R v Jacobson (Ruling No 4)
[2014] VSC 508
•8 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2011 0054
| THE QUEEN |
| v |
| MERVYN JACOBSON |
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JUDGE: | KAYE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 October 2014 |
DATE OF RULING: | 8 October 2014 |
CASE MAY BE CITED AS: | R v Jacobson (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 508 |
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CRIMINAL LAW – Application for stay – Accused examined pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) – Transcript of examination in possession of prosecution – Whether departure from criminal trial in fundamental respect – Whether authorised by ASIC Act – Lee v The Queen (2014) 308 ALR 252, distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Rapke QC and Mr C Winneke | Solicitor to the Director of Public Prosecutions (Commonwealth) |
| For the Accused | Dr J Wilson QC, Mr A Burns and Mr S Tovey | Markotich Lawyers |
HIS HONOUR:
Application has been made on behalf of the accused to stay the present proceeding, on the basis that the prosecution has had access to the transcript of his examination under s 19 of the Australian Securities and Investments Commission Act2001 (Cth) (“the ASIC Act”).
The accused is charged, on indictment, with two counts of conspiracy to take part, and 33 substantive counts of taking part, in transactions which were likely to have the effect of creating an artificial price for trading in financial products, contrary to s 1041A of the Corporations Act2001 (Cth). I have set out the background facts relating to those charges in previous rulings, which I have given in this matter, and it is not necessary for me to repeat them for the purposes of the ruling that I am about to deliver.
The trial in the proceeding commenced on 8 September 2014. Fourteen witnesses have been called on behalf of the prosecution, and more than 450 exhibits have been tendered in evidence. The prosecution intends to call one further witness, the informant, to give evidence, before closing its case.
On Monday, 6 October, Dr Josh Wilson QC, who appears with Mr A Burns and Mr S Tovey on behalf of the accused, stated that he wished to make the present application. Mr J Rapke QC, who appears with Mr C Winneke on behalf of the prosecution, had drawn the attention of Dr Wilson to a recent ruling by a Justice of the Supreme Court of New South Wales, the effect of which, apparently, has been to stay a trial before that judge on the basis on which Dr Wilson now seeks to rely. The name of the case has been suppressed. I have been informed by Dr Wilson that, apparently, the judge’s reasons for the ruling will not be released until later this week.
I would have preferred to defer delivering this ruling until I had the benefit of the New South Wales decision. However, to do so would involve delaying the hearing before the jury, which would be undesirable.
Facts
The facts, upon which the application is made, may be shortly stated. They were presented from the Bar table, with the agreement of counsel.
On 27 May 2007, the accused was examined by ASIC over a period of two days. The examination was conducted by Mr Anthony Flynn, and two other members of ASIC. Mr Flynn has, in effect, performed the role of the informant in the present prosecution. The transcript of the examination was provided to the Commonwealth Director of Public Prosecutions (“CDPP”) on 1 June 2007. On 3 December 2008, the accused was charged with offences arising out of the transactions that are the subject of the present proceeding.
Ms Vicky Argitis, the instructing solicitor for the prosecution in the case, read the transcript of the s 19 examination on 27 January 2014. Mr Winneke, who has appeared on behalf of the CDPP in respect of the prosecution of the pleas of other persons who were charged in respect of the transactions with the case, received the transcript in about 2009. However, he told me, from the Bar table, that he does not recall ever reading the transcript. He stated that he did not believe that he had read it. That view, by Mr Winneke, was reinforced by the unusual position which the transcript occupied, physically, in his voluminous brief, and by the fact that he had not marked the hard copy of the transcript which had been provided to him. Pausing there, I am not satisfied, on the balance of probabilities, that Mr Winneke has read the transcript.
Mr Rapke was briefed in the matter in 2011. A copy of the transcript was provided to him on 23 April 2014. He did not read it. In late May 2014, Mr Rapke became aware of the decision of the High Court in Lee v The Queen.[1] As a result of that decision, he instructed all other members of the “prosecution team” not to read it, and he deleted the electronic copy of the transcript. Mr Flynn has also been provided with a copy of the s 19 transcript.
