Court of Criminal Appeal: Bleby, Besanko and Sulan JJ
BLEBY J:
I am indebted to Sulan J for his account of the facts and circumstances giving rise to these appeals. I will not repeat or elaborate on those facts and circumstances except where necessary for the purpose of these reasons. I am also grateful to Sulan J for his analysis of the relevant authorities bearing upon the issues to be determined on the appeal. I will only refer to those to the extent that it is necessary to determine the proper basis upon which a permanent stay should be granted.
The accused’s appeal
For the purpose of this judgment I will refer to Ms Ulman-Naruniec as “the accused”. She appeals against the refusal of the trial Judge to grant a permanent stay of her trial. On this appeal I have the misfortune of disagreeing with the conclusion of Sulan J.
There is no doubt that the first and second trials proceeded on an inexcusable failure of the DPP to provide the accused with material fundamental to her defence of the charge. The prosecution case was that only she and her estranged husband were involved in the importation. Therefore there could be no one else who would undertake the disputed money transactions by remitting money to her husband’s account in Poland in the circumstances described. The failure to disclose the Dziki connection, Mr Pallaras’ involvement with Mr Naruniec in drug importation and the Pallaras relationship with Ms Kambouris was inexcusable.
The failure on the part of the DPP to disclose his awareness of the information in his possession compounded the problem and also flawed the first voir dire hearing in what is now the third trial.
In short, there was a failure by both the Australian Federal Police (“AFP”) and the DPP to disclose significant and relevant information to the defence.
However, the trial Judge accepted Agent Clements’ explanation on the first voir dire that he did not, after 8 December 1998, regard Ms Dziki as a suspect in the importation of the ecstasy. Although there were many unsatisfactory aspects of Clements’ evidence on the second voir dire, the trial Judge rejected a submission on behalf of the accused on that hearing that Clements, on the first voir dire, had told a deliberate lie about that. The Judge accepted the evidence of Agent Buckland on both the voir dire hearings that, by 8 December 1998 the AFP had excluded Dziki as a person who could have been involved in the importation of the ecstasy. The Judge specifically found that the AFP did not deliberately conceal the information about Dziki and Pallaras. The AFP had made the DPP aware of Ms Dziki and the role she played in the cannabis production. He considered that that was not the conduct of an organisation deliberately setting out to suppress the Dziki and Pallaras material.
The trial Judge was also not prepared to draw any inference from the failure…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Ulman-Naruniec [2003] SASC 437
Case
[2003] SASC 437
Decision Date
CaseChat Overview and Summary
The case of R v Ulman-Naruniec involves an appeal by the accused, Dana Ulman-Naruniec, and a cross-appeal by the Director of Public Prosecutions (DPP). The accused is charged with being knowingly involved in the importation of a prohibited substance, specifically 1.3471 kilograms of 3, 4 - methylenedioxymethamphetamine, between 31 March 1998 and 5 November 1998 at Adelaide. The prosecution contends that she was part of a joint criminal enterprise with her estranged husband, Sam Naruniec, to import a significant quantity of the drug known as ecstasy into Australia. This case has undergone multiple trials and appeals, with the most recent proceedings before the court involving the trial judge's decisions on stays of prosecution and costs.
The primary legal issues in this appeal and cross-appeal revolve around the trial judge's decisions to order specific conditions before proceeding with the prosecution. The accused argues that the trial judge should have granted a permanent stay of the prosecution, while the DPP challenges the judge's decision to impose two conditions: the provision of written transcripts of 328 telephone intercepts, including translations, and the payment of the accused's reasonable costs from the previous two trials. The court's task was to determine whether the trial judge's orders were appropriate and whether they complied with legal principles governing stays of prosecution and costs.
The court found that the trial judge's decision to order a stay until the Crown provided written transcripts, including translations, of the 328 telephone intercepts was not justified. This decision was based on the principle that while disclosure of evidence is crucial for a fair trial, the requirements should not unduly delay the proceedings. The court held that the trial judge's order for a stay until the Crown paid the reasonable costs of the accused's earlier trials was also inappropriate. The court concluded that while the costs incurred by the accused could be relevant, the specific terms of the order were not in line with the legal standards for such costs. The appeal by the DPP was allowed only to the extent of setting aside the stay condition regarding the telephone intercepts, and the cross-appeal was otherwise dismissed.
In conclusion, the court upheld the majority of the trial judge's decisions but set aside the order that required the Crown to provide written transcripts of the telephone intercepts. The court emphasized that while the need for fair disclosure of evidence is paramount, it must be balanced with the need to avoid unnecessary delays. The court also clarified the proper scope and conditions for the payment of costs to the accused, ensuring that such orders do not unduly burden the prosecution. The final orders reflect these determinations, ensuring that the case proceeds with necessary fairness and efficiency.
