R v Ulman-Naruniec No. DCCRM-99-339

[2002] SADC 118

R -v- DANA ULMAN-NARUNIEC
[2002] SADC 118

HIS HONOUR JUDGE ROBERTSON
CRIMINAL

REASONS FOR RULING IN THE MATTER OF ULMAN-NARUNIEC

Nature of the Prosecution

The accused is charged with being knowingly concerned in the importation into Australia of a prohibited import contrary to Section 233B(1)(d) of the Customs Act 1901. Particulars of the offence are 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.

Briefly, it is the Crown case that the accused engaged in a joint criminal enterprise with her estranged husband Sam Naruniec to import into Australia approximately 22,000 tablets containing the drug commonly known as ecstasy.  It is alleged by the Crown that the tablets entered Australia by post in late October 1998, secreted in the speaker boxes of a stereo system.  The parcel containing the stereo system and the tablets, was addressed to “Sam Naruniec, 4 Abberton Street, Flagstaff Hill”.  That address is the residence of the accused.  It is alleged that the stereo system and tablets were sent by Sam Naruniec from Europe.

The prosecution alleges that it discovered the presence of the tablets upon the entry of the parcel into Australia and on 29 October 1998 removed the tablets from the two speakers.  It is alleged that the Federal Police substituted most of the tablets  with tablets which did not contain a prohibited drug and the parcel was resealed.  The parcel was then delivered to the Flagstaff Hill Post Office.  It is not in dispute that on 3 November 1998 the accused collected the parcel, containing the stereo system from the Flagstaff Hill Post Office.  The accused attended the Post Office following the receipt by her of a card from the Post Office requesting she collect the parcel. It is alleged that on 4 November the accused removed the tablets from the speakers and placed them in bags.  It is further alleged that the accused removed the tablets from the stereo as a result of instructions she had received from Sam Naruniec.  Shortly after the removal of the tablets the Federal Police attended the accused’s premises and seized the tablets and the stereo system.

In a Record of Interview with the Federal Police the accused said she did not know that the parcel contained narcotics.  She said it was her belief that the parcel contained Viagra based on information given to her by Sam Naruniec.   

I was informed early in the voir dire hearing that the issue in the Trial is the accused’s state of knowledge.  The accused denies that she was engaged in a joint enterprise to import narcotics.  She asserts that her state of knowledge in November 1998 was that the parcel contained Viagra tablets and not narcotics.

History of the Proceedings

The accused was charged with the offence on 11 November 1998, after being interviewed by the Federal Police.  An Information was laid by the Director of Public Prosecutions in the District Court in May l999 first charging her with the offence for which she now stands charged.  The accused stood trial on 19 June 2000.  At that trial, the jury was unable to reach a verdict and was discharged.  The accused was retried and found guilty on 20 March 2001.  She was sentenced to a lengthy term of imprisonment on 4 May 2001.  On 23 August 2001 the Court of Criminal Appeal allowed the accused’s appeal.  Her conviction was quashed and a retrial was ordered.  Following the decision of the Court of Criminal Appeal she was released on bail.  She had previously been placed in custody on 20 March 2001.

Nature of the Application

The accused seeks the exclusion from the trial, of any evidence relating to four applications in writing for telegraphic bank transfers each for an amount of $9,800 and the deposit of $9,800 which accompanied each application to transfer. The first application was made on 9 April 1998 to the Bank of South Australia, Aberfoyle Park Branch, in the name of “Julia Urban” to transfer $9,800 to an account in the name of Sam Naruniec with the Bank Gdanski SA, Gdanski, Poland (“the Polish bank”).  The second application was made on 15 April 1998 to the Bank of South Australia, Edwardstown Branch, in the name of “Anne Werner” to transfer the sum of $9,800 to the same account at the Polish bank.  The third application for transfer, also made on 15 April 1998, to the Commonwealth Bank, Marion Shopping Centre Branch, in the name of “Julia Aldam” to transfer the sum of $9,800 to the same account at the Polish bank.  The final application for transfer was also made on 15 April 1998 to the Marion Shopping Centre Branch of Westpac Banking Corporation, in the name of “Justine Hober”, for the transfer of $9,800 to the same account held at the Polish bank. 

It is the Crown case that each of these applications for transfer were made by the accused, using false names and addresses as part of the joint criminal enterprise, between Sam Naruniec and the accused and that the money was to be used in connection with the acquisition of the ecstasy which was imported into Australia in late October 1998.  The prosecution alleges that the significance of the amount of each deposit is that for cash transactions over $10,000 there is a requirement that the receiving bank in Australia reports the transaction to the Australian Transactions Reports and Analysis Centre.  The Crown alleges that the amount of each deposit was designed to avoid the reporting obligations.

The accused denies that she was involved in any of the applications to transfer the money and denies that she deposited the sum of $9,800 with each of the respective banks. 

For ease of expression I will hereafter call the transfer applications, the accompanying deposits, and the evidence relevant to the alleged false names as the “money transfer evidence”.  It is all of this evidence, which the accused seeks to exclude.

Prosecution’s Reasons for Leading the Evidence

Before turning to the grounds relied upon for exclusion of the evidence it is necessary to understand the purpose of the prosecution wishing to lead the evidence. At the previous trials the prosecution presented the money transfer evidence as part of the evidence (including other circumstantial evidence) for the purpose of proving:

·that the person who made the applications and deposited the money with the banks was the accused;

·that the intention of the accused at the time was that the money was to be used by Sam Naruniec in connection with the  purchase of the  ecstasy;

·that the money was used by Sam Naruniec in connection with the purchase of ecstasy;

·that the ecstasy purchased was imported into Australia by sending it by post hidden in the stereo speakers.

The prosecution made it clear early in the voir dire hearing that it wished to introduce the evidence in this Trial as part of the circumstantial evidence to prove those same facts.  However, towards the end of his submissions Mr Boylan, Counsel for the prosecution, submitted that even if the evidence to be led by the Crown was insufficient to connect the money to the purchase of the ecstasy the evidence was still admissible as it is relevant to the state of the knowledge of the accused.  That submission was made in response to the submission by Mrs Shaw Q.C., Senior Counsel for the accused, that no nexus could be established.  I will refer to this alternative submission in more detail later.

Grounds upon which the accused relies for the exclusion of the evidence.

The grounds upon which the accused relied for the exclusion of the money transfer evidence are:

·First, that there was no nexus between the applications to transfer and the money deposited with the Adelaide banks with the importation of the ecstasy in late October.  In other words, due to the absence of a nexus between the money deposited and the acquisition of the ecstasy which came to Australia, the evidence does not have any relevance.

·Secondly, that evidence relating to a woman called Urszula Dziki  (“Ms Dziki”) and her involvement with the accused raises a reasonable possibility that she was the person involved in the money transfer transactions.  Accordingly, a jury  could never be satisfied beyond reasonable doubt that it was the accused who was involved in the money transfer transactions and therefore the money transfer evidence is not admissible.  I will refer to the evidence relating to Ms Dziki  in more detail shortly.

·Thirdly, that if I concluded that the money transfer evidence was admissible then its prejudicial effect outweighs its probative value and therefore I should exercise my discretion to exclude it.

·Fourthly, that in the exercise of what is commonly called the unfairness discretion I should exclude the money transfer evidence.  It is submitted that the failure of the prosecution to disclose the existence of Ms Dziki and the evidence relevant to her and her relationship with Sam Naruniec when she first came to the attention of the Federal Police in November 1998 has caused the loss of some evidence relevant to the money transfer issue.  Furthermore, as a result the failure to disclose the “Dziki evidence” until shortly before the commencement of this Trial the accused has lost the opportunity to gather further evidence relevant to Ms Dziki and her relationship with Sam Naruniec.  

Application for a stay of proceedings

For the sake of completeness, I should mention that the accused has also made an application for a permanent stay of the prosecution on the grounds of abuse of process.  The application is based upon the late disclosure of Ms Dziki and the evidence relevant to her.  I will consider this application later.

The First Ground -The Nexus Issue

I turn to the nexus issue, which is the first ground relied upon by the accused for the exclusion of the money transfer evidence.  It is submitted by Counsel for the accused that there is a threshold evidentiary problem which stands in the way of the prosecution establishing a nexus between the applications for transfer and the money deposits with the importation of the ecstasy.  It is submitted that before a jury could reach the point of considering whether the applications and the money deposited in Adelaide was used in connection with the acquisition and importation of the ecstasy, at the very least, two linking facts need to be established.  Those two facts are:

·First, that the money deposited in Adelaide was transferred to the account in the name of Sam Naruniec in the Polish bank;  and

·Secondly, that the money was removed from that account.

Counsel for the accused submitted that there is no evidence which establishes those two facts and as a result it is impossible to prove that the money was used in connection with the acquisition and importation of the ecstasy.  It follows, said Counsel for the accused, that the evidence is irrelevant and therefore inadmissible.

