Koval v Director of Public Prosecutions

The appeal to this Court 11Section 53(3) of the Crimes (Appeal and Review) Act reads: "53 Appeals requiring leave (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." 12A permanent stay of proceedings should be granted only in an extreme case and the making of such an order on the basis of delay alone will be very rare: see Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 per Mason CJ (at CLR 34). 13The plaintiff's seventeen grounds of appeal that are found in the amended summons and in a notice of supplementary grounds of appeal filed on 26 July 2011 and fall into four main categories. They are that the Magistrate erred in law in making a number of findings; that His Honour gave no or insufficient weight to the effects of and reasons for the delay in prosecuting the plaintiff; the Magistrate ought to have found that the delay would constitute an abuse of process; and the Magistrate took irrelevant considerations into account.

The Magistrate's decision 14The Magistrate firstly, sets out the facts and circumstances that gave rise to the charges; secondly, outlined the events that gave rise to a delay in extraditing the plaintiff from the USA to Australia; thirdly, considered the submissions of the plaintiff and defendant; and fourthly, referred to the law, then made his decision. 15The Magistrate's reasons for refusing a permanent stay of the proceedings were as follows (J 38 to 40): "The delay on the part of the prosecution in the present case was an extraordinarily lengthy one. The reasons advanced by the prosecution to justify or explain it are unpersuasive. However I do empathise with the prosecution in their frustration with the bureaucracy that existed both in this country and the US authorities who either by malaise or ineptitude failed to assist in locating the accused. To an extent, the accused contributed to the delay himself. He went to the US and was permitted to stay 3 months in 1993 but stayed almost 17 years. Nonetheless I am of the opinion that the effect of the delay was not such as to produce a situation where any trial of the appellant would necessary be an unfair one on that ground alone. Nor was that delay such as to make any continuation of the proceedings so unfairly oppressive on the accused that it would constitute an abuse of process.( Jago per Deane J). I also take into account the decisions in Edwards , Davis , Littler and Stringer pertaining to the aspect of delay. However the accused has other grounds. One of those is the death of two integral witnesses who were his superiors at the time that the alleged offences are said to have been committed. Kirby P in Jago noted that the appellant had lost no witnesses. One can only speculate as to what his honour might have considered if there had been the death of not one but two witnesses as in the present case. This has been answered by Gleeson CJ in Adler . I return to the defence submission of missing witnesses and it's claimed inability to forensically examine documents. The witnesses Mileham and Gibson's evidence is not strictly unknown. They each gave statements to the Police and were cross-examined in the committal proceedings of the co- accused De Fries. Transcripts are available. What they may or not say should they be alive today is merely speculative and consequently any disadvantage as a consequence is equally speculative. If it were established that their evidence would be capable of creating a reasonable doubt, a fair trial can be achieved through the use of appropriate directions (see Boulos ). The charges stem from the identification of documents involved in 19 transactions by which the accused fraudulently obtained money. I have earlier referred to the litigation commenced by AWA against its brokers from which the identification was made. In essence, the evidence against the accused comes from documents not specifically oral testimony from witnesses. It is a money or paper trail leading directly to the accused. The defence submission that it will be prejudiced by not being able to forensically examine other documents that existed at the time of the civil litigation and are now no longer available is not without merit. It may be that but for the unjustifiable delay documentary or oral evidence would be available to put a gloss on the evidence the Crown relies or perhaps tend to raise a reasonable doubt. I adopt the words of Murrell DCJ confirmed on appeal in Boulos v R where Her Honour stated: "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". The Court would be required to give itself very strong warnings and directions in accordance with the decisions in R -v- Murray (1987) 11 NSWLR 11 and Longman -v- The Queen (1989) 168 CLR 79. There would also need to be, it seems to me, a very strong warning in accordance with s 165 (1)(c) of the Evidence Act 1995, so far as the time is concerned. Those warnings, and being aware of the loss of the witnesses and other records are the steps the Court could take in order to give the accused a fair hearing. The court can give directions such as the prosecution answering the defence's request for particulars as annexed to the affidavit of the accused's solicitor Mr. Michael Bray (see Jago per Deane J). The question then is whether those are sufficient to ensure that the accused has a fair hearing, or whether the prejudice suffered is so great that those measures are inadequate to ensure a fair hearing? I am of the opinion that they are sufficient in the case before me. I decline to make an order for a stay of proceedings. The application is refused." 16If these proceedings are dealt with summarily in the Local Court, as foreshadowed, there will be no jury. The Magistrate will be obliged to take warnings referred to above into account.

