Petroulias v R 92007) 176 A Crim R 302

Judgment 1HIS HONOUR: The accused are both charged with offences relating to the manufacture of prohibited drugs. The Crown case against them depends largely on intercepted telephone calls. The Crime Commission intercepted the calls and recorded them in electronic files using a format known as PCM. As part of their preparation for their defence the accused sought, by way of subpoena addressed to the Crime Commission, "copies" - I emphasise the word copies - of the recordings of the intercepts. What were provided however, were not copies of the recordings in the PCM format, but versions of the recordings compressed into the more familiar MP3 format. 2The evidence suggests that it was not until 20 October 2011, when an affidavit of an officer of the Crime Commission was served on the accused, that anyone on the defence side understood that their assumption that they had got copies of the recordings in the format in which those recordings were held by the Crime Commission, was wrong. 3Before 20 October 2011, whilst still acting under the misapprehension, the defence engaged an expert, a Mr Gosh, to identify a number of matters, including in particular, whether there had been any editing of the telephone calls. It appeared to that expert that there had been such editing. An application was therefore foreshadowed that the defence would seek a permanent stay of proceedings on the basis that they could not get a fair trial because the case against them was based on edited telephone calls. 4It was this application which prompted the affidavit of an officer of the Crime Commission of 20 October 2011. In that affidavit it was explained that the appearance of editing came about because of the format in which the recordings had been produced to the defence. I repeat that it appears to have been this affidavit which told the defence for the first time that there were in existence original recordings, in a different format to that which had been provided to them. This required the vacation of the trial which was about to start. It was vacated with the consent of all parties. 5What I have before me today is an application by both accused that the proceedings should be stayed until the costs wasted as a result of them being provided with MP3 versions of the relevant telephone calls are paid by the prosecution, in circumstances where the defence was not made aware that this was not the format in which the Crime Commission held the original recordings. 6This is not a case where the defence suggests mala fides on the part of the prosecution or any investigating agency. The defence says that there has been some confusion, and so does the prosecution. But the defence says that if it got what it asked for by way of subpoena, namely copies of the relevant recordings, then the problem which led to the trial date being vacated and costs being wasted would not have arisen. 7I need to explain some technical matters here. When the recordings are made, as well as there being an electronic recording of the sounds, each file contains what is referred to as metadata; information such as the date and the time the audio recording was made. When the copies were made by the Crime Commission in the MP3 format, such metadata was lost. It is the defence case that a request for a copy of a recording, when that recording is in a digital format, is not satisfied by providing a version of that recording which may be audibly indistinguishable from the original, but which does not contain the metadata. 8Another technical aspect which is important is that the compression associated with an MP3 file may well give rise to the appearance, when that recording is analysed by an expert, of the recording having been edited. 9The defence submission is that if you supply a copy of a recording and do not include the metadata, and compress the file which gives the appearance of editing, then you have not supplied what is asked for, that is a copy. 10The prosecution, on the other hand, says that it is common knowledge that investigating agencies in Australia do not record in the MP3 format and so any decent expert retained by the defence to examine the relevant recordings, to see if they have been edited, should have known that he or she was not dealing with recordings in the original format where those recordings were in the MP3 format. 11I note that there is evidence to establish that the MP3 format is not used by investigating agencies in Australia in the affidavit of Jacques Kim Yuen Song of 13 April 2012. On the other hand, the expert retained by the defence, Mr Gosh, appears to have had an extensive career in intercepting and analysing telephone intercepts, including having been a New South Wales police officer, and so it would appear that Mr Sung's understanding is not shared by everyone with expertise in this area. In any case to say that Mr Gosh is incompetent as an expert, which is what the prosecution suggests, is somewhat besides the point. 12The prosecution also says that if the subpoena had asked for recordings by specifying that they should be provided in the original format, then they would have been provided. Of course that assumes that the defence would foresee that the Crime Commission would not provide exact copies, something which I do not regard as being reasonable foreseeable. Of course none of the trouble which has arisen would have arisen had that been done, but the prosecution explained that recordings were not provided in the original format because compression of the files into the MP3 format means that fewer discs are required to be used, and that whilst software capable of playing MP3 files exists on all modern computers, in order to play PCM files, the computer user would have to download software from the internet first. 13Whilst the Crime Commission appears to have copied the files into MP3 format to assist, the evidence before me does tend to suggest there was not a great advantage in doing what they did. For example, by compressing the recordings, the storage requirements were reduced by only about half and it was a relatively simple matter for Mr Lloyd's instructing solicitor to download the required software from the internet - at no charge I should add - and then, after seeking some further clarification from the Crime Commission, using that software to listen to the recordings in the PCM format. So whilst I accept that the Crime Commission appears to have been trying to be helpful, it is the case, with the benefit of hindsight which I appreciate the Crime Commission did not have, that the benefit which flowed from using the MP3 format was not all that great. 