R v Le - [2018] WADC 57

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   R -v- LE [2018] WADC 57
CORAM:   SCOTT DCJ
HEARD:   3 MAY 2018
DELIVERED          :   11 MAY 2018
FILE NO/S:   IND 293 of 2016
BETWEEN:   THE QUEEN

AND
MICHAEL LE
JHIH-HAN CHEN
HUU CUONG NGUYEN
VAN THI HOANG
MINH CANH LE

Catchwords:

Application to abort trial - Late disclosure - Need for accused to consider late disclosure of TI product requiring further disruption of trial - Whether fair trial

Legislation:

Criminal Procedure Act 2004 s 42, s 45, s 89, s 95, s 96, s 97

Result:

Jury discharged from reaching verdicts

Representation:

Counsel:

Applicant	:	Mr R Maidment QC, Mr P N Bevilacqua & Ms K Kumar
First Accused	:	Mr L P Rayney
Second Accused	:	Mr G M Rodgers
Third Accused	:	Mr J A Davies
Fourth Accused	:	Mr P D Yovich SC
Fifth Accused	:	Mr D O'Haire

Solicitors:

Applicant	:	Commonwealth Director of Public Prosecution
First Accused	:	Lloyd Rayney
Second Accused	:	Brennan & Co
Third Accused	:	Jonathan A Davies
Fourth Accused	:	Francis Burt Chambers
Fifth Accused	:	Simon Watters

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

Dragojlovic v The Queen (2013) 40 VR 71
Easterday v The Queen [2003] WASCA 69
Mallard v The Queen (2005) 224 CLR 125
Milenkovski v The State of Western Australia [No 2] [2011] WASC 273
Nicolaides v The Queen [2005] WASCA 186

JUDGE SCOTT:

This trial was listed for hearing to commence on 9 October 2017. It was listed for eight weeks however, counsel indicated at the commencement of the trial that 10 weeks was a more likely time frame.
On 3 May 2018 an application by all accused to discharge the jury from delivering verdicts on all counts was heard. The grounds were, primarily, that due to:
(a)late disclosure by the prosecution; and
(b)significant fragmentation in the hearing of the evidence during the trial caused by late disclosure;
there was a real risk that the accused could not be afforded a fair trial.
On 7 May 2018 I discharged the jury from reaching a verdict in any of the counts in the indictment.
The purpose of this judgment is to provide a summary of my reasons.

Charges in the Indictment

Counts 1 – 3 in the Indictment are each charges of dealing in the proceeds of crime contrary to the provisions of div 400 of the Criminal Code (Cth) (money laundering offences).
The prosecution alleged that the crime(s) from which monies were wholly or partly derived comprised one or more of three migration offences contrary to the Migration Act 1958 (Cth) (Migration Act) and/or four general dishonesty offences contrary to various subsections of s 135 of the Criminal Code.
Counts 4 – 8 are each harbouring charges contrary to s 233E of the Migration Act.