[1][2014] HCA 20; (2014) 308 ALR 252 (“Lee”).
Submissions
Dr Wilson, in support of the application on behalf of the accused, relied principally on the decision of the High Court in Lee vThe Queen, to which I have referred. He submitted that the effect of that decision is that, where an accused person has been subjected to a compulsory examination pursuant to statute, the evidence of that examination should not be provided to, or in the possession of, the prosecution, or any person who is responsible for the preparation and presentation of the prosecution case. He submitted that the High Court in Lee’s case determined that where, contrary to that proposition, the evidence of the compulsory examination is provided to, or in the possession of, a member of the prosecution, the fairness of the accused’s trial is compromised to such an extent that there would be a miscarriage of justice if the case were presented by, or with the assistance of, those persons who have had access to or possession of the transcript of the examination.
In support of that proposition, Dr Wilson relied, in particular, on those parts of the decision of the High Court in which it was held that it was not necessary, in such a case, that the accused demonstrate that there has been some “practical unfairness” in the conduct of the case which would affect the right of the accused to a fair trial. Rather, he submitted, Lee’s case stands for the proposition that, by dint of the circumstance that the prosecution has had possession of the transcript of the compulsory examination conducted on the accused, the accused’s trial has been altered in a fundamental respect which, per se, constitutes a miscarriage of justice.[2]
[2]See Lee v The Queen (2014) 308 ALR 252, [43], [44], [46], [51].
Dr Wilson submitted that, although in Lee’s case the accused had been examined under different legislation, nevertheless, the ASIC Act is not relevantly different. In particular, he submitted that the ASIC Act did not authorise the provision of the evidence, obtained under compulsory examination, to the prosecution.
Dr Wilson further submitted that, if the decision in Lee does not apply to the case, nevertheless, there has been demonstrated to be some practical unfairness to the accused resulting from the possession by the prosecution of the evidence obtained on the s 19 examination. In particular, Mr Flynn has, since 2007, been in possession of the transcript. He submitted that Mr Flynn, accordingly, has had in his possession information which would have enabled him to investigate the role of the accused in the transactions to which the proceeding relates, to instruct his legal advisers, to “head off” any potential defences which the accused might have referred to in his compulsory examination, and to challenge the answers given by the accused in his compulsory examination. He submitted that, for example, Mr Flynn might have been able to use his knowledge of the accused’s responses, in the compulsory examination, to assist one of the key prosecution witnesses in the case, Rocco Musumeci, to compile his witness statement. Dr Wilson submitted that, in those circumstances, the possession by Mr Flynn of the s 19 examination evidence, and his potential use of it, is such as to constitute a significant unfairness in the trial to the accused.
Dr Wilson further submitted that, in the event that I found that there had been a miscarriage of justice, I should grant the accused a permanent stay of the proceeding. He pointed out that the accused has been involved in this proceeding since he was charged in 2008, that the trial is now significantly advanced, that the accused has incurred substantial legal costs in his defence of the proceeding, and that any re-trial of the proceeding would involve a significant amount of further delay.
In response, Mr Rapke submitted that the decision of the High Court in Lee’s case does not apply to the present case. In particular, he submitted that the High Court, in Lee’s case, was concerned with a different statute. In that case, it had been conceded by the prosecution that its possession of the evidence, obtained under compulsory examination of the accused, was unlawful. In addition, the prosecution had obtained the material for an improper purpose, namely, to ascertain any potential defences on which the accused might rely. Thus, Mr Rapke submitted that the decision in Lee’s case was based on both the unlawful possession by the prosecution of the material, and the improper use of it by the prosecution.
