardship associated with an extended delay before trial, during which the applicant was in custody, was regarded as substantial but nevertheless not sufficient to outweigh a real risk of flight in those particular circumstances [50].
E M Heenan J concluded 'that much longer delays are now commonplace in this State and elsewhere in Australia is no reason to relax the vigilance of the courts in ensuring that procedural delays do not cause injustice' and that a further seven months in custody before a retrial plainly transcended any tolerable limit [56].
In Mansell v The State of Western Australia [2011] WASC 170 the applicant spent a little over 15 months in custody before trial. This delay was not held to be exceptional for reasons specific to the case.
This review of the cases confirms that there is no fixed point at which delay becomes so gross that the interests of justice compel a grant of bail, whether or not exceptional reasons must be shown. However, the cases also establish that the reasons for the delay can be relevant to the ultimate question. And so it is the reasons for delay to which I now turn.
Delay: the evidence
The prosecution case in part depends on voice recordings of lawfully obtained interceptions of a telephone service. The prosecution claim that one of the voices is that of the applicant. In all the volume of material served upon them, the defence did not have eight CDs containing this evidence and their loss was not realised until shortly before the trial was due to start on 8 August 2011.
The missing discs
When the applicant was arrested he was represented by Mr Jeremy Noble. The applicant first appeared in the Magistrates Court in late February 2010, when the matter was adjourned.
On 5 May 2010, Detective Senior Sergeant Taylor served the initial committal brief on Mr Noble's offices and received an acknowledgement by way of signature.
On 3 June 2010, Detective Taylor served two further items on Mr Noble and again received a signature by way of acknowledgement.
In July 2010, a conflict arose between the applicant and Mr Noble. As a result, the applicant engaged Ms Kate King to represent him. On 14 July 2010 she filed a notice of acting in the bail matter in the Supreme Court and also served it on the DPP.
On 16 July 2010, Ms King contacted the DPP and asked to speak to the file manager, Mr Robert Wilson. He was on leave and she spoke to his paralegal. Ms King informed the paralegal that she was now representing the applicant and requested copies of any recent disclosure that may have been served in relation to the applicant be sent to her. On 19 July 2010, the DPP sent Ms King a statement of facts and the prosecution notice.
On 26 July 2010, Mr Wilson emailed Ms King and Mr Bates, then acting for another accused. The email commenced:
Dear Ken and Kate, I understand you are acting for two accused Mr Milenkovski and [another].
In the lead up to 13 September 2010, Detective Senior Sergeant Taylor compiled a large quantity of material (including the eight discs) to be served on all parties. Detective Senior Constable Broadley served a box of materials on the office of Mr Jeremy Noble on 13 September 2010, receiving a signature by way of acknowledgement. No‑one had told Detective Senior Sergeant Taylor or Detective Senior Constable Broadley that Ms King was acting.
The applicant was committed for trial in the Magistrates Court at Perth on 27 October 2010.
Although materials were eventually received by Ms King, the eight discs were missing. Nobody knows why they were missing. Ms King asserts in her affidavit that Mr Noble had no obligation to serve material on her. I do not agree. The material belonged to his former client, the applicant, and, absent a lien, should have been forwarded to new solicitors. At the least, Mr Noble should have advised police that he was no longer acting the moment he became aware that documents were served on his office. The police could have come and collected the material.
The defence team noted obvious gaps in the evidence (which the missing discs would have covered) but did not say anything as there was a significant forensic advantage to the applicant by reason of the lack of evidence. The day before trial, a meeting was held between the prosecution and defence team. It became clear then the defence did not have the eight missing discs which contained the majority of the voice conversations. The discs were served late in the afternoon of 7 August 2011 and the late service caused an initial adjournment of the trial for two weeks.
The prosecution acknowledge that the defence team did not have the eight missing discs but argue in effect that reasonable examination of the brief would have revealed that the prosecution was relying on voice interceptions as well as text messages.
However, the absence of voice communications was not particularly striking. In the application for bail before Blaxell J, Detective Senior Sergeant Taylor swore an affidavit in opposition which referred only to text messages not voice conversations. It was the text messages that Blaxell J relied upon, in part, in forming his conclusion as to the strength of the prosecution case.
