BOULOS v R

COUNSEL: G W Turnbull SC (Applicant) J V Agius SC (Crown)

SOLICITORS: Watson Mangioni Lawyers (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/13514

JAMES J HOEBEN J HALL J

MONDAY 2 JUNE 2008 BOULOS, Magdi v R Judgment 1 JAMES J: Magdi Boulos appealed, pursuant to s 5F(3) of the Criminal Appeal Act, against an interlocutory judgment by her Honour Judge Murrell in the District Court on 20 March 2008, refusing an application by the appellant for a permanent stay of criminal charges against him contained in an indictment which the Crown proposes to present at a trial of the appellant, a copy of which was enclosed with a letter dated 15 October 2007 from the Commonwealth Director of Public Prosecutions to the appellant's solicitors. On 27 March 2008 Judge Murrell gave a certificate that her judgment was a proper one for determination on appeal and accordingly an appeal lay to this Court, without the need for this Court to grant leave to appeal. 2 The indictment the Crown proposes to present at the trial of the appellant contains 10 counts, each charging an offence under s 29D (since repealed) of the Commonwealth Crimes Act. These charges are different from the charges on which the appellant was committed for trial, which were charges under s 5 of the Crimes Act (also since repealed) and s 29D of the Crimes Act, alleging that the appellant was knowingly concerned in a company named Brendons Advanced Technology Pty Limited ("BAT") defrauding the Commonwealth. However, the present charges and the charges on which the appellant was committed for trial are substantially similar. 3 The conduct of the appellant on which the charges are based is alleged to have occurred within various periods between about 25 January 1993 and about 11 February 1994. The amounts of which the appellant is alleged to have defrauded the Commonwealth range from $83,300 (count 2) to $188,222.40 (count 3) and total $1,140,789. 4 The evidence before the primary judge consisted of:-

1. An affidavit by the appellant's solicitor, to which were exhibited eight folders of documents
2. A further affidavit by the appellant's solicitor to which was exhibited another folder of documents
3. An affidavit by a solicitor employed by the Commonwealth Director of Public Prosecutions
4. Some documentary exhibits

