Salmat Document Management Solutions Pty Ltd v The Queen
[2006] WASC 65
SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD & ORS -v- THE QUEEN [2006] WASC 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 65 | |
| Case No: | INS:16/2005 | 24 - 28 OCTOBER 2005 | |
| Coram: | MCKECHNIE J | 12/04/06 | |
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Indictment stayed permanently | ||
| A | |||
| PDF Version |
| Parties: | SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD MATTHEW JAMES HALL NICHOLAS JOHN ALDRIDGE PATRICK JOSEPH WARD THE QUEEN |
Catchwords: | Criminal law and procedure Stay of indictment Interests of justice Double jeopardy Delay in prosecution Documents missing Tainted witnesses Whether a fair trial can be had |
Legislation: | Crimes Act 1914 (Cth) Criminal Procedure Act 2004 (WA) Proceeds of Crime Act 1987 (Cth) |
Case References: | Bankinvest v AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Ltd v Shultz [2004] HCA 61; (2004) 79 ALJR 348 Bunning v Cross (1978) 141 CLR 54 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299 Connelly v DPP [1964] AC 1254 Davis (1995) 81 A Crim R 156 Doney v The Queen (1991) 171 CLR 207 Duncan v Crews; Stanley v Farlow (2001) 161 FLR 250 Garrett v The Queen (1978) 139 CLR 437 Hunter v Chief Constable West Midlands Police [1982] AC 529 Jago v District Court of New South Wales (1989) 168 CLR 23 Johannsen & Chambers (1996) 87 A Crim R 126 Lam (1998) 100 A Crim R188 Lipohar v The Queen (2000) 200 CLR 485 Longman v The Queen (1989) 168 CLR 79 Maxwell v The Queen (1996) 184 CLR 501 Mickelberg v The Queen (No 3) (1992) 8 WAR 236 Pearse v Pearse (1846) 1 De G & Sm 12; 63 ER 950 R v Carroll (2002) 213 CLR 635 R v Hoar (1981) 148 CLR 32 R v Reeves (1994) 1 ACTR 1 R v Salmat Document Management Solutions Pty Ltd & Ors [2005] WASC 232 R v Storey (1978) 140 CLR 364 Re Chapman & Jansen (1990) FLC 92-139 Re Grinter Ex parte Hall (2004) 28 WAR 427 Rodway v The Queen (1990) 169 CLR 515 Rogers v The Queen (1994) 181 CLR 251 Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268 VIM v The State of Western Australia [2005] WASCA 233 Walton v Gardiner (1993) 177 CLR 378 Barker v Wingo (1972) 407 US 514 Barton v The Queen (1980) 147 CLR 75 Director of Public Prosecutions v Byrne [1991] RTR 119 Grassby v The Queen (1989) 168 CLR 1 Green v United States (1957) 355 US 184 Green v United States (1958) 356 US 165 Grofam Pty Ltd v Australia & New Zealand Banking Group Ltd (1993) 116 ALR 535 Herron v McGregor (1986) 28 A Crim R 79 House v The Queen (1936) 55 CLR 499 Hunter v Chief Constable of the West Midlands Police (Birmingham Six case) [1982] AC 529 Lorkin (1995) 82 A Crim R 196 Mraz v The Queen (No 2) (1956) 96 CLR 62 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v DA (2000) ACTSC 58 R v Smith [1995] 1 VR 10 R v Z [2000] 2 AC 483 Smith (2003) 138 A Crim R 403 Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- MATTHEW JAMES HALL
NICHOLAS JOHN ALDRIDGE
PATRICK JOSEPH WARD
Applicants
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Stay of indictment - Interests of justice - Double jeopardy - Delay in prosecution - Documents missing - Tainted witnesses - Whether a fair trial can be had
Legislation:
Crimes Act 1914 (Cth)
Criminal Procedure Act 2004 (WA)
Proceeds of Crime Act 1987 (Cth)
(Page 2)
Result:
Indictment stayed permanently
Category: A
Representation:
Counsel:
First-Named Applicant : Mr T J Game SC & Mr M B J Lee
Second-Named Applicant : Mr M E Dean SC
Third-Named Applicant : Mr A J Glynn SC & Mr C J E Eberhardt
Fourth-Named Applicant : Mr A J Howard QC & Mr M O'Connell
Respondent : Mr S D Hall SC
Solicitors:
First-Named Applicant : Abbott Tout
Second-Named Applicant : Slater & Gordon
Third-Named Applicant : Robertson O'Gorman
Fourth-Named Applicant : Galbally Rolfe
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bankinvest v AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Shultz [2004] HCA 61; (2004) 79 ALJR 348
Bunning v Cross (1978) 141 CLR 54
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299
Connelly v DPP [1964] AC 1254
Davis (1995) 81 A Crim R 156
Doney v The Queen (1991) 171 CLR 207
Duncan v Crews; Stanley v Farlow (2001) 161 FLR 250
Garrett v The Queen (1978) 139 CLR 437
Hunter v Chief Constable West Midlands Police [1982] AC 529
Jago v District Court of New South Wales (1989) 168 CLR 23
(Page 3)
Johannsen & Chambers (1996) 87 A Crim R 126
Lam (1998) 100 ACrim R 188
Lipohar v The Queen (2000) 200 CLR 485
Longman v The Queen (1989) 168 CLR 79
Maxwell v The Queen (1996) 184 CLR 501
Mickelberg v The Queen (No 3) (1992) 8 WAR 236
Pearse v Pearse (1846) 1 De G & Sm 12; 63 ER 950
R v Carroll (2002) 213 CLR 635
R v Hoar (1981) 148 CLR 32
R v Reeves (1994) 122 ACTR 1
R v Salmat Document Management Solutions Pty Ltd & Ors [2005] WASC 232
R v Storey (1978) 140 CLR 364
Re Chapman & Jansen (1990) FLC 92-139
Re Grinter Ex parte Hall (2004) 28 WAR 427
Rodway v The Queen (1990) 169 CLR 515
Rogers v The Queen (1994) 181 CLR 251
Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268
VIM v The State of Western Australia [2005] WASCA 233
Walton v Gardiner (1993) 177 CLR 378
Case(s) also cited:
Barker v Wingo (1972) 407 US 514
Barton v The Queen (1980) 147 CLR 75
Director of Public Prosecutions v Byrne [1991] RTR 119
Grassby v The Queen (1989) 168 CLR 1
Green v United States (1957) 355 US 184
Green v United States (1958) 356 US 165
Grofam Pty Ltd v Australia & New Zealand Banking Group Ltd (1993) 116 ALR 535
Herron v McGregor (1986) 28 A Crim R 79
House v The Queen (1936) 55 CLR 499
Hunter v Chief Constable of the West Midlands Police (Birmingham Six case) [1982] AC 529
Lorkin (1995) 82 A Crim R 196
Mraz v The Queen (No 2) (1956) 96 CLR 62
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
R v DA (2000) ACTSC 58
R v Smith [1995] 1 VR 10
R v Z [2000] 2 AC 483
(Page 4)
Smith (2003) 138 A Crim R 403
Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636
(Page 5)
- MCKECHNIE J:
The indictment and its legal basis
1 There is pending in this Court an indictment charging Matthew James Hall, Nicholas John Aldridge, Patrick Joseph Ward and Salmat Document Management Solutions Pty Ltd as follows:
"1. Between on or about 1 January 1995 and 18 September 1998 at Perth in the State of Western Australia SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 83(1) of the Proceeds of Crime Act 1987.
2. Between on or about 1 January 1995 and 1 September 1995 at Perth in the State of Western Australia MATTHEW JAMES HALL was knowingly concerned in the commission of an offence against a law of the Commonwealth by SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD namely, that between on or about 1 January 1995 and 18 September 1998 SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 5(1) of the Crimes Act 1914 and section 83(1) of the Proceeds of Crime Act 1987.
3. Between on or about 2 September 1995 and 30 June 1997 at Perth in the State of Western Australia NICHOLAS JOHN ALDRIDGE was knowingly concerned in the commission of an offence against a law of the Commonwealth by SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD namely, that between on or about 1 January 1995 and 18 September 1998 SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 5(1) of the Crimes Act 1914 and section 83(1) of the Proceeds of Crime Act 1987.
4. Between on or about 1 January 1995 and 18 September 1998 at Perth in the State of Western Australia PATRICK JOSEPH WARD was knowingly concerned in the commission of an offence against a law of the Commonwealth by SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD namely, that
- between on or about 1 January 1995 and 18 September 1998 SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 5(1) of the Crimes Act 1914 and section 83(1) of the Proceeds of Crime Act 1987."
2 There is a circularity in the indictment and the law. The principal charge is against Salmat for engaging in organised fraud.
3 The Proceeds of Crime Act 1987 (Cth) s 83(2) defines "organised fraud" as conduct:
"(a) that constitute three or more public fraud offences;
(b) from which the person derives substantial benefit."
4 As the law then stood under the Crimes Act 1914 s 29D:
"A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence."
5 As the law then stood under the Crimes Act s 5(1):
"Any person who … is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth … shall be deemed to have committed that offence and shall be punished accordingly."
6 Hall, Aldridge and Ward are said to be accessorily liable by being knowingly concerned in Salmat's offence. However, in order to prove Salmat's engagement in organised fraud, it is necessary to prove that each of Hall, Aldridge and Ward committed fraud because these are the three public fraud offences necessary under s 83(2). It is not contended that they received any direct personal benefit so it is said that the benefit obtained by Salmat was the substantial benefit making it liable under the Proceeds of Crime Act s 83(2)(b). (There was a suggestion by the prosecution that each man received an indirect benefit but having regard to the Salmat Group Incentive Scheme [Exhibit 1 in the proceedings] I ignore that suggestion).
