R v Vinayagamoorthy
[2009] VSC 276
•04 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1628 of 2007
| THE QUEEN | |
| v | |
| ARURAN VINAYAGAMOORTHY SIVARAJAH YATHAVAN ARUMUGAM RAJEEVAN | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF PRELIMINARY RULING: | 04 May 2009 | |
CASE MAY BE CITED AS: | R v Vinayagamoorthy & Ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 276 | |
RULING NO. 2
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.E. Dean S.C. with Mr K. Armstrong and Mr S. Johns | Commonwealth Director of Public Prosecutions |
| For the AccusedVinayagamoorthy | Mr B.E. Walters S.C. with Ms P. Murphy | Robert Stary & Associates |
| For the accused Yathavan | Ms Fiona Todd | |
| For the accused Rajeevan | Mr P. Boulten S.C. |
HIS HONOUR:
Each of the accused has applied for a permanent stay of proceedings in relation to the indictment now before me. The three accused have been charged with one count of making money available to a proscribed entity and the accused Vinayagamoorthy has been charged with two other counts of making available electronic components and boat design software to a proscribed organisation. The offences are contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) (“the Act”).
I delivered a preliminary ruling on the fault elements of this crime. It is sufficient to say that the fault element of making an asset available is intent and the fault element for knowledge that the entity to whom the asset is made available is a proscribed entity is recklessness (see Criminal Code Commonwealth s 5.1 – s 5.6) (“the Code”). That is, the Crown is obliged to prove that the accused made assets available to the LTTE (a proscribed organisation) intending that the asset be made available to the LTTE and that the assets were made available to the LTTE, not some other organisation. I am satisfied that the words “make available” mean, in all the circumstances, given to for the use of (including control of). It would be a defence to this offence if an accused was able to show that it was not his intention that the assets were made available to the LTTE, even if the assets did come into the hands of and were used by the LTTE or alternatively that the assets were not made available to the LTTE. More appropriately the Crown would be obliged to disprove either of these propositions.
The Crown would also have to prove that each of the accused knew that the LTTE was a proscribed organisation or at least was reckless to that circumstances. Recklessness is defined in the Code.
“(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”
The historical development of this offence is of some significance.
After the events in New York in September 2001, the United Nations Security Council passed resolution 1373. In turn, that led to the promulgation of the Charter of the United Nations (Anti-terrorism Measure) Regulations 2001 which came into effect on 15 October 2001.
The object of those regulations is set out in Regulation 3, which reads as follows:
“The object of these Regulations is to assist in giving effect to Resolution 1373 (2001) of the Security Council of the United Nations, concerning measures for the suppression of terrorism by preventing a person in Australia, or a citizen of Australia, from dealing with financial assets of persons or entities that engage in or support terrorism, or are under the direct or indirect control of such persons or entities.”
In Regulation 6, “entity” is defined as having the same meaning as in paragraph 1(c) of Resolution 1373.
Regulation 7 sets out the powers and responsibilities of the Minister in the following terms. A note to that regulation also sets out paragraph 1(c) of Resolution 1373:
“Regulation 7(1) provides that if the Minister is satisfied that a person or entity is a person or entity mentioned in paragraph 1(c) of Resolution 1373, the Minister must list the name, or names, of the person or entity in the Gazette;
Regulation 7(2) provides that a person or entity so listed is a proscribed person or entity for the Regulations;
Regulation 7(3) provides that the Minister may also list assets, or classes of assets, that the Minister is satisfied are owned or controlled by a person or entity mentioned in paragraph 1 (c) of Resolution 1373”
An offence corresponding to the present offence under the Act was created by Regulation 10. The penalty was then 10 penalty units.
Pursuant to Regulation 7, the list prepared by the Minister and dated 10 December 2001 was published in the Government Gazette on 21 December 2001. The LTTE was listed in that Gazette.
The 2001 Regulations were in turn repealed. The Suppression of Financing Terrorism Act introduced Part 4, including s 21, into the Act. The 2001 regulations were repealed and replaced by Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Commonwealth).
Those Regulations are relevant in at least two ways. Regulation 3 repeals the 2001 Regulations. Pursuant to Regulation 4:
“Transitional
(1) A person who, or an entity that, was a proscribed person or entity under the Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 immediately before the repeal effected by regulation 3 is taken, on commencement of these Regulations, to have been listed under section 15 of the Charter of the United Nations Act 1945.”