Mr Rapke further submitted that the provisions of the ASIC Act make it clear that the transcript of a s 19 examination may be provided to the prosecution. In particular, he relied on ss 49, 68, 76 and 79 of the ASIC Act in support of the proposition that the Act, by necessary implication, authorised the provision of the s 19 examination to those responsible for the prosecution of an examinee, and in this case, the accused.
By contrast, in Lee’s case, the legislation contained a specific provision (s 13(9) of the New South WalesCrime Commission Act 1985 (NSW)) which, in effect, required the Commission to make a specific direction that an examinee’s evidence not be published where such publication might prejudice the fair trial of a person who may be charged with an offence.
Mr Rapke submitted that, accordingly, the decision of the High Court in Lee should be distinguished from the present case. Thus, in order to be entitled to a stay, the accused must demonstrate substantial unfairness in the prosecution of the case against him. He submitted that all of the matters relied on by Dr Wilson, in that respect, were hypothetical and based on speculation. He pointed out that Dr Wilson had declined to adduce any evidence as to the actual use of the s 19 examination by Mr Flynn, or by any other members of the prosecution. Accordingly, the accused had failed to establish any practical or actual unfairness by the prosecution in the conduct of the trial.
Conclusion
In an appropriate case, a court will grant a stay of a criminal trial, or other relief, in order to protect the right of an accused person to a fair trial. In such a case, the court must balance, on the one hand, the interests of the accused with, on the other hand, the right of the community to expect that persons, charged with criminal offences, should be brought to trial.[3] Thus, in order to justify the grant of a permanent stay of criminal proceedings, there must be a defect which goes to the root of the trial, and which is of such a fundamental nature that the court can do nothing in the conduct of the trial to relieve against its unfair consequences.[4]
[3]Barton v The Queen (1980) 147 CLR 75, 102, 106.
[4]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); Jago v District Court (New South Wales) (1989) 168 CLR 23, 34 (Mason CJ).
As I stated, the principal authority upon which Dr Wilson seeks to rely is the decision of the High Court in Lee.[5] In my view, properly understood, the decision of the High Court, in that case, involved the combined effect of two propositions, namely:
(1)the release by the New South Wales Crime Commission (“the Commission”) to the prosecution of the transcript of the hearing before the Commission was not authorised by, and was contrary to, the provisions of the New South Wales Crime Commission Act 1985 (NSW);
(2)the release of the transcript by the Commission to the prosecution constituted an alteration, in a fundamental respect, of the basic requirements of the accused’s right to a fair trial in our system of justice, without statutory authority.
[5](2014) 308 ALR 252.
In other words, the collective effect of the two propositions, which I have just summarised, was that the provision of the transcript by the Commission to the prosecution altered, in a fundamental manner, the nature of the criminal trial against the accused in a manner which was not authorised by statute.
In Lee’s case, the appellants had been summoned to give evidence before the New South Wales Commission. The Commission, pursuant to s 13(9) of the New South WalesCrime Commission Act1985, made a direction, when the first appellant was first examined, prohibiting the publication of the evidence given before it. Subsequent to the examination of the appellants, they were charged with offences relating to the supply of prohibited drugs. Transcripts of the appellants’ evidence before the Commission were published by the Commission to the police, and also to the DPP. The Commission supplied the transcripts to the DPP after solicitors at the DPP had requested provision of the transcripts, in order to ascertain whether the appellants had stated anything, which the defence would try to rely on in the trial of the offences with which they had been charged. The provision of the transcripts to the DPP was clearly contrary to the direction given by the Commission under s 13(9) of the New South Wales Act, which required the Commission to direct that any evidence given before it should not be published, if the failure to give such a direction might prejudice the fair trial of a person who has been or may be charged with an offence.
In its joint judgment, the High Court noted that the critical question was not whether the publication to the DPP of the transcripts was wrongful, but, rather, whether there had been a miscarriage of justice as a result.[6] The High Court then stated:
This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants’ trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession.
