R v Dowding, Grollo & Grollo [2000] VSC 274

8. Submissions put to me by counsel for the accused can be put into several categories. The primary focus of the submissions was on the application of the principles as to circumstances warranting the granting of a permanent stay as articulated in cases such as Rogers, to which I will turn later. It was put that if not individually then collectively several instances of unfairness or unconscionability warranted my ordering a permanent stay. I have opted to categorise the submissions as going to: preclusion; collateral purpose; delay; the not calling of witnesses; the forcing of a difficult forensic decision; and illness. Several matters advanced were referable to more than one of those categories, and I have used some licence in my allocation. In addition to the primary submission that I should order a permanent stay, there were secondary submissions or invitations. They were put or made in the event that I opted not to order a permanent stay. I was invited to state a case for the Court of Appeal. I was invited to order a temporary stay. I was invited to direct that the Prosecution be precluded from either or both of amending its case and calling certain evidence. I have indicated that I was not prepared to accede to either the application for a permanent stay or any of the other applications or invitations.

11. In submissions made to me that preceded my 1999 ruling on the admissibility of evidence from LPM, a number of arguments were put to me. It was argued that the entitlement of the Commonwealth to income tax was established exclusively by a determination under the regime provided for in the Income Tax Assessment Act. Put shortly it is a Tax Act regime determination for which I shall use the initials: ("TARD"). It was argued that once a TARD was finally made (by Commissioner, AAT or Court), that TARD was final for all purposes. The argument was put in different ways, but it was essentially a case for preclusion. It was argued that the Prosecution in the instant case was precluded from identifying any amounts as taxable income other than amounts identified by the TARD/s. It was argued that the Prosecution was precluded from contending for a further liability of the taxpayer to the Commonwealth than was the subject of the TARD/s. It was argued that the Prosecution should not be allowed to present a case which contradicted the TARD/s, and which amounted to a pseudo assessment. When ruling on those applications, I indicated that I found the submissions unconvincing, but that I did not consider it necessary to rule upon them. I said in my ruling that I did not accept that the Prosecution case was to be characterised as claimed, and that I did not accept that the Prosecution was presenting a kind of pseudo assessment. I did not accept that the Prosecution case was dependent on establishing a "correct" taxable income to rival that assessed by the Commissioner. I said that if the Prosecution case was so dependent, I would have to address the question of whether the challenged evidence was admissible.

14. Similar preclusion submissions were made to me in support of the application for a permanent stay. It is convenient to set out the questions that it was suggested, on behalf of the accused, might be subject of a case stated to the Court of Appeal:

1 Is the Crown permitted to advance a case in the trial of the accused which is inconsistent with or which contradicts the determinations made by the Commissioner of Taxation under section 166 of the Income Tax Assessment Act 1936 as confirmed by the Administrative Appeals Tribunal and the Full Federal Court?

2 Are the said determinations binding upon this Court for the purposes of establishing any obligation of the Grofam Unit Trust to return income under section 161 of the Act and to establish any entitlement of the Commonwealth for the purposes of the charges?

3 Does the Crown case seek to contradict any such determinations?

4 Is the Commonwealth precluded from advancing in the trial a case in which it alleges that items of income were derived by Grofam but not returned and expenses claimed as deductions by Grofam which were not authorised under the Act when such items were not the subject of adjustments reflected in the assessments?

21. It was put to me on behalf of the accused, in the preclusion submissions: that the Crown was seeking to contradict the assessment determinations; that the assessment determinations were binding on this Court; that the Crown should not be permitted to advance a case which contradicted or was inconsistent with the assessment determinations; that the Commonwealth was precluded from advancing a case in which it made allegations as per Question 4. I propose to address those submissions further below. Put shortly, I am not disposed to accept that the Prosecution are precluded from introducing evidence of amounts of income that are not the subject of a TARD or that a TARD is final for all purposes as if it was a judgment in rem. In the context of the instant application, I am not satisfied that there is any unconscionability or unfairness in the Prosecution advancing a case that is inconsistent with the TARD/s. Linking my position to the questions above, my answers would be: 1. The Prosecution is seeking to advance a case that is inconsistent with the assessment determination/s; 2. The assessment determination/s are binding on this Court for most purposes linked to calculation or payment or civil recovery or allied civil process purposes, but do not preclude a jury from making relevant findings in a criminal proceeding as to the elements of a criminal offence; 3. The Prosecution should not be precluded from advancing a case that is inconsistent with the assessment determination/s, including in the respects addressed in Question 4.

24. I turn to the collateral purpose submissions. There were various aspects to these submissions. It was put that "the Commonwealth" had adopted a strategy that was unconscionable. It was put that the strategy was manifest in a number of ways. One was concerned with the alleged inappropriate links between the various Commonwealth agencies, the Australian Tax Office, the Director of Public Prosecutions, the Australian Government Solicitor's Office and the Australian Federal Police. I have chosen after this not only to use the acronyms for each agency, but also, as noted earlier, to use to cover all agencies the letters: "IPAI".

27. It was put that IPAI had acted unfairly in ways that included that it had: acted as a group with a unity of purpose, precluding or limiting ATO from acting independently; failed to honour terms of a settlement with GGI in September 1993; used terms of settlement to force disclosure of the case of GGI; shifted ground many times as to how the conspiracy charge against the accused was framed; withheld damaging documents; created a difficult forensic dilemma for GGI as to whether and how, and to what extent to critically examine matters including the attitude and competence of IPAI. In support of the unity of purpose submissions, it was put that IPAI had acted unfairly in ways that included that it had unfairly exchanged information, used coercive powers and permitted ATO officers to work closely with DPP. It was put that a number of inferences adverse to IPAI could be drawn from the material. What was put included that the IPAI worked to a plan as to the strategic and forensic requirements of the proposed criminal prosecution of the accused. The IPAI plan included: the taking of criminal proceedings in aid of Commonwealth revenue; the creating of evidence and fact circumstance and the getting of opinions adverse to the Grollo defence to create assessments; the bringing of charges within the compass of offences against a taxation law to ensure the giving of evidence by ATO officers; the structuring of assessments to meet the prosecutorial objective to establish liability and entitlement: the developing of different conspiracy theories; the flushing out of GGI defences; the withholding of documents damaging to the IPAI case.

30. In addition to written submissions of over 200 pages, I was taken to over 200 documents, some of considerable length. I was provided with a table in which the documents were summarised and commented on. The flavour of the comments was generally in accord with the submissions. I reformatted and analysed the table. I contemplated appending my shorter version to these reasons, but ultimately opted against taking that course.

33. I have referred to aspects of the collateral purpose submissions being linked to the September 1993 terms of settlement. Those terms are referred to in the First Table as "9/93s". In what follows I shall refer to them as the 9/93 terms. The settlement that led to the signing of the 9/93 terms is to be contrasted to two other settlements that are included in the First Table. They are the 10/92 settlement and the 4/97 settlement. The 10/92 settlement was, or appears to me to have been, a settlement in principle that proved not to be susceptible to being translated into terms of settlement acceptable to all parties. The 4/97 settlement was, or appears to me to have been, effective in resolving the differences between the parties as to what would be paid to resolve all outstanding issues as to the civil liability of GGI. It is difficult, if not impossible, to understand what was being settled independently of the proceedings then current or in anticipation. As is reasonably apparent even from the limited chronology in the First Table, the three settlements were important but small chapters in a multi-chaptered story. The 9/93 terms were the subject of close review in the 10/94 proceedings, first by Olney J and later by the Full Federal Court. I have read those reasons carefully. I take them not to provide any material that is contraindicative, but rather to provide limited support, to my assessment of the 9/93 terms. Those reasons were not concerned with the limited aspects of the terms that dealt with the anticipated criminal proceedings, but were concerned with problems arising as to the regime for addressing the "Rialto issue". The "Rialto issue" was defined. Also defined was "Non-Rialto issues". The reasons reflect an acceptance that, while the Non-Rialto issues were relatively easily finalised, the Rialto issue was complex. The parties had to address certain issues as to the regime to be adopted for finalising civil liability. The way in which they did so could later be seen, with the benefit of hindsight, to have left much to be desired.

36. There is one further respect in which I have found a review of what was done in March and April 1997 as creating at least uncertainty in my mind as to one matter. That matter is whether there is only one view that could be taken as to what constitutes the TARD/s. On 20 September 1994, Olney J published his reasons for his decision in the AAT. On 9 December 1994, Olney J published his reasons for his decision in the Federal Court. On 26 March 1997, detailed reasons were published by the General Division of the Federal Court on two appeals. In the reasons dealing with the appeal from the AAT decision, the reasons were essentially supportive of Olney J. In the reasons dealing with the appeal from the Federal Court decision, the reasons reflected a concern as to matters not addressed. The parties were urged to settle, and they did. On 18 April 1997, formal orders were made by the Federal Court by consent. The orders included that each of the appeals be dismissed. Was/were the TARD/s made by Olney J or by the Federal Court? I am not sure of the answer. What is revealed by that brief review of what happened in March and April 1997 is that the position is far from as clear cut as in other cases like Rogers and Pearson and Saffron to which I will refer later.

