R v HANLON (No 3) - [2022] SADC 135

District Court of South Australia
(Criminal)
R v HANLON (No 3)
[2022] SADC 135
Reasons for Rulings of his Honour Judge Heffernan
8 November 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
1. The prosecution applied to adjourn the trial because it had not made the necessary arrangements for six witnesses from Germany to attend either in person or by AVL. For that to occur, it was necessary for the prosecution to make a Mutual Assistance Request to Germany in a timely fashion. No application was made.
Held: Application dismissed.
2. On the refusal of the adjournment application the prosecution indicated that it would tender the statements of the six German witnesses pursuant to s34KA of the Evidence Act. The defendant made an oral application pursuant to s34KD of the Evidence Act to exclude the statements from evidence.
Held: Defence application granted, each of the six statements excluded from evidence.
Evidence Act 1929 (SA) ss 34KA, 34KD and 66, referred to.
R v Callaghan [1966] VR 17; Director of Public Prosecutions (NSW) v Ozakca (2006) 68 NSWLR 325; R v McNamara [1965] VR 372; Ex parte Sloan [1983] 8 A Crim R 424; R v Hurcombe and Sykes [1984] 116 LSJS 429; R v Koenig [2013] SASC 42; R v Haines [2016] SASC 96; Mullen v Director of Public Prosecutions (SA) [2020] SASC 10; R v Forrest (2016) 125 SASR 319; R v Lobban (2000) 77 SASR 24; Ridgeway v The Queen (1995) 184 CLR 19; Pollard v The Queen (1992) 176 CLR 177, considered.

R v HANLON (No 3)
[2022] SADC 135
Criminal Jurisdiction

On 7 November 2022, I refused an application by the prosecution to adjourn the trial in this matter. The following day, I granted an application made by the defendant for the exclusion of what I will refer to as ‘the German evidence’.
These are my reasons for so ruling.
Background
On 25 October 2022, the prosecution filed an application to adjourn the trial. I have set out the alleged factual background to these proceedings in previous rulings. It is not necessary for present purposes to repeat it in detail.
A significant part of the prosecution case depends on evidence from six witnesses who are either German nationals or who reside in The Federal Republic of Germany (Germany). At the time of making the application, the prosecution had not made the appropriate arrangements for those witnesses to give evidence either in person or by audio-visual means (AVL). As the witnesses reside in Germany an application known as a Mutual Assistance Request (MAR) was required in order to do so. MARs are made through the International Crime Cooperation Central Authority (ICCCA) of the Commonwealth Attorney General’s Department in Canberra. It was not in dispute that Germany regards an approach by a foreign entity to witnesses living within its borders as a breach of its sovereignty.
The current advice from the ICCCA with respect to MARs in general and Germany in particular, set out in their letter of 26 October 2022 to the Director is as follows.
The requirements associated with the appearance of overseas witnesses via AVL or in person:
... reflects the sovereign right of all countries to govern what occurs in their territory and to protect the rights of their nationals. The timeframes for the consideration and provision of assistance pursuant to a MAR are also a matter for authorities in the foreign country, and are beyond the control of the ICCCA.
With respect to AVL requirements in Germany, the ICCCA advises that:
… pursuant to Germany’s domestic legislative framework, a MAR is required in order for a witness in Germany to give evidence via AVL. Additionally, Australian authorities cannot contact witnesses in Germany directly and the appearance of any witnesses in Germany via AVL must occur in a sitting German court.
Further, obtaining evidence from a witness in Germany is not simply a question of establishing an AVL and then leading evidence. The ICCCA advises that:
… Germany requires a comprehensive list of questions that will be put to the witness and a German judge will be responsible for directing the proceedings and the questioning of the witness. The direct questioning of a witness via AVL by Australian authorities would be deemed by Germany as a disproportionate violation of their sovereignty.
Obtaining approval from the authorities in Germany in order to facilitate the attendance of a witness from that country to give evidence in a trial can take as long as nine months. Obtaining approval for evidence by way of AVL can take up to two months. The need to obtain such approval only became apparent to the DPP solicitor with the conduct of this file in October of this year. Self -evidently, if the trial ran as listed, the prosecution would not be able to call evidence from those witnesses.