The prosecution has a specific role in our system of criminal justice, one which entails particular responsibilities. … It is the prosecution which has the responsibility of ensuring its case is presented properly and with fairness to the accused. It is therefore more to the point that the prosecution’s possession of the appellants’ evidence before the Commission put at risk the prospect of a fair trial, which s 13(9) sought to protect.
…
It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the New South WalesCrime Commission Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution.[7]
[6]Ibid [39].
[7]Ibid [43], [44], [46].
Having reached that conclusion, the High Court held that the proviso did not apply. Relevantly, for present purposes, the Court stated:
It is not necessary to resort to questions of policy to determine whether a miscarriage of justice has occurred. What occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused. There was no legislative authority for that alteration. Indeed, it occurred contrary to the evident purpose of s 13(9) of the New South Wales Crime Commission Act, directed to protecting the fair trial of examined persons.[8]
[8]Ibid [51].
The passages, from the decision of the High Court in Lee, to which I have just referred, make it clear that, in reaching its decision that the appeal be allowed, the High Court relied on the combined effect of the two propositions which I have stated, namely, first, that the provision of the transcript by the Commission to the DPP was not authorised by statute, and, secondly, that it altered, in a fundamental way, the right of the accused to a fair trial.
On the other hand, I am persuaded that the provisions of the ASIC Act, to which Mr Rapke referred, authorised the provision of the transcript, of the accused’s s 19 examination, to the DPP for its use in the present trial. In that respect, the statutory regime under the ASIC Act is distinguishable from the regime under the New South WalesCrime Commission Act, with which the High Court was concerned in Lee’s case. My conclusion, to that effect, is supported by the decision of Corboy J in R v Catena (No 3),[9] which I respectfully consider is correct.
[9][2013] WASC 97 (“Catena”).
In Catena, the accused had been charged with a number of offences, including 16 counts of contravention of s 1043(1)(d) of the Corporations Act 2001. He applied for a temporary stay, on the basis that he had been prejudiced by the provision to the Commonwealth Director of Public Prosecutions of the transcript of an examination conducted pursuant to s 19 of the ASIC Act. Corboy J held that, on a proper construction of the ASIC Act, its relevant provisions were materially different to the provisions of the Australian Crime Commission Act 2002 (Cth) (“ACC Act”), which had been the subject of three previous decisions.
In particular, Corboy J held that there was a critical difference between the statutory schemes created by the ASIC Act and the ACC Act for immunity from the use of compulsorily acquired information. His Honour pointed out that s 30(4) and s 30(5) of the ACC Act provide that immunity, in respect of the information obtained on an examination, is conferred automatically upon the examinee claiming privilege against self-incrimination in respect of answers given by the examinee. By contrast, s 68(2) and (3) of the ASIC Act only confer an immunity from the use of information obtained on the examination, where, first, the examinee claims privilege against self-incrimination and, secondly, it is found that the answer given by the examinee might tend to incriminate that person. In that respect, Corboy J referred to the decision of the Western Australian Court of Criminal Appeal in Smith v The Queen,[10] in which it was held that the question whether a statement, made by a person under compulsion, claiming privilege pursuant to the ASIC Act, might tend to incriminate that person, was to be determined at the time at which the court was required to decide whether the statement could be led in evidence in a particular proceeding.
[10][2007] WASCA 163.
In addition, Corboy J also referred to ss 76(1)(a) and 79(1) of the ASIC Act. Section 76(1)(a) provides that a statement, that a person makes in a s 19 examination, is admissible in evidence in a proceeding unless, because of s 68(3), the statement is not admissible. Section 79(1) provides that a party, intending to adduce such a statement in evidence, must first give 14 days written notice of its intention to apply to have the statement admitted in evidence.
