R v Ulman (No 2) No. DCCRM-99-339

R v ULMAN (No. 2)

[2003] SADC 52
Judge Robertson
Criminal
Nature of the Application
1The 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 a 3,4-methylenedioxymethamphetamine, being not less than a commercial quantity.

The accused has made an application for a permanent stay of the prosecution on the grounds that the continuation of the prosecution is an abuse of process.
Brief Summation of the Crown Case

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 of 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 the tablets were sent by Sam Naruniec from Europe.
The Prosecution alleges that The Australian Federal Police (“AFP”) discovered the presence of the tablets upon the entry of the parcel into Australia and that on 29 October 1998 the AFP removed the tablets from the two speakers. It is alleged that the AFP substituted most of the tablets with tablets which did not contain a prohibited drug and replaced the parcel in the speaker box. It is not in dispute that on 3 November 1998 the Accused collected a parcel, containing the stereo system and tablets from the Flagstaff Hill Post Office. The Accused attended at the Post Office following receipt of a written memorandum 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 AFP attended the Accused’s premises and seized the tablets and the stereo system.
The Accused was interviewed by the AFP, in the presence of her legal adviser, on 11 November 1998. In that interview, the Accused said she did not know that the parcel contained illegal narcotics. She said that Sam Naruniec had told her that the parcel contained Viagra tablets and as a result that was her belief.
The Accused denies that she was engaged in a joint enterprise to import illegal narcotics. She asserts that her state of knowledge in November 1998 was that the parcel contained Viagra tablets.
Previous Two Trials
The Accused was charged with the offence on 11 November 1998 following the conclusion of her interview by the AFP. An Information was laid by the Commonwealth Director of Public Prosecutions (“DPP”) in the District Court in May 1999 charging her with the offence. 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 in the District Court and was found guilty on 20 March 2001. On 4 May 2001 she was sentenced to a term of imprisonment of twelve years with a non-parole period of eight years. On 29 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 been earlier placed in custody on 20 March 2001.
The Current Trial.
The Third Trial commenced on 6 June 2002 with a Voir Dire hearing for the exclusion from the trial of what has been described as “the money transfer evidence”. This evidence relates to four applications in writing for telegraphic transfers each for an amount of $9,800 and all were transacted in April 1998. At the same hearing, the Accused made an application for a permanent stay of the prosecution on the grounds that the continuation of the prosecution is an abuse of the Court’s process. There were two limbs to this application. The first being unfairness to the Accused, caused by the loss of evidentiary material relevant to the money transfer issue and the loss of the opportunity for the Accused to gather other evidence, due to the passage of time. Both of these matters arose as a result of the prosecution not disclosing the existence of a woman called Urszula Dziki (“Ms Dziki”) and her relationship with Sam Naruniec.
The second limb of the accused application for a stay was that it was oppressive to place the accused on trial again in view of the AFP’s failure to disclose Ms Dziki and the evidentiary material relevant to her when it was viewed against the background of the manner in which the prosecution presented its case in the first two trials.
The Voir Dire hearing and the application for a stay of prosecution proceeded for some time. At the conclusion, I reserved my decision. On 24 September 2002 I ruled against the Accused’s application for the exclusion of the money transfer evidence. Furthermore, I refused the Accused’s application for a permanent stay of the proceedings. I published written Reasons for my decision.
There was one matter remaining from the Voir Dire hearing and that related to an enormous number of telephone intercepts which had been made by the AFP. It was agreed that issues which may arise out of these telephone intercepts would not be dealt with during the Voir Dire hearing. The matter was adjourned to the middle of December 2002 for the purpose of considering the issue of the telephone intercepts and any other issues which may arise from my Rulings and the Reasons which I delivered.
Genesis of the Present Application for a Stay
During the adjourned period, it came to the attention of the DPP, who in turn advised those representing the Accused that there had been allegations of sexual impropriety made by Ms Dziki against Federal Agent Clements, who was the Case Officer involved in the investigation of the charge against the Accused. Further, through research undertaken by the Accused’s legal representatives, they learned of the name of one George Pallaras and other persons who they considered may have some involvement in the circumstances relevant to the prosecution. As a result of these two factors, subpoenas were issued by the solicitors for the Accused, directed to the Commissioner of the Australian Federal Police seeking a large amount of evidentiary material.
As a result of the issues of the subpoenas the days set aside in the middle of December for considering the telephone intercepts and other matters were taken up in dealing with the production of written material, and the issues of objections relating to the production of some documents and disclosure of some parts of other documents.
As a result of these developments, it was anticipated that further pre-trial issues would arise and that the Trial could not commence on the date which had been set for the Trial, namely 17 February 2003.
In early February the Accused lodged an Application for a Stay of the Prosecution. The time commencing on 17 February 2003, was set aside for the Trial was taken up with hearing the application for a stay. The Trial has been adjourned to commence on 7 April 2003.
Grounds for Seeking a Stay
I mentioned earlier that the Application for a Stay is based upon the ground that it would be an abuse of process for the current prosecution to continue. Mr Edwardson, Counsel for the Accused, during his submissions, stated that the application is founded upon an accumulation of factors. The following are the grounds upon which the Accused relies:
·Failure of the AFP and/or the DPP to make relevant disclosure concerning Ms Dziki or Mr George Pallaras prior to either of the earlier trials;
·Failure to make relevant disclosure concerning Mr Pallaras at the previous Voir Dire hearing and the application for a stay of proceedings;
·Deliberate and orchestrated attempts by the AFP to conceal relevant material;
·DPP deliberately failed to disclose the Dziki and the Pallaras material;
·The destruction or loss of the following relevant evidence:
(a)     A tape recording of the interview with Ms Dziki on 8 December 1998;
(b)    A large amount of documentation in English and Polish relating to overseas money transfers;
(c)     Federal Agent Clement’s diaries for 1998 and 1999;
(d) Undisclosed evidence seized by AFP on 4 December 1998 which possibly relates to the importation of narcotics.
·Untruthful evidence by Agent Clements at the previous Voir Dire hearing and in these proceedings;
·The presentation of the prosecution case in each of the earlier trials and the manner in which it was presented knowing that the “surrounding circumstances” to the alleged offending, namely the involvement of George Pallaras, Ms Dziki and a Ms Tina Kambouris had not been disclosed to the Accused.
·The failure or refusal of the prosecution (including the AFP) to properly investigate or assist the defence in obtaining the relevant evidence regarding the following:
(a)     handwriting samples from Ms Dziki;
(b)     translations of transcript of relevant telephone intercepts;
(c)    the possibility that Tina Kambouris may be responsible for the money transfers.
·Allowing the defence and the Court to determine the previous Voir Dire on a false premise namely;
(a)     That the DPP knew nothing about Ms Dziki;
(b)             That Agent Clements said and did nothing to inform the DPP about Ms Dziki because she had been excluded as being responsible for money transfers and that her criminal involvement was confined to cannabis distribution.
·If it is established that a sexual relationship occurred between Ms Dziki and Federal Agent Clements, then such improper behaviour has forever tainted Ms Dziki’s assertions that there has been proper disclosure.
It is said that the accumulation of those factors amounts to an abuse of process for the DPP to continue the prosecution of the accused.
The Issue of Non-Disclosure at the Earlier Voir Dire Hearing
The earlier Voir Dire hearing and application for a stay was held in June and July 2002 (“the Voir Dire hearing”). One of the issues which arose during the hearing was the failure of the AFP to disclose any information regarding Ms Dziki prior to the previous two trials. Ms Dziki had come to the attention of the AFP as a result of intercepts of telephone calls made in November 1998 between a person by the name of George Pallaras and Ms Dziki. Mr Pallaras was suspected by the AFP of being involved in the importation of illegal drugs on a large scale and also being involved in the distribution of illegal drugs in Australia. At the time of the telephone intercepts he was the subject of a AFP investigation as part of a very large AFP investigation entitled “Operation Cadillac”, Mr Pallaras had been under investigation for some considerable time prior to November 1998. It was as a result of the investigation of Mr Pallaras that Sam Naruniec came to the attention of the AFP. By the time the telephone calls with Ms Dziki had been intercepted, the police had seized the ecstasy the subject of the charge here and had arrested the Accused.
In the first telephone intercept involving Ms Dziki, she indicated that she was 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 intercept was made of a telephone call from Poland by a person suspected to be Sam Naruniec to George Pallaras. In that telephone conversation, 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. In the telephone call, Sam Naruniec indicated that Ms Dziki would send his share of the proceeds to him in Poland. Mr Naruniec also stated that he had been involved in a personal relationship with Ms Dziki.
As a result of the intercepts, on 4 December 1998 the AFP stopped a motor vehicle being driven by Ms Dziki in Gilbert Street, Adelaide. The police located in the motor vehicle a bag containing approximately two kilograms of cannabis. The police suspected that Ms Dziki had intended to meet with Mr Pallaras for the purpose of selling the cannabis. Ms Dziki was arrested. At the time, Ms Dziki was in the company of her mother Helena Dziki.
Later in the day of 4 December 1998, the police attended the premises at Goodwood, occupied by Helena Dziki, and located cannabis plants being cultivated hydroponically. Police also attended at the premises of Ms Dziki at Morphett Vale and located further cannabis plants growing hydroponically.
On the following day, namely 5 December 1998, having received information from Ms Dziki, the AFP attended premises at Clarence Park, Seaton and Goodwood and located cannabis plants growing hydroponically at each address. The AFP suspected that Sam Naruniec was involved in all of these cannabis crops. The AFP also received information from the landlord of the Seaton premises that Ms Dziki may have been associated with the Seaton premises.