7 Salmat as the principal is vicariously liable for the state of mind in respect of the conduct and the conduct of Hall, Aldridge and Ward: Proceeds of Crime Act s 85.
(Page 7)
8 Hence there is a symbiosis among the charges. Salmat is said to be guilty of organised fraud because of its vicarious liability for the acts of its three employees who in turn are knowingly concerned in the organised fraud by each committing separate frauds themselves.
Outline of prosecution case: The principal allegations
9 The prosecution has filed a comprehensive summary of the prosecution case.
10 In the outline the allegations that the prosecution would seek to prove beyond reasonable doubt at trial are as follows. Salmat conducted a national business printing and packaging large bundles of letters on behalf of clients. Salmat then delivered the bulk mail to Australia Post ("AP") for delivery to the addressees. Salmat's bulk mail business was conducted in Western Australia at Osborne Park.
11 Salmat engaged a State Manager who was responsible for the bulk mailing business. During the period covered in the indictment the State Managers were, consecutively, Hall, Aldridge and Ward. Other employees, now substantial prosecution witnesses, were Luigi Bellino the Production Manager; Lynette White the Postal Clerk and; Thanh Doan the Job Costing Officer.
12 A major Salmat client was Western Power Corporation (Western Power) who used Salmat's bulk mailing business on a daily basis to print electricity bills and pamphlets, package the material into envelopes to be delivered to customers and lodge the letters with AP for delivery.
13 Western Power would courier an electromagnetic tape to Salmat. The electronic data on the tape was used to print the material. An intelligent sorting machine then placed the correct material into envelopes for each addressee. Records were kept at these stages.
14 The letters were sorted by Salmat to take advantage of discounts offered by AP under its National Pre-Sorting Plan. Essentially, the mail was pre-sorted into postcodes.
15 Salmat reported back to Western Power and forward to AP as to the mail prepared. Each checked the report. Western Power checked against its records. AP used calculations based on weight to determine the approximate total of letters in the lodgement.
16 From about 15 May 1995 to 18 September 1998 Salmat lodged certain "Direct Bags" of "small" Western Power letters with AP under
(Page 8)
- cover of Mailing Statements in which Salmat under declared to AP the number of letters in the lodgements with the intention of defrauding AP of postage fees payable on the undeclared letters.
17 The fraudulent under declaration of Western Power mail was effected on instructions from Hall, Aldridge and Ward. In or about January 1995, Ward, who was Salmat's State Manager in Victoria at the time, attended at Salmat's bulk mailing business in Perth and instructed Salmat's postal clerk, White, to effect under declaration to AP of the numbers of letters in large lodgements of mail. Ward provided White with a pro-forma "pink sheet" and instructed her to commence recording the under declaration of mail to AP on the "pink sheet" showing the true number of letters invoiced to the client and the false number of letters declared to AP. Ward also instructed White to commence keeping a written record of the under declaration of mail to AP in an exercise book. Shortly afterwards Hall provided White with written "guidelines" containing instructions on how to effect the under declaration of mail to AP by mis-stating certain aspects of the weight of the lodgement. Hall also provided White with a Victory exercise book with instructions to use it for keeping a written record of the numbers of undeclared letters and the amount of money "saved" as a result of the under declaration of mail to AP by recording the relevant information in the exercise book in columns. White commenced keeping a written record of the under declaration of mail to AP in the Victory exercise book. I interpose to note that the exercise book is a crucial part of the prosecution case and is relied upon to prove the frauds.
18 About 15 May 1995 White commenced under declaring mail in accordance with the instructions and directions of Ward and Hall. Soon AP detected particular instances of under declaration of mail and queried White. Hall instructed her to cease the under declaration of mail to AP in accordance with the instructions in the "guidelines" and to revert to the previous practice of simply under declaring the numbers of letters in large lodgements of mail by "a few hundred" and to continue keeping a written record of the under declaration in the "pink sheets" and the exercise book.
19 About 2 September 1995 Aldridge replaced Hall as the WA State Manager of Salmat's bulk mailing business in Perth. Aldridge instructed White to continue the fraudulent under declaration of Western Power mail.
20 In early 1997 AP was having problems with its procedure for checking the accuracy of statements by Salmat in Mailing Statements
(Page 9)
- declaring the number of letters in "mixed mass lodgements" of Western Power mail.
21 This problem was dealt with as follows. During early 1997 conversations occurred between AP and Salmat personnel concerning the problem, including conversations between AP's account manager for Salmat, Aldridge and Bellino. The AP account manager enquired whether Salmat could provide a breakdown of the weight and the total number of each component of Western Power "mixed mass lodgements" (envelopes, pamphlets, sheets of A4 paper used to print bills) for the purpose of more precisely checking the accuracy of the number of letters declared by Salmat in the accompanying Mailing Statements by calculating the overall weight of the lodgement and comparing it against the actual weight.
22 Bellino advised Aldridge that the information requested by AP could be obtained from the Material Utilisation Report produced by the Intelligent Inserting Machine used to package the Western Power bills and pamphlets into envelopes. Bellino advised Aldridge that he believed that he could devise a form for providing the information to AP that could be utilised to facilitate the fraudulent under declaration of Western Power mail by overstating the number of A4 pages and/or pamphlets in a lodgement, thereby increasing the apparent weight of that component of the lodgement, and then understating the number of envelopes by a corresponding weight. He advised Aldridge that, by dividing the weight of the overstated amount of A4 pages and/ or pamphlets by the weight of a single envelope and then subtracting the result from the number of envelopes actually used in the lodgement, the form could be utilised to understate the number of envelopes in the lodgement. By understating the number of envelopes in the lodgement, the form could be utilised to under declare the number of letters in a Mailing Statement because the understated number of envelopes in the form would be consistent with the under declared number of letters in the Mailing Statement.
23 Aldridge agreed with Bellino's proposal to devise the form to facilitate the fraudulent under declaration of Western Power mail to AP and instructed him to proceed with the proposal.
24 AP agreed to Salmat using the Bills Run Summary Form in conjunction with the Mailing Statement form when making mixed mass lodgements of Western Power mail. Aldridge and Bellino agreed to "trial" the Bills Run Summary Form for 2 weeks by suspending the fraudulent under declaration of Western Power mail to ascertain whether
(Page 10)
- AP would accept the information in the form without physically checking the number of letters in the lodgements.
25 Bellino ascertained that AP employees were accepting at face value the information in the Bills Run Summary Form and advised Aldridge accordingly. Aldridge authorised the use of the Bills Run Summary Form by the production manager to facilitate the fraudulent under declaration of Western Power mail.
26 From conversations with Bellino and White, Aldridge was aware of the commencement and continuing utilisation of the Bills Run Summary Form in the fraudulent under declaration of Western Power mail and did not withdraw his authorisation of the practice.
27 In June 1997, Ward replaced Aldridge as the WA State Manager of Salmat's bulk mailing business in Perth. Bellino advised him of the fraudulent under declaration of Western Power mail and Ward approved continuation of the practice which ceased after about 18 September 1998.
The proceedings so far
28 The indictment was originally filed in the District Court but even before it had been filed, the committal proceedings were subject to litigation: Re Grinter Ex parte Hall (2004) 28 WAR 427.
29 Following the presentation of the indictment, the four accused applied for the matter to be remitted to the Supreme Court under the District Court of Western Australia Act 1969 (WA) s 76. Over objections from the prosecution they were able to persuade a Judge to transfer the case to the Supreme Court: Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268.
30 By applications dated 7 April 2005 the accused Ward, Hall and Aldridge, and by application dated 8 April 2005 Salmat, applied for orders that the proceedings be stayed permanently pursuant to the Criminal Procedure Rules 2000.
31 Various direction hearings followed, involving the setting of timetables and the disposition of applications for production of documents: R v Salmat Document Management Solutions Pty Ltd & Ors [2005] WASC 232.
32 The applications involved 5 days of argument commencing on 24 October 2005 at the conclusion of which I reserved my decision.
(Page 11)
33 Each application was supported by affidavit. The affidavits were formally read into evidence and in addition exhibits were tendered. In response to requests the prosecution produced a number of charts outlining its case with particular reference to the exercise book.
The legal basis for the application: the interests of justice
34 The applications were brought under the Criminal Procedure Rules 2000 s 25.
35 The Criminal Procedure Rules 2000 were repealed following the lodging of the applications but before the first hearing. Where there is a change in the procedure to be followed at trial, the Court decides the matter according to the law as it currently stands: Rodway v The Queen (1990) 169 CLR 515 at 521; VIM v The State of Western Australia [2005] WASCA 233. I propose to deal with the application on the basis of the Criminal Procedure Act 2004 (WA) s 90 on the basis that that Act and the Rules which are made under it govern subsequent proceedings on the indictment.
36 The Supreme Court has always had an inherent power to regulate its own proceedings so as to prevent its processes being abused: Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334. This power includes a power to stay proceedings on an indictment permanently, or temporarily, as the circumstances may dictate. The inherent power was implicitly recognised by Parliament under repealed provisions of the Criminal Code which granted the prosecution a right of appeal against an order staying an indictment.
37 The power is now encompassed in s 90 of the Criminal Procedure Act 2004 which invests the Court with power to permanently stay an indictment if it is in the interests of justice to do so. If the interests of justice dictate then the Court has a duty to stay the indictment: by analogy Hunter v Chief Constable West Midlands Police [1982] AC 529. There is no practical difference between the exercise of a duty and the exercise of a discretion in these circumstances. There is an evidential burden on an applicant seeking the exercise of the power because in the normal course an indictment will proceed to trial.
What are the interests of justice?
