R v Agius; R v Abibadra; R v Jandagi; R v Zerafa

Judgment 1Each of the four accused (Robert Francis Agius, Carol Abibadra, Deborah Judith Jandagi, Kevin Zerafa) is charged, on indictment, with two counts of conspiracy to defraud the Commonwealth. The trial was fixed to commence on 27 April 2011, and was anticipated to be lengthy. The estimates have varied, the most recent (as I understand it) being 12 weeks. For reasons it is not here necessary to explore, the trial did not proceed on 27 April, and has still not commenced (see R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 367; Agius v R; Abibadra v R; Jandagi v R; Zerafa v R [2011] NSWCCA 119). It is hoped that the trial, with a jury, will commence in the near future. 2By notices of motion filed, respectively, on 9 and 11 May 2011, each accused now seeks on a temporary basis, a stay of the trial, as a result of publicity which each accused contends is likely to have an adverse impact on the fairness of the forthcoming trial, and deflect some or all of the citizens selected to constitute the jury in the trial from performing the duty which they will be sworn or affirmed to perform. 3Put briefly, the Commonwealth Director of Public Prosecutions ("the CDPP"), who brings the prosecutions, alleges that each accused participated in a scheme the purpose of which was to enable various clients of an accountancy firm dishonestly to evade income tax. A very large quantity of documentation will form, if not the bulk, then a very considerable part, of the Crown case. 4It is (again, as I understand it) the Crown case that the first accused (Mr Agius) was an Australian accountant practising in Vanuatu, and the remaining three accused were accountants (or, in one case, a para-accountant) employed by an accounting firm in Sydney. I infer that it is alleged that the tax evasion operation was based in, or at least had significant links to, Vanuatu. 5It is common ground that the prosecutions arise out of an operation conducted by the Australian Taxation Office (and, perhaps, other Commonwealth authorities - the evidence on this application does not clearly disclose which Commonwealth authorities were involved, and it does not, for present purposes, matter) known by the code name "Operation (or Project) Wickenby". Operation Wickenby, it is reasonably clear, targeted many individuals and companies suspected of defrauding the Commonwealth revenue by evading taxation. Just what its reach was is immaterial for the purposes of this judgment, but it is clear that it was a very extensive project, and one that had been in existence for a considerable time. 6The present application for temporary stay of proceedings is based on a burst of publicity that commenced on 3 May 2011, in a daily newspaper circulating throughout Australia, including Sydney, called the Australian Financial Review ("the AFR"). On 3 May and the two succeeding days, 4 and 5 May, the AFR published a very extensive examination of what it called "The Wickenby Saga". Further material was published in the weekend edition of the AFR, of 7-8 May. 7It is convenient here to note affidavit evidence produced on behalf of the CDPP concerning the circulation of the AFR. That information was drawn from the website of the publisher of the AFR, the accuracy of which was not questioned. The weekday readership is said to be 255,000, and weekend readership 153,000. 8By reference to population figures contained in a website maintained by the Australian Bureau of Statistics, the solicitor representing the CDPP calculated that, even if the entire weekday readership resided in NSW, there was: "a close to 0% probability that a juror from New South Wales would have read the AFR on any given weekday." Criticism was made of this affidavit, in part because the basis of the calculation was not given. 9In a subsequent affidavit, provided after the hearing, the solicitor deposed to his amended calculation that: "... even if the AFR's entire weekday readership resided in New South Wales, there is an approximately 3.5% probability that a juror from New South Wales would have read the AFR on any given weekday." In the subsequent affidavit, the basis of that calculation was spelled out. 10The first article, published on 3 May, began in a prominent place on the front page, and continued over four full pages inside. It bore, on the front page the headline: "Revealed: inside Australia's biggest tax sting." It directed readers to p 50 of the newspaper, which was the first of the four full pages. On p 50, the article identified its theme, in the following passage: "In a three-part series, the Wickenby story reveals how hiding your money overseas became commonplace for a rising class of entrepreneurs; how an Australian Taxation Office operation became the centre of a global attack on tax haven bank accounts; and the attempts to pressure politicians to shut down or limit investigations." It said that the operation had resulted in 2800 audits, had "raked in" $553 million and had sent 18 people to prison, while 42 remained to be tried. 11The second article, on 4 May, bore the headline: "ATO adds 500 to Wickenby probe" on the front page; again, readers were directed to a further examination, over three pages, p 59, p 60 and p 61. This article purported to contain quotations from very senior Commonwealth tax and law enforcement figures. It will therefore be necessary to return to it. 12The third article, published on 5 May, was headed "Serious threats to tax revenue"; and the fourth "Big stick gets the job done". 13None of the four accused was named in any of the articles. There were occasional references to Vanuatu; for example, in a time line accompanying the 3 May article, it was said that, in December 2006 "Police start investigating a Vanuatu scheme involving [a named] Sydney accountant" (not one of the accused). In the body of that article, reference was made to another named person (again, not one of the accused) who was said to have had business links with Vanuatu. Later, it was said that an audit of an Australian accounting firm (not named) had revealed that many of the firm's clients were paying invoices to Vanuatu, and that the Australian Federal Police had run four separate operations investigating suspected cash transfers to and from Vanuatu. This was immediately followed by the observation that it was important to note that there were "plenty of legitimate investments in the island". 