Federal Agent Clements and Federal Agent Buckland were two of the police officers who had been engaged in Operation Cadillac and also became involved in the investigation into the importation of the ecstasy, the subject of the present charge. On 8 December 1998, Ms Dziki, accompanied by her solicitor, was interviewed by Agent Clements, in company with Agent Buckland. Both officers gave evidence at the Voir Dire hearing. They both said they suspected for a short time prior to 8 December that Ms Dziki was involved in the importation of the narcotics with Sam Naruniec. However, by the time of the interview, they no longer held that suspicion. They both believed that Ms Dziki’s involvement with Sam Naruniec was confined to the cultivation of cannabis. Agent Clements said that the purpose of the interview was to learn more about the activities of Sam Naruniec. The interview was recorded on audio tape. The audio tape of the interview cannot now be located. Agent Clements said that documents which had been seized from Ms Dziki’s premises on 4 December 1998 did not link her with the importation of the ecstasy and as a result they eliminated her from the investigation as to the importation. He said they were satisfied that the Accused was knowingly involved in the importation and that she was the person who had arranged for the money transfers during April of 1998.
The presence of Ms Dziki and the information supplied to the Accused’s advisers prior to and during the earlier Voir Dire had not been supplied to the Accused’s adviser before either of the earlier trials. It was as a result of Mr Edwardson’s letter of 4 June 2001 in which he raised the question of Ms Dziki, and the responses thereto that led to the “Dziki material” becoming an integral part and a major issue in the hearing.
The Duty to Disclose.
In my published Reasons after the Voir Dire hearing, I held that the “Dziki material” was relevant to the question of whether it was the Accused who had been involved in the money transfer transactions. I expressed the view that it was relevant, first as evidence which may be used to undermine the prosecution case and secondly as evidence to support the accused case.
Having held that the Dziki evidence was relevant, the next question which required determination was whether there was a duty to disclose the Dziki material to the Accused. The issue in the Voir Dire was whether the AFP was obliged to disclose the Dziki material to the Accused. There was no evidence that the AFP had conveyed to the DPP anything concerning what they had learned about Ms Dziki. Indeed, Agent Clements said in evidence during the Voir Dire that he did not draw the DPP’s attention to Ms Dziki because the AFP was satisfied that Ms Dziki was not involved in the importation of the narcotics and that circumstantial evidence pointed to the Accused being involved in the money transfers in April 1998.
At the Voir Dire Mr Boylan QC Counsel for the DPP accepted that the duty of disclosure by a prosecuting authority applies equally to a law enforcement agency investigating an offence. However, it was his submission that there was no duty to disclose in these circumstances because the AFP had reached the conclusion that Ms Dziki had no relevance to the charge of the importation of the ecstasy. I rejected the submission that the obligation to disclose was dependent on the subjective view of police officers investigating the offence. I concluded that to determine whether there was an obligation to disclose the test was an objective one. I followed the approach of King CJ in The Queen v K. (1991) 161 LSJS 135 and concluded that material should be disclosed if reasonable persons in the prosecuting authority (including the AFP) would conclude that the material in their possession was relevant to one of the issues in the case.
My reasoning and conclusions are contained in paragraphs 83 to 96 inclusive of my Reasons for Decision which were published on 24 September 2002. I set out hereunder paragraphs 91 to 96 of those published Reasons:-
91“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.
92 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.
93 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.
94 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.
95 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.
96 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.’
The Knowledge by the DPP of the Dziki Material

I mentioned a little earlier that at the Voir Dire hearing the evidence of Agent Clements was that the AFP had not drawn Ms Dziki to the attention of the DPP. This evidence was not true. As a result of the issue of the subpoenas by the solicitors for the Accused, in December 2002 documents were produced and tendered during the course of the present hearing, which demonstrate that the DPP was informed about Ms Dziki. It was unclear from the evidence when the DPP was first informed of the existence of Ms Dziki. However, a letter of 7 May 1999 from Officer Clements to the Director of Public Prosecutions refers to Ms Dziki as the “girlfriend” of Sam Naruniec. There is further correspondence in December 1999 from Mr Greg Fisher of the DPP to Agent Clements requesting that he obtain from the South Australian Police the brief relating to Ms Dziki’s prosecution arising out of her possession of the cannabis on 4 December 1998. A further document, in the form of a Memorandum, which appears to have been prepared by Officer Clements entitled “Summary of Details for DPP on Sam Naruniec”, provides details of the addresses where hydroponic cannabis crops were located, and that the AFP believed they were associated with Sam Naruniec. It also refers to the cannabis seized from Ms Dziki. The Memorandum informs the DPP that the total cannabis seized from the addresses was valued by the South Australian Police at about $1 million. The memorandum also contains the following comment:-
“It is suspected that the proceeds from the sale of this cannabis was to be sent to NARUNIEC and used to finance further imports of narcotics into Australia.
DZIKI has stated that the cannabis crops located during the searches were NARUNIEC’S’ and she and her mother were tending to them on his behalf”.
Whilst there is no date attached to this Memorandum it would seem that it was prepared some time in 1999.
As I said, from this material it is clear that the DPP were informed of Ms Dziki and her involvement with cannabis crops in which it was said that Sam Naruniec was also involved. Even more importantly, the DPP were informed of the AFP’s suspicion that the proceeds of the cannabis crops were suspected of being used to finance further imports of narcotics into Australia by Naruniec. Although it was not stated in the Memorandum, it was the AFP’s belief that the purchase of the ecstasy, the subject of this charge was also financed by cannabis crops in which Sam Naruniec was involved.
In applying the objective test that I referred to earlier, in my opinion the DPP also had a duty to disclose to the Accused the presence of Ms Dziki, her association with the cannabis crops and her association with Sam Naruniec.
In my opinion, the obligation on the DPP to disclose the Dziki material becomes even more compelling when viewed in the context of the information in the hands of the DPP regarding the AFP’s belief of the involvement of Mr George Pallaras with Sam Naruniec and the importation of the ecstasy. However, before I turn to deal with that issue, I desire to make some comments regarding the flawed basis upon which the Voir Dire hearing proceeded.
The False Premise in the Voir Dire Hearing
As I mentioned earlier, the evidence of Agent Clements was that information regarding Ms Dziki had not been conveyed to the DPP, prior to either of the Trials of the Accused. The Voir Dire proceeded on the premise that the only issue relating to disclosure, was whether the AFP had failed to disclose the Dziki material. As I have found, the DPP has been in possession of written communications regarding Ms Dziki, from the AFP, dating back to 1999. No explanation was offered by the DPP regarding its failure to correct the false premise upon which the Voir Dire proceeded. There is no evidence to suggest that the failure to correct the false premise was deliberate. However, in the absence of evidence, it is idle to speculate. I find it disquieting that the prosecuting authority has offered no explanation for allowing the earlier Voir Dire hearing to proceed on a false premise. In my opinion they were obliged to do so.
The Issue Regarding the Failure to Disclose the George Pallaras material
Earlier I said that Sam Naruniec first came to the attention of the AFP through the surveillance operations being undertaken by the AFP in Operation Cadillac. In other words, he came to the AFP’s attention in passing whilst George Pallaras was under investigation. The AFP had information that Mr Pallaras was to be the ultimate recipient of the ecstasy the subject of the present charge and that he was to sell it and was to receive half the proceeds.
In this hearing Federal Agent Ian Bridle gave evidence. He said that he first became involved in Operation Cadillac in late November 1998. He said that he swore an Affidavit on 11 January 1999, in support of an application on the part of the AFP for a Warrant to make telephone interceptions with respect to a number of a mobile phone used by George Pallaras. He said that the Affidavit contained the beliefs of the AFP at the time and the information which was in the AFP’s possession. The parts of the Affidavit which were not subject to my earlier ruling upholding a claim of public interest immunity was tendered. The copy affidavit had been produced by the AFP as a result of the subpoena issued by the solicitors for the Accused on 29 November 2002.
Set out hereunder are some relevant passages from that Affidavit:
“75.The applicant believes that the narcotics for which ULMAN-NARUNIEC was arrested were ultimately to be delivered to George PALLARAS for sale and that this importation of narcotics may be part of the one that was referred to in previous conversations by PALLARAS relating to narcotics arriving from Europe. ……
76.On 25 November 1998, AFP monitored a lawfully intercepted telephone call between a female who identified herself as ‘Urszula’ and George PALLARAS. ‘Urszula’ stated that she had been given George’s number by ‘Sam’ who had been her business partner and who was currently in Poland. ‘Urszula’ stated that she had taken over ‘Sam’s’ business for a while as he probably would not be returning to Australia for some time. ‘Urszula’ and PALLARAS agreed to meet the following day at the Olympian Gymnasium at 46 Gilbert Street, Adelaide, to discuss things that they could not talk about over the telephone. This meeting was to occur at 12 o’clock. ‘Urszula’ also agreed to have ‘Sam’ telephone PALLARAS from Poland prior to the meeting.
77.Approximately 20 minutes after this telephone conversation, AFP members monitored a lawfully intercepted telephone call to PALLARAS from a male person identified as ‘Sam’. ‘Sam’ advised PALLARAS that he had been contacted by ‘Urszula’ to ring him and that she was sharing with him, half and half, and that they had been involved in this enterprise for the past 2 years. ‘Sam’ advised PALLARAS to give his money to ‘Urszula’ as she could get it to him in Poland. ‘Sam’ advised that ‘Urszula’ is absolutely safe and that she would ring from telephone boxes, not from her own telephone. ‘Sam’ and PALLARAS then went on to discuss prices for an unidentified commodity which would be sent to PALLARAS from Poland by ‘Sam’. I believe that ‘Sam’ is NARUNIEC who is currently in Poland.
84.On Thursday 3 December 1998 a legally intercepted telephone call was monitored by AFP, between a female identified as ‘Urszula’ and PALLARAS from OPTUS mobile 0411444785. Urszula and PALLARAS discussed arrangements for the delivery of ‘something to him at 9.00 am the following morning and the price would be 33’. PALLARAS nominated the Olympian Gymnasium in Gilbert Street, Adelaide as the venue for this meeting. PALLARAS also stated to ‘Urszula’ to careful as ‘she might have eyes on her’.