Orders
Orders of the court
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Background
Background to the litigation
Both the accused and the DPP have appealed the decision. The accused contends that the trial judge erred in failing to order a permanent stay. The DPP has cross-appealed on two grounds. The first ground is that the trial judge erred in ordering a stay of the prosecution until the Crown pays or undertakes to pay the reasonable costs of the accused of the earlier two trials. The second ground is that the trial judge erred in ordering a stay of the prosecution until the Crown has provided written transcripts, including translations, of the 328 telephone intercepts identified by the solicitors for the accused.Background The accused is charged that between 31 March 1998 and 5 November 1998 at Adelaide she was knowingly concerned in the importation into Australia of a prohibited import, being 1.3471 kilograms of 3, 4 - methylenedioxymethamphetamine, being not less than a commercial quantity. The prosecution case is that the accused was involved in a joint criminal enterprise with her estranged husband, Sam Naruniec (“Naruniec”) to import 22,000 tablets of the drug commonly known as ecstasy into Australia. The events leading to the arrest and subsequent charging of the accused commenced with an investigation by the Australian Federal Police (“AFP”) code-named “Operation Cadillac”. Operation Cadillac was engaged in the investigation of drug importation. One of the targets of the investigation was a person named George Pallaras (“Pallaras”). Pallaras was suspected to have been involved in the distribution of illegal drugs in Australia. During the investigation of Pallaras’ activities, the AFP obtained information about associates of Pallaras. Naruniec was one of those associates. The AFP obtained authority to conduct a number of telephone intercepts. As a result of those intercepts, the AFP became aware that Naruniec was intending to send a quantity of drugs from Poland to Australia. I shall deal in more detail with the telephone intercepts later in my reasons. The AFP received information about a parcel of tablets which had been sent by Naruniec to Australia to an address at which the accused resided. On 29 October 1998, they intercepted the parcel and they removed the tablets that were hidden in two speakers forming part of a stereo system. They substituted the prohibited ecstasy tablets with tablets not containing a prohibited drug and re-sealed the parcel. The parcel was then delivered to the Flagstaff Hill Post Office. The accused collected the parcel from the post office. It is alleged that she removed the tablets from the speakers and placed them in bags. It is alleged that when she removed the tablets, she wore gloves. The police attended at the accused’s home and seized the stereo system and the bags. When she was interviewed by the AFP, the accused told them that she did not know that the parcel contained narcotics. She said she had been told by Naruniec that the parcel contained Viagra. The accused denied that she was involved in a joint criminal enterprise with Naruniec to import narcotics.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For the reasons given by Bleby and Sulan JJ, I agree that the appeal by the DPP should be allowed but only to the extent that the order of the Judge that there be a stay of the prosecution until the Crown has provided written transcripts, including translation of any foreign language, of the three hundred and twenty eight telephone intercepts identified by the solicitors for the accused be set aside. The appeal by the DPP is otherwise dismissed.Conclusion I agree with the orders proposed by Bleby J.SULAN J:Introduction This appeal and cross-appeal relates to two decisions on issues antecedent to trial made by a judge of the District Court on 24 September 2002[1] and 3 April 2003.[2] The case has had an unfortunate history.[1] R v Ulman-Naruniec (2002) 220 LSJS 120[2] R v Ulman-Naruniec (No. 2) (2003) 226 LSJS 434 The appellant, Ms Dana Ulman-Naruniec, is charged on Information with being knowingly concerned with importation into Australia of a prohibited import contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). I shall refer to the appellant as the accused. The accused was charged with the offence on 11 November 1998. In May 1999, the Commonwealth Director of Public Prosecutions (“DPP”) laid an information in the District Court. In June 2000 the accused stood trial and a jury was unable to arrive at a verdict. She was re-tried and convicted on 20 March 2001. The accused appealed against the conviction. On 29 August 2001, the Court of Criminal Appeal allowed her appeal. The conviction was quashed and a re-trial ordered. She had been in custody between 20 March 2001 and 29 August 2001 when she was released on bail. The trial was re-listed before the District Court. The accused sought various orders including a permanent stay of the prosecution. There were two voir dire hearings, the first commenced on 6 June 2002 (“the first voir dire hearing”). The trial judge refused the application. The accused made a further stay application. The hearing commenced on 17 February 2003 (“the second voir dire hearing”). On 3 April 2003, the trial judge ordered a stay of the prosecution until the Crown had provided written transcripts of three hundred and twenty eight telephone intercepts, including translations thereof. He ordered that the prosecution be stayed until the Crown pays or undertakes to pay the reasonable costs of the accused of the earlier two trials. Both the accused and the DPP have appealed the decision. The accused contends that the trial judge erred in failing to order a permanent stay. The DPP has cross-appealed on two grounds. The first ground is that the trial judge erred in ordering a stay of the prosecution until the Crown pays or undertakes to pay the reasonable costs of the accused of the earlier two trials. The second ground is that the trial judge erred in ordering a stay of the prosecution until the Crown has provided written transcripts, including translations, of the 328 telephone intercepts identified by the solicitors for the accused.Background