R v John Gordon BRADFIELD

District Court of NSW|2015-04-08|Before: Mr P

Solicitors: Director of Public Prosecutions Leigh Johnson Lawyers - Accused File Number(s): 2012/393998

Reasons for Decision Refusing an Application for Permanent Stay of Proceedings

Introduction

By way of Amended Notice of Motion, the accused John Gordon Bradfield makes application for a temporary or permanent stay of proceedings on an indictment dated 20 June 2014 containing a total of forty five counts, namely twenty two counts of Making False Statement With Intent To Obtain Money contrary to s 178BB of the Crimes Act, 1900 (NSW), twenty two counts of Make False Instrument contrary to s 300(1) of the Crimes Act and one count of Use False Instrument contrary to s 300(2) of the Crimes Act as those various provisions existed at the time of the alleged conduct. It is alleged that the offending occurred between 1 January 2005 and 1 December 2008.

The Notice of Motion

The amended notice of motion seeks an order that the proceedings on the Indictment be stayed until further order of the court, no order as to costs and any other order the court deems fit. I understand this to be an application for either a permanent or temporary stay of proceedings on the indictment. The amended notice of motion also seeks findings of fact that the delay in the police investigation has adversely affected the defendant's right to a fair trial and that the applicant is not medically fit to stand trial for the offences.

