R v Macdonald

R v Macdonald - [2016] NSWSC 486 - NSWSC 2016 case summary — Zoe

[9]

The criminal proceedings

On 20 November 2014 Mr Macdonald was served (by service on his solicitor, Nicholas Dan) with a Court Attendance Notice in relation to the charge the subject of these proceedings.
After he received the Court Attendance Notice on 20 November 2014, Mr Macdonald instructed Mr Dan to seek a grant of legal assistance from the NSW Justice Department. A letter to that effect dated 12 December 2014 was sent by Mr Dan. This application was, according to Mr Macdonald, based on what he understood to be the government guidelines for ex gratia legal assistance. The correspondence explained that his decision to grant the Exploration Licence to Doyles Creek Mining Pty Ltd (the conduct that is the subject of the charges) was made within his ministerial discretion and was determined on the written recommendation of the Department. He further advised that he did not have sufficient funds to defend the matter.
On 15 December 2014 the solicitor for the DPP wrote to Mr Dan and enclosed 60 volumes of material which included: (a) 23 volumes containing statements, records of interview and transcript and an index for this material. (b) 27 volumes of material tendered during the public hearing of Operation Acacia and an index for this material. (c) 9 volumes containing exhibits A-T tendered during the public hearing of Operation Acacia and an index for this material. (d) 1 volume of material containing the Department of Primary Industries documents for Watermark and Caroona.
The DPP also provided to Mr Dan a spread sheet which listed documents and electronic material seized by ICAC as part of Operation Acacia and advised that if he wished to view the material in the attached spread sheet that he was to contact Paul Grainger, Senior Investigator, ICAC, whose phone number was provided.
On 11 February 2015 Brad Hazzard, the then Attorney-General, responded to Mr Macdonald's request for public funding for his legal defence, in part in the following terms: "on balance, it was not considered that assistance should be granted to fund the Defence of the proceedings which arose out of the ICAC findings following the finding that Mr MacDonald had acted corruptly"
On 25 February 2015 an ex officio indictment for two offences of misconduct in public office was filed in the District Court at Sydney and served on Mr Macdonald by service on Mr Dan. On 13 March 2015 Bathurst CJ granted an exemption pursuant to s 128(2) of the Criminal Procedure Act 1986 (NSW) to present the indictment in this Court.
In March 2015 Ms Gylseth and her daughter (who has an intellectual disability) went to Hong Kong to celebrate the daughter's birthday. Mr Macdonald subsequently explained the expenditure (which he said was funded by Ms Gylseth's own superannuation) to the Legal Aid Commission in the following terms: "Ms Gylseth chose to take her daughter to Hong Kong for a week because she loves everything Asian and it was her birthday. Ms Gylseth needed a holiday too."
Mr Macdonald was adamant that he could not "tell [his] wife what to do with her superannuation funds".
On about 19 March 2015 Mr Macdonald received $20,000 by way of settlement of defamation proceedings which he had brought. He could not say, in cross-examination on 20 April 2016, into which or whose (between him and his wife) account the money had been banked because: "My wife does all our banking".
On 8 April 2015 Mr Dan wrote to the executive government again to reiterate Mr Macdonald's request for funding for legal assistance in his trial.
On 28 April 2015 the solicitor for the DPP wrote to Mr Dan enclosing transcripts of private compulsory examinations conducted with 46 witnesses called by ICAC during Operation Acacia and 6 volumes of documents tendered as exhibits or marked for identification during the private hearings.
On 29 April 2015 Mr Dan again wrote to the executive government to reiterate Mr Macdonald's request for funding for legal assistance in his trial.
On 6 May 2015 a copy of the Crown Case Statement and a three volume "Document Chronology' was served on Mr Dan. The documents referred to in the Crown Case Statement were contained in the Document Chronology.

[10]

