R v Tasich

[2012] NSWDC 96

District Court

New South Wales

Medium Neutral Citation:	R v Lou TASICH [2012] NSWDC 96
Hearing dates:	13-15, 18-22, 25-26 June 2012
Decision date:	15 June 2012
Before:	Knox SC DCJ
Decision:	Applications for stay of proceedings and judge alone trial are rejected.
Catchwords:	CRIMINAL LAW - procedure - adjournment, stay of proceedings or order restraining proceedings - stay of proceedings - issue estoppel in criminal trials - prior findings on credibility: whether implicit in jury verdict - abuse of process - juries - judge alone trials - allegations against public officials - public confidence in justice system: jury verdict where prior inquisitorial proceedings
Legislation Cited:	Independent Commission Against Corruption Act 1988 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308 Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 Mraz v R (No 2) (1956) 96 CLR 62 R v Storey (1978) 140 CLR 364 R v Belghar [2012] NSWCCA 86 Rogers v R [1994] HCA 42; (1994) 181 CLR 251 R v GSR [2011] NSW DC 17; (2011) 12 DCLR (NSW) 193
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mr Lou Tasich (Accused)
Representation:	Mr P Wagstaff (Crown) Mr G D Wendler (Accused) NSW Director of Public Prosecutions (Crown) Hermann & Green Solicitors (Accused)
File Number(s):	2009/00246101

Judgment

Application for pre-trial rulings

1. At the outset of the proceedings counsel for the Accused filed a Notice of Motion seeking:

(a)   that the evidence sought by the Crown to be adduced against the accused be regarded as the subject of issue estoppel.

That was altered during the course of argument to seek, in the alternative, a stay of these proceedings as an abuse of process.

(b)   that the trial of the accused be by judge-alone rather than a jury trial.

At the end of submissions that was no longer pressed.

1. I have rejected both applications. These are my reasons for that decision.

Indictment

1. On 13 June 2012, the accused was arraigned on an indictment, with the following counts:

1. On 19 September 2007, at Sydney, in the State of New South Wales, at a compulsory examination conducted by the Independent Commission Against Corruption, gave false evidence in a material particular, namely, that at lunch meetings with Peter Coyte at which Wollongong City Council car parks were discussed, Peter Coyte had solicited a corrupt benefit from him, the said Lou Tasich knowing the statement to be false.

2. On 27 September 2007, at Sydney, in the State of New South Wales, at a compulsory examination conducted by the Independent Commission Against Corruption, gave false evidence in a material particular, namely, that he, in March 2007, had complained to Noreen Hay that Peter Coyte had sought a corrupt benefit from him, the said Lou Tasich knowing the statement to be false.

3. On 27 September 2007, at Sydney, in the State of New South Wales, at a compulsory examination conducted by the Independent Commission Against Corruption, gave false evidence in a material particular, namely, that he, in February 2007, had complained to Frank Gigliotti that Peter Coyte had sought a corrupt benefit from him, the said Lou Tasich knowing the statement to be false.

All these charges have been laid under section 87(1) of the Independent Commission Against Corruption Act 1988; Law Part Code: 56822.

Crown case

1. The prosecution alleges that the accused gave false evidence to the Independent Commission Against Corruption (ICAC) in a material particular on three occasions: namely, 19 September 2007 and 27 September 2007 (twice). The count relating to 19 September 2007 concerns an allegation made by the accused that Mr Coyte had solicited a bribe from the accused. The counts relating to 27 September 2007 allege the accused had stated, first, to Noreen Hay and second, to Frank Gigliotti that Coyte had sought a corrupt benefit from the accused.

1. The allegations relate to a proposed development of a car-park owned by the Wollongong City Council. Mr Coyte was the relevant divisional manager at the Wollongong Council. Mr Tasich was a developer interested in development projects. Ms Hay was an MP for the Wollongong area. Mr Gigliotti was a Wollongong City Council councillor.

Relevant procedural history

1. The accused was relevantly first arraigned on an indictment of 7 November 2011, on one count of corruptly offer a financial benefit to Mr Peter Coyte on 2 May 2007, contrary to s 249B(2)(a) of the Crimes Act 1900. The earlier trial, on which the accused was acquitted, related to what was alleged by the Crown to be an attempt by the accused to bribe Mr Coyte with a note containing the words "30K 4 U". Mr Coyte gave evidence that he had received a note from Mr Tasich to that effect. Mr Tasich denied that he had done that.