39. Submissions as to delay going to alleged unfairness were put to me on behalf of the accused. I was taken to various matters, which included the length of delay, the causes of delay, the responsibility for delay, and the consequences of delay. Several matters require particular review, and are addressed by me below. Submissions were put to me on behalf of the accused as to the alleged unfair consequences to the accused of the Prosecution electing not to call two witnesses. The Prosecution has decided not to call KWJ and DBS, and has provided his reasons for that decision. Submissions were also put to me on behalf of the accused as to the alleged unfairness to the defence of having to make "difficult forensic decisions". This category was added after I made certain remarks to counsel as submissions were about to start. My remarks were directed to an indication from the Prosecution that it would be seeking a ruling that certain evidence as to actions and decision of IPAI be excluded as irrelevant. I said that I was not disposed to exclude it. I added these words: "However, difficult forensic decisions will have to be taken as to whether, how and why those actions and decisions are to be opened up for scrutiny. It may be like Pandora's box. There may have been actions taken and opinions expressed and decisions made that have to be fully exposed to enable the whole context to be thoroughly understood. Where the forensic benefit lies in achieving that exposure must be difficult to properly assess....". It was subsequently put to me on behalf of the accused that it was a further aspect of unfairness to be taken into account on the application for a permanent stay, that the accused had to make such difficult forensic decisions.

42. Mr Heliotis submitted that, as to the accused Bruno Grollo, I should take account of a further reason for ordering a permanent stay. That was that it would offend common humanity to require Bruno Grollo to stand trial when that would occasion significant stress to, and might occasion the death of, his wife. In support of that submission, there was tendered an affidavit to which was exhibited medical reports from Doctors Macrae, Monk and Zimmet. It is clear from the medical reports that Mrs Dina Grollo, the wife of Bruno Grollo, has major illnesses. She has suffered from two heart attacks and a stroke. She is currently suffering from diabetes, heart disease, generalised vascular disease, and occluded carotid arteries. The doctors referred to the close and interdependent relationship between husband and wife. She is heavily dependent upon him for assistance with medication, therapy, showering, toileting, dressing, the preparation of food, eating, walking and transporting around in a wheelchair and otherwise. Doctor Zimmet has opined that any significant stress would be highly likely to cause severe debilitation or even a complete and fatal stroke or heart attack, and that stress such as that occasioned by the previous trial of Mr Grollo could easily have the most serious, even fatal, consequences for Mrs Grollo.

45. The principles that I should apply, on an application to stay a proceeding for abuse of process, have largely been laid down in a series of cases decided in the last twenty years. In some cases, the primary focus has been on delay, in others on the effect of prior proceedings, civil or criminal and in others on considerations of collateral purposes. And as the cases make clear, the categories are not limited.

48. In Hunter, earlier criminal proceedings had resulted in a conviction for murder. Allegations of police violence were rejected in a ruling in those proceedings. A later civil action against the police was stayed. The House of Lords ruled that it was an abuse of process to use a civil action to make a collateral attack on the decision in the criminal proceedings. In Clarkson, the applicant, who had in earlier criminal proceedings been acquitted of murder, was some years later convicted on other offences. He contended, as to the later charges, that there had been unreasonable and oppressive delay amounting to abuse of process in their being brought, and that the acquittal of murder gave rise to an issue estoppel. The Full Court declined to grant the application, but reviewed the cases and principles on delay and issue estoppel. In Boehm, Ormiston J declined to grant an application for a stay where there had been considerable delay in bringing criminal proceedings on for trial. He posed the question whether the continued prosecution would amount to an abuse of process, with a focus on whether the circumstances would conduce to a fair trial. He noted factors to be taken into account, including prejudice. In the case before him, he viewed the prejudice as not being of a kind which would necessarily render a trial unfair to the accused.

51. In Jago, the High Court, in five separate judgments, reviewed a further example of considerable delay in bringing criminal proceedings on for trial. The High Court concluded that the application for a stay had been rejected appropriately. The decision made clear that the courts had a discretionary power, to be exercised in a principled way, to stay a criminal prosecution, where any trial would necessarily be an unfair one, but also that the power was to be used only in exceptional circumstances. In cases of delay, the court accepted the appropriateness, in considering whether a trial would necessarily be an unfair one, of having regard to (adapting the words of Deane J at 656): the length of the delay, the reasons given for the delay by the prosecution, the responsibility of the accused for the delay, proven or likely prejudice to the accused and the public interest in the disposition of serious offences and in the conviction of those guilty of crime. In Verwayen, the High Court was concerned with issues of estoppel and waiver. A policy had been adopted by the Commonwealth that it would not plead a limitations defence. In 1986, a decision was made to change the policy and take the defence. The High Court ruled that the Commonwealth had waived the right to rely on the defence.

54. In Saffron 2, the Federal Court was concerned with a narrow question that arose in the course of tax appeals that had continued after the taxpayer had been convicted of conspiracy to defraud. Many of the issues in the earlier criminal trial and the later tax appeals were the same. Close attention was paid to the principles spelt out in Hunter. Davies J was of the view that there was no element of abuse of process in questioning the taxpayer about matters central to verdict in the trial. Lockhart and Beaumont JJ were agreed as to the application of a more restrictive approach, which would have precluded the taxpayer from presenting a case for the purpose of challenging the propriety of the conviction. But Lockhart J would, and Beaumont J would not, have allowed that case to include a denial of an agreement, which Beaumont J said would amount to a challenge to the conspiracy conviction.

57. In Dietrich and in Swaffield, the High Court revisited the subjects of fairness and unfairness, that had been examined in some depth in Jago. I have reviewed analyses in the three judgments on what fairness in a criminal trial can be seen to mean as a "touchstone", and in how it can be reflected in particular circumstances. I have noted, in particular, what was said in Jago by Deane J at 645, and in Dietrich at 362-4 by Gaudron J. In Reeves, a permanent stay for abuse of process was granted in circumstances where the destruction of documents had created what was patently a fundamental defect that could only have meant that it was not possible for the accused to receive a fair trial. In Williams, the focus of the High Court was on a proceeding that was seen to have been brought for an improper purpose. The majority concluded that the prosecutions were an abuse of process and that the stay was properly granted. In Walton, the focus of the High Court was on later proceedings, where initial proceedings made to a tribunal as to medical practitioners, had been stayed. A Royal Commission had then reported adversely on the conduct of the doctors, and fresh proceedings were started. The majority ruled that the further complaints should be stayed as an abuse of process involving unacceptable injustice or unfairness. It was accepted that the discretion to grant a stay to prevent an abuse of process could be used in addition to other means of addressing prior determinations, like issue estoppel, which had their limitations.

60. In Rogers, the focus of the High Court was on earlier and later criminal proceedings involving the same accused. In the earlier criminal trial, a ruling had been given that a confession in a police interview had been involuntarily obtained. In the later criminal trial against the same accused, the prosecution sought to rely on another part of the same interview. The majority of the High Court held that the attempt by the prosecution to rely on the interview was an abuse of process. Mason CJ said at 255 that while it was difficult to define abuse of process, the circumstances in which it might arise were extremely varied. He later noted that re-litigation in later criminal proceedings of an issue finally decided in earlier proceedings was inapt because of the desirability of judicial decisions being binding for public confidence and other reasons. The same concern as to public confidence is reflected in the reasons of Deane and Gaudron JJ at 280.

63. In Pearson, the focus of the New South Wales Court of Appeal was on later criminal proceedings, where an issue arose as to the appropriate tariff classification for certain washing machines. There had been an earlier Federal Court decision on liability for the payment of customs tariff on those same washing machines. The issue was not as to whether a permanent stay was appropriate, but as to what status should be accorded the judgment of the Federal Court in the criminal proceedings. The reasons of Kirby A-CJ were agreed to by other members of the Court. He made a careful review of Hunter and Rogers, noting the similar policy considerations that were or might be applicable in relation to the preclusive effect of prior judicial determinations. In Young, at 98, a warning was sounded as to how often what the High Court in Rogers had found it appropriate to declare, could be declared. What was also noted in Young, at 99, was the need to go back to earlier discussion of authority, when considering whether evidence proposed to be led constituted a direct challenge to an earlier ruling. That same proposition was confirmed in Pennant at 389.

66. It is against the background of those cases, and the application therein of the relevant principles that I now turn to the instant case. I do remind myself, as made clear in the cases, including in Jago at 643, that the power to grant a stay for abuse of process is to be used only in most exceptional circumstances.

