R v Issakidis

Stay Judgment

1. It is necessary to describe some aspects of the Stay Judgment in further detail.
2. Mr Issakidis had sought a stay on two separate bases. The first was that he was indigent, charged with a serious offence and "through no fault of his own was unable to obtain legal representation" (Dietrich v R (1992) 177 CLR 292; (1992) HCA 57; "Dietrich"; Stay Judgment at [3]).
3. The second basis was that it would be unfair to make him face a further trial when the first trial was aborted through the fault of the prosecution and that had the consequence that he was unable to afford private legal representation because his funds were exhausted. This was referred to as the "Mosely basis" as it derives support from the decision of the Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735 ("Mosely").
4. In the Stay Judgment I rejected so much of the application as rested upon Dietrich but upheld the Mosely basis. I ordered the proceedings be stayed, unless and until an amount was paid to Mr Issakidis or at his direction that represented his reasonable costs thrown away at the first trial.
5. In the Stay Judgment I made the following findings of relevance. First, I found that the first trial was aborted due to the fault of the prosecution (Stay Judgment at [20] to [38] and [58]).
6. Second, I found that an assessment on an indemnity basis of Mr Issakidis' costs thrown away at the first trial was $734,000 (Stay Judgment at [41]) and that the likely cost of a further trial was $780,000 (Stay Judgment at [45]).
7. Third, I found the assets of Mr Issakidis that had been frozen in proceedings under the Proceeds of Crime Act 2002 (Cth) were not available to be used to fund his defence (Stay Judgment at [29]).
8. Fourth, I found that Mr Issakidis' own funds were exhausted by the first trial and he did not have the financial capacity to retain his own legal representation for a further trial (Stay Judgment at [55] and [59]).
9. Fifth, I was not satisfied that Mr Issakidis had made proper efforts to obtain legal aid (Stay Judgment at [68]).
10. This last finding was fatal to so much of Mr Issakidis' application that sought a stay based on Dietrich (Stay Judgment at [69]). However, the other findings were sufficient to satisfy the principle in Mosely and the cases that followed it, which was expressed in the Stay Judgment (at [71]) as follows: "… a Court exercising criminal jurisdiction with no relevant power to award costs against the prosecution can nevertheless order a temporary stay of proceedings "effective until the Crown has paid the reasonable costs an accused has thrown away in previous proceedings, in circumstances where it has been demonstrated that an injustice or unfairness would result from the Court's processes being used to put an accused on trial a second or third time without some redress" (R v Selim [2007] NSWSC 154 at [51] per Fullerton J; "Selim"). In Petroulias v The Queen [2007] NSWCCA 154 at [23] Ipp JA held that "practically speaking, unfairness [of this kind] cannot be established without proof or fault on the part of the prosecution". Proof of fault on the part of the prosecution is not necessary to obtain a stay in accordance with Dietrich."
11. In the Stay Judgment, I calculated the figure of $624,000 by applying a 15 per cent discount to the actual costs incurred by Mr Issakidis that were thrown away by reason of the abortion of the first trial. I determined that figure by applying that discount as representing the difference between indemnity costs and reasonable costs (Stay Judgment at [89]).

Submissions

1. Mr Issakidis' submissions accepted that in and of itself a third or even a fourth trial is not necessarily unfair. However, the written submissions contend that, where the first trial was aborted due to the fault of the prosecution and where Mr Issakidis' funds were exhausted during the course of the third trial, it would "stretch the community's sense of fair play beyond breaking point" to not order a further stay. It was submitted that the unfairness visited upon Mr Issakidis by the fault of the prosecution which led the first trial being aborted continued.
2. The submissions of the CDPP maintained the position advanced before me during argument on the motion the subject of the Stay Judgment, namely that Mosely and the line of authority that it followed in this State and other States is wrong (Stay Judgment at [74]).
3. Leaving that aside, the CDPP also submitted that, as payment of the costs thrown away by the first trial had now been made, the relevant unfairness identified in the Stay Judgment had been addressed. The CDPP submitted that, as a consequence, there is no ongoing unfairness to the accused from its alleged misconduct in causing the first trial to be aborted and the fact that he is to undertake a fourth trial would not now be relevantly unfair.
4. In his written submissions in reply, Mr Issakidis contended that this argument was misconceived. He submitted that unfairness arose from the fact that, if the trial proceeded, the accused would be deprived of his chosen legal representatives who were intimately familiar with the Crown case and his defence. It was also submitted that there was ongoing unfairness arising from the fact that the email chain that was not disclosed to the accused, which was part of the reason for the first trial being aborted, could not now be put to either John Dickson or Anthony Dickson in cross-examination as it would have been had it been disclosed prior to the first trial and that trial to proceed to completion (Stay Judgment at [21] to [26]). It was said there was a lost opportunity of tactical significance from that failure to disclose.

