R v Vilayur (No 2)
[2023] ACTSC 59
•24 March 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vilayur |
Citation: | [2023] ACTSC 59 |
Hearing Date: | 23 February 2023 |
DecisionDate: | 24 March 2023 |
Before: | Baker J |
Decision: | (1) The application for the indictment to be quashed is dismissed. (2) The application for permanent stay of the proceedings is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for indictment to be quashed – s 135.3 Criminal Code Act 1995 (Cth) – Application for permanent stay of proceedings – proceedings ‘foredoomed to fail’ – jurisdiction of Supreme Court to set aside proceedings under r 4570 Court Procedures Rules 2006 (ACT) – whether conduct constituting offending illegally procured by Commonwealth – Ridgeway application – no concession that evidence illegally obtained whether prosecutorial process is oppressive and vexatious – disclosure process – Crown failure to disclose material in brief of evidence – voluminous material produced under subpoena. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 4750 Criminal Code Act 1995 (Cth) s 135.4 Evidence Act 2006 (ACT) |
Cases Cited: | Agius and Ors v The Queen [2011] NSWCCA 119; 80 NSWLR 486 Barton v The Queen [1980] HCA 48; 147 CLR 75 Walton v Gardiner [1993] HCA 77; 177 CLR 378 |
Texts Cited: | Explanatory Statement, Court Procedures Rules (2006), published 16 June 2006 |
Parties: | Commonwealth Director of Public Prosecutions ( Crown) Gopalakrishnan Suryanarayanan Vilayur ( Applicant) |
Representation: | Counsel S Young ( Crown) M Kearney ( Applicant) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) ACT Legal Aid (Applicant) | |
File Number: | SCC 95 of 2021 |
BAKER J:
Introduction
The applicant is charged with an offence of conspiracy with two co-accused, Abdul Aziz (Alex) El-Debel and Raminder Singh Kahlon with the intention of dishonestly obtaining a gain from the Commonwealth contrary to s 135.4(1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”).
By application filed on 16 September 2022, the applicant seeks the following orders:
1. The indictment in relation to charge SCC 095/2021 be quashed;
2. In the alternative, the prosecution in relation to charge SCC 095/2021 be permanently stayed;
3. Any other orders that the Court considers appropriate.
In brief, the applicant contends that the proceedings are an abuse of process because:
(i) The Crown case is “foredoomed to fail” (“the ‘foredoomed to fail’ application”);
(ii) Any conduct alleged to constitute the offending was illegally procured by Commonwealth executives (“the Ridgeway application”);
(iii) The Australian Federal Police (“AFP”) cannot satisfactorily discharge their duty to arm the defence with all material relevant to the matter, such that any trial will be unfair (“the disclosure application”);
(iv) The investigative and prosecutorial process has been oppressive or vexatious in and of itself in all the circumstances, such that it will bring the administration of justice into disrepute (“the oppression application”).
For the reasons outlined below, I find that the applicant has not established any of the above grounds. Accordingly, I dismiss the application for quashing of the indictment. I also dismiss the application for a permanent stay.
The Crown case
The Crown alleges that the applicant conspired with Mr El-Debel and Mr Kahlon with the intention of dishonestly obtaining a gain from the Commonwealth.
At the relevant time, Mr El-Debel was a senior public servant in the Department of Finance (“the Department”). His duties included overseeing spending by the Department, including the procurement of personnel to work in various IT projects. In performing these duties, Mr El-Debel sat on or advised evaluation panels which made recommendations as to the acceptance of candidates.
The applicant and Mr Kahlon were contractors to the Department. They were also the sole owners of two companies. Mr Kahlon was the sole owner of New Horizons Business Solutions Pty Ltd (“New Horizons”) and the applicant was the director of Algoram Business Solutions Pty Ltd (“Algoram”).
At the time of the alleged offence, the applicant held the role of ‘SAP Technical Delivery Director’ with the Commonwealth Department of Finance. He held this role by virtue of a sub-contractual arrangement through his own company, Algoram.