85.On the morning of Friday 4 December 1998 members observed DZIKI depart her residential address of 9 Abbot Avenue, Morphet Vale, in vehicle VXT891. DZIKI was followed to Gilbert Street Adelaide where her vehicle was stopped by AFP members some distance from the nominated meeting spot with PALLARAS. The vehicle was immediately moved to Sturt Street where a search warrant issued under the provisions of section 3E of the Crimes Act 1914 in relation to that vehicle was executed. Approximately 5kg of compressed cannabis was located in the boot of the vehicle. South Australian Police were advised and attended to take possession of the narcotics and arrest DZIKI.
89.Urszula DZIKI was then conveyed to her residential address where a further search warrant was executed. A further 19 mature cannabis plants were located at this address being grown hydroponically, as well as a plastic garbage bag of loose cannabis leaf and a plastic shopping bag filled with cannabis flowering ‘heads’. DZIKI nominated a further 3 addresses where cannabis was being grown hydroponically. Search warrants were executed on these addresses over the subsequent two days and a further 90 cannabis plants were located and seized by Police. South Australian Police have advised that the value of these seizures is in excess of one million dollars.
90.Documents located at these subsequent premises indicated that the premises had been rented by NARUNIEC and due to there being minimal furnishings in the premises, it is believed that they were used solely for the growing of cannabis. Lawfully intercepted telephone calls between DZIKI and NARUNIEC in Poland have subsequently revealed that the cannabis and hydroponic equipment used belonged to NARUNIEC and that DZIKI was acting as his agent in Australia to service the hydroponic setups, to sell the narcotics and to forward funds to NARUNIEC in Poland.
91.Lawfully obtained interceptions of PALLARAS’ telephone reveal that he is in regular contacted with NARUNIEC in Poland. The applicant believes that the cannabis seized over recent weeks belonged to NARUNIEC and that PALLARAS was to sell these drugs utilising his established network of distributors. Profits made by PALLARAS through this venture could then be utilised to finance other narcotics enterprises. It is further believed that this has been an ongoing enterprise between NARUNIEC and PALLARAS.”
The AFP continued to be interested in Mr Pallaras. On 31 March 2000, Agent Bridle attended at the residential premises of Mr Pallaras and undertook a search of the premises. He also conducted a taped record of interview with Mr Pallaras on that day. In that record of interview, Mr Pallaras acknowledged that he knew Sam Naruniec. He denied that he had ever heard the name Dana Naruniec or met her. He denied he was involved in the importation of ecstasy. Agent Bridle said that one of the purposes of searching the house of Mr Pallaras and talking to him was to see if the AFP could obtain evidence about his involvement in the importation of the ecstasy. Prior to this day, the AFP had placed the house of Mr Pallaras under surveillance. The surveillance records indicated that a person likely to be Sam Naruniec had visited that house, prior to October 1998.
In December 1998 the DPP issued proceedings in the Supreme Court under the Proceeds of Crime Act 1987 (Cth) against property of the accused and Sam Naruniec. The application was supported by an affidavit sworn on 22 December 1998 by Julie Marie Dillon an Australian Federal Police Officer. The sworn affidavit and a number of earlier drafts of that affidavit were produced on subpoena by the AFP and were tendered in evidence. In the earlier drafts of the affidavit there were references to Mr Pallaras being involved in the importation of ecstasy and other drugs. It also referred to a mobile telephone service used by Pallaras being regularly in contact with a mobile telephone service registered in the name of Sam Naruniec. There was also reference in the earlier drafts to a male person driving a motor vehicle registered in the name of Sam Naruniec being at the premises of Mr Pallaras. The draft affidavits indicated that it was believed that the person was Sam Naruniec. In the final affidavit filed in support of the application and served on the Accused, any reference to George Pallaras had been removed.
Agent Lisa Buckland, who had been involved in the investigation of the charge against the Accused, in her evidence in this application said that she understood the affidavit of Julie Dillon was made in conjunction with the DPP. The DPP accepts that Mr Greg Fisher, an officer of the DPP, whom I mentioned earlier would have worked with Officer Dillon on the earlier drafts of the Affidavit. The DPP has also stated that at the time of the preparation of Agent Bridle’s Affidavit it was the practice of the DPP where an Affidavit was sworn in support of a telephone intercept warrant, that an officer of the DPP would read it, vet it if necessary and witness the deponent’s signature. It was not the practice of the DPP to retain a copy of such an Affidavit.
The evidence regarding Agent Bridle’s affidavit and the evidence regarding the drafting of Julie Dillon’s affidavit clearly indicates that not only did the AFP have information that George Pallaras and Sam Naruniec were involved in the importation of the ecstasy, the subject of this charge, but so was the DPP. It was the belief of the AFP that George Pallaras was involved with Sam Naruniec on a wider basis than this particular ecstasy importation. None of this information or material was disclosed to the Accused prior to either of the earlier Trials.
Was there a Duty to Disclose the Pallaras Material?
In considering any obligation to disclose the Pallaras material, which included telephone intercepts, surveillance logs, reports of AFP investigations and other written material, it is necessary to view it against the background of the Accused’s explanation for collecting the parcel from the Post Office and when at home, removing the tablets secreted in the speaker placing them in bags ready for delivery to a storage box held at a storage depot. In her Record of Interview with the AFP, the Accused said that Sam Naruniec had informed her that the tablets were Viagra. The effect of her story in the Record of Interview is that she had been duped by Sam Naruniec. She denied any knowledge that the tablets were Ecstasy. This also was the thrust of the evidence that she gave in her first Trial in June 2000 and the second Trial in March 2001.
Seen in this context, in my opinion, it is clear that the Pallaras material is relevant to issues in the prosecution. It is relevant first, as evidence which may be used to undermine the prosecution case and secondly, as evidence to support the Accused’s case. It should be noted that the prosecution case was that Sam Naruniec and the Accused were the sole participants of a joint criminal enterprise to import the ecstasy and sell it in Australia. It was not suggested by the prosecution in either trial that any other person was involved in the enterprise to import and sell the ecstasy.
Using the objective test which I referred to earlier, in my opinion, there was and remained an obligation on the AFP to disclose the Pallaras material to the accused. Reasonable persons involved in the investigation of the offence would, in my opinion, conclude that it was relevant to issues in the prosecution.
Furthermore, there was and remained an obligation on the part of the DPP to disclose the Pallaras material to the accused. Once again, using the objective test, reasonable persons conducting the prosecution would conclude that the material was relevant to an issue in the case.
Before leaving this topic, I wish to make reference to a letter from the Deputy Director of the DPP to the solicitors for the Accused dated 7 February 2003 which was admitted into evidence. One of the subjects discussed in that letter were the telephone intercepts made during the course of Operation Cadillac. The Deputy Director referred to the disclosure policy of what she described as “unused material”. She said that this policy is defined as -
“All information relevant to the charges against the defendant which has been gathered in the course of an investigation and which
(a)the prosecution does not intend to rely on as part of its case, and
(b)either runs counter to the prosecution case (that is to say, points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing her defence.”
Whilst there is no evidence that was the policy of the DPP in the years 1999, 2000 or 2001, it does accord with the view I have expressed earlier regarding the obligation to disclose both the Dziki material and the Pallaras material. If that disclosure policy was operative in those years, then the material should have been disclosed under that policy. In any event, it does not matter, because I have concluded that there was a obligation on the part of the DPP to disclose the Dziki material and the Pallaras material. The DPP should have been aware of its obligations and acted in accordance with those obligations.
Was there a Deliberate Concealment of the Dziki and Pallaras Material?
It is the case for the Accused that both the AFP and the DPP deliberately concealed the Dziki material and the Pallaras material. I now turn to consider that issue. In doing so, I need to consider the evidence of Agent Clements and some of the other witnesses.
In assessing Agent Clement’s evidence it needs to be stated at the outset that since the Voir Dire hearing and probably before that time that Agent Clements has suffered some mental health problems. Dr Ford, his treating psychiatrist gave evidence. He stated that Agent Clements was suffering from a Post Traumatic Stress Disorder and an Adjustment Disorder.
Dr Ford said that a Post Traumatic Stress Disorder will cause memory impairment although it is to some extent reversible with medication. He also indicated that Agent Clements’ mental health problems has impaired his concentration when giving his evidence. Agent Clements said in his evidence he had problems with his memory at this point in time. I accept that evidence.
Agent Clements’ evidence, at times, caused me some disquiet. That observation is made taking into account the difficulties arising from his mental health problems. At times I found his evidence unconvincing and unsatisfactory.
I also have some disquiet regarding some of his evidence at the earlier Voir Dire hearing. I propose now to refer to some of his evidence which has caused me concern.
During the earlier Voir Dire, Agent Clements gave evidence that he could find no record of the interview that he and Agent Buckland held with Ms Dziki in the presence of her lawyer, Robert Wyatt, being recorded on audiotape. Earlier in his evidence on that occasion he said that he did not know whether the interview was tape recorded. He was aware that Counsel for the Accused were querying whether the interview was recorded on audio tape. It was this evidence that came under challenge in this hearing in light of material that was produced on the subpoenas. I now need to refer to that evidence.
In 1998, the AFP operated a computer recording system for investigations called the “Promis Case Management System” (“Promis System”). Agent Saunders, the co-ordinator of Operations for South Australia, said in evidence that the Promis System, among other things, operated as a running sheet with regard to all activities undertaken and all contacts made by members involved in an investigation. The information recorded in the Promis System was on many occasions in the form of an entry entitled a “Case Note” or “Case Note Entry”. As a result of the subpoenas to the AFP, a Case Note Entry prepared by Agent Clements on 8 December 1998 was produced and tendered. This entry indicated that Ms Dziki was interviewed on 8 December and it stated that the interview was recorded on audiotape.

