Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kapsis Solicitors (Accused)
Legal Unit, New South Wales Crime Commission (NSW Crime Commission)
File Number(s): 2017/354632
[2]
JUDGMENT
Robert John McCloskey is charged on a joint indictment with Sami Esko Hamalainen with the murder of John Salafia on 23 June 2013.
On 27 August 2019 Wright J dismissed an application by Mr Hamalainen for a separate trial, and dismissed applications by both accused for trial by judge alone: R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176. An application for leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) was made to the Court of Criminal Appeal in respect of the refusal to separate the trials. On 15 November 2019 the Court of Criminal Appeal upheld the appeal, and ordered that Mr Hamalainen be tried separately from Mr McCloskey: Hamalainen v R [2019] NSWCCA 276.
In the meantime, on 29 August 2019, Fullerton J vacated the trial of both accused fixed before Wright J to commence on 2 September 2019.
Mr McCloskey's trial was subsequently fixed for trial by Fullerton J at an arraignment on 6 December 2019. The trial was fixed for 29 June 2020 before me.
I called the matter up on 31 March 2020, principally to determine whether there was to be a judge alone trial in the circumstances of the COVID-19 virus and the difficulties of being able to conduct jury trials. Two other matters were raised at that directions hearing. One concerned a likely motion on behalf of the accused for a stay of a further trial unless the Crown paid costs thrown away by reason of the vacation of the earlier trial. The other matter concerned the possibility of the resolution of the trial itself. The matter was stood over to 1 May 2020 so that the parties could report back on those matters.
At the directions hearing on 1 May 2020 the Crown prosecutor said this:
HUGHES: … [T]here is another matter which I need to alert your Honour to now which may have bearing on timetabling, or may not. The Crown has been in correspondence with the New South Wales Crime Commission. We have, with the approval of the Crime Commissioner, sent some correspondence just yesterday to the accused's representatives, and I necessarily speak somewhat elliptically, but it may well be that the Crown makes application under s 45 of the Crime Commission Act if that is a matter that we cannot resolve with the Crime Commission, s 45 being a section which your Honour may well be very familiar with. If we can avoid the need for your Honour having to litigate that then we will and I have told Mr McMahon of that to the extent that I am lawfully entitled.
HIS HONOUR: Yes. If that had to be litigated that would need to be done I suppose during May, is that right? This month I mean?
HUGHES: Ideally, your Honour, yes. Just as to that, the Crime Commission has indicated that the intermediary step that the Crown has asked the Crime Commission to consider, which I can't, unfortunately, disclose at this stage, but something of a mid point, the Crime Commission have indicated that they would have an answer to us they believe by the end of next week, so I don't know where that would leave us, but certainly, given the listing date for the trial, the sooner that matter can be determined the better.
HIS HONOUR: I am going to be on leave throughout May for the next four weeks. I think in the circumstances if there was a need to have that matter brought on you would need to make contact with the associate to the List Judge, Justice Fullerton, and she may be able to deal with it or allocate another judge to deal with that aspect of the matter at least.
Towards of the end of the directions hearing I said that I would adjourn the directions hearing to 1 June 2020:
… and I will leave the issue of the Crime Commission to counsel to work out if it arises. ... I will let Justice Fullerton know that an approach might be made to her in relation to that and the Crime Commission during May and you are free to approach her Associate about it if it arises.
The matter was listed before Fullerton J on 19 May 2020,
for the purpose of enquiring of counsel as to whether a proposed application for a stay is to be pursued.
Her Honour made directions in that regard. Nothing was raised in relation to the Crime Commission.
Nevertheless, the Crown filed a notice of motion on 26 May 2020 seeking a certificate under s 45(4) of the Crime Commission Act 2012 (NSW) in respect of evidence given before the Crime Commission on 30 days from 16 February 2015 to 13 April 2018. The notice of motion also sought orders under s 45(5) in the event that a certificate was given.
The affidavit in support by a solicitor at the ODPP said only this:
3. On 7 February 2020, the Crown received communication that the NSW Crime Commission may be in possession of material that could be relevant to the prosecution of Robert McCloskey and Sami Hamalainen in relation to the murder of John Salafia.
4. On 12 March 2020, the Crown received communication giving a brief summary of what material the NSW Crime Commission may possess.
5. On 30 April 2020 a direction was received. On 30 April 2020, the legal representatives of the accused were notified that the Crown would make an application pursuant to s.45 of the Crime Commission Act.
When the Crown sought to move on that motion at the directions hearing on 1 June 2020, I observed that it was a very late application, given that it was not the first time that the trial had been fixed for hearing. The Crown prosecutor said that the first time he became aware of the transcripts was when correspondence was received from the Crime Commissioner in March. He said that attempts were made to circumvent the need for the application but they were not successful. He accepted that it was "quite late in the day".
The Crime Commission did not oppose a certificate being given under s 45(4) of the Act. Counsel for the Crime Commission offered two alternative approaches in relation to the supply of the transcripts of the examinations. The first was to identify those parts of the transcript where there would be a public interest immunity claim, together with the summary of the transcripts which would help to expedite my analysis of them. The alternative was simply to provide copies of all of the transcripts without markings so that I could reach a view under s 45(5). I said that I would prefer the former course but that I needed all of the material.