The allegations

Exhibit A on the application is a Fact Sheet tendered by the Crown. As I made clear on receiving that document on 8 April 2015, that document is to assist me in determining the nature of the allegations against the accused. The following does not purport to be any finding of fact against the accused, rather a summary of what is alleged against him.
At all material times the accused was a solicitor, the nature of his practice being mainly conveyancing, wills and probate and limited litigation. He was admitted to practice on 12 May 1967, but relevant to the matters before the Court between 4 April 2001 and 1 February 2006 he was in practice in partnership with Warwick Anderson under the firm name of Bradfield Anderson; after 1 February 2006 until he was suspended from practice on 8 December 2008 he was a sole practitioner, but the firm name remained Bradfield Anderson. On 5 March 2012 the applicant was found by the Administrative Decisions Tribunal to have engaged in professional misconduct and was consequently struck off the roll of practitioners.
The applicant in his capacity as a solicitor also managed a mortgage investment service, which was commenced in the 1980s and primarily involved the lending of moneys of existing clients. Paragraph 18 of the Fact Sheet sets out: "… Any investment moneys received were generally deposited directly into the applicant's National Australia Bank accounts and became part of a general pool of intermingled funds. These funds were either provided to Gordon Nesbitt for development, used as repayment of investor capital or for interest payment to investors. There is no accounting records relating to investment funds dealt with, only deposits into Mr Bradfield's bank accounts".
Paragraph 23 of the Fact Sheet sets out: "After 2003 many of the investors, who were elderly clients, were provided with limited documentation regarding their investments. Sometimes they were provided with a covering letter or receipt however the normal practise was for the investor to come into the law practice and collect their Epitomes of Mortgage. Mr Bradfield promised investors they would have a mortgage to protect their investment, however, he failed to inform them it wouldn't be registered nor did he explain the consequence of an unregistered mortgage in relation to protecting their investment. He also failed to inform his investors that their monies would be used either as repayment of investor capital or for the payment of interest".
The indictment is complicated in that a number of the counts are numbered but there are counts (a) and (b) pleaded within that count number. The offence numbers on the Fact Sheet do not correspond exactly with the indictment. I will endeavour to as best I can set out the particulars of the allegations against the accused applicant.
The accused developed a close friendship with Ivan Markich in the 1960s. In early 2005 the accused applicant approached Mr Markich to loan $200,000 to a Ms Legge. That person was a client of the accused applicant but did not require funds for a purchase of real estate. Mr Markich agreed to advance the money and the cheque was deposited to an account of the accused applicant. The loan was "rolled over". Count 1(b) appears to relate to the creation of a false Epitome of Mortgage relating to the loan of $200,000. Counts 2(a) and (b) are said to have been committed in June and July 2007. The accused applicant again approached Mr Markich to advance an amount of $230,000 to Mr Gordon Nesbitt, a developer. The money was advanced and paid into an account in the name of Jadlyn Pty Limited. Count 2(b) relates to the creation of the false Epitome of Mortgage document.
Counts 3 and 4 are allegations of make false instrument and use false instrument respectively in November of 2008. A total of $300,000 (three sums of $100,000) were obtained from Mr Markich allegedly in respect of an advance by way of mortgage to a Mr and Mrs Schutler for purchased of real estate at Tumbi Umbi. Mr Markich indicated that he would only do so if he had a first mortgage over the property as security. Mr Markich paid the money after receiving a letter from the applicant accused confirming a registered first mortgage. The counts relate to the creation and using of the mortgage document.
Ross and Dale Lithgow to whom counts 5(a) and 5(b) relate knew the applicant accused for about 25 years in a professional capacity. On 3 July 2008 Mr Lithgow was in the office of the applicant accused who inquired of him what he was going to do with money received from his (Lithgow's) late mother's estate. Mr Lithgow indicated that he was going to put it in a term deposit. The applicant accused told Mr that he had a friend who needed $200,000 for three months, that he would pay 11% interest and it would be secured by first mortgage. Mr Lithgow eventually agreed and $200,000 was made available. The funds were paid into an account in the name of the applicant accused. Count 5(a) relates to the false statement as to the mortgage and count 5(b) relates to the creation of the false Epitome of Mortgage.
Counts 6(a) and 6(b) and 7(a) and 7(b) relate to moneys obtained from Ms Wendy Sifton, who was a client of the applicant accused. At his request Ms Sifton agreed to advance $150,000 to Mr Nesbitt for bridging finance. The money was deposited into account in the name of the applicant accused. Count 6(a) relates to the statements made which on the Crown case were false and count 6(b) relates to the creation of the false Epitome of Mortgage. Counts 7(a) and 7(b) relate to similar conduct several months later when the applicant accused advised Ms Sifton to re-invest the $150,000 and advance a further $50,000. The further sum of $50,000 was advanced but paid into the account of the applicant accused.
Count 8 relates to a sum of $100,000 obtained from Mr David Loker, who was a client of the applicant accused. The applicant accused saw Mr Loker in his office one day in June 2008 and inquired of him as to whether he had any surplus funds after the sale of some real estate. Eventually Mr Loker agreed to advance $100,000 which was deposited into the account held by the applicant accused. The applicant accused told Mr Loker that the moneys would be secured by mortgage. This was not the case.
In respect of counts 9(a) and 9(b) the accused in 2008 spoke to a Mr and Mrs Rowe about investing money. They agreed to a short term investment of $200,000. In late September 2008 Mr Rowe went to the office of the applicant accused and was handed a signed Epitome of Mortgage that noted that Gordon Nestitt as mortgagor and security was property at Hawks Nest. No other encumbrances were shown and Mr Rowe believed he held a registered first mortgage. This was not the case. When paid over, the money was deposited into the account of the applicant accused. Around Christmas 2008 Mrs Rowe telephoned Bradfield Anderson solicitors but there was no answer. Mr Nesbitt confirmed he was the owner of the relevant property but he was not aware of the loan.
Count 10 relates to a false Epitome of Mortgage issued to Mrs Rosina Ciccarelli following her investing money through the firm of the applicant accused. The property offered as security was never registered in the name of Mrs Ciccarelli as first mortgage holder.
Counts 11(a) and 11(b) relate to false statements made and the creation of a false Epitome of Mortgage given to Markus Noglik, who had been a long standing client of the applicant accused. In late 2005 he agreed to invest $150,000. The money was paid at the office of the applicant accused through his office manager. The funds were deposited to the account of the applicant accused. Mr Noglik was told that the moneys would be used in respect of a purchase of a unit at Pymble. He was provided with a false Epitome of Mortgage in respect of the property.
Mr Robert Eyles is the victim in counts 12(a), 12(b) and 13. He had also been a client of the applicant accused. After Mr Eyles' wife died, the applicant accused raised the subject of investing funds offering him 10% interest with first mortgage as security. He eventually agreed to invest $100,000. Mr Eyles provided two cheques totalling $100,000, both of which were deposited into the account of the applicant accused. In late November 2008 Mr Eyles received an Epitome of Mortgage in the mail, listing Gordon Nesbitt as the Mortgagor and security on the loan was property at Hawks Nest. Count 13 relates to the creation of a false Epitome of Mortgage in respect of further moneys paid by Mr Eyles. The Fact Sheet notes (par 113) that the documents were generated without the knowledge of Mr Nesbitt.