69. I turn back to the preclusion submissions. I have outlined the thrust of the submissions above. Reliance is placed on what is said in Batagol approved in Walter as to the Tax Act regime fixing amounts "for all purposes (except those of appeal; see s.177)". I am disposed to treat the "for all purposes' as intended to refer to something akin to all civil calculation or recovery proceedings or a like purpose. I am not disposed to accept that the amounts are to be treated as crystallised for all purposes of any kind whatsoever, including a later proceeding not linked to the calculation or payment or civil recovery of tax or a like civil liability purpose. It is put that the Tax Act regime is the only procedure for challenging the correctness of an assessment (save in bad faith Bloemen and Walter), whereas I am not disposed to accept so narrow a limit on the challenging save in civil liability and like context. It is put that the GGI position is supported by what is said in Brown : "the assessment of liability is conclusive except upon the processes of review and appeal". Like submissions are based on what was said by McHugh J in Walter: "...assessments of tax are not challengeable in ordinary legal proceedings". I am disposed to regard the "ordinary" as reflecting an appropriate qualification on "all". It seems to me that there must be an allowance not only for the acknowledged exceptions like review and appeal and bad faith but also for, as in the instant case, where there are criminal proceedings, where the payment or recovery of tax and other civil consequences are of incidental relevance.

72. It was also argued that Section 177 of the Tax Act supports preclusion in that it provides for a notice of assessment being conclusive evidence and the provision extends to "all the particulars of the assessment". I am disposed to treat Section 177 as being directed only to that which it is obviously directed to, namely issues of the calculation, payment, or civil recovery of tax or a like civil liability purpose.

75. On behalf of the accused, considerable reliance was placed on what was said at pages 115ff by Northrop J in O'Donovan. I have no difficulty accepting that what was said was appropriate to the circumstances then being addressed by Northrop J. I am quite unable to accept that what was said is really persuasive authority, let alone compelling authority requiring me to preclude the Prosecution from proceeding in a way that is inconsistent with the TARD/s.

25 O'Donovan was concerned with a complicated scheme that was devised to avoid the payment of income tax by a company with current year profits ("CYP company"). Shares in the CYP company were sold to another company that donated a large sum to an art gallery that bought a work of art from that other company at an inflated price. If efficacious/effective, the scheme would have, inter alia, given the original shareholders a capital receipt, reduced the taxable income of the CYP company to nil, and returned the promoters' money. The promoters, and the barrister whose advice they had sought, were prosecuted for conspiracy to defraud. At the committal hearing, the magistrate gave reasons for ruling that there was a case to answer. He ruled that he would not enter upon what was seen to be a key question. That key question was framed more and less widely on occasions but was essentially: "Was the scheme effective to reduce the taxable income of a CYP company to nil?" An application was made to Jackson J sitting alone to review the ruling of the magistrate. Jackson J expressed a reluctance to intervene, but did so because he considered that the magistrate was in error in not addressing the key question. He directed that the magistrate should determine the question. On appeal, all three of Fox, Northrop and Pincus JJ considered that Jackson J was wrong to give that direction. Fox J said that he agreed in substance with Northrop J. He added comments that are of particular significance because they were picked up by Pincus J. Those comments of Fox J were part of what I take to be advice to the magistrate as to how to proceed. Pincus J said that he could not accept that the degree of probability of success of the scheme was irrelevant, and that he agreed with Fox J that the magistrate could consider whether there was a clear risk that the CYP companies would be assessed. Those comments of Pincus and Fox JJ are significant in the context of some broad statements made by Northrop J. It is upon those statements that Mr Judd, before me, seeks to rely heavily.

79. At 115, Northrop J refers six times to what I have called the key question. He then says that any decision by the magistrate in committal proceedings cannot determine the question. He says further that any ruling by a trial court cannot determine that issue. He says further that any opinion by the courts as to the probability of the scheme being effective is irrelevant in conspiracy charges. At 116, he says that any opinion on the question in the then proceedings would not only be speculative but irrelevant to the criminal charges. At 119, he says that the magistrate should not attempt to determine another tax consequence question, namely, whether the "gifts" payable under the scheme were properly deductible under the Tax Act. At 120, he says that the efficacy of the scheme on the key question and the "gifts" question was immaterial. At 111, Northrop J had set out references to various provisions in the Tax Act as to the Tax Act regime, i.e. the assessment processes for, the calculation of, the ways of objecting to, the collection of and the liability to pay income tax under the Act.

82. In the only full paragraph on page 115, he returns to aspects of the Tax Act regime, after stating that the magistrate cannot determine finally the key question, to make good a premise relied on for precluding the magistrate from making a final determination. He states: "The decision of the administrative tribunal or the court from which no appeal is taken is the tribunal which determines finally the question of the taxable income of, and thus the tax to be paid by, a taxpayer with respect to any tax year. That determination depends upon the material placed before the tribunal or court in those proceedings." I have a difficulty with the premise itself if it is contemplated that it should be read as including after "finally": "for all purposes and so as to preclude any finding in any other proceeding." Northrop J may have contemplated that. I have another difficulty, which is allied to the first, but may be distinct from it. Twice in that only full paragraph on page 115, Northrop J refers to "determine finally". Elsewhere, he uses only "determine".

85. There are at least seven factors which influence me in concluding that I should not treat what Northrop J has said in O'Donovan as being strongly persuasive towards the conclusion that the Tax Act regime precludes consideration in another court of a matter the subject of a TARD on the basis that a TARD is made finally and for all purposes. The first is that a blanket preclusionary effect does not accord with my perception of what, taken over a broad spectrum of potential applications, would generally be likely be likely to seen to be appropriate, in the absence of an express statutory provision, and given the existence of other common law safeguards. The second is that the introduction of "finally" by Northrop J seems to me to be strained, in the way that I have noted briefly above. The third is that, in my opinion, both Fox and Pincus JJ distanced themselves from the blanket preclusionary tags of irrelevant, speculative and immaterial used by Northrop J. The fourth is that, as Northrop J himself said at 112, and as was noted by the other judges, the unsatisfactory nature of how the proceeding came before the court can be seen to have create a degree of artificiality in the presentation of the issues. What was being sought and given was in the nature of judicial advice to the magistrate who had to act on what he was directed to do relative to the proceeding then before him. The fifth is that what the three judges were reacting to was a direction given by Jackson J that the magistrate was obliged to do that which he was trying to avoid doing, namely make a decision relative to a question with tax consequences. The sixth is that the focus of Northrop J was on a future possible TARD. He was not concerned about a past TARD. An analysis of what a future determination might be necessarily would involve speculation about the future. That is a very different thing from reviewing what has been determined upon material placed before the court or other decision-maker. The seventh is linked to the sixth and explains why I find Pearson, despite the differences in the tax/tariff regimes, of more persuasive value to me than O'Donovan. With a past determination, one can analyse the issues actually raised, the evidentiary standards, the evidentiary framework, the evidence actually led, the submissions made, the submissions accepted, the reasons and the ultimate outcome in a way that is conducive to taking account of what is relevant, rather than ignoring it, or being compelled to accept it.

88. Further, I am unable to dismiss what was said by the New South Wales Court of Appeal in Pearson as having little value relative to the matters of concern to me, as I was urged to do. There are significant respects in which the position in Pearson is similar to, but also different from, the position before me. There is the very important difference that the focus there was on the payment of customs duty, not income tax. There is the important similarity that there had been the equivalent of a TARD made. Further more, it had been made in the AAT and reviewed by a Full Federal Court.

91. Before I return to Pearson, I would note that I am influenced, as it was urged on me on behalf of the accused that I should be, by aspects of what was said in Rogers. I refer to the apparently approving references by Deane and Gaudron JJ at 279 to what was said by Lamer J in Duhamel. One reference, which has resonance with me, is to any bar not stemming "from principle or logic". I note in passing that the concern with focusing on "finality" and "identity", as Moir JA had done, is politely corrected. There is also the reference in Rogers at 280, in the context of "mutuality", to the distinction of which I am here conscious. As said there: "The position is necessarily different in criminal proceedings were the prosecution bears the onus of proving guilt beyond reasonable doubt and the accused is entitled to insist that the prosecution discharge that onus in the course of a fair trial of the particular charge."