Conclusion

1. Leaving aside the submission concerning the lost opportunity to cross-examine both Anthony Dickson and John Dickson on the non-disclosed email chain referred in the Stay Judgment at [21ff], one of the premises of the stay application is that Mr Issakidis' ability to fund his own defence is now exhausted. This premise was not the subject of evidence on the application but it is consistent with the findings made in the Stay Judgment at [59] as well as the fact that two further trials have occurred in the meantime in circumstances where it is not suggested that his legal representatives were not being paid (at least initially). Accordingly, I will proceed on the basis of that premise.
2. Nevertheless, Mr Issakidis' submissions concerning his inability to fund his defence and the conduct of the prosecution at the first trial failed to address how the premise that he can now no longer afford the legal representatives of his choosing is a result of the fault of the prosecution that led to the first trial being aborted.
3. The orders sought in the notice of motion is, as I have stated, that the "further trial of the applicant be stayed pending further payment of the costs thrown away from the first trial". The form of that order recognises that the relevant form of unfairness that a Mosely type stay seeks to address is the unfairness in forcing a person to a further trial in circumstances where they cannot afford the legal representation of their choosing as a result of the prosecution's misconduct at an earlier time. Consistent with that, Mr Issakidis' written submissions in reply stated the position as follows: "Hence the approach adopted by the Court in R v Mosely is simply a means of seeking to ensure that an unfair trial will not ensue due to the accused having exhausted his funds on a trial which aborted due to the wrongful actions of the prosecution."
4. The difficulty for Mr Issakidis is that this form of unfairness was addressed by the CDPP's payment of $624,000. Accepting that Mr Issakidis cannot now afford legal representation, that is not a consequence of any "wrongful actions of the prosecution." Instead, it is only a consequence of the fact that the second and third trials were not completed, both of which are not said to be, and not found to be, the fault of the prosecution.
5. This position is best illustrated by returning to the form of order that is sought. If that order were made it would simply invite attention to what further payment was required. Given that the previous order reflected the reasonable costs thrown away at the first trial, one can only query what further payment would have to be made.
6. In his written submissions, Senior Counsel for Mr Issakidis also referred to the following passage from the judgment of Bleby J in R v Ulman-Naruniec (2003) 143 A Crim R 531; [2003] SASC 437 ("Ulman-Naruniec") at [49]: "49 In respect of this appeal we are not concerned with the principles which might govern a permanent stay, but merely with a stay pending redress of what the Court has found to be an injustice caused by an unnecessary failure to disclose. It is the unfairness of the third trial that is to be cured, in part, by the payment of the costs of the two trials which can be said to have miscarried. In my opinion the entitlement is not diminished by virtue of the fact that those trials failed for reasons not connected with the non-disclosure. Had the non-disclosure been revealed before either of the previous trials, the accused would have been entitled to a stay of proceedings until full disclosure was made. It is because that non-disclosure was not revealed that the trials went ahead. I would dismiss the DPP's appeal against the order staying proceedings until the Crown pays or undertakes to pay the reasonable costs of the accused of the two earlier trials." (emphasis added)
7. In Ulman-Naruniec there had been two earlier trials. The first ended with a hung jury, the second with a conviction that was overturned on appeal. Before the jury was empanelled for a third trial the accused sought a permanent stay for prosecutorial non-disclosure. In stating the above, Bleby J noted there was no doubt that the first and second trials proceeded on the basis of an inexcusable failure of the DPP to provide the accused material fundamental to her defence (Ulman-Naruniec at [3]).
8. In Ulman-Naruniec the Court upheld the trial judge's decision to grant a Mosely type stay. The critical part of the quote extracted above is the reference to a "stay pending redress of what the Court has found to be an injustice caused by an unnecessary failure to disclose." In Ulman-Naruniec the relevant injustice was the incurring of the cost of two trials by reason of an unnecessary failure to disclose before either of them. In this case the relevant unfairness arose from the incurring of costs in conducting one trial, namely the first trial, because of a failure to disclose material before that trial. It follows that redress of the relevant injustice that was identified in the Stay Judgment was achieved by payment of the accused's reasonable costs thrown away at the first trial.
