R v Rogowski-Dann

[2019] NSWDC 638

District Court

New South Wales

Medium Neutral Citation:	R v Rogowski-Dann [2019] NSWDC 638
Hearing dates:	6 - 7 August 2019
Decision date:	07 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	I decline to make the order sought by the accused
Catchwords:	CRIME – Trial - notice of motion for stay of proceedings until cost of previous trial are paid – “Mosely” order - jury discharged after officer in charge gave evidence that raised matters of prejudice – trial judge considered this could not be cured by direction
Cases Cited:	Dietrich v The Queen (1992) 177 CLR 292, Hufnagl v DPP (Cth) (2007) NSWDC 130 Jaygo v the District Court of New South Wales [1989] 168 CLR 23) Le v Attorney General of New South Wales (2017) NSWCCA 27 Petroulias v R (2007) NSWCCA 154 R v Fisher (2003) 183 A Crim R 318). R v Mosely (1992) 28 NSWLR 735 R v Selim (2007) NSWSC 154
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mr Jacob Rogowski-Dann (accused)
Representation:	Counsel: Ms Talbert (Crown) Mr Rajalingam (accused/applicant)
File Number(s):	2017/00262289
Publication restriction:	No

Judgment

1. In relation to the matter of Rogowski‑Dann, I decline to make the orders sought by the applicant and I will give my reasons now.  Application is made by notice of motion, filed on behalf of the applicant Jacob Rogowski‑Dann, for a stay of proceedings related to a trial that is listed to commence on 19 August 2019.

INTRODUCTION

2. The relevant motion was filed on 22 July 2019 however the principal proceedings at the heart of the application were trial proceedings before Traill DCJ that occurred, as I understand it, between 14 and 17 January 2019.  The motion of the accused seeks costs said to be thrown away, identified as totalling $30,000 be paid by the Director of Public Prosecutions and that there be a stay of the proceedings until such time as though costs are paid.  The particular order sought is referred to in the submissions as a Mosely order, referring to the decision of R v Mosely (1992) 28 NSWLR 735, a decision I will come back to shortly.

3. So far as the trial proceedings in January were concerned, that trial proceeded over, as I understand it, three or four days and was close to completion of the Crown case when on 17 January 2019 in circumstances I will outline shortly the jury were discharged, as I understand it, on the application of the accused because particular evidence given in the trial in cross‑examination of the officer‑in‑charge, raised matters of prejudice which could not be cured by direction.

THE EVIDENCE

4. In this application there was evidence in the nature of affidavits from the applicant's barrister at trial Mr Rajalingam, who I will refer to as the accused's counsel, the learned Crown Prosecutor at trial Ms Talbert, the Prosecutor's instructing solicitor, Ms Gilmore, each of whom were cross‑examined on the contents of their respective affidavits and other evidence that they gave.  The applicant's learned solicitor filed an affidavit which was read by the Court but he was not required for cross‑examination.

5. The officer‑in‑charge of the matter who I need not specifically name, provided a statement to the Crown, annexed to which was a notebook entry said to have been made by her on 17 January 2019.  That police officer was also the subject of examination in cross‑examination on the hearing of the motion.  Other evidentiary material available to the Court was the transcript of the proceedings on 17 January 2019.

6. I point out that the judgment of the trial judge discharging the jury was unavailable.  Apparently it had not been sought and it should have been for the information of the Court but I am prepared to accept, given that nothing was drawn to my attention relating to it that I need consider, at least from the corporate memory of the parties, that, ultimately, this Court is not disadvantaged by not having access to that judgment.  I was also provided with helpful written submissions by both the applicant and the respondent Crown and those submissions were supplemented by oral submissions.

7. If I could turn to what I regard as the most significant parts of the evidence provided to the Court, however I have had regard to all the material placed before me.  On 17 January 2019 the officer‑in‑charge was cross‑examined by counsel for the accused who, as I said, gave evidence in support of the application made by the applicant.  I will read the relevant passage of the transcript.  At p 103, line 43, this question is asked:

Q.  “Can you confirm that my client does not have criminal convictions?

A.  Not prior to this, no.

Q.  As of this day, does not have any criminal convictions?"

8. Her Honour intervened, obviously picking up on the circumspect answer of the police officer, with a question:

Q. “He doesn't have any?  When you said, 'As of prior to this', if he doesn't

have any‑‑

A.  No."

9. Mr Rajalingam then asked this question:

Q.  “And he's never been investigated for any other type of matter?

A.  Not by me, no.

Q.  And he's never been investigated by any other officer, so far as you're aware, of any matter?

A.  I can't comment on that one.

Q.  You're aware of any intelligence on the COPS system about Mr Rogowski‑Dann in relation to any case?

A.  There is intelligence on him, yes.

Q.  In relation to this case?

A.  Not in relation to this case, no."

10. The last two questions and answers are really at the heart of the application brought by the applicant on the basis, if I might for the moment, just anticipate the essence of the submissions. That is, that the discharge of the jury following upon that evidence was proper and that the answers given by the police officer created a prejudice to the accused that caused, through no fault of his own, costs to be thrown away, and further, that the fault for this was the prosecution, the "Crown", taking responsibility for the police officer failing to provide information to the defence that was within the knowledge of the police officer.

