R v Ulman-Naruniec

R v ULMAN-NARUNIEC
[2003] SASC 437
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 of the DPP to give any explanation for his conduct that there was a conscious decision not to disclose the Dziki and Pallaras material to the defence. He was not prepared to conclude that the DPP acted dishonestly.
Neither of these findings as to the conduct of the AFP and the DPP were challenged on appeal. They are of some significance in my conclusion that a permanent stay is not justified.
However, it is not merely the non-disclosure about which the accused complains. She alleges that she has been denied access to important material which could be relevant to her defence. In short, that material is:
1.The taped record of interview of Ms Dziki conducted on 8 December 1998;
2.Documents seized from Ms Dziki’s premises and which were subsequently returned to her;
3.Documents referred to in the AFP case note entry of 5 December 1998;
4.Documents referred to in the AFP case note entry of 4 December 1998 relating to documents obtained from Ms Dziki. I take these to be the same documents as those referred to in item 2 above and will not deal with them further; and
5.The 1998 and 1999 diaries of Agent Clements.
It was not suggested that there was necessarily any information in items 1 and 2 which would assist the defence or which would cause a line of inquiry material to the defence to be taken. Consistent with their belief formed at the time, the relevant officers of the AFP were only able to say that, to the best of their recollection, there was nothing in the record of interview or the documents which linked Ms Dziki with the importation of ecstasy.
The documents referred to in the AFP case note entry of 5 December 1998 were those referred to in an entry which read:
“Large amount of documentation (in English and Polish) concerning money transfers, bank accounts and bank deposits were seized by AFP”.
The trial Judge accepted the evidence of Agent Buckland that there were not any documents coming within that description arising from the search of the premises referred to in that case note entry.
As regards the diaries of Agent Clements, his evidence was that he had handed the diaries in to the archives section of the AFP after he had completed them and had received new diaries to replace the used diaries. The Judge noted that he had received no explanation regarding the missing diaries, regarding the system of archiving the diaries or regarding steps undertaken to locate the missing diaries. The Judge regarded this as “unsatisfactory”, particularly as the DPP was aware from the outset of the second voir dire that Agent Clements’ credibility was under challenge. Nevertheless, that does not appear to have affected the Judge’s finding that the concealment of material by the AFP was not deliberate.
In addition to the non-disclosure by the AFP and the DPP and the inability now to gain access to the documents referred to above, the only other elements of prejudice to the accused would appear to be the general prejudice caused by delay in the hearing and the cost and inconvenience of two trials and the first voir dire hearing which proceeded on false premises.
As to whether or not a permanent stay of the proceedings should be granted, it is not merely a matter of asking whether or not the accused can now have a fair trial. Unfairness to an accused is but one aspect of whether an abuse of process is brought about by the continuation of prosecution proceedings. Furthermore, unfairness comes about in a variety of ways and in varying degrees. Merely because a trial may be described as being “unfair” for one particular reason does not necessarily require that it be stayed as an abuse of process. There will often be other means of rectifying the unfairness.
In determining what the correct approach should be to a permanent stay of a trial based on unfairness, Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR 23 endorsed the approach of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464. Richardson J had spoken of two related aspects of the public interest which bear on the question. He said, at 481:
“The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.”
Having cited that passage with approval, Mason CJ said in Jago at 30:
“In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.”
Mason CJ went on to agree with Richardson J’s explanation of the rationale for the exercise of the power to stay a prosecution. Richardson J had said on that topic in Moevao at 482:
“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor … that the Court processes are being employed for ulterior purposes or in such a way … as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”
Mason CJ went on to say, at 31 that the power to stay would be used “only in most exceptional circumstances”. Having referred to various other means by which unfairness to an accused in a criminal trial can be overcome he said, at 34:
“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’: Barton v The Queen (1980) 147 CLR 75 at 111, per Wilson J.”
Brennan J contrasted unfairness in a trial with abuse of process. He said, at 47 - 48:
“Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. ….. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law.”
Brennan J also referred to the ability by other means of controlling unfairness in most cases. He said, at 49:
“By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge’s responsibilities are heavy but they are not discharged by abdication of the court’s duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.”
Toohey J also linked the two concepts of unfairness and abuse of process. He said, at 71 - 72:
“Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.”
Whilst Deane and Gaudron JJ both tended to concentrate on the unfairness of a trial as being a basis for a stay, rather than linking it with concepts of abuse of process, both stressed the exceptional nature of the remedy when invoked for that purpose.
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the Judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court, and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
In that light, I proceed to consider whether the disadvantage occasioned to the accused meets that necessary test.
One can be justifiably critical, as the trial Judge was, of the behaviour of both the AFP and the DPP in the investigation and prosecution of the accused to date. I am concerned that there has been no attempt by the DPP to explain that conduct. Perhaps of greater concern is the lack of any attempt to place before the court any information regarding what enquiries have now been made to ensure that there is no further relevant information which has not been withheld. I would be more comforted if that had been done.
However, as I have pointed out, the trial Judge has held that the withholding of that information was not deliberate. The trial Judge rejected a submission on the second voir dire that Agent Clements had been untruthful on the earlier occasion. He merely held that Clements “was not a witness on which I would rely on some matters”. If there had been a finding of deliberate withholding of information in order to frustrate the proper defence of the prosecution or a finding that prosecution witnesses had previously lied on oath, then absent further explanation, an inference might properly be drawn that those involved might continue to attempt to frustrate the due process of the administration of justice, such that one could not be sure that further relevant information would not be withheld. If that were the situation, or if there were any hint of the existence of further relevant information being withheld, justice would demand a stay of the prosecution, at least until the court could be satisfied, if it could be, that no more information was being withheld.
In the absence of any evidence as to any further inquiries into the existence of other possible relevant information, should the court act on the assumption that there may yet be more information that is being withheld? Should a stay be granted because there has been silence beyond what the accused has so far extracted by means of the diligence and persistence of her advisers? Uneasy as one may feel about the conduct of the prosecuting authorities and the process to date, to stay proceedings based on a suspicion that there may be more material not yet disclosed is not to act on evidence, especially where there has been a finding that there was no deliberate intention to withhold material. One must assume that, whatever shortcomings there may have been in the conduct of this matter to date, both the AFP and the DPP are now aware of their responsibilities and will act accordingly. The unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information can be rectified by the court ensuring that proper disclosure is made and, if necessary, by staying the trial until it is made. There is nothing on the evidence to suggest that it will continue in this case.
It is well recognised that our system of justice reposes a great deal of responsibility and trust in prosecuting authorities, and requires the utmost integrity of them in the faithful discharge of their responsibilities. The obligations of disclosure have been referred to by Sulan J. I will not repeat them. If courts and accused persons cannot proceed on the assumption that those responsibilities will be properly discharged, then the criminal adversarial system as we know it cannot survive. In the absence of evidence that there is a continuing failure to discharge those responsibilities, the court must assume that they will be properly discharged. I would therefore not grant a stay for reasons that include an inference or suggestion that further material may remain undisclosed.
Neither would it be proper to grant a stay by way of punishment of the prosecuting authorities for not complying in the past with their obligations. Punishment or retribution should form no part of a reason for staying a prosecution. The sole question is whether to allow the third trial to proceed constitutes an abuse of the process of the court as that has been explained.
Leaving aside indignation at the past behaviour of the AFP and the DPP concerning their obligations of disclosure, and accepting, as I believe one must, that proper disclosure has been and now will continue to be made, what remains to justify the exceptional cause of permanently staying the proceedings? Will a third trial now be unfair such that the unfairness or injustice to the accused constitutes an abuse of the process of the court? I remind myself that the unfairness will have to amount to truly exceptional circumstances and will have to be such as is not amenable to control by other means available to the court.
I turn to consider the evidence now no longer available. Despite the lack of a full explanation, there is no evidence to suggest that the documents obtained from Ms Dziki were returned in order to deny the accused access to them. They were returned at a time when the AFP agents had formed the view that Ms Dziki was not involved in this offending but without realizing the potential importance to the defence of the accused of Ms Dziki’s involvement with Naruniec. There is no suggestion that the tape recording of the record of interview or Agent Clements’ diaries have been deliberately destroyed. There is some suggestion that the AFP’s subsequent search in response to subpoenas was inadequate or that further time was needed to undertake a proper search. If the search has in fact been inadequate, as I have said, the court’s process can be invoked to ensure that a proper search is made. However, there is no evidence that any of that material which has not been located in fact contains evidence which would be harmful to the prosecution case or which would be of assistance to the defence. The accused complains of lack of a chance to examine the material to see if any such evidence exists. She complains that she cannot have a fair trial because she cannot identify what is in the material which is now unavailable and which, if produced, might have put the defence on a line of inquiry that could have assisted her case.