There was no affidavit from the appellant himself. Not all of the documentary evidence which was before Judge Murrell is before this Court. 5 The principal persons and companies involved and the events leading up to the bringing of the charges against the appellant were concisely and accurately summarised by her Honour in pars 3 and 4 of her judgment, which were in the following terms:- "3 Computer World Solutions (CWS) and Trio International (Trio) were computer trading companies that were part of a group of companies under the applicant's effective control. Mr Andrews was the internal accountant and financial controller for the Boulos group of companies. He had shares in CWS and Trio. Brendons Advanced Technology Pty Ltd (BAT) was one of the applicant's private investment companies. Mr Norman was BAT's accountant. IDB Satellite (IDB) was an unrelated company that had discussed joining the Boulos group. Mr Andrews had access to IDB documents. 4 Between January 1993 and February 1994, BAT lodged with the Australian Taxation Office (ATO) ten sales tax refund applications, seeking a total of $1,140,789. Each refund application was supported by an invoice from CWS, asserting that BAT had purchased computers from CWS for a tax-inclusive price, and a purchase order from either Trio or IDB, alleging that BAT had onsold the computers for a tax-exclusive price (as Trio and IDB were not required to pay sales tax). The applications sought a refund of sales tax paid by BAT to CWS. ATO refund cheques were deposited into an account held by Ubigold Pty Ltd (Ubigold) or Boulos Investments Pty Ltd (Boulos Investments). The Crown alleges that the transactions that were the basis for the applications did not occur." 6 The companies Ubigold and Boulos Investments, into whose bank accounts the refund cheques were deposited, were companies controlled by the appellant. 7 In par 9 of the judgment the primary judge set out a chronology of events, which, subject to one matter which I have corrected, was accepted on the hearing of this appeal as being accurate. In her chronology her Honour referred to the Australian Taxation Office as "ATO", the Australian Federal Police as "AFP" and the Commonwealth Director of Public Prosecutions as "CDPP". Her Honour's chronology was as follows:- 1.2.91 BAT bank account closed 25.1.93-11.2.94 Period of alleged offences Jan 1994 Jull, an ATO compliance officer, commenced inquiries 10.5.94-28.6.94 Jull spoke to Andrews and the applicant. He asked for access to records, but failed to obtain it 15.7.94 Matter referred to the ATO investigations search Late 1994 Norman says that a fire at his premises destroyed documents, including documents belonging to BAT and CWS. Although Norman was a Crown witness, the Crown questions whether there was a fire. 20.1094-July 96 Some witness statements obtained Aug/Sept 96 ATO referred the matter to the AFP 1999 BAT, CWS and Trio were deregistered by this time 1998/99 Lapsing of the requirement under s127(1) of the Sales Tax Act 1992 to retain sales tax records for five years. Most records relating to the internal company transactions of BAT, CWS and Trio were lost or destroyed by 2000, prior to the applicant learning that there was a continuing investigation. 6.1.00 The AFP executed search warrants at the homes of the applicant and Andrews and at the Boulos business premises. No relevant documents were located. 2000/01 Further witness statements were obtained. 11.2.01 Andrews left Australia. 29.10.01 The AFP wrote to the applicant's lawyers setting out the general allegations and requesting an interview. The applicant declined. 30.11.01 The applicant left Australia. The AFP obtained a warrant for his arrest (supporting documentation was faulty). 21.1.02 The applicant's wife said that he would return at the end of January. 29.5.02 The AFP obtained a warrant for the applicant's arrest. 13.8.03 The applicant's solicitors contacted the CDPP and were told that the matter was still active. 29.6.04 The applicant's solicitors contacted the CDPP and advised that the applicant wanted to return to Australia. There were discussions regarding his return. 20.12.04 The applicant returned. He was arrested at the airport and charged. Bail was granted. 17.1.05 The brief of evidence was served. Aug 05-Aug 07 Committal proceedings. 31.8.07 The applicant was committed for trial on 10 counts of being "knowingly concerned" in frauds. 15.10.07 Amended indictment served, containing 10 counts of defrauding the Commonwealth. 18.1.08 Trial fixed for four weeks, commencing on 16.6.08. Stay application fixed for 17.3.08.