Schedule 3 of the Suppression of Financing Terrorism Act 2002 introduced the new Part 4 of the Charter of the United Nations Act 1945. That Act and the regulations came into force on 13 December 2002.
The general offence of providing assets, namely money, alleged against each accused is said to have been committed between dates, the period commencing on 13 December 2002. The more specific offences alleged against the accused Vinayagamoorthy are alleged to have occurred between dates commencing on 4 December 2003 and 20 January 2005 respectively.
The significant change in offence from the 2001 regulations to the Act is that the penalty has been increased to five years’ imprisonment.
The case against each of the accused can be summarised as follows. There is an allegation that each of the accused had a relationship with the LTTE and knowledge of the nature of the organisation.
There is clear evidence that the accused were active in an organisation called the TCC, i.e., the Tamil Co-ordinating Committee. The question in the trial is whether either, in addition to dealing extensively with the TCC, the accused were also members of the LTTE.
There is no real issue in this trial that the three accused were responsible for sending money out of Australia. In the case of the accused Vinayagamoorthy, it is less clear, but probably accepted that he sent the items, or was responsible for sending the items referred to in Counts 2 and 3 out of Australia. The real issue is whether the money and other items were intentionally made available to the LTTE.
As I have already observed, the counts relating to money are framed between dates commencing from 13 December 2002, i.e., the dates on which the relevant conduct could be an offence contrary to the Act.
In relation to the accused Vinayagamoorthy and Yathavan, that count ends on 1 May 2007 when they were arrested and continues until 6 July 2007 in the case of the accused Rajeevan who was arrested and charged on that date.
It is an important feature of this case that there was a fourth person alleged to have been involved in the activities of the group dealing with money. That person is Thillai Jeyakumar, who died on 29 March 2007. The admissibility of the material received from Jeyakumar’s residence on 23 November 2005 has been dealt with in a separate ruling.
The Crown submit that each of the accused was an active member of the LTTE in Australia and carried out activities for and on behalf of the LTTE (see [13], summary of prosecution opening).
The question which has arisen, raised by the affidavit material of Fiona Toole of 27 and 30 March of this year filed in support of the application may be summarised as follows.
The defence would have great difficulties in calling witnesses from the Varni district in Sri Lanka to show what happened to any funds forwarded by the accused or by the TCC. That was supported by submissions made by counsel and to some extent at least from the evidence of Dr Smith on the voir dire. The charges were laid against the accused Vinayagamoorthy and Yathavan on 1 May 2007 and the accused Rajeevan on 6 July 2007. The accused have been on bail since 17 July 2007. They have been in possession of the hand-up brief from 8 June 2007 for the first two accused and 17 July 2007 for the third accused.
The committal commenced on 13 September 2007 and on 14 December 2007 the accused were committed for trial in this Court. The charges included the present charges.
Although the focus of the prosecution has changed since 11 March 2009 when the present indictment was filed, it has always been an element of all the offences that in the broadest sense assistance in one form or another has been extended by the accused to the LTTE. The offences not now proceeded with involved the prosecution proving that the LTTE was a terrorist organisation and the accused knew it to be so.
Any defence that the allegations are misconceived must have involved raising the question of whether money and goods went to the LTTE. If money or goods went to other organisations (not the LTTE), that could always later become the subject of evidence and it still can. It strikes me that the forensic disadvantage suffered by the defence is in one sense no greater than that suffered by the prosecution. Without reversing the onus of proof, if the accused are in a position to assert that moneys and goods went to non LTTE entities, their prosecution is equally disadvantaged by present circumstances in which evidence would need to be rebutted.
It has always been so that an accused person is entitled to take advantage of any advantageous circumstance which arises. I would have been more convinced of the importance of the evidence in this case if it could be identified with more certainty and if this application had been made in a more timely way.
Any decision that positive evidence would be necessary in the defence case is one which ought have been made years ago.
The evidence relied upon by the prosecution related to a number of documents which were recovered from the homes of the accused. I have ruled that nearly all of the material recovered from Mr Jeyakumar’s residence is admissible. In particular, any general material relating to the operation of the LTTE in Australia is admissible.
At 3 Ray Road, East Burwood, premises which were maintained as the headquarters of the Australian branch of the LTTE and at which the accused Vinayagamoorthy resided, a document was recovered, (Doc 8041) headed “Monthly Circular October 2003”.