11. There was no re‑examination.  The witness withdrew and the jury was sent out for a period of time.  In the absence of the jury, at the top of p 105 of the transcript of 17 January 2019, Mr Rajalingam said this,

"Your Honour, I had a conversation in which those two questions were asked of this witness and all I wanted was a negative.  That wasn't the case.  I don't know what the witness is talking about and it's really concerning and I don't know if the jury caught onto that but it sounds like he's done this before". 

Madam Crown, when asked to comment, said:

"CROWN PROSECUTOR:  I don't know what the witness is talking about either.  There was a conversation about the questions that would be asked and I understood that‑‑

HER HONOUR:  There was no criminal convictions(sic).

CROWN PROSECUTOR:  Yes.

HER HONOUR:  And the defence have asked‑‑

CROWN PROSECUTOR:  I certainly don't know about anything else."

12. Mr Rajalingam is then recorded as saying, after some comments by the learned trial judge at p 105, line 31,

"I appreciate that, your Honour, but I understood on the basis of what I asked and had been told". 

The Crown Prosecutor then said,

"Nothing has been disclosed at this stage so, your Honour, I'm not in a position to comment on that.  I'll have to speak to the officer‑in‑charge". 

13. There were two short adjournments.  After the first adjournment the Crown Prosecutor said,

"I've asked for clarification from the officer‑in‑charge and she needs to access the police system to provide the information that I think she was referring to in the evidence.  That might just take a little bit of time".

14. Her Honour granted a further short adjournment and during that adjournment, I am satisfied, by reference to the transcript and the evidence before the Court, a document was produced that was marked for identification, MFI 17, under the heading, "Copy of Intelligence Summary Report".  The Crown Prosecutor, on producing that document, said this to the judge:

"So, what I've been given by the officer‑in‑charge is this.  It's called a Summary Report and it details what's termed as events, which I understand to be intelligence, which is the investigatory tool of the police that they note any information, whether or not it's an allegation against him or otherwise and the intelligence categories, your Honour can see on the third page, include a number of different matters but not sexual matters. I'm told that there can be no further detail obtained from the police about what the intelligence is because there's a public interest immunity issue, so from what I can glean from that, the clarifying evidence from the officer‑in‑charge about what this is, would be an explanation of what an intelligence report is, confirmation that it didn't lead to any charges and didn't necessarily actually involve allegations of conduct against him and perhaps confirmation that the intelligence did not involve any sexual crime(sic).  There's some reference in the material to the existence of an AVO."

15. Later on, after some discussion about that, the Crown Prosecutor said this at the bottom of p 107 of the transcript:

"I was part of a conversation where the officer‑in‑charge was asked to go away and confirm that there were no prior convictions.  I don't know whether the word, intelligence, was used but whether there was anything else.  That's what, at least, I understood.  Anything other than convictions on the police system, I'm not sure and if there's a need for that evidence to be forwarded from the officer‑in‑charge ‑ whether there was any subsequent conversation with anybody confirming the results of her inquiries, but my understanding at all times was that there were no prior criminal convictions.  There was nothing that I knew of."

16. There was some comment then made by the Crown Prosecutor about the evidence that had been given and the reference to "intelligence".  The officer‑in‑charge then gave evidence which appears at pp 109 to 111 and so far as the evidence of the officer is concerned, pertinent to the matters I have to decide, she confirmed that she had made inquiries and that the accused had no prior criminal convictions.  She was asked this question at p 111:

"Q. Did you tell the prosecutor that he had these intelligence reports andevents reports?

A. The intelligence reports are not relevant to if they've got any criminal history.  It's a police only information system.  It's got nothing that gets

produced at Court, so 'intelligence', yes, he has intelligence but it's got nothing to do with of good character or criminal history(sic)."