8 It was common ground both before the primary judge and on the hearing of this appeal that Mr Andrews had created the documents for submission to the Australian Taxation Office and had submitted the documents and that in doing so he had acted fraudulently. However, the appellant's defence case is that Andrews acted alone, without any knowledge or involvement on the part of the appellant. 9 The Crown case against the appellant that the appellant was a party to defrauding the Commonwealth is a circumstantial case. In par 8 of her judgment the primary judge listed the principal circumstances relied on by the Crown as follows:- "(1) In 1993/94, BAT did not have a bank account and did not lodge tax returns. The evidence suggests that it did not trade to any significant extent. (2) The applicant had a controlling role in BAT, CWS and Trio. The applicant and his wife were the sole directors of BAT, Ubigold and Boulos Investments. (3) The applicant was closely involved in the buying and selling of computers by CWS and Trio. During weekly sales meetings computer stock holdings were discussed. (4) At the time that Zenith allegedly supplied computers to CWS, Zenith was winding up its Australian operations. (5) The relevant transactions concerned very substantial numbers of computers and very substantial sums of money. (6) Each refund cheque was accompanied by a notice stating that the cheque was a sales tax refund. In addition, the ATO sent five other letters to BAT referring to a claim for sales tax refund. (7) The ten refund cheques were sent to BAT's registered office, a private residence occupied by members of the applicant's extended family. (8) Each refund cheque was substantial. (9) Ubigold and Boulos Investments were property holding companies whose main income was rent. (10) The refund cheque deposit slips contain handwriting that "looks like" that of the applicant. All cheques were deposited on days when the applicant was in Australia. One deposit was "delayed" until a date when the applicant had returned from overseas. (11) At the time that each cheque was deposited, there was a low balance in the receiving account. (12) Within a few days of deposit, funds were withdrawn. The authorised bank account signatories for Ubigold and Boulos Investments were the applicant and his wife. Some of the funds were applied to expenses such as credit card accounts, and the expenditure appears to have been of a personal nature. (13) BAT made only 10 claims for sales tax refunds, and each was false. (14) One month after the AFP asked the applicant to attend for an interview, the applicant left Australia on a one-way ticket. The Crown will seek to rely upon flight as evidencing consciousness of guilt. The applicant will object to admission of the evidence." 10 In her judgment under the heading "the power to grant a stay of proceedings" the primary judge stated a number of principles to be applied in determining whether a court should grant a permanent stay of criminal proceedings. On the hearing of this application it was not contended that her Honour had made any error in her statement of the principles to be applied by her. The principles stated by her Honour was follows:- "(11) The Court has an inherent jurisdiction to permanently stay proceedings that are an abuse of process: Barton v The Queen (1980) 147 CLR 75. The onus is on the applicant to satisfy the Court that any trial would involve an abuse of process: Barron v Attorney General for NSW (1987) 10 NSWLR 215. The onus is "a heavy one" and the power to stay will be exercised "only in the most exceptional circumstances": Williams v Spautz (1991-92) 174 CLR 509 at 529. (12) The power to grant a permanent stay is discretionary: Basha (1989) A Crim R 337 per Hunt J at 339. (13) The exercise of the discretion involves balancing the interests of the community and those of the applicant. There is a strong public interest in ensuring that persons accused of serious offences face trial: R v Carver [1999] NSWCCA 135 at para [33]. However, the public interest in holding a trial does not extend to holding an unfair trial: Jago per Mason CJ at 30. (14) An abuse of process occurs when a trial is incapable of serving its purpose, ie is incapable of finally determining whether the accused has engaged in the alleged criminal conduct. Jago v District Court of NSW (1989) 168 CLR 23 per Brennan J at 47. A stay will be justified where any trial "will necessarily be an unfair one or … the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process": Jago per Deane J at 60. (15) Before a stay may be granted, there must be "a fundamental defect which goes to the root of the trial", such that the trial judge will be unable to address the unfairness: Barton per Wilson J at 111, R v Littler [2001] NSWCCA 173 at para [5]. There must be no available means, such as jury directions, of bringing about a fair trial. (16) Delay and associated general prejudice will not usually create an abuse of process. In relation to criminal proceedings, delay is not infrequently associated with the death of witnesses, memory loss, or the loss of documents. Where an absent witness's likely evidence is not known, any disadvantage arising from the witness's absence is speculative, and abuse of process cannot be established. Even where it is established that the missing evidence would be capable of creating a reasonable doubt, a fair trial can usually be achieved through the use of appropriate directions. (17) In The Queen v Davis (1995) 57 FCR 512, the trial of a doctor on old sexual indecency charges was stayed because of special prejudice arising from the destruction of contemporaneous medical notes concerning the alleged patient/victims. (18) In Davis , at 519, the Court noted that, on a stay application, it was relevant to consider the strength of the prosecution case. However, on stay applications, it is not unusual to rely on weakness in the prosecution case, and it is not a matter upon which the applicant relies in this application. (19) In short, in the exercise of its discretion, the Court must determine whether the applicant has established that any trial will necessarily be unfair. The notion of fairness (or unfairness) "defies analytical definition" and is largely a matter of "essentially intuitive judgment": Jago , per Deane J at 57." 