The Crown alleges that from March 2019, the applicant, Mr El-Debel and Mr Kahlon were parties to an agreement. That agreement relevantly included that:
(i) the applicant and Mr Kahlon would put forward candidates for the various positions offered under IT projects for the Department through New Horizons and Algoram;
(ii) from time to time, Mr El-Debel would dishonestly provide the applicant and Mr Kahlon with information about procurement exercises, and Mr El Debel would also provide advice to the relevant procurement panel with the object of favouring candidates put forward by New Horizons and Algoram;
(iii) from time to time, the applicant and Mr El-Debel would organise for Algoram candidates to have advance knowledge of the procurement panel processes;
(iv) when candidates put forward by New Horizons or Algoram were selected, New Horizons and Algoram would obtain a gain, namely a share of the amounts payable in respect of the engagement of the candidate; and
(v) from time to time, an amount representing a portion of the share of those amounts would be paid to Mr El-Debel.
In respect of the element of “gain” required for an offence under s 135.4(1)(a) of the Criminal Code, the Crown prosecutor clarified that the Crown case is not that the applicant or Algoram ever actually paid Mr El-Debel any monies from the margins earned by Algoram from its contractors. Rather, the Crown alleges that the agreement was that Mr El-Debel would be paid for his role in influencing the selection of candidates put forward by Algoram.
The three co-accused were originally charged on a joint indictment. The applicant’s trial was severed from the joint trial of Mr El-Debel and Mr Kahlon. There had been delay “on the side of the Crown” which meant the applicant was not ready to proceed: R v Vilayur; R v Kahlon; R v El-Debel [2022] ACTSC 110. As the Crown, Mr El-Debel and Mr Kahlon were ready to proceed, the co-accused were tried separately from the applicant. The trial of Mr El-Debel and Mr Kahlon commenced before a jury on 6 June 2022. On 7 July 2022, the jury returned a verdict of guilt in respect of Mr El-Debel and Mr Kahlon.
The “foredoomed to fail” application
Introduction
The fault element for an offence contrary to s 135.4(1) of the Criminal Code is that the accused conspired with the intent of “dishonestly” obtaining a “gain” from the Commonwealth. The applicant contends that the evidence served upon him by the Crown to date in respect of the elements of ‘dishonesty’ and ‘gain’ is “weak” or “non-existent” and that the proceedings should be quashed or permanently stayed because they are “foredoomed to fail”.
The applicant invoked two alternative sources of jurisdiction in relation to his contention that the proceedings are ‘foredoomed to fail’. First, the applicant invoked the Court’s power to “set aside” criminal proceedings under r 4750 of the Court Procedures Rules 2006 (ACT) (“the Court Procedure Rules”). Second, and in the alternative, the applicant invoked the Court’s jurisdiction to permanently stay the proceedings, either under r 4750 or as an exercise of the inherent jurisdiction of the Court.
It is convenient to briefly summarise the principles relating to the granting of a permanent stay before considering the applicant’s contentions concerning the alternative source of jurisdiction to “set aside” a criminal prosecution under r 4750 of the Court Procedures Rules.
Jurisdiction: Permanent stay or “set aside” a criminal prosecution
The jurisdiction to permanently stay proceedings
Both parties accept that this Court has jurisdiction to permanently stay proceedings on the basis that a prosecution is ‘foredoomed to fail’.
The jurisdiction to grant a permanent stay on this basis is “exceptional” in nature. In particular, it has been held that such an order cannot be made unless the proceedings will “inevitably and manifestly fail” (R v Jasper [2003] NSWCCA 186; 139 A Crim R 329 at [19], citing Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 411); or it is “plain beyond argument that the prosecution case suffers from some incurable vice” and that the vice is “readily apparent and clearly fatal to the prospect of success of the prosecution” (R v Smith [1995] 1 VR 10 at 28-29); or the prosecution is “hopeless, plainly so and condemned to remain that way” (Little (a pseudonym) v R [2015] VSCA 62; 44 VR 816 at [74]). See also R v McDonald; R v Deblaquiere [2013] ACTSC 122; 233 A Crim R 185 at [8] – [16].
It is not sufficient to demonstrate that the evidence against an accused person is “weak”: Agius and Ors v The Queen [2011] NSWCCA 119; 80 NSWLR 486 at [17]. Nor is an application for a permanent stay “an anticipatory no-case submission”: Little at [74]. As Leeming JA held in R v Blackett [2018] NSWCCA 114 at [43]:
… what is required is not merely a gap in the evidence sustaining an element of the charge, but demonstration in advance of the trial that the gap is incurable.