14Of course before the era of digital recording, to copy something almost invariably meant that there were differences between the copy and the original. I used the example, in the course of submissions, of the Mona Lisa. If I asked someone to copy the Mona Lisa for me that person could either photograph it, or use their own paints and paintbrushes to do a version of it, but the copy would not be identical to the original. But in the digital age, digital files can be copied identically. At their most basic, a digital recording is a series of ones and zeros and they can be accurately reproduced so that a true digital copy of a digital file is indistinguishable from the original. 15It was easily technically possible for the Crime Commission to provide recordings which were identical to the original and, given that the subpoena asked for copies, that is what should have been done. I repeat however, that there is no suggestion that the Crime Commission was motivated by malice in doing what it did. It is accepted that the Crime Commission was trying to be helpful. 16What I will do now is speak about the history of applications of this kind because it is important to note two things; that fault must be demonstrated and that successful applications of this kind should be rare and exceptional. 17The history of applications of this kind begins with The Queen v Mosley (1992) 28 NSWLR 735. In that case the District Court trial was adjourned on the application of the prosecution because two material witnesses had become unexpectedly unavailable. The prosecution had given the defence no notice of this. The trial Judge granted the adjournment sought by the prosecution but only on condition that the prosecution pay the wasted costs incurred by the accused. The prosecution successfully appealed, arguing that the trial Judge had no power to make the order which had been made. However, the Court of Criminal Appeal also noted that a trial Judge could effectively bring about the same result through making orders which he or she did have the power to make. The Court of Criminal Appeal suggested that if the trial Judge made an order conditionally staying the further proceedings until costs had been paid, then that would have achieved the same result and would have been within power. 18Since then, orders of the kind suggested by the Court of Criminal Appeal in Mosley have been made in various jurisdictions. I was referred in the course of argument to orders made in: the ACT, R v Bui [2011] ACTSC 102; South Australia, R v Ulman-Naruniec (2003) 143 A Crim R 531; and of course many decisions in New South Wales. 19It has to be said that the decisions of the various courts do not always articulate the test for a trial Judge to apply, in identical terms. What is common however, is that orders such as those sought by the accused are to be made only in the most exceptional circumstances and that what the accused must demonstrate is injustice or unfairness for which the prosecuting authority should be held responsible. 20The accused in this case were content to rely on the test as articulated by Justice Fullerton in R v Selim [2007] NSWSC 154 at [57] where her Honour said, "I am content to proceed on the basis there needs to be demonstrated an identifiable injustice for which it can sensibly be said that the prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering a stay is to impose upon them the costs of previous proceedings before they may be permitted to prosecute again." 21It is clear that the accused must demonstrate fault. In Pretroulias v R (2007) 176 A Crim R 302, the Court of Criminal Appeal spoke of default or impropriety on the part of the prosecution, and further, unfairness which cannot be established without proof of fault on the part of the prosecution. The ACT and South Australian authorities which I referred to earlier also seemed to require fault on the part of the prosecution. In Ulman-Naruniec the Court held that the trial Judge was right in concluding that the prosecutor was in flagrant breach of its duty of disclosure and in Bui the Court found that there was fault on the part of the prosecution which caused the vacation of the trial date. 22Before addressing issues concerning fault and unfairness in this case, I should mention one issue which turned out to be irrelevant. That issue concerned this circumstance: what is sought in this case is that there be a stay until the Crown pays the wasted costs, but it is not suggested that the Crown, in the sense of the prosecuting agency, the DPP, is at fault. That is, however not something that the prosecution can take advantage of. The Crown, very properly, referred me to a decision of R v Fisher (2003) 56 NSWLR 625. In that case the fault was of an investigating agency, in that case ASIC. Simpson J, with whom the other members of the Court agreed, made it clear that fault on the part of prosecuting authorities, including ASIC, is enough to form the basis of a successful application of this kind. That case concerned about the failure to produce a file. Her Honour said at para [19]: "I will here note that, in my opinion, it makes no difference whether the file was in the possession of, and should have been earlier produced by the Commonwealth Director of Public Prosecutions or the Australian Securities and Investments Commission. The fact is that such fault as there was was on the part of the prosecuting authorities. The Commonwealth Director of Public Prosecutions, as to the party to the proceedings, has to live with that fact." 23So although the money would, by any order of mine, have to be paid by the DPP, who it appears is blameless, the DPP has to live with any finding of mine (if I make it) that the Crime Commission was at fault. 24As I explained, the Crime Commission was trying to be helpful. Although it did not strictly comply with a subpoena served upon it, I would not regard the initial provision of recordings in a format other than that in which they were originally made as being such a flagrant breach of duty or misbehaviour as to constitute fault for the purpose of this application. It led to confusion and it led ultimately to wasted expense. But there was no negligence of any gross kind that would satisfy me that the original decision to supply MP3 copies of the recordings was a serious fault. 