In support of this submission Mrs Shaw Q.C. relied upon the observations of the Court of Criminal Appeal in The Queen v Hissey (1973) 6 SASR 280 (at 288):

“If it is clear from depositions that there is no sufficient nexus between the facts sought to be established by certain evidence, and the fact which is in issue, then it cannot be said that the evidence is relevant to the issue; and it must be rejected as inadmissible.  But in many cases the nexus will consist of a fact to be inferred from the facts sought to be established by the impugned evidence.  In such a case, if it is open to a jury to infer the fact constituting the nexus, as the only inference reasonably possible from the facts to be proved by the impugned evidence, then that evidence is admissible”.

To understand the role of the money transfer evidence, it is necessary to refer to other evidence relating to money transfers from Australia and the account with the Polish bank, which the prosecution proposes to present.

There is evidence that there were other transfer application forms and amounts of money each a little less than $10,000, lodged with banks in Adelaide and directed to the bank account at the Polish bank in the name of Sam Naruniec.     The evidence is that all these applications were in false names and using false addresses.  Each application was in the name of a male person.  Some of these applications took place in March 1998 and others in June, July and August 1998.   It is the prosecution case that the person involved in those money transfer transactions was Sam Naruniec.  It is alleged that for the month of April 1998 Sam Naruniec was in Europe.

I need to say I have trouble with the admissibility of the evidence relating to applications and deposits prior to April because the particulars of the offence allege that the offending occurred between 31 March 1998 and 5 November 1998. The case for the Crown is that the accused and Sam Naruniec were involved in a joint criminal enterprise. In the present hearing the admissibility of the pre-31 March deposits were not specifically addressed.  However, even if these deposits are not admissible, the evidence of the deposits after April would appear to be admissible as part of the Crown case. 

It is alleged that Sam Naruniec left Australia for Poland on 13 October 1998.  As I mentioned earlier, the evidence is that the parcel containing the stereo system and the ecstasy tablets arrived in Adelaide by post, addressed to Sam Naruniec at the accused’s address in late October. On 4 November, after the accused collected the parcel from the post office, the accused is alleged to have taken the parcel to her house premises.  At those premises it is alleged that she removed the bags of tablets contained in the speakers and placed them in bags.   

Mr Boylan, Counsel for the prosecution  submitted that inferences can be drawn that the money deposited was withdrawn from the Polish bank account and was used in connection with the purchase of the ecstasy.  He submitted that the nexus between the money deposited in Adelaide and the ecstasy imported into Australia is to be found by looking at the whole of the evidence to be presented by the prosecution.  He said in doing that, inferences can be drawn to overcome any absence of direct evidence with respect to the linking fact regarding the withdrawal of the money. Mr Boylan said it is wrong to look at the money transfer evidence in isolation.  He relied on a number of authorities and in particular the decision of R v Burns and Others (No 4) (1999-2000) 206 LSJS 99 to support this submission. It was Mr Boylan’s submission that when all of the evidence was taken into account the nexus is established.

As will be seen in a moment, I do not consider the approach taken by Counsel for the accused in focusing on the discrete evidence of the money transfers and challenging its admissibility on the basis that there is no nexus between the payments and the importation of the narcotics is a legitimate one.  However, at this point I am satisfied that there is evidence from various officers of the relevant Australian banks going to prove that a procedure was undertaken by each of the banks to transfer the deposits to the bank account with the Polish bank.  However, there is no direct evidence which proves that the money was withdrawn from the account with the Polish bank.

In my opinion the decision in Burns provides assistance in resolving this issue.  One of the issues in that case was the challenge to the admissibility of what was described as the money trail evidence.  The evidence was a series of monetary transactions in which moneys were transferred from Australia to various overseas destinations.  It was contended that there was no evidence to link the transactions to the importation of a shipment of cannabis which was the subject of the charge.

Whilst the issues in that decision were to a large extent different than arise in this case in my view the following observations by Olsson J provide guidance here (at 113):

“The short answer to those contentions is that which I have already given.  The prosecution is required to prove the existence and scope of the joint enterprise, of which it is said the primary offence charged is portion.  It must identify who were involved and in what manner.  To make sense, the specific alleged importation must be placed in its proper context.

Perhaps at the cost of doing so ad nauseam I repeat, the circumstantial evidentiary picture must be reviewed as a totality.  It is both unprofitable and an illegitimate exercise to seek to dismember the overall picture into fragments and then argue that each of them is of little relevance or weight, by reason of its non specific nature and that it also gives rise to undue prejudice.

True it is, for example, that there is no apparent evidence of any single, discrete payment for the import charged.  But that is not to the point.  Here the prosecution avers that the numerous persons involved in the various financial transactions were all intimately associated with one another as part of a team.  They planned to procure, package and import a large quantity of cannabis by using a highly specific modus operandi, involving multiple container shipments over time.  The evidence is aimed at showing who were involved, how the scheme was being put into effect, and how substantial sums of money were being remitted, mostly in non reportable amounts, over a relatively limited time frame and in a continuing fashion. (Emphasis Added).

Like in Burns, in my opinion it is an impermissible exercise to dismember part of the overall picture which the Crown seeks to present.  That is what Counsel for the accused urges me to do.  I am asked to focus on the money transfer evidence in isolation.  It is the Crown case that the accused was part of joint criminal enterprise with Sam Naruniec to import the narcotics.  Part of the Crown case to prove the accused was part of the joint enterprise is the evidence of deposits in Australian banks and transfers to the Polish banks.  However, the money transfer evidence is only part of the circumstantial evidence which the Crown intends to present to the jury for the purpose of proving that the accused was part of the joint enterprise and that she therefore had the requisite knowledge that the parcel contained narcotics.  Much of that other circumstantial evidence relates to the period shortly before the parcel arrived from overseas and what she did after it arrived.  It is unnecessary to specifically deal with that evidence for present purposes.  Accordingly, in my view, the fact that there is no evidence which enables a nexus to be established between the money deposited with the Australian banks and the acquisition of the narcotics does not render the money transfer evidence irrelevant and therefore inadmissible.  This is a case where the Crown is entitled to rely upon the totality of the circumstantial evidence for the purpose of proving that the accused was part of the joint criminal enterprise.

It was agreed by both Counsel for the Prosecution and Counsel for the accused that before the money transfer evidence could be used in their deliberations regarding the ultimate question of whether the accused was guilty or not guilty that they must be satisfied beyond reasonable doubt that it was the accused who was involved in the money transfer transaction.  Mr Edwardson, Counsel for the accused submitted that it was akin to an intermediate fact as that expression was used by Dawson J in Shepherd v the Queen (1990) 170 CLR 573 (at 579). I accept for the purpose of the voir dire proceedings that the fact that it was the accused who was involved in the money transfer transactions must be proved beyond reasonable doubt. In my view, to determine that question the jury are entitled to look at the totality of the circumstantial evidence accepted by them, which includes the money transfer evidence.

If the jury are satisfied beyond reasonable doubt, then they are entitled to take that fact into account together with other circumstantial evidence accepted by them for the purpose of reaching their verdict.

The Prosecution’s alternative submission on the admissibility of the money transfer evidence

I turn now to address the alternative submission made by Mr Boylan that the money transfer evidence is relevant and admissible even though a nexus has not been established between the deposited money and the importation of the ecstasy.  Mr Boylan submitted that the money transfer evidence was admissible as circumstantial evidence which could be included with other circumstantial evidence to prove the accused’s knowledge that the parcel which arrived in Australia contained ecstasy.  In other words a nexus between the money deposited with the Australian bank and the acquisition of the ecstasy does not need to be established for the evidence to be relevant. 

He submitted that all that the Crown needed to establish, for the purpose of the admissibility of the evidence, is that it is relevant to a fact in issue.  Mr Boylan submitted that the question whether the entire evidence, including the money transfer evidence, is sufficient to prove beyond reasonable doubt that it was the accused who was involved, is a matter for the jury.

I agree with Mr Boylan that the money transfer evidence  is circumstantial evidence probative of the issue of the accused’s state of knowledge.  As I mentioned earlier, Mr Boylan accepted that for the jury to be entitled to use it for the purpose of considering whether the accused knew there were narcotics in the parcel, then they would need to be satisfied beyond reasonable doubt that it was the accused who was involved in the money transfer transactions.  If the jury reached that point then that fact could be added to the other circumstantial evidence they accept for the purpose of considering the issue of the  accused’s knowledge.  This is the point I have attempted to make when considering the nexus issue.    Its relevance is not dependent on the nexus between the money deposited and the acquisition and importation of the ecstasy being established.  This alternative submission highlights the fallacy of focusing simply on one part of the circumstantial evidence.  Even if the money transfer evidence is not sufficient to prove that the deposited moneys reached the account in the Polish bank or was withdrawn from the account it is relevant in the way I have explained.  I now turn to consider the second ground for exclusion of the evidence.

The Admissibility of the Money Transfer Evidence and The Dziki Issue

The submissions by Counsel for the accused on this issue contains two propositions.  First that the Crown is required to call Ms Dziki as part of the Crown case.  It is said that such an obligation arises because the Crown is required to disprove any hypothesis consistent with innocence.  Secondly, that if it is accepted that the Crown is obliged to call Ms Dziki, then the effect of the “Dziki evidence” is that a jury could never be satisfied beyond reasonable doubt that it was the accused who was engaged in the money transfer transactions.  The latter submission requires me to evaluate the “Dziki evidence” in the form in which it now stands in the voir dire proceedings and if I am satisfied that a jury properly instructed could not be satisfied beyond reasonable doubt that the person involved in the money transfer transactions was the accused then the money transfer evidence is not admissible.