Detective Senior Sergeant Taylor prepared an evidentiary matrix as his own working document. However, it was provided to the defence to assist them in understanding the prosecution case. He deposes:
[T]he matrix clearly refers to a number of telephone communications that were not on the hard copy of the prosecution brief (which in fact only contained a very small number of selected messages from selected warrants) but were contained on the discs provided to all parties. In fact, a large volume of the prosecution brief was not on the hard copy of the prosecution brief but was contained in the dics served on all parties including surveillance footage, EVR footage, CCTV footage and the like [52].
The matrix does not contain any reference to voice conversations relevant to the applicant. The matrix contains many references to SMS or text communications. In other words, there is nothing in the matrix which would immediately alert a reader to the fact that the State was relying in part on voice conversations.
On 20 July 2011, leading counsel for the prosecution, Ms Barbagallo, emailed the defence team advising of material to come and expecting it to be the following:
(1)Transcripts of SMS and TI calls we rely upon - I do note that the SMS and calls have been disclosed on discs but we will have transcripts delivered to all the parties in the near future. So this is not so much a disclosure issue but more about the way we have chosen to present the State's case.
That was followed six days later by an email from Ms Barbagallo to the defence team referring, amongst other things, to telecommunication evidence the State intends to lead at trial which consists of:
(1)A significant number of SMSs sent between the various parties (including those not named on the indictment eg [another]) which were lawfully intercepted pursuant to a TI Warrant.
(2)Downloads from the numerous telephones seized from various parties (No warrant required)
(3)Stored communications from various telephones utilised by the various parties which were lawfully retrieved pursuant to a TI Warrant.
As to (1) above, I advise that the SMSs which the State seek to rely on at trial are contained in the various ACC telephone discs served on all parties prior to the committal of this matter. The principal warrants relevant to this matter are Ostrich 2, Ostrich 3, Ostrich 6 and Ostrich 7. There are a large number of SMSs in total relevant to this matter. Further, you will have noticed that there are several spreadsheets of SMS messages found at various locations in the prosecution brief. These spreadsheets are only a very small portion of the total SMSs relevant to this trial and one ought not think that the prosecution case is confined to those schedules. They were merely provided to all parties to assist in focussing in on the more relevant telecommunications evidence.
Ms Black replied to this email on 3 August 2011 raising concerns about the use of stored communications. She was apparently not alerted to the possibility of voice communications. She received a response from Ms Barbagallo as to evidence that would be led, including TI product from warrant Ostrich 1, 2, 3, 4, 5, 6 and 7. Ms Barbagallo said in respect of each that this had already been disclosed by way of disk.
In an email dated 5 August 2011, sent by Mr Hollingsworth to the defence team, after referring to a WinZip file containing spreadsheets only recently provided by the ACC, he continued:
Ostriches 1, 4 and 5 and Trout 1, contain SMSs and audio calls ... For the audio calls a summary of what has been said in the call has been written in the summary column. If you wish to listen to the actual call then you already have these on discs.
It was the confusion generated by reference to these voice communications that led to the meeting of 7 August 2011 and the subsequent adjournment.
On the material available, and the way this application has been argued, I am unable to accept the submission that the defence ought reasonably have become aware of the missing discs much earlier. On the material before me, until quite late in the piece, the overall emphasis of prosecution case was on the text messages. The voice conversations, as I understand it, are to be led principally to prove that it was the applicant and not another who sent or received relevant text messages. The defence had taken a reasonable tactical decision not to alert the prosecution to an apparent deficiency in evidence.
Conclusion on the missing discs
At the hearing of this application, there was a lot of finger pointing about whose fault it was for the discs being missing and whether the defence should have discovered the fact earlier. For myself, the colloquial expression 'stuff happens' is probably sufficient explanation or, to put it another way, sometimes things go wrong despite everybody's best efforts.
Detective Senior Sergeant Taylor certainly did nothing wrong. He should have been told by the DPP or Mr Noble that Ms King was acting for the applicant. That is a communication breakdown. In the way in which the matter developed, including the bail application, I do not see why the defence team's particular attention should have been drawn to voice communications (which they did not know existed) until the emails and other communications in July 2011, by which time there was little could be done about it. So I do not lay the blame at anyone's feet but the fact is that the late discovery of the missing discs necessarily led to the first adjournment.