The material was provided to me on 3 June 2020. It consisted of a confidential affidavit from the Executive Director (Criminal Investigations) at the Crime Commission, setting out a summary of evidence given by each of the witnesses who appeared at the Crime Commission together with the statements of those of the witnesses who were listed as witnesses at the trial. The transcript itself consisted of more than 1,750 pages.
On 15 June 2020 I refused the application under s 45(5) in relation to Mr McCloskey and said that I would provide my reasons at a later time. These are my reasons for that refusal.
It became apparent that, although the summary provided by the Crime Commission of the evidence of each of the witnesses was helpful in the first instance, it was clear that a proper assessment to be made of the relevance of the evidence given at the examinations for the trial and the public immunity issues raised by the evidence would require a reading of all of the transcript, together with the statements of those witnesses who have provided them for the purposes of the trial. That exercise was not able to be achieved within the times available prior to the commencement date of the trial.
In R v Hawat (No 1) [2019] NSWSC 1583 N Adams J made reference to the considerations concerning release of Crime Commission evidence set out by Hamill J in R v Qaumi (No 11) [2016] NSWSC 252, and then went on to say:
[89] Returning to the other discretionary factors militating for and against publication, I have had regard to those identified by Hamill J and added some of my own. I wish to emphasise that I am not suggesting that these matters were or were not present in the case before me; I state them as a matter of general principle. In doing so, I am satisfied that the starting point is that it is to be presumed that the evidence is not to be released unless the statutory test is met.
[90] It seems to me that matters militating in favour of disclosure might include:
(1) If the witness is already a Crown witness. It would then be necessary to have regard to whether the contents of the compelled testimony is consistent or, to quote Hamill J "patently inconsistent" with their anticipated trial evidence;
(2) If the evidence is highly probative of an important issue at the trial;
(3) If the evidence is exculpatory of the accused;
(4) If the witness consents to the release of the material.
[91] Similarly, it seems to me that matters militating against disclosure might include:
(1) If the release of the material may place the witness in physical danger. As stated above, informers may be the target of reprisals. Expressions of fear by the witness in the course of their Crime Commission testimony will be a factor militating against the release of the material;
(2) If the witness refused to answers questions at the Crime Commission and was prosecuted under s 25(2) of the Crime Commission Act for such refusal. In these circumstances it is unlikely that the witness would give evidence in court, even under threat of being held in contempt of the court. In an extreme case, there is also a risk that such a witness could attempt to abort the trial if compelled to give evidence in court;
(3) If a witness gave false or misleading evidence to the Crime Commission. This would impact on the witness's credibility;
(4) If the answers in the compelled testimony are fanciful;
(5) If the ODPP application for the material was not made in a timely manner and release of the compelled testimony would lead to the trial having to be vacated.
In my opinion, the application by the Crown for this material was not made in a timely manner, and no satisfactory explanation has been provided for that. In the first place, it may be observed that the nature of the killing and the persons involved made it very likely that the Crime Commission would have been investigating the murder of Mr Salafia, together with his associates and the persons charged in relation to his murder.
The affidavit in support of the motion by the solicitor at the ODPP is suitably vague as to the circumstances of the communication from the Crime Commission on 7 February. Nothing is said about whether and when any enquiries had been made by the ODPP of the Crime Commission prior to that time. The fact that this trial was fixed for hearing in September 2019 is also not without significance when it appears that no prior application under s 45 has been made.
Secondly, although the issue of Crime Commission transcripts was raised in passing at the directions hearing on 31 March 2020 at a time when the Crown had a brief summary of what material the Crime Commission might possess, no motion was filed in that regard until 26 May 2020. While I accept that efforts might have been being made between the DPP and the Crime Commission to avoid the need for a motion, there is no other explanation of why a motion was not filed until one month before the new trial date.
Thirdly, the parties were advised that I would be on leave during May and that, if an application was to be made under s 45 of the Crime Commission Act, such an application ought to be made to Fullerton J who was the Criminal List Judge. No such application was made nor even foreshadowed when a separate application was listed before her Honour. There is no explanation for that.
In R v Munshizada, Danishyar and Baines [2020] NSWSC 566 Fagan J, when faced with a similar untimely application under s 45, said this:
[17] The evident purpose of subs (4) and (5) of s 45 is to require a court in which a criminal trial is to be conducted to mediate between, on the one hand, the confidential and compulsory information-gathering processes of the Commission and, on the other hand, the usual requirement of full disclosure by investigating authorities to an accused. Practical difficulties arise from the legislature having conferred this responsibility on the court of trial.
[18] The processes of assessing the desirability of disclosure and of weighing up considerations that favour non-publication depend heavily upon full knowledge of the case to be run by the prosecution. The Office of the Director of Public Prosecutions is able to discharge its general obligation of disclosure because it has intimate and detailed knowledge of the case to be run and, through co-operation with police, it has access to information about the investigation. Sub-sections (4) and (5) of s 45 assume that a trial court is in a similar position to the prosecution for the purpose of judging whether Crime Commission material should be disclosed. That assumption is mistaken. The trial court can only reach a position of being able to make such a judgment, and even then an imperfect one, by undertaking a detailed advance examination of the prosecution's intended case.