Counts 14(a), 14(b), 15(a) and 15(b) relate to conduct towards Ms Patricia Hollywood. She was introduced to the accused in the early 1990s. In June 2006 the applicant accused told Ms Hollywood that Gordon Nesbitt was having difficulty with the Hawks Nest development and that he needed further funds. She agreed to lend $200,000 with an interest rate of 10% and security by first mortgage. The money was paid by cheque which was deposited into the account of the applicant accused. She received two Epitome of Mortgage documents in respect of Lots 5 and 6, 47 Tuloa Avenue, Hawks Nest. These were false. In October 2006 the applicant accused called upon Mrs Hollywood at her home to discuss borrowing further funds. She agreed to advance a further $150,000. The cheque was paid into the account of the applicant accused. In November 2006 she received an Epitome of Mortgage document. The Crown case is that the Epitome of Mortgage documents were false and the moneys were never advanced to Gordon Nesbitt for development.
In early 2006 Robert and Janice Furness made an appointment with the accused to update their will. During the appointment the applicant accused suggested an investment opportunity secured by first mortgage with a return of 10%. After inspecting the development at 30 Tuloa Avenue, Hawks Nest, Mr and Mrs Furness agreed to invest $100,000, paid by bank cheque and which was deposited to the account of the applicant accused. A receipt and Epitome of Mortgage were given to Mr and Mrs Furness. The Epitome of Mortgage documents were false and, again, the moneys were not advanced to Mr Nesbitt. About six months later the applicant accused approached Mr and Mrs Furness about investing further funds, to which they agreed. Again, Epitome of Mortgage documents were handed over. Again, they were false and moneys were not provided to Mr Nesbitt for the development. This is the conduct to which counts 16(a), 16(b), 17(a) and 17(b) relate.
Counts 18(a), 18(b), 19(a), 19(b), 20(a), 20(b), 21(a) and 21(b) relate to conduct towards James Manwaring during the period August 2007 and August 2008. The total amount of money involved was $850,000. James Manwaring met the applicant accused in 2006 after seeing an advertisement in the paper to arrange wills for himself and his sick mother. Mrs Manwaring Snr died on 1 August 2007. The applicant accused was responsible for the execution of her will and sale of her property. On settlement the applicant accused spoke to Mr Manwaring about an investment opportunity with Gordon Nesbitt, a developer in Hawks Nest. An interest rate of 10% was offered with security over lots 7,8 and 9 Tuola Avenue, Hawks Nest. Initially $300,000 was provided in late 2007, which was followed by sums of $200,000 in April 2008, $200,000 in May 2008 and $150,000 in June 2008. The moneys were paid into the account of the applicant accused. False Epitome of Mortgage documents were created and provided to Mr Manwaring. Counts 21(a) and 21(b) relate to matters where Mr Ole and Mrs Patricia Schluter were the nominated mortgagors. The Crown case is that the moneys were not advanced to either Mr Nesbitt or Mr and Mrs Schluter. The facts also recite that Mr Manwaring is seeking compensation in the sum of $850,000.
Mr Peter Harding is the alleged victim in counts 22(a) and 22(b). He had known the accused for about fifty-five years, going back their respective school days. There was also a professional relationship. It appears from the Fact Sheet that the accused would often include in conversation his keenness to obtain investment funds from those with funds to invest. In 2008 Mr Harding sold an investment property with the accused acting for him on the sale. On completion of the transaction he invested $200,000 on a promise of an excellent return and security by way of first mortgage over property at Hawks Nest. The cheque was deposited into the account in the name of the applicant accused. An Epitome of Mortgage was handed to Mr Harding at the time he handed over the cheque. The documents indicate that Mr and Mrs Harding were to receive the benefit of an interest rate of 11%. The Crown case is that the Epitome of Mortgage was false and moneys were never advanced to Mr Nesbitt, as he had completed 7/30 Tuloa Avenue, Hawks Nest some time earlier and did not require any further funds. Mr and Mrs Harding are also seeking compensation in the sum of $200,000.
Counts 23(a) and 23(b) relate to $150,000 advanced to the accused by Ms Elaine Hawkey. This is said to have occurred in February and March 2005. She became aware of the applicant accused through a friend and she made an appointment to see him. Ms Hawkey received from the applicant accused an outline of an investment proposal. She had sold some land and decided to invest $150,000. Mr and Mrs Hawkey were led to believe by the applicant accused that the moneys would be secured by first mortgage over property in Queensland. The cheque for $150,000 was deposited into the account of the applicant accused. An epitome of Mortgage was provided. Mr and Mrs Hawkey would withdraw and add moneys to their investments. Updated Epitome of Mortgage documents were provided. The Mortgagors were Ole and Patricia Schluter, who were not aware of the arrangements between the applicant accused and Mr and Mrs Hawkey. They too are seeking compensation, they having received some moneys from the Law Society Fidelity Fund.
Counts 24 and 25 relate to conduct by the applicant accused to Ms Elaine Hills, a person who he known for about sixty years. Mrs Hills attended the office of the applicant accused concerning matters with her late mother's estate. During the meeting the applicant accused mentioned that he had a friend, George Nesbitt, who was seeking short term finance for a project. The offer was initially declined. On 14 October 2008 the applicant accused spoke to Mrs Hills and indicated he wished to use $150,000 from the estate for a three month loan to George Nesbitt. Mrs Hills said she would think about it. Eventually on 30 October 2008 Mrs Hills withdrew $100,000 and deposited it to the account of Jadlyn Pty Limited. Count 24 on the indictment pleads that the representations included the fact that the loan would be secured by first mortgage. Going to count 25 on 1 December 2008, the applicant accused contacted Mrs Hills and said to her that he had transferred $50,000 of his own money to George Nesbitt for the purposes of the loan and further that he wanted her to urgently transfer a further $50,000. The transfer was made. No Epitome of Mortgage documents were ever received by Mrs Hills. She always took notes of the conversations. It is alleged the moneys were never advanced to George Nesbitt. Mrs Hills is also seeking compensation.
The two final counts, namely 26(a) and 26(b) relate to conduct that occurred between 15 May 2007 and 17 July 2008 towards Mrs Mabel Frankish. The accused had acted for Mrs Frankish in drafting Powers of Attorney, Wills and the sale of property bequeathed by an aunt. Around 17 July 2008 Mrs Frankish attended the office of the applicant accused who asked if he could have access to all of the proceeds of her aunt's property. She received the proceeds of the sale and then handed a cheque for $300,000 to the office manager of the practice. That cheque was deposited into the account of the applicant accused. The Epitome of Mortgage document is allegedly false. She too is out of pocket.
Essentially the accused over a number of years approached clients and persuaded them to part with considerable sums of money. The clients were promised significant interest rates and were almost invariably assured that the investments were secured by registered first mortgage. Clearly enough the clients, many of whom had known the accused over a long period of time trusted the accused. The allegations involve a significant breach of trust to a significant number of people. The clients were shown or given Epitome of Mortgage documents that were false. Essentially the Crown case is that the mortgagors as stated on the Epitome of Mortgage documents did not actually receive the money. The total sum involved is $4,029,990, which is very substantial amount. It could not be reasonably suggested that the allegations against the accused are other than very serious indeed.