The arraignment of Mr Macdonald on 8 May 2015

On 8 May 2015 the indictment was presented in the Arraignments List and Mr Macdonald was arraigned before Johnson J. He pleaded not guilty. The Crown Case Statement was provided to the Court. On that occasion, Johnson J listed the matter for trial to commence on 14 March 2016. His Honour also listed the matter for mention on 6 July 2015 and directed Mr Macdonald to file any pre-trial notices of motion and supporting affidavits by 26 June 2015.
In June 2015, before he had received the response from the Attorney-General, Mr Macdonald made an application to the Legal Aid Commission for legal aid. The Commission required him to provide "full financial disclosure" of his own financial position and that of his wife, Ms Gylseth, for the previous two years, including records of income and expenditure. His application was refused.
On 2 June 2015 Mr Dan was provided a list of 33 witnesses that the Crown intended to call at the time the list was provided.
On 11 June 2015 St George Bank wrote to Ms Gylseth to inform her that it was no longer able to provide her with financial services. It nominated two accounts, a portfolio loan and a credit card, which would "remain open for regular payments" but from which she would not be permitted to make withdrawals. Mr Macdonald believes the bank to have been influenced by the matters the subject of these proceedings.
On 6 July 2015 both accused (Mr Macdonald and Mr Maitland) sought and were granted an extension of time for the filing of any pre-trial notices of motion. Justice Johnson listed the matter for mention on 11 September 2015 and extended the time for filing any pre-trial notices of motion to 7 September 2015.
In mid-July 2015 Mr Macdonald and his wife went to Perisher, a ski resort in Australia.
By letter dated 31 July 2015, which was received by Mr Dan on 6 August 2015, the Attorney-General (Gabrielle Upton) refused Mr Macdonald's application for funding for legal assistance. The grounds of the refusal were not given.
Mr Macdonald appealed to the Legal Aid Review Committee against the refusal of legal aid. By email dated 11 September 2015, Mr Doumit, of the Legal Aid Commission, wrote to Mr Dan setting out the basis of the initial refusal. The email read in part as follows: While the applicant is eligible for aid based on a lack of income and assets with little equity (other than the principal place of residence) Legal Aid NSW determined that: the discretionary expenditure evident from the bank statements the ownership of two luxury cars the indication from the financially associated person, Ms Gylseth, as to future travel plans for Christmas - when considered in combination with the travel to Hong Kong in February 2015 constitutes information that suggests that the applicant's lifestyle activities, and/or interests are such that, in the opinion of Legal Aid NSW, the applicant has access to sufficient means to be able to afford to pay for the services of a private legal practitioner without undue hardship. I note that the matter is listed for 2 October 2015 and Justice Johnson indicated he would expect the issue of legal aid to be resolved by that date. Please provide the written appeal to the Legal Aid Review Committee by return email at your earliest convenience but no later than 4.00 pm Wednesday, 16 September 2015 to allow the matter to go before the Legal Aid Review Committee. The appeal will need to address the discretionary expenditure, the ownership of the luxury vehicles and the travel plans of the financially associated person.
At the mention of the matter in the Arraignments List on 11 September 2015 Mr Dan sought an adjournment in order to enable Mr Macdonald to apply for a review of the refusal of legal aid. Johnson J adjourned the matter for further mention on 2 October 2015. In the meantime the co-accused, Mr Maitland, sought a separate trial. His application was listed for hearing on 13 November 2015.
On a date not later than 26 September 2015 Mr Macdonald launched a public website seeking funds for his legal defence. The account, in the name of "Bilbie Dan Pty Ltd", reflects the name of the firm of Mr Dan, his solicitor.
On 1 October 2015, the day before the adjourned mention date, Mr Macdonald filed an application for review of the refusal of the grant of legal aid. On 2 October 2015, Mr Dan applied for an adjournment of the mention and an extension of the time within which any pre-trial applications were to be filed. Justice Johnson acceded to the application, adjourned the mention date and directed the accused to file any pre-trial motions and supporting affidavits by 16 October 2015.
By letter dated 22 October 2015 the Legal Aid Review Committee wrote to Mr Macdonald to inform him that his appeal had also been refused. The letter said in part: The Committee disallowed the appeal because the applicant's lifestyle, activities or interests suggest that the appellant has access to sufficient means to be able to pay for the services of a private legal practitioner without undue hardship. Further, it is satisfied that the appellant has the ability to pay his own legal costs, having regard to his assets.
Although Mr Macdonald gave evidence in this Court that he has contemplated challenging the refusal of legal aid (by separate proceedings in this Court), he has not done so.
In October 2015 Mr Macdonald received $21,000 for his consultancy work, which, according to his evidence, is "success-based". He used these funds to decrease his car lease payments (for another Volvo motor vehicle) from $1,200 per month to $650 per month. The opening debit on the Esanda statement of ledger 15 October 2015 was $54,295.08; the monthly payments are $651.37.
The details of the work Mr Macdonald had performed which produced the sum of $21,000 were revealed for the first time in re-examination on 20 April 2016. He had introduced Chinese investors to a rural property on which a vineyard, restaurant, accommodation facilities and wedding facilities were either already located, or to be located.
On 6 November 2015 Greg James QC appeared on behalf of Mr Macdonald at the mention. He informed Johnson J that the application for review of the refusal of legal aid had been dismissed. The matter was adjourned to 13 November 2015. On that day, Mr Maitland's application for a separate trial was heard. No submissions were made on behalf of Mr Macdonald on that day. At the conclusion of the hearing, judgment was reserved and listed for judgment on 17 November 2015.
On 17 November 2015 Johnson J refused Mr Maitland's application for a separate trial. Both matters were adjourned for mention on 4 December 2015.
On 4 December 2015 Mr Evan James of counsel appeared on behalf of Mr Macdonald. He informed Johnson J that he was not funded to appear at the trial but that his client was attempting to find funds for legal representation at the trial. Johnson J listed the matter for mention on 1 February 2015 and directed that any pre-trial motions and affidavits be filed by 20 January 2016.
In about Christmas 2015 Mr Macdonald's wife and the youngest of her three daughters, and one of the daughter's friends, travelled to Norway. Ms Gylseth was anxious to visit two of her elderly aunts who lived there.
On 14 January 2016 the solicitor for the DPP sent a letter to Mr Dan attaching the Notice of Prosecution Case and one folder in double-sided print containing witness proofs and statements for 33 witnesses on the Crown witness list and a copy of documents referred to in those witness proofs and statements, not previously included in the Document Chronology. The letter said that: "The witness proofs / statements provided reflect the evidence that the prosecution currently anticipates calling from these witness in the above trial. Some variation to the evidence to be called may occur, depending on the issues that arise before or during the trial. Please note that the bulk of the material previously served by the Prosecution was served in accordance with the Prosecution's obligation of disclosure."

[11]