The first adjournment application
The trial judge was Scott DCJ. On the day of the scheduled commencement of the trial, 8 August 2011, the difficulties were outlined and at the conclusion, the trial judge postponed the trial for one week from 8 August to 15 August 2011.
On 12 August 2011, the parties were back before the trial judge. After argument chiefly concerning disclosure and a possible s 31A application by the prosecution, the trial was adjourned to 22 August 2011 and the matter was otherwise adjourned to 16 August 2011 for directions.
The possibility of adjourning the trial for four weeks was discussed but in view of counsels' other commitments that proved impossible. On 26 August 2011, the matter came before the Chief Judge who relisted the matter to commence on 23 April 2012.
Mr Hollingsworth argues that there was no realistic way in which the defence was going to be ready in four weeks because of the missing discs and so any late disclosure by the prosecution, and he conceded there was some, would not have affected the result.
It is necessary then to examine the disclosure in this case.
A few preliminary comments
It is often the case, and this is one, that the prosecution discloses material at a late or very late stage but comes to court and argues against an adjournment or, as here, opposes bail, because the material disclosed was tidying up loose ends, or not really significant, and so the trial should proceed or the accused remain in custody. This is the submission made here and it has been made many times. It misapprehends two things.
First, the obligation for disclosure rests on the prosecution and the burden cannot be transferred to the defence by the fallacious reasoning that the non‑disclosure or late disclosure was relatively unimportant. Nor can it be displaced by assertions that the defence have obligations under the Criminal Procedure Act 2004 (WA) s 96(3)(c) and s 96(3)(d) and somehow never told the prosecution what would be in issue. Indeed they do. However, the obligation can only arise after the prosecution has fulfilled its disclosure requirements. It is only then that the boundaries of the contest are clear.
The prosecution obligation for disclosure is set out in Criminal Procedure Act s 95 and is 42 days after committal for trial: Criminal Procedure Rules r 20(2).
The time for disclosure by the accused is the period ending 14 days before the date set for the trial of the accused: Criminal Procedure Rules r 21. Having regard to the workload of the superior courts, the practical effect is that the prosecution must disclose well before there is an obligation for the accused to respond. Of course, the duty must be obeyed as soon as practicable: Criminal Procedure Rules r 5. And all parties have an obligation to cooperate with the court in the efficient discharge of its responsibilities. But it is not incumbent on an accused to act before the entire prosecution material has been disclosed.
The second misapprehension under‑estimates the distraction and disruption caused by the drip‑feed of disclosure material late in the process. It may be, as the prosecution contends, largely matters of insignificance or formality. However, it has to be read and digested by the defence before that opinion can be verified. Moreover, a prosecutor may not know what a defence counsel regards as important.
The Criminal Procedure Act s 96(3) requires the defence, amongst other things to give:
(c)written notice to the factual elements of the offence that the accused may contend cannot be proved;
(d)written notice of any objection by the accused to -
(i)any document that the prosecutor intends to adduce at the trial; or
(ii)any evidence to be given by a witness whom the prosecution intends to call at the trial;
and the grounds for the objection.
The subsection is quite specific and is not to be read as qualifying location of the burden of proof or the exercise of any right to silence. My tentative view of the 'factual elements of the offence' does not extend to the evidence by which those facts may be proved. However, no argument was addressed on the interpretation of s 96.
As to (d), the defence do not necessarily object to evidence. Rather, as Ms Black argues, that the evidence is incomplete.
This case illustrates what may be a systemic failure to comply with prosecution disclosure obligations, but is certainly a signal failure in this case. Acerbic comments have been made by both the trial judge and the Chief Judge. I will not repeat them but expect that they have already been drawn to the attention of the Director.
The prosecutor's disclosure statements - a moving target
It is instructive to examine the various statements by prosecutors as to disclosure in order to understand the pressure late disclosure put on the defence at a time when they should have been concentrating on preparing for trial and coming to grips with the material in the missing discs:
16 April 2010: Detective Senior Sergeant Taylor certified pursuant to the Criminal Procedure Act s 45(5) that s 35 had been complied with.