In his evidence in these proceedings, Agent Clements said that he could not remember whether he searched the Promis System to determine if there was any record relating to the interview of 8 December. The evidence I have referred to indicates that the storage of information on the Promis System would be the obvious source of information if an Agent was seeking to determine the circumstances of the meeting on 8 December 1998. If Agent Clements had done so, on the previous occasion, he would have discovered the Case Note Entry and ascertained that the interview was recorded on tape. Alternatively, if he did not seek to ascertain whether there was a Case Note Entry in the Promis System then he really did not have any basis for stating in his evidence in the Voir Dire that he could find no record of the interview being recorded. In the current hearing he could not offer a satisfactory explanation for his previous evidence as to whether the interview on 8 December 1998 was recorded on audio tape. In light of the Case Note Entry I find his evidence at the earlier Voir Dire hearing most unsatisfactory.
Another unsatisfactory piece of evidence at the earlier Voir Dire hearing was the claim of Agent Clements that he had searched for all possible material that might be relevant in relation to Ms Dziki and had supplied it to the DPP. This evidence was given on 6 June 2002 and was in response to Mr Edwardson’s letter of 4 June 2002 in which he requested that he be supplied with all relevant documents in the possession of the AFP relating to Ms Dziki. I mention these two dates, to point out that there was not a great deal of time between the request and the evidence given by Officer Clements. He later said in his evidence that everything that the DPP had on Ms Dziki had been supplied to the DPP.
It is quite apparent from the written material that has been supplied on subpoena and which has been admitted into evidence that the AFP held many more documents in relation to Ms Dziki than was provided to the DPP and in turn to the Accused’s legal advisers before and during the earlier Voir Dire hearing. Some of that documentary material is hard copy documents extracted from files held at the AFP and some of the documents now produced have been generated into hard copy form from the Promis System. Agent Clements, in his evidence in this hearing, could not provide a satisfactory explanation for the evidence he gave in the earlier Voir Dire hearing when it is now viewed against the production of the further written material. I understood from his evidence on the previous occasion that he had searched all known sources of documents relating to Ms Dziki and that there were no other documents than those produced. From what has now transpired, that evidence cannot be true.
Agent Clements also gave evidence on the last occasion that he had not passed on any information relating to Ms Dziki to the DPP prior to either Trial, because by 8 December 1998, the AFP had excluded Ms Dziki as a person who have been involved in the importation of the ecstasy. The evidence was given against the background that had pervaded the earlier Voir Dire hearing, that the AFP had not informed the DPP about Ms Dziki.
Mr Edwardson, in his address, suggested that this evidence was a lie created to provide an answer in response to the assumption that the AFP had failed to disclose the Dziki material to the DPP. I do not accept that submission. Agent Lisa Buckland, the other Agent substantially involved in the investigation, also gave evidence that the AFP had discounted Ms Dziki by 8 December 1998. I found Officer Buckland to be a truthful and reliable witness at the earlier Voir Dire hearing. I also found her to be a truthful and reliable witness in these proceedings. It is for that reason that I reject Mr Edwardson’s submission that Agent Clements was being untruthful on the earlier occasion. However, his evidence regarding the reason for not passing on the Dziki material to the DPP does appear to be a reconstruction brought about by the incorrect assumption. This evidence causes me concern because it was presented on the basis that he was relying upon his memory.
I have spent some time referring to some of the evidence given by Agent Clements at the earlier Voir Dire hearing, and his explanations for the evidence which has now proved to be false. These are serious matters which go to the very heart of the question regarding whether I can rely upon his evidence. There is a further matter which arose during the course of the hearing which also is relevant to that question. Agent Buckland, in her evidence, recounted an event which she said took place during the search of Ms Dziki’s home on 4 December 1998. Agent Buckland said that during the course of the search, she observed Agent Clements and Agent Bridle watching a pornographic video on the television set in the front lounge room of Ms Dziki’s premises. She said that there appeared to be more than one pornographic video but could not say how many. Both Agent Clements and Agent Bridle in evidence denied looking at any pornographic video when they attended at Ms Dziki’s house on 4 December 1998.
Ms Dziki, when she gave her evidence said that on 4 December 1998 she had about four or five pornographic videos which she had brought back from Poland. She said the videos were in the Polish language.
There was a further conflict in the evidence of Agent Buckland and Agent Clements on another topic. Ms Buckland said that during the time that she worked with Agent Clements, he had inappropriately suggested that they engage in sexual conduct. Agent Clements denied he had spoken to Agent Buckland in any such manner.
I found Agent Buckland to be an impressive and convincing witness. She responded directly to the questions put to her and in a frank manner. I thought she was a truthful and reliable witness. Indeed, both counsel for the DPP and counsel for the accused urged me to accept her as a truthful and reliable witness. In the circumstances, where her evidence conflicts with that of Agent Clements, I accept the evidence of Agent Buckland. I also prefer her evidence on the subject of the pornographic videos to that of Agent Bridle.
The matters of the pornographic videos and the inappropriate sexual suggestion directed to Agent Buckland, arose in relation to an issue of an allegation by Ms Dziki that she and Agent Clements had engaged in sexual activity some time in 1999. These allegations first arose when Agent Buckland in company with Mr Chris Smolicz of the DPP were obtaining a statement from Ms Dziki for use in these proceedings.
In the course of her evidence, Ms Dziki said that approximately two months after the search of her premises, which was on 4 December 1998, she engaged in a sexual relationship with Agent Clements. She said that she engaged in behaviour of a sexual nature with Agent Clements on about two or three occasions. For present purposes, I do not need to describe her evidence in detail.
In his evidence, Agent Clements said that after 8 December 1998, when he interviewed Ms Dziki, he spoke to her on the telephone on some occasions and spoke with her personally on some two or three occasions. He said the purpose of speaking with her was to obtain information regarding Sam Naruniec because the AFP wished to have him extradited to face the charge of importing the ecstasy. He said that when he did see Ms Dziki personally, he was not in the company of another Federal Agent. However, he said that he ensured that her mother was present at all times when he spoke to her. He said that contact by telephone or personally occurred during a period from 8 December 1998 through to early May 1999. Agent Clements denied any sexual conduct with Ms Dziki.
Mr Edwardson, Counsel for the accused submitted that I should find that a sexual relationship did occur between Ms Dziki and Agent Clements. He said that Agent Clements’ need to ensure that this was not discovered was a motive to be untruthful at the earlier Voir Dire hearing and a motive for him not to disclose the material relating to Ms Dziki in the hands of the AFP prior to either of the earlier trials.
In my opinion, it is unnecessary to determine whether the allegations by Ms Dziki are true or not. The credibility of Mr Clements arises mainly in the context of the issue regarding the failure to disclose to the accused’s legal representatives the Dziki and Pallaras material, before either of the earlier trials, was a deliberate decision on the part of the AFP. Apart from the Dziki sexual allegations, I have formed the opinion that Agent Clements’ is not a witness upon which I would rely on some matters. As a result it is unnecessary to resolve the conflict between the evidence of Ms Dziki and Agent Clements to reach a conclusion on his credibility.
Furthermore, whether the allegations are true or not would not affect the conclusion I have reached that the AFP did not deliberately conceal the material. I will come to that in a moment.
In concluding that I do not need to resolve the sexual conduct issue I am mindful that it was only a discrete part of the overall evidence given at the hearing. It is an extremely serious allegation against a Federal Agent. I consider that it would be most unfair to reach a decision on this question, on the limited evidence that was presented. I say “limited” because clearly if that was the only issue which needed to be determined in a hearing, I have no doubt that there would be substantially more evidence presented than was produced here. For example, Ms Dziki’s mother, Helena Dziki did not give evidence. Further, this was not a case where either of the two witnesses were legally represented. That in itself places both of them, in my opinion, at a disadvantage. Accordingly, as I said, I am not prepared to reach a decision on this issue and further, I am of the view that it is not necessary to resolve it for the purpose of this application.
I mentioned a moment ago that in my opinion, the AFP did not deliberately suppress the Dziki material or the Pallaras material. The evidence indicates that the AFP made the DPP aware of Ms Dziki and the role she played in the cannabis production. This is demonstrated by the correspondence between Agent Clements and Mr Fisher of the DPP in 1999. It is further demonstrated by the Memorandum entitled “Summary of Details for DPP” given to the DPP by Agent Clements in 1999. Furthermore, as I mentioned earlier, it is clear from the draft affidavits of Officer Dillon, which led to the final affidavit which was filed in the Supreme Court in support of the application under the Proceeds Of Crimes Act (1987) (Cth) and the affidavit of Agent Bridle sworn in January 1999 in support of a telephone intercept warrant application, that the information contained therein regarding Ms Dziki and George Pallaras were brought to the attention of the DPP. Whilst the AFP had not disclosed the material to the Accused it had been brought out in the open, in the sense that it had been conveyed to the DPP. This is not the conduct of an organization setting out to deliberately suppress the Dziki and the Pallaras material.
I now turn to the submission made on behalf of the accused that the DPP has acted mala fides in failing to disclose the Dziki material and the Pallaras material. In other words, it was asserted by Mr Edwardson, Counsel for the Accused, that the DPP had intentionally concealed the relevant material, knowing that it had an obligation to do so.
I earlier indicated that the DPP was in possession of information conveyed to it by the AFP of Ms Dziki’s involvement with the cannabis crops and the AFP’s suspicion that proceeds of the sale of the cannabis was to be sent to Sam Naruniec to finance further importation of narcotics into Australia. This had been conveyed by Agent Clements in his “Summary of Details for DPP” Memorandum. Correspondence in 1999 indicates that Mr Greg Fisher, the officer in the DPP who appears to have been handling the Accused’s prosecution, was in possession of information regarding Ms Dziki. It is a reasonable inference that the “Summary of Details for DPP” Memorandum would have crossed his desk. Further information regarding Ms Dziki and George Pallaras came to Mr Greg Fisher’s attention, through the drafting of the Julie Dillon affidavit in the Proceeds of Crime Act application. The information regarding Ms Dziki and Mr Pallaras through the affidavit of Agent Bridle also came to the attention of an officer of the DPP of January 1999 in support of an application for a Telephone Intercept Warrant.