The second limb to this submission has to be seen against the background of the concession made by Mr Boylan, which I referred to earlier, that before a jury could include the money transfer evidence as part of the circumstantial evidence for the purpose of considering the ultimate question, they would need to be satisfied beyond reasonable doubt that the accused was the person involved in the money transfer transactions in April 1998.

To understand these submissions I need to spend a little time dealing with the factual circumstances relevant to Ms Dziki. 

Ms Dziki came to the attention of the Australian Federal Police, as a result of some telephone intercepts made in November 1998.  The target of the intercepts was a person by the name of George Pallaras who was suspected of being involved in the purchase of substantial quantities of cannabis.  The Federal Police intercepted a telephone call from Ms Dziki to George Pallaras, in which she indicated that she had been a business partner of Sam Naruniec.  A meeting was arranged between Mr Pallaras and Ms Dziki. Mr Pallaras asked Ms Dziki if she would arrange for Sam Naruniec to telephone him.  Shortly after that call a further telephone intercept was made  on a telephone call from Sam Naruniec to George Pallaras.  Sam Naruniec indicated that he had been in partnership with Ms Dziki for about two years and that they were equal partners.  He indicated that Ms Dziki could be trusted and that Mr Pallaras could pay the entire proceeds of the transaction being undertaken with him to Ms Dziki.  The Federal Police suspected that the transaction involved the sale of cannabis. Sam Naruniec indicated that Ms Dziki would send his share of the proceeds to him in Poland.  Mr Naruniec also indicated that he had a personal relationship with Ms Dziki. 

On 4 December 1998, as a result of the telephone intercepts the Federal Police stopped a motor vehicle being driven by Ms Dziki, in Gilbert Street, Adelaide.  The police located bags in the motor vehicle containing approximately two kilograms of cannabis material.  The police suspected that Ms Dziki was intending to sell the cannabis to Mr George Pallaras.  At the time Ms Dziki was in the company of her mother Helena Dziki.

On that same day police attended at premises in Goodwood occupied by Helena Dziki and located cannabis plants growing using hydroponic equipment.  Further, on the same day, the police attended at the premises of Ursula Dziki at Morphett Vale and located further cannabis plants growing hydroponically.  On the following day, 5 December, the  Federal Police attended at premises at Seaton rented by a man with a similar name to Sam Naruniec and located cannabis plants growing hydroponically.   It came to their attention, through information provided by the landlord, that Ms Dziki was apparently associated with that property.

On 8 December, Ms Dziki, accompanied by her solicitor, Mr Wyatt, was interviewed by Federal Police Officer Clements, in company with Federal Police Officer Buckland. The police, for a short time, had suspicions that Ms Dziki had become involved in the importation of narcotics with Sam Naruniec in the period following the arrest of the accused.   By the time of the interview Officer Clements said, during his evidence in this hearing, that the Federal Police had concluded that Ms Dziki was not involved in the importation of the ecstasy, the subject of the present charge.  Officer Clements,  indicated that the purpose of the interview was to learn more about the activities of Sam Naruniec.  Both Officer Clements and Officer Buckland, who also gave evidence at the voir dire hearing, had formed the opinion that whilst Ms Dziki was involved with Sam Naruniec in the cultivation and sale of cannabis, she was not involved in the importation of narcotics with Mr Naruniec.

The Federal Police had conducted a search of Ms Dziki’s premises at Morphett Vale when they attended at the premises on 4 December 1998.  In the course of the search the police seized a number of items, including some documents.   Federal Police Officer Clements said in evidence that a search of Ms Dziki’s premises did not reveal anything which connected her with the ecstasy importation or the money transfer transactions in April 1998.  Police Officer Clements said that at the time, they were satisfied that the evidence pointed to the accused having been involved in the money transfer applications and the deposit of the money with the Adelaide banks.  Officer Clements said that because the police had not discovered anything  which linked Ms Dziki to the importation of the ecstasy they had eliminated her from their investigation into the importation.

Is the Dziki evidence relevant to the charge against the accused? 

The first question to be considered in dealing with this  ground is whether the Dziki evidence is relevant to any issue arising out of the charge against the accused.  If the evidence is relevant then the next step is to determine whether it affects the admissibility of the money transfer evidence.  It was submitted by Mr Boylan that Ms Dziki and her apparent involvement with Sam Naruniec is not relevant in the proceedings.

The prosecution commenced to provide information regarding Ms Dziki to the accused’s legal advisers about two days before the voir dire hearing commenced.  The supply of this information resulted from the receipt of a letter from Mr Edwardson, Junior Counsel for the accused, requesting  information be furnished regarding Ms Dziki.  The request arose because Ms Dziki had come to the attention of the accused’s legal advisers as a result of perusing material  relating to the sentencing of Ms Dziki for offending arising out of the cannabis seized on 4 December 1998.

It is the Defence submission that the “Dziki evidence”  is relevant to the accused’s case.  The accused has denied that she  was involved in the money transfer transactions in April 1998. It was submitted by Counsel for the accused that on the evidence available, Ms Dziki presents, at the very least, as a reasonable possibility that she was the person involved in those money transfer transactions.  The evidence indicates  that Ms Dziki was in Australia in the month of April 1998.  It is submitted by  Counsel  that the evidence suggests that she was involved in a personal relationship with Sam Naruniec at the time.  Further, said Counsel, intercepts of the telephone call between Sam Naruniec and George Pallaras establishes that Ms Dziki was trusted by Sam Naruniec.  It is submitted that the cannabis growing venture involving Ms Dziki and Sam Naruniec is the likely  source of the money which was deposited in the Adelaide banks at the time the transfer applications were lodged.  I pause here to mention, that the prosecution accepts that the cannabis growing venture was the likely source of all funds the subject of the transfer applications to Sam Naruniec’s account with the Polish Bank.   Counsel for the accused further submitted that there is no evidence to indicate that the accused had access to large amounts of cash in April 1998.  Mrs Shaw QC submitted that all of this evidence is relevant to the identity of the person involved in the money transfer transactions in April 1998 and points to the likelihood that the person engaged in the money transactions was Ms Dziki.

Mr Boylan referred to a whole body of circumstantial evidence which he said pointed to the accused being the person who was involved in the money transfer transaction.  For present purposes it is unnecessary to deal specifically with that evidence.  He submitted that in the light of that evidence, the Dziki evidence is simply not relevant.  I do not agree.  The accused has denied that she was engaged in those money transfer transactions. The “Dziki evidence” is relevant to the question of whether it was the accused who was involved in the money transfer transactions. In my opinion the “Dziki evidence” is relevant in two ways:  First, as evidence which may be used to undermine the prosecution case and secondly as evidence to support the accused’s case.

Does the Dziki evidence cause the money transfer evidence to be inadmissible?

Having reached the conclusion that the “Dziki evidence” is relevant,  the next question to address is whether it presents as a bar to the admissibility of the money transfer evidence.

The initial question on this issue is whether the Crown is obliged to call Ms Dziki?

As a result of Mr Edwardson’s request for material associated with Ms Dziki, the prosecution obtained a written Statement from her on 4 June 2002.  It is brief in form.  In her Statement she acknowledges having known Sam Naruniec for nine years.  She denies having sent any money to Sam Naruniec.  She denies that she was aware of Sam Naruniec being involved in any illegal substance other than marijuana.  She said that Sam Naruniec never asked her to become involved with the drug, ecstasy.

The Crown has indicated that it does not intend to call Ms Dziki unless during the course of its case the accused makes her an issue and the Crown then considers it is appropriate to call her.  Towards the end of his submissions in Reply, Mr Edwardson, indicated that the accused intended to make Ms Dziki an issue in the trial.  It was the submission of Mr Edwardson  that because the Crown is required to exclude any hypothesis consistent with innocence, it is therefore obliged to call her.  It was further submitted by Counsel for the accused that if the Crown only called Ms Dziki in response to the accused making her an issue in the Trial, then the Crown would be impermissibly splitting its case.

In dealing with the first of these submissions the starting point is the proposition, that it is  for the Crown prosecutor to determine which witnesses will be called by the prosecution.  This principle is clearly expressed by the High Court in Richardson v The Queen (1974) 131 CLR 116 (at 119):

“Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution.  He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced.  He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused.  In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused.  It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution.  But to say this is not to give the prosecutor’s decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable.  In the context the word “discretion” signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.”

In Whitehorn v The Queen (1982-83) 152 CLR 657 Dean J affirmed the principles laid down in Richardson when he said (at 663-664):

“Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown.  That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction.  Prosecuting counsel in a criminal trial represents the State.  The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.  The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial.  Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction.  On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial.  As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v Clewer).  If there be exceptions to that general proposition, they do not presently occur to me.