Whether the Magistrate applied the correct test - paragraph [1] of the supplementary notice 17The plaintiff submitted that the Magistrate misdirected himself as to the law to be applied in relation to the grant of a stay, particularly where the Magistrate stated that the accused needed to show prejudice to justify a permanent stay of proceedings (J 30). 18The plaintiff submitted that this is not the test and the correct test is to ascertain whether the accused can be given a fair trial. The plaintiff referred to Jago and Raymond Richard Johnson [2001] NSWCCA 465. 19In Jago , Mason CJ stated at 33 and 34: "... The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: ... In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare ..." 20Deane J stated at 56 and 57: "... The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it become unreasonable. ... Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. ..." 21Toohey J stated at 71 to 72: "... But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation." 22Gaudron J stated at 76: "The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. ..." 23In Raymond Richard Johnson , Barr J (with whom Hodgson JA and Simpson J agreed) stated at [16], [18] and [30]: "16 One of the things that it is necessary to take into account is the seriousness of the offence with which the applicant is charged. ... 18 To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial "of such nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences" Jago v District Court (NSW) at 34; 314 per Mason CJ; Barton (1980) 147 CLR 75 at 111. 30 ...All a Crown prosecutor can do is disclose material to the defence immediately it becomes known. ..." 24What the Magistrate said on delay (J 30): "The accused needs to show prejudice to justify a permanent stay of proceedings. Hunt J as he then was Carruthers and Grove JJ agreeing said in Basha 189 (39 A CRIM R) 337 at 338: 'The onus is upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would suffer during the course of the trial is in the relevant sense unacceptable to the extent that the trial would be unfair. (see Baron v AG 10 NSWLR 215)." 25In Jago , Mason CJ referred to the prejudice suffered by the accused as being a factor to be taken into consideration when deciding as to whether criminal proceedings should be permanently stayed. The Magistrate also referred to Boulos v R in relation to the onus being upon the accused to demonstrate prejudice. The Magistrate correctly took this into account.

Inordinate delay - paragraphs [22], [23] and [24] of the summons 26The plaintiff submitted that the Magistrate, having found the delay in prosecution was an extraordinary one, and that the explanation for the delay was not persuasive (J 38), should have found that the delay per se, was such to warrant the granting of a permanent stay as no fair trial could follow, (see Jago at (34) and also Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74 to 75 and R v Andrew Foster Brown 17 NSWLR 472). According to counsel for the plaintiff, the Magistrate's finding at (J 38) that the accused contributed to the delay is based on an assumption that the accused was obliged to stay within the jurisdiction and that plaintiff's move to the USA is an irrelevant consideration. The plaintiff submitted that this finding is without merit. 27The defendant submitted that the Magistrate in finding that the plaintiff contributed to the delay by moving to the USA was a finding of fact, and does not raise a question of law. Counsel for the defendant submitted that finding is clearly available from the chronology of events set out in the Magistrate's judgment. The defendant's counsel referred to the plaintiff's responsibility for the delay, and his past attitude to it is relevant to the question of whether a permanent stay should be granted: see Jago per Dean J (at CLR 60-61) and Carver v The Attorney General (1987) 29 A Crim R 24. 28As previously stated, it was in 1992 that the police investigation and civil proceedings commenced. AWA sued the plaintiff and de Fries for breach of fiduciary duty in this Court ( AWA v Koval , NSWSC, 50018/92, 24 February 1993, unreported). The plaintiff filed a defence but he elected not appear at the hearing. He had under a notice to admit facts admitted to the 19 transactions from which $2,000,000 was obtained. The claim against him proceeded ex parte. 