R v Watson (No 2)
[2019] ACTSC 252
•11 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Watson (No 2) |
Citation: | [2019] ACTSC 252 |
Hearing Date: | 22 July 2019 |
DecisionDate: | 11 September 2019 |
Before: | Mossop J |
Decision: | See [90] |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Application for permanent stay – application for conditional stay – where Crown files a notice of discontinuance for the purposes of reissuing an indictment rather than ending a prosecution – tendency evidence – latent duplicity in indictment – coincidence evidence – application to admit evidence in a summary form – whether or not evidence admitted in a summary form should include a qualification EVIDENCE – SUMMARY DOCUMENT – Summary of evidence under s 50 of the Evidence Act 2011 (ACT) – whether merely aide‑memoire – whether underlying documents need to be tendered |
Legislation Cited: | Building Act 2004 (ACT) Court Procedures Act 2004 (ACT), s 76 Supreme Court Act 1933 (ACT), s 37S |
Cases Cited: | Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101 Fischetti v The Queen [2019] ACTCA 2 Zonneveld v The Queen (No 2) [2018] ACTCA 31 |
Parties: | The Queen (Crown) Andrew Watson (Accused) |
Representation: | Counsel K McCann (Crown) J Masters (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Marjason & Marjason Solicitors (Accused) | |
File Number: | SCC 161 of 2018 |
MOSSOP J:
Introduction
The accused has been charged on an indictment dated 17 April 2018 with:
(a)four counts of using a false document with the intention of dishonestly inducing someone else to accept it as genuine contrary to s 347 of the Criminal Code 2002 (ACT); and
(b)72 counts of dishonestly obtaining property by deception contrary to s 326 of the Criminal Code.
The nature of the Crown case is, in summary, as follows. The accused was a builder who owned and operated a business, ANDC Pty Ltd (ANDC). He was the sole director and secretary of the company. He and his wife were the shareholders. Through the company he engaged in residential building construction work in the Australian Capital Territory (ACT). One of the requirements of the Building Act 2004 (ACT) is that builders engaging in certain residential construction work have home owner’s warranty insurance (HOW insurance). A builder cannot obtain a commencement notice permitting the commencement of building works without holding such insurance. In March 2015 it is alleged that ANDC was refused HOW insurance cover by the Master Builders Fidelity Fund. It is then alleged that the accused, through ANDC, entered into four separate building contracts for which HOW insurance was required. The Crown alleges that, in order to obtain a commencement notice for each site, the accused submitted false HOW insurance certificates to the relevant building certifier. It is the use of the four false insurance certificates that gives rise to the four charges of contravening s 347 of the Criminal Code. Commencement notices were issued based upon the false certificates and building work proceeded. Claims were made pursuant to each building contract for payment of amounts said to be due under the contract. 72 payments were made pursuant to those contracts and it is those 72 payments which are alleged to give rise to the contraventions of s 326 of the Criminal Code.
There are four applications before me:
(a)an application by the accused for a permanent or conditional stay of the proceedings;
(b)an application by the Crown to adduce tendency evidence;
(c)an application by the Crown to adduce coincidence evidence; and
(d)an application by the Crown to present evidence in summary form.
Chronology of proceedings
In order to understand the application for a permanent or conditional stay it is necessary to provide a chronological history of the proceedings.
The events alleged to give rise to the offences occurred between March 2015 and July 2016.
Summonses in respect of seven counts were sworn in January 2018.
The accused first appeared in the Magistrates Court in February 2018 and the matters were committed for trial on 25 June 2018.
On 20 August 2018, the Crown filed an eight count indictment. Counts 1, 3, 5 and 7 were counts alleging the use of a false document (Criminal Code, s 347). Counts 2, 4, 6 and 8 were counts of obtaining a financial advantage by deception (Criminal Code, s 332).
On 15 March 2019, Elkaim J heard applications for pre-trial rulings in relation to tendency evidence and the adducing by the Crown of evidence in summary form. Both applications were granted.
On 26 March 2019, an amended indictment was filed which corrected a typographical error in relation to Count 1.
On 1 April 2019, the trial commenced before Burns J and a jury. After the jury was empanelled some preliminary matters were raised. The matter was adjourned until the next day to allow the accused to make a request for particulars and for the consideration of any other pre-trial issues.
When the matter recommenced on 2 April 2019, Burns J raised with the Crown and the accused the issue of latent duplicity in relation to the counts of obtaining a financial advantage by deception (Counts 2, 4, 6 and 8). That was because there was one charge in relation to each building contract and each such charge incorporated a substantial number of individual payments. His Honour indicated that the Crown would need to elect to rely on a particular payment in relation to each count or alternatively file a new indictment containing individualised counts reflecting each transaction. Counsel for the Crown was allowed time to consult the Director of Public Prosecutions and decided that a new indictment would be filed. As a result the jury was discharged and the proceedings adjourned. Counsel for the accused did not object to this course.
On 17 April 2019, a new indictment (the 17 April indictment) and case statement were filed. This involved four counts of using a false document, Counts 1, 17, 35 and 42. The counts were the same as Counts 1, 3, 5 and 7 on the previous indictment, except Counts 1 and 5 differed as to the date of the offences. There were then 72 counts of dishonestly obtaining property. This resulted from charging separately each of the payments that had previously been subject to Counts 2, 4, 6 and 8 on the original indictment.