17. That was the evidence further that the officer‑in‑charge gave to this Court.

18. Turning then to the affidavit of Mr Rajalingam. In his affidavit and in his evidence‑in‑chief, he said that he was outside the Court, he does not remember which particular day, having a conversation with the Crown in the presence of the officer‑in‑charge.  He does not recall the solicitor for the Crown being nearby or present, although it is possible that she was and he did not notice her.  In the presence of the Crown and the police officer he said in his affidavit:

"I said words to the effect of, 'The only question I'm going to ask your detective is first, whether my client has any criminal convictions.  That's right, isn't it?', I recall the detective saying no.  I also said, 'And the only other question will be whether there is any other police intelligence in relation to him', to which I recall the detective shaking her head sidewise."

He went on to say:

"I understood from this that she would answer in the negative when I asked her these questions in front of the jury."

19. He also said he recalled raising good character in Court with the trial judge at another time.  It appears to be agreed between the parties that before the questions were asked of the detective in the presence of the jury causing, ultimately, the jury to be discharged, it was conceded in the presence of the trial judge that the Crown would not deny that the accused was, by reason of no criminal convictions, a person of good character.  Whether the accused led further evidence of good character was entirely a matter for him.

20. I pause for a moment to make just one observation.  Contrary to the submission of the learned Crown here, I place no importance upon the use of the word, "only", to conclude as the Crown might have suggested to me, that the counsel for the accused “only” raised one issue with the Crown Prosecutor in the presence of the police officer.  In fact, my memory is, although I do not have a transcript of yesterday's proceedings, the accused’s counsel, when looking at the affidavit, said something about there could be a "typo".  Either way, to my mind the matter is of no moment. But counsel was adamant that he, in fact, said those things to the Crown Prosecutor as it is identified in the affidavit, in the presence of the police officer and that there was a response from the police officer in the presence of the Crown Prosecutor.

21. It is perfectly proper for counsel for the accused to address a question to an officer‑in‑charge of a case in the presence of the Crown Prosecutor if he chooses.  It is also proper for counsel for an accused person to ask the Crown Prosecutor if the Prosecutor does not mind if he or she speaks to the officer‑in‑charge of the matter and have a conversation accordingly, but it certainly a more preferable course if discussing evidence to be given in the trial, to discuss that in the presence of the Crown Prosecutor.  There is no impropriety in the way in which the Crown went about the matter.

22. The solicitor for the accused at trial, in his affidavit, relevantly at para 4 of his affidavit, was informed by counsel of a conversation that counsel said he had with the officer‑in‑charge of the case, as he described it.  He states:

"Counsel informed the detective in the presence of the Crown that in cross‑examination all he intended to ask the detective was whether the accused had any criminal antecedents and whether there were any intelligence reports concerning him.  Counsel told me he was informed that the detective would answer these questions in the negative."

23. Counsel for the Crown, relevantly, confirms that on or about 16 January 2019 she was directly out the front of the courtroom, as I understand it, outside the courtroom with the door of the courtroom closed.  She was with defence counsel, the detective and her instructing solicitor.  She says at para 17 of her affidavit:

"I cannot remember the exact words that were used but Mr Rajalingam said words to the effect of, 'I will be asking questions in cross‑examination about the accused's good character and whether the accused has any antecedents'.

I said to Detective Clarke words to the effect of, 'Can you just double check so there's no issue?'

I then turned away with Ms Gilmore from where the conversation took place and towards the lift area.  As I was walking away I heard Mr Rajalingam say to Detective Clarke words to the effect of, 'Can you check whether there are any antecedents or anything else on the police system?’”

24. The Crown said she understood this to be a reference as to whether the accused had any other outstanding criminal charges.  She did not hear the defence representative refer to the existence of any "intelligence reports".  As with counsel for the accused, she was adamant that that was her recollection.  I do not propose to quote from the affidavit of the solicitor for the Crown for reasons I need not go into. Not that I am doubting that she is telling the truth but her account is not entirely reliable as she does not remember the full detail of what occurred and is unable to give a detailed account of conversations that took place.

25. The officer‑in‑charge's statement refers to the fact that she was never conferenced or spoken to by the Crown or defence about obtaining a fresh copy of his criminal history.  She gave evidence in a particular way that I have already quoted.  She said that all the relevant criminal history and bail reports had been served beforehand and in her evidence‑in‑chief she said this had been included within the original brief. She saw no reason to get a fresh criminal history or bail report in the context of what she had already done and in any event, as her oral evidence made clear, she was not party to a conversation, she said, between the Crown and counsel to the accused.

26. She did hear, in the course of observing a conversation between the Crown and the accused's counsel, some reference to the accused's character or his criminal history of lack of criminal history but she was, as she explained it by reference to the position of the Crown Prosecutor in this Court, some 3 or 4 metres away and not a part to that conversation.  There is nothing of significance arising in relation to the matter from her notebook.  She said the notebook entry had been made by her at the request of the Crown.

