R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan

Supreme Court of NSW|2020-12-03|Before: Adamson J

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Arnold Bloch Leibler (Paul Peter Dougas) Stary Norton Halphen (Mark Andrew Read) Logie-Smith Lanyon Lawyers (Geoffrey Kym Linke) Johnson Winter & Slattery (Paul Joseph Casamento) Holding Redlich (Andrew William John Counihan) File Number(s): 2018/150442; 2018/150400; 2018/150387; 2018/221995; 2018/150467

Introduction

The five accused stand charged on indictment dated 5 November 2020. There are two counts on the indictment, each of which relates to offences of conspiracy to bribe a foreign official contrary to ss 11.5(1) and 70.2(1) of the Criminal Code (Cth).
In count 1 of the indictment, the Director of Public Prosecutions (DPP) charges that, between about 1 January 2000 and 30 June 2005, Paul Dougas, Mark Read and Geoffrey Linke in Sydney, the Republic of the Philippines and elsewhere, did conspire with each other, Lyndsay Chapple, Mohit Kumar and Yolanda Fernandez and various others to provide a benefit to another person with the intention of influencing a foreign public official in the Philippines in the exercise of the official's duties as a foreign public official in order to obtain or retain business (the Philippines conspiracy).

Criminal Procedure Act 1986 (NSW)

Section 97 of the Criminal Procedure Act 1986 (NSW) provides that if a guilty plea is accepted in the Local Court the Magistrate must commit the accused person, relevantly, to this Court for sentence. Section 102(1) provides that this Court may proceed to sentence when the accused has been brought before the Court under s 97 as if the accused had on arraignment in this Court pleaded guilty to the offence on indictment. Section 102(2) provides that, in such circumstances, the accused person is taken to have been convicted on indictment. These provisions are relevant to the Company as it entered a plea in the Local Court.
The following provisions are relevant to the arraignment of the individual accused.
Section 130 of the Criminal Procedure Act relevantly provides: "130 Trial proceedings after presentation of indictment and before empanelment of jury (1) In this section, court means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled - (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. …"
Section 154 of the Criminal Procedure Act provides: "154 Plea of 'not guilty' If an accused person arraigned on an indictment pleads 'not guilty', the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly."
In Regina v Michael Taylor [2003] NSWCCA 194 Bell J (Spigelman CJ and Miles AJ agreeing) explained the effect of s 154 as follows at [145]: "Section 154 of the Criminal Procedure Act provides that if an accused person arraigned on an indictment enters a plea of not guilty he is taken to have put himself on the country for trial and the court is to order a jury for trial accordingly. This provision was inserted into the Criminal Procedure Act by the Crimes Legislation Amendment (Sentencing) Act 1999. A provision in identical times was previously contained in s 395 of the Crimes Act 1900. To put oneself on the country for trial is to submit to trial by jury. In England in early times the accused was required to consent to trial by jury. After entering a plea of not guilty upon arraignment he was asked 'how will you be tried?' to which the required response was 'by God and my country', which signified consent to the trial: Stephen, History of the Criminal Law of England, (London: Macmillan and Co, 1883) vol 1 at 297-298. Stephen observes (at 275), 'the pleadings in a criminal trial have always consisted, and still consist, of an indictment engrossed on parchment, and a plea given by the accused person orally in open court, of guilty or not guilty.' The accused by his plea of not guilty joins issue with the Crown. The Court is to order a jury to try the issue."

Bail Act 2013 (NSW)

Section 13 of the Bail Act 2013 (NSW) requires a person who is granted bail or in respect of whom bail is dispensed with, to appear in person before a court as and when required to do so in proceedings for the offence.