The same day the Crown also filed a new tendency notice, a coincidence notice and advised that it would be making pre-trial applications to adduce tendency and coincidence evidence as well as an application to lead evidence in summary form.
On 23 April 2019 the Director of Public Prosecutions filed a notice declining to proceed in relation to each of the offences identified in the original indictment.
On 2 May 2019 the Crown’s pre-trial applications were listed for hearing on 27 June 2019.
On 16 May 2019 the matter was listed for directions before the Registrar and the accused indicated that an application for a permanent stay would be made. A direction was made requiring the accused to file a stay application by 30 May 2019. That was not done. An application for a permanent stay and an affidavit in support were filed on 24 June 2019.
All of the applications were argued before me on 22 July 2019.
Jurisdictional contention
Prior to dealing with the applications before me, it is necessary to address a jurisdictional contention advanced by counsel for the accused. Counsel for the accused submitted that the filing of the notice declining to proceed had the effect of terminating the whole proceeding so that the court was deprived of jurisdiction to deal with the 17 April indictment. The theory propounded by counsel for the accused was that the effect of a notice declining to proceed was that the whole of the proceedings were terminated. He submitted that there was a single prosecution and that the notice brought that prosecution to an end. Counsel accepted that if this theory was correct it must be because of the operation of s 7(6) of the Director of Public Prosecutions Act 1990 (ACT) (DPP Act) and that the effect contended for must arise notwithstanding the terms of the notice itself.
This submission is without merit. No authority was identified that supported it. No explanation was given as to how it was consistent with the terms of s 7(6) itself. Section 7(6) provides:
Where a person is under commitment or has been indicted for an indictable offence, the Attorney-General or the director may decline to proceed further in the prosecution of the offence and may cause the prosecution to be brought to an end.
It is quite clear that the subsection operates in relation to “an indictable offence”. It is that identified indictable offence which is referred to as “the offence” later in the subsection. It is in that context that the words “may cause the prosecution to be brought to an end” need to be interpreted. The context makes it clear that the reference to “the prosecution” is a reference to the prosecution of the particular offence which the Attorney-General or Director is declining to proceed with. It is obviously not a reference to the whole of any proceedings for any offences faced by the accused at that time.
For these reasons I do not accept the submission made by counsel for the accused that the court no longer has jurisdiction in relation to the 17 April indictment.
Stay application
The application dated 24 June 2019 seeks a permanent stay of the proceedings or, in the alternative, a temporary stay of the proceedings until the Director of Public Prosecutions pays the accused’s costs wasted by his declining to proceed further in prosecuting the original indictment.
Submissions of the accused
The submissions advanced on behalf of the accused contained a number of elements.
The accused submitted that the Crown had power to apply to have the indictment amended and that would have given capacity to both the accused to oppose the amendment and the court to refuse the amendment. He submitted that the court would not have permitted an amendment which transformed the eight count indictment into a 76 count indictment. Therefore, he submitted that by using the power under s 7(6), the Crown effectively deprived the accused and the court of the opportunity to exercise their rights and powers and did so in a manner that amounted to an abuse of process. He submitted that it was not open to the court to refuse to allow the Director to exercise his power under s 7(6), but it was open to the court to disallow the recommencement of the prosecution if the recommencement was an abuse of process. He characterised the circumstances as being similar to those which were considered in R v YL [2004] ACTSC 115; 187 FLR 84 (YL) in which Crispin J found that the filing of a notice of discontinuance amounted to an abuse of process when it was done in order to permit the Crown to appeal against an adverse evidentiary ruling made during the course of the trial.
Counsel for the accused also submitted that the conduct of the Director amounted to a contravention of s 21 and s 22 of the Human Rights Act 2004 (ACT). In that regard he relied upon the characterisation by Crispin J of the circumstances in YL as involving and unjustifiable infringement of the rights in those provisions: YL at [90].
As particulars of the breach of the Human Rights Act and as standalone grounds warranting a stay of the proceedings he also relied upon:
(a)the delay in the proceedings occasioned as a result of the course adopted by the Director; and
(b)the nature of the indictment which he characterised as “oppressive and overloaded”.
So far as the “overloaded indictment” was concerned he submitted that the inclusion of more than one count in relation to payments by each of the contracting parties would not increase the overall gravity of the conduct alleged. He submitted that the inclusion of 72 counts relating to the charges of obtaining property by deception would lead a jury to reason that there were so many counts that the accused must be guilty of something and would also lengthen the trial as a result of the necessity for the accused to be arraigned on all of the counts, for the jury to give separate consideration to each of the counts and for the jury to give a verdict on each of the counts.
He submitted that the Crown should only be allowed to prosecute one count of obtaining property by deception in relation to each complainant, reducing the total number of counts to eight.
He therefore submitted that a permanent stay should be granted.
If the court found that a permanent stay should not be granted, then he submitted that there should be a temporary stay until the Crown paid the costs of the case management proceedings and pre-trial applications prior to the first trial, as well as two days’ of wasted costs in relation to the discontinued trial. The costs in relation to which the stay was sought were not quantified in the affidavit relied upon in support of the application.
Consideration
It is useful to say something more about the decision in YL as the factual circumstances bear some similarity to those in the present case and the outcome in YL was that which is contended for by the accused in this case.