38 The power given to superior courts under s 90 of the Criminal Procedure Act is wider than the power given to the Magistrates Court under s 76, that latter power being limited to a stay for abuse of process.
(Page 12)
39 The power in s 90 certainly encompasses abuse of process. Clearly it is in the interests of justice to stay an indictment which is an abuse of process. However, the power given is wider than examples of abuse of process and may be exercised in an appropriate case whether or not the proceedings can be characterised as an abuse of process. The outer limits of such a power are not matters necessary for me to resolve. Clearly, the identification of the interests of justice cannot subjectively relate to an individual Judge's own conception as to where the interests of justice may lie. However, it may not be possible to set out exhaustively the reasoning process which may lead a Judge to conclude that the interests of justice require that an indictment be stayed. The interests of justice in a particular case may be no more than a conclusion made after ascribing weight to a whole range of factors.
40 I do not consider that the power enables a Judge to stay a case that the Judge regards as weak or tenuous. In Doney v The Queen (1991) 171 CLR 207 the High Court denied power for a trial Judge to uphold a submission of no case to answer and direct a verdict of acquittal on the basis that the evidence was weak or tenuous even if the Judge sitting on appeal might regard a verdict of guilty upon the evidence as unsafe and unsatisfactory. The decision in Doney manifests the strong principle in Australian jurisprudence that in indictable matters the function of the jury as fact-finder is paramount.
41 To stay an indictment in the interests of justice it is not necessary to conclude that there is no case to answer or that the case is foredoomed to fail. There is a separate power to adjudicate those questions before trial: Criminal Procedure Act s 98(2)(c). In this respect I consider that the alteration of the law by s 98(2)(c) makes the case of Lam (1998) 100 ACrim R 188 distinguishable.
42 In deciding whether the interests of justice require a stay of an indictment a Judge should be careful not to stray beyond a proper judicial role. The institution and continuation of judicial proceedings is a wholly executive function. The Director of Public Prosecutions Act 1983 (Cth) authorises that function to be carried out by the Director. The distinction is made plain in Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514.
43 The other members of the majority (Gaudron and Gummow JJ) at 534 considered that there are certain decisions involved in the prosecution process that are, by their nature, insusceptible of judicial review. They added two qualifications, the second being that, of
(Page 13)
- necessity, a court always retains power to prevent abuse of its process, including its criminal process (at 535). Although I have reached the conclusion that the concept of interests of justice under s 90 is wider than the concept of abuse of process as understood in the common law, nevertheless it seems wise to acknowledge and carefully segregate the limited nature of the jurisdiction I am called upon, or a Judge is called upon, to exercise. A Judge is not a Director of Public Prosecutions. It is not enough for a Judge to conclude that were he or she to exercise the prosecutorial discretion, in accordance with published prosecutorial guidelines, an indictment would not be presented or would be discontinued. A Judge can only exercise the power if satisfied that the processes of the Court, having been invoked, cannot continue in the interests of justice.
44 The classification of a case as weak may nevertheless be relevant. It may be that a combination of factors, including the weakness of a particular case, is sufficient to cause a Judge to conclude that in the interests of justice the indictment should be permanently stayed.
45 When a Judge has not seen or heard witnesses then it will ordinarily be difficult to classify a case as strong or weak. In the present case, there are some inconsistencies apparent in the evolving statements of White and Bellino. Furthermore, there are errors in the exercise book.
46 In crucial respects the prosecution case will depend upon the oral testimony of White and Bellino who speak of incriminating conversations with Hall, Aldridge and Ward. Both White and Bellino are accomplices and it is likely that their evidence will attract a warning to the jury about the special need for care in relying upon their evidence. The exercise book is not evidence independent of White. Other documents may confirm the accuracy of the entries in the exercise book and to that extent may corroborate the fact of under lodging. But there is no independent evidence of the incriminating conversations that White and Bellino have set out in their statements. In places the statements contain assumptions and conclusions about important matters.
47 I do not regard the prosecution case as strong because of the matters I have just listed. However, bearing in mind the paramount role of the jury, I give little weight to this factor in my evaluation of the interests of justice.
48 The phrase "interests of justice" appears in many statutes and is a phrase often referred to by Courts. The interests of justice arise in many
(Page 14)
- contexts. In relation to cross-vesting jurisdiction the Full Court of the Family Court in Re Chapman & Jansen (1990) FLC 92-139 said per Nicholson CJ at 77,959:
"In my view the expression 'the interests of justice' is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred."
See also Bankinvest v AG v Seabrook (1988) 14 NSWLR 711.
49 BHP Billiton Ltd v Shultz [2004] HCA 61; (2004) 79 ALJR 348 is another case where the phrase "interests of justice" was considered in respect of cross-vesting legislation. As Kirby J held at [172] the determination of the interests of justice is a power that involves the judicial evaluation of a number of factors. It requires an ultimate judicial decision framed in terms of criteria expressed in very general language.
50 In a matter somewhat closer to the present case, in that it concerned criminal proceedings, Malcolm CJ referred to the interests of justice in Mickelberg v The Queen (No 3) (1992) 8 WAR 236 at 251 and said:
"The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice."
51 The ascertainment of truth through criminal proceedings on indictment may come at too high a price. In a somewhat different context, that of legal professional privilege, in Pearse v Pearse (1846) 1 De G & Sm 12; 63 ER 950 Vice-Chancellor Sir J L Knight Bruce at 957 of the English Reports said:
"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I
(Page 15)
- suppose, the most weighty objection to that mode of examination, nor probably would the purpose of the mere disclosure of truth had been otherwise than advanced by a refusal on the part of the Lord Chancellor in 1815 to act against the solicitor who, in the cause between Lord Cholmondeley and Lord Clinton, had acted or proposed to act in the manner which Lord Eldon thought it right to prohibit. Truth, will like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much."
52 Judges have a discretion to reject evidence that is unlawfully or unfairly obtained. This objection arises from the public interest because convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price: Bunning v Cross (1978) 141 CLR 54 at 73. In general, the public interest as referred to in Bunning v Cross seems to me to be coterminous with the interests of justice.
53 In the present case, it is not suggested that the DPP has acted unlawfully but clearly questions of unfairness are implicit and explicit in the submissions made by the applicants. It is submitted that the delay in this case is prejudicial although any assertion that the delay was deliberate or tactical is disclaimed.
54 The proper approach to take is that a Judge hearing an application under s 90 of the Criminal Procedure Act 2004 is not constrained to find that a continuation of the proceedings would be oppressive or an abuse of process. The Judge is given a discretion in terms of the widest possible ambit to decide to stay a charge if it is in the interests of justice to do so. The "interests of justice" is not susceptible of any precise definition. The content of the interests of justice can only be given form by the facts of a particular case. Illustrations from other cases where courts have decided that the interests of justice either do or do not require a stay have limited utility and almost no precedential value. Above all the touchstone is fairness. This involves fairness both to the prosecution and the defence. Fairness is relative and the Courts recognise that some trials may never be completely fair. Even Parliament has acknowledged this: Evidence Act 1906 (WA) s 31A. However, the touchstone remains fairness.
The issues that arise
55 In dealing with the matters raised by the applicants I have assumed that there will be a joint trial. Were the matter to proceed I imagine there will be applications for separate trials but I ignore this for present purposes.
(Page 16)
56 In summary, the applicants all point to the inordinate delay as leading to a conclusion that no fair trial can now be had. In addition to the prejudice of delay, they submit documents that might have been available to support their case are missing or have been destroyed as part of a normal disposal schedule by AP, Western Power and Salmat. I find the delay and conduct of the proceedings is such that Salmat is entitled to rely on its disposal schedule. There is no evidence that documents were deliberately destroyed when charges were imminent.
57 The delay affects the reliability of witnesses' memories and denies the opportunity to contradict witnesses, particularly White, Doan and Bellino with contemporaneous statements.
58 The applicants submit that White and Bellino at least are accomplices and that no direction or warning can be crafted to deal with their evidence.
59 The applicants submit that there are inconsistencies apparent in the statements of White and Bellino.
60 Ward and Salmat also make a submission about double jeopardy.
61 The conclusion I reach is that the interests of justice require that the indictment is stayed permanently. I shall explain why.
Proceedings in the nature of double jeopardy: The background
62 This is a submission made on behalf of Ward, and necessarily, because of its derivative liability, on behalf of Salmat. The submission is not open to Aldridge or Hall.
63 In 1998 the Australian Federal Police ("AFP") commenced Operation Crenel. Federal Agent Jambrich was the designated Case Officer. Two companies were under investigation, one of which was Salmat. Search warrants were executed in 1998 and 1999 over Salmat and the homes of its staff in Victoria, South Australia, Queensland, New South Wales and Western Australia.
64 Ward was charged with two other men in Victoria with being knowingly concerned with a fraud pursuant to the Crimes Act: s 29D. Salmat was not charged. There was some delay in bringing the applicant Ward to trial in Victoria. He was committed for trial after a hearing on 7 June 2000 but subsequently another person was charged and proceedings on indictment were delayed until the committal proceedings were finalised. The timeframe for the fraud pleaded in the Victorian
(Page 17)
- indictment was between 15 September 1995 and 30 June 1998. I interpose to observe the timeframe of the Victorian indictment is within the timeframe of the Western Australian indictment and includes the time when Ward was in Western Australia.
65 The trial commenced on 20 March 2002 in the County Court.
66 As the trial progressed it appeared that there was a large number of documents of relevance which had not been disclosed to the accused. On 29 April 2002 Ward was acquitted by direction.
67 A principal witness for the prosecution was Bellino whose evidence alleged fraudulent conduct concerning Salmat in Victoria and Western Australia with particular reference to the conduct of Ward. White gave evidence at the committal hearing broadly in accordance with her proposed testimony in these proceedings.
