R v Martiniello [2005] ACTSC 9

3. There were the appropriate case management hearings in the Magistrates Court and there was a paper committal on 2 October 2003. Although it has been said by Mr Sahu Khan, for the Crown, that it was only a paper committal, it seems to me that a committal whether it be a fully contested hearing or a paper committal is, in any event, an assertion by the Crown on behalf of the community that a person is charged with certain offences and that the Crown is in a position to prove those offences on the material put before the committing magistrate.

4. The question for the committing magistrate, whether it be at a contested hearing where witnesses are called and cross-examined or on a paper committal, remains the same, namely is there material in the Crown case on which a jury, properly instructed, could convict?

5. Mr Martiniello was committed for trial on the basis of that paper committal on 2 October 2003. The matter then moved across to this Court and there were the appropriate ordinary directions made in relation to the normal timelines for the filing under the indictment and the case statement.

6. On 16 October 2003 the Director of Public Prosecutions was directed to file the indictment by 6 November 2003. There is evidence before me by way of an affidavit from Mr Thomas, instructing solicitor in this matter and a solicitor within the office of the Director of Public Prosecutions, that this is a matter of some complexity and indeed the prosecution was granted an extension of time by the Registrar, quite properly it seems to me, to file the indictment and case statement. As it turned out, the indictment and case statement were filed and served in April 2004 which was beyond the original extension.

7. The charges on which Mr Martiniello was indicted were different to the charges on which he was committed, that is to say, he was committed on counts of theft and indicted on counts of dishonestly using a computer with a view to gain and dishonestly using a machine with a view to gain.

8. Mr Thomas acknowledged, properly it seems to me, in cross-examination, that it would follow from this that Mr Robertson, the then Deputy Director of Public Prosecutions who signed the case statement, had reviewed the matter and had made a decision that the counts of improperly using a computer and a machine with a view to gain were the more proper counts that should be put before the Court. There were then the ordinary pre-arraignment conferences which are held in every criminal trial, and on 14 September 2004 the matter was set down for trial commencing today, that trial to be for two weeks.

9. It has emerged today in evidence from Mr Thomas, and this is supported by a contemporaneous e-mail, that at the time the matter was set down for trial the Crown was aware that there was an evidential gap. That is to say the Crown was aware when the matter was set down for trial that it did not have the material it needed to go before a jury to prove the case.

10. It seems to me that the Court must be critical of the conduct of the DPP in setting a matter down for trial when it was known that the material was not available to prove the case. The appropriate course in such a matter would have been to adjourn the pre-arraignment conference and to have obtained the evidence or not as the case may be.

11. It seems to me that I must be critical of the conduct of the DPP in setting the matter down for trial in the hope and expectation, and I accept an honestly held hope and expectation, that the evidence would emerge. Without going into too much detail it seems to be the position that the charges relate to what is alleged to be a fraudulent course of conduct in relation to the Australia Post Bill Pay system, and the material that was not available and known not to be available by the Crown in September 2004 was electronic proof that Mr Martiniello accessed that electronic system on the dates he was said to have accessed it and for the amounts that he was said to have accessed it.

12. The Australia Post Bill Pay system, although conducted under that name was, it seems from the evidence of Mr Thomas's affidavit, in fact conducted for Australia Post by a contractor or consultant by the name of Link Communications. The proof of Mr Martiniello's accessing, or what is said to be the proof of Mr Martiniello's accessing the system and indulging in transactions, was not in the possession of Australia Post.

13. It was believed in September 2004 that Link Communications would be able to provide the material, but it emerges that there have been changes in their computer system and the position, as understood by the Crown as of today, is that there is an old mainframe computer that at the time of the alleged offences was operated by Link Communications to support the Bill Pay system. That old decommissioned computer is now in a warehouse in the Geelong area, and it is the belief of a Mr Anderson, who is an expert in information technology and advising the Crown, that if he can gain access to that old decommissioned mainframe computer he may be able to extract the data which would prove the necessary link that Mr Martiniello in fact accessed the system on the dates alleged and in the amounts alleged.

14. However, Mr Sahu Khan concedes quite properly that that may not be the case. Link Communications have agreed that, subject to certain conditions, they will allow an expert of the Crown to access this machine, but in the e-mail of today's date agreeing to that they clearly make the point that they cannot warrant that the machine is still useable, and Mr Sahu Khan acknowledges that if their expert accesses the machine and in fact it is not possible to extract the data then the Crown would be left in a position where it would not and would never be able to prove the case that is charged.