11 Having stated the principles to be applied by her, her Honour then proceeded to determine the application. Her Honour said:- "(20) Very soon after the alleged offences, the ATO commenced inquiries. However, for most of the ensuing six years from mid 1994 to April 2000 (when search warrants were executed), there was an unjustifiable delay by prosecuting authorities. I infer that, for most of the period to April 2000, the investigation was, in fact, dormant. During this period, company documents may have been lost, in a fire. To the extent that they had been operating, companies ceased to trade. The period prescribed by statue for the retention of sales tax documents expired, allowing the legitimate destruction of such documents. Between mid 1994 and 2000, the applicant was not told that he was still under investigation, and there is no evidence that he was aware that an investigation was continuing. (21) The applicant's contentions that, if he was within the jurisdiction, Andrews may have testified that the subject computer transfers were "real" and that, but for their destruction, company documents may have evidenced "real" transactions, are mere speculation. As Andrews is known to have falsified documents associated with the "transactions", it is more likely that any reliable evidence would tend to confirm fraud. Any disadvantage to the applicant can be addressed in a trial. (22) The applicant's principal argument is that the unjustifiable delay and associated events have deprived him of documents and witness recall that may have undermined the Crown's argument that the only available rational inference is that the applicant knew of, and was a party to, the frauds. (23) The Crown argues that, in contrast to the position in a case such as Davis , the applicant is unable to identify a particular critical document that would very likely elucidate the situation. However, such an inability is far less significant in a circumstantial evidence case, where the Crown does not rely upon one witness's evidence about one critical incident, but on a collection of circumstances, each of which, in isolation, is of no great significance. (24) The Crown case is inherently problematic. The only direct involvement that the Crown may be able to establish is that the applicant received and banked substantial cheques that were described as sales tax refunds. Alone, that evidence is incapable of establishing that the applicant was a party to the frauds that yielded the refunds. The Crown's attempt to rely on flight as evidencing consciousness of guilt will, at least, attract a judicial direction requiring that such evidence be approached with caution. Otherwise, the circumstances upon which the Crown relies are of a very general nature. The Crown will ask a jury to infer that, by virtue of his role in the companies, the receipt of monies, and associated direct or indirect enrichment, the applicant "must have known" of, and been a party to , the fraud. (25) I accept the applicant's submission that, in all likelihood, he has suffered significant forensic disadvantage because of the unjustifiable delay in prosecution of almost six years. For example, it may be that there were documents showing that, at the time when the refunds were received, the applicant received and banked similar sums, so that receipt of the refunds would not have caused him to question their legitimacy. It may be that the applicant was not personally enriched, but the funds went towards what were really business expenses. It may be that, had witnesses been questioned earlier, they would have recalled details of particular sales meetings or particular conduct by Andrews that would have supported the applicant's case. It is possible that there were documents showing that, at the relevant time, BAT did trade to a significant extent. Indeed, it is possible that, but for the unjustifiable delay, documentary or verbal evidence would be available to, at least, put a gloss on each of the circumstances upon which the Crown relies. (26) Apart from likely disadvantage to the applicant, it can be seen as "unfair" that the prosecuting authorities determined to prosecute alleged sales tax frauds at a stage when, because of the passage of time, it was permissible to destroy relevant documentation. It may be seen as "unfair" that, following the unjustifiable delay, the offender will stand trial fifteen years after the alleged offences, particularly because, in relation to the central issue, the Crown will rely upon circumstantial evidence. (27) However, our criminal justice system ensures that, in all but the most exceptional circumstances, an accused will be tried by his or her peers. I expect that the trial judge will explain issues of forensic disadvantage to the jury and that the applicant will receive a fair trial. Although, at a general level, it may be said that the process has been "unfair" to the applicant, I am far from satisfied that any trial will necessarily be unfair in the sense required to establish an abuse of process. (28) The application is refused and the trial date of 16 June 2008 is confirmed."