For this reason, it will usually be necessary for the prosecution facts to be agreed before a permanent stay may be ordered on the basis that the prosecution is foredoomed to fail: R vGesaand Nona, ex parte Attorney-General [2000] QCA 111; 2 Qd R 72. See similarly Blackett at [60] (Fagan J).
The power to “set aside” criminal proceedings under rule 4750 of the Court Procedures Rules
The applicant accepted that the test for a permanent stay is a high one, which, as outlined above, requires him to establish that the prosecution case suffers from an “incurable vice”. However, the applicant contended that the test for when criminal proceedings may be “set aside” under r 4750 of the Court Procedures Rules differs from, and is relevantly lesser than the test for when proceedings will be permanently stayed. In particular, the applicant contended that the test for ‘setting aside’ criminal proceedings under r 4750 may be satisfied where the evidence in support of the prosecution case is “weak”.
Rule 4750 of the Court Procedures Rules provides as follows:
Supreme Court criminal proceedings—application to set aside or stay proceeding
(1)An accused person may apply to set aside or stay any criminal proceeding against the person.
(2)The application must be made and heard before the accused person is arraigned.
(3)If the application is dismissed, the accused person may make a further application under subrule (1) in relation to the same or similar charges only if—
(a) there has been a significant change of circumstances; and
(b) the application is limited to the change of circumstances.
There were two steps in the applicant’s argument concerning r 4750. First, the applicant contended that the phrase “set aside” criminal proceedings in r 4750 is the equivalent of an order “quashing” an indictment referred to in interstate provisions such as s 592A of the Criminal Code Act 1899 (QLD) (as that provision was, when considered in Gesa). Second, the applicant contended that the test for quashing an indictment is lower than the threshold for granting a permanent stay.
As to the first contention, the applicant was not able to provide the Court with any authorities concerning the circumstances in which criminal proceedings may be “set aside” under r 4750 of the Court Procedures Rules. Nor has my research located any authority concerning the application of this aspect of the rule. The Explanatory Statement for the Court Procedures Rules (published 16 June 2006) does not assist. It simply states that “Chapter 4 deals with criminal proceedings. The provisions reflect the current practice in each Court.”
In support of the second contention, the applicant referred to the decision of the Queensland Court of Appeal in Gesa and the decision of the Queensland Supreme Court in R v Hilton [2020] QSCPR 2. The applicant observed that in Hilton (at [10]), Henry J made an order permanently staying proceedings in circumstances where the evidence was:
… so inconsequential or so vague in their meaning and significance that, even considered collectively, they are inadequate to sustain an inference that the accused was a participant in the criminal organisation.
Neither of the authorities cited by the applicant supports his contention that a less onerous test applies to the quashing of an indictment as compared to the threshold for the granting of a permanent stay.
Neither Gesa nor Hilton concerned an application to quash an indictment, rather, both concerned applications for a permanent stay. Most importantly, neither decision suggested that a permanent stay would be an appropriate remedy where the evidence to be called at trial is uncertain; rather, both decisions emphasised the need for the facts in the prosecution case to be agreed, and for the prosecution to make a concession that those facts “represent the highest the Crown case can be put” before a permanent stay could be ordered: see Gesa at [18] and Hilton at [20].
The applicant was not able to identify any decision in which an indictment had been quashed on the basis of an insufficiency of evidence. Orders for indictments to be quashed are typically made in cases where the indictment charges an offence that is not known to law, there is a plea in bar, or the indictment is otherwise defective on its face. It has been held that a court does not have power to quash an indictment on the basis of insufficiency of evidence: The Queen v Wilk (1982) 32 SASR 12 at 18, citing R v Chairman, London County Sessions; ex parte Downes [1954] 1 QB 1 at [6] (“I know of no power in the court to quash an indictment because it is anticipated that the evidence will not support the charge”); see also Connelly v Director of Public Prosecutions [1964] AC 1254 at 1300. Although I note that there is also authority that an indictment could be quashed where an offence was “not disclosed by the depositions or statements” and there had been no committal for trial for that offence: R v Crawford [1988] 2 Qd R 443 at 445 and 457, citing R v Chairman, London County Sessions; ex parte Downes [1954] 1 QB 1 and R v Jones (1974) 59 Cr App 120 at 126. (As the present charge was committed from the Magistrates Court on 15 April 2021, this power, if it exists, would have no application in the present proceedings.)