94. Despite the qualifications stemming from matters I have referred to above, I am strongly disposed to take a lead from what was said in Pearson. It is appropriate that I spell out further the resonance that Pearson has, by casting, in terminology and expressions closely borrowed from that case, some propositions that I would be disposed to apply in the case before me. As in Pearson, I note that the trial scheduled before me is not, as was the position in Rogers, concerned with initial and subsequent criminal proceedings, where the subsequent proceedings are to be determined against the same evidentiary background. As in Pearson, I note that the decisions in the AAT and Federal Court were not made against the same evidentiary background. The AAT was not bound by the rules of evidence. I note that, before me, the Prosecution case does not question that the AAT or court findings were incontrovertibly correct in the context they were made. There is a different burden of proof. This court should accept that the Federal Court decision has finally decided the amount of income tax payable by the taxpayers then before the Court. It is not a conclusive decision against the world of the assessable income, taxable income or otherwise. It is a conclusive decision determining the income tax payable for the purpose of the civil proceedings for the recovery of the tax payable. The findings in the AAT and the Federal Court are not of preclusive effect. They are not unimportant. They are evidence and can properly be taken into account. A criminal court judge sitting alone should appreciate that, given the different evidentiary environment, the judge can, but is not required to follow the decisions. It would be natural to pay the decisions and the reasoning supporting them a great deal of respect. The relative importance of the earlier decisions would depend on the issues before the court. If the issues were explicitly limited, some comments could be no more than obiter dicta. What the decision-maker makes of the evidence is a matter for the decision-maker.

97. I would also now repeat the point I made earlier. In the context of the instant application, I am not satisfied that there is any unconscionability or unfairness in the Prosecution advancing a case that is inconsistent with the TARD/s.

100. I am also not satisfied that there is any unconscionability or unfairness in the Prosecution advancing a case which raises issues other than those identified in the Terms of Settlement of 22 September 1993. From my review of those terms of settlement, it seems to me appropriate to draw a number of conclusions. One is that, understandably, the main focus of the documents was on addressing what were then relatively immediate problems that needed to be addressed. Those problems were the "proceedings" as defined in the terms. It was the clearly stated intention of the terms to settle the various matters then the subject of those proceedings. There was also a focus, but only a limited focus on addressing future potential problems. Although the DPP was a party, there is a specific focus on the role of the different Commonwealth agencies. The major part of the document sets out the agreed procedures to be followed by the Commissioner of Taxation and the taxpayers to facilitate and finalise the assessment of the amount of income tax to be paid. The accused now contend that part of the scheme of the terms of settlement was "to confine the scope of the issues between the parties, including the DPP, to those expressed in the assessments." I accept that it was part of the scheme to confine the income tax issues between the Commissioner and the taxpayers in this manner. However, on my construction of the terms, there is a discrete separation of clauses applying to the Commissioner and to the DPP and there is a discrete separation of clauses going to potential civil and criminal liability. The accused now seek to take the commitments as to the tax assessment process made by the Commissioner and to have those commitments attach to the DPP in the exercise of his powers as to criminal proceedings. I do not accept that that is appropriate. It seems to me that the fact that the DPP is a party to this settlement as a result of a challenge to the exercise of his civil remedies powers does not support such an extension. Clause 28 is the only clause in which the powers of the DPP as to criminal prosecutions is linked in any way to the assessment process. It is a provision as to a time-frame for any future criminal proceedings. There is no indication or further elaboration in the document of why that agreement has been reached. There is no clearly stated commitment by the DPP to restrict future criminal proceedings in any other way. There is no clause such as: "The DPP agrees that he will not bring or cause to be brought a criminal proceeding in relation to offences in respect of the Rialto issue which does not confine itself to offences in respect of amounts found to be assessable income in the assessment process." The position as to preclusion might have been quite different if the future had been addressed in some such manner. However, it was not, and the document as it stands does not support the extent of preclusion that the accused now contend for.

103. I turn back to the collateral purpose submissions. I have noted that I was taken through extensive material, and invited to draw a number of inferences adverse to IPAI. PW and KMcD were the subject of the strongest criticisms. Perhaps next in line were FWL and LPM. I have no knowledge of having met or seen PW or KMcD. I have read through the various letters written by PW. I have also noted the various reports and minutes and letters and notes by others referable to PW. I am not persuaded that I should infer that there was anything sinister about the opinions expressed or the actions taken by PW. I am not persuaded that there was anything sinister about the use by DPP of his civil remedies powers under Section 6(1) of the Director of Public Prosecutions Act. It seems clear that Parliament included the provision in that Act because it wanted to maximise co-operation between Commonwealth agencies. It seems to me to make good sense to have such a statutory provision and to make use of it in circumstances of this kind. It also seems to me that it was appropriately used in this instance. The work of supervising people and particularly lawyers is rarely an easy task. When assessing what was done here, I am reminded of the analogous saying that trying to organise judges is akin to herding cats.

106. Inferences that I am not disposed to draw, on the materials available to me, include those that I have noted earlier, and: that GGTI has, with but minor exceptions, been co-operative and ready to disclose information and documents to IPAI; that the opinions of FWL and LPM expressed in and around 1990 had some considerable and lasting weight; that ATO made a reference to DPP because the reference would force GGTI into a settlement; that, because opinions to that effect have been expressed by IPAI, the Prosecution case has at all times been, and been seen to be, dependent upon the making of assessments of income derived, assessable income taxable income, etc.; that AFP and DPP hounded ATO into making assessments; that opinions expressed by IPAI reflect a single-minded pursuit of tactical considerations; that ATO was prevented from settling with GGTI by DPP pursuing its prosecutorial agenda; that strategic decisions reflect a plot against the accused, rather than a co-ordination of agencies within IPAI; that the proceedings before the AAT were used to flush out the GGTI defences to criminal charges.

109. Sometimes more or less muted assertions of impropriety were made against KMcD, PW and others including the ATO's Independent Review Panel. I am not disposed to infer that there was any such impropriety. I have read through the various reports and notes written by KMcD. I have noted the various other memoranda referable to KMcD. I have read questions and answers during the cross-examination of KMcD by Mr Judd at the committal hearing. I am not persuaded that I should infer that there was anything sinister about the opinions and actions of KMcD. I formed the impression that KMcD is a man strongly disposed to record his opinions. I am not disposed to place much weight on the opinion of any one member of IPAI expressed in the course of investigations. The circumstance that such assertions were made itself lent some weight to the thinking that at least one individual in GGI has or had a mindset that looked to interpret even minor actions of IPAI as being directed at unfairly fostering the case against the accused.

112. I turn back to the issue of delay. There have been a number of causes for the delay in these proceedings coming on for trial. The First Table represents a convenient starting point. As well as giving a reasonably accurate lead to chronologies provided in decisions, it provides details of dates of hearings and the delivery of reasons in various proceedings. The dates given are only a starting point for a reference to other causes of delay. Time was also taken up by: the making of a late start by IPAI on investigative work on the issues which led to the 10/93 proceeding and the 12/94 criminal proceeding; the preliminary steps in the 10/92 proceeding, the 4/93 proceeding, the 6/93A proceeding, the court challenges by GGI to actions by IPAI which were a prelude to the 10/93 proceeding and the 12/94 criminal proceeding; the investigation by IPAI of the issues which led to the 8/93 criminal proceeding; the 6/93(1) proceeding being the court challenges by GGI to actions by IPAI which were a prelude to the 8/93 criminal proceeding; the committal hearing and trial of the 8/93 criminal proceeding; the negotiations for the 10/92 settlement, the 9/93 settlement and the 4/97 settlement; the 6/93(2) proceeding being the court challenge by GGI to the non-implementation of the 10/92 settlement; the hearing before the ATO IRP; the hearing before Olney J of the 10/93 proceeding; the committal hearing of the 12/94 criminal proceeding; the amendments by IPAI of the indictment, particulars and other documents outlining the case of IPAI; the delay in IPAI responding to requests of GGI; the delay in GGI responding to requests of IPAI; illness on the part of IPAI; the raising of assessments; the pre-trial applications made to me as to the statements of LPM relative to the 12/94 criminal proceeding.

115. There are a number of factors underlying the causes of delay. One factor goes to the inappropriateness or at least the difficulty of having the hearing at the one time, or close to the one time, of more than one complex proceeding. Once there had been a significant investigation of the issues which ultimately have led to the two sets of criminal proceedings, there was almost an inevitability about there having to be at least one major hearing as to a complex matter of civil liability and two complex criminal trials. That gave rise to dilemmas as to the order in which the hearings took place. That order of hearings was the same as the order of the institution of the proceeding. I am not disposed to accept the criticism that the order was inappropriate and IPAI are to be held responsible. The corruption trial is not a matter to be held against BID & RJG, but I am not disposed to blame BGG or IPAI for it either.

118. I have considered the factors going to the responsibility of the Prosecution and defence respectively for the delay. I am not disposed to criticise either IPAI or GGI as being unnecessarily difficult or slow or the like. At some times, there was or appeared to be harmony. At others there was or appeared to be moderate to high umbrage taken by one as to the actions or attitude or competence of the other. My impression is that with both GGI and IPAI, the level of activity was variable rather than consistently fast or slow, and that the level of co-operation provided by one to the other, including as to the provision of documents, was variable rather than consistently good or bad.