The report is addressed to:
Mr Maniwannan
Co-ordinator
International Office
Liberation Tigers of Tamil Elan
Mr Jeyakumar is listed as Co-ordinator, Australia, Mr Rajeevan as Assistant Co‑ordinator, Australia, and Mr Vinayagamoorthy as Administrative Co-ordinator and Finance Co-ordinator, Australia, although described as “V. Aruran”, Mr Yathavan is described as State Co-ordinator, Victoria. The report shows both the collection of funds and the distribution of them.
In total, there are about 707 reports relied upon by the prosecution and a table relating to the reports is attached to the prosecution opening.
Most of the reports come from the LTTE in Australia to the Co-ordinator of the International Liaison Centre. There is much discussion to the gathering of funds, most of which are raised by monthly contributions.
The average funds raised through the period 2002 to 2005 were about $18,000 a month.
A high percentage of the funds were sent to Malaysia.
The prosecution have filed a detailed summary of the prosecution case and I rely upon that submission as reasonably representative of the prosecution case against each accused.
It is clear from that material that there is a substantial case to be mounted against each accused.
No impropriety is alleged against the prosecution authorities in Australia either related to the motive for the prosecutions or in relation to the question of disclosure. There is no allegation that the prosecution authorities have deliberately destroyed evidence.
The complaint by the accused, in general, has become that not only are they deprived of the opportunity of calling witnesses who could throw some light on where funds and goods went, but also they are deprived of the opportunity to make investigations.
As I have already observed, that argument would have been more convincing if it could be demonstrated that there were or had been ongoing attempts to establish their content. No request appears to have ever been made either to the Commonwealth OPP or to the Attorney-General as the Minister responsible for Mutual Assistance to have investigations of a particular kind carried out.
The allegations have always been that money collected and goods purchased were sent to the LTTE. As I have already pointed out, there is a great deal of paperwork in existence to show that these three accused were associated with the Australian arm of the LTTE.
Events in northern Sri Lanka, the Vanni, are awful and there is little doubt that it would be very difficult, if not impossible, to carry out investigations there at this point in time. It is known that all the accused have been to the area and it appears from the records in evidence that many other individuals named in those records have been to Sri Lanka. Whether these individuals could give evidence about institutions in northern Sri Lanka does not appear to have been investigated. It was not the subject of any evidence before me.
Perhaps more importantly, it is accepted that much of the money, which can be investigated, finished up in Malaysia. There has been no evidence before me as to why investigations could not be carried out there.
The prosecution case is a circumstantial one. There are two elements which are particularly important. They can be stated as a single proposition. Did the accused make money and/or goods available to the LTTE, knowing that the money and/or goods were being made available to the LTTE and intending that the goods be made available to the LTTE?
There is nothing to prevent the defence challenging the Crown witnesses on those subjects. It seems like that Dr Smith would be called on the trial and he could give evidence supporting the defence.
The accused may choose to give evidence.
It must be borne in mind that the mere fact that items finished up in the hands of the LTTE is not determinative of the matter.
The defence assertions about what evidence might exist or be called are very broad. The only individual witness nominated is Mr Manwanan, and it is not clear what evidence it is anticipated he might be able to give.
I have been referred to all the relevant Australian authority and would accept that the unavailability of witnesses or difficulties in the ability to properly prepare a defence have in some cases led to the granting of a stay on the basis that the continuation of the prosecution would constitute an abuse of process.
The defence submissions are best summarised in the written submission from the three senior counsel for the accused dated 30 March 2009.
I will set out in detail what has been said:
“4. At their trial, all of the applicants will contend that they did not make the various assets available to the LTTE. All three applicants made records of interview wherein they denied that they were members of the LTTE and denied that the relevant assets were made available to the LTTE. Rather, they claimed that the moneys raised and goods purchased were sent to various humanitarian projects in the north and east of Sri Lanka for the benefit of the Tamil population.
5. Whilst there is no legal onus on the applicants to prove their case, they are, nevertheless, completely denied the opportunity of making relevant enquiries in Sri Lanka to assist in their defence. It is impossible for them or their advisers to travel to the Vanni in order to locate witnesses who may assist in their defence. In most instances it is reasonable to conclude that the project or institution nominated by the applicants as the intended recipient has now been destroyed in the course of the war or is now under Sri Lankan Government control and, for reasons made plain in Dr Smith’s evidence, not able to be accessed by the applicants.