The cases suggest that there will be a stay granted on the grounds of abuse of process where plainly material evidence is no longer available, being evidence, the lack of which would mean that the prosecution cannot prove its case or evidence without which it can be shown that the accused has been denied an opportunity to mount a defence.
An example of the first type appears in R v Reeves (1994) 122 ACTR 1. The accused was charged with 16 counts of complicity in making accounting documents which were false or misleading and which he ought reasonably to have known to be false or misleading, six counts of stealing, three counts of offences against the Companies Act 1981 (Cth) and two counts of attempting to pervert the course of justice. Many relevant records of the company concerned were destroyed without reference to the prosecuting authorities or the accused. They were essential for the proof of the prosecution case. There was a fundamental defect which went to the root of the trial. Not only was the prosecution deprived of evidence which could prove the case, but so was the accused denied access to the means of his defence.
Holmden v Bitar (1987) 47 SASR 509 was a case of a person charged with a breach of the Quarantine Act 1908 (Cth) by bringing tins containing meat pate into Australia. Section 86D of the Act provided that the averment of the prosecutor in the information, “shall, in the absence of proof to the contrary, be deemed to be proved”. The goods in question had been seized and destroyed. As the accused bore the onus of proving that the contents were not as averred, there was no way in which the accused could make an effective answer to the prosecution. There was nothing to suggest that destruction before prosecution was required as a matter of public interest. In those circumstances the trial was stayed.
A third example is R v Lord and Fraser, noted in [1983] Crim LR 191 where the parts of compressors the subject of a charge of conspiracy to defraud had been so negligently handled and treated that they had deteriorated and become intermixed so that it was impossible to say which part belonged to which compressor. The items were obviously crucial to the prosecution and defence, and the particular charge was stayed.
I am not aware of any case where a stay has been granted on a ground of abuse of process because evidence, not shown to be essential to the defence case, merely might contain something of some assistance or might promote some relevant line of inquiry. If that were the case, many a prosecution might be stayed because of some failure on the part of police to investigate a particular line of inquiry that cannot later be pursued.
In Penney v R (1998) 155 ALR 605 one of the grounds of appeal against conviction was that unfairness and incompetence in the police investigation rendered the verdict unsafe and unsatisfactory. Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agreed, said at 609 - 610:
“[16]        It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.
[17]         There was no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.
[18]         The appellant’s submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case.”
Defective as the handling of the police investigation may have been in this case, I do not consider that the complaint of lack of access to the material in question would justify the extreme step of a permanent stay. The accused can put it no higher than that there is just a possibility that some of the lost material may be of some assistance.
Before it can be said that the accused is denied access to documents such as to affect her right to a fair trial, it is appropriate to ask whether, if the documents still existed, they could have been required to be produced on subpoena at the instance of the accused. In order to justify that course, where there is an objection to production, it must be “on the cards” that the documents will materially assist the defence: Alister v R (1985) 154 CLR 404 per Gibbs CJ at 414; Hunt and Boyce v Judge Russell (1995) 63 SASR 402 per Perry J at 409. As this is a case in the District Court, having regard to s 25 of the District Court Act 1991, the question must be whether it is “on the cards” that the documents comprise “evidentiary material”. By definition that means that they must have “evidentiary value” in the proceedings: Hunt and Boyce v Judge Russell (Ibid) at 409.
The recording of conversations captured by means of listening devices or telephone intercepts may be lawful but is a serious invasion of a person’s privacy. The production of such material may well require special consideration: R v Gillard and Preston (1999) 76 SASR 76. See Duggan J at 88 and my own remarks at 93. Subject to that, however, the basic test remains the same: See Duggan J (Ibid) at 88 [50]. The recording of material obtained by listening devices may require a practical solution in the face of technical difficulties, as was found in Gillard and Preston, without compromising fairness to the accused.
In my opinion, on the evidence in this case and on the findings of the trial Judge, it was not “on the cards” that the missing material would be likely to assist the defence. The evidence did not go as far as that. Any deficiencies in the investigation which might raise a doubt on the prosecution case will no doubt be exploited before the jury and, if appropriate, may be the subject of comment by the Judge. I do not consider that the lack of access to this material either alone or taken in combination with the matters which follow, would justify a permanent stay on the ground of abuse of process in accordance with the principles explained in Jago.
There remain the questions of delay in the trial brought about by the two preceding trials and two voir dire examinations and the cost and inconvenience to the accused of that process followed by the continuation of a third trial. Jago’s Case (supra) is authority for the proposition that delay in itself will not necessarily constitute an abuse of process. It will usually be accompanied by something else, such as death of a material witness, loss and destruction of evidence or other similar features. It was not suggested that any material witnesses in this case had died or were not available to give evidence. There has been no loss or destruction of any known evidence. There is, of course, the problem of fading memories with the passing of time. But that in itself is not sufficient cause for a stay.
The case against the accused relies very much on physical evidence and observations no doubt contemporaneously recorded. So far as the money transactions are concerned, it relies on inferences to be drawn from documents and relatively easily established matters of fact.
The only remaining unfairness is the cost and inconvenience of the first two trials. They may well have taken a different course if proper disclosure to the defence had been made. That cost and inconvenience can be alleviated to some extent by, as the trial Judge did, ensuring that the third trial does not go ahead unless the accused is compensated in some measure for the cost and expense to which she has been put by the failure of the prosecuting authorities to comply with their obligations.
Accordingly, I do not consider that any ground has been made out which would justify allowing the accused’s appeal. In my opinion, that appeal should be dismissed.
Appeal by the DPP – payment of costs
I agree with the conclusion of Sulan J and with the effect of the authorities to which he refers that the order for the payment of costs, although on the face of it not authorised by the District Court Act, is of a different character from what one would normally regard as an order for the payment of costs. It is a payment, in effect, for the relief of the unfairness sustained by the accused brought about by the failure to disclose.
We have no information as to whether the accused has funded her own defence, or whether she has been assisted by the Legal Services Commission. In my opinion it makes no difference. If the order is justified at all, there is no reason why the scarce resources of the Legal Services Commission should be depleted at the expense of the defence of other accused persons where unfairness results in the incurring and payment of costs for proceedings which have miscarried by reason of the defaults of the AFP and the DPP.
In respect of this appeal we are not concerned with the principles which might govern a permanent stay, but merely with a stay pending redress of what the Court has found to be an injustice caused by an unnecessary failure to disclose. It is the unfairness of the third trial that is to be cured, in part, by the payment of the costs of the two trials which can be said to have miscarried. In my opinion the entitlement is not diminished by virtue of the fact that those trials failed for reasons not connected with the non-disclosure. Had the non-disclosure been revealed before either of the previous trials, the accused would have been entitled to a stay of proceedings until full disclosure was made. It is because that non-disclosure was not revealed that the trials went ahead. I would dismiss the DPP’s appeal against the order staying proceedings until the Crown pays or undertakes to pay the reasonable costs of the accused of the two earlier trials.
DPP appeal – tape translations and transcripts
The accused is not seeking access to tapes of all telephone conversations recorded. Those that are of interest have been identified from the summaries prepared for the DPP. There can be little doubt that, for the reasons expressed by Duggan J and me in R v Gillard and Preston (1999) 76 SASR 76, the defence is entitled to copies of the tapes of the conversations that have been identified. That much appears not to be in dispute.
Some of the conversations are in English, some are in Polish and some are in Greek. I agree with Sulan J that, in respect of those in English, there should be no obligation on the DPP to provide transcripts of those conversations. That was not suggested in Gillard and Preston, nor would it be reasonable to require a transcript. The purpose of making the tapes available is to enable them to be listened to for the purpose of extracting such material as may be favourable to the defence. Not all of it will be. None of it may be. The prosecutor’s obligation is discharged if opportunity is given for the tapes to be listened to.
In respect of the conversations in Polish, it would appear that the accused is fluent in Polish. For the same reason, I believe it is not necessary to provide translations of those conversations. There is nothing to suggest that the accused is not sufficiently aware of the nature of her defence to draw the attention of her advisors to those conversations which may appear to be of relevance so that a translation and transcript can then be arranged of those considered to be of significance. In the alternative, if the accused lacks sufficient confidence to be able to identify any conversations that should properly be reviewed by her solicitor, the alternative is to have the tapes listened to and translated by an interpreter whose translation can be recorded and then reviewed by her solicitor. As in the case of conversations in English, a transcript could then be prepared of those conversations which the accused seeks to use in evidence. The question is whether the cost of such translation should be borne by the DPP.
There will be many cases in which, for the proper preparation of a defence, a translation of documents will be necessary as part of the expense of preparing the case for trial. In most cases the accused will justifiably insist on obtaining his or her own translation. I see no difference between a translation of a tape recording for this purpose and translation of a document. Those resources will not normally be required to be provided by the prosecuting authority.