68 The reason why the trial collapsed was non-disclosure by the Crown. During the course of the trial, on 23 April 2002, a witness Margaret Allan gave evidence that once mail had been sorted into sort categories production staff would enter the quantities in a sort category onto a tally sheet. She referred to other documents used by production staff on which the quantity of mail to be lodged was recorded. These documents had not previously been disclosed to the defence. Approximately 200 job bags comprising tally sheets and production documents containing counts were then made available to the defence. As a result of this development the prosecution led no further evidence leading to the acquittal.
69 The possibility of proceedings in Western Australia was clearly live from an early stage. On 8 November 1999 Ward's solicitors were advised by the AFP that it was proposed that Ward be charged with defrauding AP in Western Australia. On 21 July 2000 Ward's solicitors wrote to the DPP saying, inter alia, "it would be undesirable for Mr Ward to be compelled to defend himself on two fronts and accordingly the prosecution of any charges in Western Australia should be deferred". Ward was not charged with the present offence until 11 March 2003, nearly 12 months after his earlier acquittal.
70 The applicants submit that the allegations at the heart of the Victorian and Western Australian proceeding is that of fraud on AP covering a very similar timeframe and relating to similar actions. There are different witnesses but there are also important witnesses in common.
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71 The dates on both indictments include periods when Ward was living and working permanently in the other State. In respect of the Victorian indictment spanning 2 years and 9 months, Ward lived and worked for 12 months in Western Australia. In respect of the West Australian indictments spanning 3 years and 9 months, except for that 12 month period, Ward lived and worked in Victoria for 2 years and 6 months of that period.
72 Bellino's deposition discloses the following:
"Carrying on from Melbourne where there had been a culture of cheating Australia Post I knew that Patrick [Ward] expected us to make profits by cheating Australia Post in Perth. There was never any direction from Patrick Ward to stop this practice. I believed there was a culture of cheating Australia Post within the whole Salmat organisation."
73 The prosecution case in Western Australia relies on the "X factor" memorandum and intercepted telephone calls. Other Crown evidence proposed is that of White who was at all times in Western Australia but said she was given a copy of "the pink sheet" and told by Ward that this was the form that was used in Victoria to record under lodging and that quantities under lodged should be recorded in an exercise book.
74 Evidence relating to the X factor memorandum and evidence of certain conversations Bellino had with Ward was led in Victoria. The prosecution was refused leave to lead other evidence relating to Western Australia.
Legal principles: Double jeopardy
75 It is I think accepted by the applicants that a strict autrefois acquit cannot arise. This is undoubtedly right. The allegations in relation to Victoria and Western Australia, while having many common elements, are themselves different. A conviction – or as in this case an acquittal – of the applicants on an indictment alleging a precise form of fraud in Victoria cannot, as a matter of law, be pleaded as an answer to the West Australian indictment.
76 The applicants' argument is however broader in scope and focuses particularly on the interests of justice.
77 There is a national character to the proceedings. The offences both under the Crimes Act in Victoria and under the Proceeds of Crime Act in
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- Western Australia are Federal offences. The matter was investigated by the AFP and is prosecuted by the Commonwealth DPP.
78 One central premise which the applicants advance is that a stay should be ordered, in part, because the Federal authorities had it within their power to deal with the whole matter once and for all. It seems to be accepted that the only way of dealing with the whole matter was by way of an indictment for conspiracy or something similar. I say "something similar" because it would be possible to charge a company with organised fraud selecting as particulars discrete frauds in different parts of Australia.
79 Essentially, the submission of Ward is that the solution for the DPP to avoid charging and conducting a second trial of the applicants was to have proceeded against the applicants on a single count of conspiracy to defraud AP encompassing the relevant conduct of the applicants and others from any part of Australia.
80 At first sight this submission appears to fly in the face of the authority of decisions such as R v Hoar (1981) 148 CLR 32 where in a joint judgment of Gibbs CJ, Mason, Aickin, Brennan JJ at 38:
"… Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed."
81 Murphy J said at 40:
"… We have a long tradition of resistance to double jeopardy and double punishment. Dangers of these arise when commission of offences and of conspiracy to commit those offences (or offences including those offences) is charged."
82 In the Schedule to the Criminal Code Act 1995 (Cth) it is provided:
"11.5 Conspiracy
…
(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. …"
- This is undoubtedly to give effect to the principle underlying Hoar. There is a need for caution such as to require the personal attention of the DPP.
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83 Ward supports the submission by relying upon Connelly v DPP [1964] AC 1254. It is said that the Connelly principle is that as a general rule where offences of the same or similar character could have and should have been drawn in one indictment, in the absence of any special circumstances, sequential prosecutions for those offences should, in the interests of justice, be stayed as an abuse of process.
84 In my opinion, the true question is not whether a conspiracy charge may have been appropriate but whether laying separate charges in Victoria and Western Australia was plainly inappropriate and has led to an injustice of the type requiring intervention in the form of a permanent stay. This is not merely a semantic difference. A course of conduct may give rise to a number of potential offences and the selection of the charges is a matter entrusted to the DPP. A conspiracy charge would have been inappropriate. A conspiracy involving all the alleged criminal conduct throughout Australia would have been very unwieldily. There may have been many defendants and the documentary and other evidence would have expanded exponentially. Moreover, there are likely to be constitutional difficulties in such a course: Constitution s 80:
"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."
85 Parliament has so prescribed: Judiciary Act 1903 (Cth) s 70:
"Offences committed in several States
When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein."
86 Whether a conspiracy indictment would be able to proceed under s 70 of the Judiciary Act is speculation. My reference to the Constitution is simply to lend force to the view that the submission that the indictment as framed is inappropriate should be rejected. See alsoLipohar v The Queen(2000) 200 CLR 485.
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Double jeopardy
87 The second submission advanced by the applicant Ward relates to the proceedings in Victoria. Those proceedings ended in an acquittal. The principles are deceptively simple.
88 In Garrett v The Queen (1978) 139 CLR 437 evidence was led in Garrett's trial that he had been charged with raping the prosecutrix and acquitted. The Judge said that the acquittal on the earlier charge was a neutral fact and no inference could be drawn from it for or against the applicant or the prosecutrix. Barwick CJ with whom Stephenson, Mason and Jacobs JJ agreed said at 445:
"The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds."
89 Murphy J held at 446:
"… If any evidence is inconsistent with a previous acquittal, then that evidence is inadmissible against the accused. Even if the evidence is consistent with the acquittal, it should be excluded on the grounds of fairness if the circumstances require it."
90 In R v Storey (1978) 140 CLR 364 the High Court by majority (Stephen, Mason, Jacobs and Aickin JJ) (Barwick CJ, Gibbs and Murphy JJ dissenting) held that a conviction for rape following an acquittal on a charge of forcible abduction could not stand. The Court reached its conclusion for different reasons. A majority of the Court held that issue estoppel is not applicable to criminal proceedings.
91 I note a formal submission by counsel for Salmat that issue estoppel does apply in criminal proceedings contrary to R v Storey.
92 In Rogers v The Queen (1994) 181 CLR 251 the majority of the Court (Mason CJ, Deane and Gaudron JJ) (Brennan and McHugh JJ dissenting) held that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The majority
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- decided the case on the basis of abuse of process. Mason CJ considered at 255:
"The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law.
…
The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories."
94 In R v Carroll (2002) 213 CLR 635 the respondent was charged with perjury. The alleged perjury being his sworn evidence at a trial for murder that he had not killed the victim. He had been convicted of murder but on appeal the conviction had been quashed and a verdict of not guilty entered.
95 The High Court held that the perjury indictment was an abuse of process and should have been stayed by the Judge. The prosecution had sought to controvert the acquittal on the charge of murder given that the charge of perjury raised the same ultimate issue as that which had been raised in the trial. The issue was whether the indictment was an abuse of process.
96 Gleeson CJ and Hayne J in a joint judgment said:
"[47] Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary
- considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.
- [48] To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.
…
[50] Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z , R v Arp and R v Degnan are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial."
- I interpose to emphasise the words "not necessarily" in [50].
97 Gaudron and Gummow JJ in a joint judgment discussed the exercise of the power:
"[73] The power to stay is said to be discretionary. In this context, the word 'discretionary' indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process
- cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. …"
Conclusion on double jeopardy
98 I do not consider that Salmat and Ward are in jeopardy again for the same conduct. However, the intertwining of the evidence of White and Bellino in the two cases raises acutely the issue adverted to in the authorities. The High Court accepts that a stay may be inappropriate if a fair trial can be achieved while acknowledging the full weight of the acquittal. This may be so where there is the possibility of crafting appropriate directions to deal with evidence led in both trials. In the present case, beyond suggesting that it was possible, counsel for the Crown did not provide any form of direction.
99 I do not think it is possible to separate the evidence of White and Bellino from the acquittal in the Victorian case. No direction I can contemplate would be sufficient to explain to the jury how the evidence of White and Bellino given in this trial can comfortably sit with the full weight that must be given to the acquittal.
100 The present proceedings fall short of the strict principle of double jeopardy. However, to continue the proceedings will mean that Ward is deprived of the full force and effect of his Victorian acquittal. The evidence of Bellino and White will necessarily impugn the effect of the acquittal because their evidence is in substance that Ward was guilty of the same type of fraud in Victoria. No direction to a jury is capable of remedying or explaining how the evidence and the acquittal can stand together.
101 Apart from other reasons relating to delay and missing documents I would stay the indictment against Salmat and Ward in the interests of justice for these reasons.