The adjournment application
The issues relevant to this application are best understood in terms of the procedural chronology:[1]
[1] The details are taken from the affidavits of M Selley and K Draper.
1.In September 2017, the defendant travelled to Germany on flights booked and paid for by Renewal SA.
2.In September 2018, ICAC commenced an investigation into the defendant.
3.On 25 September 2018, the defendant received a letter from the Minister for Infrastructure and Planning advising that he was suspended from his position as Chief Executive (CE) of Renewal SA in light of the investigation being conducted into his conduct by the ICAC.
4.On 23 April 2019, the ICAC authorised an investigation into the defendant’s travel to Germany.
5.On 20 July 2019, the defendant’s contract of employment as CE of Renewal SA expired. Prior to the ICAC investigation, the defendant had been led to believe that his contract would be extended for a further term of five years. He has not undertaken any paid work since his suspension from employment: he says entirely due to the fact of these charges. He is presently a self-funded retiree.
6.In September 2019, ICAC Officers Bridge and Baker travelled to Germany for the purpose of making enquiries and speaking to potential witnesses. Statements were taken from each of the six German witnesses. Under German law, approval pursuant to a MAR was required before the officers travelled to Germany and conducted any enquiries. No approval was sought or given. The lead investigator from ICAC was not aware that such approval was required. She was aware that pursuant to s 66 of the Evidence Act1929, if affidavits are taken overseas, they must be witnessed by one of a prescribed category of persons. One such person is a Consul General of the Commonwealth of Australia. After three of the statements were taken, the officers attended with the witnesses at the Australian Embassy in Berlin intending to have the Consul General witness the swearing of the affidavits. He was not aware that ICAC officers from South Australia had travelled to Germany for the purpose of conducting an investigation and advised the officers of the need for a MAR before any travel to Germany could be made for that purpose. The Consul General refused to witness the affidavits. The lead investigator witnessed the signatures of the witnesses on the statements. Three further witness statements were taken by the ICAC officers after the meeting with the Consul General.
7.In November 2019 ICAC sent the investigation brief for the first time to the DPP for advice. It did not put the DPP on notice that the German evidence had been obtained contrary to German law and in breach of the MAR obligations of the Commonwealth. Had it done so, the significance of MARs with respect to witnesses would have been apparent to the solicitor who initially had conduct of the file. It would also have been apparent to the DPP at an early stage that retrospective steps might need to be taken, if possible, to ensure that the evidence was only presented if it had met with the approval of the German authorities.
8.On 5 March 2021, the defendant was arrested, on the charges laid in the Magistrates Court.
9.On 18 June 2021, the prosecutor at committal conceded that on the evidence the charges as particularised could not be proven beyond reasonable doubt. The charges laid in the Magistrates Court were dismissed. That concession is now acknowledged by the Director as having been a mistake as to the law.
10.On 12 May 2021, the ICCCA wrote to the Deputy Director of Public Prosecutions (the Deputy Director) to advise of the requirements of MARs applying to foreign countries including when dealing with investigations and evidence involving persons residing in Germany:
MAR required in all circumstances. No contact should be made with a witness or prior to a MAR being made. Examination via AVL requires consent of the person and the involvement of the German court.
11.Between 18 June 2021 and 7 September 2021 the matter was considered by the Deputy Director and a decision was ultimately made to lay the ex officio Information on which the defendant presently stands charged.
12.The ex officio Information was filed on 7 September 2021. The Information named the six German witnesses.
13.In September 2021, in relation to DCCRM 17-1799 R v Clark, the need to make a MAR and the prohibition against direct contact with overseas witnesses came to the attention of the solicitor with conduct of that file. The issue was agitated before this court on a number of occasions from early December 2021 and during January 2022.
14.On 12 October 2021, this matter was listed for trial on 31 October 2022.
15.At some time prior to 24 November 2021, the DPP solicitor who currently has carriage of this matter was assigned to assist the then Deputy Director with the prosecution.