The case involved the prosecution of a woman for two assaults on her stepson who was, at the time of the trial, seven years old. Although the trial judge rejected an objection to the giving of evidence by the child in the case, the trial judge declined to make coercive orders requiring the child to attend court and declined to admit previous representations made by the child because, for the purposes of s 137 of the Evidence Act 1995 (Cth) (Evidence Act (Cth)), the probative value of the evidence was outweighed by the danger of unfair prejudice to the defendant. The Crown applied to discharge the jury so that the rulings could be tested. That application was refused. The Crown then sought to issue a notice declining to proceed under s 7(6) of the DPP Act. His Honour found that this amounted to an abuse of process and refused to permit the notice to be filed. The Crown then called no evidence in support of the charges and directed verdicts of acquittal were entered.
Crispin J found that the Director was not entitled to proceed as he had sought to do for three reasons. First, s 7(6) did not authorise the Director to sign a notice contingently to be held by prosecutors and tendered or not tendered at their discretion or in the event of adverse rulings. In other words, the power did not extend to a power to issue a document in escrow enabling the Crown to proceed with the prosecution unless and until some adverse event occurred during the trial. Second, the purpose of the issue of the notice was “almost certainly unachievable” because his Honour considered that “it is difficult to imagine any appellate court granting leave for a party to appeal against an interlocutory decision made in the course of proceedings which that party had subsequently discontinued or otherwise brought to an end” (see [82]-[83]). The use of the notice followed by an application for leave to appeal would effectively circumvent the provisions of s 37S of the Supreme Court Act 1933 (ACT) (which relates to Crown reference appeals) which prevent any decision in a reference appeal from exposing the accused again to conviction for the same offences. Third, his Honour considered that the filing of the notice would amount to an abuse of process. He considered that it was not appropriate for the notice procedure to be used as a means of aborting the trial because it had gone badly for the prosecution and in the hope of doing better at a subsequent trial. His Honour considered that the right to a fair trial in s 21 of the Human Rights Act and the right in s 22 to be tried without unreasonable delay would have been unjustifiably infringed by the course proposed. In those circumstances, his Honour considered that it was appropriate to intervene in order to prevent the abuse of process at that stage, rather than leaving the accused to make an application for a stay of proceedings at some stage in the future should the Director seek to file a further indictment in respect of the same charges.
Although the present case does involve the filing of a notice declining to proceed, the circumstances are different in important respects. The potential difficulty with the latent duplicity of the indictment was not a matter which had been raised by the accused. Rather, it was a matter which was raised by the trial judge. It was the trial judge who suggested, as one of the alternative courses available to the Crown, that a notice declining to proceed be filed along with the new indictment identifying a separate charge in relation to each of the payments said to amount to a financial advantage. There was no objection by counsel for the accused to adopting that course at the time and no submission that any unfairness would arise from adopting that course. It is useful to describe the circumstances in some more detail.
Prior to the empanelment of the jury, counsel for the Crown had raised a number of preliminary issues concerning the way in which the case was to be put and earlier pre‑trial rulings. She identified that the gain alleged for the purposes of the charge of obtaining a financial advantage by deception was each of the payments made by the homeowners. She indicated her intention was to provide an aide‑memoire to the jury as part of her opening, namely a document outlining elements of the offences and a document containing a list of names of the entities and persons who would be referred to during the trial.
As a result of a discussion with counsel for the accused, his Honour indicated that it would be best if the Crown did not open on the issue of tendency so as to give counsel for the accused more time to consider whether the previous ruling needed amendment. Counsel for the accused raised an issue as to how the financial advantage or gain was particularised for the purposes of those charges. His Honour indicated that he proposed to empanel the jury and then release them until the next day, starting at 9:15am so as to deal with any applications or submissions that the parties wished to put to him prior to commencing the trial at 10.00am. He directed that any request for particulars be made to the Crown by 4.00pm that day and that a written response be provided by 6.00pm. Counsel for the accused indicated that he objected “vehemently” to the provision of documents to the jury during the Crown’s opening. His Honour deferred that issue until the next day. The jury was then empanelled and the proceedings were adjourned just before lunchtime.
The next day, counsel for the accused indicated that sufficient answers to the request for particulars had been obtained. He then addressed whether or not the ruling in relation to tendency needed to be amended. He indicated that only very minor, if any, amendment needed to be made in relation to the ruling on tendency.
He then addressed his objection to the provision to the jury of the aide‑memoire during the course of the Crown’s opening. At the conclusion of his submissions the trial judge raised the question of whether there was latent duplicity in the charges which alleged the gaining of a financial advantage. That was because each charge incorporated multiple separate payments made by the complainants under the relevant building contract. His Honour said:
Look, there is one matter that hasn’t been raised by either party at the present time, and that is that I am concerned that there is a latent duplicity in the charges. The charges all allege the gaining of an advantage, a financial advantage, obtaining a financial advantage or obtaining a gain. Now, it’s become clear from the statements made by the Crown yesterday that they are now relying upon each case the payment of moneys by the owners to the company. Now, as I understand, the statement of facts in each case, the case statement, there were multiple payments by each of the owners
…
So does that not lead to a latent duplicity in the charges, in that you have multiple demands, as it were, for money under the contract and multiple payments based upon, albeit, the same act of dishonesty?
His Honour discussed the issue with counsel for the accused and counsel for the Crown. Counsel for the Crown indicated that she “may need just a few moments to think what would be the best way forward”. The transcript then records:
His Honour: Well, it seems to me, if I can provide you with some assistance.
