Barakat v R

Background

1. On 7 April 2017, his Honour Judge Toner SC refused an application by Nadar Barakat ("the applicant") for a permanent stay of his trial that is due to commence in the District Court at Sydney next Monday (26 June 2017).
2. On 27 April 2017, Mr Barakat filed a Notice of Application for Leave to Appeal Against Interlocutory Judgment or Order pursuant to s 5F(3) of the Criminal Appeal Act. The notice indicated: "grounds [of appeal] to be filed in due course".
3. An application for an extension of time was also filed on 27 April 2017. Such an extension is necessary as r 5B of the Criminal Appeal Rules requires proceedings under s 5F(3) to be instituted within 14 days of the date of the judgment or order in question. The reasons given for the delay included that trial counsel took the view (for reasons which are not stated and are not apparent) that "the appeal should be run by a different counsel" and that there was a need for legal aid to be granted, which could not be sought until new counsel had provided an advice on merit. The Registrar was informed that legal aid funding was only approved on 8 June 2017 and so I am of the view that the extension of time should be granted.
4. Given the imminent date for the trial in the District Court the Registrar set the matter down for hearing in this Court on 19 June 2017.
5. A document headed "Grounds of Appeal from the judgment of his Honour Judge Toner SC DCJ dated 7 April 2017 pleaded pursuant to sections 5F(5)(a) and 5F(5)(b) [sic] of the Criminal Appeal Act 1912" was filed on Thursday 15 June 2017. It was accompanied by a written outline of submissions. On Friday 16 June 2017 a lever arch file of documents with the title "Appeal Book" was filed. These documents were filed in accordance with directions made by the Registrar (although they were supposed to have been filed on 13 June 2017).
6. The "Grounds of Appeal" document did not set out anything that could be understood as a ground of appeal. No error of the primary judge was asserted.
7. The "Appeal Book" was not an appeal book at all. It was a compilation of documents upon which the applicant relied. It was deficient in many respects but, thankfully, the Crown assisted the Court, in the very limited time available to it, by providing missing documentation as well as written submissions in response to those filed (late) by the applicant.
8. Mr Barakat's co-accused, James Francis Murray, joined in the application in the District Court for a permanent stay but he did not make any submissions and did not seek leave to appeal.

Delay

1. Aside from deprecating the applicant's inefficiency in bringing this application before the Court in circumstances where the judgement in question was given more than 2½ months before the trial date, it is worth noting that the matter generally has been the subject of extraordinary delay.
2. The offences that the applicant is alleged to have committed are said to have occurred in June to August 2010. He was arrested on 8 December 2010. Various steps taken by the applicant are largely the explanation for the matter taking four years until he was committed for trial and then a further 2½ years before he is to be tried.
3. It is little wonder that Toner SC DCJ refused an application to vacate the 26 June 2017 trial date by reason of the proceedings brought in this Court.

The proposed Crown case at trial

1. In order to understand the basis upon which a permanent stay of proceedings was sought it is necessary to say something about the case the Crown proposes to bring against the applicant.
2. The indictment contains nine counts that concern the applicant and two that concern the co-accused. In so far as the applicant is concerned, the two most serious offences alleged are of supplying a large commercial quantity of methylamphetamine. Other offences of supplying indictable quantities of methylamphetamine and cocaine are also alleged, some in the alternative to the more serious offences. All of the offences are alleged to have occurred between 25 July and 24 August 2010.
3. A document containing an outline of the evidence upon which the Crown relies describes various interactions between the applicant and an informant registered with both the police and the New South Wales Crime Commission (referred to by the pseudonym "AP" and sometimes "AP1") between 24 May and 25 August 2010. In short, AP purchased drugs from the applicant using money provided to him by the authorities. In various covertly recorded conversations between AP and the applicant there is also reference to AP paying money to the applicant in order to pay down a debt that AP owed to the applicant's deceased cousin.
4. The activities of AP were carried out pursuant to a controlled operation authorised on 12 May 2010 by a Detective Chief Superintendent under delegation from the Commissioner of Police pursuant to s 6 of the Law Enforcement (Controlled Operations) Act 1997 (NSW). The authority to carry out this controlled operation was stated to be in force from 12 May 2010 until 11 September 2010.