The filing of the first Dietrich application on 21 January 2016

On 21 January 2016 Mr Macdonald filed the first of two notices of motion seeking a stay of the proceedings. In his affidavit in support he deposed that, by 21 January 2016, he had earned a gross amount of $63,000 since 30 June 2015. He admitted in cross-examination that he had "many" matters on which he had done work but not yet been paid but might be paid in the future. He gave no details of any such matters, or the likely success fee if any came to fruition until his counsel sought leave to adduce further evidence in chief with respect to such matters at the hearing on 20 April 2016.
In his affidavit of 21 January 2016, Mr Macdonald deposed that he had no assets and that he had liabilities of $50,000 (being the deficiency created by the loans due on the cars being exceeded by their combined value); credit card liabilities of $15,000 and a liability on a personal loan of approximately $200,000.
In cross-examination it emerged that the personal loan was owed to Mr Gerathy, Mr Macdonald's former business partner. He has repaid a total of $207,000 which included $75,000 of the proceeds of Property B. The amount outstanding on the loan is to be reduced by reference to the amount of work that Mr Macdonald performed for the company. Mr Macdonald deposed that the issue of what amount should be deducted from the loan had not been addressed, in part at least because of Mr Gerathy's long-standing illness. Mr Macdonald admitted that there was no interest rate on the loan and Mr Gerathy had never charged interest on it. It is not secured against any asset.
In his affidavit of 21 January 2016 Mr Macdonald also deposed that, as at that date, no funds had been forthcoming from the public website he had launched to raise funds for his legal defence.
On 25 January 2016, the solicitor for the DPP wrote to Mr Dan, noting that Mr Macdonald had not exhibited to his affidavit of 21 January 2016 the material which he had supplied to the Legal Aid Commission or the Legal Aid Review Committee. The solicitor made the following request: "Please provide a copy of all documents provided to the Legal Aid Commission in relation to Mr Macdonald's application for a grant of legal aid and Mr Macdonald's appeal to the Legal Aid Review Committee in relation to: Mr Macdonald's financial circumstances including his assets, income and expenditure and the assets, income and expenditure of any financially associated person. Mr Macdonald or any financially associated person's ability to fund a private legal representative for the accused. Please provide details in relation to the value of all mortgages that related to the properties listed in paragraph 33 of Mr Macdonald's affidavit."
Mr Macdonald refused to provide the documents to the Crown. These documents were first proffered in these proceedings when Mr Mackay sought to tender them on behalf of Mr Macdonald on 13 April 2016 in re-examination, as referred to in more detail below.

[12]

Mention in the Arraignments List on 1 February 2016

The matter came before Johnson J in the arraignments list on 1 February 2016. Mr Macdonald was represented by Mr Greg James QC, who asked the Court to stand the motion over with liberty to restore on 48 hours' notice. It is necessary to set out at length various statements made by Mr James in the course of the mention. Mr James said (in terms which I infer reflected his then instructions): I do not appear in the trial; I am unable to do so both by reason of commitment and other matters. Nor does Mr Evan James appear at the trial. Mr Boulten is unable to appear at the trial. However, this morning I have been able to make inquiries myself with a view to ascertaining whether other senior counsel competent in this field could appear at the trial. I have received intonations [intimations] from Mr Ramage QC that there is a strong prospect he could. Regrettably other inquiries have not produced anybody else. They are such as I have been able to make personally this morning. The application before your Honour is a Dietrich application; that is that he does not have the funds to be able to afford representation at a state of competence such as to provide that the trial would be a fair trial according to law if conducted without counsel of that competence. There is much material before your Honour in terms of both affidavits concerning his available means. There has been a series of conferences conducted by my instructing solicitor on Friday and over the weekend. They have culminated in a conference early this morning in which a strong prospect has arisen of his being able to achieve a fixed sum of funds such that Mr Ramage would be, if briefed, able to be briefed for a four week trial. … From my client's viewpoint he wishes this trial to go ahead but he does wish to be competently represented. We should not proceed with the Dietrich application while there is a prospect of sufficient strength that he will receive the relevant funding and be able to get the relevant counsel. At present, I have agreed to assist such solicitor and counsel with questions of law by way of advice and assistance and questions of preparation in order to try to facilitate the matter coming forward as cleanly as possible. I understand that the prosecution have recently in that regard attempted to rationalise the case to restrict the materials which otherwise would have been enormous to jury bundles of approximately two and a half volumes, and it may be that that can be cut down to two volumes of proofs, and it may well be that by use of facts not to be contested provisions of the Evidence Act or admissions, all of that can be substantially cut down here. … I'm hopeful we can distill that [the Crown bundle] down further, but that would be subject to the views of trial counsel and, from a practical viewpoint, the views of my client's funders, with a view to making sure that it can be done within the parameters of the funding and the relevant time. … I would, frankly, regard it as inappropriate for it [the Dietrich application] to proceed whilst there are prospects that have been identified to me of such strength as to his getting funding and counsel. … HIS HONOUR: What are you asking occur today with the notice of motion which has been brought by Mr Macdonald and is before Court? JAMES: Stand it down with liberty to restore on 48 hours' notice, the onus being on my client that if it is to proceed he will have to get it back into court. And in the meantime, I can hold some discussions with Mr English and Mr Neil, Mr Ramage and my instructing solicitor can hold discussions with the funders with a view to trying to get it strapped up. The closer it gets toward the trial date the less likely it is for a Dietrich application to succeed, and my client hears me say that and knows it. … I should indicate to your Honour that I would expect there would be pre-trial admissibility areas so that that mention date, if sufficiently far away to enable who is appearing to be able to identify those areas amongst what is still a highly complex and substantial brief, the mention date could double for a directions hearing as well as dealing with the Dietrich matters. … The Crown case statement in respect of Mr Macdonald is some seven pages long. There are matters that are plainly unlikely to be at issue; that is public official, in the course of public office. The matters that will be at issue will be the inferences the Crown says can be drawn from paragraphs 5 and onwards. And as to certain of those matters, questions both of law and of admissibility arise in respect of the primary documentation. … Could your Honour indicate that if your Honour lists it for the Friday would your Honour direct that counsel, whoever it may be, for the two accused be in touch with Mr Neil well before that date to elicit the issues that might need to be dealt with on that date, so that at least your Honour's associate can be notified of them to work out when Mr Neil might be available or Mr English might be available. We don't wish to exclude either of them from having the opportunity to participate in the pre-trials. It's rather important that those who are conducting the trial sort out the pre-trials. … I should indicate to your Honour, too, whilst I've been sitting here I've received a message to indicate that one other senior counsel might also be available for that period so the prospects are improving. I did what I could personally with the clerk. [Emphasis added.]
Justice Johnson said, of Mr Macdonald's notice of motion, towards the conclusion of the mention on 1 February 2016: "If the notice of motion is to be heard, the Court expects to be informed of that at the earliest time; the liberty to apply is to be activated, and I will list the motion for hearing urgently on the basis that it clearly needs to be resolved at an early time."
On that day, the Crown estimated a period of three to six weeks for the Crown case. At the conclusion of the mention in the Arraignments List, Johnson J stood the proceedings over for mention before the trial judge on 17 February 2016.
On 1 February 2016 Mr Dan spoke to Steven Doumit from Legal Aid who informed Mr Dan that he could put in a further application for legal aid on behalf of Mr Macdonald. Notwithstanding this conversation, Mr Dan has not put in another application for legal aid.
On 12 February 2016 Janet De Castro Lopo of the Department of Justice sent an email to Mr Dan concerning Mr Macdonald's request for funding and informed him that the Attorney-General would be considering the application on the weekend.
By email on 16 February 2016 Ms De Castro Lopo sent an email to Mr Dan advising him that the Attorney-General had considered the matter and declined to provide ex gratia legal assistance to Mr Macdonald for the trial.