The submissions Submissions for the appellant 12 Counsel for the appellant disavowed making any submission that the primary judge had made any mistake of fact or any mistake as to the principles to be applied by her. 13 A ground of appeal that the primary judge had erred in that she had not given sufficient weight to a number of matters was not pressed as an independent ground at the hearing of this appeal. The relative weight given by a primary judge in the exercise of a discretion to matters which were clearly relevant to the exercise of the discretion can seldom be successfully challenged on an appeal. 14 The ground of appeal which was pressed by counsel for the appellant was a ground that, by reason of a combination of matters, any trial of the appellant on the charges would necessarily be an unfair trial. It was recognised by counsel for the appellant that a permanent stay of criminal proceedings should be ordered only in an exceptional case but it was submitted that the present case was such an exceptional case. Counsel referred to the primary judge's own finding in par 25 of her judgment that the appellant had suffered significant forensic disadvantage and to her statement in par 26 of her judgment that a trial of the appellant could be seen to be unfair. 15 Counsel submitted that the facts in the present case were distinguishable from the facts in Jago. In support of this submission counsel referred to a passage in the judgment of Kirby P in the Court of Criminal Appeal in Jago, which was quoted by Toohey J in his judgment in the High Court at p 72. Kirby P had said in the Court of Criminal Appeal:- "This is not, after all, a case the trial of which will involve, as many corporate offences do, complex documentation and interrelated transactions. In such cases the erosion of memory over time could work a serious injustice to an accused person ... No witnesses have died. The documentary evidence remains for the jury's consideration and, if so desired, for the accused's explanation." 16 Counsel for the appellant submitted that the present case, in contra distinction to Jago, was a case involving complex documentation and interrelated transactions, where the erosion of memory over time could work serious injustice. In the present case, although no witness apart from a Mr Stephen Haig had died, Mr Andrews, a key witness, was unavailable. Much documentary evidence was no longer available for the jury's consideration. 17 It was submitted that, although the primary judge in her judgment had spoken of an unjustifiable delay "of almost six years", in fact more than seven years had elapsed before the Australian Federal Police wrote to the appellant's solicitors on 29 October 2001, setting out the general allegations against the appellant and requesting an interview. 18 Counsel referred to s 127(1) of the Sales Tax Assessment Act 1992 (since repealed), which was in the following terms:- "127(1) Type and retention of records A person who is the taxpayer for an assessable dealing, or the claimant for a credit, must: (a) keep records that record and explain all transactions and other acts engaged in by the person that are relevant to that assessable dealing or credit claim; (b) retain those records for at least 5 years after the completion of the acts or transactions to which they relate." 19 The period of five years during which the appellant or companies controlled by the appellant had been required to retain records had expired in 1999, before the appellant was notified that there was a continuing investigation into the claims for sales tax refunds. 20 As observed by the primary judge in pars 7, 8 and 24 of her judgment, the Crown's case against the appellant is a circumstantial one. It was submitted that, in order for any trial of the appellant to be a fair trial, it would be necessary to have evidence of all relevant circumstances, so that the circumstances sought to be relied by the Crown were put in a proper context and the jury could determine, in the light of all of the circumstances, whether the only reasonable inference to be drawn was that the appellant was guilty of the charges. However, the appellant had been deprived of the capacity to adduce evidence of all the relevant circumstances. 21 Counsel referred in some detail to some of the evidence given by some of the witnesses in the committal proceedings. 22 One of these witnesses was Mr David Sinclair, the sales manager of CWS from about 1991 to January 1994, who was called as a witness for the appellant in the second stage of the committal proceedings (that is the stage of the committal proceedings concerned with s 41(6) of the Justices Act, as then in force). A detailed summary of Mr Sinclair's evidence was set out in the Crown's written submissions in the committal proceedings (appeal book pp 175-179). It was submitted that the summary of Mr Sinclair's evidence showed an inability on his part, at least initially, to recall a number of matters and also showed how the eliciting of further facts in cross-examination or re-examination affected any drawing of inferences from the evidence he had earlier given. 23 Counsel also referred to evidence given by Mr Coxhead, a principal of IDB, that he had trusted Mr Andrews as the financial controller of CWS, that he had observed that Mr Andrews was in charge of the paperwork at CWS and that the appellant had not concerned himself at all with the paperwork of CWS. 24 Counsel referred to a summary of the evidence given by Mr Norman in the committal proceedings. Mr Norman gave evidence that BAT "appeared to have some sort of trading in the period 92-94 - specific periods" and it was submitted by counsel that this was an example of a further piece of evidence qualifying one of the items of circumstantial evidence relied on by the Crown. 25 Counsel for the appellant referred to what he submitted was the weakness of the prosecution evidence that the handwriting on the deposit slips completed when the refund cheques were banked was the handwriting of the appellant. 26 Counsel for the appellant sought to respond to a submission he anticipated would be made by the Crown that counsel for the appellant had not identified any specific prejudice to the appellant. Counsel referred to two schedules which had become exhibits before the primary judge. 27 Exhibit 2 was a schedule headed "missing, unidentifiable and unreliable witnesses. Destroyed, lost, missing and incomplete documents". In the schedule witnesses were listed, who, it was submitted, were not available (this list comprised Mr Andrews and Mr Stephen Haig, an employee of Zenith Data Systems, who could have given evidence about the distribution of computers by Zenith, including to Trio); witnesses who were not available and/or contactable, without recourse to records; and witnesses who were available but whose recollection of events had become unreliable. In this schedule were also listed documents which were said to have been destroyed, lost or missing, particularly as being records of companies which were no longer in existence. 28 In exhibit 3 a number of examples were given of evidence given by witnesses in the committal proceedings, where the witnesses had evinced an inability to recall matters about which they were being questioned. 29 Counsel submitted that, apart from any specific prejudice by reason of the delay in the prosecution and other events, it should be inferred that the appellant had suffered severe presumptive prejudice and counsel referred to what McHugh J said on the subject of presumptive prejudice in Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 at 551 (a civil case concerned with the extension of a limitation period for suing for personal injury).