Notice of Motion and supporting affidavit seeking permanent or temporary stay

1. The applicant filed a notice of motion on 27 July 2015 seeking orders that the trial be stayed permanently (or temporarily, but this was not pressed). There was also an affidavit of the applicant's solicitor, Mr Elias Tabchouri, sworn on 27 July 2015, to which was annexed a large bundle of documents (three lever arch folders), the relevance and significance of which were not stated.
2. Considerable delay was then caused by the applicant raising, unsuccessfully, a question about his fitness to be tried. Ultimately, on 18 November 2016, Toner SC DCJ fixed 26 June 2017 as the trial date (estimate 4 weeks) and 27 February 2017 as the date for hearing the stay application (estimate 5 days). He directed the applicant to "file and serve an application and affidavits in support by 6/2/17" and that "reply evidence be filed and served by 16/2/17".
3. The applicant did not comply with the timetable for filing his material but provided it on the first day of the hearing.
4. On 16 February 2017 the Crown filed written submissions and a bundle of documents upon an assumption as to the basis upon which a stay of proceedings was being sought.
5. By email to the parties' legal representatives on 22 February 2017, Toner SC DCJ made directions that the applicant (and co-accused) "provide a precise index of the documents they in fact propose to rely on at the hearing of this application" and "a precise written formulation of the factual and legal foundation for the application" not exceeding four pages.

The applicant's outline of his case for a stay of proceedings

1. In response to his Honour's direction the applicant provided a four page document which made the following assertions. In 1999, at the time of the death of the applicant's cousin, Omran Ahmad, AP owed Mr Ahmad $42,000. The applicant spoke to AP about this in 2000. AP made contact with the applicant in March 2010. Acting on instructions from the Crime Commission, AP made payments to the applicant with money that was "under the control of the Crime Commission" ("the four payments") as follows: $1000 on 23 March 2010. $1500 on 24 April 2010. $1000 on 30 April 2010. $1000 on 7 May 2010.
2. The controlled operation was not in place at the time these payments were made. A police officer gave evidence (in a case not involving the applicant) that the money to make these four payments was given to AP in order to repay a perceived drug debt owed to someone associated with the applicant. This was done to induce the applicant to supply methylamphetamine to AP.
3. AP gave evidence in the applicant's committal proceedings that the applicant was not aware that the debt owed to the applicant's cousin related to a drug transaction.
4. It was said in this written outline that "the primary ground relied upon by the applicant is the irregularity and illegality of the [four] payments made" prior to the controlled operation being authorised. It was contended that "the controlled operation arose only in circumstances of illegal conduct not the subject to a valid authority under [the Law Enforcement (Controlled Operations) Act] or sought to be validated retrospectively". Thus, it was submitted, "the prosecution of this applicant arises as fruit of a poison tree".
5. The document then referred to some submissions made by the Crown which were said to misunderstand the basis of the application. (I interpolate that any misunderstanding is unsurprising given that the applicant had not previously articulated what the basis was.) It continues by stating: "Ultimately the finding of an invalid controlled operation is not the primary finding sought by the applicant. The stay seeks to address the irregularity by which the process was instigated and continued which amounts to an abuse of investigative and prosecutorial process."

The hearing of the application

1. The application was heard on 27-28 February and 1 and 3 March 2017. There was a lot of discussion but little by way of evidence and submissions. The discussions reached a point where it seemed to be important to obtain evidence as to the provision of funds by the Crime Commission to AP that were used to make the four payments to the applicant. On the final day of the hearing an affidavit sworn by an officer of the Crime Commission was read and the parties were given a timetable to provide written submissions.
2. The essence of the discursive and unstructured written submissions for the applicant appears to be encapsulated in the following: "The critical perspective for the Applicant is that the foundational basis for the Application for an execution of the controlled authority either never existed or was obtained in circumstances of such a flagrant and direct breach of the law (in general terms), that any prosecution that emanates from the controlled operation must be regarded as an abuse of process and subject to a permanent stay. In the alternative but for reasons not distinctly or significantly different from those in the previous submission the evidence obtained is such that both in terms of its character and effect it is prone to be excluded pursuant to the exercise of discretion pursuant to Section 138 of the Evidence Act."