6. Thus, it is not possible for the applicants to call Sri Lankan witnesses to confirm that assets were made available to humanitarian projects and institutions that were not the LTTE. Similarly, the applicants cannot produce records from Sri Lanka. It is not even possible to take photographs of the institutions to show that they really do exist.
Some examples of these problems are:
· The Vanni Technical Institute in Vinayagamoorthy’s record of interview at Q.635 TB 244.
· Orphanages such as the Chencholai home for young girls Vanni, Vaazhvaham home for the visually handicapped Manipay, the Punitha Poomi Orphanage Vanni and the Kanthurban Arivuchocholai Children’s home.
· Schools such as Malaracholai House, Navan Knowledge School and Kandarupan Knowledge Garden.
· Assistance with respect to rehabilitation and aid projects relating to windmills, fishing and boat building.
· The medical aid including the Government Hospital Mallavi, the Government Hospital Killinochchi, the Government Hospital Puthukudiyiruppu Dr Ponnampalam memorial hospital Killinochi.
· The artificial limb establishment referred to in the report quoted at paragraph 45(b)(ii) of the Summary of Prosecution Opening and known as the Venpura Artificial Limb Technology Foundation, Vanni and the Navam Arivukkoodam Rehabilitation for Injured Young Tamils.
7. The prosecution case will also include video footage of Yathavan and Rajeevan attending various sites in Sri Lanka. It is now impossible for the applicants or their advisers to attend these locations in order to identify the nature of the institutions, to ascertain who managed them at the relevant time and to lead evidence from any Sri Lankan witnesses about these issues.
8. In relation to Count 2 concerning the electronic components, the applicants are unable to visit the scene of the explosion at Urania in order to canvass witnesses. Nor are they in a position to seek to obtain evidence independent from the Government of Sri Lanka which could cast a doubt on the allegation that a claymore mine included BIMI-151-300-10-1329.
9. Similarly, the applicants are unable to investigate or obtain evidence to challenge the allegation that a Radiometrix receiver was used in a mine near the A30 Road in Sengapulikulum. Nor are the applicants able to investigate through independent sources in Sri Lanka the propositions that between December 2005 and November 2006 the Sri Lankan army recovered 70 remotely detonated Claymore mines used by the LTTE (90% of which used Radiometrix and Holtek parts) and that GoSL security forces do not use Radiometrix components in conjunction with Claymore mines.
10. The prosecution allege that the applicants ‘structured’ transactions in order to avoid the reporting provisions of the Financial Transactions Reports Act and suggest that the applicants were therefore covertly transferring these funds to the LTTE. An alternative hypothesis exists. Any funds likely to be sent to the north and east of Sri Lanka by anybody sympathetic to the Tamil population would be likely to be diverted away form their intended destination - even if they were sent for the benefit of genuine humanitarian projects and even if the funds were not being made available to the LTTE. Further, anybody identified by the GoSL as a donor, recipient or facilitator of such funds would be likely to be targeted as a terrorist suspect even if the assets were not being made available to the LTTE – especially if the person was sympathetic to the political aims of the LTTE. This was true even after the tsunami and the failure of the Post-Tsunami Operational Management Structure (‘PTOMS’).
11. Hence, it is relevant to adduce evidence of the risks that genuine humanitarian donors faced if they sent assets to the north and east of Sri Lanka. These risks were great and included the possibility of abduction, long periods of detention without trial, torture and extra-judicial killing. Yet, the applicants have been severely hampered by the understandable reluctance of potential witnesses with first hand knowledge to communicate with the applicants’ solicitors. The GoSL consistently denies that it is responsible for such conduct and so too would the remaining GoSL witnesses in this trial if asked about such topics (as did the witnesses in the committal hearing).
12. The Prosecution Opening also raises suggestions that the case against the applicants could include evidence about various events and incidents in Sri Lanka in order to prove that the applicants knew that the LTTE was a proscribed organisation. For instance, it seems that the Prosecution intended to prove that the LTTE assassinated Foreign Minister Kardigarmar in order to demonstrate that Yathavan falsely accused the GoSL of his killing. The Prosecution have also acknowledged the need to present ‘background’ evidence about the nature of the political and civil situation in Sri Lanka. If so, the vehicle for such evidence is likely to be the remaining GoSL witnesses, whose evidence on this point is likely to reflect the evidence given by similar witnesses at the committal hearing.