In respect of those conversations in Greek, one must assume that neither the accused nor her advisors are fluent in Greek. In that case the same procedure can be used as I have suggested would be appropriate for translation of the Polish conversations if the accused lacks confidence in discerning relevant Polish conversations.
Accordingly, I would allow the appeal by the DPP but only to the extent necessary to set aside the order staying the prosecution until the Crown provides written transcripts of the identified telephone intercepts. In all other respects, I would dismiss the appeal of the DPP and confirm the orders of the trial Judge.
BESANKO J:
The facts are set out in the reasons for judgment of Sulan J. I gratefully adopt his Honour’s statement of the background facts and the primary facts. I will repeat the facts only where it is necessary to understand the reasons which follow.
The appeal by the accused
I think it is important at the outset to identify the critical findings of fact made by the Judge and those findings which are challenged on appeal. The critical findings of fact relate to the issue of whether the accused can now be given a fair trial, the issue of whether the non-disclosure of material by the Australian Federal Police (“AFP”) and the Commonwealth Director of Public Prosecutions (“DPP”) was deliberate and the issue of the extent to which relevant documents and other material has been lost or destroyed. The submissions of counsel for the accused were directed towards the second issue, namely, the issue of non-disclosure by the AFP and the DPP. Although in the end I do not think he pressed the submission, counsel for the accused initially suggested that the Judge erred in not finding that the non-disclosure was deliberate. I think it is fair to say that his principal submission was that even accepting the Judge’s characterisation of the conduct of the AFP and the DPP an order for a permanent stay should have been made.
It is convenient to start with the second issue, namely the issue of non-disclosure. The Judge found that the AFP and the DPP failed to disclose to the accused the material he described as the Dziki material and the Pallaras material. The nature of that material is fully described in the reasons of judgment of Sulan J. The accused asked the Judge to find that the AFP and the DPP had deliberately concealed that material. In the course of dealing with that submission, the Judge considered the extent to which he could rely on the evidence of two Federal agents involved in the investigation. The Judge found that Agent Clements was not a witness upon whom he could rely on some matters. By contrast, the Judge said that he could rely on the evidence of Agent Buckland. The Judge noted that both counsel for the DPP and counsel for the accused urged him to accept Agent Buckland as a truthful and reliable witness. The Judge found that the AFP did not deliberately suppress the Dziki material or the Pallaras material. In making that finding the Judge relied on the conduct of the AFP in making the Dziki material and the Pallaras material known to the DPP.
It is not necessary to identify the matters upon which the Judge relied to make that finding as the finding was not challenged on appeal. In any event, in my opinion, there was a proper basis for the Judge to find that the AFP had not deliberately suppressed the Dziki material and the Pallaras material and I would not interfere with the Judge’s finding.
The Judge also rejected the accused’s submission that the DPP had deliberately concealed the Dziki material and the Pallaras material. It is important to note that in referring to deliberate concealment, the Judge had in mind that the DPP had intentionally concealed the relevant material, knowing that it had an obligation to disclose it. In considering this issue the Judge referred to the information and material which was in the possession of the DPP. With very good reason he expressed great disquiet at the failure of the DPP to provide any explanation of its failure to disclose the material to the accused. However, in the end the Judge was not prepared to draw the inference that the DPP had acted dishonestly. He said:
“It is a serious charge to be laid against a prosecuting authority. There would need to be cogent evidence present to support any such finding. There is no such cogent evidence which supports such a finding.”
Counsel for the accused was careful not to put his argument too high and, as I have said, in the end I do not think he challenged the Judge’s refusal to make a finding of dishonesty. Even if he had, I would reject such a challenge. It is true that the issue is finely balanced, particularly in view of the DPP’s failure to offer any explanation for its conduct. Furthermore, the issue is one of what inference should be drawn in light of the primary facts which are not contested and in that sense this court is in as good a position as the Judge to determine what inference should be drawn. Nevertheless, it is an inference of dishonesty and as an appeal Judge I would wish to be clearly persuaded that the Judge was wrong in refusing to draw the inference of dishonesty. I am not so persuaded.
The Judge found that the failure to disclose the Dziki material and the Pallaras material (including the involvement of Tina Kambouris with Mr Pallaras) meant that the trial process in each of the earlier trials was flawed. It is not entirely clear to me what the Judge meant by that description. He did say that he did not need to find whether the non-disclosure had caused a miscarriage of justice in each of the earlier trials. I take the Judge to be saying that there was a failure by the prosecution to comply with an important obligation of disclosure in relation to information relevant to issues in the trial.
As to the issue of whether the accused could now be given a fair trial, the Judge made the following finding:
“I accept that the disclosure which has now been made indicates that if the trial proceeded, the accused could obtain a fair trial, subject to any rulings which may need to be made and to which I made reference in the Reasons I published with regard to the earlier Voir Dire hearing.”
A little later in his reasons for judgment he said:
“As I said earlier, as a result of the disclosure since the Second Trial, I am of the opinion that the accused can obtain a fair trial in the present Trial.”
As to the third issue, the Judge made a series of findings in relation to items of evidence said to have been lost or destroyed. First, the Judge referred to the loss of the audio tape recording the interview between Agent Clements, Ms Dziki and Ms Dziki’s solicitor (Mr Robert Wyatt) on 8^th December 1998. He found that Mr Wyatt’s notes were sufficient to indicate (albeit in brief form) the topics discussed at the interview and that there was nothing in those notes to suggest that anything said in the interview was likely to provide assistance to the accused in her case. Those findings of fact were not challenged on appeal. Secondly, the Judge referred to documents seized by the AFP on 5^th December 1998 and described in the Promis System in the following way:
“Large amount of documentation (in English and Polish) concerning money transfers, bank accounts and bank deposits were seized by AFP.”

The Judge found that there were no documents falling within the above description and that the entry on the Promis System was a careless one. In doing so he relied on the evidence of Agent Buckland. As I have said, the Judge said that he could rely on the evidence of Agent Buckland. I did not understand there to be any challenge to the Judge’s finding.
Thirdly, the Judge referred to the fact the diaries of Agent Clements for the calendar years 1998 and 1999 were lost or destroyed. The Judge found that the lack of explanation regarding the missing diaries was most unsatisfactory. Fourthly, the Judge referred to missing documents seized from Ms Dziki by the AFP, many of which were returned to Ms Dziki on 8^th December 1998. The documents which were retained by AFP were provided to the accused. The Judge said that the return of the documents to Ms Dziki had to be seen against the background that the AFP had decided that Ms Dziki was not involved in the narcotic importation. The Judge also referred to the following passage in the reasons for judgment of Callinan J (with whom McHugh, Gummow, Kirby and Hayne JJ agreed) in Penney v The Queen (1998) 72 ALJR 1316 (at 1319 – 1320)
“It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.
There is no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.
The appellant’s submission on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial”.
The Judge also rejected submissions by the accused that in failing to seek a handwriting sample from Ms Dziki or to investigate the possibility that Ms Tina Kambouris was responsible for the transfer of money overseas, the prosecution breached the standard of fairness required of it or that these failures meant the accused would not obtain a fair trial. There was no challenge to the Judge’s rejection of those submissions. The Judge also rejected a general submission by the accused that as a result of the failure to disclose the Dziki material or the Pallaras material prior to the earlier trials further investigation of Ms Dziki’s involvement or Mr Pallaras’ involvement had gone “cold” due to the passage of time. Again, it may be noted that there is no challenge to the Judge’s conclusion on that point.
Having made his findings of fact, the Judge then discussed the relevant authorities including Jago v The District Court of New South Wales (1989) 168 CLR 23, Williams & Ors v Spautz (1992) 174 CLR 509, Moevao v Department of Labour [1980] 1 NZLR 464 and Walton v Gardiner (1993) 177 CLR 378.
It is unnecessary to discuss these authorities in any detail because they are discussed in the reasons for judgment of the other members of the Court and because it is not suggested that the Judge did not identify the correct legal principles. However, there are two important statements in the authorities to which I think reference should be made. In Jago v The District Court of New South Wales, Mason CJ (at 30) cited with approval the following passage in the reasons for judgment of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482.
“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”
In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said (at 395 – 396):
“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”
The Judge expressed his conclusion on the accused’s application for a permanent stay as follows:
“After undertaking the balancing exercise, I am of the opinion that a permanent stay should not be granted. Notwithstanding the grave breaches of the AFP’s and the DPP’s obligation to disclose and the flawed basis upon which the previous two trial proceedings considered either together or combined with the other grounds identified by Mr Edwardson and which remain extant, I have concluded that they do not outweigh the other issues militating against a stay. In my opinion the interests of justice or the administration of justice do not demand that there be a permanent stay of the third Trial of the accused.”