Through the Dillon affidavit and the Bridle affidavit, the DPP received information of the association between George Pallaras and Sam Naruniec. The DPP, through those affidavits, became aware that the mobile telephone used by George Pallaras was in regular contact with a mobile telephone registered in the name of Sam Naruniec. Furthermore, the DPP was aware, through surveillance of the AFP, that it was likely that Sam Naruniec had visited the residence of George Pallaras. Furthermore, through the affidavit of Mr Bridle, an officer or officers of the DPP would have been made aware that telephone intercepts on Pallaras’ telephone revealed that he was in regular contact with Sam Naruniec in Poland. In addition, the DPP was made aware that the AFP believed the cannabis in which Sam Naruniec was involved was to be sold to Pallaras, that cannabis production had financed other narcotic enterprises and that there had been an on-going enterprise between Sam Naruniec and George Pallaras.
Both the draft affidavits of Julie Dillon and the affidavit of Agent Bridle made reference to the Accused’s involvement in the importation and her arrest. In the affidavit of Agent Bridle there is reference (para. 63) to the AFP’s suspicion that in a telephone conversation of 15 October 1998, which was made in a public phone box, that Sam Naruniec and George Pallaras were discussing plans to import narcotics. The affidavit further states (para. 67) that on 30 October 1998 a warrant was issued to enable telephone intercepts to be made of the telephone number of the Accused at her home address. It also refers to telephone intercepts being made of conversations between Sam Naruniec and the Accused during the period after that date until she was found by the AFP in possession of the package removed from the stereo unit on 4 November 1998.
In face of all this material which was in the possession of the DPP prior to either the first trial or the second trial, and the fact that the DPP was aware through the Record of Interview that the Accused claimed that she had been duped by Sam Naruniec, it is surprising that no evidence was called by the DPP to explain why disclosure of the material was not made. A prosecuting authority should have recognised when the material came to their attention that it should have been passed on to the accused’s legal advisers. As I said earlier, it is material that could assist the accused by, in the first place undermining the prosecution’s case and in the second place supporting the accused’s own case.
There may be any number of explanations for the failure to disclose the information. Mr Edwardson submitted that as a result of the DPP failing to call Mr Fisher or any other officer of the DPP that I should infer that this was a conscious decision on the part of the DPP not to disclose the Dziki and Pallaras material knowing there was an obligation to disclose it as being relevant to an issue or issues likely to arise in the Trial of the accused. In other words, it was his submission that the DPP acted dishonestly. I am not prepared to draw that inference. It is a serious charge to be laid against a prosecuting authority. There would need to be cogent evidence present to support any such finding. There is no such cogent evidence which supports such a finding.
Role of the DPP in the Disclosure of the Dziki and Pallaras Material.
I have earlier found that there was an obligation on both the AFP and the DPP to disclose to the Accused’s legal advisers the Dziki material and the Pallaras material, prior to the first trial. Because both the Dziki material and the Pallaras material had been brought to the attention of the DPP, there is an expectation in the ordinary course that the obligation would fall upon the DPP, not only to make enquiries to ensure that they had received all of the relevant material regarding both Ms Dziki and George Pallaras from the AFP but also to provide that material to the accused’s advisers. As I said earlier, I have heard no evidence from the DPP providing a reason or reasons why there was no disclosure. In my view, it would be expected of a prosecuting authority that such material would be conveyed to the Accused. Furthermore, it would be expected that a prosecuting authority would be aware of its obligations to disclose, which obligations are part of its overall duty of a prosecuting authority to act with fairness to an accused person to ensure that an accused receives a fair trial. (Whitehorn v The Queen (1982-83) 152 CLR 657 per Deane J at 663).
Possible Involvement of Tina Kambouris
Before I leave the issue of non-disclosure, I need to refer to the possible involvement of a person called Tina Kambouris in the ecstasy importation. It was submitted by Mr Edwardson that the telephone intercepts made by the AFP indicated that Ms Kambouris was also involved with Mr Pallaras in narcotic importations.
A substantial number of the telephone intercepts made by the AFP on the telephone number assigned to George Pallaras, were conversations between George Pallaras and Tina Kambouris. These telephone conversations took place in September, October, November and December of 1998 and perhaps earlier than September. At times references are made in the conversation to a person by the name of “Sam”. In a telephone intercept in September 1998 George said that he needed to sit down with “Sam” to sort a few things out. On 4 November 1998, being the day that the AFP located the parcel, at the home of the Accused, and arrested the Accused, a conversation took place between Tina Kambouris and George Pallaras in which Mr Pallaras said that something bad had happened that day. The telephone conversation was held later in the day of the arrest of the Accused. There were also telephone intercepts of conversations between George Pallaras and Tina Kambouris regarding the meeting of George Pallaras with Urszula Dziki in early December 1998.
In addition to these telephone intercepts the AFP had information that the electoral address for Sam Naruniec was at 7 Zanoni Court, Surrey Downs. That address would seem to be close to the home address of Tina Kambouris at 10 Zanoni Court, Surrey Downs. The AFP was also aware that on one occasion when police attended at Tina Kambouris’ house and located cannabis plants growing hydroponically that George Pallaras was present at the house.
The AFP, through the telephone intercepts, had information that Tina Kambouris may have been involved in the drug dealings, in which they suspected George Pallaras was involved. Those suspicions included the importation of illicit narcotics. In one intercept of 15 October 1998, a discussion took place between Tina Kambouris and George Pallaras about a meeting. The AFP suspected that the meeting related to the future importation and distribution of narcotics. This particular intercept and belief was referred to one of the draft affidavits of Julie Dillon to which I have earlier referred.
In my view, the obligation was upon the AFP to disclose the information in their possession regarding the involvement of Tina Kambouris with George Pallaras as there was some indication that she was associated with his drug activities. That information would have generally been disclosed when the AFP disclosed the information relating to George Pallaras’ involvement with Sam Naruniec.

With respect to the DPP, in my view, there was not sufficient information regarding Tina Kambouris in the hands of the DPP to suggest that there was an obligation to disclose to the Accused the involvement of Tina Kambouris with George Pallaras. There were only two references to Tina Kambouris that would have come to the attention of the DPP. The first was a reference to an intercept of a telephone call of 15 October 1998, to which I have previously referred, which was contained in the draft affidavit of Julie Dillon, the second was a reference in the affidavit of Ian Bridle, to a telephone conversation on 26 November 1998 between the two of them in which there was a reference to the meeting with “Urszula” and a reference to Sam needing money in two weeks.
The Crown Case at the Earlier Trials.
It is part of the Accused’s case in support her application for a Stay that because of the non-disclosure to which I have referred, the trial process in both the first and the second trials of the Accused was flawed. It was submitted by Counsel for the Accused that in each of the previous trials, the prosecution case was pitched on the basis that there were only two people involved in the importation being the accused and Sam Naruniec. With respect to the money transfer evidence, it was the prosecution case that in each of the trials, the only person who could have effected the money transfers in April 1998 was the Accused or a stranger. Mr Edwardson submitted that as it was the belief of the AFP that Mr George Pallaras was involved in the overall importation, in the sense that he was to sell the ecstasy and share in the profits that a presentation to the Court that the only two people involved in the importation was false. Furthermore, because of the non-disclosure of the information regarding Ms Dziki and Mr Pallaras and Ms Kambouris to the Accused, the defence was not able to use that information for the purpose of undermining the prosecution case and supporting the defence case.
It is clear from a perusal of the transcript of each of the previous trials that the DPP pitched its case on the basis that there was a joint enterprise between Sam Naruniec and the Accused. It was the Crown case that Sam Naruniec was working at the European end and the Accused was handling matters in Australia. The thrust of the Crown case is that they were the only two people involved in the enterprise.
In the second trial, in his address to the jury, Mr Boylan, QC who was Counsel for the DPP on that occasion, said in relation to the money transfer evidence, in effect, that if it was not the Accused who sent the money in April 1998 then it was a stranger and it did not make sense that a stranger would effect the sale of the money, particularly as the Accused’s telephone number was on the money transfer forms.
In my opinion, if the information regarding Ms Dziki and George Pallaras had been disclosed to the defence prior to the first Trial, then it would have been open to the defence in either Trial to suggest that Ms Dziki was the woman involved in the money transfer. The telephone intercepts indicated that she was a partner with Sam Naruniec in the cannabis crops and that she was trusted by Sam Naruniec to receive from Mr Pallaras money arising from the sale of the cannabis from Mr Pallaras. It was the AFP’s belief that the cannabis seized from Ms Dziki and the cannabis crops located were to be used in the finance of future importations. It was also the AFP’s belief that the sale of previous cannabis crops had provided the funds for the ecstasy the subject of her present charge.
I also accept that the disclosure of the material regarding Ms Dziki, Mr Pallaras and Ms Kambouris may have been used by the defence in either trial to undermine the Crown case that the ecstasy importation was a joint enterprise confined to the Accused and Sam Naruniec. It may have been used to put before the jury that there was a joint enterprise between Sam Naruniec and others, not involving the accused and that she was simply used to ensure that the ecstasy arrived safely in Australia.
In my Reasons published after the Voir Dire hearing, I concluded that the failure to disclose the Dziki material resulted in the trial process in each Trial was flawed. I still hold that view. Furthermore, the failure to disclose the Pallaras material and that the involvement of Tina Kambouris with Mr Pallaras adds weight to the conclusion that the trial process in each case was flawed.
Before leaving the issues of non-disclosure I need to say that in making his submissions regarding the failure of the AFP or the DPP to make disclosure, Mr Edwardson said that it was accepted that the material which had not been disclosed had not been brought to the attention of either Counsel in the earlier trials. Mr Edwardson also said that he did not suggest that Mr Boylan QC was aware during the earlier Voir Dire hearing that the DPP was in possession of the information regarding Ms Dziki or Mr Pallaras.
