R v Nozhat
[2018] ACTSC 317
•14 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nozhat |
Citation: | [2018] ACTSC 317 |
Hearing Date: | 17 October 2018 |
DecisionDate: | 14 November 2018 |
Before: | Burns J |
Decision: | See [26] |
Catchwords: | CRIMINAL LAW – Practice and Procedure – Application for a stay of proceedings – failure of the Crown to disclose material in a timely manner – trial proceedings vacated – whether the trial proceedings should be stayed pending costs paid to the accused as a result of the trial proceedings being vacated |
Legislation Cited: | Criminal Code Act 1995 (Cth) s 307.1 |
Cases Cited: | R v Bui [2011] ACTSC 102; 5 ACTLR 230 R v Mosely (1992) 28 NSWLR 735 R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 532 |
Parties: | The Queen (Crown) Tamim Jamaal Nozhat (Accused) |
Representation: | Counsel Mr P Bevilacqua (Crown) Mr C Smith SC and Mr A Karim (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kingston Fox Lawyers (Accused) | |
File Number: | SCC 27 of 2018 |
BURNS J:
The applicant, Tamim Jamaal Nozhat, was charged on or about 6 December 2017 with one charge contrary to s 307.1 of the Criminal Code Act 1995 (Cth) alleging that between 16 May 2017 and 19 May 2017 he imported a commercial quantity of a border controlled drug, namely MDMA. This offence carries a maximum penalty of life imprisonment. He was arrested with regard to this matter on 5 December 2017 and has remained in custody since that time. He was committed for trial on 22 February 2018.
After two directions hearings before the Registrar of this Court, on 4 June 2018 Murrell CJ listed the matter for trial commencing 2 October 2018, with an estimate of 10 days. The matter was also listed for callover in the week preceding 2 October 2018. At the callover on 26 September 2018, Murrell CJ was advised that the parties wanted to engage in legal argument before the commencement of taking evidence; it was anticipated that this would require one to two days. Murrell CJ listed the matter for legal argument before myself on Wednesday and Thursday, 4 and 5 October 2018, with the trial otherwise to commence on 8 October 2018.
On Tuesday 2 October 2018 the matter again came before me on an issue concerning a subpoena. That issue was resolved by the parties, and junior counsel appearing for the applicant advised me that the legal argument that had been listed for 4 and 5 October would not now be required, but the parties hoped to conduct a brief Basha inquiry on 3 October 2018.
By an email from the office of the Commonwealth Director of Public Prosecutions at 12.38 pm on 3 October 2018, the Court was asked to make an order in chambers adjourning the proceedings until the morning of 4 October 2018. The reason given for the request was:
Due to outstanding disclosure, the defence have indicated that they will not be in a position to make applications in respect of the pre-trial issues. The Crown accepts that position. The parties agree that the pre-trial hearing should be adjourned until tomorrow morning.
I made the in chambers order adjourning the proceedings until 10 am on Thursday 4 October 2018.
On 4 October 2018 a Basha inquiry was conducted, in which two proposed Crown witnesses, EI and Mr Harms, were cross-examined by senior counsel for the applicant. The matter was adjourned to Monday 8 October 2018 for the jury to be empanelled, although counsel for the applicant foreshadowed that there may be some remaining legal issues to be resolved at that time.
On the morning of Monday 8 October 2018 senior counsel for the applicant made an oral application that the commencement of the trial be adjourned as further material (the Omari phone material) had only been served on the defence on Friday 5 October 2018. The Crown accepted that the accused would need time to review the material. Counsel for the applicant indicated that it was most likely that he would apply for the trial to be vacated, but asked that the matter be stood down until later in the day to allow instructions to be taken. The matter was stood down until 1 pm and the jury panel was released until Tuesday 9 October 2018.
At 1 pm on 8 October 2018, I was asked to delay empanelling the jury until Wednesday 10 October 2018, and to list the matter for further legal argument at 2 pm on Tuesday 9 October 2018.
On Tuesday 9 October 2018 there was a brief argument concerning the transcript of the applicant’s record of interview with police. I gave directions and adjourned the matter until 10 October 2018.
10. At about 10.30 am on Wednesday 10 October 2018 senior counsel for the applicant advised me that he did not believe the trial was ready to proceed, but he nevertheless sought a further short adjournment to speak to the applicant. Just after 12 pm the applicant sought an order that the trial date be vacated. After hearing the parties I vacated the trial, and placed it in the Registrar’s list for a new trial date to be allocated.