15. There can be many occasions when, despite all the best will in the world and strict compliance with case management principles, a matter is not ready for trial and an adjournment would be granted. The matter of R v Trong Ruyen Bui [2003] ACTSC 102 was put to me as a precedent in this Court where an adjournment was granted.

16. In that matter Crispin J granted an adjournment because the Crown was not able to proceed due to an oversight in the DPP office or a misunderstanding between the DPP office and the Federal Police that a police officer who was to give crucial evidence in the case had not been recalled to Canberra from Cyprus and his Honour adjourned the matter.

17. In the Australian Capital Territory community policing services are provided by the Australian Federal Police. There are many advantages for the Canberra community in that arrangement but one of the disadvantages is that the Australian Federal Police is frequently involved in international operations which are, it must be said, of significant benefit to the Australian community and indeed the broader community.

18. In this case, the informant is presently on duty in the Solomon Islands and the community is well aware that a number of Australian Federal Police members have been on duty in the Solomon Islands for some time. Indeed recently one serving member of the Protective Services wing of the Australian Federal Police was tragically killed on duty.

19. The Canberra community accepts and the courts accept that from time to time there will be difficulties in bringing officers back and that is certainly a good ground for an adjournment.

20. But in Bui, when the matter was set down for trial, the Crown was clearly of the view that it could prove a case. The problem was that the key witness was not available on the day. The difficulty here is that when the matter was set down for trial, the Crown knew that it did not have the evidence to prove the case but had a hope or expectation that evidence would emerge to allow it to do so.

21. It seems to me that Bui is not a decision that I am required to follow in this case, given the differing circumstances. There will always be a continuum of circumstances giving rise to an adjournment, the most probable common circumstances where an adjournment sought by either the Crown or the accused will be agreed almost immediately without dispute would be a situation where a crucial witness, either in the Crown case or in the defence case, has fallen ill or for some other reason is unable to appear on the day. There would be no question that an adjournment would be granted.

22. In Bui's case there was a crucial witness who was not available due to an administrative oversight. Mr Bui was on remand on other matters or other charges to come. At the end of the day his Honour was of the view that the adjournment should be granted. There is in this case also an absent police witness. Mr Sahu Khan has acknowledged in his submissions that the Crown made the decision last week, when it knew that it did not have the crucial evidence, that it would not recall the police officer who was the informant. I cannot be critical of that, given that the Crown knew that it did not have the crucial evidence, recalling the police officer would have been a waste of money. The police officer would give her evidence but that would not be sufficient evidence to go to a jury and secure a conviction. Her absence is not the real reason for the adjournment. I am not critical of the Crown pre-empting a decision of this Court in relation to an adjournment by not recalling the informant on the basis that the Crown knew and acknowledges that absent this computer evidence, it simply does not have a case.

23. In Bui his Honour certainly made the point, quite properly, that the proper test is that the public has an interest in the conduct of a fair trial in which both parties, and that means both the accused and the Crown have due opportunity to be heard and that an adjournment should normally be granted if failure to grant it would result in one party suffering substantial prejudice.

24. It should be observed that there is a difficulty in the criminal jurisdiction in this Territory in that costs are not normally ordered and cannot as a matter of law be ordered. In the civil side of the court, the guiding principle is that laid down by the High Court which is that the interests of justice always take precedence over case management and an adjournment will nearly always be granted where the only prejudice is costs, an adjournment will be granted with an adverse costs order.

25. I am not able to directly make an adverse costs order at the conclusion of a criminal trial (R v Scott [1993] FCA 398; (1993) 116 ALR 703; Byrnes v Barry [2004] ACTCA 25). If an adjournment was not granted and the matter called on today, the result would either be a directed acquittal due to lack of evidence or the filing of a nolle prosequi and costs could not be ordered.

26. The upshot of that would be that a refusal to adjourn the matter would be an entirely pyrrhic victory for Mr Martiniello because although the trial would not proceed today, Mr Martiniello would still incur whatever legal costs he contracted to incur with his legal advisors who, it must be said, have since 14 September 2003 been properly working on the basis that they are here today to move a two week trial on the evidence that was in the committal material. So much has been asserted by the Crown by way of the questionnaire filed in June 2004 where it was said that there would be no additional evidence and that there were no reasons why the trial could not proceed.