20. A cornerstone of the adversarial system of criminal justice is the ability of the accused to be able to adequately access relevant evidence that either exculpates or, at least, casts doubt on the prosecution case. For this reason prosecuting authorities have onerous disclosure obligations. In ECHR jurisprudence the need to ensure a level playing field is summed up by the ‘equality of arms’ principle: despite unequal resources, no party should be allowed an unfair advantage over the other.
21. There are many examples in Australia of cases that have been stayed because the unavailability of evidence (from witnesses now dead or otherwise unable to be summoned or from documents or objects lost or destroyed) led to accused persons being unable to obtain a fair trial. A common feature of these cases is the significant degree of prejudice occasioned to the accused because of the unavailable evidence.
22. In Holmden v Bitar; Heinze v Burnley; Commonwealth Service Delivery Agency v Bourke; R v Reeves; R v Griffin; R v Davis; Nicholson v R; and Salmat Document Management Solutions Pty Ltd v The Queen criminal proceedings were permanently stayed where an accused person’s ability to have a fair trial was irretrievably compromised by the loss or destruction of documents or other evidence.
23. In Davis, the Full Federal Court (Wilcox, Burchett and Hill JJ) concluded that the case, which involved allegations of sexual assault by a doctor upon a female patient, should not proceed where the doctor’s clinical notes of his consultation with the complainant had been destroyed. The Court held that, ‘Here there is special prejudice, occasioned by the destruction of the medical records’.
24. Similarly, McKechnie J in Salmat found that the destruction of company records made it impossible for the accused to properly test the principal evidence against them was an important factor dictating a stay. Whilst his Honour acknowledged that some single judge decisions might be in conflict (for example, Greg James J in Duncan v Crews), he could not agree:
… ‘that the matter is able to be resolved by application of the criminal standard of proof to the facts. The fact that a case against an accused must be proved to the criminal standard has never prevented an accused from establishing facts that cast doubt on the prosecution case. If, through destruction of documents, or some other sufficient cause, an accused is actively prevented from either mounting an affirmative case, or from casting doubt on the prosecution case, then it may be that to allow a trial to continue would be an affront to justice.’
25. Gallop J used the same reasoning in Reeves when he held that:
‘Even if a prima facie inference was available to the Crown in the sense that it could establish an hypothesis consistent with guilt, the destruction of the documents, after the institution of the criminal proceedings against him, has created a situation whereby he is deprived of properly advancing a contesting hypothesis consistent with innocence. For instance, the accused may have been able to show, by reference to all the source material, that full disclosure of all relevant matters was taken into account in the compilation of the financial statements and that they were not false or misleading. At least he might have been able to prove that he had no knowledge that the financial statements were false or misleading.’
26. In the instant case, the applicants are fundamentally prejudiced by their inability to take the first steps towards producing evidence in support of their case. Evidence concerning the nature of the organisation receiving the assets is central to the case. Where the applicants cannot visit the location, speak with the managers of the relevant institutions, collect documents and identify potential witnesses, the prejudice suffered by the applicants is grave.
27. But this is not a case where the evidence has simply been destroyed through inadvertence or negligence. The applicants are prejudiced because of a war that is being conducted by the GoSL. Further, the war is being waged against the LTTE. Now, where the initiating complaint in this case was made by the GoSL and where the purpose of section 21 is to guard against the financing of insurgent groups for the protection of governments like those in the position of the GoSL, it is a matter weighing heavily in favour of the application that the circumstances that have created the unfair prejudice to the applicants have been brought about because of the war being prosecuted by the GoSL.
28. It is of even greater importance for the Court to consider that the forensic disadvantage visited upon the applicants stems from the threats to potential defence witnesses posed by the GoSL’s propensity for unlawful violence. This is not simply a case of missing evidence. Rather, the reason why the applicants cannot properly meet the prosecution case is because of the GoSL’s long standing and continuing abuse of the fundamental human rights of the Tamil population.