25I am satisfied that fault can be demonstrated in an appropriate case where what is established is inadvertence or omission or incompetence. Fault could be demonstrated where a prosecuting agency for example deliberately withholds exculpatory material from an accused person, but I do not read the authorities as requiring positive acts of this kind before appropriate fault can be demonstrated. Just as the criminal law punishes negligence, whether it be in the case of manslaughter, driving, or sexual assault, fault can be established in an application of this kind through negligence as well. 26Mr Lloyd QC, whose submissions Mr Brewer adopted, took me to some communications made by the defence to the Crime Commission in April, 2011. On 1 April Miss Abigail Bannister wrote to the Crime Commission. She sought some information regarding the nature of the audio recordings which had been produced on subpoena. In that letter she raised the difficulties she had with respect to both outgoing and incoming calls and she asked what reference timepiece was used by the New South Wales Crime Commission in establishing the start of each intercepted call. It is important to note that Miss Bannister sought information about what she referred to as the "reference timepiece" because by copying the files in MP3 format, the apparent timing of the calls was altered. 27This should have alerted the Crime Commission to the problems which have now become apparent. The simple response to the question as to which reference timepiece was used appears in a letter of the Crime Commission dated 7 April, 2011. The answer is succinctly given; "eastern standard time". After that on 8 April an affidavit was prepared on the part of the accused by Dorian Beaver, a solicitor then working for Miss Bannister. In that affidavit which was prepared in support of a notice of motion seeking a vacation of a trial then listed for 23 May, Mr Beaver refers to difficulties which he has had in analysing the recordings. In particular he prepared a schedule in which he compared call charge records with the time and date given on the audio files which had been produced on subpoena. He noted that there were some calls which were unmatched. It now appears that at least part of Mr Beaver's difficulties resulted from the use by the Crime Commission of the MP3 format in complying with the subpoena. Indeed the affidavit of Jacques Kim Jung He Sung of 20 October 2011, in response to a report of Mr Gosh, the accused's expert, criticises Mr Gosh for relying on the date and time stamp on the MP3 files. He says, this is not a reliable way to match the CCR with the audio; (CCR of course being the abbreviation for call charge records.) 28So by mid April, difficulties which the Crime Commission had caused by its choice of format in compliance with subpoena were made known and a proper reading of the letter and affidavit would have alerted an officer of the Crime Commission with relevant knowledge to the problems the Crime Commission had caused. 29I should skip ahead here to September and October 2011, because it was on 5 September 2011 that a letter was sent by Miss Bannister in which she told the Crime Commission for the first time that she was arranging for the recordings to be examined by an expert. 30Taking that letter in isolation I do not regard the failure of anyone in the Crime Commission to respond to that letter by revealing the difference in formats as significant because the letter only sought permission to provide the material to the expert, that permission being granted. It was not until the results of that expert's examination were provided to the Crime Commission that the Crime Commission finally realised what was going on and it was that that led to the disclosure on 20 October 2011 of the difference in the formats. 31So I do not consider that the Crime Commission is relevantly at fault as regards the failure by them to realise what was going on from the letter of 5 September 2011. But what about what happened back in April? As I have explained, in early April the defence were saying things which should have led officers in the Crime Commission to understand that the defence were barking up the wrong tree. The letter and affidavit make it clear that the defence were relying on the date and time stamp provided on the MP3 files when, as Mr Sung's affidavit later makes clear, they should not have been doing so. 32After barking up the wrong tree the defence then went on a wild goose chase from early April till late October. Various employees of the accused's solicitor attempted to correlate the call charge records with the time and date stamps on the MP3 recordings, experts were retained, and money was spent, which has ultimately turned out to be wasted. 33This is a rare and exceptional case, not only because the particular problem of a technical kind which is at the heart of this proceeding is something that I am not aware of anyone coming across before, but also because, more relevantly to this application, the Crime Commission has acted in a way it should not have. Having caused the problem, albeit innocently in the first place, it failed to correct the clear misunderstanding on the part of the defence, a misunderstanding the Crime Commission was responsible for, when it had the opportunity to do that in April last year. 34As I said, deliberate misconduct is not required before fault can be established and fault can be established where the defence establishes or satisfies me that the Crime Commission has failed to do what it should have done and that that failure is particularly serious. It is particularly serious in this case because of the consequences which have come about and because it should have been clear to the Crime Commission from April 2011 that it had caused the problems which the defence faced. 35I do not look at individual officers at the Crime Commission and say that it is his fault or her fault, and some of the people involved in this process who are employed at the Crime Commission are probably blameless. But whatever happened in April, 2011 which led to the failure of the Crime Commission to tell the defence that it was barking up the wrong tree, as an organisation the Crime Commission was at fault and seriously so. It is unfair for the accused to have to bear the financial consequences of the Crime Commission's serious mistake. 36As a consequence I make the orders sought in the notice of motion, that is that the further trial of these accused be stayed until the Crown pays reasonable costs of the defence as incurred by reason of the trial date of 10 October, 2011 being vacated on 24 October 2011. 37As will be apparent from this judgment those reasonable costs would be limited to what occurred after the misunderstanding was not corrected by the Crime Commission following the affidavit of Mr Beaver being filed and served.