The Ground of Loss or Destroyed Evidence.
A further element of the case in support of the Accused’s application is the claim that there has been the destruction or loss of relevant evidence. The first item of evidence which has been lost is the tape recording of the interview which Agent Clements had with Ms Dziki, in the presence of her solicitor on 8 December 1998. The tape recording cannot be located now. In the earlier Voir Dire hearing, the Accused relied on this loss as part of her case. At that Voir Dire hearing, Mr Robert Wyatt, the solicitor who was present at the interview, produced brief notes which he recorded during the meeting. These notes referred generally to the matters discussed during the meeting.
The second item of evidence which Mr Edwardson said was either lost or destroyed was “a large amount of documentation of English and Polish relating to overseas money transfers”. In support of his submission that these documents existed and were now lost, Mr Edwardson referred to a Case Note Entry obtained from the Promis System dated 5 December 1998 where reference is made to the search of various premises where cannabis plants were located. Part of the entry included the following statement:-
“Large amount of documentation (in English and Polish) concerning money transfers, bank accounts and bank deposits were seized by AFP.”
It was not in dispute that documents of that description were not produced by the AFP under the subpoenas. Ms Buckland asserted in her evidence that she was not aware of any documents found at those addresses coming within the description of documents set out in that entry. She said that in her opinion, it was a careless entry. I have mentioned earlier that I consider Ms Buckland to be a truthful and reliable witness. Whilst Agent Clements was the Case Officer in the investigation, Agent Buckland was equally involved in the investigation. Agent Clements said he had no memory of whether there were any such documents. I am prepared to accept Agent Buckland’s evidence that there were not any documents coming within that description arising from the search of the premises referred to in that Case Note Entry.
The third item of documents which Mr Edwardson said were lost or destroyed were the diaries of Agent Clements for the years 1998 and 1999. Along with the records made on the Promis system, a Federal Agents’ Diary is used to record events during the course of an investigation, including meeting with people who have a relevance and recording conversations with those people. Mr Edwardson sought the Diaries, in particular, for the purpose of ascertaining whether meetings with Ms Dziki were recorded by Agent Clements although he did not confine their relevance to that subject alone. He pointed out that the Promis System did not record any meeting with Ms Dziki and Agent Clements.
Agent Clements said in evidence that he had handed the diaries into the archives section of the AFP after he had completed them and had received a new diaries to replace the used diaries. He said that he had not looked for the diaries in response to subpoenas. This evidence needs to be seen against the background that he had been on sick leave for some considerable time.
I found that the lack of explanation regarding the missing diaries to be most unsatisfactory. The evidence of Agent Clements was vague regarding the system of archiving diaries. I did not hear any evidence from any other source concerning the archiving system and about any searching of that system undertaken by AFP. I assume that there is an archive system otherwise I would expect to have been informed otherwise. I had an expectation that evidence would be called by the DPP to explain the archive system and what steps had been undertaken to locate the missing diaries. Apart from anything else, the DPP was aware from the outset of these proceedings that Agents Clements’ credibility was under challenge. Regrettably my expectations were not fulfilled.
The final claim by Mr Edwardson related to missing documents, arises out of a Case Note Entry from the Promis System recording the interception of Ms Dziki and her vehicle on 4 December 1998 and the subsequent search of Ms Dziki’s residential premises in which a hydroponic cannabis crop was located. In the course of the Case Note Entry, the following statement was made:-
“Further evidence seized by AFP which possibly relates to imported narcotics”.
At the earlier Voir Dire hearing, evidence was given that documents were seized from Ms Dziki’s residence on 4 February 1998. At the interview with Ms Dziki on 8 December 1998, most of these documents were returned to Ms Dziki. There were some bank statements and a document which Ms Dziki described as her “dreamings” which were retained. These documents have been provided to the Accused. It is not possible, now to identify the documents that were returned. Their return, is to be seen against the background that it had been concluded by the AFP that Ms Dziki was not involved in the narcotic importation.
It is possible that the reference in the Case Note Entry is to the documents that were considered at the earlier Voir Dire hearing. However, that is speculation. Due to the passage of time, the memories of the investigating officers are of no assistance in identifying what is referred to in the Case Note Entry.
Whilst the Accused’s case is that the loss or destruction of documents should not be viewed standing alone but as part of the overall conduct of the prosecuting authorities, it is important in this context to recall the observations of Callanan J in Penny 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 submission on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian Law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial”.
Claim that the AFP has Failed to Investigate Further Matters and to Assist the Defence.
A further ground upon which the Accused relies in support of her application for stay of proceedings is the failure or refusal of the AFP to properly investigate other matters or assist the defence in obtaining relevant evidence. The first of these matters raised by Mr Edwardson is the refusal of the AFP to obtain handwriting samples from Ms Dziki, for the purpose of using such samples to compare with the handwriting contained in the money transfer forms. Of course, Ms Dziki is not obligated to provide a sample. It seems to me that it is within the discretion of the AFP whether they request Ms Dziki to provide a sample of her handwriting or not. I do not see a failure of the AFP to seek a handwriting sample of Ms Dziki breaches the standard of fairness expected by the Crown in a prosecution or that in failing to do so it prevents the accused from obtaining a fair trial.
The second element which the accused relies upon in support of this ground relates to the telephone intercepts made by the AFP in the course of Operation Cadillac. Operation Cadillac was a far reaching investigation and there were many thousands of telephone intercepts made during the course of it. In June of 2002 the DPP provided to the Accused’s legal advisers with thirteen lever arch folders containing a summary of the telephone intercepts. These summaries indicate that on many occasions a foreign language was spoken at times in the course of a telephone conversation in which the main part of the conversation was in English. The telephone summaries where the participants engaged in speaking a foreign language simply identify that section of the conversation by reference to the foreign language. For example in conversations between George Pallaras and Tina Kambouris have simply the reference to “Greek”. The foreign language section of any conversation has not been translated so there is no reference, even in summary form of the conversations in a foreign language.
Following correspondence between the solicitor for the Accused and the DPP, in early February the DPP provided audio compact discs (“CD”) containing the intercepted telephone conversations. Shortly prior to this, the DPP had advised that the summaries in the lever arch files were only rough summaries, and were not in the official transcript format and therefore cannot be relied on as accurate.
The solicitor for the Accused, Ms Noelle Hurley completed a perusal of all of the summaries contained in the lever arch files. On completing this task, she identified three hundred and twenty eight telephone calls which she considered were likely to be relevant to the issues to be raised by the Accused during the course of the Trial. The solicitor identified those telephone intercepts out of a total of about six thousand five hundred which she perused. She then sought from the DPP that she be provided with a transcription of those three hundred and twenty eight intercepts, together with the translation of the foreign language where it was spoken during the course of any of the telephone conversations. On 7 February 2003 the Deputy Director of the DPP indicated that the DPP was not prepared to accede to this request. In her letter of 7 February 2003 the Deputy Director explained the basis of the refusal in the following terms:-
“While I am prepared generally to assist the defendant as much as I can, it is not part of the function of this office to provide the legal aid assistance to the defence. We are not funded for such a purpose.”
It was Mr Edwardson’s submission that the defence needed the transcription of those calls, in order to analyse them and determine how they all fit together for the purpose of presenting them to the jury. He submitted that the accused does not have either the resources or the funding to enable transcription of the telephone calls and where necessary a translation of the foreign language used in those calls. Mr Boylan submitted that the approach by the DPP was appropriate and reasonable. He said that the recordings of the telephone intercepts had been provided and that is where the obligation of the DPP ceased. He further submitted that the transcription of the telephone intercepts identified by Ms Hurley would be an expensive exercise and that is not a cost which the prosecution should be required to bear.
I am satisfied, on the evidence, that the three hundred and twenty eight intercepts potentially are relevant to the issues in the Trial, particularly, regarding the issue of whether there were other people involved in the ecstasy importation and that the Accused was duped by her husband regarding the contents of the parcel. Apart from any funding problems on the part of the accused, in my view, in accordance with the standards of fairness and the obligation on behalf of the Crown to ensure that the accused obtains a fair trial, the Crown should provide a transcription of the three hundred and twenty eight intercepts and the translation of any foreign language used during the course of any of the telephone conversations. I realise that this places a heavy financial burden on the Crown. In my opinion, the approach I have taken does not open up a Pandora’s Box with regard future prosecutions involving the Crown.
This is an unusual case in which the genesis of Sam Naruniec ecstasy importation arose by way of a “side-wind”, in an operation where George Pallaras was the object of the investigation. As a result, conversations by George Pallaras with Sam Naruniec and other people have become relevant matters in the trial. In many cases in the criminal courts it is the accused person who is the object of the telephone intercepts and it is the Crown who wishes to use those telephone intercepts in support of its case. In this case, it is the defence which wishes to use many of the telephone intercepts to support its case. That is the unusual feature of the Trial. As I said, in my opinion, dictates of fairness in ensuring that the Accused obtains a fair trial requires the Crown not only to supply the CD recordings of the three hundred and twenty eight telephone intercepts but to transcribe those intercepts including the translating the foreign language sections of the telephone calls.
For the reasons I have given, I am of the view that it is appropriate to order a stay of the Trial until such time as the DPP supplies to the defence transcription of the three hundred and twenty eight telephone intercepts, including translations of any foreign language.
The final matter under this ground of the Accused’s application is that it is submitted that there is an obligation on the part of the DPP to investigate the possibility of Tina Kambouris’ being responsible for the transfer of the money overseas and that they failed to do so. This point can be answered shortly. In my opinion, there is no obligation on the part of the AFP to investigate such a matter. The principles of fairness do not dictate that the AFP should undertake such investigation. Any failure to do so does not lead to the Accused being denied a fair trial.