29. These forensic difficulties cannot be cured by judicial directions; ‘Longman-style’ directions are insufficient in this case. Even if the jury was carefully cautioned about the danger of convicting in the light of the applicants’ inability to gather and present evidence, judicial directions are entirely unable to cure the unfairness caused by the GoSL’s intransigent position in relation to widespread human rights abuses. It would seriously compromise the standing of the Court to allow the prosecution to lead the evidence in its case if the applicants have been denied the opportunity to gather significant exculpatory evidence as a result of the actions of the GoSL.
30. Further, the effectiveness of directions needs to be assessed in the light of the fact that during the trial the applicants will be accused of being members of a terrorist organisation. The risk of the jury unconsciously but unfairly turning their minds against the applicants is real. The likelihood of the jury being inflamed against the applicants is high. A jury is likely to be naturally antipathetic towards people accused of having terrorist sympathies. In such circumstances it is likely that judicial directions will be significantly less effective than normally.
31. The extensive adverse pre-trial publicity about the LTTE also works against judicial directions adequately solving the applicants’ forensic difficulties. (See below).
32. No other mechanism can solve the problem. There is a fundamental difference between the parties about the inferences that should be drawn from the evidence. The prosecution will not accept that the assets were not made available to the LTTE. The defence will not accept that they were so made available. No agreement can be reached as to the facts in issue and no relaxation of the rules of evidence can alleviate the evidential difficulties facing the applicants. Nor can these mechanisms alter the perception that this trial is, indeed, unfair.
33. The structure of the LTTE is an issue in this case. The exact boundaries of the organisation are important – especially where the defence will suggest that the relevant humanitarian projects in the Vanni, though carried out with the likely knowledge of, if not permission from, the LTTE, where not carried out by the LTTE itself. It is entirely impracticable for the applicants to obtain evidence from LTTE members about the structure and boundaries of the organisation. For instance, Mr Manivanan was a highly relevant individual based in the LTTE International Secretariat in Killinocchi. Yet, it is impossible for the applicants to make enquiries about his whereabouts let alone to confer with him.”
The prosecution submission in reply dealt in detail with the lack of particularity contained in the defence submission and pointed out that some material at least is available in Australia.
The prosecution pointed out that it is for the defence to demonstrate on the facts and in accordance with the authorities that the making of this prosecution would be necessarily unfair and thus an abuse of process.
In the authorities to which I was referred was the decision of Police v Sherlock.[1] That case is particularly helpful because it deals with the principles applicable in cases of missing evidence and in particular evidence about which only a possibility of help to the defence case can be asserted. It is also helpful for the detailed analysis which Doyle CJ has made of all the relevant authorities. He was prepared to accept that the notion of fairness had been expanded by the State Courts and I am prepared to proceed on the basis that his Honour is correct in that contention. After a detailed analysis of the authorities, his Honour went on to say:
[1] [2009] SASC 94.
“The meaning of fair trial
It is one thing to say that a court may stay the trial of a charge if that trial would be unfair. It is another thing to apply the general proposition to a particular case.
First of all, the exceptional nature of the remedy must be borne in mind. Ordinarily, when a court’s jurisdiction is invoked, that jurisdiction must be exercised. Second, it is not a court’s function to intrude upon the independent discretion of those State officials who have the responsibility to decide whether or not a person should be prosecuted. The power to stay proceedings cannot be used as a disguised or indirect means of stopping the prosecution because the Court considers that the bringing of the prosecution is, in a general sense, harsh or unfair. Moreover, as is emphasised in the authorities, the power to stay proceedings is exercised to prevent unfairness that amounts to injustice. In some cases the power will be exercised because of a risk that a trial will be unfair. But particular care is called for when the Court is asked to stay proceedings, not because they can be shown to be unfair, but because of a risk that they will be unfair to the accused. Finally, the Court must balance the right of the accused to a fair trial, and the public interest in the bringing to trial of a person charged with an offence and the question of innocence or guilt being decided. The decision to grant or to refuse a stay of proceedings is not to be made solely from the point of view of the accused. The public interest must also be considered.
For these reasons, when asked to stay proceedings, a court is not by any means concerned solely with the question of whether the trial will be fair.
There is a further general point that should be made because of the indefinite or indeterminate scope of the concept of a fair trial. As Gaudron J pointed out in Ridgeway v R[1995] HCA 66 ; (1994-1995) 184 CLR 19 (the relevant passage from her reasons was cited in Batistatos and is set out above) the concept of an abuse of process cannot be restricted to “defined and closed categories”. Equally, there can be no hard and fast definition of what is or is not a fair trial.