9. To similar effect, in Ulman-Naruniec at [232] to [233], Sulan J agreed with Bleby J on this point and stated as follows (at [232] to [233]): "In my view, the trial judge was justified in concluding that the earlier two trials had been flawed and had been conducted when the DPP was in flagrant breach of its duty of disclosure. Although neither trials had been aborted for this reason, it is clear that the failure of the DPP to make disclosure resulted in those trials being flawed. The conduct of the DPP had created an unfairness to the accused in the present trial. The trial judge did not seek to impose a costs order in respect of the first two trials. What he sought to do was to alleviate the unfairness to the accused of having to face yet a third trial. The trial judge correctly considered it would be unfair to the accused to have to proceed with a third trial without being compensated for the costs she had incurred in the first two trials. The trial judge, therefore, ordered a stay until costs of the earlier trials had been paid. The order was related to the trial before him and was not an order for costs in respect of the earlier two trials.
10. Again, in this case, unlike Ulman-Naruniec, the conduct of the prosecution only caused one trial to miscarry, not two and the accused has already been compensated for the unfairness that was thereby occasioned.
11. Subject to the question raised about the cross-examination of Mr Anthony Dickson and Mr John Dickson in respect of the email chains to which I referred to earlier, what remains is that the accused now faces a fourth trial and he appears to be unable to fund his own defence. In the absence of a basis for a Dietrich type stay being made out, those circumstances in and of themselves are not sufficient to warrant any stay.
12. In relation to the lost tactical advantage in cross-examining Anthony Dickson and John Dickson on the email chain, there is a significant difference between reaching a conclusion that a trial that is in process has been rendered unfair because disclosure of documents was not made prior to the trial commencing and a conclusion that there is no real prospect of a fair trial being had in the future.
13. In the first trial, John Dickson, who is Anthony Dickson's brother, gave a great deal of evidence, a small part of which directly implicated Mr Issakidis in the money laundering conspiracy. In particular he recounted a conversation in which all three participants appeared to be aware that Anthony Dickson was using a pseudonym. That evidence, if accepted, was capable of being significantly damaging to Mr Issakidis. The email chain to which I have referred earlier appeared to place John Dickson more directly at the heart of the conspiracy and assisting his brother than was suggested by John Dickson in his evidence. It was material capable of destroying his credibility, at least so far as he directly implicated Mr Issakidis.
14. After the first trial John Dickson passed away. In the second and third trials his evidence was approached by limiting the tender of the evidence that he gave at the first trial to only his narrative of his dealings with his brother in setting up accounts and laundering money, all of which was extensively corroborated by documents. The evidence that he gave a the first trial that directly implicated Mr Issakidis was not re-tendered at the third trial. Further, Senior Counsel for Mr Issakidis was able to make extensive submissions to the effect that John Dickson and not Mr Issakidis was in fact the true co-conspirator with Anthony Dickson and was able to deploy the email chain in support of that submission.
15. Whether or not that put Mr Issakidis in a superior position to that which would have eventuated at the first trial had disclosure or the email chain been made is difficult to assess. However, in my view it certainly does not support a conclusion that there is no real prospect of Mr Issakidis obtaining a fair trial in the absence of his being able to cross-examine John Dickson on that email chain.
16. As for the ability to cross-examine Anthony Dickson on the email chain, it is difficult to know whether that course would have been taken up at the first trial. The manner in which the first trial was unfolding was that Mr Issakidis appeared to be walking a fine line of denying any involvement in the alleged conspiracy but not directly suggesting that Anthony Dickson was the architect of a significant fraud on the Commonwealth.
17. At the third trial that position changed. By then Mr Dickson was convicted and incarcerated. The thrust of Mr Issakidis' defence was that, to the extent fraud and money laundering had occurred, Anthony Dickson was the principal and architect of the fraud and that he used others but did not use Mr Issakidis.
18. Again, whether or not that circumstance was to the advantage of Mr Issakidis compared to the first trial is not clear. Nevertheless I am not in a position to form a positive conclusion that the position that Mr Issakidis now faces, namely that Mr Anthony Dickson is not his co-accused and he will not have the opportunity to cross-examine him on those emails, means that there is a realistic prospect that he will not receive a fair trial.
19. It follows that the application for a stay will be dismissed. Further, the matter is now to be dealt with by another judge of the Court. To that end the only other order I will make is to standover the proceedings before Harrison J on Wednesday, 14 September 2016 at 9.30am. The attendance of the accused on that day is not required. [His Honour stated that Harrison J is aware that the legal representative of the accused may appear by telephone.]
20. Accordingly, the Court orders: 1. The accused's notice of motion filed 7 June 2016 be dismissed. 2. The proceedings stand over before Harrison J on 14 September 2016 at 9.30am.

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: 14 September 2016