Disclosure

It is perhaps trite to say that to afford an accused the right to a fair trial the accused is entitled to know the case against him in order that he can properly prepare his defence to the charge he faces. That is made clear in the Commonwealth DPP Disclosure Policy (Disclosure Policy) and is statutorily reflected in the Criminal Procedure Act 2004 (CPA).
The relevant provisions in the CPA are:
Section 42(1):
Evidentiary material relevant to a charge means —
...
(d)a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(e)a copy of every other document or object that may assist the accused's defence,
that is in the possession of the organisation or person who investigated the offence.
Section 45:
…
(3)Within the prescribed period after an accused is committed for … trial … on a charge, the prosecutor must give the relevant authorised officer —
…
(c)any evidentiary material that is relevant to the charge, …; and
…
(f)a certificate under subsection (5).
…
(5)The certificate required by subsection … (3) must —
(a)be signed by a person who was involved in, and has knowledge of, the investigation of the charge; and
(b)certify that —
(i)… section 42 have been complied with; and
(ii)the relevant authorised officer is being given a copy of all … evidentiary material that is relevant to the charge and that has been served on or made available to the accused …; and
(c)state the person’s grounds for so certifying and any inquiries made by the person before so certifying, where inquiry has been necessary; and
(d)contain any information prescribed.
Section 89:
(1)A superior Court to which an accused is committed on a charge … may at any time adjourn proceedings on a charge …
(2)a superior Court that adjourns proceedings on a charge …
…
(b)may discharge the jury from giving its verdict on the charge …
Section 95:
…
(6)Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it —
…
(c)any evidentiary material that is relevant to the charge;
…
(e)a copy of the certificate given to the officer under section 45.
…
…
(9)If, after complying with subsection (6), (7) or (8) and before a charge is finally dealt with, a prosecutor receives or obtains —
…
(b)additional evidentiary material that is relevant to the charge;
…
the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable.
Section 97:
…
(2)If before or at a trial on indictment the court is satisfied that a party has not obeyed a disclosure requirement, the court, on the application of a party affected by the breach, may adjourn the trial for a period that allows enough time —
(a)if necessary, for the party in breach of the requirement to obey it; and
(b)for a party affected by the breach to investigate properly any evidence or other matter disclosed in accordance with the requirement and to obtain any evidence that may be necessary as a result of the disclosure,
or, if the trial is a trial by jury, may discontinue the trial, discharge the jury from giving its verdict and adjourn the prosecution.
Disclosure is a statutory requirement and a professional obligation. Police investigate offences and in the superior courts the prosecution is undertaken by the appropriate independent statutory authority. From the point of view of the defence, there is a singular prosecution and as a consequence it has been said that disclosure obligations are not altered and should not be obscured by the allocations of responsibility of the distribution of material within the various entities responsible for the prosecution. See Easterday v The Queen [2003] WASCA 69; Mallard v The Queen (2005) 224 CLR 125; Nicolaides v The Queen [2005] WASCA 186.
From a practical perspective there is an obvious need, in superior court prosecutions, for there to be in place a process and system of accountability between the investigative authorities and, in this case, the CDPP so that the disclosure obligations can properly be met in a timely manner in accordance with the CPA.
This must mean in cases such as this in which there is significant material which has been seized under warrant and/or generated by the investigative bodies, that the parameters of the evidentiary material which must be disclosed to defence in accordance with the Disclosure Policy and CPA will likely need to be finally identified by the CDPP and not left to the determination of the investigators. If there is a disconnect between the CDPP and those investigative bodies then inevitably, in a complex case in which there is significant evidentiary material, there will be a real risk that timely disclosure will not be given thereby resulting in a possible miscarriage of justice.
In this case, in the months leading up to trial there were a number of case management orders made by judges of this court programming disclosure by the prosecution. The court's anticipation was that the disclosure obligations would, by the commencement of the trial, have been met to enable the trial to run smoothly.
However that was not the case. As it transpired there were many occasions during this trial when the prosecution made further disclosure amounting to a significant volume of material.
It is not necessary for me to particularise each of the occasions upon which late disclosure was given and the nature of it. Those occasions have been detailed in submissions filed in this application and in the previous application to abort this trial with which I dealt and on 23 January 2018, dismissed.
Late disclosure during a trial is distracting to counsel and the accused and is disruptive. The disadvantages to the accused and counsel were referred to by McKechnie J in Milenkovski v The State of Western Australia [No 2] [2011] WASC 273 [65], [68] where he said:
65The first 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. … .
68The 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.
In Milenkovski McKechnie J was dealing with late disclosure before the commencement of the trial. The degree of distraction and disruption must be more pronounced if the disclosure material is served during trial.
When I dismissed applications by the accused to abort this trial on 23 January 2018, I took the view that in the circumstances which then existed, the time which I had afforded counsel to consider late disclosure before being required to cross‑examination or continue cross‑examination of prosecution witnesses, was sufficient to minimise any disadvantage in the lateness of disclosed materials. That included time out of court.
However, after that determination in late January, further disclosure from the prosecution continued and the time out of court increased. Between 23 January 2018 and 3 May 2018, excluding public holidays, the jury did not sit for approximately 40 working days. Some of those days included a juror's committed holiday extending past the Easter break, and days on which there were medical appointments for both counsel and jurors. Given the extent to which this trial exceeded the anticipated timeframe those days out were inevitable. However, in the main the days out of court related to the need for counsel to come to terms with late disclosure.
In mid‑April 2018 it came to light that on 19 June 2015 the CDPP received by email an Excel spreadsheet detailing all TI warrants which had been executed by the investigative authorities. This schedule included nine warrants which had not previously been disclosed to defence in the committal brief or otherwise. It would appear that the CDPP had somehow mislaid this email and spreadsheet. It had not been brought to the trial prosecutor's attention until mid‑April.
On 13 and 17 April 2018 defence counsel were provided with the telephone intercept products the subject of those warrants which comprised 34,321 audio and SMS communications during the period 28 February 2013 to 27 May 2014.
In addition on 18 April 2018 defence counsel received an email from the prosecution advising them that it had come to the prosecution's attention that Geoffrey Lim was a target of an AFP investigation conducted in 2012 named Operation Malden during which a TI warrant was executed with respect to his alleged phone. Counsel was advised that the prosecution had only received a copy of the warrant and the investigator TI summaries, copies of which were provided later that day to counsel. Geoffrey Lim was a person to whom reference was made by Hng Hung Hock, a 'rollover' witness who gave evidence in November 2017.
Further on 23 April 2018 the prosecution served defence with a disc containing the Operation Malden 18,093 TI products which did not contain investigator or other relevant summaries.
In the event since 13 April 2018 the disclosure to defence counsel comprised 53,330 TI products many of which were said to be in Vietnamese and other foreign languages.
Counsel for Minh Canh Le, supported by other counsel, estimated that it would likely take 4 – 6 weeks to deal with and consider the recently disclosed TI products, not including the Operation Malden TI products pertaining to Geoffrey Lim disclosed on 23 April 2018.
In the prosecution's submissions in these applications counsel contended that of the further TI product it had considered there was material that was irrelevant and material which was unlikely to be relied upon by the accused. However counsel conceded that:
(a)the prosecution should have disclosed this TI product prior to the trial having commenced;
(b)there was actual or potential prejudice to the defence in the late disclosure of that material;
(c)defence counsel and accused would need a reasonable opportunity to consider the material which would necessitate time out of court so that the material could be properly considered and investigations undertaken of matters which may arise from the review and consideration of the additional TI product; and
(d)the prosecution could not take issue with the estimation by counsel for Minh Canh Le as to the time defence counsel would need to properly consider this material.
As a consequence a period of up to eight weeks was likely to be required.
Counsel for the prosecution suggested that an option available to me was to adjourn the trial in order that consideration of this material could be undertaken.
In Dragojlovic v The Queen (2013) 40 VR 71 the Victorian Court of Appeal referred to a number of cases in Australian and overseas jurisdictions in which consideration had been given to the impact of constant interruptions in trials and on the accused being afforded a fair trial.
In a number of those cases the interruption to the trial was significant. The court observed (88) that 'juries can deal with long and complex trials and have been known to do so satisfactorily when given appropriate opportunity and assistance'.
It is essential, in my view, particularly in complex cases of which with respect to the money laundering charges in counts 1 – 3 this is one, the jury is afforded the opportunity to hear and assess evidence with a reasonable degree of continuity in order that they can be effectively assisted by materials provided to them, counsels' closings and the judge's directions designed to focus their attention on the issues which fall to be determined by them on the evidence they accept.
In this case the jury's involvement in this trial has been particularly sporadic. To add to that the inevitable further fragmentation of their consideration of the evidence which would result from a lengthy adjournment before they would continue to hear and assess the evidence, is not an appropriate option, having regard to the interests of justice in this case. I am satisfied that would result in a real danger of prejudice to the accused in not being afforded a fair trial.
Whilst aborting a trial, particularly one which has been of significant length causes inevitable inconvenience, substantial wasted expense and frustration, those considerations can never outweigh the public interest in ensuring a fair trial.
In the circumstances of this case the only appropriate option is to discharge the jury from reaching a verdict in respect to any count in the indictment.