16.On 24 November 2021, the solicitor first received correspondence with respect to this file. On that day she also met with the Deputy Director for the purpose of a briefing about the matter. As a result of that briefing, she was formally advised that she was to be the solicitor with conduct of the file and the assistant prosecutor in any trial.
17.On 25 November 2021, the Deputy Director was appointed to judicial office.
18.It is not disputed that the allocation of this file to the solicitor with conduct came at an extremely busy time in her practise. She retained the carriage of this file when she was transferred to the prosecution section in early 2022 and began to be allocated trials for prosecution as counsel.
19.The trial in R v Clark, which was listed for 18 January 2022, was adjourned on the DPP application because the Director had not yet been able to obtain approval for the overseas witnesses to either give evidence by AVL or in person.
20.On 17 January 2022, an internal email was sent to all professional staff of the DPP to the effect that a MAR was likely to be required for any overseas witnesses. The email attached a schedule of the requirements of individual countries including Germany.
21.On 28 March 2022, as a result of the ‘Bell Undertaking’, an officer from SAPOL was assigned as the investigating officer for this prosecution. Understandably, he did not have a detailed understanding of the evidence in the matter.
22.On about 20 June 2022, the solicitor with conduct was also assigned as a solicitor for a Supreme Court trial of notorious size and procedural complexity.
23.On 11 July 2022, the ICCCA wrote to the Director of Public Prosecutions with updated information with respect to the requirements for the provision of AVL testimony. That included advice that with respect to Germany: ‘MAR required in all circumstances. Witnesses must not be contacted directly.’ That letter suggested that three months’ notice was required to arrange an AVL to a witness in Germany.
24.On 5 August 2022, the solicitor with conduct emailed the investigating officer to request that he arrange witness summonses for all prosecution witnesses. She pointed out to the investigating officer that there were a number of interstate and overseas witnesses. At the time of making this request she was aware in general terms of MARs but did not turn her mind to the need for one in this matter. She held a positive belief that it was permissible to contact an international witness for the purpose of facilitating their attendance to give evidence.
25.On about 19 September 2022, the Office of the DPP made changes to the workload of the solicitor with conduct of this matter to enable her to concentrate on preparing it for trial.
26.On 26 September 2022, I heard submissions with respect to the defence application for a stay of proceedings.
27.On about 10 October 2022, the solicitor with conduct of the file became aware of the potentially unpredictable and time sensitive nature of MARs. She immediately contacted the ICCCA, firstly by email and then by telephone and learned for the first time that Germany required a MAR to arrange for a witness to attend in Australia to give evidence and that any contact with a witness prior to approval was prohibited. Having learned this, she immediately advised the investigating officer to stop his attempts to contact the German witnesses. It is clear from her affidavit that the solicitor with conduct acted swiftly and prudently as soon as she learned of a potential difficulty in securing the attendance of those witnesses.
28.On 14 October 2022, enquiries were made of the solicitor for the defendant as to whether any of the German evidence could be agreed. Unsurprisingly, the defendant indicated that he was not prepared to agree that evidence.
29.On 24 October 2022, I delivered my reasons refusing the application for a stay of proceedings. On that day, I was advised that the prosecution was unable to secure the attendance of the German witnesses at trial and that it sought an adjournment of the trial.
30.On 25 October 2022, the DPP filed its interlocutory application pursuant to Rule 38.1 of the Joint Criminal Rules 2022 for an adjournment.
It is neither necessary or appropriate for me to comment on the ambit or instigation of the ICAC investigation.
A further matter requires clarification. As can be seen from the above, contrary to a submission made to me, the Deputy Director was not appointed to judicial office on the day after the filing of the ex officio Information.
Unlawfulness
A prominent feature of the defendant’s submissions with respect to both the adjournment application and the s 34KA application was that the conduct of the ICAC officers whilst in Germany amounted to a breach of German domestic law. No substantive submissions were made to me about that matter. I cannot determine, nor is it necessary for me to do so, whether the conduct of the ICAC officers amounted to a breach of German domestic law. The law of a foreign country is a matter to be proven in court in the usual way by expert evidence. I have heard no evidence on that matter. It is also not necessary or possible for me to determine whether the conduct of the ICAC officers amounted to a breach of German sovereignty as a matter of international law. What is known is the advice received from the ICCCA. At the very least, it is clear that Germany takes very seriously the notion of agents from a foreign country gathering evidence and speaking to witnesses within its borders.