Claim that Ms Dziki’s Evidence is Tainted
I mentioned earlier that I did not need to make any findings regarding the allegations of a sexual liaison between Agent Clements and Ms Dziki for the purpose of reaching a decision regarding Agent Clements’ credibility. In reaching that conclusion I have not overlooked that one of the grounds relied upon for the stay of the prosecution was that if it was found that Agent Clements did engage in sexual activity then Ms Dziki’s evidence that she was not involved in the April money transfers was forever tainted, taking into account the unsatisfactory manner he obtained her statement in June 2002.
I have to confess that I have had some difficulty in understanding this submission. It seems to me that even if the assumptions contained in the submissions are accepted that they are matters which would be more suitably aired in the Trial if Ms Dziki gives evidence.

In considering the submissions I have taken the word “tainted” to mean “infected”. The fact is that Ms Dziki has provided a Declaration in which she denies being involved in the importation and the money transfers. If she gives evidence then any issue relating to her credit can be raised by the Accused’s Counsel. In my view, the matters raised by this ground are trial questions. I do not consider that this ground advances the Accused’s application for a stay of proceedings.
As a result of the view I take, once again, I do not see any necessity to make a finding regarding the sexual allegations made by Ms Dziki.
Other Grounds Raised in Support of the Application.
Finally, there are a number of other matters that Mr Edwardson raised on behalf of the Accused. He said that as a result of the prosecution’s failure to meet its obligations, witnesses such as Ms Dziki now had what it described as a “dry run”. He also said that the earlier Voir Dire hearing in these proceedings have forced the defence to disclose its position. I do not consider there is anything in any of these points. The Accused chose to make the application in relation to the Voir Dire and the application for a Stay of these proceedings. It was that decision that has led to the witnesses giving evidence. Furthermore, the Accused is not in any way prejudiced by having to disclose her defence. In the first place, once again, it was her choice whether the Accused wished to bring the application relating to the earlier Voir Dire and the present application. In any event, she had disclosed her position clearly in the Record of Interview.
Mr Edwardson also submitted that as a result of the failure to disclose the Dziki or Pallaras material prior to the earlier trials further investigation of Ms Dziki’s involvement or Mr Pallaras’ involvement has gone “cold” due to the passage of time. This point was raised by Mr Edwardson in the earlier Voir Dire hearing in relation to Ms Dziki’s evidence. I simply repeat what I said in my published Reasons relating to the earlier Voir Dire hearing. The Accused has not indicated there was any other 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 the possible line of enquiry regarding some relevant evidence which is no longer available, then the Accused has not reached the threshold point to support this ground.
Submissions by The DPP Against the Application.
Mr Boylan QC in his submissions, said that at this stage, the Accused has not demonstrated that any failure to disclose has affected the Accused’s chance of a fair trial. He submitted that the Accused has not been able to point to any piece of evidence which is now missing or has not been produced, which would deny the Accused a fair trial. Mr Boylan QC submitted that the focus needs to be upon the forthcoming Trial and whether the Accused can receive a fair trial. It was emphasised by Mr Boylan QC, that the offence the subject of the proceedings is a very serious one. He referred to the evidence the Crown proposes to lead and said that it is open on that evidence for a jury to be satisfied that the accused was knowingly involved in the importation of the ecstasy. He said that the charge is a matter for the jury as there is nothing to indicate the accused cannot receive a fair trial. I pause here to mention that the Declarations filed indicate that there is a case to answer by the Accused. Mr Edwardson acknowledged this during the course of his submissions.
Mr Boylan QC, submitted that it had not been demonstrated that the Accused could not now obtain a fair trial, following the production of all of the material, that I referred to earlier, and that in those circumstances there is no basis for granting a stay of the proceedings. I accept, that the disclosure which has now been made indicates that if the trial proceeded, the Accused could obtain a fair trial, subject to any rulings which may need to be made and to which I made reference in the Reasons I published with regard to the earlier Voir Dire hearing. However, having reached that conclusion does not bring the application for a stay to an end. It is certainly one matter that needs to be taken into account considering an application for a stay. I now turn to the legal principles relevant to an application for a permanent stay.
Principles Relating to an Application for a 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 v The District Court of New South Wales (1989) 168 CLR 23 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”.
Also in Jago (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 exercisable (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”.
The next principle is that fairness to the Accused is but one factor which needs to be taken into account. In Jago Mason CJ (at 30) after stating that fairness to an Accused is not the sole criterion in an application for a stay went on to indicate that he adopted the explanation of the rationale for the exercise of the power to stay a prosecution expressed by Richardson J in Maevao v Department of Labour (1980) 1 NZLR 464. In that case Richardson J (at 482) said:-
“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 purpose of the administration of criminal justice and so constitutes an abuse of the process of the Court.”
The next principle is that in considering an application for a stay of proceedings a court needs to undertake a balancing exercise of various competing interests. This balancing exercise was explained in Walton v Gardiner (1992-1993) 177 CLR 378 in the following terms:-
“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice”.
In my opinion, whether a permanent stay is granted depends on whether the interests of justice or the administration of justice demands that a stay be granted. The comments in the majority judgment in Walton, identify the principle (at 394-395):-
“In her judgment in Jago, Gaudron J. stressed that the power of a court “to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.” Her Honour added the comment “that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand”. Subsequently in her judgment, her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings.
It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v Spautz. When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition.”
In Williams v Spautz (1991-1992) 174 CLR 509 the majority judgment expressed the principle in the following terms:-
“If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. 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. In the United States, great weight has been given to these factors.”
This approach was followed by Martin J in R v Mohi (2000) 78 SASR 55 at 61. The same approach was also adopted by Debelle J. in R v Martin (No. 4) (1999) 105 A Crim R 390 at 392).
In determining whether the interests of justice or the administration of justice demands that the power to stay be exercised or not, it is essential that the court undertake the balancing exercise referred to in Walton (at 395-396). It is only after that balancing exercise is undertaken and bearing in mind that the discretion to order a permanent stay should only be made in only exceptional circumstances can a decision be reached.
Consideration of the Relevant Factors
I mentioned earlier in these reasons that Mr Edwardson relies on the accumulation of the factors which I identified earlier. I have dealt with each of these factors during the course of my Reasons. Some of those factors I have rejected. It seems to me that of all of the factors which remain extant, the most important of them is the failure of the AFP and the DPP to make disclosure of the Dziki material and the Pallaras material prior to either of the earlier trials. An equally important factor, is that the AFP and the DPP allowed both trials to proceed, being aware that there was evidence to suggest that George Pallaras, at the very least, may have been involved in the transaction, to the extent that he was to sell the ecstasy imported by Sam Naruniec and that he was to receive some of the proceeds of sale.
Disclosure by prosecuting authorities to Accused persons of not only inculpatory material and information but also exculpatory material and information goes to the very heart of the criminal justice system. An accused person is in the hands of the prosecuting authority regarding disclosure. There is a heavy onus on the prosecuting authority to ensure that it makes proper disclosure. In this case, proper disclosure was not made. No explanation has been given for the failure to disclose the Dziki material and the Pallaras material. In the end, whilst there is an obligation upon a law enforcement agency to make proper disclosure, in the circumstances of this case, the DPP had received the information from the AFP, and therefore the ultimate obligation was on the DPP to make that disclosure. In the absence of any explanation, it would be idle to speculate as to the reason why the DPP failed to make disclosure. I need to say that I feel that it is a matter of great concern that no explanation was furnished. I had an expectation that a prosecuting authority should explain the reason or reasons why there was a failure to disclose.
As I said, the DPP was in breach of its duty to disclose. Having said that, such a failure does not exonerate the AFP from its duty to disclose. Agent Buckland said in her evidence that throughout both trials it was the AFP’s belief that Mr Pallaras was involved in a joint venture with Sam Naruniec in relation to the importation the subject of the present charge and other importations.
In the earlier trials, the jury was presented with the Crown case that the joint venture was only between Sam Naruniec and the Accused. If the Dziki material and the Pallaras material were available then it was open to the defence to attempt to establish that the joint enterprise involved Sam Naruniec and George Pallaras and possibly others namely, Ms Dziki and Tina Kambouris. The defence would have had the opportunity to use all of the material in support of its case that the Accused was duped and in fact was not knowingly involved in any ecstasy importation.
In the balancing exercise, it needs to be acknowledged that the charge against the Accused is an extremely serious one. The factors referred to in Waltonneed to be placed in the balance. As I said earlier, as a result of the disclosure since the Second Trial, I am of the opinion that the accused can obtain a fair trial in the present Trial.
The power to stay proceedings is not to be used as a punishment against the prosecuting authorities for its failure to meet its earlier obligations. It is accepted that a third trial does not of itself call for a stay of proceedings. (R v Martin (No. 4) (supra)). In my opinion, the question to be answered is “… whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of the criminal justice …”. (Maevao at 482). Expressed another way, is the continuation of the prosecution of the Accused by the DPP where in the previous two trials there was withheld from the Accused material which could have been used in her defence, after taking into account the other balancing factors to which I have mentioned, such that the interests of justice demand that the power to stay the prosecution must be exercised.
After undertaking the balancing exercise, I am of the opinion that a permanent stay should not be granted. Notwithstanding the grave breaches of the AFP’s and the DPP’s obligation to disclose and the flawed basis upon which the previous two trial proceedings considered either together or combined with the other grounds identified by Mr Edwardson and which remain extant, I have concluded that they do not outweigh the other issues militating against a stay. In my opinion the interests of justice or the administration of justice do not demand that there be a permanent stay of the third Trial of the accused.
Application for a Stay Pending Agreement to Pay Costs.
However, this conclusion does not bring the matter to an end. On 25 March 2003 I heard further submissions by Counsel. It was Mr Edwardson’s submission that if I refused the application for a permanent stay then I should order a stay of the prosecution until the Crown reimburses the Accused for costs which have been incurred by her and for the most part paid in connection with the prosecution and the costs incurred by the Legal Services Commission of South Australia.