But ordinarily, as the authorities emphasise, a fair trial is a trial according to law. That is what a court undertakes, and that is what a court should provide. In the course of a trial according to law the court will, of course, apply the relevant law, and the court will exercise such powers as it has to ensure that the trial is fair. So the notion underlying a fair trial is not that of a trial which the casual observer would say was fair, meaning that the accused could not have been better placed than the accused in fact was at the trial, or meaning that in all respects it was an even contest. To many members of the community, a trial might seem unfair because one party is represented by experienced counsel, and the other by inexperienced counsel. Many members of the community might think it unfair if a witness upon whom the defence relies dies before trial, and that witness’s testimony becomes unavailable. But the legal concept of a fair trial is a much narrower one. It is, as I have explained, a trial according to law, the court exercising such powers as it has to make the trial fair. It can only be in exceptional circumstances that a court can decide that, despite the trial proceeding according to law, and despite the court exercising those powers that it has to ensure a fair trial, nevertheless the trial cannot be a fair trial, and that such unfairness will call for the proceedings to be stayed. In that context it is worth repeating the often cited observation by Wilson J in Barton at 111:
I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
A court asked to exercise its power to stay proceedings must bear in mind its duty to hear the proceedings according to law. It is not the function of a court to try to achieve some kind of equality as between the parties, or some kind of fairness in the broadest sense referred to above. Earlier in my reasons I set out some observations by Brennan J in Jago, commenting on obstacles to a fair trial that courts encounter and with which they must deal. To the extent that those comments reflect how a court of trial must proceed when faced by general unfairness, I respectfully adopt what his Honour said. In Sedmak v Police[2008] SASC 307 I had cause to consider this matter, and said at [28]–[29]:
· [28] A court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which it is commonly used. An important witness might die, or fall ill, or be unavailable when a case comes to trial. One party might have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court: see Jago at 49–50 Brennan J.
· [29] That is why I emphasise that the power to stay proceedings is not to be approached on the basis that the court will stay proceedings simply because, in a general sense, it can be said that in some respect the proceedings will be unfair from the defendant’s point of view.
I remain of that view.”
In Sherlock, the potential evidence which was missing was a security tape which had, for practical purposes, been destroyed. One security officer was known to have looked out the film and he saw nothing of relevance on it.
It is of great assistance in understanding the principles to see how Doyle CJ applied the principles in this case:
“Application of the principles to the facts
Some would say that it is unfair that the trial of a charge should proceed without Mr Sherlock being afforded the opportunity to view the film in question and, if it assists his case in some way, to make use of it in evidence. That opinion must rest on an assumption that a trial is unfair if evidence that is possibly relevant is not available to the accused in criminal proceedings, for the accused to use as he or she sees fit. For reasons that I have indicated, unfairness in that broad sense is not relevant. The conduct of court proceedings, including criminal proceedings, can be affected by a variety of circumstances that result in material that is or might be relevant not being available to an accused person. It has never been the case that a trial is fair only if all potentially relevant material is available to the parties, or at least to the accused person in criminal proceedings. Such a wide notion of fairness cannot be supported by the authorities.
It cannot be said in this case, nor did Mr Edwardson argue, that Mr Bryant had been guilty of any misconduct. On the Magistrate’s findings it is possible that, by mistake, he failed to see something relevant on the film, or failed to view all relevant film. Any such mistake was an innocent mistake. In saying this I do not assume that a finding of carelessness or misconduct on his part would necessarily lead to a conclusion that the proceedings should be stayed.
In the present case there is no basis for criticising the investigation of the offence by the police. Having regard to the evidence of Mr Matto, and that of Mr Bryant, the investigating police could reasonably have assumed that any relevant film would have been provided to them.
It might be said that the police investigation was incomplete or deficient, even though the investigating officers are not to be criticised. It might be said, with the benefit of hindsight, that they should have insisted on being given all film relating to the relevant time, so that they could decide whether the film was relevant or not. I do not agree that this criticism can be made. But even if it can be said that the investigation was incomplete or deficient, for the reasons given by Callinan J in Penney I consider that such inadequacy in the investigation of the offence cannot itself provide a basis for a stay.
It cannot be said that the police, as the prosecuting authority, have failed to comply with the prosecutor’s duty of disclosure.