Crown submissions 30 Counsel for the Crown, noting that it was accepted by counsel for the appellant that the primary judge had not made any error of fact or of principle, referred to what was said by the full court of the Federal Court in The Queen v Davis (1995) 57 FCR 512, a case in which the primary judge had granted a permanent stay. At p 518 the full court of the Federal Court said: "We suggest that an appellate court is likely to interfere only in a case where it considers a primary judge to have misunderstood the facts or misunderstood or misapplied relevant principles." 31 As to the certificate which the primary judge had given, although in the certificate her Honour stated that she had found "the exercise of my discretion to be difficult", in her judgment she had concluded that she was "far from satisfied" that any trial of the appellant would necessarily be an unfair trial. 32 Counsel for the Crown pointed out that on the appeal there was no evidence at all from the appellant and referred to R v Stringer (2000) 116 A Crim R 198, especially per Smart AJ at 229-231. 33 Counsel submitted that the only evidence in the body of the principal affidavit by the appellant's solicitor about the consequences of the alleged delay was in pars 24 and 25 of the affidavit. In par 24 of the affidavit it was stated that Mr Andrews and Mr Haig of Zenith Data Systems, who had died, were not available to give evidence. In par 25 of the affidavit it was stated that a number of categories of documents were no longer available. These documents included:-