It is not argued by the accused that the Judge erred in undertaking what he described as the balancing exercise. Once that is accepted, the accused can only succeed if she can show that the Judge erred in making or failing to make a finding of an intermediate fact or in placing so little weight on one of the relevant factors that it can be inferred that the Judge must have committed the type of error which would justify the intervention of this Court (House v The King (1936) 55 CLR 499; Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 398 – 399). Neither of those matters is established. The Judge found that the accused could be given a fair trial and, in my opinion, that carries with it a finding that all relevant disclosure has been or will be made. The Judge declined to find that the DPP had acted dishonestly. The Judge appears to have found that for the most part the accused is unaffected by any documents or other evidence lost or destroyed. In those circumstances, and bearing in mind that the charge is a serious one and it is acknowledged by the accused that there is a case to answer, the Judge did not err in refusing the accused’s application for a permanent stay.
The appeal by the DPP
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
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.
At the first two trials, the prosecution case was presented on the basis that the only persons involved in the importation were the accused and Naruniec, and that there was an inherent improbability of some other person being involved. As part of the evidence relied upon by the prosecution, there were four applications for telegraphic transfers of monies, each made in writing and each for the sum of $9,800. On each occasion, an amount of $9,800 was deposited with a financial institution that was requested to transfer the monies to Poland. I shall refer to that evidence as “the money transfer transactions”. The Financial Transactions Reports Act 1988 provides that cash transactions of $10,000 or more must be reported to the Australian Transactions Reports and Analysis Centre (“AUSTRAC”). The money transfer transactions included one application that was made on 9 April 1998 and three applications that were made on 15 April 1998. The transfers were made in the names of “Julia Urban”, “Anne Werner”, “Julia Aldam” and “Justine Hober”. They were made from the Aberfoyle Park and Edwardstown branches of the Bank of South Australia and the Marion Shopping Town branches of the Commonwealth Bank and Westpac Banking Corporation. The recipient of all the transfers was an account in the name of Naruniec at Bank Gdanski, Gdanski, Poland.
The prosecution case is that the four applications for money transfer were made as part of a joint criminal enterprise between the accused and Naruniec. The prosecution alleges that the accused, using false names and addresses, was involved in the transfer of the funds to Naruniec. It is alleged that the money was sent to Naruniec to be used in the acquisition of the ecstasy that was imported into Australia in late October 1998. The accused has always denied depositing the sums of $9,800 and denied being involved in the money transfer transactions.
The first voir dire hearing
The third trial commenced before the District Court on 6 June 2002. It commenced before a jury was empanelled with the first voir dire hearing. The accused challenged the admissibility of evidence relating to the money transfer transactions. Counsel for the accused relied upon a number of grounds to support her application to exclude that evidence. It is not necessary to repeat each of those grounds, other than to refer to the ground and argument relating to a person named Urszula Dziki (“Dziki”). In addition to the challenge to the evidence relating to the money transfer transactions, the accused sought a permanent stay of the prosecution on the grounds of an abuse of process.
The Dziki issue arose shortly before the third trial. Mr Edwardson, who was then counsel for the accused, wrote to counsel for the DPP on 4 June 2002 advising him that the accused’s instructing solicitor had obtained a copy of sentencing remarks relevant to Dziki. Dziki had been sentenced in the District Court on 31 May 2002 for various offences involving the possession and production of cannabis. The solicitor had searched that court file. Mr Edwardson provided to counsel for the DPP documents which it appeared that neither counsel nor the DPP had received from the AFP. Amongst the material which the accused’s instructing solicitor had obtained were papers that disclosed that on 4 December 1998, a number of AFP officers (who were the same officers involved in the investigation of the accused’s matter) had commenced surveillance on premises situated at 9 Abbott Avenue, Morphett Vale. The premises were occupied by Dziki and Naruniec before he left to travel overseas. The papers disclosed that Naruniec had been living in a de facto relationship with Dziki prior to his departure.
Mr Edwardson informed prosecuting counsel that Dziki had been stopped on 4 December 1998 whilst driving her motor vehicle at Adelaide. When spoken to by an AFP officer, it was put to her that he believed that there were narcotics in her vehicle. The officer had a warrant to search Dziki’s vehicle. The warrant alleged that she was a suspect in connection with the prohibited importation of narcotics, the subject of the charge upon which the accused had been presented. Prior to the first voir dire hearing, counsel for the accused sought various documents from the DPP. It appears the AFP had possession of documents that demonstrated that Dziki was involved in an enterprise with Naruniec in respect of illegal drugs.
In his letter, Mr Edwardson stated:
“Having regard to the fact that the Crown had on two previous trials sought to establish circumstantially that my client is the female responsible for various electronic telegraphic transfers to Poland I find it extraordinary that the Australian Federal Police officers have failed to provide to the Commonwealth DPP the relevant material which we have now forwarded to you. The association between Dziki, her mother, and my client’s estranged husband at relevant times in 1998 is extremely relevant and important to the question of the identification of the alleged female responsible for the electronic transfers of money. In my view this evidence which we have had to obtain ourselves given that it was not provided by the AFP, puts an entirely different complexion on the issue of the identification of the female responsible for these transfers and the relevance of the so-called “relationship” between my client and her estranged husband.
I would be most grateful if you would attend as quickly as possible to the obtaining of all relevant documentation in the possession of the AFP, whether it be statements not disclosed, photographs not disclosed or documents seized not being disclosed. These documents are obviously relevant to a complete picture of the police investigation into this matter.”
As a consequence, the day before the first voir dire hearing commenced, the prosecution provided information regarding Dziki to the accused’s legal advisers.
It appears that the background to the relationship between Dziki and Naruniec, and the AFP’s knowledge of it, resulted from a number of telephone intercepts made in November 1998. The target of the intercepts was the person Pallaras who was suspected of being involved in the purchase of substantial quantities of cannabis. The AFP intercepted a telephone call from Dziki to Pallaras in which Dziki indicated that she had been a business partner of Naruniec. A meeting was arranged between Pallaras and Dziki. Pallaras asked Dziki if she would arrange for Naruniec to telephone him. Shortly after that call, a further telephone intercept was made of a telephone call from Naruniec to Pallaras. Naruniec indicated that he had been in partnership with Dziki for about two years and that they were equal partners. He indicated that Dziki could be trusted and that Pallaras could pay the entire proceeds of the transaction being undertaken with him to Dziki. The AFP suspected that the transaction involved the sale of cannabis. Naruniec indicated that Dziki would send his share of the proceeds to him in Poland. Naruniec also indicated that he had a personal relationship with Dziki.

On 4 December 1998, as a result of various telephone intercepts, the AFP stopped a motor vehicle driven by Dziki in Gilbert Street, Adelaide. The police located bags in the motor vehicle containing approximately two kilograms of cannabis material. The police suspected that Dziki was intending to sell the cannabis to Pallaras. Both South Australian Police and officers of the AFP attended her premises at Morphett Vale and located cannabis plants growing hydroponically. On the same day, police attended premises at Goodwood occupied by Dziki’s mother and located hydroponically growing cannabis plants. The following day, they attended premises at Seaton rented by a man with a similar name to Naruniec and located cannabis plants growing hydroponically. They also attended premises at Goodwood and premises at Clarence Park. Naruniec was apparently associated with all of the properties. Dziki was aware of them and directed the AFP to the properties.
On 8 December 1998, Dziki, accompanied by her solicitor, Mr Wyatt, was interviewed by AFP Federal Agent Clements, in company with AFP Federal Agent Buckland. The police had suspicions that Dziki had become involved in the importation of narcotics with Naruniec.
Clements and Buckland, who both gave evidence, said that they had formed the opinion that, whilst Dziki was involved with Naruniec in the cultivation and sale of cannabis, she was not involved in the importation of narcotics with Naruniec. Clements said that because the AFP had not discovered anything that linked Dziki to the importation of the ecstasy, they had eliminated her from their investigations into the importation. However, in the course of the search of Dziki’s premises on 4 December 1998, police seized a number of items, including documents, some of which pointed to the possibility that she may have been involved in transferring money to Naruniec in Poland. There was also material which pointed to Dziki as having possibly made deposits of monies in financial institutions in Adelaide for the purpose of transferring funds to Poland.
It was submitted to the trial judge by counsel for the accused that the evidence relating to the relationship between Dziki and Naruniec raised a reasonable possibility that she was the person involved in the money transfer transactions and that a jury could therefore not conclude that the accused was involved in the money transfer transactions, rendering the evidence inadmissible. It was also put to the trial judge that he should exclude the evidence in his discretion because of the failure of the prosecution to disclose the existence of Dziki and her relationship with Naruniec when they first became aware of it in November 1998. It was submitted that such late disclosure had deprived the accused of the opportunity to further investigate the role of Dziki. The late disclosure of the evidence relating to Dziki formed the basis of the application for a permanent stay.