LEGAL PRINCIPLES TO BE APPLIED

27. If I may turn, just briefly, to the legal principles that inform the matter that I take into account.  I have been assisted to some extent by the helpful submissions of the parties in relation to some of the observations made in decisions of higher authority than the District Court.  The District Court has power to stay proceedings to prevent an abuse of process, or an unfairness to an accused person (Jaygo v the District Court of New South Wales [1989] 168 CLR 23). I do not need to delve into the intricacies of the basis of that power. This power is not confined to circumstances where not to grant a stay would lead to an unfair trial (see Dietrich v The Queen (1992) 177 CLR 292, R v Fisher (2003) 183 A Crim R 318). A power to stay proceedings conditionally, as is sought in this matter may arise from the prosecution's failure to disclose relevant information to an accused person (see R v Fisher) and there is power for the Court to stay proceedings until such time as an accused's legal costs, thrown away by reason of fault or misconduct on the part of the prosecution, are paid (R v Mosely, earlier cited).

28. I should point out that the observations of Gleeson CJ in Mosely are very much obiter observations in the context of the issues required to be considered by the Court [see pp 739‑741] however, as I have said, there can be no doubt, notwithstanding the concept of a, "Mosely", order, arose out of obiter observations that there has been confirmation of the existence of the power to make an order such as was sought by the applicant in this particular matter.  There has been no issue raised with me as to the issue of the amount of costs said to have been "thrown away".  The real issue in the determination of the application has been whether the Court should relevantly make an order and maybe if I was prepared to make the order there may have been some further discussion as to the terms of the order but that issue does not arise.

29. I should point out in this regard in a decision of Hufnagl v DPP (Cth) (2007) NSWDC 130, I delivered judgment in that matter on 27 April 2007 granting such an order in respect of a prosecution sought to be pursued by the Commonwealth DPP which was not the subject of appeal. But in that particular matter I did not order the full amount of costs as sought by the applicant for reasons I need not dwell upon.

30. The issue of the power of the Court to make such an order has been confirmed, as I have said, in the decision of R v Fisher to which I have earlier made comment and which are cited in the Crown's written submissions. Particularly some observations of Justice Santow upon which the Crown relies. In that particular matter, Justice Santow made the observation at [7] that:

"The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown.  That is to say, unfairness which exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial",

31. Justice Simpson in her judgment, which was the leading judgment in the Court with which Justice Santow agreed, did not use the word, "exceptional".  She used words such as "unusual" or "special".  Interestingly, in the context of both the ratio of the case and the obiter observations of the respective judges, Smart ACJ agreed with both judges.

32. Be that as it may, there have been authorities since that have reflected upon the exceptional character of the circumstances such as to warrant an order that is sought by the Crown. For example, a decision cited by the Crown of Petroulias v R (2007) NSWCCA 154, in the judgment of Justice Ipp with whom Justices Latham and Fullerton agreed at [17].

33. In the decision R v Selim (2007) NSWSC 154, Justice Fullerton, confirming the power to temporarily stay proceedings, noted that such orders had been made where the prosecuting authorities have acted in a way that can be described as "unconscionable", or where fault has been attributed to the prosecuting authorities by production of relevant material in its possession very late in a trial, resulting in a jury being discharged, denying the accused private representation at his retrial as was the case in R v Fisher. There the prosecuting authorities were found to be in flagrant breach of their duty to disclose evidence which had a tendency to show the accused could not have been involved in a transaction central to the Crown case, citing authority in South Australia (R v Selim at [51]).

34. Her Honour noted by reference to the South Australian case which reference I need not provide, that while the Court was prepared to accept that, notwithstanding the information was not deliberate, no explanation from the prosecuting authorities was forthcoming to explain the failure to produce the material.

35. I also note in relation to the matter that there are observations made in the decision of Le v Attorney General of New South Wales (2017) NSWCCA 27, another case referred to by the Crown, where the Chief Judge of the Common Law division, Justice Hoeben at [150] giving the leading judgment of the Court, noted by reference to authorities cited by him:

"On my reading of the authorities, more than simple fault on the part of the prosecution is required before a Court should make an order of the kind under consideration.  On the other hand, the authorities do not unequivocally say that the fault has to be flagrant or egregious.  It would be sufficient, in my opinion, if the fault were of a serious kind(sic)."

SUBMISSIONS

36. In relation to the submissions that were made by the parties, counsel for the applicant in the written submissions and supplemented by the oral submissions by reference to some of the authorities to which I referred and some of the evidence to which I referred, made these observations; that the existence of the intelligence reports, the subject of evidence before the jury, was not raised with the accused, his solicitor or counsel, nor was it raised with the Crown.