Relevant Principles

Hunt J (as his Honour then was) (Carruthers & Grove JJ agreeing) said in R v Basha (1989) 39 A Crim R 337 at 338: "There can be no doubt that the District Court has power to ensure the fair trial of charges to be heard before it and, where necessary to do so to prevent an abuse of process, to stay proceedings on the indictment: Barton (1980) 147 CLR 75 at 95-6. The onus is upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would suffer during the course of such a trial is in the relevant sense unacceptable to the extent that the trial would be unfair: Barron v A-G (1987) 10 NSWLR 215 at 219."
Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23 at pp 33-34 said: "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. [References deleted] At the same time the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent say is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case…. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."
On the issue of "fairness", Deane J in Jago at p 57 said: "The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly to be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve and undesirably, but unavoidably, large content of essentially intuitive judgment."
One of the parties (my memory is that it was Mr Nagle on behalf of the accused - I do not have the benefit of a transcript) referred me to the decision of the New South Wales Court of Criminal Appeal in Calleija v Regina [2012] NSWCCA 37. Beazley JA (as her Honour then was) (RA Hulme, Garling JJ agreeing) said at [32]: "In Australia the common law has not recognised the existence of a right to a speedy trial, or even to a trial within a reasonable time based upon any concept of presumptive prejudice. However, there may be circumstances when delay is such that a permanent stay should be granted. When the question of delay is in issue, matters that need to be considered include the length of the delay, the reasons for it, the accused's responsibility for asserting his or her rights and any prejudice suffered by the accused. However, even when those factors are taken into account, 'a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will ... be very rare': per Mason CJ in Jago at 34. In Jago, Mason CJ observed at 33: 'Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.'"
Her Honour went on to say at [35]-[36]: "The category of case in which a stay may be granted is not closed. In Walton v Gardiner at 392-393, Mason CJ, Deane and Dawson JJ, in the context of an application for a stay of civil proceedings, observed that the court has jurisdiction to grant a stay where its processes and procedures are converted into instruments of injustice or unfairness contrary to their intended purpose of administering justice with fairness and impartiality. Their Honours stated that the categories of cases where a stay may be granted included proceedings which were doomed to failure and the employment of the court's processes in a manner which gave rise to unfairness. Their Honours rejected the notion that a permanent stay may only be ordered where an improper purpose was established or there was no possibility of a fair trial: see Williams v Spautz [1992] HCA 34; 174 CLR 509 at 519-520. [36] These principles were confirmed by the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237. The Court confirmed, at 250, [35], that there was 'no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered': see R v Glennon [1992] HCA 16; 173 CLR 592. Their Honours reconfirmed the need to consider, in the balance, the substantial public interest in having those charged with criminal offences brought to trial. As the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) had stated in Williams v Spautz, the confidence in the proper administration of justice requires that the court protect its ability to function as a court of law by ensuring the processes are used fairly by State and citizen alike. In Dupas, the Court, at 251, [37], characterised a permanent stay as 'tantamount to a continuing immunity from prosecution'. It followed that fairness to the accused alone was not the only relevant consideration when determining whether a trial should proceed. Rather, the Court pointed out that the decision whether to prosecute requires an evaluation of the particular circumstances of the case weighed in the context of a number of public interest considerations including public confidence in the administration of justice: see Walton v Gardiner at 395-396; Dupas at 251, [37]; Darwiche v R [2011] NSWCCA 62 at [172].
More recently, Leeming JA (Adams & Bellew JJ agreeing) in TS v R [2014] NSWCCA 174 said at [61]-[64]: [61] "In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ. [62] In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 in the following terms (at 720): '.... whether, in all of the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process'. [63] The categories of circumstance which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases; Barton per Wilson J at 475; Jago per Mason CJ at 582. [64] The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9]."
Mr Nagle of Counsel on behalf of the applicant accused in his oral submissions emphasised the decision of the High Court of Australia in Walton v Gardiner (1993) 177 CLR 378; 67 ALJR 485. That case involved disciplinary proceedings against medical practitioners where the delay was described as "appalling" and "inexcusable". The delay in that matter was significantly greater than in the matter presently under consideration. Further, unlike the matters in Walter v Gardiner the allegations in the matter presently under consideration have not been previously litigated. The proceedings that resulted in the applicant accused being struck of the Roll of Legal Practitioners could not, in my opinion, be said to amount to the matters presently under consideration being litigated. In Walton v Gardiner the majority (Mason CJ, Deane & Dawson JJ) said at 494 (of the ALJR report): "As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice."
I do not understand the decision in Walter v Gardiner to have in any way modified or changed or impacted upon the principles enunciated by the High Court in Jago, or impact on any of the later cases such as TS v R.

Delay

The applicant accused submits that the proceedings should be permanently stayed because of delay. Informing myself from the Court's file in the matter (there being no other material from either of the parties), it appears that the Court Attendance Notices were created by investigating police on 12 December 2012. The Court Attendance Notices nominated a first return date of 6 February 2013. The Court papers also reflect that that was indeed the first date on which the matters came before the Local Court. Mr Nagle of Counsel has appeared throughout for the applicant accused. The Chronology is as the Crown submits, namely: 2005 to December 2008 Alleged offending conduct September 2008 NSW Law Society informed 22 December 2008 NSW Law Society takes over the practice of the accused 30 April 2009 NSW Law Society informs the police 12 December 2012 Court Attendance Notices served March 2013 Accused struck off Roll of Practitioners 22 January 2014 Accused committed to stand trial 21 May 2014 Application for Stay lodged 20 June 2014 Trial date 2 February 2015 allocated 27 October 2014 Trial date vacated on application by accused 8 April 2015 Application for Stay of proceedings heard