121. In my opinion, the overwhelming cause of delay is the complexity of the issues of fact and law that have had to be addressed. That complexity is expressly noted by the Full Federal Court in proceeding 11/94 at 18, where the appeals are said to be concerned with very complex structures and transactions. It is also evidence from both the length of decisions and the length of time taken to hand down decisions. Even on this application for a permanent stay, in addition to the 15,000 to 20,000 pages placed before me last year, the parties have brought in another couple of thousand pages.

124. It was put to me that the accused suffered prejudice by reason of their inability to cross-examine the witness FWL. I have read the statements of FWL. I have read the cross-examination of FWL by counsel for GGI before Olney J, and have noted that it was very limited. Matters that FWL might have been asked about included opinions held by FWL at a time before Olney J handed down his decision in proceeding 10/93. I regard the decision and the reasons of Olney J as one which was likely to, and did, have profound consequences. The circumstance that the Federal Court was later to so strongly support the basics of that decision was of great significance, but was still relatively minor by comparison. There is some but not substantial merit in the contention that the absence of FWL could deprive the defence of the option of putting a hypothesis supportive of the accused. I consider that there is or may be some actual prejudice to the accused arising from the death of FWL, but it is very limited.

127. There is also the consideration that I have noted elsewhere. An important aspect of the weight to be attributed to the evidence of a witness, and hence to the potential for prejudice, is linked in my view, to whether the evidence goes to elements of the offences charged. If it merely goes to matters linked to the investigation and prosecution of those offences, it will rarely be expected to have substantial weight. I take a similar view in relation to the death of FPB, whose statements and cross-examination I have reviewed. The nature of the statements, and of the cross-examination and the absence of other than a passing reference by Olney J in his reasons to FPB warrant my concluding that his role was minor, and that the inability to cross-examine him is a matter of little consequence. I would add one final point. The prejudice to the accused ought not to be assessed in total disregard of the advantage to the accused that can arise from prejudice to the prosecution. That is scarcely a major matter, but it can be seen to apply to the Prosecution case, which may be seen to be weakened by the inability to call FWL and FPB, and the impairment or loss of recollection of other witnesses.

130. I turn to the subject of prejudice potentially resulting to the accused from shifts in the Prosecution case. There have been shifts in the positions of IPAI as to what issues the Prosecution case was addressing and more specifically as to what the scope of the alleged conspiracy was alleged to be. By looking at the Prosecution's particulars, one can gain an appreciation of some of those shifts. Using Army parlance, there are particulars Mark 1,2 and 3. If one extends the review to opinions expressed by IPAI and to documents other than particulars, some of which are noted in the First Table, the shifting of position can be seen to be much longer and more varied.

133. Ideally, an investigating and prosecuting team would accumulate statements and documents as quickly as possible, then assess the evidence and present charges promptly with adequate particulars, and neither the charges not the particulars would later be amended. If the ideal position is at times possible in relatively simple cases, it is rarely achievable in complex cases. The common experience of the need to shift position, in criminal and in civil proceedings, has led to the development of principles as to the making of amendments. Justice is more likely to be achieved if substance is preferred to form. Leave to amend is likely to be given subject to considerations of timing and the assessment of the risk of prejudice. Hunt AJA in Saffron 1 at 309ff reviewed the applicable principles.

136. More than one construction can be placed upon there having been several shifts in the position of IPAI. It could be construed as a sinister attempt to confuse and make difficult the preparation of the case of GGI. It could be construed as an indication that inferior or indecisive minds are being utilised. It could be construed as an indication that sensible adaptations are being made upon the receipt of further information. My review of the material leaves me in no doubt that it is the third construction that I would place on what has taken place in these proceedings. I have read closely the reasons of Olney J in proceeding 10/93 of 20/9/94, and those of the Federal Court in proceeding 10/93 of 26/3/97. I have also read significant portions of the evidence before Olney J. I am readily disposed to draw the inference that review of that material would have been likely to lead to IPAI deciding to make a shift in position. I would also note that the Prosecution case has become more focused in some respects in ways that can be seen to be advantageous to GGI. I accept that there has been some prejudice in this regard, but not that it is substantial.

139. I turn to the subject of prejudice potentially resulting from the impact of delay on the memory of witnesses. It was argued on behalf of the accused that, as a result of the lapse of time since the events that are to be the subject of evidence, this is a case where the present memory of witnesses will be totally blank. It was put that in a complex circumstantial commercial case no witness will recall details after 20 years. It was argued that the evidence of certain witnesses would thus be reduced to: "If it is in a file note, it must have been said. If it is not in a file note, it wasn't said." It was argued that that would amount to a contest as to who has the best file notes, and that the accused would be prejudiced doubly, first by their not being note takers, and secondly by the effect of delay on the advantage that the evidence of witnesses who take notes has over that of witnesses who do not.

142. The subjects of the observation, present recollection and past recollection of witnesses are discussed at length in Wigmore at paras 726ff. In what follows I have interspersed comments based on my own experience, with what I have taken from Wigmore and Cross. Some of these issues were also considered in Naidanovici.

145. Some witnesses may use expressions indicating uncertainty as to the level of conviction of the witness as to the original observation. They may use such expressions as: "I am not certain. I thought at the time...". Such qualifications may have nothing to do with a deficiency of recollection. It may be an indication of no more than the perception that the witness has of the weakness of the original observation. The observations of different witnesses to the same event are invariably different in minor respects, and often in major respects, from the time of the observation. See Barry. Testimony as to observations can be expected to differ over time, because of differences of observation or differences of recollection or both.

148. A witness may give or purport to give evidence as to the observation of a past event from present recollection when there exists an actual memory of a past event. The present recollection of a witness, sometimes referred to as an "independent recollection" where the recollection is made unaided by reference to documents, can be affected by the passing of time. It can be influenced by events like the witness making a statement to an investigator or the witness giving evidence. The impact of evidence given by way of present recollection will depend on various matters like the general credibility of the witness, the coherence of his or her narrative and his or her role in the events. A more detailed list of such matters is conveniently set out in Eggleston at 155-6. Evidence based on an independent present recollection of past events is usually assumed to be less reliable the longer the time after the event. It is not necessarily the case that a recent memory will be more accurate, and a remote memory less accurate. As noted in references given in Wigmore, the subject of memory is a complex one. Evidence of present recollection can be unreliable for subconscious reasons, because of the influence of self-interest, and for many other reasons.

151. The law recognises the potential for imperfections in present recollection and permits recollections to be "refreshed". The law also recognises that there can be what is the ultimate imperfection in present recollection, and that is no recollection, and permits a witness, who has no present recollection, to give evidence of what Wigmore calls "past recollection". The law permits the refreshing of an imperfect present recollection, or the giving of evidence based on past recollection where it is possible to make use of a record brought into existence at the time the facts were still fresh in the memory of the witness. Such a record is what had been at the time the record was made a present recollection embodied in a document. Being a present recollection at the time it was made, it is subject to the same limitations as any present recollection. My own experience in court, and in reading other judgments, is that that kind of past recollection is very often likely to be treated as more reliable than a present recollection. A witness whose testimony is based on notes will probably, but not necessarily, be seen to be more credible than one relying on present recollection. In the cases where there is no present recollection without reference to a record made at the earlier time, the witness gives credit and truth to his own habits and seeing a record in his own handwriting swears to the accuracy of his record. I have noted two examples of the judicial treatment of such a record. In Saffron 1, at pages 275 and 279, Hope JA, made in 1988, several comments about the diary notes, made in 1974, by a witness Jones, who was a bank manager. After noting that the notes were kept in the usual way of a bank manager's notes, he said that they threw considerable light on the issue he was reviewing. In proceeding 10/93, at paragraph 23, Olney J commented on the reliability of contemporaneous records.

154. To a limited extent, delay is likely to operate to increase the prospect that the evidence of note takers will be preferred to that of witnesses who have no notes. I do assume that a past recollection is likely to be viewed as more reliable because it is based on a note made contemporaneously. But long delay is, in my view, relatively immaterial. Such testimony is likely to be preferred to that of a witness relying on an "independent memory" irrespective of the length of time over which the memory is being exercised. Such testimony is also likely to be viewed as more reliable because there has been less opportunity for subsequent events to influence the recollection of the event. A past recollection will still be subject to tests of credibility, correctness, the coherence of the witness's overall narrative, their role in events etc. A witness who has the habit of keeping notes of business transactions may have more credibility than one who does not, for reasons that are unrelated to delay. The reasons have more to do with the other factors affecting the weight to be given to the testimony of a witness. Again I refer back to the factors noted by Eggleston.

157. In my view, the importance of file notes in this case will, as in any other case, be just one of several factors which will affect the assessment to be made of the particular witness. Qualifications as to the limitations of the memory and of the file notes as instances of the then present recollection can be elicited from the witness. Given that any file note is a resurrected record of a then present recollection, it still has the limitations of the original observation and of the then present recollection. From the witness can be elicited how much of the evidence is present recollection, and how much past recollection.