29On 24 February 1993, judgment in that civil action was delivered. Rogers CJ in Comm Div found against the plaintiff and de Fries on the basis of both a breach of fiduciary duty and fraudulent conduct. Rogers CJ in Comm Div stated: "When the nature of the transactions is analysed, the contention that they were authorised is unsustainable. Koval was an employee of AWA. As an employee he owed a fiduciary duty to the company. That obligation extended to a duty, to refrain from using his employer's property to make a profit for himself. To do so was a breach of fiduciary duty. It was simply not within the authority or either, or both, Gibson or Hooke, assuming for a moment that either, or both of them, had purported to authorise Koval to act in breach of his fiduciary duty, to validly give him authority to do so. It was made clear to Koval that the Board of AWA not only was not told of the purported permission which it was claimed Gibson and/or Hooke had granted, but rather that it was positively concealed from them that this was done. It should be unnecessary to dwell further on the legal impossibility of Koval being authorised to do what he did. Another way of arriving at the same result is to consider the limit of credit extended by Barclays to AWA as involving a species of property. It was a species of property because, utilising part of that limited made AWA obligated to Barclays in respect of the debt thereby incurred. Once again, neither Gibson nor Hooke would have had authority to grant permission to Koval to use AWA's property, in this sense, for the purpose of making a private profit. Thus s68A(3)(c) could not apply. Nor yet could s68A(3)(f) because what Koval was doing could not be performing his duties to the company. If necessary I would find that de Fried had actual knowledge of the want of authority by being told that the activity was concealed from the directors of AWA and had they known that at least some of them would have been opposed to it." 30Barclays succeeded in their claim against the plaintiff on the basis of his fraudulent conduct. 31On 4 June 1993, the plaintiff left Australia for the USA. Sometime around May to August 1993, Detective Desmond of the Fraud Squad visited the plaintiff's Rose Bay address and spoke to a male believed to have been the plaintiff's father requesting that the plaintiff contact the Fraud Squad. 32On 23 February 1995, extradition proceedings against the plaintiff were commenced. On 2 May 1998, 49 first instance warrants were laid in respect of the plaintiff. This necessitated an amended affidavit of fact for the extradition proceedings. A number of issues arose with the adequacy of the content of the affidavit of fact that further delayed the extradition proceedings. On 18 August 2000, extradition papers were finalised and sent to the USA. 33On 16 May 2001, the United States Justice Department, in an update on the whereabouts of the plaintiff, advised the Commonwealth Attorney General that, "He seems to have disappeared without a trace" even though there was an entry under his name in the white pages and he held a drivers licence in Texas in 2002. The plaintiff was not located in the USA until July 2005. Extradition proceedings were then reactivated, resulting in the plaintiff being returned to Australia in December 2009. 34The defendant submitted that it is indisputable that the plaintiff, by moving to the USA in 1993 and not returning to Australia until 2009, has contributed to the delay in the disposition of these criminal proceedings. 35On this issue, counsel for the plaintiff referred to Johannsen & Chambers v R 87 (1996) A Crim R 126. The facts of that case are that on 5 July 1994, the appellants were charged with a murder that occurred on 18 February 1974. The Crown case was that Chambers shot the victim and that Johannsen was present. Initial statements by two people present at the time of the murder, Iselin and Dunemann, did not implicate Johannsen and Chambers. Iselin gave a later statement implicating Johannsen and Chambers in August 1974. Dunemann also implicated the appellants in later statements, which were not made until 1993 and 1995. Most of the evidence was lost, including Dunemann's statements to the Police in 1974, Johannsen and Chambers' records of interview, police running sheets, police notebooks and numerous related records of interview. A coronial inquest was opened in 1975 but not resumed until the Coroner requested further police investigations in 1993. 