From the Bar Table Mr Edwardson asserted that the Accused had personally incurred liability for legal costs amounting to $23,039 of which $1,139 is still owing to her previous solicitors. He also tendered a letter from the Legal Services Commission dated 19 March 2003 which states that the Commission has incurred $87,253.11 in legal fees with respect to the prosecution of the accused. The Legal Services Commission in the letter, indicated that it held a statutory charge over the equity in the accused’s house, which amounted to about $30,000. The Legal Services Commission has issued instructions that it seeks re-imbursement of the costs expended.
In support of his contention Mr Edwardson relied on the decision of the New South Wales Court of Criminal Appeal of R v Fisher (2003) NSWCCA 41. In that case a criminal trial had been aborted shortly before the Judge was to begin his summing up. At that point in the trial the prosecution had produced a file containing papers which had not been produced following the issue of a subpoena in an earlier trial. The information in the documents were relevant to the charges. The trial judge held that the trial could not fairly continue. The Judge refused an application to stay the proceedings until the Crown paid the Accused’s legal costs thrown away of the aborted trial. The Judge concluded that he could not make such an order because he was satisfied that the third trial would be a fair trial. It was his view that the focus with respect to the application was whether the accused could obtain a fair trial. It was accepted in the application before the trial judge and in the Court of Criminal Appeal that there was no power to order that the Crown pay costs. However, it was alsoaccepted that a court had power to order a stay until the Crown agreed to pay costs.
The Court of Criminal Appeal held that the trial judge was in error in concluding that he needed to be satisfied that the Accused could not obtain a fair third trial before he had power to make an order. Simpson J (with whom the others in the Court agreed) said that the Crown in proposing to prosecute for the third time, was not engaging in an abuse of the Court’s processes. Her Honour said that whilst there was not an abuse of process a Court could make such an order where it was made to prevent injustice. Her Honour relied upon the observations of Mason CJ in Jago where he said (at 31):-
“In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair”.

The Court relied upon the principle laid down in the decision of the Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735 that whilst there was no power to order costs, the Court could make an order staying the proceedings until the Crown paid the reasonable costs of the accused or provided an undertaking to do so.
In R v Mosely Gleeson CJ (at 741) said:-
“This Court should signify its disapproval of the Crown’s delays, and also its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him. We were informed that Johnston CJ intimated that he would have been prepared, if asked to do so, to assess a fair amount to represent the costs thrown away by the original adjournment. There being no valid order for costs, there is no procedure for enforcing the order, or taxing the costs. However, there is no reason why this Court cannot, in the exercise of its own discretion, modify the order made by Herron DCJ in such a way as to give practical effect to a view that, in the special and unusual circumstances of this case, and in the light of the events that have occurred, the trial of the respondent should not proceed until the Crown compensates him for the costs thrown away by the original adjournment.”
The decision in Mosely was followed in other Court of Criminal Appeal decisions in R v Seebag (unreported NSW CCA, 16 February 1993) and R v Bucksath (2000) 114 A Crim R 1.
Returning to Fisher, Simpson J acknowledged that in these other decisions the Crown was seeking an indulgence, in the sense that an adjournment was being sought. However, Her Honour said that such a feature did not cause the circumstances in Fisher to be distinguished from those cases. Simpson J held that the principle in Mosely applied equally where the Crown intends to exercise its right to prosecute. (paragraph 44).
Before leaving Fisher it is instructive to refer to some observations of Santow JA on the question of unfairness. At paragraph 2 he said:-
“In both Mosely and the present case, imposing a stay of proceedings till the wasted costs are paid prevents the Crown from invoking the court’s processes to proceed to trial. This is so, though the occasion for this in Mosely began with an application by the Crown for an adjournment whereas in the present case, it is the defendant that seeks a stay of the re-trial, with no intervening application for adjournment. That however affords no relevant distinction, when regard is had to the substance of the matter. The important factor common to both Mosely and the present case is fundamental unfairness in permitting the Crown to proceed to trial, in the present case moreover a third trial, where it is the Crown’s fault, of a relatively serious kind, that the defence has earlier been put to wasted costs which the Crown does not agree (or undertake) to pay.”
In paragraph 5 Santow JA made the following observations regarding the distinction between ordering the Crown to pay costs and ordering a stay until the Crown agrees to pay costs.
“While it might be argued that the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one, nonetheless the distinction is real and important. It respects the prohibition upon a court imposing a cost order upon the Crown, a constraint recognised in Dietrich v the Queen (1992) 177 CLR 292. It remains a matter for the Crown as to whether it ultimately chooses to proceed and pay the wasted costs, or decline to proceed”.
The Issues to be Considered.
The first step in dealing with the application for a conditional stay is to determine whether the Court has power to make an order for the Crown to pay costs. The application by the Accused proceeded upon the assumption that there was no power. In my opinion it is clear that the Court has no power to order the Crown to pay costs in these circumstances.
In R v S (1997) 94 A Crim R 445 the Court of Criminal Appeal in this state when considering an appeal by the Crown against an order for costs made in the Youth Court said (per Ollson J at 446):-
“It is accepted by the parties that courts exercising common law jurisdiction in criminal matters have no inherent powers to award costs. Such power, where it exists, is the creature of express statutory provisions in that regard.”
(See also R v Wright, Dance and Curry (1994) 77 A Crim R 67 per Booking J at 68).
There is no power in the District Court Act for the Court to award costs in the Criminal Division of the Court. There is a power provided by Section 42 of the Act to order costs in civil proceedings. Furthermore, there is no power provided in the Criminal Law Consolidation Act to order costs in the criminal proceedings. I agree with the conclusion of Sulan DCJ in Andri v R (2002) SADC 76, that there is no power, whether statutory or otherwise for the District Court to award costs against the Crown in criminal proceedings. I should also add, that in my opinion an application for a stay of prosecution is a criminal proceeding. (R v Goia (1988) 81 ALR at 56).
Whilst there is no power to order costs, in my view the Court has power, to stay proceedings on the condition that the Crown agree to pay costs “wasted” as a result of fault on the part of the Crown. I agree with Santow JA in Fisher that such an order is not an order for costs. It is premised on the basis that an accused person has incurred costs which have been “wasted” or “thrown away” as a result of fault on the part of the Crown. Furthermore it is premised on the basis that in the circumstances of the case such an order is warranted to prevent an injustice. The touchstone for the making of such an order is the unfairness arising from fault on the part of the Crown.
I consider the principles set out in Fisher equally apply to the District Court of South Australia. Although the discretion is unfettered, such an order would only likely be made in special and unusual circumstances. (Mosely per Gleeson CJ at 741).
In my opinion, it is appropriate to make such an order in the present circumstances. There is present here special and unusual circumstances. In my view, the failure of the AFP and the DPP to disclose the material to which I have referred earlier was completely unfair to the accused, all the more so when seen against the Crown’s case in each trial, namely that the only persons involved in the criminal enterprise were the accused and Sam Naruniec. To borrow the words from Gleeson CJ in Mosely (at 741) the Court should not be willing to allow the Accused to bear the burden of the unfairness visited upon her.
Mr Boylan QC sought to distinguish the New South Wales cases by pointing out that none of those cases involved circumstances where a trial had been completed. In Fisher the trial was aborted in the sense that the trial judge discharged the jury. In the other cases, they involved an adjournment sought by the Crown. In my opinion, there is no reason why the principles in Fisher should not apply albeit that a trial was not aborted. I earlier found that the trial process was flawed in each of the earlier trials because of the failure to disclose. The Accused lost the opportunity to undermine the prosecution case and to support her own case as a result of the non-disclosure. As the trial process was flawed, the costs incurred by the Accused in each trial were “wasted”. In my view, there is nothing in logic or in principle which stands in the way of applying the Fisher principle to the circumstances here.
There is one further issue that arises here. Some of the costs wasted were paid by the accused and some paid by the Legal Services Commission. The accused stands to be out-of-pocket with regard to the Legal Services costs in the sense that there is a statutory charge over her home, which charge is considered by the Legal Services to be worth about $30,000. The question which needs to be resolved is whether an order to stay is premised solely on the costs that the accused has personally incurred or should it include costs incurred by the Legal Services Commission in providing legal aid.
In Fisher the parents of the accused had paid the costs of the trial, as the accused was bankrupt. The order was that the Crown pay the costs incurred by or on behalf of the accused. One of the matters raised in the course of argument in Fisher was that a result of the costs wasted the parents did not have any funds to pay Counsel who appeared on the second trial to again represent the accused at the third trial. The accused had been granted legal aid for the third trial although Counsel would not be the same as Counsel who appeared for the accused at the second trial. In my view, that issue was not decisive to the decision of the Court. The decision was based on wider questions of fairness and injustice. In logic, there is no reason to distinguish between funds provided by parents of an accused and funds provided by legal aid. If it is determined that the circumstances warrant an order for a conditional stay, then it should apply to the costs of the accused thrown away.
I am prepared to make an order to stay the prosecution until the Crown pays or undertakes to pay the reasonable costs of the accused of the previous two trials. I will hear any further submissions regarding any other costs sought to be included in the order.
If the Crown agrees to pay the reasonable costs of the first two trials and if the quantum of those costs cannot be agreed, then I see no reason why a Master of this Court cannot determine what are the reasonable costs to be paid and then to report back to the Court. However, I will hear Counsel on that question if it arises.
In summary I make the following orders:-
1.The application for a permanent stay is refused.
2.I order a stay of the prosecution until the Crown has provided written transcripts, including translation of any foreign language, of the three hundred and twenty eight telephone intercepts identified by the solicitors for the accused.
3.I order a stay of the prosecution of the accused until the Crown pays or undertakes the reasonable costs of the accused of the earlier two trials.
4.That there be liberty to apply if agreement cannot be reached regarding the quantum of costs to consider appointing a Master of this Court to determine the quantum of costs and to report back to the Court.
5.That there be liberty to apply generally.

[2003] SADC 52

3 April 2003