17 February 2011: The DPP Case Manager, Mr R G Wilson certified as follows:
I am the case manager / solicitor with the conduct of this prosecution.
I certify that:
(a)in all respects other than those noted in this certificate the prosecution is ready for the trial of this matter;
(b)to the best of my belief the answers in this Certificate are correct; and
(c)it is not anticipated that a notice discontinuing the prosecution will issue.
I undertake that I will inform the Court as soon as is reasonably practicable after I become aware of any change in circumstances which results in a change to any of my answers on this Listing Certificate.
The two matters referred to were:
•The State intends to call a drug expert witness at trial. This statement has been requested but not yet been obtained.
•The accused's request for information had not been complied with, it being said: 'A copy of the police Exhibit Matrix has been requested by senior counsel for MILENKOVSKI and this is being obtained from police. It ought to be available by the 25 February 2011'.
18 February 2011: The case appeared in the Chief Judge's list the day after. In response to a question from the Chief Judge:
MARTINO CJDC: Yes. So I'm just being told that we do have the brief; it was received yesterday. I haven't seen it yet.
But I read that the State's listing certificate is saying that apart from those two matters, full disclosure has taken place. Is that the State's position?
COGIN, MR: That's the State's position, your Honour.
Ms Black then raised a question about disclosure seeking an order that there be no further disclosure permitted by the State after a certain time. The Chief Judge held that he did not have that power, which is correct. He then commented:
All I can rely upon is the assurances of the prosecution. I can make directions, but I can't prevent evidence being adduced. That's the position.
So obviously, the Office of the Director of Public Prosecutions has an obligation to ensure that an accused receives a fair trial, as soon as reasonably possible.
...
So the State tells me that it's completed disclosure.
6 May 2011: On this occasion, Mr Cogin again appeared for the prosecution. After dealing with the evidence matrix and the drug expert's statement he said:
In respect, last time this was before the court, the court asked about disclosure. Disclosure is complete, save for another couple of issues: and that is the file manager is seeking witness statements from airline staff in respect of information that's already on the brief; in other words, it's already disclosed the flights and things, we're just seeking more dotting Is, crossing Ts from airline staff confirming what would effectively be business records; and a statement from Detective Anthony Velluri (?) about downloaded materials from the mobile phone seized.
That evidence would be on the brief as well; so it's really a couple of statements or some witness statements that I would expect my learned friends would expect in due course, in any event.
20 July 2011: Email from Ms Barbagallo to the defence team:
As for disclosure matters that affect your client, I can advise that there will be some material to come and I expect it to be the following ...
I have already set out what was referred to.
26 July 2011: Email from Mr Hollingsworth to the defence team concerning new indictment and telecommunications evidence. I have set that out previously.
3 August 2011: Email from defence to prosecution noting references on the face of warrants to the interception of 'stored communications'.
5 August 2011, 3.31 pm: Email from Mr Hollingsworth to defence team. I have referred to this email. It contains material matters which were not disclosed and only recently provided to the DPP by the ACC.
8 August 2011: This was the day the trial was due to commence. At the hearing the prosecutor was asked by Scott DCJ about the nature of any further disclosure. The response:
BARBAGALLO, MS: Your Honour, there are - we are expecting a couple of extra statements. I can tell you that. One was requested by me late last week because it seemed that the warrant issue lacked clarity. So we've got one witness from the ACC that's going to give evidence about all of the warrants that are relevant to this particular trial. So I think that would be helpful to all parties in any event. But all it's doing is bringing together that which is on the brief. So there's that.
We are expecting a statement from Marisa Monique Wicks from Optus, I think she is, in respect of a phone that involves [another accused] ending in 531. And I'm hard-pressed to think of anything else at this point, your Honour.
10 August 2011: Letter to defence team from DPP paralegal which commenced:
Please find enclosed the following documents for incorporation into the State brief together with the attached revised index of today's date.
There followed 23 enumerated items. Furthermore, the letter continued:
Yesterday the State was made aware of the existence of a significant number of CAD interception warrants and stored communication warrants over the 19 phones which were purchased from Allphones. The State was previously unaware of the existence of these warrants. The State urgently obtained all the product for the stored communication warrants and expects to have the CAD interception warrant by the end of the week.