Submissions
The prosecution stressed the attempts made by the solicitor with conduct of this matter to inform herself of the correct position once the present difficulties came to her attention.
In the prosecution’s submission, the allegations are serious, arising as they do out of the position held by the defendant at the time of the allegations. As such, there was a high degree of public interest in the prosecution being able to present its case to best advantage. Further, the evidence from each of the witnesses plays an important part in the prosecution case against the defendant.
The learned prosecutor frankly conceded that an important matter concerning the preparation of the trial had been overlooked. I accept the submission that the unavailability of the witnesses does not arise because of any bad faith or impropriety on the part of the DPP. Further, the prosecutor stressed that this was a matter which involved a large amount of both hard copy and electronic material arising from the ICAC investigation. I accept that this is a complex case.
It was further submitted that, between the conclusion of the committal proceedings and this point in time, there has been a turnover in prosecution personnel responsible for the conduct of the file. In particular, the Deputy Director who reviewed the matter for the purpose of laying the ex officio Information and who settled the prosecution case statement, left the DPP on her appointment to judicial office. It is in the context of her departure that the solicitor with conduct of the file first became seized of it. It was submitted that there was a significant loss of corporate knowledge with respect to this matter. That was complicated by the Bell Undertaking, which meant that the investigation duties had to be transferred from ICAC to SAPOL. The prosecution submitted that an adjournment of the trial would not produce an unfairness to the defendant.
Counsel for the defendant submitted that he was prepared for and ready to proceed with the trial as listed. He emphasised the failure of the ICAC to obtain a MAR and its subsequent failure to inform the DPP firstly, that it was aware of the possibility that the German evidence had been obtained in contravention of German domestic law and secondly, of the logistical difficulties presented by MARs in general.
It was submitted that the DPP should have been aware of the requirement for a MAR to facilitate the attendance of overseas witnesses. That is particularly so, given correspondence received by the Director’s Office in 2021 and 2022 from the ICCCA alerting it to the requirements of foreign countries in this regard. Just as significantly, within the last 12 months this issue had caused another trial to derail, and the importance of MARs was drawn to the attention of all professional staff.
Counsel for the defendant submitted that the defendant has been subjected to a protracted investigation, a procedurally unorthodox prosecution, has not worked since his suspension from employment due to the nature of these unresolved allegations and that consequently, these proceedings are taking a toll on his mental health. An adjournment would also cause him to incur additional costs. There has been no delay occasioned by the defendant, but an adjournment would, in the ordinary course, see these proceedings delayed until sometime in late 2023.
Consideration
The court has both a rules-based power[2] and inherent discretion[3] to grant an adjournment for whatever reason. I accept the prosecution submission that the power is broad and unfettered. The question of adjournment in a criminal trial is to be determined by considering the interests of justice, not the interests of the defendant. The interests of justice must be determined by weighing the public interest in the prosecution being able to present its full case, against the right of an accused to an expeditious trial.[4]
[2]     Joint Criminal Rules 2022; R 12.1, R 38.1.
[3]     R v Callaghan [1966] VR 17, 19.
[4]     Director of Public Prosecutions (NSW) v Ozakca (2006) 68 NSWLR 325.

Another factor is the public interest in the timely finalisation of criminal proceedings. A consideration in circumstances such as these is whether the evidence is relevant and necessary. Another is whether the inability to present the evidence has been occasioned by a failure to take necessary steps required to secure the attendance of witnesses by the party seeking the adjournment.[5] It should be noted that almost all of the authorities with respect to the exercise of the discretion to adjourn a trial relate to occasions on which an adjournment was refused on the application of a defendant. In R v Hurcombe and Sykes,[6] in reluctantly granting an application by the Crown to adjourn a criminal trial because a prosecution oversight had meant that police witnesses were unavailable, King CJ had this to say:
[5] R v McNamara [1965] VR 372; Ex Parte Sloan [1983] 8 A Crim R 424; Joint Criminal Rules 2022 R 27.1.