As I understand the submissions advanced on behalf of the applicant accused, the issues going to the matter of delay are set out at pars xviii and xix at p 5 of the Outline of Submissions in Exhibit 1, the bound volume of material tendered on behalf of the applicant accused in the hearing before me on 8 April 2015.
Those paragraphs are as follows: "If Mr Bradfield had been charged in 2009 or for that matter 2010 as he was in 2013 then Mr Bradfield would have had an opportunity to subpoena the bank statements, taxation returns, financial accounting documents etc. of all the witnesses because it would have been assumed that legal aid would have been granted for the trial. In fact, it was refused for some time for a trial for Mr Bradfield and he had to appeal to get a grant of legal aid (see paragraph… [sic] of Mr Kelvins's affidavit) Because of the course of time many witness' memories would have diminished and the cross-examination of these witnesses and for that matter even the evidence of the chief of Crown Witnesses, if not led, would be tainted and or the veracity of witnesses limited. Mr Bradfield would be, it is submitted, denied a fair trial. This is not a criticism of the police who would have investigated this very difficult and complex matter, but delay in the investigation was, the defence asserts, because all the difficulty that the Crown and Defence now suffer came from the lack of early support to the police from the Law Society".
It is also submitted that the police "raided" the offices of the applicant accused and that, "Mr Bradfield was for some time denied access to actual documents seized from his office" (see par xxii at p 6 of the submissions). Implicit in that last statement is that the applicant accused now has access to those documents. The Fact Sheet from which my summary of the allegations against the accused is drawn makes numerous references to the Law Society's Fidelity Fund. There is no specific evidence before me, but it must be uncontroversial that that Fund would keep records. There would also be reports from trust account inspectors, auditors and the person assigned by the Law Society as the administrator of the practice that was conducted by the applicant accused. It is not suggested in the material before me that any of the records relating to the practice have been destroyed or are missing. The accused would be entitled to full and complete disclosure, including of all relevant documents. I cannot find in the material before me that there is any suggestion of the Crown not giving full and complete disclosure.
The accused was committed for trial on 22 January 2014. The notations within the court file indicate that the matter has been mentioned on nine occasions up until 8 April 2015 when the stay application was listed. Given the nature of the allegations and the obvious complexities of the matter the delay between the date of charging (12 December 2012) and the date of committal for trial cannot, in my opinion, said to be in any way excessive.
Counsel for the applicant accused maintains that the delay of four years before the accused was charged is excessive. However, this has to be seen in the context of what occurred. So far as I can determine from the Fact Sheet, on 5 November 2008 apparent irregularities in the trust account of Bradfield Anderson Solicitors were reported to the Law Society. On 18 December 2008 the practising certificate of the applicant accused was suspended. On 22 December 2008 the Supreme Court of New South Wales appointed a receiver to the practice.
Investigations could only have commenced at or about the time of the appointment of the receiver. Clearly, there would have been a considerable amount of material for investigators to consider. Further, the moneys to which the various counts on the indictment relate were not paid or processed through the trust account but rather, according the Fact Sheet, exhibit A, usually through a passbook account held in the name of the applicant accused. The facts set out that on 5 March 2012 the applicant accused was struck off the roll of practitioners. Clearly enough, the Law Society of New South Wales would also have been conducting its own enquiries about the applicant accused. Logic would dictate that the police would not have been called in to investigate until some after the "irregularities" in the trust account came to light.
The Crown Prosecutor sets out a brief chronology on the second page of the unnumbered submissions, which is extracted above. According to that chronology the Law Society informed the police on 30 April 2009. Further, the Crown submitted: "The length of the delay is not exceptional. The matter is extremely complicated. The initial investigation was by the Law Society. When the matter was referred to the police they had to conduct their own investigation because much of the material with the Law Society was privileged and not available to them and such material as was with them was not in the proper format for a criminal investigation. The accused asserts that material will not be available under subpoena because of the effluxion of time. There is no evidence of any attempt by the Accused to subpoena this material or of any failure of it to be supplied".
I have no note or memory of any submission being made on behalf of the applicant accused that any material has gone missing through effluxion of time. So far as I can determine, the Crown Prosecutor is correct that the applicant accused has put on no evidence of any attempt to obtain the material or any failure by the Law Society or any other person or body to produce material. It is not suggested in either evidence or submissions that any records held by the Law Society have been lost or destroyed. I agree with the submissions by the Crown Prosecutor in this regard.
In the circumstances of this case, given the complexities involved, the amount of moneys involved and the number and nature of the transactions, noting in particular that most of the moneys were processed through the personal passbook bank account of the applicant accused the records relating to which would not have been immediately available to trust account inspectors or other officials of or appointed by the Law Society or investigators when the matter was originally referred to them, the delay of four years between the irregularities being reported and charging is not so excessive as to justify the extraordinary remedy of a permanent stay of proceedings.
Accordingly, so far as the issue of delay per se is concerned, I am firmly of the opinion that the matters raised by the accused do not justify the court permanently or temporarily staying the proceedings.

UN Charter on Human Rights

At p 22 and continuing of the Outline of Submissions (MFI 1) and p 6 of the Outline of Submission in the bound volume Exhibit 1 (which appear to be the same submission) counsel for the applicant accused refers to and makes submission on an article by Edward Cole titled "Australian Practice in International Law 1996" published in [1997] AUYrBkIntLaw 9; 18 Australian Year Book of International Law 279.
It is no longer controversial that in exercising discretion courts can and should have regard to the international treaties to which Australia is a signatory. Spigelman CJ (Beazley JA - as her Honour then was - agreeing) said in Re Tracey [2011] NSWCA 43 at [27]-[33]: "In the case law to which I will refer, the word 'discretion' is not deployed in any technical common law sense. It extends to matters which may more accurately be described as the formulation of a judgment, as distinct from exercising a power to choose. Each of the matters pertinent to the present case, ie, the formulation of a state of satisfaction that it is 'appropriate' to vary or rescind an order and the determination of the 'adequacy' of the standard of care, fall within the concept of a 'discretion' as so understood. (Cf F Bennion 'Distinguishing Judgment and Discretion' [2000] Public Law 368; F Bennion 'Judgment and Discretion Revisited: Pedantry or Substance' [2005] Public Law 707. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19]-[21]; Dwyer v Calco Timbers Pty Limited [2008] HCA 13; (2008) 234 CLR 124 at [37]-[40]; Perpetual Trustee v Khoshaba [2006] NSWCA 41 at [34]-[40]; Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 at [64]-[70]). [28] By reason of its comprehensive treatment of the circumstances in which an international instrument can have an effect on Australian legal decision-making, and his Honour's subsequent elevation to the High Court, the most frequently cited judgment on these matters is that of Gummow J in Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 ('Magno'). His Honour states that an administrative decision-maker may have regard to an international agreement or obligation in 'exercising a discretion' under a municipal law (at [18]). [29] Although this particular question did not directly arise in Magno and, accordingly, was not expressly considered by the other member of the majority in that case, it is pertinent to note that the same proposition appears in an earlier joint judgment of the Full Court of the Federal Court, in which Gummow J participated (Gunaleela v Minister for Immigration and Ethnic Affairs [1987] FCA 277; (1987) 15 FCR 543 at [50]-[59]) and in another judgment of the Full Court where Gummow J wrote the principal judgment, with which the other members agreed (Heshmati v Minister for Immigration [1991] FCA 387; (1991) 31 FRC 123 at [21]-[22]). In each of these earlier cases, the Full Court of the Federal Court concluded that Australia's international obligations under the Convention Relating to the Status of Refugees (1951) was relevant to the exercise of discretions by decision-makers under the Migration Act 1958 (Cth). [30] A particularly apposite application of this line of authority was the acceptance by French J, when a judge of the Federal Court, that the CROC could be a relevant consideration for an administrative decision under the Migration Act 1958 (Cth). In Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875, his Honour said (at [59]): 'There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration "In all cases concerning children". However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions (Magno, at [18], Gummow J). Such considerations do not thereby become mandatory.' [31] French J went on to refer to, and apply, the principle that an international obligation is not a mandatory relevant consideration attracting judicial review for jurisdictional error. His Honour referred to the joint judgment of McHugh and Gummow JJ in Re Minister for Immigration Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]. [32] However, the issue that arises in the present case is not whether Balla DCJ was obliged to take into account provisions of the CROC as relevant considerations. The issue in the present case is whether her Honour failed to take into account a relevant consideration by rejecting any reliance on the CROC, as she did explicitly. The relevant jurisdictional error is her Honour's positive statement, in effect, that none of the provisions of the CROC were capable of constituting a relevant consideration. [33] Although the above line of authority is concerned with the exercise of discretions conferred upon the executive branch of government, there is authority that extends this principle to discretions conferred upon the judiciary. (See, eg, McKellar v Smith (1982) 2 NSWLR 950 at 962 [the exercise of a discretion to admit a confessional statement made by a child or young person into evidence pursuant to the Child Welfare Act 1939] and see generally the cases set out by Bell J in Tomasevic v Travaglini [2007] 17 VSC 337; (2007) 17 VR 100 at [73] fn 49; see also Wendy Lacey, 'Judicial Discretion and Human Rights: Expanding the Role of International Law in the Domestic Sphere' (2004) Melbourne Journal of International Law 4.) In my opinion, the principle referred to at [23] above does apply to the exercise of a judicial discretion."
However, the counsel's submissions do not refer to any particular treaty, but instead refer to a Statement made on behalf of the Australian delegation on the Fifty-Second Session of the Commission on Human Rights. In part that statement reads: "…In the absence of a binding human rights convention in this area, Australia's belief is that the rights of persons with disabilities are best assured internationally, for the time being, through the monitoring procedure under the standard rules…Of course this is not intended to derogate from other vital means of human rights protection, for example, through the activities of mainstream human rights treaty monitoring bodies. In this regard Australia encourages the firmer and clearer recognition of disability as a prohibited ground of discrimination under the major international human rights conventions, in line with similar recognition accorded by the Commission to health and HIV/AIDS status. Australia is pleased to note the specific provisions made for disability in Articles 2(1) and 23 of the Convention on the Rights of the Child and commends the work recently done by the Committee on Economic, Social and Cultural Rights and the CEDAW Committee (amongst others) in ensuring the property recognition of disability as a human rights issue within the meaning of ICECR, CEDAW and other major Human Rights Instruments."
Counsel for the applicant accused then goes on to extract from a speech by H.E. Mr Howard Bamsey to the Fifty-Second Session of the Commission on Human Rights. Relevantly, the last paragraph of the extract reads: "The primary safeguard for the protection of human rights is a democratic society. There are numerous structures which democratic societies may take, and Australia respects the differences that occur from country to country. But five elements are essential to safeguarding individual rights: ▪ Adherence to the rule of law; ▪ An independent judiciary; ▪ A free press; ▪ Freedom of speech and assembly; and ▪ The right to a fair trial".
No reasonable argument could be advanced to the contrary. The extracts from the speeches to the Fifty-Second Convention on Human Rights are very general, as those types of speeches almost invariably are. That is the nature of international diplomacy. Counsel for the applicant accused does not appear to make any specific submission as to which treaty or part thereof would be breached by the matters against the applicant accused continuing. In the absence of any such specific submission, I infer that and proceed on the basis that the suggestion or submission is that the applicant accused would not receive a fair trial because of the delay and his ill health. It is undoubted that the applicant accused has a number of significant health issues, which will be examined later in this decision. I have already dealt with the aspect of delay.
The applicant accused is unwell and perhaps infirm rather than disabled. As I have concluded, the delay in this matter is not exceptional given the issues and the amounts of money and persons involved. Ultimately, I am not persuaded that the continuation of the charges against the applicant accused would entail any breach of Australia's international treaty obligations. The applicant accused does not succeed on his application for a permanent or temporary stay of proceedings on the basis of any breach of international treaty obligations.