Delay – The principles
102 All four applicants base their applications in part on the question of delay. The Crown very properly conceded that there had been a prejudicial delay although it submitted that the delay was not of the order to justify a stay of the indictment.
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103 The effect of delay on a criminal trial is both well-known and troubling. Every trial, and certainly every criminal trial, concerns events which occurred some time ago. A criminal trial is always a remembrance of things past and the effect of delay upon memory is common knowledge. But mere delay is unlikely of itself to justify a stay of the proceedings. A court has a number of options to try to overcome any unfairness that delay may bring.
104 The particular provisions of the Proceeds of Crimes Act and the Crimes Act under which this prosecution is brought do not have time limits for the bringing of a prosecution. Parliament does not prohibit, for reasons of unfairness, the bringing of a prosecution after a period of years. Nor can there be any general rule or rule of thumb about delay because the causes of delay are many and various. A crime may lay undiscovered for a long period. A complex matter may require a lengthy investigation. Where a matter depends chiefly on the evidence of witnesses whose memories may be affected by delay the potential for unfairness is obviously increased. Where a prosecution depends chiefly upon documents or other contemporary material it may be that a delay has comparatively little effect on the fairness of the trial process.
105 The issue of undue delay amounting to abuse has been the subject of considerable judicial scrutiny commencing conveniently with Jago v District Court of New South Wales especially per Mason CJ at 53; Deane J at 55 ff before setting out five matters at 60 - 61:
"(i) the length of the delay;
(ii) reasons given by the prosecution to explain or justify the delay;
(iii) the accused's responsibility for and past attitude to the delay; and,
(iv) proven or likely prejudice to the accused.
The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime."
106 In Jago, Gaudron J at 76 would confine the nature of the power to grant a permanent stay because it is a power to refuse to exercise jurisdiction.
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107 Brennan J at 49 was of the view that by the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a Judge can virtually eliminate unfairness. With the greatest respect, Brennan J may paint too optimistic a picture of judicial skill in eliminating unfairness where delay has been so lengthy that important material no longer exists.
108 The views expressed in Jago by Deane J were endorsed by the majority in Walton v Gardiner (1993) 177 CLR 378.
109 A useful summary of the effect of delay can be found in Johannsen & Chambers (1996) 87 A Crim R 126. A majority of the Court (Fitzgerald P and Thomas J) allowed the appeal in respect of Johannsen. McPherson JA dissented.
110 At 131 Fitzgerald P said:
"… there is a strong public interest in the prosecution of serious offences and the conviction of offenders. However, that proposition must be qualified; the public has a superior interest in ensuring that judicial processes are not abused, that accused persons' trials are fair to them (cf Dietrich (1992) 177 CLR 292; 64 ACrimR 176; Yuill (1993) 69 ACrimR 450, 452-453; O'Neill (1995) 81 ACrimR 458), that innocent persons are not convicted and that public confidence in the administration of justice is maintained."
Delay – The factual circumstances
111 To support this application, the AFP case notes were subpoenaed and eventually supplied. The relevant extracts are attached as a schedule to this judgment.
112 It is not part of the exercise of power under the Criminal Procedure Act s 90 that an indictment be stayed in order to punish or discipline the prosecution or the investigators. The touchstone is fairness of the trial process, not case management sanction.
113 The relevance of the case notes is two-fold. First, they demonstrate that there has been inordinate delay in circumstances where, in some cases, allegations of offences committed three years before the investigation commenced became allegations of offences eight years before charge for no reason connected with the need for further investigation.
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114 Secondly, the case notes demonstrate that the delay was not contributed to by the applicants.
115 A Court has options other than a stay of the indictment. Longman v The Queen (1989) 168 CLR 79 is one such example. Significantly Longman was heard by the Court on 23 October 1989 just 11 days after the Court had handed down its decision in Jago v District Court of New South Wales (1989) 168 CLR 23. The Court did not hold that the facts in Longman gave rise to an abuse of process.
116 In Longman the delay between the first alleged offence and the trial was in the order of 25 years.
117 The decision of the High Court was principally concerned with the issue as to the need for a warning to be given by a trial Judge in the light of a statutory provision enjoining Judges against giving a warning about uncorroborated evidence unless the Judge was satisfied that a warning was appropriate in the circumstances. At 91 of the joint judgment of Brennan, Dawson and Toohey JJ said:
"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."
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118 Deane J felt that the long effluxion of time was of significance. However, it would not suffice of itself to produce the consequence either that it was not open to the Judge to fail to be satisfied that a warning was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. Deane J decided the matter on particular facts of the case without, it seems to me, purporting to lay down any general proposition. McHugh J also decided the matter largely upon particular facts but said at 108:
"To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony."
119 Deane and McHugh JJ decided Longman with particular reference to the effect on memory in child complainants of sexual offences. However, the general principles laid down in relation to delay and the warnings that must be given are applicable to any case in which there is a significant delay. In assessing the strength or otherwise of the prosecution case I bear in mind that a Longman direction or something similar will be necessary.
120 The cases to which I have made reference (there are many more) all deal with the Court's inherent power to order a stay. Mostly their use is as examples of circumstances where a stay was or was not justified. I am not exercising inherent power but the statutory power under s 90 of the Criminal Procedure Act 2004 (WA). The authorities, in particular Deane J in Jago, provide guidance as to how to approach the statutory power when delay, which is not attributable to an accused, is encountered. The principles I take to be these:
• A party invoking the jurisdiction of the Court has a prima facie right to the exercise of that jurisdiction.
• The interests of justice may require that that right is yielded.
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- • The mere fact of delay does not necessarily mean that either a trial will be presumptively unfair to an accused or that a stay is the only remedy.
• However, inordinate or unexplained delay is a factor to be taken into account in determining where the interests of justice lie.
121 It is likely to be an exceptional or rare case where a stay of proceedings will be ordered on account of delay, or more generally. However, this is an observation not a statement of principle. In the present applications I have not determined whether delay alone is a sufficient basis for a stay. I have determined that the inordinate delay coupled with the destruction of documents that were capable of explaining or contradicting the entries in the exercise book justifies a stay.
Destruction of documents
122 Central to the applicants' case are submissions that a number of documents have been destroyed in the ordinary course of business making it impossible for the applicants to now test properly the principal evidence to be led against them – namely, the entries made by White in the exercise book.
123 This submission must be upheld. The exercise book is a secondary record in that it was completed from a range of source documents. Documents from AP, Western Power and Salmat have now been destroyed. As a result there is no way to test many of the entries. Some of the entries have been shown to be different from contemporary records that do exist.
124 The issue is not one of admissibility. The exercise book is said to be direct evidence of the fraud, not a business record, and admissible of its own force. For present purposes I accept this.
125 The problem is that due to the delay and destruction of documents the applicants are unable to properly test the accuracy of a vital exhibit against them.
126 The Crown points to the supporting documentation in the invoices and there is force in this submission. But in an application of this kind considerations of fairness require looking at the reasonable possibilities available to the defence. In my conclusion the delay has deprived the applicants of a real prospect of challenging the accuracy of the entries in
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- the exercise book. The defence are entitled to examine and challenge all entries in the book, not just those entries selected by the prosecution as part of its case. If other entries are in error it may be open for a jury to conclude that the exercise book is not sufficiently reliable to prove guilt.
127 I add; though not strictly part of my reasoning to the conclusion just stated, that I am satisfied the exercise book has significant discrepancies which in any event call into account its accuracy.
128 The destruction or disappearance of records due to delay can cause an indictment to be stayed because a continuance of the proceedings would be an abuse of process: Davis (1995) 81 A Crim R 156; R v Reeves (1994) 122 ACTR 1 per Gallop J at 23:
"…that because of the destruction of documents it is not possible for the applicant to receive a fair trial. That destruction creates a fundamental defect which goes to the root of the trial and I do not believe there is anything a trial Judge could do in the conduct of the trial that could relieve against its unfair consequences: Barton v R (1980) 32 ALR 449."
129 In Salmat Document Management Solutions Pty Ltd one of the matters which motivated Simmonds J to remit the indictment from the District Court to the Supreme Court was what he found there to be a conflict of authority between Wicks J, on the one hand, in Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299 and Greg James J in Duncan v Crews; Stanley v Farlow (2001) 161 FLR 250, on the other.
130 Both Judges were exercising Federal jurisdiction in reviewing decisions of Magistrates in respect of prosecutions for knowingly obtaining social security payments to which the recipient was not entitled.
131 In each case the basis of the application before the Magistrate was the destruction of Centrelink documents necessary to obtain payment and completed by the accused for the purpose. These were fortnightly forms.
132 Simmonds J noted that the Court on this application might conclude it was not necessary to address the conflict on the basis that Commonwealth Service Agency v Bourke was distinguishable on its facts. However, if the Court were to consider it necessary to address the conflict it would be most desirable to have an authoritative review of it of the sort this Court can provide but the District Court cannot. Having regard to the concurrent criminal jurisdiction of the Supreme and District
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- Courts in this State (see District Court of Western Australia Act 1969 (WA) s 42) I respectfully doubt the conclusion, but as the matter has been remitted to this Court it is of no moment. I will briefly deal with the issue raised by the conflicting decisions.
133 In Commonwealth Service Delivery Agency v Bourke(1999) 75 SASR 299 Wicks J held at [16]:
"It may well be that the respondent's version of events in this case constitutes a 'mere piece of forensic opportunism', however, we can never be certain of that without the fortnightly forms. … In both cases the only evidence which was capable of corroborating the story of the respondent had been destroyed the result of which being that to continue with the proceedings would result in an unfair trial."