Ms McCann: Yes. Thank you.
His Honour: It seems to me that there’s only two choices.
Ms McCann: Yes.
His Honour: That you either elect to proceed on one transaction per charge or alternatively, you offer a nolle with respect to the present trial, present indictment and then you proceed on the fresh indictment.
Ms McCann: Which would particularise obviously a number of counts.
His Honour: Which would set out separate charges for each transaction.
Ms McCann: Yes.
His Honour: That seems to - I mean---
Ms McCann: I agree.
His Honour: I simply say this for your assistance, if you change your mind or if you form a different view, then so be it.
Ms McCann: Yes. I’m grateful for your Honour’s assistance. Thank you.
Counsel for the accused then identified a third possibility, namely that the Crown could identify that its case in relation to each charge was that the sum of all amounts paid had to be proved beyond reasonable doubt in order to establish the charge.
His Honour then adjourned.
38 minutes later his Honour returned and counsel for the Crown indicated that the Crown intended to file a new indictment in relation to the obtain financial advantage offences so as to particularise each transaction. She indicated that it would take “a little bit of time” and would require the rearraignment of the accused on the new indictment. His Honour indicated that a fresh jury would need to be empanelled. The following exchange occurred:
Ms McCann: Regrettably, I think, that is the case, your Honour. And obviously I take responsibility for this and I appreciate that having---
His Honour: No, it’s something that hadn’t occurred to counsel, either yourself or Mr Masters, and it’s something that only occurred to me late yesterday afternoon.
There was a discussion about when the matter would proceed. His Honour indicated that the appropriate course was for the Crown to file its notice declining to continue further on the present indictment and then for the jury to be discharged. He asked counsel for the accused what he wished to say. Counsel for the accused said: “I’ve got nothing constructive to add to that, your Honour”. Counsel for the Crown indicated that it would take about 10 minutes to prepare the notice declining to proceed.
After a short adjournment counsel for the Crown raised the potential difficulty that might arise if the notice declining to proceed was filed without any new indictment being before the court. She suggested that the jury could be discharged on the basis that the notice would be filed in due course. Counsel for the accused indicated another possibility that a single count indictment be prepared and subsequently amended to include all of the relevant charges. His Honour indicated that this was not an attractive alternative. His Honour indicated that he would discharge the jury on the basis that the Crown undertook to file a notice and a fresh indictment. The jury was then discharged. His Honour considered that the better course was not to attempt to empanel another jury during that week, but instead to put the matter back into a callover. Counsel for the accused was asked what he wished to say and said: “I don’t want to say anything, your Honour”. The matter was then placed back in the Registrar’s directions list on Thursday of the following week.
The fact that the issue was raised by the judge and not the parties, that the course to be adopted was one suggested by the judge himself and the fact that counsel for the accused took no objection at all to adopting that approach are matters of significance in determining whether the course adopted amounted to an abuse of process.
If the charges of obtaining a financial advantage by deception in the original indictment encompassed multiple payments within a single charge then the charges involved duplicity: Walsh v Tattersall (1996) 188 CLR 77; 88 A Crim R 496; R v Giam [1999] NSWCCA 53; 104 A Crim R 416. There was no evidence that the charges had been formally particularised in that manner. However if the charges themselves did not identify separate payments, then they were probably more correctly characterised as a case of latent ambiguity rather than duplicity: Johnson v Miller (1937) 59 CLR 467 at 486. His Honour was correct in characterising the difficulty as latent duplicity given that, as a result of what was contained in the case statement and the material subject to the s 50 order, he could anticipate the evidence that the Crown intended to rely upon and say with confidence that the case proposed to be run would involve duplicity.
The course adopted by the Crown was one which was necessary because of the issue of latent duplicity and the limitations on the Crown’s capacity to amend the indictment under s 264 of the Crimes Act1900 (ACT). Addressing the issue of latent duplicity was important in order to permit the jury to fairly consider the case against the accused insofar as it was dependent upon proof of individual payments. As a matter of substance the case against the accused remained the same in that the same collection of payments were to be relied upon and proved whether or not the indictment contained four charges or 72 charges. The change in the offence charged from s 332 to s 326 of the Criminal Code was not asserted to be of significance. If the filing of a new indictment incorporating the non-duplicitous charges and the ending of proceedings based on duplicitous charges as a technique for addressing the issue of duplicity amounted to an abuse of process, then that would be the case at any stage of the proceedings after committal. I accept that the filing of ex officio charges in this manner is done for the purposes of otherwise avoiding the restrictions upon amendment set out in s 264 of the Crimes Act. However the existence in s 7 of the DPP Act of an express statutory power to bring ex officio proceedings necessarily carries with it the avoidance of procedures and limitations which would otherwise exist in relation to criminal charges if that power was not exercised. More is necessary than the mere exercise of the statutory power in a manner which avoids the operation of s 264 in order to establish that the filing of the new indictment would amount to an abuse of the court’s process.