Importantly, even if it were accepted that the Court has power to ‘quash’ an indictment on the basis of insufficiency of evidence, neither principle nor policy would support the making of such an order in circumstances that are less onerous than the threshold for granting a permanent stay of proceedings.
As Leeming JA observed in Blackett (at [41]), there is a tension between the power to stay a prosecution on the basis that the prosecution will fail, and the principle that the decision to prosecute is generally insusceptible of curial review. The exceptionally high threshold for the granting of a permanent stay is one way in which that tension is reconciled. This reasoning applies with equal force to the application of r 4750 even if it be accepted that r 4750 confers power on the Court to ‘quash’ an indictment.
Accordingly, I do not accept the applicant’s contention that r 4750 of the Court Procedures Rules confers power on the Court to “set aside… criminal proceedings” in circumstances that fall short of the high threshold that must be established before criminal proceedings may be permanently stayed.
Determination
For the reasons outlined above, to succeed in this application, it is not sufficient for the applicant to establish that the evidence in support of the case is ‘weak’. Rather, it is necessary for the applicant to demonstrate that it is “plain beyond argument that the prosecution case suffers from some incurable vice” (Smith at [28]-[29]).
At this stage of the proceeding, it cannot be said that the prosecution suffers from an “incurable vice” in respect of either of the elements of dishonesty or gain.
This is not a case where the prosecution facts are agreed, or where the prosecution has conceded that the facts represent the highest the Crown case can be put; contrast Gesa at [511]; Hilton at [35]. Rather, as in Blackett, the prosecution has served on the applicant witness statements that “record merely what is expected the Crown evidence will be”. The Crown case may strengthen when those witnesses are called: Blackett at [54] and [62]. In circumstances where the Crown case has not been presented and closed, any insufficiency in the content of the statements “is not ‘incurable’ or ‘condemned to remain [so]’”: Blackett at [62]. For this reason alone, the application for a permanent stay must be dismissed.
In any event, the material served in the brief of evidence includes evidence from which dishonesty on the part of the applicant may be inferred. In particular, in his record of interview, the applicant acknowledged that he had had a conversation with Mr El-Debel on WhatsApp in which Mr El-Debel asked the applicant to send “questions to Ben” (apparently referring to questions that a recruitment panel would ask a candidate put forward by Algoram). Investigating police asked the applicant why WhatsApp was used for this conversation rather than “the Department’s own Outlook”. In response, the applicant made the following admission:
Q Is it that you both knew that it was the wrong thing to do?
A Yep.
Q And that’s why you were using WhatsApp, to try and avoid being caught?
A Yes, I have done that.
The applicant’s counsel drew my attention to evidence which suggested that the use of WhatsApp was not uncommon in the Department. However, this evidence does not detract from the probative value of the applicant’s admission. It is not that the applicant was using WhatsApp that is significant in the Crown case; rather, it is the fact that the applicant acknowledged to investigating police that he was using WhatsApp to try to avoid being caught for doing the wrong thing.
As outlined above, in respect of the element of ‘gain’, the Crown prosecutor clarified that the Crown case is the applicant, Mr Kahlon and Mr El-Debel agreed that Mr El-Debel would be paid for his role in the conspiracy, not that Mr El-Debel was in fact paid. The Crown relies on a payment to Mr El-Debel on 12 October 2019, that is, before any contractors had been engaged through Algoram, as a circumstantial fact demonstrating the nature of the agreement. As the applicant’s counsel properly acknowledged, this constitutes at least some evidence in support of this element (although the applicant’s counsel submitted that this evidence was weak).
For the reasons outlined above, the prosecution facts are not agreed, and there is some evidence of both the elements of ‘dishonesty’ and ‘gain’. In these circumstances, the application for a permanent stay of the proceedings or for quashing of the indictment must be dismissed
The Ridgeway application
The application
The second basis upon which the applicant seeks a permanent stay of the proceedings is that any alleged conduct said to constitute the offending was done so/undertaken illegally by executives within the Department, who were aware of, facilitated, encouraged and procured the alleged offending.