Based on those provisions, Corboy J held that the ASIC Act, by necessary implication, contemplates that the statements, made by an accused person during a s 19 examination, could be provided by ASIC to a person responsible for conducting the prosecution of an alleged contravention of the Corporations Act 2001 against that person. His Honour stated:
In my view, the effect of s 68 of the ASIC Act, as interpreted by the Court of Appeal in Smith v The Queen, is that, by necessary implication, the section contemplates that the statements made by an accused person during a s 19 examination could be provided by ASIC to a person responsible for conducting the prosecution of an alleged contravention of the Corporations Act against that person. The prosecutor could be provided with a transcript of the examination for the purpose of determining whether statements made by the accused, as an examinee, were admissible in the trial having regard to the offence alleged and all other relevant circumstances prevailing at the time of the trial, including circumstances that might arise from the manner in which the trial was conducted. Accordingly, the mere provision of the transcript to the prosecutor could not, in itself, be regarded as likely to prejudice the fair trial of an accused who had been previously compelled to answer questions and who had claimed privilege over the answers given during an examination conducted under s 19 of the ASIC Act having regard to the provisions of s 68. [11]
[11]R v Catena (No 3) [2013] WASC 97, [23].
I respectfully agree with the conclusion reached by Corboy J in R v Catena. In particular, s 68(2)(b) and s 68(3) of the ASIC Act necessarily contemplate that the question, whether a statement, from a s 19 examination, might tend to incriminate the person who made the statement, is to be determined at the time at which the statement is sought to be adduced in evidence. Section 76 expressly provides that the statement, by a person at an examination, is admissible, unless it is covered by the immunity provided under s 68 of the Act. In that way, the Act provides for the use, in a proceeding, of a statement made in an examination under s 19 of the ASIC Act, unless it is found to be covered by immunity.[12] That statutory regime necessarily contemplates that the prosecution would have access to, be entitled to consider, and, subject to the s 68 immunity, be entitled to rely upon, the transcript of an examination of an accused conducted under s 19 of the ASIC Act.
[12]See also ASIC v Plymin (No 2) [2002] VSC 356, [14] (Mandie J).
In that way, the ASIC Act, by necessary implication, authorises the possession and use of the s 19 examination by those responsible for the prosecution of an accused person. Thus, the ASIC Act is, in a relevant respect, distinguishable from the New South Wales Crime Commission Act 1985 under which the accused had been the subject of an examination in Lee’s case. As I have stated, the effect of the direction, given by the New South Wales Crime Commission under s 13(9) of that Act, was to prohibit publication of the transcript of the appellants’ examination to the prosecution. In addition, unlike s 68 of the ASIC Act, s 18B(2) of the New South Wales Act had the effect that any answer, given on such a compulsory examination, was, of itself, inadmissible.
In addition, it is clear that ASIC, and its legal advisers, were entitled to use the transcript in determining whether to commence and to carry on the prosecution in the present case. Section 49(1)(b) and s 49(2) of the ASIC Act, taken together, provide that, where it appears to ASIC, from a record of an examination, that a person may have committed an offence, ASIC may cause a prosecution of the person for the offence to begin and be carried on. Thus, s 49 expressly provides that the decision to prosecute, and to carry on a prosecution, may be based on the record of an examination conducted under s 19 of the Act. In those circumstances, it would be anomalous if the member of ASIC, responsible for commencing and carrying on the prosecution, and thus having referred to the s 19 examination, could not be the same person who is responsible for assisting to prepare and present the prosecution case. Indeed, as Mr Rapke pointed out, it is inconceivable that, a prosecution, having been commenced in such circumstances, must be carried on in some manner quarantined from the product of the s 19 examination.[13]
[13]Compare Bartlett v The Queen (No 10) [2014] WASC 277, [41]-[46] (Heenan J).
The decision of Corboy J in Catena preceded the decision of the High Court in Lee. However, the decision is applicable, because it distinguishes the statutory regime, with which this case is concerned, from the type of statutory regime which was a necessary element of the finding by the High Court that the provision of the transcript of the examination of the appellants to the DPP, in that case, had resulted in a miscarriage of justice. In particular, as I have pointed out, a necessary premise in the reasoning of the decision of the High Court in Lee was that the provision of the transcript of the examination under the New South WalesCrime Commission Act to the DPP was not authorised by statute.