36Fitzgerald P stated at 130, 131-134: "The delay between 1975 and 1993 has resulted in the fading of the memories of witnesses, a number of whom said so in the committal proceedings. As I have related, relevant evidence has disappeared and witnesses have died. All of those circumstances will mean that it is more difficult now to ensure that the accused have a fair trial than it would have been had the case been heard in, for instance, 1975. ... As the trial judge correctly recognized, 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 v R (1992) 177 CLR 292; Yuill (1993) 69 A Crim R 450, 452-3, O'Neill (CA No. 435 of 1994, 4 August 1995)), that innocent persons are not convicted and that public confidence in the administration of justice is maintained. In substance, the appellants' grounds of appeal were based on two propositions; that they cannot now be tried fairly, and that their prosecution is an abuse of the process of the Court. The oppression said to constitute an abuse of process not only includes the assertion that the trial will be unfair, but is said to result from the following factors: (i) the length of the delay, more than 20 years; (ii) although the delay was not deliberate, the prosecution was solely responsible for the delay; (iii) the appellants have been prejudiced by the delay: additional evidence has become available to the prosecution, while evidence favourable to the appellants has become unavailable: further, memories will have faded and witnesses' recollections are likely to have become distorted: and cross-examination will be considerably more difficult; (iv) the prosecution case is little stronger than it was 20 years ago; (v) the prosecution case is weak; for example, the prosecution is prepared to admit that Mr and Mrs McIntosh said that they heard and saw nothing suspicious - and there is no suggestion that the prosecution would, or could, invite the jury to disbelieve that evidence - and there is no physical evidence to suggest that the victim was killed at the New Farm premises and later removed from there, presumably by vehicle. ... While there are also other elements of public interest involved in these matters, for example the desirability that litigation be brought to finality, there is an underlying broad acceptance that inordinate delay involves a risk of abuse of process; because stale allegations are difficult to defend, delay commonly causes prejudice to those against whom such allegations are made. The most obvious and usual prejudice concerns lost evidence, eg, through the death of witnesses, the failure of memories or faulty recollection, the loss or destruction of documents and reduced opportunities for effective cross-examination ..." [citations omitted] 37Fitzgerald P concluded that, further proceedings against Johannsen at this stage would be an abuse of process and that the appeal should be allowed. There would be a permanent stay of the pending proceedings against Johannsen and the Chamber's appeal should be dismissed. 38Each case depends on its facts. In June 1993, the plaintiff elected to move to the USA. This was just over three months after Rogers J made adverse findings against him in the civil case brought by AWA. The plaintiff must have been aware that criminal proceedings were highly likely. In my view it cannot be said, as it was in Johannsen , that the delay was solely the responsibility of the prosecution. The plaintiff elected to leave this jurisdiction. 39It is my view the Magistrate was right to have considered the plaintiff's moving to the USA in relation to the question of delay and made a finding that the plaintiff contributed to the delay. His Honour did not err in deciding that the proceedings should not be stayed on the basis of delay alone. The Magistrate's negative findings in relation to the prosecution's conduct in pursuing the case do not necessarily mean that the Magistrate should then have found that their delays constituted an abuse of process. The findings show that the Magistrate gave due consideration to the circumstances of the case.

The whole criminal process must be fair - paragraphs [2], [3] and [4] of the supplementary notice 40The plaintiff submitted that the Magistrate failed to take into account a relevant consideration, namely the default or impropriety of the prosecution in pre-trial procedures. Firstly, the plaintiff submitted that the Magistrate did not take into consideration, the falsity of affidavits by Constable Ridge. According to counsel for the plaintiff, it is not referred to in the learned Magistrate's reasons but it was referred to by counsel for the accused during the submissions before the Magistrate (T 37.43). In an exchange between the Magistrate and the prosecution, the Magistrate stated that it (the falsity in the affidavit) did not impact on the delay. The plaintiff submitted that the Magistrate failed to recognise that the falsity of the affidavit impacts on the issue of whether the accused will receive a fair trial. The plaintiff further submitted that the Magistrate failed to recognise that the whole process must be fair to the accused. He did not take this factor into account as being part of the procedural process, (see Jago at 57 per Deane J and Watson v The Attorney General NSW (1987) 8 NSWLR 685 ) . 