In support of this contention, the applicant relied on reports of KPMG and Ashurst which, the applicant submitted, demonstrated that executives within the Department were aware of what the applicant and Mr El-Debel were doing from at least 2019. The applicant submitted that the reports described a “culture of non-compliance with procurement protocols” and demonstrated that executives within the Department were “on notice of the need to address the systemic problems with procurement in the [D]epartment”. The applicant submits that although the conduct was referred to the AFP, the Department continued to employ the three co-accused, and that Department executives played “an active role in the investigation” by furthering “procurement practices which departed from departmental policy and standards”.
In this respect, the applicant relied on transcripts of telephone call intercepts, a number of which involved the applicant and Department executives such as Mr Stewart Munro (who was the Acting First Assistant Secretary of the Department at the relevant time, and who had management oversight of all the information, communications, technology and services contracts for the Service Delivery Office). The applicant submitted that these telephone intercepts demonstrate, inter alia, that there was a close relationship between himself and Mr Munro; that there was a workplace culture of systemic non-observance of Departmental procurement policies; and that Mr Munro and other executives endorsed the departure from policies involving conflicts of interest. The applicant also submitted that the telephone intercepts demonstrate that the applicant was acting pursuant to Department directions
The applicant submitted that as the applicant’s conduct was procured by the Department’s executives, a permanent stay should be granted pursuant to the decision of the High Court in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19. In particular, the applicant relied on the statement of the plurality judgment (Mason CJ, Deane and Dawson JJ) in Ridgeway (at 40) that:
… the appropriate ultimate relief in a case where the commission of the charged offence has been procured by illegal police conduct may well be a permanent stay of the proceedings.
In response, the Crown submitted that it would not be open to this Court to make any findings of illegality on the basis of the evidence relied on by the applicant.
The Crown noted that there is no evidence that Department executives were aware of all of the actions of the co-accused. In particular, the crown submitted that there is no evidence that the executives were aware that the agreement between the co-accused included that “an amount representing a portion of the share of the margins received by New Horizons and Algoram would be paid to Alex [El]-Debel.”
In this respect, the Crown also noted that, in statements that are necessarily unchallenged for the purpose of the present application, Mr Munro has stated that he was “not aware of any impropriety” on the part of the applicant, Mr El-Debel or Mr Kahlon, and that he had “no awareness of any business relationship” between Mr El-Debel and either Algoram or New Horizons, or of any business relationship between Algoram and New Horizons. The Crown submitted that if this evidence is accepted (as it must be for the purposes of the present application), the applicant’s submission that Commonwealth executives were aware of, encouraged, and procured the applicant’s conduct alleged must fail.
Determination
The High Court’s decision in Ridgeway does not support the application for a permanent stay in the present case.
The appellant in Ridgeway appealed against his conviction of a Commonwealth offence of importing heroin in breach of the Customs Act 1901 (Cth). The importation was pursuant to what was termed a ‘controlled operation’ facilitated by the AFP. At the time, there was no legislative authority for such operations and the Crown conceded that the involvement of the AFP in the controlled operation amounted to an offence under s 233B(1)(c) of the Customs Act. The appellant submitted that the trial judge ought to have granted the accused a permanent stay on the basis that the proceedings were an abuse of process by reason of the illegal conduct of the AFP.
A majority of the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ, McHugh J dissenting) held that the appellant’s offences had been procured by the illegal conduct of the AFP and that the appellant’s conviction should accordingly be quashed.
Each of the majority justices other than Gaudron J held that the fact that an offence is procured by unlawful police conduct does not of itself render subsequent proceedings in relation to the offence an abuse of process, such as to justify the granting of a permanent stay. In so holding, each of their Honours distinguished between orders staying criminal proceedings as an abuse of process in and of themselves, and orders staying further steps in the proceedings on the ground that, as a result of the effect of evidentiary rulings made in them, the proceedings must fail: see at 41 (Mason CJ, Deane and Dawson JJ); at 52 (Brennan J); and at 74 (Toohey J).
In their joint judgment, Mason CJ, Deane and Dawson JJ held that the evidence of the offences should be excluded on public policy grounds because the evidence was unlawfully obtained. Their Honours ultimately granted a permanent stay on the basis that, as the whole of the evidence in the Crown case was required to be excluded, the proceedings would inevitably fail (at 43).