As I mentioned, it was submitted on behalf of the accused that the Crown was obliged to call Ms Dziki because it has an obligation to exclude any reasonable hypothesis consistent with innocence.    That proposition faces difficulties at the threshold, apart from the question whether there is any obligation on the part of the Crown.  In the first place, the evidence of Ms Dziki does not provide any such hypothesis.  Her statement denies being involved with any transfer of money or any involvement with ecstasy.  Furthermore, Counsel for the accused, has acknowledged that the theory put forward regarding Ms Dziki is only relevant to the question of the identity of the person engaged in the money transfer transactions.  It is not suggested that she was involved in any joint enterprise to import drugs.  At one point Counsel for the accused floated a theory suggesting that the accused could be a “patsy” for Ms Dziki and Sam Naruniec.  However, by the end of the submissions this theory was not pursued and her possible role was confined to the money transfer transactions.  Further, the accused does not suggest that the Crown case cannot succeed if it fails to prove that the accused was the person engaged in the money transactions.  In other words, on the evidence before me, the “Dziki evidence” does not of itself provide a hypothesis consistent with innocence.

Even if that were not the case, the principle that it is for the Crown Prosecutor to determine what witnesses will be called by the prosecution provides a complete answer to this issue.  Of course as was stated in Richardson, in discharging that responsibility the prosecutor is required to ensure that the Crown case is presented with fairness to the accused. As Deane J said (at 663-664) in Whitehorn, if a prosecutor departs from standards of fairness then that may lead to the conclusion that the accused may not have received a fair trial.  However, what is clear is that whatever is the position it is not for the Judge to direct a prosecutor to call a particular witness (The Queen v Apostilides (1984) 154 CLR 563 AT 575). The failure of the prosecution to call a witness which leads to an accused person not receiving a fair trial will be likely to end in any conviction being quashed on appeal (Apostilides at 575).

With respect to the second submission I do not agree that if the Crown called Ms Dziki as a result of her becoming an issue in the Trial that it would be impermissibly splitting its case.  In The Queen v Chin (1985) 157 CLR 671 Gibbs CJ and Wilson J (at 676) expressed the principle regarding the Crown splitting its case in the following terms:

“The general principle is that the prosecution must present its case completely before the accused is called upon for his defence.  Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen.  The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant:  Reg. v. Levy and Tait (9)) and the need to give it could have been foreseen it will, generally speaking, be rejected.”

(See also: Killick v R (1981) 147 CLR 565)

The Crown would call Ms Dziki during the course of presenting its case.  In those circumstances there can be no valid suggestion that the Crown is splitting its case.

For the reasons I have set out I am of the opinion that the Crown is not obliged to call Ms Dziki as a witness on the basis submitted by Counsel for the accused.  Accordingly, the second ground relied upon for the exclusion of the money transfer evidence fails at the threshold.

Although I have reached that conclusion I consider it appropriate to deal with the second limb of this submission.  That limb is that if the Crown was obliged to call Ms Dziki, it could never be excluded as a reasonable possibility that it was Ms Dziki who was involved in the money transfer transaction and therefore the evidence is not admissible.

Even if the Crown was obliged to call Ms Dziki I do not accept the submission that the money transfer evidence would be inadmissible on the grounds submitted by Counsel for the accused.  I agree with Mr Boylan that I am being asked by the accused to undertake a role which is the province of the jury, namely to evaluate the evidence.  In other words, in determining the admissibility of the money transfer evidence I was being asked to evaluate that evidence to be presented by the Crown, along with the Dziki evidence for the purpose of determining whether the Dziki evidence  would  stand in the way of a jury being satisfied beyond reasonable doubt that the identity of the person involved in the money transfer transactions was the accused. In my opinion such an exercise would usurp the role of the jury. 

The decision in The Queen v Duke (1979) 22 SASR 46 reinforces the submission made by Mr Boylan. Upon a trial of rape, the prosecution sought to tender some blue fibres and some black fibres. The prosecution also sought to tender scientific evidence, linking the blue fibres to the alleged victim’s dress and the black fibres with a black mat in the accused’s motor vehicle. The purpose of adducing the evidence was to link the alleged victim with the accused’s car.

King CJ (at 47) said with regard to admissibility of evidence:

“The general principle is that the prosecution is entitled to have placed before the jury all evidence which is legally admissible unless there exists one of the recognised grounds for the exclusion of the evidence in the exercise of the Judge’s discretion”.

This statement of principle was followed up (at pages 48 & 49) with the following observations which are apposite to the situation here:-

“The learned Judge gave every consideration to the objection made by counsel at the trial and to the request for him to exercise his discretion to exclude the evidence.  He heard the evidence objected to on the voir dire and even allowed counsel for the applicant to present contrary scientific evidence in an effort to weaken the force of the prosecution’s evidence.  I do not think that he should have heard the defence evidence on the voir dire, but even after hearing it, the learned Judge was unable to find any reason for excluding the impugned evidence”.  (Emphasis added).

In other words, the Chief Justice was affirming the position that the evaluation of the evidence was for the jury and not the Judge and that it was not part of the Judge’s function in determining whether evidence sought to be led by the Crown is admissible.

I accept Mr Boylan’s submission that if I conclude that the money transfer evidence is relevant then it is admissible, subject to exclusion by the exercise of any of the discretions.  I have earlier stated that the money transfer evidence is probative with respect to an issue in the Trial and therefore relevant.  It follows, in my opinion, that it is admissible.

Is the money transfer evidence more prejudicial than probative?

I turn to the third ground which the accused relies on to exclude the evidence.  It is the submission by Counsel for the accused that the prejudicial effect of the money transfer evidence outweighs its probative value.  The nature of the discretion which a Judge has to exclude evidence in the exercise of this discretion was described by King CJ in Duke (at 47-48) in the following terms:

“The prejudice there referred to must, of course, be a prejudice additional to or distinct from the detriment to the accused’s interests involved in the probative force of the evidence.  The prejudicial tendency must outweigh the probative value, as Cross on Evidence puts it in the Australian edition (1970) at p. 31, in the sense that the jury may attach undue weight to it or use it for inadmissible purposes.  It was said in this case that the evidence was of such little weight that it was too dangerous to allow it to go to the jury.  Generally speaking the fact that the weight to be attached to a piece of evidence is slight does not render its introduction to the jury dangerous.  It must be assumed that the jury will give the piece of evidence the weight that it deserves.  The danger arises only if there is something in the nature of the evidence or the manner of its presentation which would render it gravely prejudicial in the sense referred to above.  Where does the suggested prejudice lie?  There is nothing in the intrinsic nature of the evidence which could give rise to prejudice.”

I am uncertain whether Mrs Shaw QC submitted that in evaluating the probative value of the evidence it is necessary to take into account the “Dziki evidence” as a competing hypothesis to the hypothesis arising from the money transfer evidence.  If that was her submission then I do not accept it.  In my view the task is simply to consider the impugned evidence and determine if its probative value is outweighed by its prejudicial effect.  The only prejudicial effect the evidence appears to have arises from its probative value.  There is no prejudicial effect of the evidence over and above that in the sense explained in Duke .  Accordingly, I refuse to exercise this discretion to exclude it.

General Unfairness Discretion

I come now to the fourth and final ground relied upon for the exclusion of the evidence, namely, that I exercise the general unfairness discretion to exclude it.

Initially the accused sought the exclusion of the money transfer evidence by the exercise of the public policy discretion and/or the general unfairness discretion.  However, towards the end of the voir dire proceedings Mr Edwardson, indicated that the accused was no longer relying upon the exercise of the public policy discretion.  As a result the accused seeks the exclusion of the money transfer evidence  only on the exercise of what is known as the general unfairness discretion (R v Lobban (2000) 77 SASR 24 at 39).

Before I come to consider in detail the submissions made on behalf of the accused there are some further factual matters to which I need to refer.

I mentioned earlier that Ms Dziki and the evidence regarding her relationship with Sam Naruniec only arose in these proceedings when Mr Edwardson, Junior Counsel for the accused, wrote to the Director of Public Prosecutions seeking information regarding her.

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 Ms 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.

Officer Clements said that the interest of the Federal Police with respect to Ms Dziki earlier than 8 December was confined to the possibility that Mr Naruniec might have needed someone to take over as a result of the accused being charged.  However, he said that the Federal Police had concluded that her association with Sam Naruniec was confined to the cannabis venture after they had searched Ms Dziki’s premises on 4 December 1998.  He said the police had found nothing that associated her with the money transfer transactions or the ecstasy.

Federal Police Officer Buckland, who was also involved in the investigation, gave similar evidence.  She said the police believed that the circumstantial evidence pointed to the accused as the person involved in the money transfer transactions in April.  Officer Buckland said that on the evidence before them, the police concluded that Ms Dziki was not involved in the money transfer transactions.  She said the police found no evidence to indicate Ms Dziki’s involvement in the importation of the ecstasy.  Officer Buckland said that apart from an examination of a number of pages of a bank statement of Ms Dziki located on her premises no further investigation of her bank account was undertaken.  The Police Officer said that most of the material seized by the police were from Ms Dziki’s premises at Morphett Vale was returned to her on 8 December, at the time she was interviewed by the Federal Police.