There are three areas of enquiry which might have supported the contention that the actions of the Crown amounted to an abuse of process, but an analysis of each of these grounds indicates that it was not. First, the course suggested was one identified as an appropriate course by the trial judge. That contrasts with the situation in YL. Second, the substantive case against the accused remains the same. The evidence to be led against the accused remains the same. The alleged conduct of the accused remains the same. Any adjustments to the rulings necessary in the case will be minor. As a consequence, any relevant prejudice in the running of the case arising from the amendment will be minor or negligible. Third, it is relevant to take into account that during discussion about how the issue of duplicity should be addressed, counsel for the accused made no submission, objection or otherwise give any indication that he believed the course which was proposed and subsequently adopted was inappropriate.
That leaves two other matters to consider:
(a)the allegation that the new indictment is “overloaded”; and
(b)the cost and delay imposed upon the accused by reason of the adjournment of the proceedings.
The authorities recognise that, in some cases, it will be unfair to an accused person to be tried on a large number of counts which are presented on a single indictment. R v Smart [1983] 1 VR 265 involved an appeal relating to a trial involving 63 counts, all of which were included on a single indictment. The distinguishing feature of the case was the complex factual circumstances relating to the payments giving rise to the charges and the necessity for the jury to trace those payments through a number of entities. Whether or not an indictment is required to be severed will be very dependent upon the particular circumstances of the case. The number of counts is, of itself, not determinative of prejudice to the accused: “[there is] no precise mathematical limit to the number of counts that can be joined in one presentment” R v Smart at 283. However, the circumstances may be such that, due to sheer complexity of the matter or other prejudice to the accused, it is unfair for the Crown to proceed on a single indictment.
Notwithstanding the large number of charges necessitated by the avoidance of latent duplicity, the allegations against the accused remain relatively straightforward. Significant portions of the evidence relevant to the different sets of charges are exactly the same and are common to all of the charges as they relates to the background circumstances of the inability of ANDC to obtain insurance. All of the evidence to be led on the different sets of charges will be admissible in relation to the other charges by reason of the fact that it is admissible for tendency purposes (as to which, see below). The number of charges arises from the number of different payments, but in relation to any one of the four contracts the circumstances of those individual payments are almost identical and are likely to provide little difficulty for the accused to fairly meet the charges, for the judge to give directions or for the jury to make a decision in relation to them. The degree of complexity bears no resemblance to the degree of complexity in Smart and it is clear in my view that an attentive jury would not be caused any confusion or difficulty: R v Reid [1999] VSCA 98; 2 VR 605 at [169]. Any additional time necessary for the arraignment of the accused, the consideration of individual charges by the jury and the announcement of their verdict will be modest in comparison with the length of the trial. I therefore do not accept the submission that the indictment is overloaded or oppressive.
So far as cost and delay is concerned the evidence led by the accused as to the costs consequences of the approach adopted was limited. The affidavit of the solicitor for the accused, Mr Marjason, said:
The Crown has also lodged a fresh application to allow, summary evidence, tendency and coincidence evidence. Days of preparation and hearing time for pre-trial applications have been wasted together with the first day of the trial.
The applicant is privately funding his defence and a substantial amount has been wasted due to the Crown’s lack of preparation and applications.
The length of the trial has been substantially increased as a result of the Crown’s conduct.
I accept that some of the unspecified time spent on preparation for the original trial will have been wasted. I also accept that the costs of the two days of the trial have been wasted. I accept that some of the costs of the pre-trial application in relation to the original indictment will have been wasted. Save for the two days of trial, I consider that the costs incurred otherwise have been only partially wasted because the Crown case against the accused remains essentially the same. The areas of factual contest remain the same. Some additional time will need to be spent considering the amended indictment and there will be additional costs associated with preparation for the trial a second time.
So far as delay is concerned, the approach adopted has had the effect of delaying the trial of the proceedings from April until late September 2019, a period of approximately six months. The proceedings were commenced in January 2018 and have been on foot in the Supreme Court since June 2018. These periods are longer than desirable, but not such as to be of themselves a significant source of oppression to the accused. No evidence of any particular disadvantage or effect of the length of time taken to finalise the proceedings was led in support of the application.
The increase in the cost of the proceedings and the delay in their completion are matters which need to be taken into account. However, having regard to the circumstances in which the issue of latent duplicity arose and the absence of other circumstances which would make the continuation of the proceedings oppressive or unfair, they are not sufficient to permit the characterisation of the continuation of the proceedings as an abuse of process.
In assessing whether or not the maintenance of the proceedings constitutes an abuse of process or is otherwise so unfair as to warrant the granting of a permanent stay or a conditional stay pending payment of costs, it must be borne in mind that this is an exceptional remedy to be used only in extreme cases: R v Chute (No 4) [2018] ACTSC 259; 337 FLR 222 at [49]-[50]; Zonneveld v The Queen (No 2) [2018] ACTCA 31 (Zonneveld) at [25]. It also necessary to bear in mind consistently with the decision in Zonneveld that the unfairness to the accused is not restricted to unfairness in the trial itself but extends to “the process of the court from the instigation of a prosecution through to the ultimate trial”: Zonneveld at [26]. The re-prosecution of an accused who has previously had a nolle prosequi entered in relation to the same charges is not, of itself, sufficient to demonstrate an abuse of process: R v Swingler [1996] 1 VR 257 at 265-266.