[16]

The filing of a second Dietrich application on 1 April 2016

On 1 April 2016 Mr Healey sought leave on behalf of Mr Macdonald to file in court a notice of motion seeking a stay of the proceedings until the accused had sufficient funding. He was unaware of the previous notice of motion, or that it had been withdrawn, having only been briefed on the afternoon of 30 March 2016. He was not briefed on the motion itself, but was merely briefed to seek leave to file it in Court and apply for it to be adjourned to 26 April 2016 (being the date on which the trial was listed to commence).
Mr Dan gave evidence on the hearing of the adjournment application and was cross-examined. He retained a "hope and expectation" that public funding would be forthcoming from the executive government, notwithstanding several refusals of such applications to the Premier and the Attorney-General. On this basis I stood over the hearing of the application to Friday 8 April 2016.
Following the hearing on 1 April 2016 Mr Dan rang Ms De Castro Lopo to inform her that Mr Macdonald's trial had been stood over for further mention to 8 April 2016. He asked her what was happening with Mr Macdonald's application for funding. She had not heard about the fate of the application but assured him that she would let him know when she did.
Mr Dan followed up his request by email on 5 April 2016 to which Ms De Castro Lopo responded on 6 April 2016 by saying that she had not heard anything further. Mr Dan wrote again, by email on 6 April 2016, asking her to make him aware of any further developments. He wrote to her again on 7 April 2016 to which she responded: "I have heard nothing from the Premier or any other source about this matter."
On 7 April 2016 Mr Dan spoke with an unidentified member of the New South Wales Cabinet concerning potential funding for Mr Macdonald's legal representation. The following conversation ensued: "On or about 7 April 2016, I spoke with a member of the NSW Cabinet regarding the funding of Mr Macdonald. In that conversation he and I had a conversation to the following effect: Me: 'Any update on the funding for Mr Macdonald'. The member of NSW Cabinet: 'No not yet. You will have to wait still. You may get an answer later in the month.' Me: 'Is that after David Levine puts out his report?' Member of Cabinet: 'Yes maybe then'."
Mr Dan gave evidence that Mr Levine QC is the ICAC Inspector who is currently looking at past ICAC investigations, including into Operations Acacia and Jasper, which dealt with mining activity in the Bilong Valley. In the course of correspondence with Mr Levine, Mr Dan has brought to Mr Levine's attention matters which Mr Macdonald contended were not adequately considered by ICAC. Although Mr Dan said in evidence that he expects the report (the Levine Report) to be available by the end of April 2016 he accepted that he had not been told that date either by Mr Levine or by anyone associated with the preparation of the report.

[18]

Adjourned hearing of the notice of motion on 13 April 2016

On 13 April 2016, the Crown was represented by Mr Williams of counsel, who is not briefed in the trial (to overcome the objections raised by both accused on 8 April 2016). Mr Mackay, who appeared on behalf of Mr Macdonald, tendered recent tax returns and notices of assessments of Mr Macdonald and his wife, Anita Gylseth. Mr Macdonald gave further evidence in chief and was cross-examined.
Until recently, Mr Macdonald made the mortgage payments in full over the Leura Property. He gave the following evidence in his cross-examination on 13 April 2016: Q. Mr Macdonald, even now you make a contribution of $700 a month to the mortgage on that property, don't you? A. Well, yes, yes, or 600 I think it is now, but we have rearranged it so I don't actually cover the mortgage. At some points I did cover other bits and pieces. Q. When did you rearrange it, Mr Macdonald? A. Very recently. Q. Well, this week, last month? A. No, a month or two. Q. After you swore this affidavit [affidavit on 21 January 2016]? A. Yes.
The Crown put to Mr Macdonald in cross-examination that the DPP had written to Mr Dan in January 2016 to ask for copies of the documents that he had provided to the Legal Aid Commission in support of his application for legal aid. Mr Macdonald agreed that he had refused to provide such documents and that only a small proportion of the documents provided to the Legal Aid Commission had been annexed to his affidavits in support of the Dietrich application.
In re-examination of Mr Macdonald, Mr Mackay sought to tender a folder of documents which apparently constituted the documents that Mr Macdonald had provided to the Legal Aid Commission. The Crown objected to the tender on the basis that it had not had an opportunity to see those documents before it concluded the cross-examination of Mr Macdonald. In his re-examination on 13 April 2016, Mr Macdonald expressed his reasons for not providing the material earlier. As it is not at all clear what he meant, I shall set out the exchange in full: Q. Mr Macdonald, what are your reasons for not providing your Legal Aid material to the Court? A. Well, I didn't think that the material I provided them they specifically asked for and requested and I didn't believe that, given that it was relevant to a very specific situation to put it in at this point, there is nothing in it that is different than that's here, in reality.
On 13 April 2016 I adjourned the motion to 20 April 2016 to permit the Crown to cross-examine Mr Macdonald on the documents sought to be tendered and indicated that the documents should be identified by Mr Macdonald in an affidavit which could accompany their tender.
Against the background of these proceedings, Mr Macdonald has continued to work in his consultancy business. He gave evidence, in "re-examination" on 20 April 2016 of recent activities such as the following.
On Sunday 17 April 2016 Mr Macdonald received a telephone call from a "middle person" acting on behalf of an investor who was interested in a family vineyard located in the central west of New South Wales. The terms of his commission which is payable on settlement of the sale, if it eventuates, are that he will be paid in the order of $60,000 (pre-tax). Contracts are not yet exchanged; the settlement period is 10 weeks. Mr Macdonald would expect to be paid about a fortnight after settlement.
On Monday 18 April 2016 Mr Macdonald took a delegation of Chinese businessmen from a "large southern Chinese company" to the central west of New South Wales to look at a winery and vineyard. If the investment materialises, Mr Macdonald expects to receive an amount in the order of $160,000. He will not know for a period of at least two months whether it will go ahead, although he had an arrangement to meet them on the evening of 20 April 2016 and described their trip as "a pretty successful visit".
Neither Mr Macdonald's further affidavit nor the folder of documents that contained the Legal Aid bundle was provided to the Crown until 10.30am on 19 April 2016, the day before the adjourned hearing, although the folder of documents had been in court on 13 April 2016.
On 19 April 2016 Mr Dan rang Ms De Castro Lopo and left a voicemail message. He sent her an email asking for an update before 9.15am when the matter was again listed for hearing. None was forthcoming.
On 19 April 2016, at 3.26pm, Mr Dan rang Mr Doumit from the Legal Aid Commission. As there was no answer, he left a message for him about submitting a further application for legal aid. Mr Doumit returned Mr Dan's call at 7.30am on 20 April 2016. Mr Doumit told him that there was no reason why he could not put in a further application for legal aid for Mr Macdonald. Mr Dan asked whether it was still the policy that there would only be one counsel for Mr Macdonald. Mr Doumit confirmed that to be the case.