I am fortified in that conclusion by the decision of Heenan J in Bartlett v The Queen.[14] In that case, the two accuseds were the subject of a compulsory examination, pursuant to the provisions of the Australian Crime Commission Act 2002, a substantial time before charges were laid against them. Pursuant to s 25A(9) of that Act, the examiner made directions which authorised publication of the information, obtained at the examinations, to “any prosecution authority”. The accuseds subsequently made application for a temporary stay of the prosecution, pending the engagement of new prosecuting counsel and other CDPP personnel, who were not privy to any of the evidence given by them to the Australian Crime Commission on their compulsory examination. The application was based, principally, on the decision of the High Court in Lee.[15] Heenan J refused the application.
[14]Bartlett v The Queen (No 10) [2014] WASC 277.
[15](2014) 308 ALR 252.
In reaching his conclusion, Heenan J noted that no error had been identified, or suggested, as having been made by the examiners when giving the directions under s 25A(9) of the ACC Act authorising distribution of the transcripts to the prosecuting authorities. His Honour therefore stated:
In short, there are significant and, in my view, material differences between the present case and that examined in the recent decision of Lee v The Queen. In the latter case, the disclosure of the examination transcripts to the prosecuting counsel had not been authorised by the NSWCC and was acknowledged to have been unlawful. Furthermore, in Lee’s case, there were several tangible prejudicial results identified in the New South Wales Court of Criminal Appeal and accepted on the appeal in the High Court as demonstrating an advantage to the prosecution or disadvantage to the accused from the unauthorised disclosure of the examination transcripts. Nothing of that kind has been demonstrated in the present case and, consequently, I do not consider that I can or should infer that the authorised disclosures which have occurred were such as might prejudice the fair trial of either accused or that they constituted a departure in a fundamental respect from the type of criminal trial which the system of criminal justice requires and which arises from the fundamental accusatorial system of criminal justice. Unlike in the Lee case, the present application has not been shown to involve the wrongful release to and possession by the prosecution of evidence which would otherwise have been withheld from them in furtherance of the protective purposes embodied in s 25A(9) of the ACC Act.[16]
[16]Bartlett v The Queen (No 10) [2014] WASC 277, [56] (internal citations omitted).
For those reasons, I have reached the conclusion that the possession and use by the prosecution of the s 19 examination of the accused was authorised by the ASIC Act. I accept that the provision of the transcript, in the present case, to the DPP, pursuant to the provisions of the ASIC Act, does alter an important aspect of the process of a criminal trial. However, as I have concluded, the provision of the accused’s s 19 examination to the DPP in this case was authorised by the ASIC Act. On that basis, the case is distinguishable from the decision of the High Court in Lee.
Thus, there was nothing improper or illegal about the possession and use by the prosecution of that material. In that way, the case is relevantly distinguished from the circumstances in Lee, in which the prosecution had possession and use of the s 19 material, and which the High Court held constituted a miscarriage of justice.
Further, I am not satisfied that the possession of the s 19 material, by the prosecution, has resulted in any practical prejudice or unfairness to the accused. As Mr Rapke pointed out, each of the matters, suggested by Dr Wilson as constituting relevant prejudice, were unsupported by evidence and were matters of speculation. No evidence was adduced, on behalf of the accused, as to whether Mr Flynn or Ms Argitis had made any, and if so what, use of the s 19 material. Nor has the defence demonstrated how any potential use of the material by the prosecution might be unfair to the accused, in light of my conclusion that the ASIC Act authorised the possession of and use by the prosecution of the material.
In those circumstances, the accused has failed to establish that there has been, or would be, any unfairness in the prosecution of the case, that should entitle him to a stay of the proceeding. The application for a stay must therefore be refused.
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