Health of the applicant accused

The bound volume of material, Exhibit 1, relied upon by the accused contains a considerable volume of medical reports, many of which are duplicated. There is not the slightest doubt that the applicant accused suffers from a number of medical conditions. However, as the Crown Prosecutor correctly submits (p 1 written submissions, MFI 2) the question is whether the accused is fit to stand trial. In the circumstances of this case the word "physically" should be read immediately before the word "fit". I do not understand that there is suggestion in any of the reports or submissions made by counsel for the applicant accused that the provisions of Part 2 of the Mental Health (Forensic Provisions) Act, 1990 (NSW) are enlivened.
The medical practitioners who have provided reports about the medical condition of the accused are (not in any particular order): Dr Margaret Sheridan, Consultant Psychiatrist, Dr Lewis-Enright, General Practitioner, Dr David Gray, Cardiologist, Dr Peter Frederiksen, Dermatologist and Dr Malcolm Ogborne, Consultant Physician in respiratory and sleep disorders. There is also a report from Associate Professor Shumack, dermatologist, who examined the accused for the Crown. Counsel for the accused submitted that all of the medical material should be examined as a whole as it clearly demonstrates a deterioration in the health of the applicant accused over the years since the investigation began.
At the hearing on 8 April 2015 the Crown Prosecutor submitted that the accused had failed or neglected to keep appointments with other medical practitioners arranged by the Crown, in particular a psychiatrist. Mr Nagle on behalf of the applicant accused submitted that the accused is willing to keep such appointments. It was submitted that the accused was in hospital. However, no further details were given in this regard.
In her report of 9 September 2013, Dr Sheridan says: "In the early weeks of my assessment of Mr Bradfield it became apparent that he was a very self-sacrificing individual, that in his striving to serve the needs of others he was not always paying sufficient attention to the day to day details and there is significant evidence that he may have been operating in a misinformation vacuum which could be considered to be accidental negligence".
With respect to Dr Sheridan in that part of the report extracted immediately above she has become an advocate for the applicant accused rather than an expert witness and in my opinion her impartiality must be seriously questioned. Her opinions will need to be considered in this light. None of her reports set out to what material, other than information from the applicant accused, she has had access. However, later in that same report Dr Sheridan opines: "It is very noticeable when a legal matter is portending for Mr Bradfield's concentration and attention in our sessions to be limited, his stress levels to increase, the rash on his legs to increase and there is no way Mr Bradfield could cope with a week in a witness box, let alone months of cross-examination. In my opinion not only would his mental capacity reduce but his general physical capacity would be impaired".
The matter has its obvious complexities. Any cross-examination of the applicant accused would be lengthy and involved and he would need to be taken to many of the documents. However, appropriate arrangements could be made, as the Crown appropriately submitted, by having shorter hearing days and the taking of regular breaks during the evidence. Dr Sheridan does not clearly opine that the applicant accused is not physically fit to stand his trial.
In a report of 28 April 2014 Dr Sheridan says that, "In September and October 2013 Mr Bradfield's mood deteriorated, I increased his medication with some benefit… His cognitive impairment has deteriorated since the time of his neuropsychological testing with Dr Gilandas. He relies heavily on his diary for small day to day events and his interests are very narrow, he frequently cannot see the bigger picture and is highly reactive to immediate events". She goes on to opine that the applicant accused is mentally unable to represent himself fairly in a court hearing and the added stress of this would cause a deterioration in his physical and mental health. On this last point, it is simply not suggested that the accused will represent himself at trial noting what I will be saying later in these reasons on the issue of the grant of legal aid.
Dr Lewis-Enright is the treating general practitioner. In a report of 16 September 2013 he opines: "It is my firm opinion that John Bradfield's reduced respiratory function will contribute significantly in an adverse manner to his ability to participate in the proposed trial and will also adversely affect his ability to communicate, prepare evidence, undertake cross-examinations - the basis for this opinion is that with reduced functional respiratory capacity Mr Bradfield will tire more easily and will not be able to concentrate on the subject matter as easily as if he were not so incapacitated".
In a report of 28 April 2014 Dr Lewis-Enright sets out that "Overall there has been a deterioration in John Bradfield's physical and mental health since my last report". The doctor in that same report goes on to opine that the applicant accused would require breaks for medical treatment.
However, as the Crown Prosecutor correctly submits in his written submissions, in a report of 6 March 2015 Dr Lewis-Enright does not opine that the applicant accused is physically unfit to stand trial. Dr Lewis-Enright in that report is of the firm opinion that the applicant accused could not travel to and from court by public transport. He goes on to opine that Mr Bradfield would require frequent breaks, a toilet break every 60-75 minutes and that court sitting times be reduced to 3.5 to 4 hours per day. A normal court sitting day is five hours. There is no reason why the needs of the accused could not be met by more frequent breaks and shorter sitting days. Given the nature of the allegations and the complexity, it seems to me that this matter would be appropriate to be dealt with by a judge alone, but this is a matter essentially for the accused. If the matter is heard with a jury there would need to be arrangements made for reserve jurors and the jurors would need to be advised at the very beginning of the trial that the sitting days would be shorter and that there will be frequent breaks.
Dr Peter Frederiksen is the applicant accused's treating dermatologist. In a report of 9 September 2013 he says: "This gentlemen [the accused] has a long history of dermatitis affecting his arms and more particularly his legs. I first saw him in December 2010 with a significant problem of lipodermatosclerosis eczema and cellulitis affecting his lower legs. Lipodermatosclerosis is a chronic long term problem caused by longstanding venous incompetence leading to fibrosis of the skin. The fibrosis reflects a situation of very poor circulation which relates to easy inflammation frequent infection and very slow and poor healing. The condition is in essence irreversible and likely to be progressive".
Further, Dr Frederiksen opines that, "As to his fitness for his committal proceedings and subsequent trial I think it is highly likely that the stress of these events will exacerbate his skin disease". A little later in the report the doctor sets out that the accused would require frequent breaks from his trial for care of his legs. A similar opinion is given in a report of 7 May 2014. I have already made observations that the court could accommodate breaks within the proceedings for any medical treatment.
In his most recent report of 25 February 2015 Dr Frederiksen says: "As I have previously commented, while it is impossible to directly measure the role of stress and disease, Mr Bradfield's skin disease does seen to be worse during periods of stress and as I would expect with the committal hearing/trial extending for weeks to months there is a very strong likelihood that his skin disease will deteriorate. The management of those exacerbations essentially consists of elevation and bed rest in conjunction with more intensive topical therapy and antibiotic therapy. I think it highly unlikely that he will manage six weeks of daily hearings without the need for a period of bed rest. As you well know he has recently had quite significant cardiovascular events but I will leave it up to the relevant specialist to comment on that. His skin condition is always itchy and at times painful. Chronic itch is very distracting making concentration difficult and it also interferes with sleep leading to sleep deprivation with its associated complications. He has struggled with his disease for quite some time and will continue to do so for some time yet. I think it unlikely that his skin disease let alone his many other health problems would allow him to participate in a trial of the length you predict."
As I have already observed a number of times, there is no reason why the court could not accommodate more frequent breaks in the proceedings. In long trials it is not uncommon for an accused, legal practitioner or juror to become ill such that the trial is adjourned for a day or two.
The Crown Prosecutor also correctly submits that Dr Frederiksen is the only one of the medical practitioners who have provided reports who is of the opinion that the accused is physically unfit to stand his trial. Even so, that opinion appears to me to be qualified to the extent that the accused would require bed rest. Further, as the Crown Prosecutor also correctly submits, there is also the opinion of Associate Professor Shumack of 24 July 2014 who examined the accused at the request of the Crown. His is the only medical report that refers to the Code of Conduct for Expert Witnesses.
Associate Professor Shumack says in his report that he believes that Mr Bradfield is, "indeed fit for trial and able to enter a plea. The lipodermatosclerosis along with the eczema/dermatitis involving both lower legs can certainly be treated and whilst it is possible it may flare with stress I believe that, on the balance of probabilities, that this is unlikely to occur". The Associate Professor goes on say that it would be appropriate to allow the applicant accused to sit in court with his legs elevated. It seems to me that that is something that could be easily accommodated.
Exhibit 1 also contains a number of reports by Dr Malcolm Ogborne, Consultant Physician in respiratory and sleep disorders. In a report of 19 September 2013 Dr Ogborne says: "Whilst the nature of his condition certainly falls within the severe range, he is not dependent on oxygen and remains mobile. I believe that as long as he takes his medications as prescribed, does not smoke again and remains under regular medical review his disease will remain fairly stable for some time. I do not feel that the committal proceedings or the trial are likely to have a directly negative impact on his lung disease. As stated these patients are more prone than patients without COPD, to infrequent infective illnesses and flare ups of their disease but I don't think that his upcoming trial poses a particular risk in this regard over and above that would be expected from his normal day to day activities".