41The following exchange took place between Detective Ridge and counsel for the plaintiff at the hearing in the Local Court (T 20.10-29): "Q. You believe, as the investigating officer, that Mr Mileham was a material witness, was a witness that was central to the case of the police. Correct? A. Yes. Q. And even more so with Mr Gibson, correct? A. Yes. Q. You also knew the significance of the affidavit of fact document as it was going to be relied on in the United States extradition proceedings. Correct? A. Yes. Q. How is it then that you swore an affidavit that was untrue? A. I obviously made a mistake when I was going through it. Q. It's a fairly monumental mistake? A. It is a monumental, and I totally agree with you. Q. And there was only six months before that you ascertained that both of these gentlemen were deceased? A. That's correct." 42On this topic the Magistrate had this to say (J 23): "Detective Ridge swore an affidavit of fact on 8 December 1999 for the extradition proceedings. Within that affidavit at paragraph 26 he states as follows:- "A statement has been obtained from the General Manager of AWA, Mr Gibson. Mr Gibson gives evidence that Koval was authorised to act on behalf of AWA in the foreign exchange market but that he was only authorised to hedge on the foreign exchange market and had no permission whatsoever to speculate on his behalf." The witness admitted that not more than six months before he swore this affidavit he knew that Mr Gibson was deceased. In his affidavit sworn on 9 August 2066 Detective Ridge states at paragraph 32:- De Fries was prosecuted for his involvement in these offences. He pleaded guilty and has been sentenced. He can and may be subpoenaed to give evidence against Koval." Throughout his cross examination it was revealed that no statement had ever been taken from De Fries nor had he indicated that he was prepared to give evidence on behalf of the prosecution. This paragraph was specifically designed to impress the US authorities. In making his 1999 and 2006 affidavits the witness admitted that he did not make enquiries as to whether all witnesses are available but rather acted on the belief that they were. It was definitely the case in respect of the 1999 affidavit but in respect of the 2006 he was aware that both Gibson and Mileham were deceased some six months before swearing the affidavit." 43It was not put to Detective Ridge by the plaintiff's counsel that his evidence was false. Rather Detective Ridge was asked whether he made a fairly monumental mistake, a proposition with which Detective Ridge agreed. It was not put to Detective Ridge that he deliberately swore an affidavit that was false in relation to Gibson and Mileham. I agree with the Magistrate that the misstatement that the witnesses Mr Gibson and Mr Mileham were alive when they were not may have been important in the extradition proceedings. Additionally, the Magistrate considered another inaccuracy in the affidavit concerning the "willingness" of Mr de Fries to give evidence. In fact, it is not known whether Mr de Fries will give evidence willingly. The Magistrate did take those factors into consideration in determining whether or not the plaintiff would receive a fair trial. 44The plaintiff also submitted the Magistrate did not take into consideration, or did not give sufficient consideration, to the delay in the prosecution serving the notice under s 67 of the Evidence Act and asserted that there was in fact no explanation given for that delay. Reference is made by the plaintiff to the notice (J 7), under the heading of "Summary of the Defence Submissions", where the Magistrate found that the notice was "not served until 9 May 2010", when in fact it was not served until 9 September 2010. Nothing turns on this error of fact. 45The plaintiff's counsel also made a submission that documents may be missing on the basis of the prosecution's failure to reply to the plaintiff's solicitor's letter dated 10 September 2010. This court is not prepared to accept that these documents are, in fact, missing. Statements of Kenneth Desmond, Helen Gilbert, John Hooke, Richard Alagna, Marie Sexton, Roslyn King, Stephen Nivet, Gwendoline Nivet, Adrain Linus Edwards and John Fogarty have been served, so have the statements of Messrs Gibson and Mileham. It would be likely that this court's file of the AWA proceedings would still be in existence. 46In any event, the Magistrate considered the submission that other documents existed at the time of the civil litigation and are now no longer available is not without merit but he decided that if appropriate strong warnings were given a fair trial would ensue.

