R v Carver

COUNSEL : Appellant: S.J. Odgers Respondent: R.D. Ellis SOLICITORS : Appellant: Ford Gaitanis Respondent: C.K. Smith CATCHWORDS : CRIMINAL LAW AND PROCEDURE ; Stay of proceedings (prejudice caused by loss of evidence); Appeal against refusal of stay (Criminal Appeal Act 1912 (NSW) s 5F) ACTS CITED : Criminal Appeal Act 1912 Crimes Act 1900 Jago v District Court NSW (1989) 168 CLR 23 Barron v Attorney General (1987) 10 NSWLR 215 Regina v Adler (unreported, CCA, 11/6/92) Regina v Goldburg (unreported, CCA, 23/2/93) CASES CITED: Regina v McCarthy & Ors. (unreported, CCA, 12/8/94) Regina v Tolmie (unreported, CCA, 7/12/94) Regina v Helmling (unreported, CCA, 11/11/93) Doyle v Leuoux QBD noted (1981) Crim LR 631 The Queen v Glennon (1992) 173 CLR 592 DECISION : Leave to appeal refused

Friday, 11 June 1999 REGINA v Phillip Kingston CARVER

1 IRELAND J: I agree with Bell J for the reasons given by her Honour.

Friday, 11 June 1999 REGINA v Phillip Kingston CARVER JUDGMENT 3 BELL J: The applicant, Phillip Kingston Carver, seeks leave pursuant to s.5F of the Criminal Appeal Act 1912 to appeal against the refusal of his Honour Judge Davidson QC to grant him a permanent stay of proceedings pending against him. The applicant was to be tried before the Sydney District Court on Monday, 27th July 1998 on an indictment containing ten counts alleging various frauds in relation to sums of money obtained by him from Howard Hilton and Katherine Briscoe. By Notice of Motion filed on 21st July 1998 the applicant sought a permanent stay of that indictment. That motion came on for hearing before Davidson DCJ on 29th July 1998. 4 The facts giving rise to the application arose out of the seizure by police of a quantity of documents from the applicant's premises on 10th June 1992. The seizure was said to be sanctioned by a search warrant. That warrant was quashed in proceedings before this court in March 1998. 5 The stay application was advanced before Davidson DCJ on two bases: (i) the contents of privileged documents bearing on the applicant's defence to the subject proceedings had been disclosed to the investigating police and, by inference, to those prosecuting the subject matter;