160. I was taken by Mr Forrest to, and have read, the statements of eight witnesses: ASB, LMB, ASC, MMcG, CDM, REN, ACR, and NT. I was taken to, and have read, the cross-examination of the five of the eight who were called at the committal hearing: LMB, ASC, MMcG, CDM, and ACR. I do not propose to examine that evidence in detail. I noted passages indicative of either problems with recollection or the absence of any recollection. That was a matter of no surprise to me. I did not form the impression that the potential prejudice arising therefrom was substantial. I did form the impression that those problems would be manifest to a jury even through examination in chief. I have faith in a jury's capacity to recognise both the character of the problems and the effect of those problems on the reliability of the evidence of each individual witness, to each of whom different considerations will apply. I do not accept, as was put to me, that the witness is effectively not cross-examinable. A number of the eight witnesses gave evidence before Olney J in proceeding 10/93. I do not see in his reasons, any basis for concern as to there being an unacceptable level of prejudice. I am satisfied that there will be some prejudice arising from each of two matters. The first is that delay will have resulted in the impairment of unassisted recollections. The second is that the circumstance that the evidence of a witness who has kept notes will tend to be treated as somewhat more reliable than the evidence who has not done so, will also tend to increase with the passage of time. I am not persuaded that the prejudice is even close to that which would arise (as it did arise in Reeves) as a result of the destruction of records which could be used to assist recollection, whether by refreshing an imperfect present one, or resurrecting a past one.

163. I turn back to the submissions made to me as to the effect of the Prosecution electing not to call KWJ and DBS. I have read the statements made by each of KWJ and DBS before they gave evidence before Olney J. I have read the transcript of the evidence that each gave before Olney J. in April 1994. I have also read other material that appeared to me to be relevant, such as the reasons for decision of Olney J. I was told on behalf of the accused that the position as to the witnesses KWJ and DBS was not put as a matter going to a permanent stay, but as warranting other action, and most specifically a temporary stay. Such a stay would remain in place only if Mr Robberds opted to change his position and to call KWJ and DBS.

166. I am familiar with, and have reviewed, the cases including Apostilides, Armstrong, King, Lucas, Richardson, Seneviratne, Shaw and Whitehorn in which the principles applicable to the exercise of the prosecutorial discretion not to call witnesses are set out. Indeed, in Shaw, I had been the presiding judge. Since Shaw, I have had considerably more experience listening to the ventilation of complaints as to the decision of a prosecutor not to call a witness and to the reasons given by a prosecutor to justify such a decision. As the experience has increased, I have appreciated the wisdom of the principles limiting the role of the trial judge. In that regard, I refer particularly to Apostilides at 575. I have also appreciated how often it has been possible to reflect after a trial on the fact that the non-calling by either side of a witness or the calling by the defence of a witness not called by prosecution has proved effectively to be a non-event. I have informed myself as to the relevant facts. I have read closely the reasons given by Mr Robberds for his decision not to call either KWJ or DBS. I have also listened closely to the arguments put to me by Mr Forrest. I was content not to make any further enquiries of Mr Robberds. I am satisfied that I should not make any comment about the position of KWJ or DBS, and that I should not grant a temporary stay or other remedy.

169. I turn back to the forensic decisions submissions. I have had experience of presiding over trials where attacks have been made on the investigating or prosecuting team or individuals, successfully and unsuccessfully. I can understand why a critical examination by GGI of the actions, attitude and competence of the IPAI could be a forensically sensible course. Such an examination is always potentially a basis for attacking a prosecution case. There can be several modes of making such a critical examination. One option might be to examine and criticise IPAI for not being open-minded. Another might be to examine and criticise IPAI for being inconsistent, and changing positions. Such a critical review is also readily susceptible to becoming counter-productive. Too much time spent by GGI making criticisms of IPAI might well be seen by a jury as indicating a concern that adequate answers cannot be provided to on the substantive issues. That concern could be aggravated if GGI opted to examine and criticise, with two conflicting lines of criticism such as I have noted, namely that IPAI is not open-minded, and that IPAI has been too ready to change its position. There are at least the seeds of those forensic dilemmas - whether to criticise IPAI and on what lines - evident in the material presented to me. I am unable to accept that such dilemmas are in any way special to this case. They arise quite often. How great the dilemmas appear in the minds of defence counsel may depend in part upon the level of competence and integrity of IPAI. Much more it may depend upon how objective defence counsel can be in making an assessment of those levels. I am unable to accept that the existence of those dilemmas in this case adds materially to the strength of the case for abuse of process.

172. I turn back to the submissions of Mr Heliotis referable to the ill-health of Mrs Dina Grollo. I have reviewed what was said in the three cases brought to my attention by Mr Heliotis. The decision is Hakim is reported, but those in Murphy and Warming are not. I accept the point of Mr Heliotis that it may be difficult to find authority from higher courts. In Hakim and Murphy, the trial judge was prepared to grant a permanent stay, where the ill health of the accused had been demonstrated along with other factors. In Warming, the trial judge said that he would have ordered a stay but for his course having to be governed by statutory provisions. He did not note details of the seriousness of the health problems of the accused before him. In Hakim, Lee J noted the accused's long history of heart disease, to which was added a by-pass operation with complications, and deterioration of memory, resulting in what Lee J described as a deplorable medical condition with continuing deterioration. Lee J concluded that it would be out of accord with common humanity to proceed, but noted that the case just fell within the class of case that could be regarded as an abuse of process. In declining to disturb the conclusion of Lee J, Kirby P noted that it would be only in a rare case that intervening illness or the physical or mental condition of the accused would bring a court to order a stay. No specific reference was made to the concern of the courts to maintain community confidence in the administration of justice. That confidence is likely to be reduced where, as has been seen on occasions to occur in relation to a handful of high profile accused, severe medical problems or prognoses relative to the accused have been identified, but have not subsequently been manifest. I believe that the Mr Murphy of the case cited to me, to whom was accorded a 70% probability of death within two years in 1992, is still alive. I take the stated need for the presence of high hurdles for accused persons by Lee J and Kirby P to be referable to considerations of that kind. Of course, I am not faced with an application referable to the state of health of an accused, but with the state of health of the wife of an accused. An accused must be in court. The position of the wife of an accused is that she can choose to attend or not to attend, depending upon her present disposition. I accept that, as much if not more than any person other than a participant in the trial, she has the right to be in court, so long as the jury is not distracted. Moreover, the memory of an accused and the effect of ill health upon that memory could be very important in a way not closely comparable in the case of his wife. Similar considerations apply to the giving of instructions to legal representatives. The factor of mutual interdependence is, in my view, far from enough to cover the gap. Perhaps in an extreme and different kind of case, illness of a wife might justify a stay, but I cannot envisage it. Like other judges, I sometimes have to make decisions that appear to reflect an unsympathetic attitude. However, I am concerned as to the position of Mrs Grollo, and I have no difficulty about taking steps to try to limit the potential for adverse consequences. I have asked my tipstaff to ensure that a place in the court is always available for Mrs Grollo. I will see to it that mid-morning and mid-afternoon breaks are taken so that no session will last for more than about an hour and a quarter.

175. I am unpersuaded by the material and submissions put before me that I should grant a permanent stay. I have taken into account the principles as laid down in the authorities, and particularly Rogers. I have taken into account the many factors put to me as going to unconscionability and fairness. I do have a concern as to there being a level of prejudice and hence unfairness due to delay and to the shifts in the position of the Prosecution. I repeat that I do not assess the prejudice as of a particularly high level. Those and other matters are also relevant to the question of how the confidence of the community in the administration of justice would be affected by proceeding or staying the proceeding. I also take account of certain findings made by Olney J. after he had had the opportunity of seeing each of the accused give evidence before him. He found that the accused had lied. He concluded that a substantial amount of tax, some millions of dollars, that should have been paid had not been paid. That conclusion was upheld by the Full Federal Court. The confidence of the community in the administration of justice may be diminished by the proceedings only coming on for trial so many years after they should have come on, and with so many shifts in position. In my assessment, however, it would be much more diminished if the prosecution was stayed.

178. I propose to add some concluding comments. I refer to the invitation to state a case for the Court of Appeal. I am not disposed to facilitate any fragmentation of the case. I am conscious of the authorities like Yates, and others cited in Oates at 365, which make it clear that fragmentation is to be avoided save in exceptional circumstances. I am unable to see that the circumstances here are exceptional. Under no circumstances would I consider stating a case unless there had first been before me full argument directed to the form of the questions, full argument as to the appropriate answers to the questions, with my having then delivered considered reasons. Only in that way, could I be satisfied that the Court of Appeal might have before it the material that might enable it to focus appropriately on the issues. In this case, I am further not disposed to state a case for two reasons that are somewhat subjective. The first is that I have now made three significant rulings. I envisage that I will be required to make more rulings, including as to matters of law. Fragmentation is rendered the more likely with an increase in the number of rulings that might be susceptible of challenge. The second is that stating a case is more likely to be appropriate where the issue is one as to which the ruling judge has a positive lack of certitude as to whether a ruling is correct. I do not have any current lack of certitude as to the correctness of my position. Having said that, I recognise that certitude is scarcely a good test, because it is essentially subjective, albeit with some limited collegial input.