37. It is noted, although the evidence makes this more clear, that it is not clear exactly when the informer became aware of intelligence reports but in the submission of counsel for the accused, this was immaterial.  The second point made by counsel for the applicant was that the Crown who had carriage of the prosecution was not aware of the relevant information in the context of the accused, raising good character.  There was no criticism of the Crown's conduct in the matter but it was submitted that as a result of the error of the non‑disclosure to the defence and the non‑disclosure to the Crown, the Court at trial was satisfied of a "high degree of prejudice being occasioned to the accused, causing a discharge of the jury”, the accused was required, to pay for his solicitor and counsel and although the Crown has a right to try the accused for a second time, it should be at the expense of compensating the accused.

38. The Crown's extensive written submissions reflect upon the legal principles and the evidence in the case.  Its general points are that I should prefer the evidence of Ms Talbert. That the reference to the expression "anything else" by the Crown, should not be taken to be read as including a reference to intelligence reports.  In any event, prudent counsel should have confirmed the answers that he believed he was getting through the Crown Prosecutor from the counsel and that in any event it was submitted that as it transpired the questions asked of the officer‑in‑charge giving rise to the problem at the trial, were not appropriate questions, relevant to the issue of good character.  In other words, the issue that caused the discharge of the jury, as I understand it from the evidence, was a matter that should never have been raised, irrespective of what information counsel for the accused and his solicitor, or the accused had about intelligence information.

CONSIDERATION OF THE ISSUES

39. I just pause for a moment now in the consideration of the evidence to reflect upon one preliminary matter. Although, ultimately, it is not relevant to the determination of the issue.  I am finding it difficult to understand why the jury was discharged.  I have read the relevant portion of the transcript.  In my view, even if the judge required further evidence from the police officer as to what the police officer was referring to, even if the judge was aware that some evidence had been given that counsel for the accused was not expecting, the matter in the context of the trial being near the end of the Crown case, in my view, could have been dealt with by appropriate direction firmly addressing the jury's mind to the real issue that the accused was a person of good character and the reference to intelligence reports was a matter of no moment.

40. There are many ways in which that could have dealt with, either by agreed fact or by the judge just taking control of the proceedings having been informed of the nebulous character of the intelligence information.  I accept, from the evidence given at trial and the evidence in this Court, that the police officer's evidence at the trial was truthful, however I do not accept her as a reliable witness in relation to what, if anything, passed between the accused's counsel and the Crown in what was obviously a discussion about the accused's good character and information in relation to that matter, outside the courtroom on or about 16 January 2019.

41. I accept that there was a conversation between the accused's counsel and the Crown Prosecutor in the presence of the officer‑in‑charge in relation to accused's character.  The claim of the police officer to be some 3 or 4 metres away from that conversation I do not accept, although I do not see anything sinister about the police officer's unreliability in that regard.  I accept that counsel for the accused confirmed with the Crown Prosecutor in the presence of the officer‑in‑charge that the accused had no prior criminal convictions.  I also accept from the evidence of the police officer that she had provided a criminal history and or bail report to the police before the trial started.  That should have been provided to the defence.  There is no evidence one way or the other as to whether that had been done.

42. In my view, the two most reliable accounts of the conversation at the heart of the basis upon which counsel claimed that he asked the relevant questions before the jury, is the account of the two counsel.  It is true that the applicant's solicitor's evidence confirms the belief in the mind of counsel for the accused that he had the conversation as he states in his affidavit.

43. The solicitor for the Crown was present for a conversation but her detail in her affidavit is insufficient to contradict either account by the two barristers.  The key issue of divergence between the two counsel concerns the issue of whether the accused's counsel specifically raised the issue of whether there was "police intelligence" in relation to the accused.  The Crown Prosecutor's recollection, as I said earlier, that she heard counsel for the accused say to the detective as she was walking away, "Can you check whether there are any antecedents or anything else on the police system?"  There is a divergence, I might say, between the two barristers in that respect, insofar as counsel for the accused does not have counsel for the Crown moving away before he asked about the issue of "intelligence".

44. Both counsel are adamant as to what occurred but the learned Crown Prosecutor is adamant that the words "police intelligence" were not said because in her experience she had never heard of intelligence reports being raised in the context of the question of the character of an accused person.  She gave evidence, which I accept, that if she had heard those words uttered by counsel for the accused, she would have made inquiry as to whether any intelligence reports did exist and as to their scope and relevance.  I must say, I have never heard of reference to "intelligence reports" in the context of dealing with the issue of good character and I will come back to the issue of intelligence reports and their value or lack of value as the case may be, in a moment.