Then followed an explanation about the telephone numbers.
11 August 2011, 6.49 pm: Email from Ms Barbagallo to defence team. It commenced:
Good evening all,
I note that this matter has been set down for mention at 9.15 tomorrow morning before his Honour Judge Scott. I apologise for the late hour of this email but I belatedly formed the view that all parties ought to be advised of the State's current position so far as to disclosure is concerned, prior to tomorrow morning's appearance.
At the present point in time, speaking candidly, the material that is yet to be served on all parties (but which is not in our possession and some of which is not yet in existence) is as follows:
There followed a list of 16 matters. Ms Barbagallo qualified her email:
Some of this material listed above has been sought by us in order to address likely trial issues should there not be appropriate admissions by the parties. However, given some of my discussions with various counsel, it seems that some of this material is unlikely to be required at trial.
In my opinion, with the exception of items (5), (6), (7), (12), (13) and (15) above, the State is likely to have disclosed to all parties the material listed above by close of business on Wednesday August 17, 2011. As to items (5), (6), (7), (12), (13) and (15), I can say that these matters are being attended to urgently by third parties. ...
I highlight, for the assistance of counsel, the following pieces of material yet to come, that may have a significant impact on the case against a particular accused or a number of the accused men (just in case it gets buried in all of the material):
There followed two matters. The email continues:
In the morning, all parties will be served with the following additional material:
There followed 12 matters.
How this email by Ms Barbagallo is reconciled with her statement to Scott DCJ on 8 August 2011 has not been satisfactorily explained despite an invitation to do so being made to junior counsel for the prosecution, Mr Hollingsworth, who appeared on this application. The difference is troubling.
12 August 2011: The hearing before Scott DCJ commenced with Ms Barbagallo saying:
[T]hat over the course of the last few days there has been some further disclosure made by the State and this morning some more material was served on the parties.
She explained that she had had a conference with the investigator and gone through a schedule of unused material and there were a number of pieces of material in evidence which she thought ought to be disclosed to the parties. That led to other enquiries. Ms Barbagallo conceded in response to a question from the judge that the material:
It probably infiltrates a broader spectrum of the trial. And can I say this, that it affects, certainly, the newly disclosed material that I provided notice to the parties with last night, affects [another accused] quite significantly and Mr Milenkovski as well.
Ms Black raised the position of two men both relevant in the trial. She said:
We emailed the prosecution only a short time ago, asking for some information about these people and were told that the prosecution couldn't assist and we would have to satisfy them to the relevance of our enquiry and so we decided to leave well enough alone. Only to be told now that the prosecution do intend to make - they foreshadow making it [an application under s 31].
In considering the adjournment the judge made some comments which I will not repeat in full. He considered the position was outrageous because the Criminal Investigation Act 2006 (WA) had been crafted to avoid just this sort of problem.
11 August 2011: Letter from prosecution to defence team. This letter enclosed further compact discs or DVDs and acknowledged:
[T]he discs that we thought contained transcripts of some of the audio calls relied upon did not contain the material anticipated. The State understands that most of the transcripts have been prepared by the ACC and once they are all received they will be printed, paginated and incorporated into the brief.
15 August 2011: Letter to defence team from prosecution:
Please find enclosed the following documents for incorporation into the State brief together with the attached revised index.
There followed four matters.
16 August 2011: Letter from the prosecution to the defence team enclosing a further statement and hotel record.
16 August 2011: At the hearing Scott DCJ asked Ms Barbagallo to indicate where disclosure had reached and noted:
Look, I'm mindful of the fact that one of the important issues in this case is to ensure that the parties aren't deterred or distracted from the task of ensuring that we're ready for trial in this matter ...
Ms Black advised the court:
The fact that disclosure occurs on literally a daily basis has made it difficult, if not impossible, on some days to actually get on top of what we already had. We are forever dealing with the new things that are coming through.
That is complicated by reason of the fact that I have spent literally all day today preparing submissions to be filed in relation to my application which I hope to have filed later today, assisting Ms King to prepare an affidavit dealing with all of the factual matters that will need to be dealt with.
So to put it bluntly, today not one second has been spent on preparing the trial. The entire day has been devoted to dealing with the legal arguments.