Counsel who appeared for the prosecution, argued that the Dziki evidence was not relevant. He relied on the circumstantial evidence which pointed to the accused as being the person involved in the money transfer transaction. The trial judge rejected that submission. The trial judge found that the Dziki evidence was relevant to the question of whether it was the accused who was involved in the money transfer transactions. He determined it was relevant in two ways, firstly, as evidence which may be used to undermine the prosecution case and, secondly, as evidence to support the accused’s case. I agree with the trial judge’s conclusion. The accused had always denied that she was involved in the money transfer transactions. The evidence relating to Dziki and Pallaras which may point to others who may have been involved in drug transactions with Naruniec was relevant to the defence case.
On 22 December 1998 an Australian Federal Police officer, Julie Marie Dillon swore an affidavit in proceedings in the Supreme Court pursuant to the Proceeds of Crime Act1987 (Cth). In those proceedings the DPP was seeking various orders in relation to the property of the accused and Naruniec. In the course of the second voir dire hearing, a number of drafts of that affidavit were discovered. In an earlier draft of the affidavit it was disclosed that on 8 December 1998 Dziki handed a facsimile to the AFP that she had received at her home. The facsimile contained information that included details of an account of Naruniec with the Bank of Gdansk in Poland. That information was not disclosed in the final affidavit filed in the Supreme Court, dated 22 December 1998. It is clear that on 8 December 1998 the AFP were aware that Dziki had knowledge of Naruniec’s bank account including the number of that account in Poland. Although the date of the facsimile to Dziki disclosing details of the bank account post-dates the date of the applications of the money transfer transactions, nevertheless, it raises the question whether there was other material available to Dziki at the time of the telegraphic transfers from which she would have known the details of Naruniec’s account in Poland. The material may well have been relevant to the defence, as it could have established that the accused was not the only person who had knowledge of Naruniec’s bank account in Poland. The material raised other possibilities as to who might have been involved in the money transfer transactions.
There is yet another item of evidence which might connect Dziki with the money transfer transactions. A photocopy of a note was produced during the second voir dire hearing. That note had written on it the name “Urban”. The note also contained a telephone number. There is some uncertainty where the note was found, but there is some material to suggest that it had been found at the home of Dziki. Urban was one of the names used on one of the money transfer transactions. Evidence had been called that Urban was a name known to the accused. If the note was found at Dziki’s home, there was also evidence that it was a name known to Dziki. Again, this was some evidence upon which the defence may have relied in suggesting that there were other people who might have been involved in the money transfer transactions.
In the second voir dire hearing a note entitled, “SUMMARY OF DETAILS FOR D.P.P. ON SAM NARUNIEC” came to light. In that note, which had been prepared by Clements, there is reference to Dziki’s involvement with Naruniec in the production and sale of cannabis and that Dziki was Naruniec’s girlfriend. I will come to the detail of that note later, but it again provided some further material that the defence may have relied upon in cross-examining officers of the AFP about their knowledge of the involvement of others in illegal drug transactions with Naruniec.
In the first voir dire hearing, the trial judge concluded that Clements and Buckland were honest witnesses. He concluded that the material relating to Dziki was not conveyed to the DPP because it did not occur to Clements that it was relevant to the prosecution of the accused. The trial judge found that both Clements and Buckland were aware of their duty to provide all information relevant to a charge against the accused, whether the information was inculpatory or exculpatory. He concluded that it did not occur to Clements that the material relating to Dziki had relevance to the question of the identity of the person involved in the money transfer transactions in April 1998. His Honour said:
“The existence of Ms Dziki and the evidence regarding her relationship with Mr Naruniec, had never been conveyed to the Director of Public Prosecutions by the Australian Federal Police. None of the declarations provided to the Director of Public Prosecutions by the Australian Federal Police, mentioned Dziki. In his evidence, during the voir dire hearing, officer Clements explained that it never occurred to him that he should provide the information regarding Ms Dziki to the Director of Public Prosecutions as he did not consider it relevant to the charge against the accused. He said that from the evidence available to him he had formed the opinion that the accused was involved with her estranged husband, Sam Naruniec in the importation of the ecstasy. Officer Clements said that there was circumstantial evidence which indicated it was the accused who was engaged in the money transfer transactions. He said that by the time of meeting with Ms Dziki of 8 December he had eliminated her from their investigation regarding the importation of the ecstasy.”[3]
[3] Op cit n1 at 135-136, para 67
His Honour went on:
“I am satisfied that the police did not disclose anything with respect to Ms Dziki because they believed she was not involved in the importation of the ecstasy or the money transfer transactions. They concluded that she had no relevance to the importation charge. With the benefit of hindsight and with their thought processes concentrated towards matters to which they were directed by Counsel for the accused during the course of their evidence it is likely the police officers would have concluded that Ms Dziki had relevance to the accused’s case. However, they are not to be judged in that light. There was nothing in their conduct to suggest that they acted illegally or improperly in not disclosing the presence of Ms Dziki.”[4]
[4] Op cit n1 at 137, para 72
Subsequent events revealed that Clements’ evidence during the first voir dire hearing had been unsatisfactory. The trial judge’s conclusion that there was a failure to disclose because the police considered Dziki had no relevance to the importation charge cannot, in my opinion, be sustained due to the unsatisfactory evidence of Clements. There had also been a recorded interview with Dziki. The tape of that interview cannot now be located. The trial judge accepted Clements’ evidence that that interview was conducted in order for the police to learn more about Naruniec and that they had excluded Dziki as a suspect in the ecstasy transaction. Documents had been seized from Dziki’s home. Some documents were returned to her. An incomplete and ambiguous record was kept of which documents had been seized and returned. The trial judge found that there was no basis for concluding that there was evidence which had been lost that would lead to the accused being unable to obtain a fair trial. He relied on the evidence of the AFP officers Clements and Buckland that insofar as they could recall, there was no material that had been discovered at Dziki’s home that was relevant to the importation charge.
The trial judge placed considerable reliance upon the evidence of the AFP officers. The trial judge rejected the submissions of counsel for the accused that the defence had been deprived of the opportunity to fully investigate the involvement of Dziki. Counsel for the accused submitted that three and a half years had passed and the accused had been deprived of the opportunity of having her legal advisers further investigate the involvement of Dziki. The trial judge said:
“I am of the opinion that the non-disclosure of the Dziki material resulted from the failure of the police to recognise it had relevance to the money transfer issue. I also indicated that the decision was a bona fide one. As a result of reaching that conclusion, it follows that the accused is denied the basis for the submission initially made, namely, that it would be an affront to justice to require the accused to be tried for a third time where the police had deliberately excluded exculpatory evidence.”[5]
[5] Op cit n1 at 152, para 138
One matter which was left outstanding after the first voir dire hearing was the telephone intercepts. The trial judge noted that the prosecution was in a position to provide the defence with summaries of the telephone intercepts. He gave liberty to the accused to apply to the court for orders if anything arose from the telephone intercepts which required determination by the court. As I observed earlier, the telephone intercepts which had been disclosed to the accused’s legal advisors during the first voir dire hearing were part of a very large investigation by the AFP code named “Operation Cadillac”.
The second voir dire hearing
The accused made a further application for a stay of the prosecution (the second voir dire hearing). The accused submitted that the conduct of the AFP was such that there had been an abuse of process. A number of grounds were relied on. Those relevant to this appeal are:
1.That the AFP and/or the DPP failed to make relevant disclosure in relation to Dziki and Pallaras before either of the earlier trials.
2.That there was a failure to make relevant disclosure in relation to Pallaras at the first voir dire hearing.
3.That there was a deliberate and orchestrated attempt by the AFP to conceal material.
4.That the DPP deliberately failed to disclose the material in relation to Dziki and Pallaras.
5.That there was destruction or loss of relevant evidence, such as a tape recording of the interview between Dziki and the AFP on 8 December 1998, documentation relating to overseas money transfers in English and Polish, Clements’ diaries for the years of 1998 and 1999, and unidentified material that was seized by the AFP on 4 and 5 December 1998 that may be relevant to the importation of narcotics.
6. That the evidence of Clements in the first voir dire hearing was untruthful.
7.That the manner in which the first two trials were presented was unfair because the accused was deprived of cross-examining witnesses about the involvement of others, including Pallaras and Dziki with the AFP.
8.That the accused and the Court were misled in the first voir dire hearing, having been left with the impression that the DPP knew nothing of Dziki.
A number of matters that had been the subject of previous argument were raised. More information had become available to the accused’s legal advisers. Much of this information became known as a consequence of the AFP being required to produce documents in answer to subpoenas issued on behalf of the accused.
As I have mentioned, prior to the interview of Dziki on 8 December 1998, both AFP officers, Clements and Buckland, suspected that Dziki and Naruniec were involved in the importation of ecstasy, the subject of the current charge. After the interview, both said that they did not hold that suspicion. Rather, they believed that Dziki’s involvement with Naruniec was solely in relation to the production of cannabis. Thus, the agents eliminated Dziki from the ecstasy investigation.