45. Of course, as I said, the applicant's barrister's recollection has support in the non‑hearsay account of his solicitor.  It also has support in the detail of what was said to the judge after the jury had first been asked to leave the courtroom.  Whilst I do not accept the detective's evidence about her lack of presence for the relevant conversation, I do accept her evidence that she was aware of intelligence information before the trial commenced.  In fact, she made such inquiries at the time of the arrest of the accused in 2017 or 2018. She was unable to supply the precise date and I do not know it myself, but she also said that she did not see that information, as she understood it, as being relevant to the issue of the accused's character.

46. There was certainly, from her, no suggestion that she ever made any inquiry in relation to matters of "intelligence" concerning the accused during the trial.  In fact, the only inquiry she made was after the cross‑examination in the presence of the jury and after she had been asked to make inquiries by the learned crown prosecutor.  It is also clear on the evidence available to me that the Crown Prosecutor was unaware of any such "intelligence information" until MFI 17 was produced to her.

47. Counsel for the accused make it clear that the answers given by the detective were not only unexpected but were contrary to his understanding of what he had been told outside the Court.  The representations of counsel for the accused, as I have quoted from p 105 of the trial transcript, are consistent with his memory of events set out in his affidavit but it is also the case the representations made by the Crown Prosecutor at various points in time are consistent with her recollection of what occurred in relation to the relevant conversation.

48. Ultimately, by reference to all the information available to me, I am unable to conclude whether the belief that counsel for the accused had as to the answers that would be given by the police officer, arose from her shake of the head outside the Court or because he did not receive any further information to the contrary once he had had the conversation with the Crown Prosecutor in the presence of the police officer.  I have no doubt that the barrister believes that he had been led to believe that there was no "intelligence information" about the accused.

49. He would not have asked the relevant question, the cause of difficulties, if he had believed to the contrary. But I am unable to precisely conclude, having regard to the conflict between the Crown and the counsel for the accused, as to what he specifically asked for in the presence of the prosecutor and whether, in fact, he referred to something in the police system other than evidence of prior convictions, or whether it was specifically about "intelligence" despite his certainty that that is what he said.

50. Of course, the words "anything else on the police system" to which the Crown refers in her evidence, given its natural meaning, maybe understood by anyone with experience of such matters, at least from the defence perspective, to include intelligence reports about someone. However that may not have been the way in which the matter was interpreted by the Crown Prosecutor. In fact, it was not the way it was interpreted by the Crown Prosecutor, because I accept her evidence that if she understood that counsel for the applicant was referring to intelligence reports in his request for information, she would have asked further questions of the officer‑in‑charge about the matter.

51. As I said, her evidence is confirmed by her representations to the trial judge, in my view and it certainly came as a surprise to her when MFI 17 was produced to her after the first short adjournment.  One matter that is clear is whatever the conversation outside the Court, the officer‑in‑charge made no further inquiries of the police system or the COPS database, however in my view this was not a failure to carry out the instruction either explicit or implicit in the Crown Prosecutor's evidence.

52. In my view, a failure to do anything in that regard is explained by the fact that the police officer understood that the accused had no prior criminal convictions.  She had regarded such intelligence as she had earlier obtained, at the time of charging the accused, as irrelevant to the issue of character and I do not believe that she necessarily expected that she would be asked a question about intelligence to which she gave a truthful answer.

53. In my view, just assuming for the moment that the conduct of the police officer binds the Crown, this is not an egregious error on the part of the officer. Nor was it an egregious error for the Crown Prosecutor not to make further inquiry as to whether her request for further information had been followed through.

54. The discussion, however, outside the Court, in my view, for the determination of this application, has to be considered in the light of other matters.  I note that no correspondence was produced to the Court or said to exist which had been prepared on behalf of the accused addressed to the Crown, requesting the Crown's confirmation of matters particularly relevant to the accused's character.

55. I am informed by counsel for the accused, no subpoena had been issued to the Commissioner of Police requesting production of records relating to the criminal history of the accused or any intelligence about him.  I am mindful that there may be claims of public interest immunity in relation to such material. In fact, such reference was made in the course of comments made about MFI 17 when it was produced. But I also note, MFI 17, so far as it provided relevant information about “intelligence" was produced to the Court at the request of the Crown without any objection from the Commissioner of Police on the public interest immunity basis.

56. I note also, that the Crown had conceded before the questions were asked of the police officer in the presence of the jury, that the accused, from the perspective of the Crown, was a person who could raise his good character because he had no prior criminal convictions.  The issue of the existence of intelligence reports was, to the mind of the police officer, irrelevant and of course, the Crown did not request them because she did not anticipate that they would be of any relevance in any event.

57. In these circumstances, where the trial judge had been told that the parties agreed that the accused had no prior criminal convictions and could thus raise good character without penalty, there was no reason whatsoever for the police to be asked to confirm whether, in fact, there was no "intelligence" held about the accused by the police.