Judgment of the primary judge

1. The judgment delivered by Toner SC DCJ on 7 April 2017 was quite detailed. After setting out some background, his Honour summarised his understanding of the case sought to be made by the applicant in support of (a) a permanent stay of proceedings, or alternatively, (b) exclusion of the evidence pursuant to s 138 of the Evidence Act 1995 (NSW) (the latter not being an issue raised in this Court).
2. The two propositions that his Honour understood were raised by the applicant in support of a stay were summarised as follows: "[19] The first was that 'API' had been paid monies which on their face were not within the scope of the [Controlled Operation] Authority and so it is said could not be within the permissible purposes that the Authority allowed. Further it was put that there was no evidence that demonstrated that those payments were lawfully made by the police and/or the Crime Commission to 'API' and accordingly it is submitted somehow that so taints the Authority that it would be an abuse of process to admit any evidence that was garnered so as to permit it to be lawfully admitted into evidence under the guise of the Authority. It represents such an abuse of process that both Mr Barakat and Mr Murray are entitled to a permanent stay of the indictment as without that evidence the Crown has no case. … [22] The second, but only faintly advanced, foundation for the applications is that subsequent to what are said to be the various drug transactions particularised within the indictment, that 'API' was seeking support from others to have someone brutally physically assault Mr Barakat or kill him. [23] I say that this is but faintly advanced because the only evidence that exists in relation to that topic postdates both the times alleged in the indictment during which the offences are said to have taken place and the expiration of the Authority itself. "
3. (The second basis of the application to which his Honour referred was not pursued in argument before this Court.)
4. His Honour then referred to the evidence concerning the four payments made by AP before the controlled operation was authorised. He concluded this section of the judgment as follows: "[39] For the purposes of this application I am prepared to conclude that the money that was paid to Barakat emanating either the Police or the Crime Commission other than the monies which are described as 'buy monies' relate to what 'API' has variously said were frank demands made of him to repay a debt which he is said to have owed to a Mr Ahmed. Mr Ahmed was a relation of Mr Barakat, I think his cousin. Mr Ahmed was killed. [40] Mr Barakat asserted to 'API' that he owed Mr Ahmed a sum of money, about $40,000, and that somehow Mr Barakat was entitled to that money and that 'API' ought to repay him. There is some suggestion that if there was a debt owed to Ahmed by 'API' at the time of the formers death it was for drugs supplied by Ahmed but not paid for by 'API'. As I understand it Mr Barakat does not disagree that 'API' owed money and that it was possibly money that was originally owed to Ahmed but it was a legitimate debt for monies that were lent to 'API'."
5. His Honour referred to the fact that the applicant bore the onus of proof; to authorities concerned with the permanent stay of criminal proceedings (Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23; The Queen v Glennon [1992] HCA 16; 173 CLR 592); and to the terms of s 138 of the Evidence Act. (Jdgmt [41]-[43])
6. His Honour then set out his analysis of the evidence. He concluded, in effect, that s 138 was not engaged because the evidence concerning the drug transactions had not been "obtained improperly or in contravention of an Australian law"; there was no nexus between the drugs transactions and the four payments. (Jdgmt [45]-[52])
7. The judgment then addressed more specifically the application for a permanent stay. His Honour reiterated the applicant's argument. He referred to Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 upon which the applicant relied. He noted that there was no argument that a stay should be ordered because of entrapment; nor could there be. (Jdgmt [54]-[57])
8. There followed reference to various provisions of the Law Enforcement (Controlled Operations) Act. (Jdgmt [59]-[66]) His Honour then made some hypothetical assumptions: "[69] For the purposes of argument let it be assumed that there was no lawful authorisation for the payment to 'API' of the non-drug buy monies [the four payments] and also assume that the purpose of those payments in fact were in part at least to reduce the 'Ahmed' debt. [70] Further if assume that those payments were unlawful what would be the consequences?"
9. These, he noted, were similar to assumptions made in R v Ladocki [2004] NSWCCA 336 (a case concerned with s 138). His Honour set out the terms of the judgment of Mason P at length ([44]-[60]). (Jdgmt [71]-[72])
10. A number of conclusions were then expressed by his Honour which I summarise as follows: There was no suggestion the money used by AP to purchase drugs from the applicant was in any way related to money AP gave the applicant to pay down the debt he owed to the applicant's late cousin. ([77]) The four purchases of drugs from the applicant constituting various counts in the indictment were discrete transactions individually negotiated. ([78]) The evidence relating to the drug purchases did not lead to an inference that the applicant was an innocent who was duped into crime. Rather, "and very much so", the applicant was a willing participant. Using the description of Mason P in R v Ladocki, the applicant was an "unwary criminal" rather than an "unwary innocent". ([79]) The present case stood in contrast to Moti v The Queen [2011] HCA 50; 245 CLR 456 where the appellant's arrest, detention and purported extradition were infected by illegality. ([80]) In the present case, the legitimacy of the controlled operation authority was only questioned on the basis that somehow it was invalidated by what was said to have been unlawful payments to the applicant "which payments, I should add, were made after they were demanded of AP1 by [the applicant]". ([81])
11. His Honour referred to the affidavit sworn by the Crime Commission officer. He noted that it "carefully records the process of internal authorisation of … payments and a fairly scrupulous accounting record relating to them". He concluded: "[85] However, there is nothing before me in any submission or by evidence which permits those payments. [86] It seems at least passingly odd given that both the Commission and the police knew that at least part of the monies advanced to API were for him to repay a pre-existing drug debt owed Omran Ahmed that there would not be a legislative fiat to permit such payments from state revenues. [87] Nothing was put to me nor did my research reveal any such fiat. [88] None the less this question to my mind is but an interesting aside. There is nothing to suggest that even if these payments were unlawful that the [controlled operation] Authorisation was polluted to the extent that its efficacy should in effect be set aside either by a stay of the indictment or by application of section 137 or 138 of the Evidence Act."