(a) an accounting system that recorded the number and size of transactions carried out by CWS, Trio and for a short time, IDB. In 1994 Mr Andrews had taken the computer that stored the accounting system.

(b) source and summary documents about the various companies had been destroyed, according to Mr Norman, in a fire at his premises in 1995.

(c) documents of IDB had also, according to Mr Norman, been destroyed in the same fire.

(e) external computer suppliers who might have supplied computers no longer had records for the relevant period.

(f) the Australian Taxation Office, relying on statutory restrictions, had refused to produce certain documents. 34 As to Mr Andrews, it was submitted by counsel for the Crown that it was common ground that he had acted fraudulently. It was purely speculative that Mr Andrews would be able to give any evidence favourable to the appellant. Indeed, it would be unlikely that Mr Andrews would have acted fraudulently in a way which appeared to benefit only the appellant, and not Mr Andrews himself, if Mr Andrews had been acting independently of the appellant. Likewise, it was purely speculative what evidence Mr Haig, if he was still alive, might have given. 35 As to the documents claimed to be no longer available, it was again purely speculative whether the contents of any of the documents would have assisted the appellant's case. Counsel contrasted the present case with Davis, where the accused, a medical practitioner, had been charged, many years after the offences had allegedly been committed, with offences of sexual indecency against females who had been his patients. By the time any complaint was made to the authorities by any of the alleged victims, most of the accused's medical records of consultations with the alleged victims had been destroyed. As stated by Smart AJ in Stringer, in referring to Davis, the accused in Davis had over the years seen thousands of patients and "without his clinical records the doctor would not be able to say what he did and why". 36 It was pointed out by counsel for the Crown that the documents referred to in pars (a), (b) and (c) of par 25 of the solicitor's affidavit had ceased to be available in 1994 or 1995, that is not long after the offences had allegedly been committed and long before the expiration of the period of five years for which records were required to be kept under the Sales Tax Assessment Act. Accordingly, these documents had not been destroyed in reliance on the expiration of the period for keeping records required by the Act. 37 Even if certain documents were missing, the absence of the documents at a trial would be as likely to cause prejudice to the Crown, which would carry the onus of proof, as to the appellant. 38 Counsel referred to the power of a trial judge to give directions to a jury so as to obviate, or at least reduce, any prejudice to the accused at a trial. 39 Counsel made a number of submissions in support of a general contention that the Crown's circumstantial case, so far from being weak, was a strong circumstantial case. Counsel referred particularly to evidence of circumstances rendering it improbable that BAT, a company set up as a management company, which had not traded or had traded very little (subject to any evidence from Mr Norman), which had no bank account, which, according to evidence from representatives of IDB and Trio had not made sales to IDB or Trio, which employees of CWS such as a Mr Naidoo and a Ms Grady-Tetley were unaware of, could have made purchases and on-sales of computers in the volume required to give rise to an entitlement to more than a million dollars in sales tax refunds. 40 In support of his contention about the strength of the Crown's circumstantial case, counsel for the Crown also referred to evidence about the receipt, banking and disbursement of sales tax refunds.