The transcript of the interview that the agents relied upon has been lost. One of the consequences of the agents’ decision to eliminate Dziki as a suspect in the investigation was that no further inquiries were made surrounding Dziki’s involvement in the transfer of funds to Naruniec in Poland. As it transpired, Dziki was in possession of Naruniec’s bank account details in Poland. It does not appear that there was any follow up to ascertain when she first became aware of those details, in what circumstances she became aware of them and whether and when she had ever transferred monies to Naruniec.
Documents produced and tendered at the second voir dire hearing indicated that the DPP had knowledge of the involvement of Dziki in December 2002. It is not known when the DPP acquired such knowledge. However, a letter dated 7 May 1999 from Clements to the DPP mentioned Dziki as the girlfriend of Naruniec. Correspondence existed from a senior solicitor of the DPP to Clements requesting production to that solicitor of the brief held by the South Australian Police in regard to the prosecution of Dziki for possessing cannabis. There is also in existence the previously mentioned memorandum entitled, “SUMMARY OF DETAILS FOR D.P.P. ON SAM NARUNIEC” written by Clements. This document refers to Dziki and her relationship with Naruniec, including dealings in cannabis.
The trial judge ruled that the DPP had a duty to disclose to the accused the presence of Dziki, her involvement with cannabis and her relationship with Naruniec. The trial judge mentioned that the requirement to disclose was more compelling considering the AFP’s belief that Naruniec and Pallaras were involved in the importation of ecstasy. The trial judge noted in his ruling on the second voir dire hearing that counsel for the DPP accepted that there was a duty of disclosure by a prosecuting authority which applied equally to law enforcement agencies investigating an offence.
The trial judge had accepted the evidence of Clements and Buckland at the first voir dire hearing and relied on that evidence for his findings and in support of the exercise of his discretion to refuse the earlier application for a stay.
It became clear in the second voir dire hearing that the DPP had been informed about Dziki. Clements’ memorandum stated inter alia:
“It is suspected that the proceeds from the sale of this cannabis was to be sent to NARUNIEC and used to finance further imports of narcotics into Australia.
DZIKI has stated that the cannabis crops located during the searches were NARUNIECs’ (sic) and she and her mother were tending them on his behalf.”
When Clements wrote the memorandum, he was of the view that the money received by Dziki from the sale of cannabis was to be transferred to Naruniec in Poland for the purpose of purchasing narcotics and importing them to Australia. That was relevant to the defence to support the contention that others were involved and that the accused had been duped by Naruniec.
In affidavits sworn by a Federal Police Agent named Bridle on 11 January 1999 to support a warrant for the telephone intercepts, Bridle stated that the AFP believed that the ultimate recipient of the ecstasy was to be Pallaras and that Pallaras had been in telephone contact with “Urszula” on 25 November 1998. Bridle deposed that Dziki had been given Pallaras’ telephone number by her business partner, “Sam”, who was in Poland. It follows that in January 1999 a senior officer of the AFP suspected Pallaras was involved in the importation of narcotics and that Pallaras and Dziki were in contact.
There were intercepts of conversations between Naruniec and Pallaras indicating that they sold drugs through an established network of distributors. They had an ongoing enterprise. Pallaras was to finance further ventures with the profits made from earlier ventures. In those circumstances, it is surprising that in December 1998 Clements and Buckland came to the conclusion that Dziki, who was associating with Pallaras, was no longer a suspect in the ecstasy transaction, and that investigations of her possible involvement ceased.
In December 1998 the DPP issued proceedings against the property of the accused and Naruniec. An affidavit of Julie Dillon, which was sworn on 22 December 1998, did not disclose that Pallaras was involved in the importation of ecstasy and other drugs, or that he had been in contact by telephone with Naruniec. The trial judge was not given a satisfactory explanation about the failure to refer to Pallaras in the affidavit.
Counsel for the DPP conceded that the same senior solicitor who was involved in the advising in respect of the prosecution of the accused was also involved in drafting the affidavit under the Proceeds of Crime Act1987 (Cth). The affidavits in support of applications for telephone intercepts had been seen by an officer of the DPP, although it was not the same officer. The trial judge noted that the AFP and the DPP were well aware of the involvement of Pallaras and Naruniec in drug dealings and that the AFP believed that Pallaras was involved in the importation of ecstasy. None of this material had been disclosed to the accused in any of the earlier trials or during the first voir dire hearing.

Toohey J agreed that the court possesses power to prevent an abuse of process and ensure a fair trial. He was of the opinion that if a prosecution was brought for an improper purpose then, in most cases, no remedy short of a permanent stay could be granted by the court to ensure a fair trial.[48] Gaudron J expressed the position as follows:
“When, in the words of Wilson J. in Barton, there is ‘a fundamental defect which goes to the root of [a criminal] trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’, an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt or innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands.”[49]
[48] Op cit n7 at 71
[49] Op cit n7 at 75
She concluded that the power should only be exercised in exceptional circumstances and with the utmost caution, having regard to the important principle that in exercising the power a court is refusing to exercise jurisdiction.[50] She observed that there is a prima facie right in the person who invokes the jurisdiction of the court to have that jurisdiction exercised.[51] She concluded that the scope of the power to grant a permanent stay is necessarily limited and requires an inquiry whether there are other means by which any defect attending the proceedings can be eliminated or remedied.[52]
[50] Op cit n7 at 76
[51] Ibid
[52] Op cit n7 at 78
In Regan v The Queen,[53] the Canadian Supreme Court considered the principles to be applied in determining whether to stay a prosecution on the ground of an abuse of process of the court. LeBelle J, with whom a majority of the court agreed, said:
“Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:
(1)the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2)no other remedy is reasonably capable of removing that prejudice. [O’Connor, at para 75.]
The Court’s judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.”[54]
[53] (2002) 209 DLR (4th) 41
[54] Ibid 67, para 54
He emphasised that a stay of proceedings is only appropriate when the abuse is likely to continue or will be carried forward and that the cases will be exceptional or relatively very rare when past misconduct will be regarded as ‘so egregious that the mere fact of going forward in the light of it will be offensive’.”[55]
[55] Op cit n53 at 67, para 55
The court was expressing a similar view to that expressed by the majority in Jago that the power should only be exercised sparingly, having regard to the necessity of balancing the competing interests of the community to ensure that a court exercises a jurisdiction which is invoked by a party against the interests of the accused person to obtain a fair trial.
Although the limits of conduct which may amount to an abuse of process to justify a permanent stay have not been defined, before the power is exercised it is, in my opinion, necessary to establish:
1. That there is prejudice caused by the abuse of process.
2.That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trial.
3. That there is no remedy available which will alleviate the prejudice.
4.That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.
The court is required to have regard to the principle that it is only in rare circumstances that the right of the prosecution to invoke the jurisdiction of the court should be overborne by the ordering of a permanent stay.
Submissions of the DPP
Counsel for the DPP submitted that the case against the accused was compelling. In particular, the DPP referred to the money transfer evidence and to the applications made in the names of Julia Urban, Anne Werner, Julia Aldam and Justine Hober, all names that were known to or connected with the accused. The accused was also alleged to have been connected with some of Naruniec’s cannabis crops.
It was submitted by the DPP that the trial judge was correct in refusing to order a permanent stay of proceedings, and that he was correct in concluding that the accused is able to receive a fair trial. It was conceded that there had been a failure by the DPP to make proper disclosure in the first and second trials. Counsel submitted that, nevertheless, the power to stay proceedings must not be used to punish the prosecution and that, having regard to the public interest that serious offences should be prosecuted, the trial judge was correct in exercising his discretion to refuse the application.
The application for a permanent stay
I agree with the DPP’s submission that the discretion to order a permanent stay should not be exercised to punish the prosecution. However, the conduct of the prosecution is a relevant factor in determining whether an accused can receive a fair trial. A court may conclude that it can have little or no confidence that the prosecution will be conducted in the future so as to ensure a fair trial on the basis of previous prosecutorial conduct. In those circumstances, the continuation of the prosecution will amount to an abuse of the court process. In that respect, past conduct is relevant.
I accept that it is not always possible to achieve a perfect trial. There will be occasions when material which may be relevant to the trial has been lost or destroyed. That alone will not justify the court preventing the prosecution from proceedings. There may be circumstances in which the loss of relevant material may be so significant that a fair trial is impossible. Then the court may exercise its discretion to stay the trial.
In this case, the prosecution failed to disclose relevant material in the first and second trials and in the third trial prior to the second voir dire hearing. The AFP and DPP were aware that there was material which should have been disclosed. An officer of the AFP had made the decision not to conduct further enquiries into the involvement of Dziki or Pallaras who were relevant to the accused’s contention that she was an innocent dupe of Naruniec. It was not disclosed that others were suspected of having been involved with Naruniec in the importation of narcotics. It was only after the defence sought the production of some material that these facts emerged. Officers of the DPP failed in their duty to make disclosure. The most generous interpretation of that conduct was that there was reckless indifference on the part of officers of the DPP to meet the DPP’s obligations of disclosure. No explanation has been forthcoming to explain the breach. I am not confident that all relevant material has been disclosed.