Principles and this Court's jurisdiction

1. The written submissions of senior counsel for the Crown helpfully reminded the Court of the authorities concerned with the power to grant a permanent stay of proceedings: Jago v The District Court of New South Wales, supra, and Walton v Gardiner [1993] HCA 77; 177 CLR 378. There is also a useful summary of the principles in the judgment of Bellew J (Leeming JA and Adams J agreeing) in TS v R [2014] NSWCCA 174 at [61]-[64]. As the applicant has not raised any criticism of the primary judge as to his understanding and application of the relevant principles, it is unnecessary to discuss them.
2. Bellew J also pointed out in TS v R at [44]-[45] that proceedings in this Court under s 5F of the Criminal Appeal Act do not proceed by way of rehearing; rather, it is a matter of reviewing the correctness of the interlocutory decision in question. It is necessary for the applicant to be able to identify some error on the part of the primary judge which caused the discretion to miscarry in a manner described in House v The King [1936] HCA 40; 55 CLR 499.

Grounds and submissions in this Court

1. There were no grounds articulated in the document purporting to represent the applicant's grounds of appeal. The 25 paragraphs contained submissions coupled with various assertions of fact.
2. The written submissions did not purport to identify any patent error on the part of the primary judge. In essence, they amounted to an attempt to re-argue the issue de novo.
3. At the hearing of the application, counsel for the applicant had difficulty when asked (repeatedly) to articulate with some specificity what ground, or grounds, were to be relied upon if leave to appeal was to be granted. It is somewhat surprising that legal aid has been granted in respect of this application after counsel had provided an advice on merit without, it would seem, having identified a ground, or grounds, of appeal. This Court is entitled to expect direct answers to such a straightforward question but, sadly, none were forthcoming.
4. At an early stage of the hearing, counsel identified a ground as being a failure to take into account a material consideration, namely that there was a nexus between the four payments and those made after the controlled operation was authorised. In other words, the challenge concerned the finding made by the primary judge to the contrary. Later in the hearing, when asked to confirm that this was the ground of appeal, counsel responded: "WEBB: Whether in fact there was a nexus is not the consideration of such materiality, it's the question of whether there was a nexus or not which was a matter which was also an irrelevant consideration because putting to one side nexus and looking at the earlier matters and the later matters what has occurred in my submission is that the issues concerning the operation and acts of the authorities are not really changed or trammelled in any particular way concerning the question of whether there is a nexus or not."' (19.6.17 at T14.25)
5. In the end, counsel was given the opportunity to express the ground(s) in no more than a single A4 page and provide same to the Court by 4.00pm that day.
6. After 5.00pm that day, a single but full A4 page (in the smallest possible font size) was sent to the Court. In addition to paragraphs under the headings "particulars of error of law" and "further particulars of error of law" and a lengthy footnote, it expressed two grounds of appeal as follows: "Ground 1 His Honour was in error in finding there was no nexus as between the debt payments and the payments authorised later in time [at 52]. The nature of the error was a failure to take into account a material consideration. The material consideration was that the nexus was corrupt conduct by the relevant officials. Ground 2 His Honour erred in law in finding that 'the vice in Ridgeway was cured to the extent that the evidence garnered was within the boundaries permitted by the authorisation' [at 66]."
7. The document concluded by stating that "the applicant applies for a permanent stay and in the alternative a declaration as to the invalidity of the controlled operation authority dated 12 May 2010". The former tended to perpetuate the erroneous notion that this Court was hearing the application for a stay afresh. The latter could be ignored as it formed no part of the application before the primary judge (see above at [27]) and was not the subject of any submission to this Court, either written or oral.

Ground 1

1. Following the statement of this ground, under a heading "Particulars of error law" it is said that "the material and significant error … was that there was a nexus between the two classes of conduct".
2. This ground was baseless. In effect, the applicant was asking this Court to determine a dispute about a factual finding made by the primary judge (which I would add was one that was open to him). This did not make good an assertion that there was a failure to take into account a material consideration.

Ground 2

1. This ground involved a misstatement or misunderstanding of what the primary judge was talking about in paragraph 66 of his judgment. His Honour had referred to Ridgeway v The Queen and then to the legislative response (the Law Enforcement (Controlled Operations) Act). What he said in paragraph 66 was a general comment about Parliament having provided statutory regulation and authorisation of the conduct of law enforcement authorities that would otherwise amount to illegal conduct with the consequences identified by the High Court.
2. As with the previous ground, no error of the primary judge in a House v The King sense had been identified.

Conclusion

1. This application for leave to appeal was completely lacking in merit in both presentation and content. The only fortunate thing is that the Court was able to hear and determine it without imperilling the scheduled commencement of the applicant's trial next week.

Order

1. It was for these reasons that I joined in the order made on 21 June 2017 that leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act be refused.
2. WILSON J: I agree with R A Hulme J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2018