14At a very early point, the same article had recorded: "Not every taxpayer targeted by Wickenby is guilty of tax crime, and it is wrong to make any assumptions about those charged until their cases are decided by the courts." 15In the part of the article that appeared on the front page of the 3 May edition of the AFR, a quote was attributed to the Commissioner of Taxation, identified as Michael D'Ascenzo, in the following terms: "You could just see how easy it was for someone to come here with a laptop, sign some people on and suddenly all the documentation gets done overseas ... there's nothing more cancerous - once these things catch on, they become like wildfire." 16As I have indicated above, the articles purport to quote a number of senior Commonwealth authorities, including Mr D'Ascenzo; the "Chief" of the Australian Crime Commission (named as John Lawler, and, later, Alastair Milroy); a Deputy Commissioner of Taxation (identified as Michael Cranston), and the CDPP himself, Christopher Craigie. Others, from the private sector, were also quoted. 17Mr Lawler was (purportedly) quoted as saying: "What's happened is these people are sponging off the normal taxpayer. And it's as simple and easy as that." 18The CDPP, Mr Craigie, was (purportedly) quoted in the articles of 3 and 4 May; in the first, he is said to have described "Wickenby" as: "A very serious threat to the taxation system and something that could cripple the revenue." In the article of 4 May, he purports to have been quoted more extensively, referring to "the protection of the revenue", "criminality", "where someone signs documents that are plainly false and misrepresent what is going on and become part of a structure that is plainly a fantasy when you look behind it ...", "It's a con and it's a con on the Australian people once you strip it away". 19Of course, there is no way of knowing how accurate these purported quotations are. However, it would be very surprising if the Commonwealth Director of Public Prosecutions were, in such close temporal propinquity to a trial, to have made public statements directly relevant to the prosecution. 20It is by reason of the extensive coverage of the Wickenby investigation, and the direct passages to which I have referred, that it was argued, on behalf of each of the accused, that the fairness of the trial has been affected, and that a stay, for a period of about two months, ought to be granted, in order to allow the contamination to dissipate. 21In R (Cth) v Petroulias (No 19) [2007] NSWSC 536, Johnson J considered a similar application (where a trial had begun, but had, for reasons quite unrelated to the parties, aborted, and a new trial was scheduled to begin) and stated, briefly the relevant principles: see [39]-[44]. There the publicity of which complaint was made was an item broadcast on a current affairs program on ABC radio, following the discharge of the jury. 22As Johnson J noted, the test is one of fairness, and fairness is evaluated by balancing the interests of the accused, and of society, in the fair trial of allegations of criminal offences and of bringing to trial, without delay, persons accused of such offences. 23Inherent in the criminal justice system is the dependence upon, and faith in, juries, properly instructed, to undertake the task committed to them, which is to return a true verdict upon the evidence - that is, on the evidence tendered orally, or by documentation, in court. 24That dependence was expounded in Dupas v The Queen [2010] HCA 20; 241 CLR 237. There, on a charge of murder (the accused having been convicted, having successfully appealed, and a new trial having been ordered), the accused had been exposed to an extraordinary level of publicity, in virtually every kind of media outlet: see [7]. The application there made was for permanent stay, but the High Court rejected both that and the alternative, a stay until further order. 25It is true that, in that case, the proposed trial being a re-trial after successful appeal, the court was in a stronger position to appreciate precisely what evidence was available against the accused. However, the nature of the case made against the present accused is sufficiently clear. 26It is also to be borne in mind that the authors of the articles in the AFR were at some pains to point out that not all individuals caught up in the Wickenby investigation could be presumed to be guilty of any offence, and that guilt or otherwise remained to be determined by the judicial system. 27Moreover, the articles were published in a serious and sober publication, devoted (as its name implies) to matters of finance and economics and were not directly concerned, so far as the ordinary reader could tell, with the transactions alleged against the present accused. Although there were some colourful illustrations, no doubt to attract the readers' attention, the articles could hardly have been considered sensationalist. They were a carefully constructed account of the investigation, as the authors perceived it. 28It was never suggested that a stay should be permanent. When invited to specify the period of the proposed stay, two months was nominated. 29For reasons unrelated to the AFR publications, this trial has been further delayed; it is unlikely that, with the best intentions in the world, it can commence earlier than three weeks after the publications. 30I am also conscious of the calculations performed by the solicitor for the CDPP, indicating the low level of likelihood that any juror would actually have read the articles. Although criticism was made that the original calculations lacked transparency, no real attack was made on them and certainly no alternative calculations were offered. 31Finally, it cannot be overlooked that in the age of communication in which criminal trials now take place, vast amounts of information is available to jurors, no matter how remote the date of publication. The law has devised means of ensuring that jurors do not disobey the directions given to them concerning undertaking their own researches and taking into account extraneous material: see, for example Jury Act 1977 (NSW), s 68C. 32I note that, although when the trial begins and in the pre-trial applications (including this) the Court will be and is exercising federal jurisdiction, it was not suggested that any particular issues arise that would call for a different approach: see Dupas , [15]. 33I see no basis upon which the trial ought further be delayed by reason of the publications in the AFR. 34Each notice of motion is dismissed.