11. By an application in proceeding lodged 11 October 2018 the applicant seeks the following order:
(a)that any further trial on the indictment be stayed pending payment of the reasonable costs of the accused as a result of the trial proceedings being vacated on 10 October 2018.
12. The application came before me on 17 October 2018. After hearing the parties I reserved my decision, indicating that due to the applicant being held in custody I would give priority to handing down a decision so that the parties would have some certainty as to how the matter would proceed.
13. For the reasons that follow, I am satisfied that the orders sought by the applicant should be refused.
14. The principles relevant to the application are not in dispute. The Crown has traditionally not sought or been required to pay costs in criminal proceedings. A practice has developed, however, in some cases of ordering a stay of proceedings until the Crown pays a sum to an accused person by way of compensation to the accused for expense incurred unnecessarily by reason of default of the Crown in its obligations concerning the conduct of, or preparation for, the trial. Such a conditional stay differs from a permanent stay in that the Crown may proceed with the trial once the compensation has been made. Both forms of stay are similar in that they are based upon preventing an injustice to an accused person by abuse of the court’s process, and they should only be granted in the most exceptional cases.
15. There is no dispute that this Court has jurisdiction to make the order sought: R v Mosely (1992) 28 NSWLR 735. In R v Bui [2011] ACTSC 102; 5 ACTLR 230, Refshauge J reviewed a number of authorities concerning the test to be applied on such an application:
89In R v Selim [2007] NSWSC 154, Fullerton J articulated the test for such an order (at [57]) where her Honour said:
I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said that prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering a stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again.
90In Petroulias v The Queen, the Court of Criminal Appeal refined this further. Ipp JA, with whom Latham and Fullerton JJ agreed, said (at [12]):
In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances.
91His Honour then referred to R v Mosely in citing the following passage of Santow JA in R v Fisher (at [22]):
The important factor common to both Mosely and the present case is fundamental unfairness in permitting the Crown to proceed to trial, in the present case moreover a third trial, where it is the Crown’s fault, of a relatively serious kind, that the defence has earlier been put to wasted costs which the Crown does not agree (or undertake) to pay.
92 His Honour then held (at [23]):
The authorities to which I have referred establish that the power of the court to grant a stay, permanently or temporarily, stems from the court’s power to prevent injustice or unfairness in the trial in a case where a temporary stay is sought, subject to the prosecution paying costs. In my opinion, practically speaking, unfairness cannot be established without proof of fault on the part of the prosecution.
93A similar approach has been taken by the Court of Criminal Appeal in South Australia. In R v Ulman-Naruniec (2003) 143 A Crim R 531, the Court, following R v Mosely and R v Fisher, upheld an order by the trial judge in ordering a conditional stay of proceedings until the Crown paid or undertook to pay the reasonable costs of the accused of two earlier trials. The court held that the order was not an order for costs which it accepted the court had no power to make. Sulan J, with whom Bleby and Besanko JJ agreed on this issue, described the situation as follows (at [232]):
In my view, the trial judge was justified in concluding that the earlier two trials had been flawed and had been conducted when the DPP was in flagrant breach of its duty of disclosure. Although neither trials had been aborted for this reason, it is clear that the failure of the DPP to make disclosure resulted in those trials being flawed. The conduct of the DPP had created an unfairness to the accused in the present trial.
16. Not every default on the part of the Crown, even leading to an adjournment or abortion of a trial, will justify a remedy in the nature of that now sought. Any adjournment of a trial is likely to cause an accused some degree of hardship – it is a question of degree. In R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 532 at 562, Sulan J said:
It does not follow that every failure on the part of the prosecuting authority to make full disclosure will result in a miscarriage of justice. No system is perfect.
17. In the present case, the applicant relied primarily upon the late provision of the following material as the basis for its application to vacate the trial:
(b)the EI material;
(c)the Omari phone download; and
(d)the Holwell material.
The EI material consisted of a statement to police made by the witness EI dated 20 September 2018, together with notes of conferences between the witness and prosecutors on 27 September 2018 and 9 October 2018. The statement was provided to the applicant’s lawyers on 21 September 2018. A letter, forwarded by email, from the CDPP to the applicant’s lawyers on 27 September 2018 contained the conference notes from that day. The notes of the conference on 9 October 2018 were provided on 9 October 2018 with further notes from the conference on 27 September as I understand it. The only significant difference between the notes disclosed on 27 September and 9 October 2018 was material in the latter disclosure that the Crown indicated it would not propose leading at the trial of the applicant.