There is material which may have potential relevance to the accused which has now been lost, or is no longer available. The material includes the tape recording of the Dziki interview, the diaries of Officer Clements and the documentation which was seized from Dziki’s house and then returned to her.
It is now almost five years since the arrest of the accused. The accused has suffered substantial prejudice. She has faced two trials, one appeal and two voir dire hearings. The prejudice suffered by the non-disclosure of material has not been overcome by the disclosure which has now been made. There may be other material that may be relevant to the defence case which has been lost. For reasons earlier expressed, I cannot agree with the trial judge’s conclusion that the disclosure which has now been made indicates that the accused could obtain a fair trial.
I consider that the prejudice to the accused arising from the default and conduct of the AFP and DPP and arising from the loss, destruction and return to Dziki of documents is such that any further trial would be unfair so as to amount to a misuse of the process of the court. The continued failure to disclose relevant material, and the failure of the DPP to explain, can only support the conclusion that relevant material has now been lost. It is difficult to imagine how the accused could, in the exceptional circumstances of this case, receive a fair trial.
The appeal must be allowed. I would order that there be a permanent stay of the trial.
The cross-appeal
The DPP has cross-appealed. The DPP relies upon the following grounds:
1.The learned 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.
2.The learned trial judge erred in ordering a stay of the prosecution until the Crown has provided written transcripts, including translations of any foreign language, of the 328 telephone intercepts identified by solicitors for the accused.
The trial judge having refused a permanent stay considered the applications for a conditional stay. Counsel for the DPP argued that the effect of making the orders sought was to order costs against the Crown in the first two trials and, as there is no power in the District Court to order costs in criminal proceedings, the order should not be made. The trial judge rejected the argument. He determined that it was erroneous to characterise the order as an order for costs but, rather, it was properly an order for a stay on conditions to prevent an injustice consequent upon unfairness to the accused arising from fault on the part of the Crown.
Counsel for the DPP submitted that the effect of the trial judge’s decision was to order costs of the first two trials. He further argued that the trial judge was in error in determining that the first two trials had been flawed.
It was conceded by the accused that the court has no power to order costs in a criminal proceeding. Counsel for the accused submitted that the contention that the trial judge had made costs orders in the first two trials was wrong. He contended that the proper characterisation of the orders was that they were conditional stay orders in the third trial. The trial judge had properly exercised his discretion to overcome unfairness to the accused in the third trial.
The power to order costs in criminal proceedings
Section 42 of the District Court Act, 1991 makes specific provision for the ordering of costs in proceedings in the Civil Division. It makes no reference to costs in the Criminal Division of the Court. Section 297 of the Criminal Law Consolidation Act, 1935 provides for the Court to make orders for the payment of reasonable fees to witnesses in order to compensate them for expenses incurred, but makes no provision for the order of costs in favour of a successful party. Further, s 363 of that Act provides that on the hearing and determination of any appeal or new trial or any proceedings, preliminary or incidental thereto, no costs shall be allowed on either side. The application for a stay of proceedings is, in this case, an application in a criminal proceeding.[56] In R v S,[57] the Court of Criminal Appeal observed that it is accepted that courts exercising a common law jurisdiction in criminal matters have no inherent power to award costs. The court observed that where such power existed it is a creature of expressed statutory provisions. In R v Andri(No.2),[58] the District Court confirmed the position that there is no power to order costs in cases where the court is exercising criminal jurisdiction.
[56] R v Goia (1988) 81 ALR 656
[57] (1997) 94 A Crim R 445
[58] (2002) 220 LSJS 62
Is the order made by the trial judge an order for costs?
In R v Mosley,[59] on the morning of the day of the commencement of the trial, the Crown Prosecutor, without giving notice to the accused, applied for an adjournment. The accused opposed the application. The trial judge ruled that the legal costs of the accused had been wasted as a result of the adjournment. He granted the adjournment on condition that the Crown pay the accused’s legal costs thrown away.
[59] (1992) 28 NSWLR 735
The Crown attempted to re-run the trial in the District Court in New South Wales, not having paid the costs. The accused applied for a stay of proceedings until the costs of the earlier adjournment had been paid. A District Court judge upheld the trial judge’s ruling and granted a stay until the costs order had been complied with. The prosecution appealed.
The Court of Criminal Appeal in New South Wales determined that there was no power under the District Court Act, 1973 (NSW) to make an order for the payment of costs in criminal proceedings. However, the court decided that it could modify an invalid order staying proceedings so that the trial of an accused should not proceed until the Crown had compensated the accused for the costs thrown away by an earlier adjournment. Gleeson CJ, with whom Kirby P and Mahoney JA agreed, concluded that the District Court judge had no power to make the order for costs. He observed that the consideration that had motivated the District Court judge had not been shown to be wrong. He concluded that the accused had been unfairly prejudiced by the granting of the adjournment and that unfair prejudice would continue unless the accused could be given some protection in respect of costs. Gleeson CJ said:
“This Court should signify its disapproval of the Crown’s delays, and also its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him. … There being no valid order for costs, there is no procedure for enforcing the order, or taxing the costs. However, there is no reason why this Court cannot, in the exercise of its own discretion, modify the order made by Herron DCJ in such a way as to give practical effect to a view that, in the special and unusual circumstances of this case, and in the light of the events that have occurred, the trial of the respondent should not proceed until the Crown compensates him for the costs thrown away by the original adjournment.”[60]
[60] Ibid 741
The decision in Mosley was considered by the New South Wales Court of Criminal Appeal in R v Seebag.[61] In that case, a judge of the District Court in New South Wales granted an adjournment to the Crown, but ordered a stay of proceedings in the matter until the accused’s reasonable costs thrown away had been paid. It was argued on behalf of the Crown that the stay was ordered as a means of enforcing an order for payment of costs and, as the judge had no power to make such an order, he had no power to make the order. It was submitted on behalf of the accused that the trial judge had been justified in making the order as he was exercising his power to stay proceedings that were an abuse of process, and the order he had made relieved the unfairness to the accused and permitted the trial to proceed if such unfairness had been relieved. It was argued that the trial judge had simply applied the principle that a trial judge has power to make a conditional order staying proceedings in order to ensure fairness to an accused. The accused relied on the decision of Jago v The District Court of New South Wales & Ors.[62]
[61] Unreported judgment, Court of Criminal Appeal, New South Wales, 16 February 1993, No. 60493/92
[62] Op cit n7
James J, with whom Hunt CJ at CL agreed, considered that the District Court judge had made the order for a stay intending it to be a means of enforcing a costs order which the judge had earlier sought to make with the agreement of the Crown. He referred to the decision in Mosley and confirmed that there is no power of a District Court judge to make an order for costs against the Crown as a term of granting an adjournment. He then applied the decision in Mosley. He said:
“However, in the present case the respondent was not legally assisted. He was represented by a solicitor and counsel on 20 August 1992. The hearing of the trial had been fixed months before for 19 August 1992. The matter had been mentioned on the previous day, 19 August 1992, when the respondent had also been represented by counsel. According to the transcript of the proceedings of 19 August 1992, nothing had been said on that day to indicate that the Crown would not be ready to proceed on the following day. No submission was made by the Crown prosecutor to His Honour Judge Herron on 20 August 1992 that His Honour did not have power to make an order for costs. At that stage the appeal against the orders made in the case Regina v Mosley had not yet been lodged by the Crown. In my opinion the present case is a case in which the court should make a similar order to that made by the court in Regina v Mosley. …
I would propose that an order be made similar to the order made by the court in Regina v Mosley, that there be a stay of proceedings until the costs of 20 August 1992 thrown away by the respondent as a result of the adjournment granted on 20 August 1992, be paid by the Crown and that otherwise the appeal be dismissed.”
Smart J made the following observation:
“When an application for an adjournment is made by the Crown and opposed by the accused and one of the grounds is the expense which will be suffered by the accused, the judge has to take into account the whole of the circumstances and determine overall what is the correct result. It is often not possible to divorce consideration of the question of adjournment and the question of costs and expenses incurred by an accused.
The circumstances which may arise are legion and it would be unwise to attempt to lay down a comprehensive and detailed set of principles designed to cover all cases. The overriding principle is that the judge should do what is just in the whole of the circumstances.”
Smart J left open the question of whether a judge of the District Court may grant an adjournment on the basis that there will be a stay of proceedings pending payment of the costs thrown away of an accused.