181. I was invited to direct that the Prosecution be precluded from either or both of amending its case and calling certain evidence as to evidence given by the accused before Olney J. I am not satisfied that I should do so, at least on the bases that have to date been put to me.

184. I am not disposed to rule earlier than I think is necessary on issues of relevance. As to issues of mixed fact and law, I am not disposed to embark on an analysis earlier than I think is necessary of where precisely the role of judge and jury intersect. Having said that, I am conscious of the probability of my being called on to make many rulings and to provide detailed directions to the jury along the lines indicated in Maharaj, and relative to a significant number of areas of the law. In that regard I have noted what is in paragraph 19 of the GGI submissions of 31 May 2000, amended on 8 June 2000.

Partnership Deed for Joint Venture Agreement signed

Grollo Group selected for audit and start of pre-contact analysis

Attempts made to settle matters the subject of the tax audit

60 FCR 156

45 FCR 338

GGI proceedings taken to challenge validity of 9/92w

60 FCR 157

Minutes of a meeting GGI and ATO record a settlement at least in principle

GGI proceedings taken to prevent AFP talking to ANZ employees

60 FCR 160

Search warrant as to events the subject of 8/93cp authorised by Adams M

60 FCR 162

Telephone intercept warrant re events the subject of 8/93cp authorised by Heerey J

184 CLR 369

GGI proceedings taken to prevent AFP talking to St Martin employees

60 FCR 175

GGI proceedings taken against ATO seeking to enforce 10/92 settlement with ATO and against DPP + AFP alleging improper interference in tax procss

60 FCR 175

GGI proceedings taken to prevent AFP talking to KPMG employees

60 FCR 175

45 FCR 336 56 FCR 533

184 CLR 369 53 FCR 218

Jenkinson J scheduled to hear GGI proceedings to challenge 9/92w - mediation - dismissed by agreement

60 FCR 157

Start of hearing before Jenkinson J of GGI proceedings seeking review of issue of warrant by Brown M

45 FCR 336

Terms of settlement entered into as to dispute leading to 6/93(2)p

45 FCR 336

53 FCR 218

53 FCR 218

Start of hearing before unnamed magistrate of hearing re fingerprints

53 FCR 218

Start of hearing before Full Federal Court (Black CJ Northrop & Ryan JJ) of appeal re Jenkinson J order on 9/93p

56 FCR 553

Unnamed magistrate ordered that fingerprints be provided

53 FCR 218

Start of hearing of GGI proceedings seeking review by Einfeld J of fingerprints decision of unnamed magistrate

53 FCR 218

60 FCR 179

60 FCR 179

Special case stated, on GGI invitation, by Jenkinson J for Full Federal Court as to 6/93w

184 CLR 369

53 FCR 218

High Court ordered removal to it of special case on 8/94p

184 CLR 370

60 FCR 179

60 FCR 179

60 FCR 179

60 FCR 179

Reasons of Full Federal Court (Black CJ Northrop & Ryan JJ) on appeal from Jenkinson J order on 9/93p

56 FCR 553

[1995] HCA 26; 184 CLR 348

60 FCR 179

[1995] HCA 26; 184 CLR 348

Start of hearing by Full Federal Court (Sheppard, Foster Whitlam JJ) of appeals from Olney on 10/93p & 11/94p

73 FCR 452

Start of hearing by Full Federal Court (Beaumont Ryan Lindgren JJ) of review of authorising of 6/93w

60 FCR 149

Reasons of Full Federal Court in 10/95p for refusing relief as to 6/93w

60 FCR 149

60 FCR 179

Reasons of Full Federal Court on appeals against Olney J decisions in 10/93 & 11/94p

73 FCR 452 & FFC 26/3/97 unrep.

Recognition of striking out of appeals as to 10/93 & 11/94p

73 FCR 452 & FFC 26/3/97 unrep.

Order made for striking out of appeals as to 10/93 & 11/94p

73 FCR 452 & FFC 26/3/97 unrep.

Start of hearing before Teague J of challenge to statements of LPM

Reasons of Teague J on challenge to statements of LPM

(1993) 45 FCR 336

(1994) 53 FCR 218

(1995) 56 FCR 553

[1995] HCA 26; [1995] 184 CLR 348

(1995) 60 FCR 149

Grollo Nominees P/L v FCT, FCT v Grollo Nominees P/L

(unreported - available from Federal Cases on CD-ROM)

IPAI (Investigation Prosecution Agencies or Individuals)

[2000] VSCA 16

[1984] HCA 38; (1984) 154 CLR 563

(1998) 4 VR 533

(1938) 11 ALJ 314

[1963] HCA 51; (1963) 109 CLR 243

[1981] HCA 27; (1980-1981) 147 CLR 360

[1990] VicRp 42; (1990) VR 475

[1958] HCA 2; (1857-1957) 100 CLR 32

[1987] VicRp 80; (1987) VR 962

Cross on Evidence. Sixth Australian Edition 17170 ff

[1992] HCA 57; (1992) 177 CLR 292

(1984) 14 DLR 4th 92

(1989) 41 A Crim R 372

Hunter v Chief Constable of the West Midlands Police & Ors.

[1981] UKHL 13; (1982) AC 529

[1989] HCA 46; (1989) 63 ALJR 640

[1986] HCA 59; (1986) 161 CLR 423

[1973] VicRp 68; (1973) VR 693

(1995) 85 A Crim R 374

(1962) NZLR 334

[1998] FCA 775; (1998) 102 A Crim R 353

(1987) 18 FCR 101

Neil Pearson & Co Pty Ltd & Anor v Comptroller-General of Customs

(1995) 38 NSWLR 443

(1997) A Crim R 382

(1994) ACTR 1

[1974] HCA 19; (1974) 131 CLR 116

(1994) 181 CLR 251

(1988) 36 A Crim R 262

[1991] FCA 363; (1991) 30 FCR 578

(1936) 3 All ER 36

(1991) 57 A Crim R 425

[1998] HCA 1; (1998) 192 CLR 159

Deputy Commissioner of Taxation v Richard Walter P/L

[1995] HCA 23; (1994-1995) 183 CLR 168

[1983] HCA 42; (1983) 152 CLR 657

[1992] HCA 34; (1992) 174 CLR 509

[1989] HCA 68; (1989) 168 CLR 338

(1996) 90 A Crim R 80

FWL advises SB of ATO Audit Prosecutions Unit of allegation of fraud against GGI.

FWL formally refers fraud allegation to ATO Audit Prosecutions Unit.

DPP advises ATO to refer allegations to AFP for investigation. AFP investigation Operation Poker commences.

Search warrants executed on:RJG's residence; BGG's residence; BID's residence; the offices of KPMG; the offices of Mallesons Stephen Jaques; GGI offices, Preston. Claims of legal professional privilege made in respect of documents (11 boxes) seized from BGG's & RJG's residence, premises of KPMG, Mallesons, and GGI. By agreement disputed documents placed in the custody of the Supreme Court and then by Federal Court order transferred into the custody of the Registrar of the Federal Court.

Search warrant executed on offices of JRG and 9 boxes of documents seized.

GGI commences Federal Court proceedings VG 399 of 1992 challenging search warrants executed on BGG's & RJG's residence, premises of KPMG, Mallesons, and GGI.

Search warrant executed on St Martins Group, Sydney and Melbourne offices. GGI claimed 13 boxes of documents were subject to legal professional privilege or did not answer the terms of the warrant. By agreement the boxes were sealed and placed in the custody of the Federal Court until by order they were placed in the custody of the registrar of the Court.

GGI commences Federal Court proceedings VG 435 of 1992 challenging the search warrant executed on JRG premises. Restraining order obtained in relation to documents seized (later extended pending hearing and determination of the proceedings).

AFP commences approaching various potential witnesses who were employees or former employees of ANZ Bank, and potential witnesses from the St Martins Group.

GGI commences Federal Court proceedings VG 72 of 1993 challenging the warrants executed on the St Martins Group, and obtains restraining order in relation to the disputed documents.

AFP covert investigation Operation Retrieve commences in relation to allegation of a conspiracy between BGG, JF (a security consultant) and RH (a GGI employer) to bribe an AFP officer and to pervert the course of justice in respect of the Operation Poker tax fraud investigation.