1. The bribery trial before a jury proceeded on 7-9, 14-8 and 21 November 2011. The accused was found not guilty.

1. A second indictment containing three counts of giving false evidence at a compulsory examination before ICAC was originally dated 18 March 2011. That is the same as the indictment now before the Court and on which the accused has now been arraigned.

Application for stay of proceedings

1. Counsel for the accused, Mr Wendler, submits that Mr Tasich's evidence in the first trial was in conflict with the evidence of Mr Coyte. Given that the jury acquitted Mr Tasich after considering that conflict, Mr Wendler submits that the evidence sought to be adduced should be regarded as being the subject of issue estoppel in that the jury verdict "...settled issues sought again to be ventilated by evidence relied on in the prosecution of the current indictment." In the alternative, Mr Wendler submits that proceeding with an indictment with that evidence constituted an abuse of process.

Evidence

1. Mr Wendler relied on a Notice of Motion and a supporting affidavit from Ms B Green, solicitor. Mr Wendler also referred me to various passages of the transcript of the earlier trial and what will be led against the accused in this trial to base his submission that there is such a commonality of evidence that the jury's verdict means that the issue of Mr Tasich's evidence should be accepted on those matters.

1. I have had regard to the closing address from the Crown Prosecutor at the earlier trial and the extracts of the summing up by the trial judge, His Honour Judge Norrish QC.

Submissions

Accused

1. During the hearing of the application, Mr Wendler varied the basis of the application to one of an abuse of process which he submitted should be stayed in accordance with his earlier submission that an issue estoppel arose. During the course of submissions there was an examination of the authorities - see below - where the existence of a doctrine of issue estoppel in criminal proceedings was doubted.

1. The accused submits that these proceedings are oppressive, and that the Director, by proceeding with this indictment is simply investigating a controversy which has been finalised. Fundamental to this submission is that the controversy has been fully ventilated and examined in the earlier trial and that issues relevant to issue estoppel and abuse of process are relevant in the exercise of my discretion in this case.

1. Mr Wendler submits that the jury's verdict in the earlier trial must be taken to have been a clear indication of the jury's determination of the issue of credibility between Mr Tasich and the principal Crown witness, Mr Coyte. He submits that the two witnesses were the only witnesses of substance and that the jury must be taken to have disbelieved Mr Coyte. The commonality of the evidence is said to be that the accused told ICAC that Mr Coyte had sought a corrupt benefit from the accused and that evidence was repeated in the trial. Further, that both Ms Hay (relevantly to the second count) and Mr Gigliotti (relevantly to the third count) gave evidence in the earlier trial and that the jury implicitly accepted Mr Tasich's account. It is submitted that the jury made an assessment of the totality of the evidence including the evidence concerning the allegations said to have been made to Ms Hay and Mr Gigliotti.

1. Mr Wendler further submits that the jury's findings on credit - even if inferential - have "merged into the verdict" such that there is an issue estoppel. In the alternative, he submits that the verdict gives rise to a requirement that the proceedings be stayed. Further, that there was, by the earlier trial, a settlement of the issues - namely, adversely as to Mr Coyte's credit - such that his evidence cannot be relied on in the prosecution of the current indictment. He submits that the relevant witnesses were called in the earlier proceedings; further, that the judge in that earlier trial summed up on the relevant areas of evidence and the conflicts between Mr Tasich and Mr Coyte, leading to the inference that the jury must have considered and determined those issues.

1. I have asked Mr Wendler for authority to support his essential proposition, namely, that a finding of credibility of a witness in relation to a Crown witness can be established from an earlier jury verdict such as to mean that the Crown cannot rely on that same witness in separate proceedings involving separate and distinct charges and different events.

1. Mr Wendler has referred me to Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308 at [8] ff. In particular, he refers me to a passage quoted there from Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 at [43] to the effect that the principle is one of autrefois acquit, namely, that the Crown is estopped from re-asserting the guilt of the accused when that question has previously been asserted - and determined - against the Crown.

Judge alone trial

1. Mr Wendler submits that the public interest would be best served by a judge alone trial where matters of notoriety and controversy would be able to be put aside by a judge. His case is that, no matter what directions were given, a jury would be likely to be influenced by the subject matter of the dispute. Mr Wendler submits that ICAC matters impart a flavour to proceedings which are prejudicial to an accused in these circumstances.

Crown

1. The Crown submits that the applications should be rejected.

1. In the earlier trial the Crown asserted that the accused offered a bribe to Mr Coyte in May 2007. In this trial the Crown will be asserting something different, namely, that the accused when examined by ICAC, said that Mr Coyte offered him, the accused, a bribe in February 2007.