The circumstances in the present case, whilst reflecting poorly upon the drafting of the original indictment, do not approach circumstances which are exceptional so as to warrant the grant of a permanent stay. They involve an attempt to regularise the drafting of the indictment to achieve a prosecution according to law in circumstances where no objection had been taken by the accused to the form of the indictment and no objection was taken to the course to be adopted to regularise it. They involve only a relatively modest imposition of wasted costs and delay upon the accused. The evidence is a long way from establishing such a degree of unfairness or oppression arising from the circumstances as to amount to an abuse of process or otherwise warrant the grant of a permanent stay.
In support of the application for the stay counsel for the accused relied upon s 21 and s 22 of the Human Rights Act 2004 (ACT). He did so because these were the provisions referred to in the course of Crispin J’s reasons in YL at [90]. In my view, requiring the accused to face charges which are not duplicitous does not involve any infringement of the right to a fair trial under s 21 even though it does increase the number of charges on the indictment and has involved some wasted costs. Further, the delay occasioned by the adjournment of proceedings so as to permit the 17 April indictment to be relied upon does involve some delay, but it does not involve an infringement of the right under s 22(2)(c) “to be tried without unreasonable delay”.
For those reasons I decline to grant a permanent stay of the proceedings. In light of the limited nature of the evidence about the costs consequences, the absence of a significant change in the Crown case and the circumstances in which the need to file a new indictment arose, I also decline to grant a temporary stay of the proceedings pending the payment of costs.
Tendency application
Application
The Crown application to adduce tendency evidence is intended to permit the cross‑admissibility of the counts on the indictment. The tendency relied upon is:
A tendency to represent, and hold that his company, ANDC Pty Ltd was legally able to perform residential construction work in the ACT, knowing that ANDC Pty Ltd [was] not legally able to perform such work, with the intention of obtaining payments for that residential construction work.
The relevant provisions are ss 97 and 101 of the Evidence Act 2011 (ACT) (Evidence Act (ACT)). The operation of these principles as articulated in the relevant authorities was set out recently in Fischetti v The Queen [2019] ACTCA 2 at [56]-[64] and I adopt those principles.
Submissions
The accused took issue with whether or not the evidence would have significant probative value. Counsel for the accused submitted that each count was a stand‑alone count and that it was not necessary for the Crown to rely on coincidence or tendency to establish an element of the offence. He submitted that the fact that each count stood alone reduced the significance of the tendency or coincidence evidence and said that if the accused did something a number of times, that fact would not assist the jury in reaching a verdict on any count. He submitted that if there was a doubt on one count that the accused was being dishonest, the mere fact that he had done it on other counts in the context of this trial would make no difference.
He submitted that as a matter of construction, the tendency alleged by the Crown was not based in law as a HOW insurance certificate was not required for construction as a general proposition. He submitted that the appropriate time to make an application for tendency purposes was when the jury might be left in doubt about a particular fact, at which point they may then be entitled to rely on tendency.
Decision
The application is made in a context in which no admissions have been made and hence all issues must be proved by the Crown. The Crown, amongst other things, must prove that the accused used the false certificates knowing that they were false with the intention of inducing another person to accept them and with the intention of consequently obtaining a gain. The Crown must exclude a reasonable doubt as to the state of mind of the accused when he used the documents. Establishment of any one of the offences will necessarily involve acceptance of evidence which strongly supports the existence of the articulated tendency. Given the similarity between the alleged offending conduct, the establishment of the tendency will provide significant support to the Crown case in relation to other charges. I am satisfied that the evidence is of significant probative value.
So far as s 101 is concerned, there is negligible relevant prejudice to the accused. Because the issue is one of cross‑admissibility the evidence does not involve uncharged acts or other evidence beyond that which would be relied upon in any event. Further, there is no other reason why the evidence because of its nature or volume would be relevantly prejudicial if used for tendency purposes.
Therefore it is appropriate to rule that evidence is admissible for tendency purposes.
Coincidence application
Application
The Crown sought to adduce coincidence evidence in order to prove that it was the accused who used the false HOW insurance certificates in respect of each of counts 1, 17, 35 and 42, and at the time, the accused knew that the HOW insurance certificates were false. The evidence sought to be adduced was the evidence in relation to each of those charges. In other words it was a case of cross‑admissibility of evidence for coincidence purposes. Because it would not involve any additional admission of evidence, the ruling is required in order to allow the evidence to be admitted for a coincidence purpose.
Section 98 of the Evidence Act (ACT) requires notice to be given and that the evidence have “significant probative value”. Section 101 also requires that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the defendant.
There was no issue that appropriate notice had been given.
Consideration
The accused made a number of submissions in relation to whether or not the evidence had significant probative value. Only one was relevant to the way in which the Crown articulated the application. In relation to the Crown argument that the use of the evidence for coincidence purposes would prove that the accused sent the false HOW insurance certificate and knew that the certificate was false, counsel for the accused made the submission that “[i]f each count can speak for itself, there is no need for the coincidence evidence. It is not simply a bolstering exercise.” This submission fails to grapple with the purpose of the coincidence evidence. On the Crown case there is, in relation to two of the counts, no direct evidence that the allegedly false HOW insurance certificate was sent by the accused (or from his email address) to the certifier. The coincidence evidence is designed to support the inference that it was the accused who provided the certificate to the certifier and that he knew that the certificate was false. The reasoning contended for by the Crown would be that if the jury was satisfied of the other two occasions (or either of them), then it would be very unlikely that it was another person who sent the document to the certifier on the occasions where there is no direct evidence that it came from his email address. It would be highly improbable that it would be a coincidence that the two other certificates were obtained by the certifier other than having been sent or provided by the accused in circumstances where:
(a)the accused was the sole director and secretary of the company;
(b)in relation to each building contract, it was the accused who executed the contract on behalf of ANDC;
(c)in relation to each building project, ANDC did not have the required HOW insurance;
(d)the contracts to which the certificate related were contracts entered into by the company;
(e)the false HOW insurance certificates were in the same or similar form to each other; and
(f)the false certificates were sent to the same company, where the accused’s wife worked as a certifier.