Decision 41 The decision by the primary judge on the application for a permanent stay of the criminal proceeding involved the exercise by her of a discretion. See Jago at 31 per Mason CJ and at 75 per Gaudron J; R v Tolmie (unreported 7 December 1994 NSWCCA). Accordingly, any appeal from the primary judge's judgment is governed by the principles stated in the well known passage in the joint judgment of Dixon J, Evatt J and McTiernan J in House v The King (1936) 55 CLR 499 at 504-505. 42 I have already referred to a passage in the judgment of the full court of the Federal Court in Davis to the effect that an appellate court is likely to interfere on an appeal against the granting or refusal of a permanent stay of criminal proceedings, only if it considers that the primary judge misunderstood the facts or misunderstood or misapplied relevant principles. I note, however, that the full court used the word "likely" and introduced what it said by the words 'we suggest". 43 I consider that I should apply the statement of the principles to be applied by the Court of Criminal Appeal on an appeal under s 5F of the Criminal Appeal Act, which is contained in R v Alexandroaia (1995) 81 A Crim R 286 at 290 and in R v BWM (1997) 91 A Crim R 260 at 266 and which is derived from House v The King. In R v BWM Hunt CJ at CL said at 266: "This Court has already held that, in an appeal pursuant to s5F, the findings of fact and the exercise of any discretion by the trial judge .may be attacked only if error has first been demonstrated, as must be demonstrated in an appeal against conviction. Error may be demonstrated in relation to a finding of fact if there is no evidence to support it, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice; error may be demonstrated in relation to the exercise of discretion if the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters' or has failed to give weight or sufficient weight to a relevant consideration, or has made an error in relation to the facts (as so demonstrated), or if the result is so unreasonable or plainly unjust that the judge must have failed properly to exercise that discretion." 44 Consequently, even if the primary judge made no mistake of fact or of principle, the Court of Criminal Appeal could still interfere, if it considered that, by reason of a combination of matters, the conclusion of the primary judge that a trial of the appellant would not necessarily be an unfair trial was so unreasonable or plainly unjust that the primary judge must be held to have failed properly to exercise her discretion. 45 Earlier in this judgment in summarising the submissions by counsel for the appellant I referred to the factors sought to be relied on as necessarily making any trial of the appellant an unfair trial. In my opinion, these factors, even when combined, were not such as to require a conclusion by the primary judge that any trial of the appellant would necessarily be an unfair trial. 46 As submitted by the Crown, it is significant that there is no evidence from the appellant himself but only from his solicitor. In R v Stringer Smart AJ said at 230 (129) that the absence of evidence from an applicant tends to weaken his case for a permanent stay of criminal proceedings against him. His Honour added, "if an accused wants the benefit of a permanent stay, there is nothing unfair as a general principle requiring him to verify his position". 47 As to the distinction sought to be drawn between the facts of the present case and those in Jago, I would accept only to a limited degree that the present case involves complex documentation and interrelated transactions. In relation to each of the counts in the proposed indictment, the transactions and documentation summarised in par 4 of the primary judge's judgment are fairly straightforward:- a purported invoice from CWS to BAT, a purported purchase order from Trio or IDB, an application to the Australian Taxation Office for a sales tax refund, a notice of refund and a refund cheque from the Australian Taxation Office and the deposit of the refund cheque into an account of Ubigold or Boulos Investments. 48 As to unavailable evidence, in Stringer Grove J said at 200 (11):- "It is well established that a permanent stay should not be granted simply because witnesses or evidentiary material have become unavailable or lost: R v Adler unreported CCA 11 June 1992; R v Goldberg unreported CCA 23 February 1993; R v McCarthy unreported CCA 12 August 1994; R v Tolmie unreported CCA 7 December 1994; R v Hatfield [1999] NSWCCA 340." 49 In some case it is known what evidence could have been given by missing witnesses or it is known what were the contents or what were likely to have been the contents of missing documents and, accordingly, it can be ascertained whether an accused person has actually suffered prejudice because witnesses or documents are unavailable. See Tolmie per Hunt CJ at CL at p 5. The case of Davis, which has already been referred to earlier in this judgment, can properly be regarded as such a case. 50 However, in the present case, it is entirely speculative what evidence Mr Andrews or Mr Haig would have given, if available to give evidence, and whether such evidence as they might have given would have assisted the appellant. As the primary judge remarked in her judgment, it is quite likely that any evidence Mr Andrews could have given would not have assisted the appellant. 51 Likewise, it is entirely speculative what the contents of allegedly lost, missing or destroyed documents would have been and whether any of the documents would have assisted the appellant. The examples given by the primary judge in par 25 of her judgment of ways in which the appellant might have suffered forensic disadvantage were introduced by the words "it may be" and were no more than speculation by her Honour. 52 In general, it is mere speculation in the present case that any evidence by a witness who is unavailable or any document which is unavailable would, if available, have weakened the probative value of any of the circumstances relied on in the Crown's circumstantial case. In any event, as was submitted by the Crown, because the Crown carries the onus of proof, any gaps in the evidence are as likely to prejudice the Crown, as the appellant. 53 It is true that the primary judge found that there was an unjustifiable delay in the prosecution of almost six years or, if a submission made by counsel for the appellant is accepted, of more than seven years. During this period of delay the period of five years for which the Sales Tax Assessment Act required documents to be kept expired. However, many of the documents which are now unavailable did not become unavailable because they were innocently destroyed in reliance on the expiration of the period for which documents were required to be kept by the Sales Tax Assessment Act. The documents became unavailable as early as 1994, when Mr Andrews took the computer which stored the accounting system, or as early as 1995, when the alleged fire at Mr Norman's property occurred. 54 In Davis the full court of the Federal Court said at 519 that in considering whether to stay criminal proceedings a judge is entitled to consider the strength of the Crown case. In par 18 of her judgment in the present case the primary judge observed that on stay applications it is not usual to rely on weaknesses in the prosecution case "and it is not a matter upon which the applicant relies in this application". 55 At times on the present appeal to this Court the appellant did seek to rely on what were submitted to be weaknesses in the Crown's circumstantial case. It is difficult for this Court, on the limited materials available to it and on the limited submissions made to it, to form any definite view about the apparent strength of the Crown case. However, to the extent to which it might be relevant, the Crown's circumstantial case, so far from appearing to be weak, appears to me to be a quite strong circumstantial case. 56 On any application for a permanent stay of criminal proceedings or on any appeal from a decision refusing a stay, it is important to have regard to the powers of a judge at a trial to give directions and otherwise conduct the trial in such a way as to obviate or reduce prejudice. See Jago at p 49 per Brennan J, at p 71 per Toohey J and at pp 77-78 per Gaudron J. 57 Finally, as was stated by Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz (1991-1992) 174 CLR 509 at 519, even though in a slightly different context:- "It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution." 58 In my opinion, the appeal should be dismissed. 59 HOEBEN J: I agree with James J. 60 HALL J: I agree with James J. **********

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