Some further observations

It is trite to say that there is a need to ensure that an accurate estimate is made of the length of, particularly, long trials. The jury panel is entitled to know how long they will be committed, should they be chosen as jurors for a trial.
If the trial exceeds the estimate made known to them by a significant timeframe then inevitably one could reasonably anticipate that a jury may be prone to being increasingly distracted from its task.
In this case when the trial was listed for hearing I accept that it was not contemplated by the prosecution that it would be put to strict proof of the continuity of documents and items seized from various properties on 3 May 2014 through to the date of the trial. Having said that, no specific concession had been made to that end by each defence counsel.
The issue became live when during the evidence of an exhibits officer he was presented with documents in an evidence bag where the seal had been broken and the bag closed by a bulldog clip. It then became apparent, through the evidence of a CDPP lawyer, that evidence bags which had previously been sealed had been opened by police and CDPP prosecutors to determine from the documents said to have been seized, which of them were to be exhibited at trial by the prosecution.
The result was that the prosecution was put to strict proof which required a significant number of additional witnesses to give evidence. The overall time taken to do so extended this trial by approximately four weeks.
I am far from convinced that continuity in a case like this was necessarily a matter which in its entirety ought to have been one in issue.
Albeit that I endeavoured to persuade those of defence counsel who maintained this stance to confer with the prosecution to endeavour to reach some accommodation by which the issues could be narrowed, that did not occur.
Whilst defence are of course entitled to put the prosecution to proof the orderly conduct of a lengthy criminal trial ought require practical consultation between counsel.
The provisions of s 96 of the CPA are, in my experience, ignored by many defence counsel. Relevantly, that section provides:
…
(3)Within the prescribed period before the trial date for a charge in an indictment, the accused must lodge and serve the following —
…
(c)written notice of 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 prosecutor intends to call at the trial,
and the grounds for the objection.
In Milenkovski McKechnie J observed that the obligation under these subsections can only arise after the prosecution has fulfilled its disclosure requirements. It is only then, his Honour observed, that the boundaries of the contest are clear (see [65]).
It is not sufficient for defence counsel to simply inform the prosecution before trial that all matters are in issue. Subject to the prosecution's disclosure objections being complied with, the provisions of s 96(3)(c) and s 96(3)(d) dictate that defence specifically detail the matters to which these sub-sections refer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SM
ASSOCIATE TO JUDGE SCOTT
11 MAY 2018