Paragraphs 21, 25 and 27 of the summons and paragraphs 5 and 6 of the supplementary notice of appeal 47Next the plaintiff's counsel submitted that the Magistrate made findings of fact without any evidence and thus erred in law. These alleged findings of fact are: (a) That the evidence of the deceased witnesses, "is not strictly unknown" (b) That "the evidence against [the Plaintiff] comes from documents not specifically oral testimony from witnesses" (J 39) (c) That the accused had no authority to utilise AWA funds for his own purposes (J 6) (d) That the accused fraudulently misappropriated the profits due to AWA (J 6), (J 39) (e) That the accused had control of documentation relating to all foreign exchange deals (J 4) (f) That the accused was only authorised to enter into foreign exchange transactions for the purpose of hedging AWA imports (J 5) (g) The Magistrate erred in law in finding that the accused "misappropriated" the profits of AWA (J 4). 48It was submitted that there was no evidence led or tendered by the prosecution that established such allegations and they remain that way. As the Magistrate found the accused to be guilty of having fraudulently misappropriated money belonging to AWA, the subsequent exercise of his Honour's discretion is flawed. 49In the civil judgment, the plaintiff in his defence admitted the 19 transactions from which the $2,000,000 was obtained. The documentary evidence referred to in relation to the charges would be for those 19 transactions that appear now to be in issue in the criminal proceedings. 50I accept the gravamen of the prosecution's case is that the accused did not have the authority to do what he did with the funds arising from those transactions. In the criminal proceedings he will assert that he did in fact have authorisation from Messrs Gibson and Mileham, because according to the plaintiff's counsel during submissions, in 1986 times were different and the plaintiff could have been described as "hot property" and that Mr Gibson gave the plaintiff's permission to have these funds as a means to keep the plaintiff in the employment of AWA. 51These submissions are misconceived. The Magistrate was not embarking on hearing the criminal proceedings but rather his Honour evaluating what evidence was likely to be adduced or not adduced at trial so as to determine whether or not be a permanent stay should be granted.

The two deceased witnesses - Messrs Gibson and Mileham - paragraphs 7, 8 and 9 of the supplementary notice of appeal 52The plaintiff submitted that the Magistrate misdirected himself in relation to the question of the prejudice that the accused will suffer by reason of the fact that two material witnesses in the prosecution's case are now deceased. This is perhaps the most important consideration in deciding whether or not these criminal proceedings should be permanently stayed. 53The Magistrate relied on a passage from the judgment of Gleeson CJ in R v Adler (NSWCCA, 11 June 1992, unreported) (J 33 and 39). According to the plaintiff , the Magistrate having misdirected himself, failed to take into account the relevant consideration, that the two material witnesses in the prosecution's case are now deceased and where the Magistrate found that the evidence of the deceased witnesses "is not strictly unknown" (J 39). 54Both Messrs Gibson and Mileham gave statements to the Police. They were cross-examined in the committal proceedings of the co-accused, Mr de Fries. Further, according to the plaintiff, there was no evidence before the Magistrate whereby he could have found that the two witnesses were cross-examined in the committal proceedings of Mr de Fries. Those witnesses were cross-examined by Counsel for Mr de Fries, the transcript of those proceedings are available: see chronology, judgment page 12, entry 16/8/94. The plaintiff's submission continues that if one assumes that the cross examination did take place (which it did) it was not a cross examination by anyone representing this accused and is therefore not relevant. That depends on what the witnesses said. Mr de Fries had asserted, at least in the civil proceedings, that Koval had the authority of Gibson to do what he did, the same assertion that Koval will be making at trial. 55While the statements of Gibson and Mileham are in existence and are the subject of notices pursuant to s 67 of the Evidence Act 1995, it will be at trial that the plaintiff can agitate that these statements are admitted in evidence. All that can be said here is that it is not clear whether the evidence will be admitted or not. 56The Magistrate considered the effect of the considerable delay, the death of two witnesses and loss of documentation from the civil trial and the propriety of the pre-trial procedures. His Honour concluded that with so far as the delay is concerned, it should be the subject of strong warnings and these measures were sufficient to ensure a fair hearing. This is sufficient to demonstrate that his Honour considered the fact that memories fade over time (paragraph 26 of the summons). 57It is my view that the Magistrate made no error of law so as to warrant the granting of leave pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001. The decision of his Honour Magistrate B Maloney dated 5 November 2010 is affirmed. The plaintiff's amended summons filed 2 March 2011 is dismissed. 58Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed as from 2 May 2011.

The Court orders: (1) Leave to appeal pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 is refused. (2) The decision of his Honour Magistrate B Maloney dated 5 November 2010 is affirmed. (3) The plaintiff's amended summons filed 2 March 2011 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed as from 2 May 2011.

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: 26 August 2011