[19]

Adjourned hearing of notice of motion on 20 April 2016

At the adjourned hearing of the notice of motion, Mr Brady SC appeared with Mr Mackay for Mr Macdonald, who gave further evidence in chief both orally and on affidavit. In his affidavit of 19 April 2016 (which was read at the resumed hearing on 20 April 2016) Mr Macdonald gave the following reason for not having disclosed the material provided to Legal Aid earlier: I did not disclose this material to the Department of Public Prosecutions previously for two main reasons. First I was concerned about my and my wife, wife's privacy and the possible leaking of the information to the media. During the ICAC hearings on a number of occasions my financial details were disclosed inaccurately in the media. The publication of my personal finances during ICAC had a detrimental effect on my consultancy work. Second included in the documents is a confidential payment in relation to defamation proceedings which are the subject of deed and release and confidentiality.
Mr Macdonald gave evidence that, on Friday 15 April 2016, he telephoned the National Australia Bank and asked for a loan of $250,000 for legal fees. He gave details of his income. The bank officer responded by saying that if the bank were to lend the money it would insist on being the first registered mortgagee, which would require the first mortgage of $150,000 to be refinanced. The bank officer indicated that the bank would not be prepared to lend $400,000 because Mr Macdonald's income was insufficient to service the loan. This is the only evidence of any application for finance for legal fees having been made by or on behalf of Mr Macdonald.
Mr Macdonald, for the first time on 20 April 2016 in re-examination (in respect of which I gave the Crown leave to cross-examine), gave evidence of further matters in respect of which he had a prospect of earning fees. Some of these matters are referred to above. He also gave evidence of a feasibility study regarding exporting of chilled forequarters to China. Mr Macdonald said that he had no consultancy fee structured for that project. He also mentioned "various mineral projects" which will be the subject of presentations which he will be doing on Friday and over this coming weekend. When asked if there were any other projects he answered: Well, I'm working on a lot of things. I've secured lobster imports or exports to China; I've secured salmon but these haven't commenced yet, I've just got agreement from various companies that they will supply. Abalone, oranges and, subject to one of my contacts who is already in China in discussions with a number of groups in relation to supply, I would receive a small amount monthly from that. This is not ‑ this trade side, or commodities side, is not a great big pot of gold. Q. What's a small amount? A. $1,400 a month, that sort of thing.
In further cross-examination, the following exchange occurred between the Crown and Mr Macdonald as to Mr Macdonald's business projects: Q. The details of these, so far as you are concerned, are a matter of agreement between you and the people involved? A. That's correct. Q. None of those agreements with anybody are before the Court, are they? A. Well that's true. That's correct.

[21]

The Dietrich application

In Dietrich v The Queen Mason CJ and McHugh J, at 315, set out the approach to be adopted in the following terms: "In view of the differences in the reasoning of the members of the court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial."
The notion of "fault" was considered in Craig v South Australia (1995) 184 CLR 163. The High Court set out the passage from Dietrich v The Queen set out above and then said, at 184-185 (footnotes omitted): The decision of this Court in Dietrich v The Queen [83] established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment, Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices [84]: "… we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available." The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being "through no fault on his or her part" was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: " … what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune." A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.
I have been referred to a number of decisions in which Dietrich v The Queen has been considered and applied. For example, in R v Joyce, [2003] NSWCCA 280 Shaw J (Tobias JA and Howie J agreeing) said at [23] that it should not be considered necessary that a person change their home to pay their legal expenses when charged with criminal offences. An accused person does not need to show penury, as opposed to indigence: R v Marchi, Marchi and Mead (1996) 91 Crim R 112 at 118 per Perry J. If the value of an accused's assets and income falls well short of what is required to conduct a trial he is to be regarded as indigent for the purposes of a Dietrich application.
The applicant Mr Macdonald submitted that, in accordance with the principles in Dietrich v The Queen, his trial ought be stayed as he is unable to afford legal representation.
It is common ground that Mr Macdonald has been charged with a serious offence and that the trial will be both lengthy (the Crown case is estimated to take between three and six weeks if both accused are legally represented) and complex. The questions are whether he has shown both that he is indigent and that he is unable, through no fault of his own, to obtain legal representation.