GGI commences Federal Court proceedings VG 110 of 1993 restraining ANZ Bank related respondents from disclosing, and the AFP from seeking, Rialto related information said to be confidential. AFP gives undertakings to the Court. GGI later amends the application to include a challenge to the search warrant executed on the ANZ Bank premises.

AFP commences approaching potential witnesses associated or employed with KPMG.

GGI commences Federal Court proceedings VG 255 of 1993 restraining persons associated with the St Martins Group from disclosing Rialto related information said to be confidential. Application later amended to include AFP and AFP gives undertakings to the Court.

GGI commences Federal Court proceedings VG 264 & 265 against the CoT and the DPP alleging misconduct.

CoT undertakes not to issue assessments until the hearing and determinations of the proceedings.

GGI commences Federal Court proceedings VG 286 of 1993 restraining the partners and employees, past and present, of KPMG from disclosing Rialto information said to be confidential, and the AFP from seeking such information. Restraining order later amended.

c) * 321 Gillies Street, Thornbury (the residence of BGG's daughter);

GGI seeks restraining orders in Federal Court proceedings VG 342 of 1993 in relation to the search warrants executed. AFP gives undertakings in relation to the documents seized.

Agreement was reached between the GGI and the AFP pursuant to which:

a) proceedings VG 255 of 1993 (St Martins), VG 286 of 1993 (KPMG), VG 110 of 1993 (ANZ) were dismissed forthwith;

the GGI withdrew their challenge to the validity of the search warrants in proceedings VG 399 of 1992 (GGI, KPMG and Mallesons premises), VG 435 of 1992 (JRG premises) and VG 72 of 1993 (St Martins premises). Agreement reached that disputed documents would be mediated by independent Senior Counsel.

GGI commences proceedings VG 117 and 118 of 1993 in the High Court challenging the constitutional validity of parts of the Telecommunications (Interception) Act 1979.

Deane J remitted the proceedings to the Federal Court (VG 386 and 387 of 1993).

GGI's application in proceedings VG 342 challenging the validity of the search warrants heard by Jenkinson J.

Terms of Settlement entered into between the GGI, the CoT, and the AFP with the result that the applications and Commissioner's cross claim were dismissed.

In accordance with the Terms of Settlement 299 Notices of Assessments issued to the GGI.

Objections to those assessments were lodged and disallowed by the Commissioner. Applications for review of a sample of these disallowed objections were lodged with the AAT.

Jenkinson J delivers judgement in proceedings VG 342 of 1993 dismissing the application.

GGI appeals against Jenkinson J's decision and obtains an injunction against the AFP pending determination of the appeal.

The Full Federal Court hears the appeal in proceedings VG 438 of 1993.

The claims in relation to disputed documents in proceedings VG 399 of 1992, VG 435 of 1992 and VG 75 of 1993 were resolved after mediation, many documents released to the AFP and these proceedings dismissed.

Dessau M orders the compulsory fingerprinting of the accused BGG and RH pursuant to section 464M(3) of the Crimes Act 1958.

BGG and RH immediately seek a review of that decision in Federal Court proceedings VG 555 of 1993 and VG6 of 1994 respectively.

Hearing in the AAT before Deputy President of the AAT Olney J.

Magistrate commits all three defendants for trial in the County Court.

Jenkinson J orders a Special Case stated to the Full Federal Court in proceedings VG 386 of 1993 (constitutional challenge to the TI Act).

Einfeld J delivers judgement in VG 555 of 1995 and VG6 of 1994 (the fingerprinting application) in which he rules that the AFP were not entitled to make the applications and the Magistrate was not entitled to make the order. The Magistrate's order was quashed and set aside.

The High Court orders proceedings VG 386 of 1993, including the Special Case Stated, (the constitutional challenge to the TI Act) be removed into the High Court as proceedings M78 of 1994.

Olney J delivers Findings and Reasons for Decision.

Indictment filed. Arraignment of the accused before Judge Barnett in which the accused entered pleas of not guilty and the trial was listed to commence on 17/7/95, later moved back to 31/7/95.

GGI filed notices of appeal in relation to Olney J's decision.

AFP deliver Operation Poker brief of evidence to DPP.

CoT lodges cross-appeals in relation to Olney J's decision.

BID, BGG & RJG charged on summons with conspiracy to defraud the Commonwealth.

First mention (status hearing) in the Melbourne Magistrates Court. The Hand Up Brief was ordered to be served by 22/3/95 and the matter was adjourned to a committal mention on 24/595.

The Full Federal Court dismisses the appeal from the decision of Jenkinson J (dismissing challenge to validity of search warrants).

GGI seeks special leave to appeal to the High Court in proceedings M22 of 1995. Included in the GGI's summary of argument dated 30/5/95 is a submission that the search warrant is invalid because section 10 of the Crimes Act 1914 is unconstitutional.

Committal mention adjourned by consent to 21/6/95 as the corruption trial and High Court matter had been adjourned.

The cause removed in proceeding M78 of 1995 was heard by the Full High Court.

High Court refuses leave to appeal in proceedings M22 of 1995 (in relation to the validity of the search warrants), subject to the outcome of the High Court proceedings M78 of 1994 (in relation to the constitutional validity of the TI Act).

Committal mention further adjourned to 7/7/95 and mid September tentatively set aside for the commencement of the committal hearing. The prosecution advises the Court that evidence from the corruption matter, including evidence obtained under the telephone intercept warrants, would be added to the hand up brief as evidence of BGG's consciousness of guilt.

JF and RH commence Federal Court proceedings VG 612 and 613 of 1995 against the AFP and DPP in relation to the telephone intercept warrant issued by Heerey J (challenge to the validity of the telephone intercept warrant).

Mention before Judge Barnett at which the accused JF and RH applied for the adjournment of the trial because of the tax fraud proceedings and Federal Court proceedings VG 612/613. JF also applied on the basis of the High Court proceedings M78 of 1994.

Judge Barnett orders the trial be adjourned to 4/9/95 on the basis only of the High Court proceedings M78 of 1994.

The Magistrate orders prosecution to file particulars of the charges on 25/8/95. September 1995 vacated as the committal hearing date in view of the listing of the corruption trial at the same time, and the committal mention adjourned to 15/12/95.

Judge Barnett, on the application of the accused, orders the further adjournment of the corruption trial to early 1996 on the basis that the High Court constitutional challenge (M78 of 1995) and the Federal Court challenge in relation to the validity of the telephone intercept warrants (M612/613 and 747 of 1995) had not been resolved.

Other mentions and pre-trial hearings before Judge Barnett in corruption matter.

Particulars of Conspiracy filed and served, following further order by the magistrate on 1/9/95 that the informations would be struck out unless the particulars were provided on or before 9/9/95.

Black CJ directs that the hearing of proceedings VG 612/613 of 1995 (JF and RH) and later 747 of 1995 (BGG filing identical application on 1/9/95) be listed before the Full Federal Court on 9/10/95 (the challenge to the validity of the telephone intercept warrant).

The Full Bench of the High Court delivers its decision in proceedings M78 of 1994 upholding the constitutional validity of the Telecommunications (Interception) Act 1979.

Appeals and cross-appeals from the decision of Olney J heard before the Full Federal Court

The hearing before the Full Federal Court in proceeding VG 613/614 and 747 of 1995 (challenge to the validity of the telephone intercept warrant).

Reasons for Decision delivered by Full Federal Court.

Further mentions and pre-trial hearings before Judge Barnett

Full Federal Court delivers its judgment.on appeal from Olney J.

The corruption trial concludes with the jury returning verdicts of not guilty on all counts on the indictment against all three accused.

At committal mention, committal hearing set down for three months commencing 23/2/98, and special committal mention fixed for 19/11/98 for the return of subpoenas and other matters.

Arnold Bloch Leibler on behalf of the accused make representations to then DPP, Brian Martin QC, in respect of the further prosecution of the tax fraud matter.

DPP advises that prosecution in the tax fraud would proceed but that the allegations would be confined to concealment of profit or income up to 17/10/83, although this would include events after the date relevant to the charges.

Committal mention adjourned by consent to 3/12/97 to enable defence to consider DPP's decision to confine the fraud.

At the committal mention the committal hearing fixed for 23/2/98 was adjourned by consent to 1/6/98 to enable prosecution to amend the hand up brief in light of the decision to confine the fraud. A further committal mention date of 26/3/98 was fixed and the filing of the Magistrate's copy of the amended hand up brief was set for 16/3/98. The prosecution files further Particulars amended in light of the decision to confine the fraud.

Committal mention. Prosecution sought further time in which to file the amended hand up brief and the committal mention was adjourned to 27/4/98.

Two additional charges pursuant to section 29A(2) Crimes Act 1914 laid and served on BID.

Further committal mention at which prosecution indicted that the amendments to the hand up brief was progressing but that this would result in further change to the particulars.

Committal hearing before McLennan M of 55 sitting days duration. All defendants committed to the Supreme Court.