In contrast, Brennan J held that a stay would be inappropriate in all circumstances where illegally obtained evidence was excluded: no stay should be ordered if sufficient evidence remained for the jury’s consideration after exclusion. If insufficient evidence remained for the jury’s consideration after exclusion, the Crown should either enter a nolle prosequi or the trial judge should direct an acquittal (at 52). Justice Toohey similarly concluded that as the illegally obtained evidence should have been excluded and there was no further evidence to be adduced in the Crown case, the appropriate verdict was one of ‘not guilty’ (at 65). Only Gaudron J concluded that a permanent stay should be ordered because the appellant’s offences resulted from the illegal acts of the AFP (at 78).
In short, a majority of the High Court did not hold that a permanent stay should be ordered where the Court concludes that an offence was procured by illegal police conduct. Rather, all of the majority justices other than Gaudron J held that consideration must first be given to the question of whether some or all of the evidence in the trial should be excluded on the basis that the material was illegally obtained. Three of the justices concluded that if all of the evidence in the prosecution case is excluded, a permanent stay may then be appropriate.
Accordingly, the applicant has not established that a permanent stay should be made in these proceedings on the basis of alleged illegality on the part of Commonwealth executives. Rather, if the applicant contends that any or all of the evidence sought to be adduced by the Crown was illegally obtained, the appropriate course is for the applicant to seek exclusion of evidence under s 138 of the Evidence Act 2006 (ACT).
The applicant did not seek an order for exclusion of evidence in his application of 16 September 2022. However, in his written submissions the applicant seeks an order that “all evidence of alleged conduct by Mr Vilayur that was aided, abetted, counselled or procured by the DoF executives be excluded” as well as the order for a permanent stay. The applicant’s counsel did not expand on this aspect of the application in her written or oral submissions.
To the extent that the applicant seeks now seeks an order for the exclusion of evidence under s 138 of the Evidence Act, that application is premature. In contrast to Ridgeway, in which illegality on behalf of the AFP was conceded by the Crown, in the present case, the Crown does not concede that any of the evidence in the trial was illegally obtained. The various executives who are said to have procured illegal conduct would need an opportunity to give evidence before any such grave findings were made. For this reason, any application for exclusion of evidence under s 138 of the Evidence Act should be heard by way of a voir dire when the trial is otherwise ready to proceed.
The disclosure application
The application
The third basis upon which the applicant seeks a permanent stay is said to be an “inability by the AFP to satisfactorily discharge their duty to arm the defence with all relevant material.”
In support of this contention, the applicant noted that, as a result of the interceptions of some years, the prosecution is in possession of thousands of hours of telephone calls which may be of relevance to his case. The applicant relied on evidence given by Federal Agent Gibson in the trial of the applicant’s co-accused, in which Federal Agent Gibson conceded that he could not be satisfied that all relevant calls or interceptions had been brought to the attention of the co-accused.
The applicant also pointed to the fact that he, and his co-accused, were required to subpoena relevant material that has not been disclosed in the brief of evidence. The applicant submits that a number of the documents that have been produced in response to these subpoenas has included material that is exculpatory in nature.
Ultimately, the applicant submitted that the disclosure difficulties were “incurable”, because even if each of the thousands of intercepted phone calls were disclosed, there would be insufficient time for those phone calls to be assessed and for instructions to be obtained. The applicant noted that summaries of the telephone interceptions that have been provided to date “do not appropriately capture the context of the telephone call and are assessed as irrelevant, for example, merely summarised as ‘work related’”.” The applicant submitted that, against the background of the previous failures of disclosure, any further disclosure of this nature would be oppressive.
The Crown acknowledges that in his evidence at the co-accused’s trial, Federal Agent Gibson accepted that he could not be “satisfied that any calls or interceptions that may have assisted [the co-accused] in his defence were disclosed.” The Crown contended that this concession was “understandable having regard to the volume of electronic evidence which the AFP obtained over a period of years.” The Crown observed that over 60,000 electronic communications have been intercepted in respect of Mr El-Debel alone, and submitted that:
… no reasonable investigating officer could be (completely) satisfied that all communications which may have assisted Mr El-Debel had been specifically brought to his attention in the already voluminous brief of evidence.
The Crown acknowledged that the Crown and the AFP had not provided the applicant with all of the material in its possession, including the thousands of electronic communications captured by the AFP. However, the Crown noted that the applicant has never made a request for disclosure of those communications.