[6] [1984] 116 LSJS 429.
When a date is fixed for trial at the call over the situation however changes. The Court sets aside the time which is necessary for that trial. If the trial for any reason does not proceed on that date, there is disruption and frequently a loss of Court time. That involves expense to the taxpayer and also intensifies delays and congestions in the list. As a consequence other persons awaiting trial are unable to be tried as soon as they should be. Moreover, all parties, once the date for trial is fixed are entitled to make their arrangements for council and witnesses on the basis that the trial will proceed on that date. The rule therefore is that once a date is fixed for trial, it will be varied only in exceptional circumstances, those circumstances are generally being developments which were unforeseeable by the parties at the date of the call over. …[7]
[7] Ibid, 431.
Having discussed the administrative oversight which led to the witnesses not being notified His Honour continued:
I wish to make it absolutely clear that a decision of this kind will not be repeated in the circumstances. It is the clear duty of the police department and the Crown Law Officer between them to see to it that full information is given to the court before the date for trial is fixed. Once that date for trial is fixed it will not in the future be varied by reason of leave arrangements of police officers or, indeed, of other witnesses. Once the date for trial is fixed it is the responsibility of all parties to procure the attendance of their witnesses at the trial. …
These reasons which I now publish must serve as a clear warning to all that failure to provide the Court with proper information at the appropriate time will mean that the arrangements made for trial at a call over will have to be adhered to, no matter what inconvenience might be caused. It must be stressed that however great is the concern of the Court for the convenience of citizens, particularly police officers who have their arrangements disrupted in consequence of being required to attend as witnesses in criminal trials, in the end the interests of justice have to prevail over individual convenience.[8]
[8] Ibid, 432.
Whilst the above comments were made in the context of police witnesses having to cancel leave arrangements in order to secure the interests of justice, the principles pertain equally to a situation such as this, where appropriate arrangements have not been made to secure the attendance of important witnesses.
I turn to the application of the above principles. The German evidence is relevant and necessary to the prosecution case: all the more reason that firstly, it should have been secured with a MAR but more pertinently for this application, that the appropriate MAR arrangements should have been made for the attendance of the witnesses.
There is a very high public interest in properly made allegations of abuse of public office being brought to justice. There is clearly a case to answer in this matter. There is also a public interest in allegations of this kind being finalised as quickly as possible, given their potential to affect public confidence in the administration of the public sector.
At an organisational level, the office of the Director should be aware of the need for MARs in appropriate circumstances. The frank affidavit sworn by the solicitor with conduct is not a complete answer to the position in which the prosecution has found itself. Responsibility for what the prosecution refers to as ‘an oversight’ cannot conveniently be sheeted home to her. The failure to make appropriate and timely arrangements for the German witnesses is a systemic failure, responsibility for which is shared by each of the numerous officers of the DPP at both junior and senior levels who from time to time had responsibility for the carriage of, or with respect to aspects of, this prosecution.[9] The solicitor who had carriage of the matter in the immediate lead up to the trial is simply one of a number of practitioners who were either unaware of or did not turn their minds to the need for a MAR. This file was, after all, first sent to the Director’s office for advice in November 2019.
[9] I exclude from that observation the learned trial prosecutor, who became seized of the matter only very recently at a time when there was no practical step she could have taken to remedy the situation.
To attempt an apportionment of blame between individual practitioners is neither possible, necessary or desirable for the purposes of determining this application. It must nonetheless be observed that the onus on the prosecution to make the necessary arrangements in an appropriate manner was particularly acute given that the power to lay an ex officio Information was used after the erroneous concession by the prosecutor at committal. As the defendant pointed out in his submissions, each of the German witnesses was named on the Information. There was at least an implied assurance by the prosecution to both the court and the defendant that this matter was ready to proceed to trial on the occasion that it was listed for trial. That necessarily means that all relevant witnesses are ready, available and able to give evidence when the trial is reached.
A MAR has not yet been made by the prosecution. It seems inevitable that the German authorities will at some point become aware of the fact that a significant investigation has taken place within its borders in what it regards as a breach of its sovereignty.