[22]

Whether Mr Macdonald has shown that he is indigent

I am not satisfied that Mr Macdonald is indigent, largely because I am not persuaded that he has been forthcoming with details of his financial circumstances. Although the Crown has been able to piece together such evidence as is publicly available (such as from title searches and the like) of his asset position, there are significant limits to its capacity to ascertain the true position.
An instance of this reluctance to disclose his true financial position is afforded by Mr Macdonald's refusal to provide to the Crown the material he had provided to the Legal Aid Commission. Indeed, Mr Macdonald gave evidence on 20 April 2016 that it had been tendered by Mr Mackay on 13 April 2016 without his instructions (although the folder was in court at the time). He gave two different reasons for refusing to provide it to the DPP: the first orally on 13 April 2016 (that they had not really asked for it and that it did not really provide different information from what they already had); and the second in an affidavit of 19 April 2016 (that he was concerned about confidentiality).
The second reason given was itself problematic. Mr Macdonald admitted in further cross-examination (on 20 April 2016) that there was no difference between the nature of the documents that had already been disclosed (in the evidence in support of his Dietrich application) and the documents that were contained in the Legal Aid bundle since both categories included bank statements, details about his wife's superannuation affairs, their tax returns and their property dealings.
Another example of Mr Macdonald's unwillingness to be frank about his financial position in the absence of a pressing financial imperative is provided by the disclosure, in his affidavit of 19 April 2016, of the receipt of a sum of $20,000 as a result of defamation proceedings he had brought that were settled. The bank statement recording the receipt of that amount was contained in the Legal Aid bundle and had been the subject of a query by Legal Aid made by letter dated 30 June 2015. I am not confident that the receipt of that sum would have been disclosed by Mr Macdonald but for the tender of the Legal Aid bundle which I infer caused Mr Macdonald to believe that there was a risk that he would be asked about the payment.
Mr Macdonald did not reveal the existence of the family trust he set up in 2010 in this application. It became known to the Crown through the tender of the Legal Aid bundle. He was asked about it in the following exchange in cross-examination: Q. Mr Macdonald, you established a family trust in 2010? A. Yes. Q. You've not put before the Court the trust deed with respect to that family trust, have you? A. I don't believe I had. It was held by my solicitor at the time, it has never been used and I don't have access to the documents. Q. Have you asked for them in the context of this application? A. No I haven't.
Although Mr Macdonald accepted that his wife owned shares, he did not adduce any evidence to show his wife's shareholdings.
Although Mr Macdonald has no obligation to be frank with the Court, and there is no analogy with the Crown's obligation of disclosure, he bears an onus on a Dietrich application. He has not, in my view, been forthcoming about his financial affairs (or indeed his attempts to find legal representation). My impression is that he has repeatedly tried to paint an incomplete picture of his financial affairs by refusing to produce the Legal Aid bundle to the Crown until his re-examination on 13 April 2016 (and giving a spurious and almost incomprehensible reason for his refusal) and refusing to set out in an open way, what his true financial position is. That the bundle was not served until less than 24 hours prior to the resumed hearing is a further indication of his reluctance to have his true financial position revealed or investigated.
In his affidavit of 21 January 2016, Mr Macdonald deposed that he had no assets. However, his counsel properly conceded in written submissions that he has an equitable interest in his wife's property. He accepted that if his share is a half share, the value of his interest is of the order of $256,000 (without making any allowance for his unsecured debts).
Furthermore, I consider that Mr Macdonald has tended to use counsel as his mouthpiece in situations where each counsel briefed (by reason of the cameo nature of each appearance and the late instructions) has only limited knowledge of the matter and therefore is unable to assist the Court to answer questions outside the limited brief. For example, Mr Healey was briefed to come to Court on 1 April 2016 to file a Dietrich application and to have it adjourned. He did not know that a previous Dietrich application had been filed on 21 January 2016, or that it had been withdrawn by Mr Barker on 23 February 2016. Nor did he know the basis of the Dietrich application. Mr Brady appeared to lead Mr Mackay on the final day of the application although he had never appeared previously. In making this observation I make no criticism of the various counsel who have appeared (apparently on a pro bono basis) on behalf of Mr Macdonald.
A further example of Mr Macdonald's use of counsel and failure to adduce relevant evidence appears from the extract from the transcript on 1 February 2016. Mr Greg James QC told Johnson J: "There has been a series of conferences conducted by my instructing solicitor on Friday and over the weekend. They have culminated in a conference early this morning in which a strong prospect has arisen of his being able to achieve a fixed sum of funds such that Mr Ramage would be, if briefed, able to be briefed for a four week trial."
Mr Dan accepted in cross-examination that nowhere in Mr Macdonald's evidence in support of his Dietrich application has the following been revealed: the identity of potential funders; the basis on which the funding would be provided; the amount of funding; or the result of any such arrangement. I assume that Mr James made the representation set out above on the basis of his then instructions and that those instructions were provided by Mr Dan and Mr Macdonald. This is another instance of Mr Macdonald not being prepared to disclose to the Court the true position or to give details to enable his general statements, either to be investigated by the Crown or to be weighed and assessed by the Court.
Until 20 April 2016 all that Mr Macdonald was prepared to tell the Court about his work is that it is "success-based" and that he had not been paid since October 2015. On 20 April 2016, when it was too late for the Crown to investigate any of his evidence, he gave extravagant descriptions of his recent meetings, the projects involved, the prospects of success, the range of his activities and his role in each project. The timing of this evidence and the fact that not a single document associated with any one of these projects was tendered are further indications of Mr Macdonald's reluctance to disclose his true financial position.
The evidence of the loan from Mr Gerathy is wholly unsatisfactory. The written submissions made on behalf of Mr Macdonald referred to the loan as "a personal loan for approximately $200,000". On the evidence, I could not conclude that it is a liability at all, or that its terms are not void for uncertainty. But for Mr Crown's cross-examination, I would have been left with a misleading impression as to both the enforceability and quantum of the loan.
In summary, for the reasons given above, I am not satisfied that Mr Macdonald has established that he is indigent since his financial position has not been sufficiently disclosed to permit such a judgment to be made. That he has refrained from disclosing, or delayed the disclosure of so many matters, leaves open the inference that he has available funds but is unwilling to reveal them, lest he be required (by the executive government, by the Legal Aid Commission, or by this Court) to employ them in his defence, if he is to be represented at all.