(ii) a number of documents relevantly bearing on issues raised in the subject proceedings have not been returned to the applicant and by their loss the applicant was denied a fair trial. 6 An application for leave to appeal pursuant to s.5F(3) should be made within fourteen days of the making of the judgment or order; rule 5B Criminal Appeal Rules 1952. It appears that the present application was not filed until 2nd October 1998. The court was informed that the applicant had pursued other applications relating to the present proceedings before Davidson DCJ and, in this sense, he had been distracted. As soon as those other proceedings were resolved he moved to file the present application. In these circumstances we resolved to hear the application for leave and accordingly to extend the time pursuant to rule 5B. 7 Amended Grounds of Appeal were filed on 26th February 1999. Included amongst those grounds was one complaining that his Honour erred in refusing a permanent stay on all counts on the basis that the defence case was unlawfully disclosed to the police in breach of the applicant's right to silence. 8 Mr Odgers who appeared on the hearing of the application does not press this ground. The challenge to the trial judge's determination was confined to the ground identified in (ii) above. In order to understand that challenge it is necessary to relate the history of the proceedings before Davidson DCJ. 9 At the commencement of the proceedings before his Honour the loss of documents seized by the police was not conceded by the Crown. The applicant gave evidence and a witness was called on his behalf. At the close of the applicant's case his Honour suggested that the matter might conveniently be disposed of upon the basis that, without making any formal findings of fact, he would proceed on an assumption that the applicant had established all contested matters of fact (Judgment pp. 7-8). During the course of submissions it became apparent that it was desirable to hear evidence from a further witness, a solicitor, Mr Noss. Mr Noss had declined to provide a statement to either the applicant or the Crown. It appears that both parties agreed that it was appropriate to receive the evidence of Mr Noss. 10 Mr Noss produced certain documents including, importantly, a copy of a contract for the purchase of the Nicabela Beachside Resort. This document is relevant to count 2 in the indictment. The copy of the contract produced by Mr Noss showed the deposit as being an amount of $100,000. 11 Following the receipt of this additional evidence it was agreed that his Honour would deal with the matter as far as possible on a "prima facie" basis assuming, but not finding, certain facts in favour of the applicant, except in so far as it became necessary so to do in order to deal with the evidence of Mr Noss (Judgment p.8). 12 The allegations giving rise to the various counts in the indictment date back to 1988. At that time it appears that the applicant together with Mr Hilton and Ms Briscoe were jointly engaged in investigating various investment opportunities. 13 Counts 1 and 3 alleged the commission of offences contrary to s.178BA of the Crimes Act. In each case it was alleged that the applicant dishonestly obtained for himself a cheque by deception, namely, that the cheque was required as part payment of the deposit on the purchase of the Nicabela Beachside Resort. It is the applicant's case that he received the funds referred to in counts 1and 3 and that he disbursed them in carrying out investigations and making assessments as to the suitability of various hotel transactions which were not proceeded with as well as the proposed purchase of the Nicabela Beachside Resort. Mr Hilton and Ms Briscoe were the beneficial owners of a company, Hanover Developments Pty Ltd. The applicant contended that his expenditure on behalf of Hanover Developments was in accordance with the authority that he had from Mr Hilton and Ms Briscoe and was known to them. 14 Amongst the documents said to have been lost consequent upon the execution of the search warrant were a quantity of vouchers. It is the applicant's case that those vouchers would assist him in demonstrating that the money obtained from Hanover Developments was disbursed in the way he described. 15 Count 2, also alleging an offence contrary to s.178BA of the Crimes Act, related to a cheque in the amount of $100,000. The deception relied on by the Crown was that the applicant had represented that the total deposit payable on the contract of sale was $500,000 of which Ms Briscoe's contribution was $100,000. It is the applicant's case that the total deposit was one of $100,000 and that Ms Briscoe had signed a contract in those terms. That was one of the documents which was missing. As noted above the contract produced by Mr Noss tended to confirm the applicant's account that the deposit was $100,000. However, this document did not bear Ms Briscoe's signature. It is her contention that she was never shown the contract and was of the belief that the deposit was $500,000. 16 Counts 4 and 6 relate to a cheque in the amount of $261,865.50. It was the Crown case that the applicant falsely asserted this sum was required for payment of stamp duty in relation to the purchase of the Nicabela Beachside Resort. Count 7 relates to a cheque in the amount of $68,736. This sum was said to have been dishonestly obtained by the applicant on a representation that it was required for payment for subdivision of premises at 56 Berry Street, North Sydney. Count 8 relates to a cheque in the amount of $63,375.76. This sum was said to have been dishonestly obtained on a representation that it was required for the purchase of the Berry Street premises. It is the applicant's case that the total sum was paid to him by Mr Hilton and Ms Briscoe by way of consideration for the sale of his shareholding in a company called Laceside Pty Ltd. For the purpose of the application, Davidson DCJ accepted that the missing documents included documents which would support the applicant's claim that Hilton and Briscoe paid him $410,000 for Laceside Pty Ltd at about the time he received the cheques the subject of counts 4, 6, 7 and 8. 17 Counts 9 and 10 alleging offences contrary to s.176A of the Crimes Act were the subject of an allegation that cheques had been paid to the applicant towards the purchase of the Nicabela Beachside Resort. It was the applicant's case that this money was received in relation to projects initiated by Laceside Pty Ltd. 18 On the applicant's behalf it was submitted that the trial judge's reasons disclose a number of errors. As to counts 1 and 3 it was submitted that the trial judge had rejected a stay for two reasons:

(a) the applicant could still put his version of events to a jury "supported by such other evidence as was available for that purpose" (Judgment 15-16); and

(b) the prosecution case was that the money was given to the applicant on the basis that it would be used as part payment of the deposit on the Nicabela Beachside Resort, so that proving that the money had been spent in the way claimed by the applicant would not assist him - thus "the existence of the vouchers would be inconsequential" (Judgment 17.7). 19 It was submitted that the fact that the applicant can still put his version does not overcome the fact that he has (on the assumed facts) been deprived of evidence which would have assisted him to raise a doubt on the matter. It was also put that the critical question is whether the evidence would have assisted the defence. The fact that the defence might succeed without the evidence, or that it may fail with the evidence, was said not to be determinative of the question whether the loss of the evidence means that the applicant cannot receive a fair trial. 20 As to count 2 it was submitted that his Honour had committed the same error in his approach as that contended in respect of counts 1 & 3. In this instance his Honour had taken into account the fact that a copy of the contract was available. He had concluded that no substantial prejudice was made out by the applicant in the light of the existence of one copy of the contract. The applicant submits that the loss of the copy signed by Ms Briscoe would establish that she knew of the amount of the deposit and hence his Honour's finding of lack of substantial prejudice cannot be maintained. 21 As to counts 4,6,7 & 8 the applicant complains that his Honour concluded that the absence of the various documents (supporting the fact of the sale of shares owned by the applicant to a company controlled by Mr Hilton and Ms Briscoe) did not render the trial unfair because if the jury were to accept the evidence of Ms Briscoe the fact that the applicant had sold shares to Mr Hilton and herself would not prevent a finding that she had been deceived and that the Crown had made out its case of dishonesty (Judgment p.23). 22 In relation to counts 9 & 10 his Honour adopted the same reasoning as with counts 4,6,7 & 8. His Honour noted that if the jury accepted Ms Briscoe's account it would be open to the jury to convict the applicant. The applicant may be placed at an unfair disadvantage but that did not go to the root of the trial (Judgment p.24). 23 Prior to commencing with an examination of the individual counts his Honour noted that the principles applicable to the application were as follows:

(i) that the onus is on the applicant to demonstrate that the prejudice which he would suffer in the event of a trial is unacceptable to the extent that the trial would be unfair,

(ii) that there was nothing which the trial judge could do in the conduct of the trial to relieve against this unfairness,