In R v Fisher,[63] the New South Wales Court of Criminal Appeal followed the earlier decision in Mosley. In Fisher’s Case, a second trial had been aborted when the trial judge was summing up because documents requested under a subpoena were not produced by the Crown until the summing up. The documents contained information relevant to the charges. As a result of the late arrival of the documents, the trial judge held that the trial could not continue fairly and aborted the trial. The applicant had been funded by his parents in respect of the first two trials. Their funds had been exhausted by the end of the second trial. Therefore, the applicant would have had to rely on legal aid funding for any further trials. He then applied for an order that the Crown pay his costs of the second aborted trial. The trial judge refused the application and refused an application to stay proceedings until the Crown had paid the applicant’s legal costs of the aborted trial, notwithstanding the applicant’s lack of funds and his ability to have counsel of his choice. The trial judge determined that the third trial would be a fair trial and, therefore, he refused to grant the stay.
[63] (2003) 56 NSWLR 625

The Court of Criminal Appeal determined that there was power to order a stay until the prosecution agreed to pay costs. Simpson J referred to the dicta of Mason CJ in Jago. The Chief Justice stated:
“In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair.”[64]
[64] Op cit n7 at 32
Simpson J further referred to the observations of Gleeson CJ in Mosley. The Chief Justice had indicated that a factor to which the court is entitled to have regard is that an accused should not be required and the court should not be willing to leave the accused to bear the burden of original unfairness that was being visited upon him. She went on to say:
“Having considered all matters, I am of the view that a Mosley order should also be made in this case. The applicant has (or his parents have) incurred very substantial expense in privately funding his legal representation. While the availability of legal aid is a relevant consideration, it does not undo the unfairness that had accrued by reason of the discharge of the jury at a very late stage in the trial. I accept that an accused person is not necessarily entitled to counsel of his or her choice, particularly when legal representation is funded by legal aid. But here the applicant had made a considered choice to be represented privately and he is now deprived of that opportunity by reason of error on the part of the Crown. In my opinion, in these circumstances, fairness demands that he retain the opportunity of having the representation of his choice.
Accordingly, I propose that this court order that the proceedings on the charges contained in the indictment presented on 5 May 2002 be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on that date.”[65]
[65] Op cit n63 at 634, paras 47-48
Santow JA concluded that the case, as with Mosley, was a case of fundamental unfairness in permitting the Crown to proceed to trial in circumstances where, as a consequence of the Crown’s error, the defence had been put to wasted costs. He observed that the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one but, nonetheless, the distinction is real and important. Smart JA agreed.
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.
The trial judge did not seek to impose a costs order in respect of the first two trials. What he sought to do was to alleviate the unfairness to the accused of having to face yet a third trial. The trial judge correctly considered it would be unfair to the accused to have to proceed with a third trial without being compensated for the costs she had incurred in the first two trials. The trial judge, therefore, ordered a stay until costs of the earlier trials had been paid. The order was related to the trial before him and was not an order for costs in respect of the earlier two trials.
In my view, the learned trial judge correctly considered the issue of fairness and balanced the interests of the accused and the interests of the public. He made the correct orders accordingly. I do not consider that the trial judge was making a costs order in the first two trials. In my view, the order he made was similar to the order made in Mosley and Fisher. I would dismiss the cross‑appeal.
The 328 intercepts
After the first voir dire hearing, summaries of approximately 6,500 intercepts were provided on compact discs to the solicitor for the accused. She spent many hours listening to them. In consultation with counsel for the accused, the solicitor identified 328 intercept summaries that the defence considered to be relevant to their case. I shall refer to those intercepts as “the relevant intercepts”.
The solicitor requested that the DPP translate those intercepts. On 7 February 2003, the Deputy Director of the DPP by letter indicated that the request would not be met. In the letter the Deputy Director stated:
“While I am prepared generally to assist the defendant as much as I can, it is not part of the function of this office to provide legal aid assistance to the defence and we are not funded for such a purpose.”
The trial judge found that the intercepts were potentially relevant to the issues in the trial and, in particular, in regard to issues of whether there were others potentially involved in the importation of narcotics. He ruled that the Crown should provide transcriptions and translations of the relevant intercepts. During the course of the appeal, counsel for the accused advised the court that the number of intercepts may, in fact, be 316, not 328.
Counsel for the DPP submitted that the DPP had complied with its duty to disclose by providing the defence with the discs containing the complete transcripts of all the telephone conversations, including the relevant intercepts. He submitted that the DPP should not be required to incur the expense of providing written transcripts of the original records, that is, the discs, which had been provided, nor should the DPP be put to the expense of translating the relevant intercepts that were in a foreign language. He argued that the accused is fluent in Polish and it is therefore possible for her to listen and understand those conversations and translate them for her legal advisers. In respect of those transcripts that are in English, the accused’s legal advisers are able to listen to them and, if necessary, transcribe them at the accused’s expense. Counsel for the DPP submitted that the cost of providing the written transcripts and translations could exceed $250,000.
Some of the conversations are in Greek. He submitted that a translation of the Greek telephone calls alone could exceed $100,000. Counsel based his submission upon an affidavit of Lisa Jane Buckland, sworn on 18 August 2003, in which she referred to the cost of engaging an interpreter to translate and transcribe calls.
There is merit in the submission of counsel that the DPP should not be put to the cost of transcribing those calls. The tapes, having been provided, can be listened to by the solicitors and counsel for the accused, and any relevant conversations can be identified. As to the conversations in Polish, the accused is fluent in Polish. She is able to understand and translate. Alternatively, an interpreter could listen and translate the conversations to counsel without the necessity to transcribe each conversation. Similarly, a Greek interpreter could translate the conversations in Greek simultaneously as they are being played back. A transcription would only be required for those conversations which turn out to be relevant and probative.
It is not the duty of the prosecution to provide transcripts or translations of recorded information. The duty is to disclose material which may assist the accused. That has been done.
Accordingly, I would set aside the order staying the prosecution until the Crown provides written transcripts of the identified telephone intercepts. In all other respects, I dismiss the appeal of the DPP.
Summary
I would allow the appeal and order that the prosecution be permanently stayed.
If it is necessary to consider the cross-appeal, I would allow the cross-appeal to the extent that I would set aside the condition that the prosecution be stayed until the Crown provides written transcripts of telephone intercepts.
In respect of the further condition, I would reject the DPP’s submission and dismiss the cross-appeal.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] R v Ulman-Naruniec (2002) 220 LSJS 120
2 R v Ulman-Naruniec (No. 2) (2003) 226 LSJS 434
3 Op cit n1 at 135-136, para 67
4 Op cit n1 at 137, para 72
5 Op cit n1 at 152, para 138
6 Op cit n2 at 461, paras 126-127
7 (1989) 168 CLR 23
8 Ibid 31
9 Op cit n7 at 76
10 (1991-1992) 174 CLR 509 at 529
11 [1980] 1 NZLR 464
12 McIlkenny & Ors v R (1991) 93 Cr App R 287 at 312
13 R v MacGuire [1992] 1 QB 936 at 958
14 (1978) 68 Cr App R 419
15 Ibid 426
16 (2000) 111 A Crim R 314
17 Ibid 322
18 Grey v The Queen (2001) 184 ALR 593
19 Op cit n16 at 322
20 Op cit n18 at 606, lines 9-16
21 (1991) 161 LSJS 135
22 Ibid 140
23 Op cit n2 at 454, para 97
24 (1980) 147 CLR 75
25 Ibid 96
26 Op cit n24 at 103
27 Op cit n24 at 107
28 Op cit n24 at 116
29 [1964] AC 1254
30 Ibid 1301-1302
31 [1977] AC 1
32 [1967] 2 QB 459 at 467
33 Op cit n31
34 Op cit n11
35 Op cit n11 at 468, lines 32-35
36 Op cit n11 at 470, lines 42-44
37 Op cit n11 at 470-471
38 Op cit n11 at 476, lines 44-48
39 Op cit n11 at 481, lines 31-42
40 Op cit n11 at 482, lines 14-27
41 Op cit n7
42 Op cit n7 at 30
43 Op cit n7 at 31
44 Op cit n7 at 33
45 Ibid
46 Op cit n7 at 47-48
47 Op cit n7 at 57
48 Op cit n7 at 71
49 Op cit n7 at 75
50 Op cit n7 at 76
51 Ibid
52 Op cit n7 at 78
53 (2002) 209 DLR (4th) 41
54 Ibid 67, para 54
55 Op cit n53 at 67, para 55
56 R v Goia (1988) 81 ALR 656
57 (1997) 94 A Crim R 445
58 (2002) 220 LSJS 62
59 (1992) 28 NSWLR 735
60 Ibid 741
61 Unreported judgment, Court of Criminal Appeal, New South Wales, 16 February 1993, No. 60493/92
62 Op cit n7
63 (2003) 56 NSWLR 625
64 Op cit n7 at 32
65 Op cit n63 at 634, paras 47-48

[2003] SASC 437

24 December 2003