Next, it has to be borne in mind that the most that can be said about the missing film is that it might have recorded something relevant to the case. There is no way of knowing if it did. If the film recorded something relevant, the material might have assisted the prosecution, it might have assisted the defence, or it might have been neutral. That is the most that can be said.
Mr Edwardson rightly made the point that Mr Bryant’s reliability, and in particular his evidence that Mr Sherlock removed the ultra labels, is crucial to the prosecution case. The missing film is the one piece of objective or independent evidentiary material that might have enabled the defence to challenge Mr Bryant’s reliability.
But as against that it must be remembered that all one can say is that the missing film might have assisted either party.
Bearing that last point in mind, and remembering that courts must routinely decide cases on less than all of the potentially relevant evidence, it is not apparent to me how it can be said that the trial will be unfair because of the circumstance that there is a possibility that evidentiary material favourable to a defence case was not obtained and retained.
I return to the matters canvassed by the members of the High Court in Jago. I refer here to their treatment of the concept of a fair trial, and to the circumstances in which a trial should be stayed because it will be unfair.
I accept that there is no power available to the Magistrate trying the case which can redress completely the possibility that the defendant has been disadvantaged by the failure to retain the film. This is not a case, for example, in which it would be appropriate to exclude prosecution evidence because its reception would be unfair to the accused. However this is a case in which the procedural protection afforded by the criminal onus of proof is significant. The Magistrate will, necessarily, bear in mind when deciding if guilt is proved beyond reasonable doubt that he or she does not have the benefit of viewing the film. What would be gained by viewing the film cannot be known. The most that can be said is that there is a possibility that the material would have assisted the defence.
The missing evidentiary material does not deprive the court of the ability to assess the evidence that will be led. The Magistrate, as magistrates routinely do, will assess Mr Bryant and Mr Sherlock (if he gives evidence) in the light of all of the evidence. The film might have helped the Magistrate make that assessment. But without the film the Magistrate can decide the case in the manner that courts routinely do.
Bearing these things in mind, and to use the words of Wilson J in Barton, I cannot identify “a fundamental defect which goes to the root of the trial”. I cannot find anything oppressive in contemplating the likely course of the trial. There is nothing vexatious or oppressive in the conduct of the police in deciding to prosecute, nor did Mr Edwardson suggest that there was. The circumstance relied on by Mr Edwardson, the loss of possibly material evidence, is the kind of thing that happens not uncommonly. This is not even a case of “presumptive prejudice”, to use an expression used by Gaudron J in Jago at 78. It is a case of possible prejudice. It is equally possible that the prosecution case has been prejudiced.
For these reasons, I do not consider that unfairness of the kind that might enliven the power to stay proceedings is present.
Even if I am wrong in that, it would still be necessary to weigh the public interest in the court trying the charge, and also to take into account the exceptional nature of the remedy of a stay. Even if it could be said that there was some relevant unfairness here, in my opinion that unfairness is not sufficient to justify a stay of the proceedings.
Applying the approach taken in Ebrahim, it cannot be said that it is unfair that Mr Sherlock be tried. Nor can it be said that he cannot receive a fair trial.”
It is clear from the submissions on behalf of the accused that I am being urged to take the notion of unfairness to its absolute limit. I do not regard the matters advanced in paragraphs 27 and 28 as being either accurate or applicable. When dealing with this prosecution, I am obliged to proceed on the basis that the LTTE is a proscribed organisation.
The last matter which I left to be dealt with separately is the question of publicity. There is no doubt there has been a great deal of publicity about events in Sri Lanka and much of it (although by no means all of it) could be viewed as unfavourable to the LTTE. It would have created a very difficult climate if the original charges were to proceed as the question of whether or not the LTTE was a terrorist organisation fell to be decided. That is no longer so.
For reasons outside the control of the parties, the trial cannot proceed before the end of July at the earliest. Although one cannot assume that there will be no problem about publicity by that time, it is reasonable to at least hope that publicity will have diminished sufficiently as to not interfere with the trial.
Having considered all the material put before me on this application and all the relevant authorities, I am not satisfied that the proposed trial can be said to be necessarily unfair as that expression is understood in authorities. This is a case where it is very important to keep in mind that the prosecution must prove each element of the offence charged. In those circumstances, I do not see that any potential disadvantage which might exist would lead to the extreme step of staying this trial. In that context, I would also say it has not demonstrated to my satisfaction that it does exist.
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