1. It will be alleged in relation to Count 2 that during a lunch meeting in February 2007, the accused said that Mr Coyte solicited a bribe from him. Mr Coyte's evidence will be that that never happened. The evidence will be that at the ICAC hearing the accused told Ms Hay in the presence of Ms McMahon that in March 2007 Mr Coyte had tried to solicit a bribe from him. Ms Hay will say that it was not until July 2007 that she first heard that Mr Coyte had allegedly solicited a bribe.

1. Count 3 will be based on Mr Gigliotti's evidence that it was not until early June that the accused had made a complaint of an attempt to solicit a bribe from him. The Crown will refer to a series of meetings culminating in a meeting on 2 May 2007. On 31 May 2007 Wollongong Council sent a letter to the accused refusing to have anything to do with him given Mr Coyte's allegation of 2 May 2007.

1. The Crown case was that, knowing an allegation had been made against him of bribery, the accused made a counter-assertion against Mr Coyte with an erroneous and false chronology, to deliberately blacken Mr Coyte's name or at least to deflect attention from his own actions. On the Crown case, this was not a case of a mistake as to a date but was rather a deliberate and false account given to ICAC in circumstances where the accused knew the false material was both important to the Commission's determination and serious in its content.

Judge alone trial

1. The Crown opposes a judge alone trial on the basis that this is a matter where the public interest would be served by findings being made by a jury on credibility on a matter of public importance and controversy. The Crown also notes that the earlier trial resulted in an acquittal. Accordingly, it is submitted that the fact that a matter is the subject of ICAC inquiries would not overawe a jury such that it would not carry out its functions as directed nor objectively consider the evidence.

1. The Crown further submits that the earlier proceedings were of a different nature and no issue estoppel nor abuse of process arises.

Law

Issue estoppel

1. Mr Wendler refers to the decision of Mraz v R (No 2) (1956) 96 CLR 62 to submit that in this case there is a substantial consistency between the verdict of acquittal on the earlier account and the allegations made or which will be made in the course of the trial on the current indictment. Mraz v R involved the determination of whether on a rape trial, an earlier acquittal of a murder arising out of the same facts, an acquittal (of murder) had determined the issue of whether the jury in the earlier trial must have of necessity found the accused not guilty of rape.

1. In R v Storey (1978) 140 CLR 364, the Victorian Court of Criminal Appeal found that an earlier acquittal on an abduction charge meant that subsequent evidence of resistance in a rape trial should have been rejected as inconsistent with the decided issue in the earlier trial.

1. There was a division in the High Court on the consideration of the application of the principle of issue estoppel. Mr Wendler submits that the rule, which is based on the principle against double jeopardy, is of wider application than the autrefois acquit rule such that it will apply even where the charges are different in each trial. It will apply where the Crown in the second trial seeks to prove the facts which are in fact or in effect the essential ingredients of the earlier charge.

Judge alone trial

1. S132(4) of the Criminal Procedure Act 1986 provides:

"If the prosecutor does not agree to the accused person being tried by judge alone the Court may make a trial by judge order if it considers it is in the interests of justice to do so."

1. The factors to which reference may be made in assessing the "interests of justice" in a particular case are not exhaustively categorized anywhere, but s 132(5) provides the following limited guidance:

"Without limiting subs (4) the Court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including but not limited to an issue of reasonableness, negligence and indecency, obscenity or dangerousness."

1. I have also taken into account the matters set out in R v Belghar [2012] NSWCCA 86.

Consideration

Timing of pre-trial applications

1. This matter was set down for trial in November 2011. The applications were made just prior to the jury being empanelled, 12 June 2012. To the extent that the accused seeks a stay based on an abuse of process, I note that this separate indictment was filed in March 2011. No application has been made since that time to raise these issues.

1. In response to the concern as to why the application was not made earlier, Mr Wendler said that the accused's solicitor made representations to the DPP six weeks ago. Those were not responded to until last week. In the interim it was said that no Crown Prosecutor had been allocated to the matter and the accused's submissions could not be considered.

1. Whatever the situation with the DPP, there is no reason why that application could not have been the subject of a separate Notice of Motion brought before this court at a much earlier date. The accused has been legally represented throughout. There is no reason why such a Notice of Motion could not have been filed in sufficient time to be mentioned in the course of the normal case management procedures of this Court before the Chief Judge or the List Judge. In that regard, I note that the time period of 28 days specified in s 132A of the Criminal Procedure Act was not complied with. On the material before me there is no reason why leave should be granted.