58. In my view, in the context of raising good character in this way, that is in the Crown way, through the police officer, it is the absence of prior criminal convictions and possibly outstanding charges which was the real issue requiring the attention in the cross‑examination of the police officer, sufficient to raise good character and to get the full benefit of a character direction in that respect. It was also sufficient, in my view, to head off the issue of the Crown endeavouring to raise evidence of bad character perhaps in the Crown case in reply.  It is well known amongst at least defence counsel and I am sure it is well known amongst experienced Crown Prosecutors that if the issue of character is to be raised and sought to be raised on behalf of the accused without penalty, it is raised in the course of the Crown case to avoid the risk of the Crown being able to split its case. Of course, one needs to make proper inquiry to ensure that the issue of good character can be raised safely with the relevant witness.

59. I also point out it is not a matter that needs to be necessarily raised with the officer‑in‑charge.  In my view, in the smooth conduct of trials, these matters can be addressed by agreed facts between the parties or relevant admissions made by parties as the Evidence Act 1995 allows.

60. As to the real conflict of significance in the evidence, ultimately, I am not in a position to reach a conclusion as to which version I accept.  I believe both witnesses are being truthful. But they have slightly different recollections of a conversation about which nobody made a note.  The fact that the accused's counsel is adamant in his beliefs that he made specific reference to “intelligence”, confirming that matter with his instructing solicitor and asking his questions of the police officer in anticipation of receiving negative responses, does not, in the context of the belief held by the Crown Prosecutor as to what occurred, establish on balance, to the extent that the onus is upon the applicant, that the words recollected by the accused's counsel were actually said.

61. As I have earlier pointed out, the Crown's confoundment that the issue of "police intelligence" was relevant to the issue of character is not misplaced.  Even if I preferred the evidence of the accused's counsel, such as to be satisfied on balance that what he said occurred did occur, bearing in mind I do not accept the police officer's account of not being physically present, it does not mean that I cannot accept other parts of her evidence. Such as if it was correct that she was aware of the existence of intelligence from her investigation of the matter and that she gave some indication to the accused's counsel that there was none by a shake of her head.  This had to be seen in the context of her belief that what she understood was the material she uncovered, was irrelevant to the issue of the accused's good character and she was aware that there was no evidence to establish that the accused had any prior convictions or findings of guilt.  These conclusions on her part from the information available to her were not unreasonable.

62. In the submissions of counsel for the applicant on the motion, who is different from the counsel at trial, it is submitted that in the circumstances of the matter, the failure to disclose information to counsel for the applicant that was known to the police officer, led counsel at trial to ask questions based upon his understanding that arose out of that failure to disclose that information.

63. I am not satisfied on balance there was a relevant failure to disclose information which the officer‑in‑charge believed was relevant to the issue of the accused's good character.  I am not satisfied on balance that whatever question was asked of the Crown about information in the possession of the police, was understood by the Crown and the police officer to include the information that the police officer had been aware of at the time of the charging of the accused. I do not accept on balance that when the police officer was called to give evidence at the trial, in the presence of the jury, the police officer expected that she would be asked questions about a matter that she thought was irrelevant, whatever was said to her outside the Court. Notwithstanding the specific evidence of counsel for the accused that might suggest to the contrary.  In any event, it is correct to say as I have earlier pointed out, there was no need to ask any questions about the possession of police intelligence about the accused.

39. Coming back to what I foreshadowed I would comment upon, the expression "intelligence" in a police investigation context can take a range of forms.  Many of those forms cannot establish any matter one way or the other.  It is also the case and this is the vice of the question asked by counsel for the accused, that the absence of police intelligence about a suspect or an accused, likewise, does not establish one thing or another.  It would be of no assistance to a jury to know that there was no intelligence about an accused person unless the jury were informed in some way as to what that intelligence might comprise, if it existed, and how that would be capable of informing the tribunal of fact as to matters relevant to the accused's character.

40. It is a different matter, in my view, where the tribunal of fact is informed that an accused person has no prior criminal convictions and or has no outstanding charges.  These are very concrete matters capable of conversion into a palpable concept of the character of the accused and certainly capable, if not entirely understood by the jury, of clarification by the standard legal direction required of judges on the issue of character.  Likewise, although I am not suggesting counsel for the accused was going to ask this question, a question asked of a police witness in a trial in the form of, "Is the accused adversely known to the police?" is a question that might be capable of inviting a response of no value in determining whether an accused really is a person of good character or not. Not being liked by a police officer is not evidence of bad character.