It is not known what attitude they will take to the request in light of that fact. For that reason, it is not yet known if the prosecution will ever be able to facilitate the evidence from the German witnesses either in person or by AVL.
An adjournment of the trial might not prejudice the defendant in the sense that he would be deprived of an opportunity to adequately defend himself. That is not the only form of prejudice relevant to a consideration of his position and this application. Every criminal prosecution is commenced against a person who is presumed to be innocent unless and until a jury returns a verdict finding otherwise. The high importance that our system places on that presumption is of itself one of the reasons that a defendant is entitled to be tried as expeditiously as possible. Another is the inevitable toll that being the subject of very serious allegations can take on a person presumed to be innocent. Speaking in the context of appellate review of a refusal to grant the prosecution an adjournment, Rothman J made the following observation:
It cannot be stressed enough that the elements associated with the right of an accused to escape the continuing state of anxiety and insecurity that necessarily accompanies a criminal charge must be paramount…[10]
[10] Ozakca (fn 4) [25].
With respect, I agree.
In this matter, the defendant has been the subject of a vigorous ICAC investigation, comment in Parliament on a number of occasions and intense media scrutiny for about four years. In that time he has lost his job, been unable to obtain alternative employment because of the odium associated with the principal charge, been subjected to what turned out to be an erroneous capitulation at committal, endured about three months of uncertainty whilst consideration was given to the filing of an ex officio Information and incurred what I am told are enormous legal costs to prepare his defence. There is no reason for me to doubt the defence assertion that an adjournment would cause him to incur significant extra costs. The nature of the investigation was such that his phone and those of his wife and daughter were subject to forensic examination. I am told the entire process has taken a toll on his mental health and there is no reason for me to doubt that that is the case. All of this, as the result of an investigation and prosecution based in substantial part on evidence which may or may not have been obtained in breach of German domestic law but which was improperly obtained in circumstances which that country regards as a breach of its sovereignty and clearly in breach of mutual assistance obligations of the Commonwealth.
The reason for the adjournment application falls at the feet of the prosecution and was entirely avoidable. I have given very considerable weight to the circumstances of the defendant and what I accept is his genuine desire to have his trial proceed as soon as possible. I have also given weight to the high degree of public interest in charges such as these proceeding. In the end, and for the reasons that I have given above, I have concluded that on balance, the interests of justice require the trial to proceed as listed.
Should the Evidence be admitted pursuant to s 34KA?
After I dismissed the adjournment application, the prosecution indicated that it would tender the six statements pursuant to s 34KA (2)(c) of the Evidence Act. I accept that, notwithstanding the matters I have discussed above, the statements would be admissible pursuant to that section.[11] The practical effect of this was that unless excluded, the statements could be tendered for the truth of their contents and the defendant would have no recourse to cross-examination.
[11] R v Koenig [2013] SASC 42, [205].
An oral application was made by the defendant pursuant to s 34KD, which preserves the common law discretions to exclude evidence. The defence made submissions which, in effect, called on me to exercise my general unfairness discretion and the public policy discretion to exclude the evidence. It was necessary for the defendant to demonstrate prejudice greater than simply the loss of the right to cross examine. In determining to exclude the evidence, I took the following matters into account.
The need to utilise s 34KA only arose because of the failure of the prosecution to make MAR arrangements. The effect of s 34KA represents a significant departure from the common law rule against hearsay and the right of an accused person to test the evidence against them.[12] The loss of the common law protections is subject to s 34KD and the forensic unfairness to the accused ‘must be evaluated’.[13] Whilst the forensic disadvantage caused by the operation of s 34KA is ameliorated to some extent by the operation of s 34KB,[14] that section is of no practical use to the defendant, the witnesses all residing in Germany and the defendant only recently having been advised of the possibility of tender pursuant to s 34KA. The defendant cannot now readily subpoena materials which might cast light or doubt on the claims of the witnesses.
[12] R v Haines [2016] SASC 96, [40].
[13] Ibid.
[14] Mullen v Director of Public Prosecutions (SA) [2020] SASC 10, [41].