I conclude that both Officer Clements and Officer Buckland were honest witnesses.  I accept the evidence of Officer Clements that he did not convey any of the material relating to Ms Dziki to the Director of Public Prosecutions because it did not occur to him that it was relevant to the prosecution of the accused.  Both Officer Clements and Officer Buckland were aware of their duty to provide all information relevant to a charge against an accused, whether the information was inculpatory or exculpatory.  It did not occur to Officer Clements that the material relating to Ms Dziki had relevance to the question of the identity of the person involved in the money transfer transactions in April of 1998.  It was his view that there was circumstantial evidence which pointed to the accused being that person.  Officer Clements said he formed the opinion that evidence pointed to the accused being involved in the illegal importation of the narcotics.  It was because of the view taken by the Federal Police regarding the accused and Ms Dziki that no reference was made to Ms Dziki in any of the witness statements passed on to the Director of Public Prosecutions.

Having dealt with the further factual material I want to return briefly to the public policy discretion.  I mentioned a short time ago that I understood Mr Edwardson to indicate in his submissions in Reply that the accused did not pursue her application to exclude the money transfer evidence by the exercise of the public policy discretion.  It is not in dispute that the Federal Police had not disclosed anything concerning Ms Dziki to the Director of Public Prosecutions or the accused.  In my opinion Mr Edwardson was correct in not pursuing this limb of the accused’s submission.  However, in case I have misunderstood the concession made by Mr Edwardson I feel I should express my views on the public policy discretion.

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. 

In my view this is not a case for the exercise of the public policy discretion for two reasons.  For the discretion to be enlivened the impugned evidence needs to have been obtained by unlawful or improper conduct on the part of the law enforcement authorities (Lobban at 51). Here, the money transfer evidence was not unlawfully or improperly obtained. Secondly, that, in any event, there is no evidence that the police have acted unlawfully or improperly.

Turning then to the accused’s submission that the money transfer evidence should be excluded by the exercise of the  general unfairness discretion.  A discretion reposes in a Court to exclude evidence which is admissible if in admitting the evidence an accused would not receive a fair trial.  In Lobban it was described as the general unfairness discretion and was stated by Martin J in the following terms (at 51):

“A discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair:

·The purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted;

·The operation of this discretion is not dependent upon the conduct of law enforcement authorities;

·In principle, this discretion applies to any evidence, but in those areas where special bodies of law exist with respect to the admissibility and discretionary exclusion of particular types of evidence, this discretion may be subsumed by or overlap with well established principles”.

The accused relies upon the effects of the non-disclosure of Ms Dziki by the Federal Police to found her application to exclude the money transfer evidence by the exercise of the general unfairness discretion. 

In November and December 1998 the Federal Police had in their possession material relating to Ms Dziki and her association with Sam Naruniec.  Included in that material was:

·the transcript/summary of the two telephone intercepts of conversations between George Palaras and Ms Dziki and Sam Naruniec respectively on 26 November 1998;

·the material seized from Ms Dziki’s residence on 4 December 1998;

·evidence relating to the cannabis crops at various locations at which Ms Dziki had or may have had a connection;

·a tape recording of the interview by the Federal Police with her on 8 December 1998;

·two facsimile communications in Polish left with the Police by Ms Dziki on 8 December.

I will sometimes refer to the material which was in the possession of the Federal Police as the “Dziki material”.

The accused initially relied upon the following factors in her application for the exercise of the general unfairness discretion to exclude the money transfer evidence:

·First, that some of the Dziki material once in the possession of the Federal Police can no longer be located;

·Secondly, that the police failed to undertake further avenues of investigation regarding Ms Dziki which were available at the time.  In particular Counsel for the accused referred to the obtaining of telephone records and bank records.  Furthermore Counsel for the accused submitted that the police should have undertaken finger print comparisons and handwriting comparisons of Ms Dziki at the time;

·Thirdly, that as a result of the passage of time any further investigative trails have gone “cold”.  Included as part of this submission is that  by failing to inform the accused, the police have denied the accused the opportunity of making further investigations on her own behalf or requiring the police to undertake further investigations;

·Fourthly, that the “Dziki evidence” will cause the Trial to be conducted on a different basis than the first two trials which may result in the accused being exposed to unfair criticism, if she gives evidence, when it is compared to her evidence in the previous trials.

I mentioned that the accused initially relied upon all of these grounds.  However, at a further hearing following the completion of the initial voir dire hearing, Mr Edwardson, requested that the Crown investigate whether the telephone records and bank records were still available.  This arose because I  indicated to Mr Edwardson that I was concerned that there had not been any attempt to ascertain whether these records were available.  In answer to subpoenas, Singtel Optus and the Commonwealth Bank of Australia produced records.  Following receipt of copies of the subpoenaed material by the accused her complaint regarding these two sources of material was not pursued.

Was there a duty to disclose?

Each of these complaints by the accused are premised on the basis that the prosecution was under a duty to disclose the Dziki material.  The Director of Public Prosecutions has denied that a duty existed in the circumstances of this case.  It is therefore necessary to consider this question.

Mr Boylan accepted that the duty of disclosure by a prosecuting authority applies equally to a law enforcement agency investigating an offence as it does to a prosecution authority such as the Director of Public Prosecutions.  However he submitted that there was no duty to disclose in these circumstances because the Federal Police had concluded that Ms Dziki had no relevance to the charge of importation of the ecstasy.  To support this submission Mr Boylan relied upon the following observations of the Court of Criminal

Appeal in In Re Van Beelen (1974) 9 SASR 163 (at 243):

“Under the long accepted Australian and English legal methods, the first phase of criminal process is a police inquiry into the circumstances of an alleged crime.  This stage of investigation is, speaking generally, in the hands of the police, who are the organized body upon whom is cast the duty to inquire.  The functions of the police are (inter alia) to detect criminality, and to gather relevant material in order to see whether it points to responsibility on the part of any specific person.  In pursuing their inquiries, there is, in our opinion, nothing which debars the police from adopting, at and from an appropriate stage, a process of selectivity; from eliminating, from time to time, persons hitherto suspected of the crime; or from gradually concentrating their investigations on a particular suspect until the moment arrives when he is lawfully arrested and becomes the accused.  It seems to us in no way to run counter to our system of criminal justice that there should be discarded, in the course of police investigations, materials which hinder, or, at all events, do not simplify, the task of the police in proceeding with their inquiries, or which, in the judgment of the investigating officers, are useless or unnecessary for the purposes of those inquiries or of any legal processes which may eventually follow.  In this respect our criminal process is fundamentally accusatorial and may be contrasted with the European continental systems, where the investigation of a crime is generally conducted with the participation of the suspect, and as part of the inquisitorial judicial process on which ultimately criminal proceedings will be based”.

It is accepted that a prosecuting authority is required to disclose information or material which is inculpatory or exculpatory.  However, Mr Boylan’s submission is that any obligation to disclose, in the case of the police, depends upon the perception that the particular investigating officer takes of the information or material.  In other words, it is a subjective exercise. 

There is very little authority on this subject.  The Court of Criminal Appeal in The Queen v K (1991) 161 LSJS 135 considered the obligation to disclose in the context of information which may reflect on the credibility of a prosecution witness.  In discussing this obligation, King CJ (at 140) made the following observations :

“It was contended that the trial was unfair because the prosecution did not disclose to the defence certain information in the possession of investigating offices which could have been made the subject of cross-examination of Peter Belehris and was material to his credibility.  Statements were tendered on the appeal by consent which indicated that two investigating police officers learned in March or April 1989 that a tractor allegedly belonging to Peter Belehris was found at a marijuana crop site in New South Wales in 1981 and that a police officer formed a suspicion that Peter Belehris may have been involved in the production of the crop.  There was insufficient evidence to charge Peter Belehris and no charge was ever laid against him.  It was agreed between counsel that this information was not communicated to the law officers who were conducting the prosecution.  It was therefore not communicated to the defence. 

There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware.  R. v. Paraskava (1983) Volume 76 Criminal Appeal Reports 162.  This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses.  There must be limits, however, to the type of information which must be disclosed.  It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness.  The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.”

It would seem from those comments that the obligation to disclose in those circumstances depends upon the determination of what is material, and that such a determination is an objective one.  In other words, materiality is determined by the test of “….. reasonable persons conducting the prosecution …..”.  It is not suggested that the obligation to disclose is dependent on the subjective assessment of an investigating officer as to whether the information in his hands is material.

The obligation to disclose was raised by the Court of Appeal in England in the decision of The Queen v Maguire (1992) 1 QB 936 when considering whether the duty to disclose applied to a forensic scientist who was an adviser to the prosecuting authority.  In the course of considering whether the obligation extended to the scientist, the Court also identified the nature of material which the prosecution were obliged to disclose.  Stuart-Smith LJ (at 958) said :

“We are of the opinion that a forensic scientist who is an adviser to the prosecuting authority is under a duty to disclose material of which he knows and which may have ‘some bearing on the offence charged and the surrounding circumstances of the case.’  The disclosure will be to the authority which retains him and which must in turn (subject to sensitivity) disclose the information to the defence.  We hold that there is such a duty because we can see no cause to distinguish between members of the prosecuting authority and those advising it in the capacity of a forensic scientist.  Such a distinction could involve difficult and contested inquiries as to where knowledge stopped but, most importantly, would be entirely counter to the desirability of ameliorating the disparity of scientific resources as between the Crown and the subject.  Accordingly we hold that there can be a material irregularity in the course of trial when a forensic scientist advising the prosecution has not disclosed material of the type to which we have referred.” (Emphasis Added).