27. If a nolle prosequi was filed, it would be open to the Crown to re-file an indictment at a later date and the matter would then proceed again. The trial would be adjourned today but Mr Martiniello would be fully at risk of the matter proceeding at a later date and would have no recourse in relation to the substantial costs that he incurred in getting his legal team to prepare to meet the Crown case.

28. It seems to me that the fairest outcome, the outcome most in accordance with the principles of justice and fairness to both sides that Crispin J referred to in Bui would be to grant an adjournment today but to order that the further conduct of this matter be stayed until the Crown pays the reasonable costs of the defence, to be agreed or taxed. I do not understand the rule in Scott's case and Byrne v Barry to preclude me from imposing a costs requirement on a stay of proceedings following an adjournment on the Crown's application.

29. Mr Sahu Khan, on behalf of the Crown, has offered to give an undertaking in relation to a maximum of three days' costs. I do not have sufficient evidence before me to be satisfied that that is fair to Mr Martiniello. I do not know what the arrangements are between Mr Martiniello and his legal advisers. I do not know how much work has gone into preparing for this trial but I suspect it is substantial and while what may almost seem to be an indemnity form of costs order has been criticised in the New South Wales Court of Appeal, that was not, it seems to me, in circumstances like this where there is conduct on behalf of the Crown that properly should be condemned by the Court. That is to say, I have grave concerns where a matter is set down for trial in circumstances where the Crown knows at the time of setting down the trial that it does not have the evidence that it could present to a jury which would result in an acquittal and indeed knows that there is a gap in their evidence that would result inevitably in a directed acquittal if the matter were to go to trial the next day.

30. It seems to me that in this case to order the stay on the basis that the Crown pay the reasonable costs as agreed or taxed would allow the evidential issues about the real costs and the real out-of-pocket costs that Mr Martiniello has incurred by reason of the adjournment to be sorted out by an appropriate taxing officer or the Registrar and, if necessary, to list the matter back in my list and there could be a hearing on that.

31. Mr Sahu Khan says that the Crown expects that Mr Anderson will have access to the computer shortly. That is to say that the requirements of Link Communications for the undertakings to be given by the Crown before Link Communications allow them access to the machine will be granted. However, he quite properly is unable to tell me whether the machine will be capable of providing the data that Mr Anderson could use. It seems to me I have got to impose some form of time limit on when the Crown is going to sort this out.

32. The evidence before me is that since 8 September 2004, the Crown has been of the view, and I again acknowledge that it was an honestly held view, that this matter will be sorted out in a couple of weeks. But the evidence has still not been found. The matter cannot drag on indefinitely. As Mr Bellanto SC, for the defence, pointed out in argument, the Human Rights Act 2004 provides that a person charged with a criminal offence has the right "to be tried without unreasonable delay", s 22(2)(c). The right to a trial without unreasonable delay places an obligation on the DPP to determine whether or not it has evidence to go to a jury. The Crown should not list a matter for trial knowing it does not have crucial evidence.

33. Therefore, having imposed the stay subject to those conditions, I will re-list the matter to come back before me for additional directions.

34. Now the stay is subject to the costs being paid but I will allow the directions hearing to proceed in the event that the matter is still outstanding and I will expect to get an update on where you are in relation to the costs issue on 3 March 2005 and will make any further directions there, but the costs issue will need to be resolved at that point. I again make the point that I would have been minded to simply not adjourn the matter resulting in an acquittal if I thought that would have been the outcome in order to express my grave reservations and grave concerns about the process where a matter was set down for trial in the knowledge that there was an evidential gap.

35. The fact is I could not have guaranteed that result because it remains open for the Crown to file a nolle prosequi and that granting the relief that was sought by Mr Bellanto, that is to say no adjournment, would not necessarily have given the result that Mr Bellanto sought because as he himself acknowledged, I would not have been able to resist a nolle prosequi or if I did resist it, it would result inevitably in a second appellate round of argument about the effect of a nolle and the ability of the Crown to, at their discretion, pull a matter out of the list.

36. It seems to me that granting the Crown the relief it sought, that is to say the adjournment, should not be seen in any sense as a victory for the Crown in this matter. It is done on the basis that the matter be stayed unless the costs thrown away be paid and that there be a strict time limit imposed in relation to obtaining this evidence and which, it is common ground, must be available for the Crown to be in a position to go to a jury.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr AJ Bellanto SC with Mr CM Everson