Dr Ogborne goes on to recommend that the applicant accused use a lift. That is no issue in any of the court complexes in Sydney where the trial would be held. Further, Dr Ogborne sets out that the applicant accused is not dependent on oxygen and his belief was that that situation was unlikely to change in the twelve to twenty-four months from the date of the report.
There is a further report from Dr Ogborne dated 26 February 2015. The doctor notes that the applicant accused does not require long term oxygen therapy and goes on to say: "…(T)hat now that the accused has stopped smoking and is compliant with medications, his lung disease will remain relatively stable over the next 12-18 months. I have been asked to offer an opinion about his ability to attend court and fulfil the various obligations and requirements thereof. I have no doubt that this gentleman has significant disability due to his very severe chronic obstructive pulmonary disease. He gets short of breath on only mild exertion and cannot walk for more than a hundred yards or so on the flat before he has to stop and rest. He would undoubtedly find all of these duties exhausting and tiresome. There is no doubt that he will find getting to and from court and attending the various hearings exhausting. His ability to participate would certainly be improved with simple measures such as parking assistance, the use of lifts and shorter sessions. I do not believe that his attendance at court is likely to make his lung disease worse. However, it is up to the court to decide I think whether his significant disability to his lung disease disqualifies from appearing…"
There is, at and about the various reports of Dr Ogborne, material and test results from the Hornsby Respiratory Laboratory. In a report of 21 May 2014 Dr Obgborne opines that the accused would now meet the criteria for very severe COPD. That report further notes that the accused has an FEVI of 20% predicted for his age and height and a DLCO which is only 19% predicted for his age and height. I presume that last figure relates to lung capacity. There is no other document that I can find within the volume that is Exhibit 1 that otherwise attempts to interpret any of the results from the Hornsby Respiratory Laboratory. Therefore, the raw figures in the report have little meaning.
Essentially, as I understand the reports by Dr Ogborne he does not opine that the accused is physically unfit to stand his trial. Rather, he suggests shorter court sessions and, as the Crown submits, other palliative measures. As I have already observed, in the circumstances of this case, shorter sessions are something that could be very easily accommodated. Likewise, parking nearby the courts in Sydney should not be an issue and again, the court complexes where this matter is likely to be heard have lifts.
Dr David Gray is the accused's treating cardiologist. He too has provided a number of reports. Again, some of those reports are duplicated in the volume Exhibit 1. The most recent report is that of 2 March 2015. That report records that the accused was admitted to the Sydney Adventist Hospital from 9 October 2014 to 23 October 2014 with respiratory failure. He required intubation and respiratory support in the intensive care for a number of days. Dr Gray went on to say that, "there was no convincing evidence for any respiratory infection". Further, Dr Gray sets out that the most recent echocardiogram revealed an ejection fraction between 30% and 35% (normal being 50% to 70%). Then appears answers to specific questions posed by the accused's legal representatives. Those answers are: "1. Given that Mr Bradfield has significant COPD and cardiovascular disease, travelling daily by train to and from the District Court from his home at St Ives would be a difficult undertaking for him. 2. I do not feel sitting with his legs up on a chair for a prolonged period in court would have an adverse impact on his heart problems, provided he remains compliant with his cardiac medications. 3. When his cardiac and respiratory problems are stable, I believe he does have the capacity to give proper instructions and remain competent. However both his cardiac and respiratory reserve are limited and there would be the potential for him to decompensate reasonably quickly if he contracted an infection or neglected to take his medications. 4. It is difficult to comment on how his depression might affect his heart during the trial. Firstly, I do not know how significant his depression currently is. Secondly, whilst there is an association between depression and cardiovascular disease, the data relates primarily to worse outcomes in patients who have ischemic heart disease and severe depression. At this stage there is no evidence that Mr Bradfield has ischemic heart disease, rather his problem is that of a cardiomyopathy (heart muscle weakness). 5. If the presiding judge were to reduce the hearing time each day to, say a period of three hours, I believe this would be beneficial to Mr Bradfield, reducing both the physical and emotional stress on him. 6. With regard to the length of the trial, there is undoubtedly the potential for Mr Bradfield to be absent from the court room intermittently if he were to contract a chest infection or if other intercurrent health problems developed. 7. If Mr Bradfield was needed to be in the witness box for at least five to seven days, it would be advisable for him to have regular breaks as his capacity to cope with both the physical and mental stress of cross-examination would be limited. 8. I do not feel I can comment on Mr Bradfield's mental capacity to give proper instructions to his lawyers. I presume he is familiar with the details of the allegations against him but his ability to concentrate for long periods would, I suspect, be limited. 9. As indicated above, Mr Bradfield has moderately several cardiovascular problems. Many patients with his degree of cardiac disease can function entirely normally provided they take their medications and react appropriately when they notice any change in their health. In my opinion, the more severe medical problem that Mr Bradfield has relates to his significant lung disease and this would be the main contributor to his limited exercise capacity. For this reason, it strikes me as appropriate that any opinion be obtained from Mr Bradfield's respiratory physician as well."
Again, it is noted that the doctor recommends shorter sitting days and regular breaks. As I have already said a number of times already, those matters are easily accommodated. Ultimately however, Dr Gray does not opine that the accused is physically unfit to stand his trial.
Mr Nagle of counsel in the course of the brief oral submissions made on 8 April 2015 emphasised the need to consider the medical material as a whole and further it was submitted that a thorough examination of the material will reveal a worsening of the health of the accused over the years. The accused is undoubtedly unwell. I have carefully read and re-read all of the medical material contained within Exhibit 1. I agree that the reports do tend to demonstrate that the health of the accused is declining. However, taking the medical material as a whole, I am very firmly of the opinion that the accused is not so physically unfit that he is not able to stand his trial. The measures as recommended by the various treating medical practitioners can be easily accommodated by the court.
Further, Mr Nagle urged the court to carefully consider the material from the "SAN", which I take to mean to be a reference to the Adventist Hospital. There is a report of 30 January 2009 which relates to the attempted suicide by the accused on 22 December 2008 after taking an overdose of Panadeine Forte and Gastrostop. I note that 22 December 2008 was the date on which the Law Society of New South Wales took over the law practice of the accused. The report sets out the treatment given to the accused. I note that the accused has since been consulting Dr Sheridan, consulting psychiatrist. There is a volume of material following the report relating to various procedures and the accounts for those procedures. Given the material relates to late 2008 they do not appear to me to have any relevance to the issue that I am called upon to determine, particularly in light of the numerous and more recent reports mostly from medical specialists.
At p 10 (point 3(f) of the submissions contained within Exhibit 1, (the bound volume). Mr Nagle on behalf of the accused submits that, "There is also a problem of potential suicide during the trial (note he has tried it before) and if found guilty and to avoid a prison sentence, he may suicide". With respect to counsel, who I understand has appeared on a number of occasions pro bono, the submission that he may suicide to avoid a prison sentence is without foundation in the medical material. Further, it is an irresponsible submission for counsel to make.
Further, from the Sydney Adventist Hospital is a report of 14 October 2014 addressed to Dr A A Jameson of Hornsby. That report sets out material to which is referred in other reports to which I have already referred that the applicant accused was admitted with respiratory distress to the Intensive Care Unit. Further, the report states that the accused, "…required intubation for Type II hyperbaric respiratory failure the cause of which is not entirely clear. He has tested positive for influenza A and there may have been some infective exacerbation of his airways disease." However the report goes on to say that Mr Bradfield was successfully intubated and he was mobilised out of bed and about the ward.
Given the contents of the more recent reports, i.e. the reports of February and March 2015 it would seem that the applicant accused has essentially recovered, at least as best as he is able to do so, from the malady with which he was inflicted at the time he was admitted to an Intensive Care Unit.
The authorities make it abundantly clear that a permanent stay of proceedings is a remedy that should only be granted in extreme cases where - in the words of Mason CJ in Jago at (p 34) - there "is a fundamental defect which goes to the root of the trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences".
In the matter presently under consideration there can be no doubt that the applicant accused is seriously ill. However, considering the volume of medical material within Exhibit 1, I am very firmly of the opinion that the accused is not so ill that he is simply physically unfit to stand his trial. A trial judge is able to make a number of simple accommodations for the accused, such as shorter sitting days, regular breaks and permitting the accused to sit in the floor of the court with his legs elevated. Given what would be the length of the trial, the odd day or two here or there for the purpose of the accused receiving medical treatment would be of little consequence.
For these reasons I am not of the opinion that the medical condition and illness of the applicant accused warrants the extreme remedy of a permanent stay of proceedings. For the same reasons I am further of the opinion that those medical conditions and illnesses do not warrant a temporary stay of proceedings.