134 In Duncan v Crews; Stanley v Farlow (2001) 161 FLR 250 the parties agreed on questions for the Judge. Question 1 was: "Is the decision of Wicks J in Commonwealth Service Delivery Agency v Bourke (South Australian Supreme Court, …) in relation to the granting of a stay, on the facts and circumstances of that case, good law in New South Wales?"
135 In Duncan v Crews; Stanley v Farlow the plaintiff thought the question was raised though the defendant did not.
136 James J set out the legal test concluding at [51]:
"The ultimate issue is whether the proceedings can no longer serve the purpose for which the statute, in this case the Justices Act, was provided, that is, whether the magistrate will be able to hear and determine the proceedings by a fair trial. If not, it will be one of those exceptional cases in which a stay should be granted. Otherwise, the trial should proceed unless doomed to failure: Walton v Gardiner."
137 In a heading entitled "The applicability of Bourke" James J was unable to extend the principles to Wick J's view that "the issue in this case was not the strength of the prosecution case without the fortnightly forms". In his opinion at [64] –[65]:
"[64] … to approach the matter in this way fails to appreciate adequately that the onus in cases of this kind remains on the prosecution to prove the guilt of the accused beyond
- reasonable doubt from first to last and that the absence of essential documentation may appropriately be considered as leading to an acquittal where the tribunal of fact is not persuaded of guilt no matter what might have been the contents of the forms.
- [65] In the event that a defendant is deprived of corroboration of their account in these circumstances, one cannot conclude that their account might be diminished in weight by what might have appeared in the lost documentation. Nor can one consider that the prosecution case has eliminated the possibility of such error as might diminish the weight of the prosecution case. In those circumstances, it may well be that the appropriate course might be to acquit. Such a course, however, could not be taken without hearing what the defence is and whether or not the lost documentation might relate to the matters genuinely in issue between the parties such as to effect the strength of the prosecution case and such as to permit the drawing of an inference adverse to it. An application for an acquittal at the close of the Crown case might, of course, be upheld where that case is then seen as insufficient or where the magistrate has a reasonable doubt on the prosecution evidence."
138 At the risk of complicating the matter where there are conflicting decisions of single Judges each exercising Federal jurisdiction as am I, I will add my opinion. To the extent that Wicks J purported to lay down a principle, and I am not at all sure that he did, I am unable to entirely agree with it. Nor, however, can I entirely agree with Greg James J 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.
139 In the present case, the exercise book is a very important piece of evidence. By itself it is meaningless. It depends upon the explanation advanced by White as to the entries. If White is an apparently credible witness then suggestions by the defence that documents might cast doubt
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- about the exercise book may not be sufficient to engender a doubt in her credibility. The applicants have demonstrated that some entries are in fact in error. The destruction of the source documents for the entries in the exercise book becomes critical.
140 In an application for a permanent stay of an indictment on the basis of delay and destruction of documents, the applicants bear an evidential onus at least to show that the missing documents might have been used for a credible forensic purpose. The prosecution may regard the forensic purpose as tenuous or irrelevant. They may suggest, as here, that the matter can be resolved with appropriate directions taking into account the ultimate burden of proof. But the prosecution does not always know what line the defence may wish to pursue nor other information available to the defence.
141 As to the missing documents, I make an observation from reading the brief that count validation seemed to be a constant problem from all sides. White relied on the operator count sheets derived from the intelligent inserting machine for the "before" figure in the exercise book. These count sheets, together with the other reports generated from the Intelligent Inserting Machine, have been destroyed in accordance with the Salmat Document Disposal Policy. Western Power's invoice payment records are available and form part of the brief as do Salmat's invoices. However, other relevant Western Power documents, including screen dumps, requests and reports, are missing.
142 The Salmat Document Retention Policy was current from February 1993 and provided that job bags are to be held for a period of 13 months after which time they are destroyed. A job bag included:
- Pricing Agreement Quotations Contracts;
- Job Control Forms;
- Good Received Notes;
- Print Request Form;
- Stock Requisition;
- Remakes;
- Copy of Invoice;
- Postage Documentation;
- Goods Despatch Notes.
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143 Hence, in execution of the policy, many documents which would have a bearing on the entries in the exercise book have been destroyed. Consequently, it is difficult to verify or contradict the figures in the exercise book.
144 Following its disposal policy, the AP revenue protection statements have been destroyed at times including the period after the investigation had commenced.
Condition of exhibits stored in basement in Victoria
145 Case Note: Water damage to Original Exhibits (Lot No. 2236) reads as follows:
"Date/Time Actioned: 03/07/2000 15:29
Attended Property office on Monday 26 June to gain access to original exhibits stored in downstairs garage. Examination of exhibits has revealed that approximately 12 boxes stored on the garage floor have been destroyed due to water damage. The contents of each box has rendered the documents as completely unreadable. A complaint was made to Zora who was in attendance at the time of inspection.
Further complaints have been made to [VG] (Acting T/L) and [MR who advised me that this was unacceptable and all efforts would be made to ensure no more damage would occur."
146 Case Note: Condition of Exhibits stored in basement (Log No. 3170) reads as follows:
"Date/Time Actioned: 17/11/2000 09:45
Attended the basement at 0920hrs this date and was appalled to see the state of the exhibits (KDMS and Salmat seized items). Despite a request to have water damaged exhibits placed on pellets [sic] some months ago, it appears that only 2 pellets [sic] have been utilised which only covers less than a third of the exhibits. Furthermore, the boxes are in complete disarray and access is now very limited.
I would request that this be actioned upon immediately (new task in Promis refers).
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- This blatant disregard for the security and maintenance of seized items should be addressed as soon as possible."
147 At the hearing Mr Howard said:
"We should have been told if the damage which is referred to in these exhibits is in any way related to the current case. There has been no assurance one way or the other to your Honour as to that matter."
148 Mr Hall for the Crown did not directly deal with this issue.
149 When documents are lawfully seized under warrant, the documents do not become the property of the AFP. They are held in a special type of bailment by the AFP and there is a duty to take care of all documents. When significant exhibits were destroyed, the AFP ought to have disclosed this fact to the relevant accused and to Salmat (the owner of the documents) who is now also an accused. In these circumstances, I do not consider there is any onus on the applicants to show the destruction of the documents by water damage may have prejudiced the defence. It is for the person in possession of the documents to establish that the documents had no reasonable connection with the present proceedings. The prosecution has been unable to do so.
Conclusion on missing documents
150 In my opinion, a Judge does not have to resolve the issue of missing documents on the basis that the applicant must demonstrate that the missing documents, coupled with delay, might credibly form the basis of a line of defence or a line of attack of the prosecution's case even though I think the applicants have demonstrated that. I have said that the missing documents must be coupled with the inordinate delay. Where the delay, as here, has been a cause linked to the destruction of documents, then the interests of justice question can be restated as one of fairness; is it possible for the applicant to nevertheless have a fair trial, having regard to all the remedies available to a Judge short of determining that there should be no trial at all?
151 In the present case, the answer is "No".
The applicant Hall – Particular matters of delay
152 Hall was manager of Salmat in Western Australia in 1995 and the indictment spans the period of his employment from 1 January to 1 September 1995 a period of 9 months. He was replaced by Aldridge
(Page 36)
- and the relevant dates on the indictment for Aldridge are between 2 September 1995 and 30 June 1997. Aldridge in turn was replaced by Ward as West Australian State Manager and Ward stayed in office until 18 September 1998.
153 In September 1998, an employee of Salmat in Victoria made allegations of under lodging of mail to AP who in turn reported the matter to the AFP. The AFP named the operation Operation Crenel. Investigation of Salmat in Western Australia commenced in September 1998 after allegations made by Bellino. On 20 November 1998 a search warrant was executed at Salmat's premises in Perth.
154 Ms White was interviewed by the AFP on 1 September 1999 and gave her first statement to the AFP on 4 October 1999. She made a second statement on 21 November 2000. On 6 August 2001 she gave evidence in Victoria in committal proceedings (not involving Hall). Subsequent statements made by White did not relate to Hall.
155 Hall was interviewed on 5 October 1999. He was informed on 13 February 2003 that he was to be charged and the complaint was laid on 11 March 2003 by which time 8 years had elapsed since the time of the alleged offence. On 7 May 2004 Hall was committed for trial and the various proceedings I have earlier outlined took place.
The applicant Aldridge – Serious inconsistencies in the evidence of Bellino
156 Aldridge replaced Hall as State Manager holding office between the beginning of September 1995 and 30 June 1997.
157 The prosecution case against Aldridge is based on the testimony of witnesses, particularly White and Bellino and, to some extent, Michelle Richards. The prosecution must show that Aldridge was knowingly concerned in the fraudulent under lodgement of documents.
158 I mentioned earlier in these reasons that in considering the interests of justice I am entitled to examine any internal inconsistencies in the evidence of a witness. In a record of interview Bellino said that the Bills Run Summary Form was developed following discussions with AP officers. He discussed with Aldridge how the Bills Run Summary Forms could be used to under declare mail.
159 However, other evidence convincingly establishes that the Bills Run Summary Form did not come into existence before Aldridge ceased as State Manager.
(Page 37)
160 I take this into account in deciding whether to grant a stay. This is not a question whether the case is weak but whether there is proof of a major plank in the prosecution case. There is no such proof.
Tainted statements
161 To an extent the investigation process has been tainted.
162 White was the WA Postal Clerk at Salmat. She was initially interviewed by the AFP on 1 September 1999 by way of record of interview and further interviewed on 3 September 1999. On 4 October 1999 she made a statement to the AFP. On 21 November 2000 she made a further statement. On 17 January 2002 she made a further statement. On 30 October 2002 she was proofed by solicitors at the DPP and a proofing note was made. On 2 December 2002 a further statement was taken from her.