The Crown emphasised that the duty of disclosure “plainly does not extend to all information in the possession of the prosecutor or to information that does no more than provide a potential avenue for inquiry”: Edwards v The Queen [2021] HCA 28; 95 ALJR 808 at [26]. The Crown submitted that the applicant has not demonstrated that there has been any breach of the prosecution’s duty of disclosure to date. The Crown further submitted that any finding that the prosecution had failed to disclose documents should be addressed by a case management order, not the granting of a permanent stay.
Determination
The prosecutor has a “duty” to disclose documents which:
… can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b).
See R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 at 468, cited with approval in Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 at [334].
Whilst the “duty” of disclosure is a matter for the prosecutor, which the Court will not review, a failure to comply with the duty may result in a stay being granted if it is shown that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair”: Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48; 102 NSWLR 72 at [139].
However, a permanent stay will only be granted where continuation of the proceedings would involve an unacceptable unfairness or injustice that cannot be overcome, such that any trial would be so seriously defective as to constitute an abuse of process: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 30–31 and 34 (Mason CJ), at 61 (Deane J) and at 78 (Gaudron J). There must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: see Barton v The Queen [1980] HCA 46; 147 CLR 75 at 111. When considering whether a permanent stay should be ordered, it is necessary to take into account “the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”: Walton at 296.
I am concerned about the sufficiency of disclosure that has been provided by the Crown to the applicant to date. It is apparent that the investigation, and in particular, the interception of a vast number of telecommunications of each of the three accused, has resulted in a vast quantity of material which may be relevant to the applicant’s trial. The Crown will need to take particular care to ensure that the applicant is provided with a copy of, or access to, all material that may be relevant to his defence which has not yet been disclosed by the Crown and/or the investigators.
Nonetheless, the case is not one in which a stay, much less a permanent stay, is appropriate. I do not accept the applicant’s submission that adequate disclosure is impossible in view of the quantity of telephone calls that were intercepted. There is a public interest in the disposition of serious charges such as the present, even where the material that must be disclosed is voluminous in nature.
The history of the present proceedings has been less than satisfactory. The applicant’s trial was separated from that of his co-accused in June 2022. Despite this, the proceedings still do not appear to be ready for trial.
However, the applicant has not identified any specific request for disclosure of telephone intercepts which remains unanswered. In the present application, the Crown indicated that if the applicant seeks disclosure of all intercepts, the applicant should issue a subpoena or a request for production of those intercepts.
Finally, I note that the proceedings have not yet been allocated a trial date. Ongoing specific concerns about disclosure should be addressed by way of case management.
Oppression/vexatious/bring the administration of justice into disrepute
The applicant’s final contention is that “the investigative/prosecutorial process has been oppressive/vexatious in and of itself in all of the circumstances and bring the administration of justice into disrepute”.
In support of this contention, the applicant “repeats and relies” on the submissions related to disclosure and the time which the AFP has had to complete their investigation. He submits that any further delay would involve further vexation and oppression.
This ground must also fail for the reasons I have outlined above.
Conclusion
The application for quashing of the indictment or for the granting of a permanent stay must be dismissed for the reasons outlined above. In summary:
(i) As the prosecution facts are not agreed, and there is at least some evidence of dishonesty and gain, it cannot be said that the prosecution is foredoomed to fail.
(ii) The applicant’s contention that the Department’s executives procured any illegality does not justify a permanent stay of the proceedings. Any application for exclusion of evidence under s 138 of the Evidence Act should be made when the trial is otherwise ready to proceed, and should be conducted by way of a voir dire.
(iii) The applicant’s complaint about the prosecution’s failure to disclose documents does not justify a permanent stay. Any further issues concerning issues of disclosure should be dealt with by way of case management.
(iv) I am not satisfied that the course of the proceedings to date has been of a character that would justify a permanent stay on the basis of oppression or vexatiousness.
In view of these findings, it is unnecessary and inappropriate for me to express any concluded, or even preliminary, views as to the merits of the applicant’s underlying complaints, including as to the strength of the Crown’s case relating to the elements of dishonesty and/or gain.
Orders
The orders of the Court are as follows:
(1) The application for the indictment to be quashed is dismissed.
(2) The application for permanent stay of the proceedings is dismissed.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date: 24 March 2023 |
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