Issue estoppel

1. I do not accept that the doctrine of issue estoppel applies to criminal trials. I note the comments in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at [2] and of McClellan CJ at CL in Gilham v R at [144]. However, even if I am wrong on that, there is no authority of which I am aware which supports the proposition earlier relied on by Mr Wendler. Nor am I aware of any authority that an acquittal in an earlier trial following a contest of evidence between two witnesses necessarily means that a subsequent tribunal of fact is prevented from determining a similar contest of credibility between those two witnesses - especially where, as here, there are different charges and different issues of fact.

1. If what is now argued constitutes an abuse of process based on the giving of identical evidence in two trials, I do not consider that the accused has established the grounds to support that application.

1. These are separate and different charges (three counts of giving false evidence to ICAC) compared to an offering of a bribe. There are clearly different elements in relation to the different indictments. Certainly the Crown will have to consider the falsity of the statements made by the accused to ICAC on each of the counts in relation to the particulars alleged and the times alleged.

1. The factual matters relate to different events and time periods. The charges in this trial are brought under different legislation compared to that in the first trial.

1. I do not accept the interpretation nor the inevitability of the conclusion from the jury's verdict as urged on me by Mr Wendler. Nor do I accept that the jury's verdict was such that the Crown is now estopped from re-asserting the conduct of the accused in this second trial. There are a variety of different reasons why the jury could have come to the verdict it did. Those could include, for example, that they did not believe Mr Tasich but were not satisfied on the evidence of Mr Coyte or that they were not satisfied that the other elements for those offences had been proved.

1. Mr Wendler has referred me to various authorities which relate to the law of double jeopardy. In short summary, the latter authorities make it clear that the Crown may not challenge the ultimate result in a previous trial where there was an acquittal. The Crown is clearly not seeking to do that here - rather the Crown is relying on the evidence given by the accused before ICAC to show that the complaints the accused made in his examination were false.

1. I do not find that the first trial has resolved all the issues to be determined in this trial.

1. While the earlier trial concluded the contest of evidence as between Mr Tasich and Mr Coyte on those matters in relation to the count on that indictment, what the present trial will deal with are different events and statements, not previously resolved against the Crown by earlier proceedings.

Judge alone trial

1. The earlier proceedings were conducted before a jury and resulted in an acquittal. I do not accept that there is any, let alone any inevitable, prejudice arising from the fact of a trial involving ICAC matters and discussions of the nature to be relied on by the Crown and disputed by the accused.

1. Here the Crown will be suggesting that there has been a deliberate attack on public officials who are in senior Local Government positions of influence and where the allegations concern conversations with elected officials. There will be disputed accounts to be given by two Members of Parliament, one of whom remains a Member. That element and those conversations are strongly disputed in this case. In my view, it is an important matter for the administration of justice that the truth or otherwise of such purported attacks need to be determined in open court by the community as represented by the jury. So too associated issues of credibility of, and attacks on, public and elected officials should be determined by a jury in accordance with established community standards.

1. The aspect of a suggested deliberate misrepresentation to an inquisitorial body such as ICAC also may need to be considered by a jury. In my view the public interest requires that issues arising out of prior ICAC inquiries - where there can be issues of secrecy and confidentiality in the conduct of closed inquiries - need to be resolved openly.

1. These matters - particularly that of maintaining the public confidence in the criminal justice system and the legitimation of the operation of the criminal law by jury hearings - have been referred to in R v Belghar per McClellan CJ at CL at [97].

1. In determining what is in the interests of justice overall, I take into account the matters I have specified and the existing situation against which the recent changes to the Criminal Procedure Act have been introduced. As was pointed out by Woods DCJ in R v GSR [2011] NSW DC 17, most major criminal trials in New South Wales are conducted by a jury of twelve civilians randomly drawn from the community, and this is a long respected mode of trial. The merits and benefits of trial by jury should be borne steadily in mind in determining an application such as this. It is an important factor - as are the wishes of the accused. Here the Crown opposes a Judge alone trial, in my view for good reasons.

1. Under common law trial by jury, the accused has the right peremptorily to challenge members of a jury panel. The law has traditionally regarded it as important that the accused have some stake in a process which may lead to him being convicted and put into gaol. Trials are by jury. This is a long and valued mode of trial. There is not a presumption in favour of a jury trial but it is a significant consideration not to be disregarded lightly.

Ruling

1. I reject both applications.

Orders

1. The trial on all counts will proceed before a jury.

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Decision last updated: 13 July 2012