Legal Representation

Norbert Kelvin, solicitor of Leigh Johnson Lawyers who act for the accused in this matter swore an affidavit on 6 April 2015. That is contained within Exhibit 1, the bound volume of material tendered by the accused. A physical check of the Court file reveals that Mr Nagle appears (usually pro bono) at the various appearances before the Local Court. However, the same court file contains a notation that on the first occasion this matter was before the District Court before Blanch J, CDCJ on 14 February 2014 Mr Kelvin appeared. Mr Nagle appears to have been the representative at the vast majority of mentions following that date.
Mr Kelvin has then been instructed in the matter for the period of approximately fifteen months while the matter has been before the District Court. Further, it is obvious that Mr Kelvin was acting well before committal. Many of the medical reports within Exhibit 1 (the bound volume) are addressed to either Mr Kelvin or Leigh Johnson Lawyers. But one example is the report of Dr Margaret Sheridan, consultant psychiatrist of 13 October 2013, the date of committal for trial being 14 January 2014.
In these circumstances, it is curious indeed that par 39 of Mr Kelvin's affidavit reads as follows: "I am not in a position or qualified enough to do a long and involved fraud trial for Mr Bradfield. Mr Bradfield's fraud case is very difficult. It is a fraud case, inter alia, with serious allegations of deception and fraud, in that, it is alleged in the police brief that Mr Bradfield misled and gave false information to his clients to obtain money from them to invest and that he made false epitomes of mortgage. On Mr Bradfield's instructions, a number of these people who are witnesses for the Crown have had their loans repaid to them and their witness statements are untrue and should be tested in cross-examination".
I note also from the front cover of Exhibit 1 that "Norbert Kelvin Solicitor for and on behalf of Leigh Johnson Solicitors" is the contact name for the applicant in the Notice of Motion that I am considering. Mr Kelvin has been instructed in the matter for a considerable period of time. If the matter is too complex for him then the obvious course of action was for him to make this plain a lot earlier than he has and allow another practitioner with the appropriate expertise and experience to deal with the matter. The affidavit does not appear to set out for how long Mr Kelvin has been practicing as a solicitor or for that matter what experience he has in matters of this sort or criminal matters in general.
The following appears at pars (d) and (e) of Point 3 at p 10 of Mr Nagle's submissions within Exhibit 1: "I would expect this trial will take anything up to six to eight months with legal support. Without legal support and with well over nine thousand pages all the bankruptcy material and Law Society files, a judge will have a terrible time in assisting Mr Bradfield. If the Crown's proposal is accepted by the court and the defence that is a trial without a jury, but a judge alone, and the court will sit for about three hours every day, no Counsel will accept legal aid brief on an hourly basis for three hours per day in a difficult fraud case".
It is my understanding that if legal aid is granted for counsel in a trial such a grant is on the basis of a daily rather than an hourly fee.
Annexed to Mr Kelvin's affidavit are a number of documents relating to the accused's application for legal aid. The most recent of those documents appears to be the report of 4 June 2013 relating to an appeal against refusal of legal aid lodged on 16 May 2013. The report of 4 June 2013 at p 1 sets out the policy, namely: "7.5 An applicant receiving a Centrelink income support payment at the maximum rate satisfies the income test. All other Applicants satisfy the income test if their net assessable income is $318 or less. 7.11.3 With certain exceptions (see 7.11.4) and discretions (see 7.11.5) a grant of aid will not be made until the means of the applicant have been verified by the officer determining the application".
At p 2 of that report it is stated that, "the applicant contacted Legal Aid on 25 February 2013 stating that most of the information requested would be provided on 26 February 2013 and further that on 17 April 2013 Legal Aid not received any of the verification documents requested. Legal Aid refused legal aid on that date". The Report also notes (see bottom of p. 2): "(a) The applicant states that his son, Andrew Bradfield is not FAP. The appellant stays with his son. He refused to provide verification documents in relation to his son; (b) The applicant states that he also stays with his estranged wife Mrs Kerrie Lynne Bradfield, from time to time; (c) The appellant provided bank statements held in his and his wife's name dated between 24 February 2012 and 13 May 2013. Several sums of money (amounting to approximately $16,283) have been deposited into the appellant's account from an account in the name of Kerrie Bradfield during this period of time; (d) The appellant has failed to provide verification of his wife, Kerrie Bradfield's means. She has provided accommodation and large sums of money to the appellant over the last year; (e) The appellant states only that his wife is prepared to speak to Legal Aid on the phone".
The following appears at paragraphs (viii), (ix) and (x) at p. 19 of the Outline of Submission (MFI 1): "No legal aid was granted until later in the matter sent up the district court and well after that time. The poor financial state of affairs of Mr Bradfield, when legal aid was being denied and legal aid was not granted until…2014 and only after an appeal. Consequently, when the time was at the moment to issue subpoenas upon Crown witnesses, Mr Bradfield had no money to pay for competent solicitors and for them to issue important subpoenas upon various witnesses. He was bankrupt. It is common ground to the Crown and the defence that Mr Bradfield was under the charge of a Bankruptcy Trustee. No legal aid was made available until the learned Magistrate had sent Mr Bradfield to trial before a learned district court judge. That legal aid was first granted for a solicitor only and is now limited to Counsel until an actual trial date is obtained".
It is obvious from what is extracted in paragraph 91 of these reasons that legal aid has now been extended to the applicant accused. It is also implicit in what I have extracted that legal aid will extend to solicitor and counsel once a trial date is set. Returning to a point I made earlier, neither the submissions nor the affidavit set out the basis, i.e. daily or hourly, on which legal aid has been granted.
Reference is made in the submissions to the issuing of subpoenas to Crown witnesses. There should be full and complete disclosure by the Crown. There is nothing within the materials that I have seen that would suggest there is any issue relating to disclosure. Many of the documents sought by the accused would also be available, by subpoena if necessary, from the Law Society or the Trustee in Bankruptcy. There will be adequate time for the issue of any relevant subpoenas.
Legal aid has now been granted to the accused. I agree with the submissions by the Crown Prosecutor that it would appear that many of the issues relating to the grant of legal aid arise out of the failure of the accused to comply with requests for documents and information. In these circumstances, the issue relating to legal representation is entirely insufficient to justify a stay of proceedings on either a temporary or permanent basis.

Publicity

It is apparent from the submissions of the Crown that the accused also relies on publicity to ground his application for a permanent stay. According to the Crown Prosecutor's submissions, Mr Kelvin referred to statements by the investigator appointed by the Law Society. However, those same submissions go on to say that there is no evidence as to where these statements were made, whether they were reported and how widely they were disseminated.
Essentially it is a matter for the accused if and when this matter goes to trial whether he elects to be tried by judge alone. It seems to me that given the health of the accused and the issues involved, it would be an ideal matter to be dealt with by judge alone. If it is heard judge alone, the issue of publicity is of no consequence. However, even if the matter is heard with a jury, I am not of the opinion that on the material before the court, any publicity this matter has received would justify a permanent or even temporary stay of proceedings. Juries are regularly admonished to put any publicity out of their minds. There are numerous examples of high profile matters that have received considerably more publicity than this matter being successfully concluded by jury trial. Barr AJ (Macfarlan JA Campbell J agreeing) in R v Stanley [2013] NSWCCA 124 at par 36: "…The law assumes, and trial judges are required to assume, that jurors will follow the directions of law given and that they are followed: Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [31]; R v Burrell [2004] NSWCCA 336." General and concluding remarks
A good deal of the material contained within the Outline of Submission, MFI 1, relates to the strength of otherwise of the case against the accused. However, I do not understand the submissions to extend to a submission that the Crown case is such that it is inevitably doomed to failure and accordingly, a stay of proceedings should be granted. Even if there was such a submission, I am simply not in a position to make any accurate assessment as to the precise strengths and weaknesses of the prosecution case against the applicant accused. I made it plain to both counsel on 8 April 2015 when the matter was before me in Sydney that I was receiving the Fact Sheet, Exhibit A to inform me of the allegations. The matters raised by the accused appear to be matters for the tribunal of fact in a trial proper.
It cannot be doubted that the accused is seriously ill. I have dealt with in considerable detail the various health issues and the reports from the various treating medical practitioners. The accused is unwell, but on the whole of the medical material is most certainly not so unwell that he should not stand his trial. The medical issues can be easily accommodated by shorter sitting days and regular breaks.
There has been a delay, but in the circumstances of this case and what was involved, particularly noting that most of the moneys were processed through a personal bank account of the accused, the delay is not particularly excessive and for reasons already given, certainly insufficient in my opinion to justify the extreme remedy of a stay of proceedings.
Any difficulty with legal aid appears to be largely of the accused's own making because of his failure to provide relevant documentation to the Legal Aid Commission or the Review Panel of that Commission. Further, there is nothing of a recent nature indicating his status with legal aid.
Likewise, any issue relating to publicity for reasons already given is insufficient to justify the extreme remedy sought by the accused.
As indicated at an early stage of these reasons, the amended notice of motion also seeks findings of fact that the delay in the police investigation has adversely affected the defendant's right to a fair trial and that the applicant is not medically fit to stand trial for the offences. It seems to me that such findings would be in the nature of declaratory relief, which this court does not have jurisdiction to grant. I have however, dealt with those issues on the application for the stay of proceedings on the Indictment.
The rights and interests of the accused cannot be examined in isolation without also considering the expectations by the community that persons charged with serious criminal offences will be brought to trial. In the matter presently under consideration it is alleged that the accused engaged in systematic and repeated dishonesty towards clients who trusted him and in many instances were well known to him. It is highly relevant to the issue that I am determining that the accused was at all relevant times a practicing solicitor. The alleged breaches of trust are numerous and very serious indeed. On the allegations before the court, those breaches of trust included but were not limited to the creation of false Epitome of Mortgage documents. The clients of the accused, on the allegations before the court, entrusted the accused with very considerable sums of money which was lost, the total alleged amount being in excess of $4,000,000. There is a very real public interest in these matters going to trial.

Formal Orders 1. The application for permanent stay of proceedings is refused; 2. The application for temporary stay of proceedings is refused; and 3. No order as to costs.

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: 01 May 2015

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