Similarly if it was proved in relation to one of the counts that the accused knew that the document was false, it would be a highly improbable coincidence that there were other documents of the same nature that were sent to the certifier which he did not know were false.
In my view, it is very clear that if the jury accepted that the coincidence was improbable this would have significant probative value in relation to whether it was the accused who provided the certificates and knew that they were false.
So far as prejudice was concerned, the submission made by counsel for the accused was: “[i]t is submitted that the coincidence evidence is highly prejudicial”. This submission was not developed. In assessing whether there is any relevant prejudice it is relevant to note that no additional uncharged evidence is sought to be called because all of the evidence relates to charged acts. The only significance of the application is in relation to the submission that the Crown is entitled to make based upon the proven facts. There is likely to be little difficulty in explaining the significance of coincidence evidence to the jury and the manner in which it may be used. There is a negligible risk that the jury will be confused by the use of the evidence for coincidence purposes or somehow misuse the evidence in relation to the other charges. The use of the evidence for coincidence purposes will not lengthen the trial. I am therefore satisfied that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the defendant.
For these reasons it is appropriate to rule that the coincidence evidence is admissible for that purpose.
Section 50 application
Application
The Crown sought an order under s 50 of the Evidence Act (ACT) permitting proof of the content of bank records in a summary form which showed payments into the account of ANDC by the four sets of persons with whom the company had contracted to undertake building work. The Crown sought to have the summary made admissible because of the volume of the underlying bank records and the irrelevant material in those bank records.
The summary was in the form of a table. The table included a heading “Summary of Payments made to ANDC Pty Ltd (Andrew Gregory Watson)”. The first part of the table contains an overview of all of the relevant transactions. Subsequent parts of the table contained summaries of the payments relating to each individual building contract.
Consideration
Counsel for the accused objected to the word “overview” and to the words “Andrew Gregory Watson” wherever they appeared. That is because the payments were actually made into a bank account of the company rather than of the accused. It was therefore a gloss on the content of the documents to include in the summary that reference next to the name of the company. It tended to suggest that there was no distinction between the company and the accused, a matter which may well be the subject of submissions at the trial. The Crown did not oppose the amendment of the summary so as to remove the reference to “Andrew Gregory Watson”. In my view the use of the word “overview” is not objectionable. It is a relevant way of describing that part of the summary and does not have buried within it an opinion or contention that is controversial.
Prior to the earlier trial, Elkaim J had made an order under s 50 by consent. That order was subject to the qualification that “the permission does not involve any concession by the accused that the summarised documents are accurate”. Counsel for the accused also submitted that any order should be made in the same terms as the order that was made by Elkaim J, namely that it should include the qualifier “but noting that the permission does not involve any concession by the accused that the summarised documents are accurate”. Counsel submitted that even with a s 50 order, the source materials would still have to be made available to the jury. He did not identify any authority which supported that proposition. He submitted “what I’m saying is just a common sense approach to the legislation”. He then submitted that the court should not come to a conclusion different to that reached by Elkaim J because it deprives the accused of the decision made by Elkaim J merely because the Crown has replaced the indictment. He submitted that the effect of s 50 was to “formalise the aide‑memoire approach” by in effect summarising the submissions of a party about documents that were otherwise in evidence. He did not identify any aspect of the summary which failed to reflect the relevant parts of the documents. He did not identify any forensic advantage that his client might obtain from the whole of the contents of the underlying documents if they were required to be tendered. While he gave as an example of a situation where the use of a summary would be inappropriate, namely, a situation in which the underlying documents were said to be fraudulent, he did not submit that such a situation applied in the present case or that the underlying documents would be inadmissible.
He then submitted:
(a)that the court had no power to make a ruling that was contrary to the order made by Elkaim J;
(b)that if the court did have the power than the prosecution should be stayed as an abuse of process until either the Crown withdraws its application or consents to applying the qualification in the order made by Elkaim J; and
(c)that the Crown should not be permitted to adopt a different approach in circumstances where the substance of its case remained the same.
The three matters that must be proved for the purposes of an application under s 50 are:
(a)whether the document sought to be tendered is a summary of the documents;
(b)whether the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question; and
(c)whether the party seeking to adduce the evidence has served on each other party a copy of the summary that discloses the name and address of the person who prepared it and given each other party reasonable opportunity to examine a copy of the document in question.
With the amendment so as to remove from headings a reference to the name of the accused, I am satisfied that the tables are summaries of information contained in the underlying documents. They are selective in the sense of identifying those transactions which are relevant to the issues in the present proceedings. They select out those transactions and summarise the effect of the transactions by including totals of the individual transactions in relation to each of the building contracts. In reaching the conclusion that the documents contain a summary of the evidence contained in the documents, the approach that I have adopted is that the summary is a summary of the evidence sought to be extracted from the documents rather than a summary of all of the content of the documents: Thackray v Gunns Plantations Ltd [2011] VSC 380; 85 ACSR 144 at [67]; Re Idylic Solutions Pty Ltd [2012] NSWSC 568 at [66]. A summary necessarily involves some opinion as to the meaning of the documents (hence the necessity for s 50(3)), but the level of any judgment or subjective opinion in the present case is negligible, meaning that it still has the character of a summary: Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101 at [12]‑[13].