19. By an email dated 3 October 2018 the CDPP advised the applicant’s lawyers that it had become aware of material that had not been disclosed to them, being material relating to EI held by ACT Policing. That material was provided to the applicant’s lawyers at about 9 pm that day.
20. The Omari phone download consisted of the contents of a mobile phone owned by Mr Omari and downloaded by the Australian Border Force on 23 January 2017. Mr Omari is alleged to be a principal in the importation with which the applicant is charged, but he has subsequently absconded overseas and cannot now be located. As I understand it, the applicant alleges that he was duped by Mr Omari into being unknowingly involved in the importation of the MDMA, the subject of the charge. The contents of his phone included approximately 28,822 message/chat items, 4,251 SMS messages and 128 MMS messages. This material was provided to the applicant’s lawyers on 5 October 2018. The Crown advised that it was not proposing to rely upon the Omari material. As I understand it, the police in possession of this material had assessed it as supporting neither the Crown case or that of the applicant. Not unnaturally, the applicant’s lawyers were initially reluctant to dismiss the Omari phone download material as irrelevant, because while the Crown may not have proposed using the material, there was a possibility, albeit in my opinion slight, that the material may contain something of benefit to the applicant’s case. The applicant’s counsel subsequently agreed that the trial could proceed notwithstanding the late disclosure of the Omari phone download material.
The Holwell material consisted of a statement provided by Federal Agent Holwell dated 8 February 2018, together with a 71 page document, a statement of Scott Robson dated 5 October 2018 and briefing notes of conversations between Mr Holwell and the Crown on 5 and 9 October 2018. This material related to lawful telephone intercepts conducted by police.
22. On the face of it, this material did not appear to be particularly significant for the Crown case. The Crown sought to lead this material to demonstrate that the applicant had contact with Omari using encrypted systems at particular times which they submit will enable a jury to draw relevant inferences in the applicant’s trial. The Crown cannot lead evidence of the content of the encrypted communication.
The applicant was in possession of the 71 page document and the statements of Mr Holwell since February 2018. There was some initial confusion regarding whether the Crown intended to call Mr Holwell at the trial, but by letter dated 27 September 2018 the applicant’s lawyers were informed that Mr Holwell was to be called to address extracts from the 71 page document. A list of witnesses produced by the Crown on 2 October 2018 included Mr Holwell. It appears that it was not until a conference between counsel took place on 3 October 2018 that the applicant’s lawyer questioned the relevance of this material.
24. In order to make an order staying the proceedings against the accused until the Crown pays costs thrown away as a result of the adjournment of the trial, I must be satisfied that the accused has suffered an injustice which cannot be remedied in any other way. The criterion for making the orders sought by the applicant is therefore not identical to that upon which the decision to adjourn the trial was made. The decision to grant the applicant’s oral application for an adjournment was to ensure that the applicant could have confidence that those representing him on such a serious charge had every opportunity to understand and meet the Crown case. Undoubtedly if the Crown had supplied the relevant material, in particular the Omari phone download material, in a more timely manner, this may have avoided the necessity for an adjournment. Not all of the material provided to the applicant shortly before the trial was due to commence could have been provided at a much earlier date; for example, notes of conferences between the Crown and witnesses would not ordinarily be expected until shortly before the trial. The bulk of the EI material did not come into the possession of the Crown until late September 2018. The Omari material was in the Crown’s possession from January 2018, and the Crown concedes that it should have disclosed it earlier, but it appears unlikely that it will be of significance. The Holwell material was largely available to the defence well in advance of the trial, as was the fact that the Crown intended to call Mr Holwell as a witness. If the defence had any doubt as to the relevance of that material it could have sought an explanation from the Crown well before 3 October 2018.
25. I am not satisfied that the failure of the Crown to disclose the referenced material in a timely manner has caused the applicant an injustice at such a magnitude to justify an order for a stay of proceedings. The failure of the Crown was not so egregious as to justify the making of the orders sought.
26. The application is dismissed. I order that this judgment not be published other than to the parties until further order of the Court.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 14 November 2018 |
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