In Maguire the class of material required to be disclosed is expressed in wide terms.  The Court did not indicate the test to determine what material “ … may have some bearing on the offence charged and the surrounding circumstances of the case.”  If it was left to the individual forensic scientist in a case to determine whether material should be disclosed then it is likely that different minds will form different views.  It seems to me that the only way to avoid the idiosyncratic views of individuals is to adopt some form of objective test.

The problem of the nature of the information to be disclosed was one of the problems the Court grappled with in The Queen v K.  King CJ said the obligation to disclose must extend to information which reflects materially upon the credit of prosecution witnesses.  That, of course, begs the question of what information is material.  The Court answered the question by stating that the determiner of what is material is “ … reasonable persons conducting the prosecution …”.  In other words an objective test not a subjective one.  In order that there should be some parameter placed upon what would be “material” the Court described the nature of the information as being “ … as sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witnesses”.

I mentioned earlier that the obligation to disclose applies equally to law enforcement agencies and to the prosecuting authority.  The logical extension of that obligation is that the obligation also applies to an adviser to the prosecuting authority.  Maguire supports that view.  It seems to me illogical, if the obligation extends so widely, that the obligation would depend on the subjective assessment of the person who was in possession of the information or material.  The integrity of the obligation demands that an objective test should be applied to determine whether the obligation has arisen.

If Van Beelen is authority for the proposition that the obligation arises only on the subjective view of a police officer investigating the offence, then it would seem to be in conflict with the decision of the Court of Criminal Appeal in The Queen v K.  Whilst The Queen v K was confined to the obligation arising where the material affects the credibility of a prosecution witness, the reasoning of the Court must, in logic, extend to any information or material bearing on the prosecution of an accused.  If it is in conflict, then I think I should follow the later decision of The Queen v K.

In my opinion, the obligation to disclose must, at the very least, arise where information or other material is relevant or material to one of the issues in the case.  Whether the obligation extends as widely to that laid down in Maguire is not necessary to consider for the purpose of this decision. 

At the time the Dziki material and evidence came into the hands of the Federal Police they were aware that a female using largely false information applied to transfer money from Australian banks in April 1998.  They were aware through the telephone intercepts of the possibility that Ms Dziki was involved in an illegal drug venture, namely cannabis, with Sam Naruniec.  The police had formed the view that the money sent to Poland was sourced from the proceeds of the illegal drug venture in Adelaide.  They also received information through the telephone intercepts that Sam Naruniec trusted Ms Dziki to receive the proceeds of the sale of the cannabis from George Pallaras and to send Naruniec’s share to him in Poland.  The police also were aware, through the telephone intercepts, that Sam Naruniec had not only a business relationship with Ms Dziki but also a personal one.  They also had in their possession some documents which Ms Dziki handed to the police on 8 December 1998 which contained details of Sam Naruniec’s bank account at the Polish bank.  The police also had information that Ms Dziki was in Australia in 1998.

The police had not discovered any information regarding the narcotics importation from the search of Ms Dziki’s premises on 4 December 1998.  However, they did not undertake any further investigations regarding her bank accounts or telephone accounts.  They had interviewed Ms Dziki, who denied she was involved with any narcotics importation with Sam Naruniec.

In my view an objective assessment of the information and material in the possession of the Federal Police by the end of December 1998, leads to the conclusion that there was an obligation to disclose the Dziki material and information.  There was sufficient material in the hands of the Federal Police to indicate the possibility that Ms Dziki may have been involved in the money transfer transactions.  It follows that the Federal Police had an obligation to disclose the Dziki material and information and they omitted to do so.

It was also contended by Counsel for the accused that Section 104(1)(iv) of the Summary Procedure Act 1921 (as amended) placed an obligation on the prosecution to produce the Dziki material for the purpose of the preliminary examination in this matter.   Section 104 (1) provides:-

“104      (1)   Where a charge of an indictable offence is to proceed to a preliminary examination, the prosecutor must at least 14 days before the date appointed for the defendant’s appearance to answer the charge –

(a)file in the Court in accordance with the rules

(i)statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant;

(ii)copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant (other than documents that, in the opinion of the prosecutor, are only of peripheral relevance to the subject matter of the charge);

(iii)a document describing any other evidentiary material (including documents of peripheral relevance that have not been filed in the Court) on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance that the material is alleged to have; and

(iv)any other material relevant to the charge that is available to the prosecution.”

Section 104 is part of Division 2 of the Summary Procedure Act which provides for the conduct of preliminary examinations with respect to a charge laid against an accused.  This section and other provisions of Division 2 were considered by the Court of Criminal Appeal in Goldsmith v Newman and The State of South Australia (1992-93) 59 SASR 404. The court held that obligations to file material pursuant to sub-paragraph (iv) is confined to material which is admissible (per King CJ at 408). With respect to the scope of Section 104 (1)(a)(iv) King CJ had this to say (at 409):

“I think that the primary purpose and the scope of subpara (iv) appears from a comparison of its language with that of the preceding paragraphs.  They each refer to material upon which the prosecution relies as tending to establish guilt.  That notion is absent from subpara (iv).  The intention must therefore be to require the filing and tendering of relevant material upon which the prosecution does not rely.  This, as it seems to me, is no more than a statutory recognition of the well-recognised responsibility of the prosecution to place before the court all relevant and admissible material available to it irrespective of whether it assists the prosecution case:  Richardson v The Queen (1974) 131 CLR 116 at 119; R v Harry; Ex parte Eastway (1985) 39 SASR 203 at 209-212; R v Basha (1989) 39 A Crim R 337”.

If the Dziki material is admissible then, in my opinion, there was an obligation on the prosecution to file it as it is “material relevant to the charge”.  The term “prosecution” in sub-paragraph (iv), in my view, includes the police (R. v Mohi 2000 SASC 384 (para 43)).    No submissions were made with respect to the issue of whether any of the Dziki material is admissible.  On the face of it some of it may be admissible, some may not.  I am not prepared to consider the question without the benefit of submissions.  Accordingly, I reach no conclusion on whether the prosecution had a duty to file any of the Dziki material under section 104 of the Summary Procedure Act.  

In any event it does not matter as I have concluded that there was a common law duty to disclose.  I should add that such an obligation to disclose is a different obligation than that which arises by Section 104.  The information or material required to be disclosed by the common law duty is not circumscribed by the question of admissibility. 

Consideration of the Grounds for the Exclusion Pursuant to the General Unfairness Discretion.

Having concluded that there was an obligation on the part of the prosecution to disclose the Dziki material I now turn to consider each of the grounds relied upon by the accused in seeking the exclusion of the money transfer evidence by the exercise of the general unfairness discretion.

The first is that there is material which came into the hands of the Federal Police which can no longer be located.  That material is:

·the audio tape of the interview with Ms Dziki by the Federal Police on 8 February 1998;

·the documents seized by the police from Ms Dziki’s residence on 4 February 1998.

The interview with Ms Dziki was recorded on audio tape.  The tape cannot now be located.  Police Officer Clements said the interview was conducted in the hope that the police could learn more about Sam Naruniec.  He said that by that time they were satisfied that Ms Dziki was not involved in the importation of the ecstasy.  I mentioned earlier that Ms Dziki was accompanied at the meeting by her solicitor, Mr Robert Wyatt.  He took brief notes during the meeting.  He gave evidence in the voir dire hearing.  Mr Wyatt said that during the interview Ms Dziki told the police that she never sent any money to Sam Naruniec.  He said she also told the police that Sam Naruniec never mentioned the subject of ecstasy to her.  Mr Wyatt’s notes also disclose that she provided some personal information regarding Sam Naruniec and her relationship with him.  Mr Wyatt recorded that the interview continued for twenty six minutes.

At the interview on 8 December the police returned to Ms Dziki twelve of fourteen items seized by the Federal Police from Ms Dziki’s premises on 4 December 1998.  Whether these items were documents or some other material cannot be ascertained from the police records.  Of the remaining two items, one would appear to be some pages of Ms Dziki’s bank statements and the other a document described by Ms Dziki to the Police as her “dreams”.  This latter document contains some calculations which Ms Dziki told the police were relevant to her cannabis activities.  Both these documents were supplied to the accused shortly before the commencement of the voir dire hearing.

In my opinion the absence of the material I have identified does not prevent the accused from obtaining a fair trial.  The notes of Mr Wyatt are sufficient to indicate, albeit in brief form, the topics discussed at the interview.  There is nothing to suggest from the notes of Mr Wyatt that anything said in the interview is likely to provide assistance to the accused in her case. 