I am also satisfied that the volume of the underlying documents is such that it would not otherwise be possible to conveniently examine the evidence. As this requirement involves the satisfaction of the court and makes reference to issues of convenience it involves an exercise of judgment. In the present case there were hundreds of pages of bank records and other documents disclosing payments to ANDC Pty Ltd. Having examined the CD which contains electronic copies of these documents, I am satisfied that it would not otherwise be possible conveniently to examine the evidence because of its volume. While the documentary material is not the most complex, this is clearly a case in which the threshold in s 50(1) is met.
Finally, I am satisfied that a reasonable opportunity has been given to the accused to examine copy the documents in question. There was no issue about this at the hearing.
In considering whether to make a direction under s 50 it is necessary to take into account the matters in s 192 of the Evidence Act (ACT). The considerations in s 192(2), to the extent to which they are relevant, clearly favour the making of an order.
The principal contention of the accused was in relation to whether or not the qualification should be included in the order which would necessitate the tender of all of the underlying documents in any event. That was a submission which completely misunderstands the effect of s 50. The point of s 50 is not merely to permit a finder of fact to be given an aide‑memoire with which to understand a mass of complex documents. Rather, it is, as its terms indicate, designed at providing a facility to a party to adduce evidence of the contents of documents by way of a summary. That avoids the objection to the adducing of such evidence that it is merely a hearsay statement of the contents of another document. There is nothing that requires that the underlying documents also be tendered. On the other hand, nothing prohibits the tender of the underlying documents by either party. It is certainly open to the other party to tender some or all of the underlying documents and take issue with the evidence adduced in the form of the summary. The likelihood is that unless some evidence to contradict or qualify the evidence in the summary is given then it will be very difficult for the other party to contradict the content of the summary. However, for the purposes of the present application, no inaccuracy was identified in the summary and no unfairness was identified in putting forward the evidence in a summary way rather than by the tendering of the voluminous underlying materials. The capacity to tender the summary does not require the accused to make any admissions. It merely permits the tendering of evidence in a simpler and more discrete form than would otherwise be the case. It remains open to the accused to contest the evidence that has been summarised. However, unless some evidentiary basis is established one way or another for such a challenge, then it will be difficult to do this effectively.
So far as the other objections were concerned, it is not clear whether the reason for the qualification imposed by Elkaim J was because an order in that form was by consent or whether his Honour gave particular consideration to the issue. The qualification was unnecessary insofar as it suggested that the use of the summary might involve an admission on the part of the accused. As outlined at [86], permitting a summary does not involve compelling the accused to make an admission. If there is some reasonable argument about the meaning or authenticity of the underlying documents then it is likely that that would provide a good basis for refusing to permit the evidence to be given in summary form. However, the accused is not obliged to oppose the use of a summary document. He can lead evidence to contradict the evidence given in summary form. Therefore the qualification on the order was unnecessary.
Insofar as counsel for the accused submitted that there should be no departure from the terms of the order made prior to the earlier trial, in my view it is clear that it is open to me exercising the pre-trial jurisdiction of the court under s 76 of the Court Procedures Act2004 (ACT) to depart from the terms of that order and that it is appropriate to do so. First, the argument on the applications was made on the basis that since there was a new indictment altering the charges it was appropriate to reconsider each of the earlier rulings that had been made. Interlocutory orders may be varied by other interlocutory orders. Section 76(3) of the Court Procedures Act only makes interlocutory orders binding upon the trial judge and does not prevent their variation prior to the trial if the circumstances warrant it. Second, for the reasons I have given above, I consider that to include the qualifier proposed by counsel for the accused would involve a confusion as to the proper scope of s 50 and that it is not appropriate to perpetuate that confusion up until the trial. Third, if the effect of the qualification would be to compel the Crown to tender all of the underlying documents then that would involve, in effect, a refusal of the s 50 application. Fourth, there is no relevant prejudice to the accused as it is still open to the accused to adduce evidence to contradict the evidence in the summary. In my view it is clearly appropriate to make a different order to that which had previously been made.
It will be apparent from the above that I also do not accept the submission that the Crown should be compelled by way of a conditional stay of the proceedings to agree to the insertion of the previous qualification upon the s 50 order.
Orders
The orders of the Court are:
1. The Application in Proceedings dated 24 June 2019 is dismissed.
2. The Crown is permitted to adduce tendency evidence in the trial of the accused as notified in the Notice of Intention to Adduce Tendency Evidence dated 17 April 2019.
3. The Crown is permitted to adduce coincidence evidence in the trial of the accused as notified in the Notice of Intention to Adduce Coincidence Evidence dated 17 April 2019.
4. The Crown is permitted to present evidence of the contents of the documents contained in Annexure C to the affidavit of Maree Skalistis dated 30 May 2019 in the form of the summary at Annexure A to that affidavit on the condition that the reference in the heading to “(Andrew Gregory Watson)” is deleted.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 September 2019 |
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