17 August 2011: Letter from DPP to defence team:
Please find enclosed the following documents for incorporation into the State brief together with the attached revised index of today's date.
There followed a list of ten matters.
26 August 2011: At the listing hearing before the Chief Judge:
MARTINO CJDC: But I'm asking you, when will you complete disclosure of all material in possession of the police or the Director of Public Prosecution?
WILSON, MR: Well, my instructions are, your Honour, that as at today, it has been completed.
Ms Black interjected to point out that this was contrary to what Ms Barbagallo said on the previous occasion.
The Chief Judge ordered that by 23 September 2011 the parties file fresh listing certificates:
And I would expect that then the State will be in a position to tell me, if it hasn't already completed disclosure, when it will have done so by.
Conclusion on delay
The chronology speaks for itself. The State's disclosure obligations were far from complete when Mr Wilson signed the listing certificate in February 2011, and subsequent statements by prosecutors to the Chief Judge and Scott DCJ misinformed them both as to the fulfilment of the State's disclosure obligations.
There are few consequences to the DPP if it fails its disclosure obligations. Permanent stay applications are unlikely to be successful and applications to limit evidence under the Criminal Procedure Act s 98 could best be described as 'hopeful'. Clearly there is a public interest in a jury having available to it all relevant admissible evidence.
Even though there is no real consequence to the prosecution, there is a great consequence both to the administration of justice and to an accused person. The consequences to the administration of justice are not relevant to this application. The consequences to an accused are. The applicant remains in custody beyond a point at which his trial could have taken place, as I find, due to the actions of the DPP in failing to fulfil its disclosure obligations in a timely manner.
Mr Hollingsworth made the submission that the missing discs were so pivotal to the case that the reality was the defence could never be ready for trial in the time for adjournment allowed by Scott DCJ, but that cannot be established.
The defence repeatedly indicated that they wished to proceed if possible. As Scott DCJ indicated, and the evidence compels, the defence were prevented from working on the missing disk material when they obtained it because of a constant drip‑feed of material from the DPP, coupled with the foreshadowed propensity application. It is the case that Ms King's affidavit in support of the application for the adjournment concentrated on the missing discs and the difficulties in obtaining instructions. She also raised the s 31A application. However, she did point out that she could not complete a proof of evidence from the applicant until disclosure is complete. She also deposed that there has been inadequate time to provide the applicant with print‑outs or photocopies of all the material provided by the DPP and not all of it can be printed or photocopied, for example audio calls. She concludes:
Having taken into account all of the material that is currently in the possession of the defence, the material that is yet to come and all of the factors referred to herein and matters known only to the defence, I am of the view and I am informed by Counsel and believe that she is also of the view that it will be at least 4 weeks before the defence would be in a position to commence the trial.
While the principal reason was the material and the missing discs, Ms King did advert to late disclosure and the problem that would cause. It may be not so much the nature of the late disclosure but the fact that it was late and continuous over a period when the defence had to concentrate on final trial preparation and the evidence on the missing discs that caused the adjournment.
Conclusion on bail application
I am of opinion that a substantial cause of the delay was the conduct of the DPP in respect of disclosure. The delay from August 2011 to April 2012 constitutes changed circumstances.
The matters which I have earlier outlined under the Bail Act pt C are powerful reasons why bail should be refused. The delay and its cause are also a relevant questions.
As Vincent J said in R v Mantase (Unreported; SCt of Vic; 21 September 2000:
[I]f our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represented the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice.
The excessive delay, for which the prosecution conduct is a substantial cause, brings the scales of justice down on the side of a closely confined grant of bail.
Furthermore, I am required to take account of question pt C 1 (e):
[W]hether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
A home detention condition would satisfy cl 1(e)(i) and (ii). Nothing less than a home detention condition however would sufficiently remove those possibilities. I have received a home detention bail assessment. While perhaps guarded in its terms, there are no grounds to indicate the applicant would not comply with a home detention bail condition. The accused is to be granted bail on his own recognisance in the sum of $100,000 with a Justice of the Peace approved surety to like amount. There is to be a home detention condition, a condition that the accused surrender all passports and undertake not to apply for a further passport, and does not leave Western Australia or approach within 500 metres of any airport or interstate train or bus station.
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