I accept and take into account the fact that the statements are an important part of the prosecution case. The value in the evidence is asserted to be that it has the tendency to contradict explanations the defendant gave as to his activities in Berlin with respect to sites of interest and relevance to his employment with Renewal SA. That is one reason why the forensic disadvantage to the defendant if the statements were to be admitted in this way would be very significant. The evidence is disputed and goes to the element of acting improperly. I accept that on their face there is no reason to doubt the accuracy of the statements, allowing for the fact that some of them fall short of completely excluding the possibility that the defendant may have visited certain sites. The apparent reliability of the statements drawing, as many of them do, on business records is another reason why it would be a significant forensic disadvantage to the defendant if he did not have the ability to cross examine on them.
I have mentioned in these reasons that the advice from the ICCCA is that Germany regards any approach to a witness in Germany without a MAR as a breach of its sovereignty. I do not know if the tender by the prosecution of the statements might expose the German witnesses to jeopardy if the German authorities came to learn that they had cooperated with foreign investigators in breach of German sovereignty.
Further, if the statements are admitted, the only reason the defendant will be denied the right to cross examine the witnesses is because of prosecutorial error. It seems to me to be fundamentally unfair to the defendant if the prosecution was able to avail itself of a mechanism which would prevent scrutiny of the evidence when, with reasonable diligence, in all likelihood the witnesses could have been called. To put that another way, if the statements are admitted pursuant to s 34KA, the prosecution will gain a forensic advantage for no other reason than that it failed to take the necessary steps to present the witnesses in the ordinary course. I doubt very much that a situation such as this was what was contemplated by Parliament when it enacted the section.
Further, and as submitted by the defendant, the prosecution is not seeking to tender a statement on a single discrete issue. It is proposed to tender the entire tranche of German evidence. As was submitted, the evidence has the potential (and quite properly) to have a cumulative effect on the minds of a jury. Each of the statements relates to a different site which the prosecution says it can prove either directly or by inference that the defendant did not visit. In each case, the witness speaks to matters within their own experience and or drawing on organisational knowledge and business records as to procedures relating to visitors. It takes little forensic imagination to appreciate that there are significant matters on which each of the witnesses could be cross examined if they were called to give oral evidence.
Further, to my mind, the failure of ICAC to have obtained permission by way of a MAR to conduct their enquiries in Germany falls well short of what should be expected from an investigative agency of ICAC’s powers and responsibilities. Whilst that failure cannot be attributed to the prosecution and was not known to it until very recently, the conduct of the investigative authority and the responsibilities of the prosecution cannot be easily and conveniently separated for the purpose of this application.[15] The court should be loath to, in effect, give sanction to a practise whereby evidence has been obtained contrary to an important, well known and readily available process established as a result of an agreement or understanding between the Commonwealth and a foreign nation designed to facilitate the type of enquiries made. As the ICCCA pointed out, failure to abide by the MAR process has the potential to impact on future requests for cooperation and assistance. This is not simply a case of a failure to comply with an internal procedure, for example the failure to complete an important but essentially administrative document such as a PD23A Return on General Search Warrant. In my view, whilst the conduct of the ICAC officers is not an example of unlawful conduct of the type usually associated with the public policy discretion to exclude evidence,[16] in the circumstances, that discretion does arise in this matter. The nature and purpose of the discretion extends to both unlawfully and improperly obtained evidence.[17]
[15] R v Forrest (2016) 125 SASR 319, [63].
[16] See Ridgeway v The Queen (1995) 184 CLR 19; Pollard v The Queen (1992) 176 CLR 177.
[17] R v Lobban (2000) 77 SASR 24, [32].
On balance, the interests of justice favours exclusion of the German evidence by reason of the public policy discretion.
The accused is entitled to expedited justice. It would be extremely unfair to him if he should now be deprived of his rights to cross examine those witnesses. It would also allow the prosecution to benefit from the failure to make a MAR and have use of evidence which was improperly obtained. That would create an unfairness to the defendant in the sense that the trial itself would be unfair.
For those reasons I exclude the evidence of the six German witnesses in the exercise of both my general unfairness discretion and the public policy discretion.