[19] The pre-trial analysis of the Crown case that is made necessary by an application under s 45(5) will in all cases be a substantial exercise but particularly so in prosecutions of any complexity. It is not the invariable practice of trial judges to read the prosecution's evidence in detail in advance. It is often preferable not to do so, in order that the trial judge should be attuned to the case as it is presented to the jury and should not be distracted with the statements of witnesses who may not be called or who may give oral evidence that departs from their statements. The more a trial judge is encumbered with material that will not go to the jury, the greater the risk of mistake. Pre-reading of the Crown's evidence to the extent called for by an application of this nature will in most cases add to the amount of judge time that has to be allocated to a trial and may of itself cause delay where the application is brought close to the trial commencement date.
[20] An application under s 45(5) also requires careful review of the material produced by the Commission. Where this consists of 1,200 pages of transcript, as in the present case, that is another substantial exercise, with similar consequences for length and delay of criminal proceedings. The Commission could streamline applications of this nature by preparing for the Court a precis or condensed form of each examination transcript, eliminating, for example, answers that involve only evasion, prevarication or repetition. The transcripts reviewed on the present application included hundreds of pages on which the examiner was not able to elicit anything of substance from the examinee.
[21] The Commission submitted to the Court a timetable of further steps to be implemented if it should be found, to a prima facie level, that the evidence had relevance to the foreseeable issues in the trial and that its release to the prosecution and defence may be warranted. The further steps were set out in an aide memoire, reproduced in the Schedule to this judgment.
[22] According to this timetable, before release the Commission would have an opportunity to review the transcripts for public interest immunity. There would be an adjournment during which the Crown Solicitor's Office would be briefed on any such issue and then a closed court hearing on public interest immunity. According to the Commission's timetable, if the Court considered it necessary to notify any of the examinees of the intended release of the transcripts, this "may take some time, the length of which will be unknown until after the process has commenced". The Commission proposed further closed court hearings of the examinees, when located, in the absence of both the prosecution and the accused. It proposed a final closed court hearing in which the prosecution and defence could make submissions on the ultimate issue under s 45(5).
[23] From this it is apparent that the Commission regards a Crown's s 45(5) application as a potentially significant piece of satellite litigation. If all of the suggested processes had been required in the present case, the trial could not have commenced on its scheduled date of 30 March 2019 and probably not for some weeks thereafter. In the event, the prima facie stage was not reached and it has not become necessary to determine whether an application under s 45(5) need become as complicated and time-consuming as the Commission suggests. However, it is apparent that the bringing of applications of this nature should not be deferred by the Crown to dates as close to the commencement of the relevant trial as occurred in this case. A similarly belated application was made in a related trial listed to commence on the first day of term in 2020. There the Crown made an application under s 45 on the third last Court sitting day of 2019.
[24] Taking into account the elaborate nature of the procedure envisaged by the Commission for these applications, if they are not brought in good time they are bound to delay and disrupt trials. In R v Hawat (No 1) the scheduled trial date had to be deferred approximately one week to enable the trial judge to examine the intended Crown case, review some 1,200 pages of material from the Commission and decide an application of this nature. In my view responsibility falls upon the Crime Commission to make itself aware of the listing of trials in relation to which it may hold relevant information and to notify the Crown under s 15A of the Director of Public Prosecutions Act at the earliest possible date. At the time of the trial date being fixed the Crown should make known to the Criminal List judge whether there is to be an application under s 45 so that sufficient hearing days can be reserved by the appointed trial judge to deal with it, well before the trial.
I entirely endorse what Fagan J said in those passages. It is necessary for the ODPP and the Crime Commission to establish a protocol to avoid late applications by the Crown for access to Crime Commission material under s 45.
There was simply insufficient time available to me prior to the commencement of the trial to assess the transcripts properly, in order to see whether the interests of justice required the release of any portions of them. In circumstances where this trial had already been vacated on one occasion, it was unacceptable that it should be again vacated.
I was grateful for the offer of the Crime Commission to provide summaries of the transcripts, and to direct attention to passages the Crime Commission believed might contain relevant material. However, because I must be satisfied that the interests of justice require the evidence be made available to the parties, it will be necessary for me to look at the whole of the transcript before reaching satisfaction under section 45(5). This is because the Crime Commission cannot be expected to know, and will frequently not know, the issues at trial in respect of which the evidence in the transcripts can be assessed.
The process is not concluded at the time when the judge has read the transcripts. The course that must then be followed requires notification to the witnesses concerned followed by a private hearing with the Crime Commission and, perhaps, the legal representatives of any witnesses. An example of what may be required in procedural terms is set out in my decision in R v Jaghbir (No 1) [2020] NSWSC 762. The need for a timely application is made clear by that procedure.
It is for these reasons that I refused the Crown's application in respect of Mr McCloskey.
[3]
Amendments
22 September 2020 - Publication restriction lifted.
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: 22 September 2020