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Section 3 of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the AVL Act) includes the following definition: "physical appearance proceedings means the following - (a) any trial (including an arraignment on the day appointed for the trial) or hearing of charges, …"
Section 3A(1) provides: "3A Appearances and entitlements to be present before courts (1) A requirement by or under any other Act that a person appear (or be brought or be present) before a court is taken to be satisfied if the person appears before the court by way of an audio link or audio visual link under this Act."
Section 22C relevantly provides: "22C COVID-19 pandemic - special provisions (1) This section has effect for the prescribed period and prevails to the extent of any inconsistency with any other provision of this Act or any rules of court. Note. The Act continues to apply to appearances not referred to in this section and in proceedings prescribed by the regulations. Part 1A continues to apply to the appearance of witnesses to which subsection (4) does not apply and Part 1B continues to apply to the appearance of accused detainees to which subsection (3) does not apply. … (2A) The appearance of an accused person (other than an accused detainee) in any proceedings other than physical appearance proceedings may take place by way of audio visual link if the court directs or the parties to the proceedings consent. (3) The appearance of an accused person in any physical appearance proceedings (other than proceedings relating to bail or proceedings prescribed by the regulations) may take place by way of audio visual link if the court directs. (3A) The appearance of an accused person (other than an accused detainee) in any physical appearance proceedings prescribed by the regulations under subsection (3) is not to take place by way of audio visual link unless the court directs or the parties to the proceedings consent. … (5) A direction under subsection … (3), (3A) … may be made on the court's own motion or following the application of a party but only after the parties have had an opportunity to be heard on the matter. (6) The court is to make a direction under this section only if it is in the interests of justice, having regard to the following - (a) the public health risk posed by the COVID-19 pandemic, (b) the efficient use of available judicial and administrative resources, (c) any relevant matter raised by a party to the proceedings, (d) any other matter that the court considers relevant. (7) If an audio visual link is used the court must be satisfied that a party is able to have private communication with the legal representative of the party and has had a reasonable opportunity to do so. (7A) To avoid doubt, the appearance of an accused person in any proceedings under this section may take place by way of audio visual link from a place within or outside New South Wales, including a place outside Australia, if the court directs or the parties to the proceedings consent. (8) Nothing in this section requires or permits the use of an audio visual link if the necessary audio visual facilities are unavailable or cannot reasonably be made available. (9) In this section - prescribed period means the period - (a) starting on the commencement of this section, and (b) ending on - (i) the day that is 6 months after the commencement, or (ii) the later day, not more than 12 months after the commencement, prescribed by the regulations. …"
Section 22C(7A) was inserted into the AVL Act by sch 1.9 of the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW) which came into force on 27 October 2020. The explanatory note to the amendment said: "The proposed amendment clarifies the intent of the COVID-19 pandemic special provisions in relation to the appearance of accused persons in certain proceedings. It provides that the appearance may take place by way of audio visual link from a place within or outside of New South Wales if the court directs or the parties to the proceedings consent."
Regulation 4B of the Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW) (the AVL Regulation) provides that the prescribed period referred to in s 22C(9) of the AVL Act ends on 26 March 2021. Accordingly the proposed arraignment date of 9 December 2020 falls within the prescribed period.

The situation of the accused Company

It follows from ss 97 and 102 of the Criminal Procedure Act that there is no need for the Company to be arraigned on indictment in this Court since, the plea having been entered in the Local Court, the Company is taken, for the purposes of sentence, to have been convicted on indictment in this Court.