41. The particular question or questions asked by counsel for the accused that caused all the trouble at the trial were truthfully answered by the police officer.  The information within MFI 17, in part, contains information about the accused that in my view, the accused could have instructed his counsel about, in addition to telling his counsel that he had no prior criminal convictions. For example, as I understand the material in MFI 17, if it was true that the accused was subject to an apprehended violence order or had been subject to an application for such an order, surely that is something the accused would have been able to volunteer to his counsel if simply asked the questions, "Have you ever been to Court before?  Have any orders been made restraining you in any way?  Have you been the subject of an application for an apprehended violence order?  Have you had any prior involvement with the police in any way whatsoever?".

42. I note in relation to this matter, one of the matters about which there is no evidence is that there is no material provided to the Court as to what instructions were sought or provided to the accused's legal representatives about the matter about which the counsel for the accused said he made inquiries through the Crown Prosecutor or the officer‑in‑charge.  Ultimately, I have concluded, in any event, even on the version of the accused's counsel, in all the circumstances, I could not conclude that the discharge of the jury was the responsibility of some fault on the part of the prosecution, albeit a fault by the police officer in not disclosing information that may have been available to her to the Crown Prosecutor.

43. Ultimately, in the examination of the evidence, if there be any fault that can be identified from the evidence available to me, if there was potential fault to be found by the police shaking her head in the context of information that she had gained a number of months before, there seems to me to be a contributing factor of asking a question of the police officer that, to my mind, was irrelevant to the issues for the jury to determine and not making formal and proper inquiry about the relevant matters.

44. Pursuing the issue of the non‑existence of intelligence was, to my mind, irrelevant to the issue of good character. Particularly in the context of the concession previously made by the Crown.  I must say, with the greatest of respect to all concerned, this case highlights the danger of not obtaining relevant information in written form or seeking to clarify relevant information in written form but rather doing it in an informal fashion at the doorway to the Court.  Having said that, but for the grace of God go I, and I am sure that in my 30 years as a practitioner of the law, appearing in many criminal cases, I have done the same as counsel for the accused. But it is a method of obtaining information that presents difficulties.

CONCLUSION

70. Thus, in the circumstances of the matter, by reference to the principles I have identified, I cannot conclude, ultimately, that what occurred was directly a result of only the fault of the Crown.  I do not regard such fault as can be identified, for the reasons I have set out, as egregious and certainly not deliberate. But particularly unfortunate.

71. Just one matter I want to identify and I raise with the parties although, ultimately, it does not bear upon the determination of this issue. I could not understand why an application was not made under the Suitor's Fund Act 1951.  Section 6A(1)(c) provides inter alia, the hearing of any criminal proceedings, where those proceedings are discontinued and a new trial is ordered by the presiding judge for a reason not attributable in any way to disagreement on the part of the jury or in the case of criminal proceedings, any fault on the part of the accused or the accused's counsel or attorney, just assuming that the presiding judge accepted that in the circumstances, a certificate may issue to the accused's counsel.

72. The counsel for the applicant in the hearing of this matter confirmed that no such application was made to her Honour.  I must say, in the circumstances, even trying to arbitrate between the different recollections of this informal conversation that I would have been inclined to issue such a certificate if I had been asked to do so. Given, if I may say for the purposes of that observation, the appropriateness of discharging the jury.

73. It was raised with me, of course, that there is a limit upon which can be obtained from the Suitor's Fund.  That having been said, if a certificate had been issued and if certain funds had been made available to the accused, accepting that they would not have fully compensated him, that would not have prevented the accused from still pursuing a Mosely order to make up the balance of the costs "thrown away". Because I do accept as a fact in the particular case, be it exceptional, special or unusual, where a Mosely order can be made, that it may be appropriate in a particular case to award, in effect, indemnity costs to the accused, albeit that it is criminal proceedings, to ensure that there is no unfairness in the further prosecution of the matter suffered by the accused in the example set out in the decision of R v Fisher, where the issue was whether the accused, by reason of the conduct of the Crown, would be denied the opportunity of having counsel of his or her choice.

74. Thus, for the reasons I have set out above, I decline to exercise the discretion available to me to make the order as sought by the accused.  It is not that I do not have any sympathy for the accused's position.  It seems to me a matter that could have been avoided in a range of ways. As I said, I am not entirely satisfied that discharging the jury was the appropriate course.  Every judge has his or her own view of those matters and I certainly have discharged juries where I believe a miscarriage of justice would occur if the proceedings continued but I have always been of the view that one should be slow to do that if you believe that you can cure the problem by appropriate direction. It seems to me, with respect, that this issue could have been cured by appropriate and swift direction by the trial judge but that is, of course, no criticism of the trial judge.

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Decision last updated: 07 November 2019