(iii) the unfairness must arise from a fundamental defect which goes to the root of the trial; Jago v District Court NSW (1989) 168 CLR 23, Barron v Attorney General (1987) 10 NSWLR 215; the remedy is discretionary and will be ordered only in exceptional circumstances. 24 No complaint is made about the applicability of these principles to the matter in hand. Further, at page 19 of his Honour's reasons after the passages in his Judgment which are the subject of complaint as to the basis for his determination on counts 1 & 2, his Honour stated his conclusion in these terms: "In the result I am not persuaded that the circumstances of this case are so unusual or exceptional as to justify a permanent stay in respect of counts 1 or 3 so as to remove the case from the principles established in the authorities relied upon by the Crown." 25 The reference to the authorities relied on by the Crown appears to be a reference to decisions of this court in Adler (unreported, CCA, 11th June 1992); Goldburg (23rd February 1993); McCarthy & Ors. (12th August 1994); Tolmie (7th December 1994); Helmling (11th November 1993); and of the English High Court in Doyle v Leroux QBD noted (1981) Crim LR 631. 26 In the applicant's written submissions challenging his Honour's determination on counts 1 & 3 it was contended that the critical question is whether the evidence would have assisted the defence. This submission (in relation to his Honour's determination in relation to all the counts) was developed more fully in the course of oral argument. It was put that the applicant had lost evidence which established facts capable of giving rise to a doubt as to his guilt. That loss could not be cured by direction and, accordingly, called for the grant of a permanent stay. 27 In McCarthy Gleeson CJ (as he then was) observed: "Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die, or become ill, or lose their memory, or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that the proceedings need to be stayed. In this connection I refer to what was said in R v Adler and R v Goldburg ." 28 In Adler Gleeson CJ observed: "The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial and it has not been shown to produce that result in this case." 29 Mr Odgers noted that this application had proceeded on the basis of the acceptance by his Honour of the facts as asserted by the applicant. Accordingly, there was no element of speculation about the material that was lost to the applicant upon his trial. This was to be contrasted, in Mr Odgers' submission, from the position of the applicants in cases such as Adler, Goldburg, McCarthy, Helmling and Tolmie. 30 I do not consider that the decision in Adler can be distinguished in the way in which Mr Odgers contends. True it is that Gleeson CJ refers in the passage I have cited above to "a witness who is potentially able to corroborate an accused". However, in the preceding paragraph there is reference to the material which it had been anticipated the missing witness in that case might have given in evidence. The assumption was made that his evidence would have supported that of the applicant. In Goldburg Mahoney JA, in a Judgment with which Gleeson CJ and Abadee J agreed, considered that the non-availability of an alibi witness did not, in the circumstances of that case, justify the grant of a permanent stay. There was no issue as to the fact that Mrs Goldburg if available would have given evidence confirmatory of her son's alibi. Mahoney JA said this: "The beginning and end of the application lies in this, that whenever the event occurred, an important witness in support of the alibi defence will not be available to give evidence at the trial. Mrs Goldburg because of her medical condition will not be called as a witness and therefore that evidence will not be available to the accused. This will, I shall assume, diminish his chances of succeeding upon the alibi defence. But the question is whether, accepting that to be true for the purposes of this argument, that would or could warrant the learned judge granting a stay of proceedings" (p.4). 31 His Honour went on to state that the mere fact that a witness has died or become unavailable does not as such warrant the granting of a stay. He doubted whether it would be open to a judge in circumstances such as that in Goldburg to exercise his or her discretion to grant a stay merely on this basis. He was not however prepared to exclude the possibility that there may be cases in which the absence of a witness would provide the basis for a stay (p.5). 32 I note that in the case of Tolmie where the evidence of the lost witnesses was wholly a matter of speculation Hunt CJ at CL, referring to the decisions in Adler, Goldburg and McCarthy, observed, "In those cases, it was known what evidence could be given by the missing witness, and that the accused suffered some prejudice as a result of its loss" (p.5). 33 It was the applicant's submission that in a case where it is established that the accused has lost the benefit of evidence capable of creating a reasonable doubt in the mind of the jury it must follow that he or she has been deprived of a fair trial. Directions by the trial judge would not be able to remedy the loss. I do not accept that this is a correct statement of principle. It overlooks the fact that the discretion to stay an indictment involves a weighing up of a number of considerations one of which is the interest of the community in seeing that persons accused of serious offences face trial; Jago per Mason CJ at p.33, Brennan J at p.50, Deane J p.72 & Gaudron J p.76; The Queen v Glennon (1992) 173 CLR 592 per Brennan J at 617. It overlooks the powers and discretions available to the trial judge in dealing with missing witnesses or documents; McCarthy per Gleeson CJ at pp.11-12; Jago per Brennan J p.47 & 49. 34 Circumstances will ordinarily be extreme to justify the grant of a permanent stay; Jago at pages 31, 60 and 76; Glennon at pages 605 and 615-6. Nothing put on this application suggests that the present case falls into that necessarily small class of case where the extreme measure of a permanent stay is necessary in order to relieve against unfairness. 35 I do not consider that a sufficient basis has been shown to doubt the correctness of the conclusion reached by Judge Davidson such as to warrant the grant of leave to appeal. 36 I would propose that leave to appeal be refused.

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