The situation of the accused persons

As none of the individual accused persons has pleaded guilty, it is necessary that each be arraigned in this Court. The wording of s 130(2) of the Criminal Procedure Act would tend to suggest that this Court's jurisdiction depends on an accused person being arraigned. However, the Court of Criminal Appeal (Basten JA, Harrison and Beech-Jones JJ agreeing) decided in KS v Veitch [2012] NSWCCA 186 (Veitch) that the District Court had jurisdiction to issue a subpoena in criminal proceedings before the accused was arraigned. Basten JA said at [21]: "The structure of the Criminal Procedure Act (to say nothing of common practice in the District Court) is thus inconsistent with the proposition that the court has no jurisdiction in criminal proceedings until the accused has been arraigned. What the court does not have prior to arraignment is the jurisdiction to conduct a trial. That is because the taking of a plea is a precondition to conducting a trial."
It follows from Veitch that this Court and the District Court have some powers pre-arraignment, which include the power to issue a subpoena. However in Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 Brennan J said at 37: "The Criminal Procedure Act confers no power on the District Court to regulate any aspect of the exercise of the powers of prosecution before an indictment is presented or to control the presentation of indictments or to review a refusal to find a true bill."
It would seem to follow from what Brennan J said, which was accepted to be correct in JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 at [27] (Basten JA, Beazley P and Ward JA agreeing), that arraignment is necessary before any substantive applications, such as the foreshadowed applications for separate trials, are heard. I understand it to be common ground that the accused ought be arraigned before any substantive application is dealt with.
As referred to above, the matter has been listed for arraignment on 9 December 2020. It is necessary to determine the further question whether those accused who are presently located in London and Melbourne respectively are amenable to arraignment on AVL or whether they need to be either present in Court or present in New South Wales. I understood from what was said on 9 November 2020 that the Crown had no objection to any of the accused being arraigned on AVL from their present locations.
The starting position is that an accused person, even one in respect of whom bail has been dispensed with, is required to attend court in person, except where expressly excused by the Court: s 13 of the Bail Act. Bail has been dispensed with in respect of all of the accused apart from the accused Mr Counihan. Bail has been granted to Mr Counihan on conditions which include that he reside at a nominated address in the United Kingdom and that he personally attend court when required to do so.
Section 3A of the AVL Act displaces s 13 of the Bail Act by providing that a requirement that a person appear is taken to be satisfied if a person appears by AVL under the AVL Act. As the proposed arraignment is to occur on 9 December 2020, s 22C of the AVL Act has effect since the prescribed period has not expired. The arraignment of an accused other than on the day appointed for trial is not a physical appearance proceedings within the meaning of s 3 of the AVL Act. None of the accused is a detainee as bail has been dispensed with in respect of each accused, apart from the accused Mr Counihan, who has been granted bail.
Accordingly, s 22C(2A) entitles each of the accused persons to appear by AVL if the Court directs or the parties consent. Any potential ambiguity as to the territorial operation of s 22C(2A) is removed by s 22C(7A) which expressly provides that appearance by AVL may take place from a place within or outside New South Wales, including a place outside Australia "if the court directs or the parties to the proceedings consent".
As at 9 November 2020, the Court had made no such direction. Although the Crown has indicated that it has no objection to that course, neither the Crown, nor any of the accused had applied for a direction under s 22C(2A) or s 22C(7A). No party had expressly consented to this course.
However, following my direction that submissions be provided, the parties have formalised their positions. The Crown has confirmed that it will apply for a direction if necessary. The accused Mr Counihan has applied for a direction under s 22C(2A). The accused Mr Linke "continues to have no objection to his arraignment proceeding by way of audio-visual link". The accused Mr Dougas has submitted that "it is valid and appropriate for the arraignment to be conducted via AVL" which I take to be an application for a direction or consent to arraignment by AVL. The accused Mr Read has confirmed that he "continues to consent to the arraignment occurring via AVL" and requests that he be arraigned by AVL.
On 2 December 2020, my Associate communicated with the parties to obtain formal confirmation that each consented to the arraignment of each accused by AVL at the locations proposed. Each party has communicated his, in the case of each accused, or its, in the case of the Crown, consent to that course.

Orders

For the reasons given above, I note the following: 1. The Crown and each of the accused persons have, pursuant to s 22C(2A) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), consented to the appearance of each accused person taking place by way of audio visual link for the purposes of the arraignment listed for 9 December 2020 and, subject to further order, for any subsequent appearances up to and including 26 March 2021.

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: 20 April 2022

Evidence (Audio and Audio Visual Links) Regulation 2015(NSW)

Stronger Communities Legislation Amendment (Miscellaneous) Act 2020(NSW)

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