There is a complete absence of any record providing details of the material seized from Ms Dziki’s premises on 4 December and returned to her on 8 December.  There appears to have been a Property Seizure Record recording of items seized.  This was not produced.  A Property Receipt was produced recording twelve of fourteen items returned to Ms Dziki on December 1998.  However, those items were not described in the Receipt. The Federal Police have said they did not discover anything at Ms Dziki’s premises touching on the importation of ecstasy.  At that point the police were looking for evidence which might connect her to narcotic importations by Sam Naruniec in addition to evidence relevant to the cannabis cultivation. 

In the absence of any information indicating that the material returned to Ms Dziki had any relevance to the money transfer evidence, there is no basis for concluding that there is evidence which has been lost which would lead to the accused being unable to obtain a fair trial by the admission of the money transfer evidence. It is regrettable that there is an absence of any record identifying the material seized.  In the ordinary scheme of things it would be expected that such a record would have maintained a record.  The evidence from the Police Officers indicates that the material was not relevant to the importation charge.  However I acknowledge that such evidence needs to be seen against the background that the Police had reached the conclusion that it was the accused and not Ms Dziki who was involved in the narcotic importation.  Even so, the evidence of the Police cannot be entirely discounted, but its weight is diminished by that factor.  Finally, I need to say that it would not accord with principle that the money transfer evidence should be excluded as a punitive measure for the Police failing to maintain a record of the material. 

The second ground upon which the accused relied was that the police failed to undertake further avenues of investigation which were available at the time.   Ms Dziki’s bank records and her telephone records are now available to the accused so this complaint is no longer relevant.  I should also add that at a further hearing in the matter, it was suggested by Mr Edwardson that the telephone records contain material which are of some assistance to the accused.

As part of the second ground for the exercise of the discretion the accused submitted that the police should have obtained handwriting specimens from Ms Dziki to enable the specimens to be compared with the handwriting on the money transfer applications.  Further, that the police should have obtained finger print impressions from Ms Dziki to compare with the finger prints located on some the money transfer applications.

It cannot be doubted that in some circumstances, the failure of the police to fully investigate the circumstances of an alleged crime can lead to the position where an accused is unable to obtain a fair trial.  This was the situation in Boyce v Nunn (1997) 138 FLR 475 where the police failed to properly follow up enquiries with a person who was said to have witnessed the assault by the accused and who may have assisted with regard to the accused’s assertion that he had acted in self defence. To exacerbate the problem the circumstances relating to the accused’s bail conditions had prevented the accused from personally making enquiries. By the time of the trial the potential witness could not be located. As a result it was held that the accused could not obtain a fair trial and accordingly the accused was granted a stay of the prosecution.

In the course of the investigation in relation to the accused’s involvement in the importation, a comparison was made of the accused’s finger prints with the finger prints identified on some of the money transfer application forms.  It was concluded that the accused’s finger prints did not match those on the forms.  The accused also voluntarily provided the police with hand writing specimens for the purpose of having those specimens compared with the signatures on the forms.  A comparison was made between the two sets of handwriting by a forensic document examiner who concluded it was not possible to eliminate or identify the accused as the person who signed the transfer application forms.

If the police had directed their mind to the possibility that Ms Dziki was involved in the money transfer transactions then one avenue of investigation was a finger print comparison.  However, this avenue of investigation does not appear to be lost.   The South Australian Police are likely to hold Ms Dziki’s finger prints as a result of the charges laid against her for the cannabis production.  There has been no finger prints comparison undertaken to the present time.

If the police had turned their mind to the possibility of Ms Dziki being involved in the money transfer transactions then another avenue of investigation would be the comparison of handwriting.  This would require the co-operation of Ms Dziki.  There would seem to be no reason why her co-operation could not be sought now.

In determining this issue it is necessary to make reference to the observations by Callinan J in Penney v The Queen (1998) 155 ALR 605 (at 609):

“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 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”.

Whilst those observations were made in the context of the High Court considering whether the verdict was unsafe and unsatisfactory they are apposite to the position here.

Those observations confirm that the common law does not recognise that an accused is entitled to a complete and unexceptional investigation of an alleged crime before the accused can obtain a fair trial.  In my opinion, the fact that there has been no finger prints or handwriting comparison of Ms Dziki does not mean that the accused cannot obtain a fair trial if the money transfer evidence is presented to the jury.  In any event the accused is still in a position to request the police to undertake a finger print comparison.  The accused can also request the Federal Police to seek handwriting specimens from Ms Dziki for comparison with the handwriting on the money transfer applications.  With these options available to the accused it seems to me that with respect to these two areas of investigation the accused is in the same position as she would have been back in 1998 if the Dziki material had been disclosed.

The next basis upon which the accused sought the exclusion of the money transfer evidence is that, as a result of the passage of three and a half years since the police became aware of the Dziki evidence, the investigative trails have become “cold”.  The accused has not identified  any “trail” which has been lost or become “cold” due to the passage of time.  Apart from the missing material, which I adverted to earlier in these reasons, the accused has not indicated any other line of enquiry which is no longer available due to the passage of time.  In my opinion in the absence of it being demonstrated that the passage of time has caused the loss of evidentiary material or that a possible line of enquiry regarding some relevant evidence is no longer available, then the accused has not reached the threshold point to support this ground.  If the accused could demonstrate that some loss has occurred, then it would be necessary to determine whether that loss would lead to the conclusion that the accused could not obtain a fair trial.  However, as I said, this point has not been reached.

Finally, the accused submits that if the money transfer evidence is admitted she cannot obtain a fair trial because of the basis upon which the first two trials proceeded.  It was submitted that because the Federal police had not disclosed the existence of Ms Dziki, both trials were conducted without any reference to her.  In both trials, counsel for the prosecution invited the jury to reason that if it was not the accused who was involved in the money transfers, then it must have been a stranger.  Furthermore, in the previous trials it had been suggested to the jury that the accused’s relationship with Sam Naruniec was much closer than she was prepared to admit.

It was submitted by Counsel for the accused that the evidence given by the accused was made in a context where the accused had no knowledge of the Dziki factor.  However, in this Trial the evidence of the accused, if she decides to give it, will be given in a context where the Dziki factor is present. Mr Edwardson submitted that as a result of this the accused, if she gives evidence in the trial, could be exposed to criticism by the prosecution, for some of the answers she gave in the previous trials. In other words there may have been some answers to questions which may have been different if the Dziki factor had been known to her. 

The submission was expressed in general terms.  However, that is understandable because it is difficult to be more specific until a problem arises.  Of course, the perceived problem may never arise.  It all depends on the manner in which this Trial is conducted by the prosecution.  The fact that the problem may never arise provides the answer to the accused’s submissions.  Any problems of unfairness to the accused can only be dealt with if the occasion arises.  If any unfairness to the accused arises during the course of the trial as a result of the manner in which the previous trials were conducted then it may possibly be resolved by appropriate rulings being made or directions to the jury.  This was the point highlighted by Brennan J in Jago v District Court (NSW) (1989) 168 CLR 23 (at 47):

“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”.

I have now dealt with each of the grounds upon which the accused relies for the exclusion of the money transfer evidence by the exercise of the general unfairness discretion.  In my opinion none of those grounds have been made out.  I therefore refuse the application to exclude the money transfer evidence in the exercise of the general unfairness discretion.

Application for Stay of Proceedings.

The final application of the accused is for a stay of the prosecution on the grounds that the continuation of the prosecution is an abuse of the Courts process.  The accused basically relies on two grounds.  First, that the accused cannot obtain a fair trial because of the non-disclosure of the Dziki material and what has flowed from the non-disclosure.  This issue of unfairness is similar to that raised by the accused when dealing with the general unfairness discretion.  The second ground is that, viewed against the background of non-disclosure and the manner in which the prosecution conducted its case in the first two trials, it would be oppressive to put the accused on trial for a third time. 

The General Principles

Before I turn to those submissions I need to identify the relevant principles a court is required to consider in dealing with an application for a permanent stay of proceedings.

The first principle to recognise is that the power to order a stay is discretionary and generally speaking the power should be exercised sparingly and only in exceptional circumstances.  In Jago Mason CJ explained the use of the discretionary power in the following terms (at 31):-

“Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice.  In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise.  And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed”.

In the same case (at 76) Gaudron J said:-

“The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise.  The power is, in essence a power to refuse to exercise a jurisdiction.  It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person making the jurisdiction to have it exercised … Thus, the power is one that is readily seen as exerciseable (whether in civil or criminal proceedings) only in exceptional cases or, as was laid down in Attorney General (NSW) v Watson, sparingly, and with the utmost caution”.

Similar views were expressed in Williams v Spautz (1991-1992) 174 CLR 509 (per Mason CJ, Dawson, Toohey and McHugh JJ at 529):-

“It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it.  The onus is a heavy one, to use the words of Scarman L.J. in Goldsmith v Sperrings Ltd. and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances:

In an earlier passage in the joint judgment in Williams it was said (at 519):

“It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution.  It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it.”

The next relevant principle is that although the question of unfairness to an accused may be an important consideration ultimately the focus of the discretion is upon the question of whether the continuation of the proceedings is inconsistent with the purposes of the criminal justice system.  In Jago (at 30) Mason CJ indicated that “… fairness to the accused is not the sole criteria when a court decides whether a criminal trial should proceed”.  On the same page, the Chief Justice adopted the rationale of the exercise of the power expressed by Richardson J in Maevao v Department of Labour (1980) 1 NZ LR 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 … 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.”