[23]

Whether Mr Macdonald has shown that he is unable to obtain legal representation

According to Mr Macdonald, he has been endeavouring since the publication of the ICAC Report (in August 2013) to obtain counsel to represent him. No counsel has been located who has been prepared to act for Mr Macdonald pro bono in the trial. To date he has not paid any of his legal advisers and has only received one invoice from a barrister.
Although both Mr Macdonald and Mr Dan have deposed that there have been discussions with a number of barristers with a view to their being retained to appear on Mr Macdonald's behalf at the trial, no details of such discussions have been included in the evidence: neither names, nor terms, nor availability, nor instructions as to how long the trial would be. Nor has any such enquiry been made on any basis that does not involve the briefing of senior counsel.
Although Mr Macdonald applied for legal aid, which was refused, there was nothing stopping him from making another application. If he or Mr Dan was not aware of that circumstance before, Mr Dan was specifically informed of the policy on 1 February 2016 and yet no further application was made. Nor is there any evidence that Mr Macdonald has ever offered to make a contribution to the Legal Aid Commission towards his legal representation, whether by way of present funds or commitment from future earnings, if and when they are received.
Notwithstanding the asserted difficulties Mr Macdonald has had in securing counsel to appear for him at trial, he has been represented whenever his matter has been before the Court, and in some cases by senior counsel (as referred to in the procedural history set out above). Only rarely has the same barrister appeared for him more than once (the forensic consequences of this have already been mentioned). Mr Dan has been present throughout. Mr Dan did not give evidence that he would cease to act on Mr Macdonald's behalf if counsel was not briefed at the trial. However, Mr Brady informed me from the bar table that, in this event, this is what Mr Dan would do.
A summary of his legal representation in the course of the matter is set out in the table below: Date Court Counsel Solicitor 18.12.14 Downing Centre Local Court Phillip Boulten SC Nicholas Dan 24.12.14 Downing Centre Local Court David Mackay Nicholas Dan 20.03.15 Sydney District Court - Nicholas Dan 16.04.15 Downing Centre Local Court Philip Boulten SC David Mackay Nicholas Dan 08.05.15 Supreme Court - Nicholas Dan 22.05.15 Downing Centre Local Court David Mackay Nicholas Dan 06.07.15 Supreme Court - Nicholas Dan 11.09.15 Supreme Court - Nicholas Dan 02.10.15 Supreme Court - Nicholas Dan 06.11.15 Supreme Court Greg James QC Nicholas Dan 13.11.15 Supreme Court Evan James Nicholas Dan 17.11.15 Supreme Court Evan James Nicholas Dan 04.11.15 Supreme Court Evan James Nicholas Dan 01.02.16 Supreme Court Greg James QC Nicholas Dan 17.02.16 Supreme Court - Nicholas Dan 23.02.16 Supreme Court Ian Barker QC Nicholas Dan 01.03.16 Supreme Court - Nicholas Dan 01.04.16 Supreme Court Terrence Healey Nicholas Dan 08.04.16 Supreme Court David Mackay Nicholas Dan 13.04.16 Supreme Court David Mackay Nicholas Dan 20.04.16 Supreme Court Grant Brady SC Nicholas Dan David Mackay

[26]

Attempts to obtain finance for legal representation

Until last Friday (15 April 2016) Mr Macdonald had not made any attempt to borrow money since the ICAC inquiry commenced. I do not regard this application to have been a serious attempt to obtain funding, as opposed to a last-minute, and colourable, attempt to remedy an evidentiary deficiency in his application.
Mr Macdonald has not given evidence that he has asked his wife whether the house in her name (which was substantially, if not wholly, purchased with funds generated by him) could be used to secure a loan to fund legal representation (although it is possible to infer that she is happy for this to occur if his phone call to the National Australia Bank last Friday asking for a loan was made with her consent). He has not called her to give evidence in support of his Dietrich application.
As far as the evidence reveals, all that Mr Macdonald has done to obtain funding for legal representation is: to make an application to the Legal Aid Commission for legal aid; to make applications to the Premier and Attorney-General for public funds to be applied to his legal representation; to ask (through Mr Dan) barristers to act for him pro bono; and to set up a website to raise funds from the public. Although there appear to have been some discussions with "funders" (as represented by Mr James to the Court on 1 February 2016), the evidence does not reveal anything about these discussions or the identity of the funders. Accordingly it is not possible to take the matter further.
Dietrich v The Queen establishes that criminal proceedings ought, in some circumstances, be stayed where a person accused of a serious crime is indigent and who is, through no fault of his or her own, thereby unable to obtain legal representation. I have taken into account what was said by the High Court in Craig v South Australia about fault and the circumstance that Mr Macdonald is not, by the refusal of his application, to be punished for dilatoriness or, as the Crown put it, "putting his head in the sand". However, Mr Macdonald has not established that he is indigent. He has not established that the reason he has not been able to obtain legal representation is not his fault. All that has really been established is that he wants someone else to pay for his trial and that he is not prepared to disclose to the Court either his true financial situation or the details of any negotiations with lawyers.
Accordingly, the Dietrich application is refused.