163 In the course of the briefing note she said in relation to Hall that "He was aware of all aspects of under lodging the mail at that time". White indicated that she had no specific basis for saying this – she was in effect simply assuming it. Furthermore, the word "underlodging" was never used in conversations between herself and Hall. The words "taking-off" were used. White was unable to assist in explaining what Hall meant by the phrase "taking-off" but there was no doubt in her mind that it meant under declaring the mail to AP. At page 170.5 of the brief White says in relation to Aldridge "Prior to taking up the State Manager's role [he] knew about Salmat's under lodging policy. When he took over as the Mailing State Manager he told me to continue with the underlodgement process". In proofing White said that Aldridge came to her office and used words to the effect of "keep doing what you do best"; the word "underlodgements" was not used. At page 171.5 according to the briefing notes White said "Ward was aware of what practices was [sic] in place at the Perth offices in the way of under lodging the mail; he made no changes to the postal practice". In the course of proofing, White indicated that the basis for this statement was that it was Ward who instructed her to record under declaration of the mail using the pink sheet and the exercise book back in the time when Hall was State Manager and further, that as a State Manager she assumed that he knew what was going on.
164 As a general proposition the facts that go to strength or undermine the credit, reliability or credibility of a witness are for a jury. A Judge who strays into the area reserved for the jury can do so only with a clear legislative mandate. Moreover, a Judge who does so at this stage, without even seeing the witness, must tread very carefully indeed. There are some
(Page 38)
- matters concerning White's statements which I consider can, however, be weighed in the interests of justice. Like everything else, on their own, these matters are not decisive but may in due course tip the balance. There has clearly been repeated proofing of White during which time more details have emerged. This is not necessarily surprising. Re-proofing is often necessary. However, in various statements signed by White she has used the expression "under lodging" and yet compare her comments in the proofing note. Notwithstanding, the word was used in the subsequent statement of the 2 December 2002. This raises the question whether the witness's evidence may have become tainted. To a degree there may be an unconscious confirmatory bias at work. The word "under lodging" is critical. Was it used by relevant parties or not? It is the essence of the prosecution case.
165 I note the witness Doan was unaware of the term "under lodging" until a time following the times specified in the indictment. However, the term is also used in her statement.
166 Another troubling aspect of White's statements is apparent inconsistency. A clear example is her differing accounts about the account verification form and the information contained therein. The inconsistency bears on the fairness of leaving the matter for resolution by trial. An inconsistency in a witness's statement is different from contradicting evidence from more than one witness.
167 Bellino has made two records of interview – 14 December 1998 and 19 January 1999 - and three statements – 12 February 1999, 29 November 1992 and 29 November 2000. Additionally, he has made further comments recorded as a proofing note of 24 October 2002.
168 As a general comment, the statements are often vague and at times ambiguous. Some important matters, especially dates, appear to have been extracted by leading questions. The effect of Bellino's evidence is that at some stage prior to April 1997 he discussed the Bills Run Summary Forms with Aldridge and the two agreed the forms could be used as a vehicle for under weighing. What I might describe as a dry run of about 10 runs were undertaken.
169 The difficulty is that other evidence, including that from AP officers, strongly points to the introduction of the Bills Run Summary Form as earlier than September, probably October 1997; that is, after Aldridge left.
(Page 39)
170 I have dealt with this matter in brief comments about the position of Aldridge. For present purposes, it illustrates the tainted nature of the way in which the evidence of Bellino, an accomplice, evolved.
171 By itself, this would not be cause to stay an indictment. The trial process is well suited to expose such matters and the consequent possible effect on credibility.
172 However, when the principal witnesses for the prosecution are exposed as having produced statements that I regard, in part at least, as tainted by the very process that brought them into existence, that is a factor which can be weighed and I do weigh it.
Mixed mass lodgements – Does weight matter?
173 Much time was spent in the application arguing on each side the relevance of the weight of documents in mixed mass lodgements.
174 I have spent some time going through the prosecution charts and their submissions that weight was irrelevant. I have noted the proofing note of George Maher dated 21 October 2005.
175 However, the AP Manual designed for use by staff does seem to regard weight as a relevant factor. I consider the applicants have established an argument reasonably open to them to explore the relevance of weight of mixed mass lodgements and the need for access to documents that bear upon the issue.
176 In the affidavit dated 27 September 2005 Ms Noble deposes as to her comparison of weight of lodgements represented by Salmat's Bills Run Summary Forms with AP's own calculations of weight. A number of these jobs appear in the exercise book. AP's revenue protection summaries are no longer available.
177 On the prosecution case, integral to the fraud is not only an under declaration but an exaggeration of weight because the contents were being falsely increased. I accept this to be so and as I have said there is force in the submission about the irrelevance of weight data if the fraud was to distort the true weight. However, it is, at the least, fairly arguable for the applicants that actual weight data may have a bearing on the contents of the exercise book.
(Page 40)
Conclusion
178 The interests of justice require the indictment against each applicant is permanently stayed.
179 The nature of the case depends significantly on the evidence of accomplices who require corroboration by at least some independent confirmatory evidence.
180 Because of the inordinate delay, coupled with the destruction of documents in the ordinary course of business, the applicants are unable to have a fair trial and there is no reasonable alternative, such as a robust direction from the Judge, that will minimise the unfairness to an acceptable degree. There is now no way to scrutinise properly the figures recorded in the exercise book. Some of these figures are likely to be wrong.
181 In addition to the delay as outlined I also take account of the evolution of the prosecution evidence, particularly the statements of White and Bellino. While this issue alone would not cause me to stay the indictment, when coupled with the delay and destruction of documents, my conclusion to stay the indictment is strengthened.
182 It is also necessary to stay the indictment against Salmat and Ward for another reason. The decision to charge them in Western Australia was not an abuse of process. The acquittal of Ward does not give rise to double jeopardy. But in the circumstances of this case, Ward's acquittal raises an insuperable hurdle to a fair trial for him and, by extension, Salmat.
183 Bellino's evidence concerns Ward's alleged fraud in Victoria and Western Australia – the conduct in the two States is inextricably intertwined. White's evidence purports to link the start of Ward's alleged frauds in Western Australia with the pink form said to have been used in Victoria. Full credit must be given to the effect of the Victorian acquittal and it is not possible to do so while permitting evidence to be led that suggests Ward was engaged in fraud in Victoria. The evidence of White and Bellino cannot have portions excised and remain coherent. I cannot conceive a suitable direction to give to the jury that would explain the anomaly and eliminate unfairness.
(Page 41)
Orders
Salmat Document Management Solutions Pty Ltd
184 Application dated 8 April 2005 granted: Count 1 on indictment permanently stayed.
Matthew James Hall
185 Application dated 7 April 2005 granted: Count 2 on indictment permanently stayed: Bail undertaking discharged.
Nicholas John Aldridge
186 Application dated 7 April 2005 granted: Count 3 on indictment permanently stayed: Bail undertaking discharged
Patrick Joseph Ward
187 Application dated 7 April 2005 granted: Count 4 on indictment permanently stayed: Bail undertaking discharged
(Page 42)
- SCHEDULE – AFP CASE NOTES (EXTRACTS)
- Log No 209 (Search Warrant Executed on Salmat):
- Log No 430 (Search Warrants Executed on Salmat and Patrick Ward's Home):
- Log No 987 (Assistance from Eastern Region re: Legal Privilege warrant at Corrs (Salmat):
- "Date/Time Actioned: 21/09/1998 10:12
A S/W was executed on Salmat at 2/20 McDonalds Lane Mulgrave where a number of documents were seized…"
- "Date/Time Actioned: 26/11/1998 13:30
On 22 November 1998 police executed a search warrant on Salmat in Perth. Jobs bags for Western Power, Bank West & State Super Board were seized. Also found in Patrick Ward's office was a report from a Barry Davis to Barry Vesperman at Salmat Head Office in Cheshill in N.S.W. The report showed quantity differrances [sic] between 30 June 1995 and 30 June 1998.
This report shows large scale quantity differrences [sic] between quantity mailed and quantity lodged for Western Power. There are some differrances [sic] for Bank West, State Super Board and Burswood Casino. Salmat had put a dollar value on this fraud $245 984.
In discussions with WARD it was discovered the previous state manager was a Nick ALDRIDGE. …
A search warrant was then executed on Patrick Ward's home. A number of documents were seized."
- "Date/Time Actioned: 24/05/1999 10:01
Contacted Federal Agent Catherine Abohaider from Eastern Region. She executed a warrant on Corrs Chambers Westgarth on Friday 14 May 1999 in relation to non material held by the office. F/A Abohiader has agreed to assist me in the execution of another search warrant at Corrs Chambers Westgarth scheduled for Friday 28 May 1999. I have sent material relating
- to the Law Institutes guidelines for claims of legal professional priviledge [sic]."
- Log No 1025 (Execution of Warrant NSW – Corrs Chambers Westgarth):
- Log No 1552 (Return of Property to Salmat's solicitors):
- Log No 1554 (Fortnightly Management Report):
- Log No 1701 (Return of Salmat boxes to WA & Qld):
- "Date/Time Actioned: 28/05/1999 10:25
Attended at Level 32, 1 Farrer Place, Sydney in company with Federal Agent Katherine Abohaider. I was in possession of a section 3E Crimes Act 1914 search warrant to search the premises. Upon arrival we were greeted by Mr Richard Flitcroft. The documents specified in the warrant had been collated by Mr Flitcroft and were to be the subject of a legal professional privilege claim. As a result, the documents were listed and sealed in an envelope with two AFP seals. The documents were then conveyed to the St James Centre, Elizabeth Street, Sydney by all three persons. The documents were lodged with the Registrar. DPP Sydney were contacted and notified that a claim for LPP was to be instituted."