In Jago Brennan J expressed the principle in these terms (47-48):

“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.  Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him.  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”.

I now turn to consider the grounds for the stay.

The Unfairness Ground

In considering the general unfairness discretion, I considered each ground relied upon by the accused and gave reasons for my decision in rejecting each of them.  The same reasons for rejecting each of the grounds apply equally when considering the submission whether unfairness to the accused, in the sense of not being able to obtain a fair trial, should be taken into account in considering the accused’s application for a stay. 

However, there is one particular aspect of the accused’s submission on unfairness within the stay application which I feel needs to be specifically addressed.  Among the grounds which the accused relies upon in claiming that she cannot obtain a fair trial is the loss of evidence which it was submitted is relevant to undermining proof of the prosecution case and/or supporting the accused’s case.  I detailed the loss of evidentiary material earlier in these Reasons.  Furthermore, it was submitted that the delay in investigating the Dziki factor has meant that the investigation trail has gone “cold”.  I also dealt specifically with these submissions earlier.

In support of those submissions in the context of the stay application, Counsel for the accused, cited a number of decisions including Holmden v Bitar (1987) 47 SASR 509 and Duncombe-Wall v The Police (1998) 197 LSJS 398. Both these cases involved the destruction of evidence by the prosecuting authority. The evidence destroyed in Holmden prevented the accused from attempting to discharge the burden of proof relating to the contents of a can of food which had been imported into Australia, in circumstances where an averment provision of an Act placed the burden of proof on the accused.  The court also found that there was no justification for the destruction of the evidence.  In those circumstances a permanent stay was granted. 

In the case of Duncombe-Wall  a recording of two telephone calls on a tape was destroyed by the tape being used again for other purposes.  The conversations recorded on the tape were  important matters on the question of the credibility of witnesses.  The police had been placed on notice that the defendant required the tape recording to be preserved as he asserted that it was he who made the two telephone calls recorded on the tape and he made the calls for his own protection as he was fearful of his son.  In those circumstances the Court ordered a stay of the prosecution case.

In my opinion neither of these decisions provide assistance in this case.  In the first instance it is trite but necessary to say that both decisions were based upon their own particular facts.  Furthermore, what was destroyed was in each case essential evidence central to the accused’s case.  Whilst in Duncombe-Wall the recordings were relevant to credit only, the prosecution essentially came down to the issue of credit between the accused on one hand and the accused’s wife and his son on the other.  In Duncombe-Wall the police destroyed the voice recordings on the tape after they had been placed on notice a number of times that the accused wished to have the tape recording preserved.     In Holmden, the Court also held that there was no justification for the destruction of the evidence before the case was heard.   

For the reasons I gave in dealing with the general unfairness discretion, I am of the opinion that the non-disclosure of the Dziki material and what flowed from that does not prevent the accused from obtaining a fair trial.  Accordingly, unfairness to the accused is not a factor to be taken into account in determining the accused’s application for a stay.  

The Oppression Ground

The second ground of the accused’s application for a stay is that it is oppressive to place the accused on trial again.  Before I proceed to deal with the submissions which remain extant on this topic, I wish to deal with a submission which in the end was not pursued.  At one point, Mrs Shaw QC submitted that the Federal Police had deliberately concealed exculpatory material from the accused.  She submitted that the conduct went beyond the conduct of the police in the decision of Boyce v Nunn (supra), which she described as “wilful abstinence”.  I referred in some detail to this decision earlier in these Reasons.

However, during the course of his Reply, I understood Mr Edwardson to have indicated that such a submission was not being pursued.  In other words, it was not being suggested that the police had intentionally failed to reveal the Dziki material in a “mala fides” sense. 

In case I have misunderstood Mr Edwardson on this point, it does not matter. As I earlier indicated 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 have deliberately excluded exculpatory evidence.

I now turn to those submissions which remain extant. It was submitted on behalf of the accused that it is oppressive conduct on the part of the prosecution to place the accused on trial again because the presence of the Dziki evidence will require the prosecution to pitch its case on an entirely different basis than in the first two trials.  It was submitted by Counsel for the accused that in the previous trials, with respect to the identity of the person involved in the money transfer transactions, it was the prosecution case that it must have been the accused or a stranger.  Further, that it was part of the prosecution case in the earlier trials that the relationship between the accused and Sam Naruniec was much closer than she was prepared to admit.  Counsel submitted that in the previous trials these two factors were put to the jury, first, in support of the contention that it was the accused who was involved in the money transfer transactions and secondly, as items of circumstantial evidence relevant to the accused’s knowledge.

A perusal of the transcript with respect to each trial confirms that during the course of addressing the jury it was submitted by the Crown Prosecutor that with respect to the identity of the person who was involved in the money transfers, that it must have been the accused or a stranger.  The respective prosecutors in the trials also made the point that the relationship was much closer than the accused was prepared to admit.

It was submitted by Counsel for the accused that neither of those factors could now be presented to the jury in light of the Dziki evidence.  Counsel said that as a result, the prosecution in this Trial is required to present a fresh case against the accused.  In other words, it was said that the prosecution will be required  “to shift the goal posts” in this Trial and this has been brought about by the non-disclosure by the Federal Police of the Dziki material when it first came to their attention.

In my view, it is still open on the evidence for the Crown to assert that there was an on-going relationship between the accused and Sam Naruniec.  Any evidence with respect to a relationship between Ms Dziki and Sam Naruniec cannot alter that fact.  The on-going relationship between the accused and Sam Naruniec whatever is its nature and strength, is a piece of circumstantial evidence which is relevant to the Crown case.  The Dziki evidence, if it comes before the jury, may be a further factor to take into account but it does not alter the Crown’s assertion that there was a relationship of some nature between the accused and Sam Naruniec.  Further, if the circumstances present themselves, the Crown will be at liberty to make a similar submission that the relationship was much closer than the accused was prepared to admit. 

Clearly the prosecution can no longer submit to the jury, because of the presence of the Dziki evidence, that the person engaged in the money transfer transactions was either the accused or a stranger.  However, in my opinion the fact that it cannot do so does not mean that it is presenting a new case.  The prosecution case in the earlier trials was that it was the accused who was involved in the money transactions.  That is still the prosecution case.  In the previous trials, it seems to me that the purpose of the “accused or stranger” submission was used by the Crown to reinforce its case that it must have been the accused.

I should finally add that the circumstances which pertain here are vastly different than the circumstances which led the Court in the decision of The Queen v H (1995) A Crim R 402 to order a stay of the proceedings which was one of the decisions relied upon by Counsel for the accused in making this submission.

The final submission under the oppression limb of the accused’s application for a stay is that to require the accused to stand trial for a third time when the previous two trials had been conducted against a background of non-disclosure of relevant material by the prosecuting authorities is in itself oppressive conduct.  Mr Edwardson submitted that the fact that the non-disclosure was not deliberate is irrelevant.  He submitted that the central feature of the submission is simply that there was non-disclosure of relevant material.  Mr Edwardson further submitted that the non-disclosure caused a miscarriage of justice in each of those trials.  I can accept that the trial process in each trial was flawed as a result of the non-disclosure of the Dziki material.  Whether it follows that there has been a miscarriage of justice in another matter.  It may be.  In any event, I do not find it necessary to reach that conclusion.  It seems to me that whether the non-disclosure has caused the trial process to be flawed or whether it has caused a miscarriage of justice does not affect the integrity of the submission.

Having made that acknowledgement that the trial process in each case was flawed, the next question to be determined is whether “ … the continuation of the prosecution is inconsistent with the recognised purposes of the administration of justice …”.  (Maevao at 482). Is it oppressive conduct on the part of the prosecution, bearing in mind the general principles I outlined earlier, to require her to stand trial again? It is regrettable that the Dziki material was not disclosed about the time that it came into the hands of the police. However, in my opinion, that fact coupled with the fact that the absence of the Dziki material at the previous two trials does not persuade me that the continuation of the prosecution is “….. inconsistent with the recognised purposes of the administration of justice …..”.  In my view the accused has not made out this ground.

I am not satisfied that the prosecution of the accused is an abuse of process.  The application for the stay of proceedings is refused.

There is one final matter that I need to raise.  The Federal Police did not produce any of the telephone intercepts of telephone conversations in which George Pallaras was one of the parties.  There are enormous numbers of them.  With respect to the telephone intercepts I referred to earlier in these Reasons, only a summary was produced.  The Prosecution are in a position now to provide  them.  I agreed with Mr Edwardson, during the hearing, that he was not required to listen to the intercepts at the time of the hearing.  I agreed that he could reserve the accused’s position with respect to them pending the outcome of the matters which had been raised during the hearing.  As I have refused the accused’s applications for exclusion of the money transfer evidence and the stay of proceedings I have no doubt that Mr Edwardson would wish to consider his position with regard to the intercepts.  It is for this reason that I grant liberty to the accused to apply if there is anything arising from the telephone intercepts which the accused wishes to raise.