[27]

The adjournment application

In the alternative, Mr Brady sought that the matter be adjourned for three months to permit Mr Macdonald to access sources of funding. He relied on the principles referred to by Barr AJ in R v Yuill (unreported, 1 November 1993, page 23) where his Honour said (prior to rejecting Mr Yuill's application for an adjournment): "The notice of motion as amended asks for orders in each proceedings that the trial be adjourned, postponed or stayed until legal representation is available. There may be cases where a distinction may be drawn between an adjournment, a postponement or a stay. There might be evidence, for example, that money might become available in some identifiable time in the future to enable legal representation to be provided, and that might justify an adjournment of the trial to a particular time."
He submitted that the executive government might well change its mind if the Levine Report is critical of ICAC's investigations in Operation Jasper which led to the recommendation in respect of Mr Macdonald and the finding against him. Mr Brady pointed to the circumstance that the latest application to executive government had not expressly been refused but remained "on the table" and contended that this indicated a preparedness on the part of the executive government to change its mind.
Mr Brady also contended that a further application could be made to Legal Aid, the fate of which could be different since the first application was refused on the basis of discretionary expenditure, which was limited to a particular period of time.
Mr Brady also submitted that, having regard to Mr Macdonald's work, there was some prospect of his financial situation improving to a sufficient extent in the short to medium term so as to permit him to fund legal representation.
Mr Brady submitted that, in these circumstances, the interests of justice wholly favoured the granting of an adjournment so that any prospect of legal representation could be fully explored
Mr Macdonald's Dietrich application and his application for an adjournment were wholly supported by Mr Jordan. Both Mr Brady and Mr Jordan outlined in detail the difficulties that would be encountered if Mr Macdonald were to represent himself. They predicted the probable doubling of the length of the trial; the almost inevitability of a jury, or more than one jury, having to be discharged; the increased cost and time associated with these matters; the risk that Mr Maitland's fair trial could be compromised by Mr Macdonald not being represented. They referred, too, to the difficulties of Mr Macdonald cross-examining former colleagues as well as political foes. They also relied on the substantial differences in the standards for acceptable and appropriate behaviour in court and in Parliament as a reason why Mr Macdonald could not have a fair trial if he represented himself.
I accept that there is a substantial difference between an application for a stay of a criminal trial and an application for an adjournment. The former is an exceptional order; the circumstances in which it is granted, although not limited, tend to be confined to specific categories, such as in Dietrich itself. An adjournment, by contrast, requires a different discretionary judgment to be made. In the main, an application for an adjournment requires the Court to consider what is to be gained and what is to be lost by a trial not starting at the allocated date and balancing those matters, paying due regard to relevant considerations of which the most important is the administration of justice (which in turn includes the concept of a fair trial).
The reservations I have about granting an adjournment derive from the narrative set out above, which reveals a litany of instances where adjournments have been sought on behalf of Mr Macdonald for apparently good reasons. Notwithstanding indulgence after indulgence, almost a year has passed since Mr Macdonald was arraigned on 8 May 2015 and he appears to be no closer to readying himself for his trial. His several attempts to defer both the trial and the identification (much less the determination) of pre-trial matters are wholly at odds with his avowed willingness to stand trial to vindicate his name.
When Mr James appeared before the Court on 1 February 2016 he made several representations, which I assume to be on instructions, to the effect of work that had been done both to obtain funding and prepare the case. He made specific reference to the size of the Crown bundle and the work that had been done to cull it and his own contribution to the process. It now appears that none of this was to any effect.
I have no confidence that Mr Macdonald's belief that executive government will change its mind about funding if Mr Levine is critical of ICAC's handling of Operation Jasper is well-founded. Although the scenario postulated by Mr Brady is a possibility, there are several others, including that the executive government will continue to refuse to fund the trial, as it has done several times in the past. That Mr Hazzard refused the application for funding on the ground that there had been a finding (by ICAC) of corrupt conduct is no indication that the executive government (as presently constituted) has refused further applications for the same reason. Mr Levine has no power to quash ICAC's finding or reverse its recommendations (which have, in the present case, been implemented in any event by the referral to the DPP and the presenting of the indictment). Nor does the absence of definitive response to Mr Macdonald's recent application provide any grounds for optimism. The executive government is presumably aware that the trial was listed on 14 March 2016 and then adjourned to commence on 26 April 2016.
As for a further application for legal aid, Mr Macdonald's delay in making another application would tend to suggest that his assessment of his prospects of obtaining legal aid has not changed markedly since his last application. It is also consistent with a reluctance to provide full disclosure of his financial affairs. He has known since at least 1 February 2016 that the refusal of his last application did not foreclose a further application and has made none. Furthermore, the reasons given by the Legal Aid Review Committee set out above show that the refusal of legal aid was not solely based on "discretionary expenditure". Accordingly, it would not appear that Mr Macdonald's prospects would materially increase if, for example, his wife did not travel overseas. I accept the Crown's submission that the best evidence of Mr Macdonald's belief that legal aid would be granted if a further application were made would have been for him to make a timely application. He has not done so.
Nor do I consider it appropriate to adjourn the proceedings on the basis that Mr Macdonald's metaphorical ship will come in as far as the various projects in respect of which he hopes for a success fee. He has chosen not to favour this Court with a single document to corroborate his various dealings. Even if he were to receive more funds I am not satisfied that he would apply them to his legal defence anyway. If his future income could be quantified and predicted, he might be able to charge it to secure a loan, or make a contribution to legal aid (or undertake to do so). There is no evidence that he has explored any such means of funding.
The following extract from Barr AJ's judgment R v Yuill is apposite to the present application and ought, in my view, suffer a similar fate: "But there is no evidence to show that the circumstances of the applicant or the attitude of the applicant or Mrs Yuill are likely to change in the future and no practical distinction arises between an adjournment, a postponement or a stay in this case. I refuse to adjourn or postpone the commencement of either of the trials. I refuse to stay either of the indictments."
I accept the submissions of Mr Brady and Mr Jordan about the difficulties of conducting this trial if Mr Macdonald is unrepresented and the risk that Mr Maitland's interests will thereby be compromised. The spectre of conducting a trial such as the present with the principal accused unrepresented is not an attractive one. These are very substantial matters which weigh in favour of adjourning the trial.
Nonetheless I have no confidence that the situation will be any different were I to adjourn the trial for three months, as suggested. Past adjournments have only brought further applications. There is therefore no utility in adjourning the trial since an adjournment would be likely to do no more than produce another application in three months' time.

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (3)