- "Date/Time Actioned: 19/01/2000 14:56
30 boxes of property returned to Salmat's solicitor Corrs Chambers Westgarth. Mr Simon Jacobs assisting."
- "Date/Time Actioned: 19/01/2000 16:25
WA enquiries
Hard copy brief of evidence for Salmat managers Ward and Aldridge sent to Perth DPP. DPP looking at organised fraud charges.
…"
- "Date/Time Actioned: 08/02/2000 10:30
…
2. 14 Salmat boxes destined for Mr Tony Blake, Corporate Security, Australia Post, Perth."
- Log No 1798 (Return of Salmat Property):
- Quarterly Case Management Report ("QCMR") for period 25/11/1999 to 25/02/2000 Current Status Report:
- Log No 2580 (Fortnightly Report for 8 August 2000):
- QCMR for period 25/05/2000 to 25/08/2000 Current Status Report:
- Log No 2614 (Contact with Lyn White (Salmat WA: Postal Clerk):
- "Date/Time Actioned: 16/02/2000 18:01
…
Task Description: Alan as per our phone conversation we have 14 boxes of material to return to Salmat's solicitors in WA.
…"
- "WA Enquiries
Brief of evidence forwarded to DPP Perth. Fraud is valued at $248 000. DPP have asked for some matters to be followed up."
- "Date/Time Actioned: 08/08/2000 09:55
…
WA (Case Officer: Tom Jambrich)
Two further Australia Post auditors and further two statement [sic] have been completed. It is anticipated that there will be a requirement to travel to Perth in the next month."
- "Salmat WA (Case Officer: Tom Jambrich)
The DPP in WA (Mark Fletcher) have received extra material and have advised they are happy with the way the investigation was conducted. They have indicated they are prepared to charge the company. Travel has been organised to Perth in order to complete taking statements from witnesses."
- "Date/Time Actioned: 15/08/2000 10:34
- Contacted Lyn White and told her I was coming over on 28 August. Will meet her at RHQ."
- Log No 3101 (Conference with Maitland Lincoln and Stephen Young (LPP):
- Log No 3111 (Planned Milestones):
- QCMR for period 25/08/2000 to 25/11/2000 Current Status Report:
- Log No 3220 (Fortnightly Situation Report)
- "Date/Time Actioned: 01/11/2000 13:50
Spoke with above on 31 October 2000 in Maitland's Chambers. They indicated there is enough to prosecute Pitt and the company. They want to have a look at Tesco's case."
- "Date/Time Actioned: 02/11/2000 11:31
…
Western Australia
Complete all supplementary witness statements by end of November
Obtain statement from Western Power by end of November
Obtain necessary Australia Post statement by mid December
Charge ALDRIDGE late December early January
Produce all copies of the brief"
- "WA
DPP have asked for follow up enquiries and have indicated they will soon lay charges."
- "Date/Time Actioned: 04/12/2000 16:20
…
WA
DPP have asked for follow up enquiries and have indicated they will soon lay charges."
- Log No 3437 (Contact with Corrs Chambers Westgarth):
- QCMR for period 26/02/2001 to 25/05/2001 Current Status Report:
- Log No 3989 (Comprehensive Monthly Situation Report):
- Log No 4079 (Total Situation Report for Month of July):
- "Date/Time Actioned: 02:02:2001 16:04
Details of an email seeking personal files for among others Ward, Aldridge and Hall."
- "The DPP in Perth requested some additional enquiries of the AFP. These have been completed and charges are expected to be laid in Western Australia soon."
- "Date/Time Actioned: 03/07/2001 15:20
DELAYS
…
Western Australia Enquiry (Case Officer F/A Tom Jambrich)
The DPP has been in position [sic] of the brief for about 1 year. They asked for some further enquiries which have been completed. They advised in writing that they will charge the individuals and company with 'Organised Fraud' under the Proceeds of Crime Act. The DPP case officer has not laid charges due to other commitments and is currently on holidays. It is of concern that charges have not been laid and if the delay continues then matter may have to be raised with DPP head office."
- "Date/Time Actioned: 07/08/2001 13:30
…
Western Australian Enquiry (Case Officer: F/A Tom Jambrich)
The DPP is [sic] Western Australia have been in position [sic] of a brief for a number of months. There seems to be some delays in laying charges due to internal politicking within the DPP. If charges are not laid soon the matter may have to be raised with DPP head office in Canberra."
- QCMR for period 26/05/2001 to 25/08/2001 Current Status Report:
- Log No 4155 (Late Situation Report August):
- Log No 4190 (Overall Situation Report for September):
- QCMR for period 26/08/2001 to 25/11/2001 Current Status Report:
- "Western Australia
Case Officer: F/A Tom Jambrich
Although the prosecution brief has been with the DPP for some period of time, the DPP Case Officer has indicated that charges will be laid shortly and that the DPP in WA is currently undertaking a final review of the evidence."
- "Date/Time Actioned: 11/09/2001 15:01
…
Western Australia (Case Officer: Tom Jambrich)
Case officer is currently awaiting advise [sic] from DPP."
- "Date/Time Actioned: 10/10/2001 17:21
…
Western Australia (Case Officer F/A Tom Jambrich)
A further letter has been received from DPP in WA." [Further matters on this log have been agreed as immune from disclosure.]
- "Western Australia
AFP Case Officer: F/A Tom Jambrich
DPP advise that charges will be laid in the next reporting period following minor enquiries that are required to be conducted by the AFP.
As a precursor to the laying of charges, the DPP has prepared a Section 100 Justice Act 1902 statement. This is State legislation requiring the prosecution to prepare a statement of material facts to the charge."
- QCMR for period 26/11/2001 to 25/2/2002 Current Status Report:
- QCMR for period 26/02/2002 to 25/05/2002 Current Status Report:
- QCMR for period 26/05/2002 to 25/08/2002 Current Status Report:
- QCMR for period 26/08/2002 to 25/11/2002 Current Status Report:
- "Western Australia
(AFP case officer: Federal Agent Tom JAMBRICH)
The DPP advised on 22 February 2002 that all enquiries have been concluded and that charges will be laid within the next month."
- "Western Australia
(AFP case officer: Federal Agent Tom JAMBRICH)
The DPP in Western Australia has indicted [sic] that it still intends to prosecute, however, the DPP case officer is tied up on other matters and it is unknown when he will be in a position to attend to preparing charges. In the interim, the AFP will undertake further enquiries to strengthen the brief. It is suggested that any enquiries be directed to the person and number below."
- "Western Australia
AFP case officer: Federal Agent Tom JAMBRICH
The DPP has been sent some 2,000 extra documents. The DPP case officer is examining these documents and may have some follow up requests."
- "Western Australia
The AFP case officer is Tom JAMBRICH.
The DPP has written to the AFP advising that it intends to lay charges of organised fraud against the company and against a number of individuals. A further statement is being complied [sic] from an invoicing clerk and once this is complete charges will be laid."
- Log No 4578 (Property returned to Salmat)
- Log No 4582 (Conact [sic] with Mary Nemth (Salmat Solicitor):
- Log No 4584 (Contact with Mathew Hall):
- Log No 4586 (Laying of Charges Against Salmat and Others):
- "Date/Time Actioned: 20/1/2003 15:21
32 boxes of property returned to Salmat with assistance from Australia Post."
- "Date/Time Actioned: 13/02/2003 20:20
I range [sic] the above named [Salmat solicitor] and advised her of the decision to charge Salmat Document Management Solutions Pty Ltd (ACN 000 553 284) with organised fraud. I asked if her client wished to participate in an ROI. She advised she would seek instructions. I told her I would contact her tomorrow."
- "Date/Time Actioned: 13/02/2003 20:30
I telephoned Mr Mathew HALL and advised him of the decision to charge him. I asked him if he wished to participate in an ROI. He said he would seek legal advised [sic] and get back to me."
- "Date/Time Actioned: 14/02/2003 09:24
ISSUE
Receipt of advice from the Commonwealth DPP that Salmat Documents Management Solutions Pty Ltd (ACN 00553 284) [sic] will be charge with Organised Fraud contrary to Section 83(1) of the Proceeds of Crime Act 1987. Salmat managers Patrick WARD, born 6 April 1957, Nick Aldridge, born 8 July 1956 and Mathew HALL, born 6 April 1957, are to be also charged with being knowingly concerned with Salmat in Organised Fraud contrary to section 5 of the Crimes Act 1914.
BACKGROUND
…
- A number of Salmat managers have pleaded guilty to offences in Victoria while three others [sic] managers were acquitted after a trial in Victoria in February 2002. The allegations surrounding this advice concern [sic] Salmat's mail house in Osborn [sic] Park, Perth, Western Australia. The alleged offences were committed in the period on or about 1 July 1995 to 30 June 1998 by employees of Salmat who repetitively and systematically defrauded the Australia Postal Corporation (Australia Post) by under-declaring to Australia Post the number of letters in bulk mail lodgements of Western Power Corporation letters with the intention of avoiding postage fees on the under-declared letters.
…
RECOMMENDATIONS
The charging of Salmat Document Management Solutions Pty Ltd (ACN 000553 284) a company listed on the Australian Stock Exchange may attract some interest"
- QCMR for period 26/11/2002 to 25/2/2003 Current Status Report:
- "Western Australia
The AFP case officer is Tom JAMBRICH
The DPP have advised that they are ready to launch proceedings against Salmat and Salmat managers: WARD, ALDRIDGE & HALL for organised fraud contrary to Section 83 of the proceeds of Crime Act 1983. All aforementioned parties have been contacted and advised of this decision."
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