Dupas v R (2010) 241 CLR 237
Jago (1989) HCA 46177 CLR 378
Webb v R
Judgment (3 paragraphs)
[1]
Solicitors:
Crown : Ms E Copelin
Defence : Mr K Jakimoski
JK Solicitors
File Number(s): 2016/00321971
[2]
Judgment
In this matter, the very reverend Father Mitko Mitrev seeks a stay in relation to his prosecution for an offence that he, between 18 May 2014 and 29 May 2014 at Sydney in the State of New South Wales, did make a false statement on oath, knowing that statement to be false, concerning a matter material to the proceedings, namely that the parish register or dominik that he created and maintained and updated that reflected the names of parishioners of the Saint Pekta Macedonian Orthodox Church at Rockdale fulfilled the stated requirements.
Such an offence is contrary to s 327(1) of the Crimes Act 1900.
By notice of motion filed in this Court on 4 September 2013, the accused seeks that the indictment be permanently stayed and such further or other orders as the Court deems fit.
In support of the notice of motion, an affidavit sworn on 3 September 2017 of Kirco Jakimoski, solicitor for the accused, is relied on, together with a number of documents, basically being medical reports that have been tendered as part of Exhibit M1 together with the notice of motion and the affidavit in support.
It is convenient at the outset to set out the relevant test in relation to an application for a stay.
The determination of an application for a stay involves the test of fairness. Mason CJ in Jago (1989) HCA 46; 168 CLR 23 at [33] stated:
"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. At the same time, it should not be overlooked that the community expects trials to be fair and to take place at a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the courts of criminal proceedings cannot be precisely defined in a way which will cover every case but they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights, and, of course, the prejudice suffered by the accused."
His Honour continued:
"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do to the conduct of the trial can relieve against its unfair consequences' ... such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute."
The relevant principles, as referred to in Jago, were adopted in Walton v Gardiner (1993) HCA 77; 177 CLR 378 at 395-396, although that matter involved disciplinary proceedings rather than a criminal offence.
In Dupas v R (2010) 241 CLR 237, it was said that the trial judge is required to "take into account the substantial public interests of the community in having those who are charged with criminal offences brought to trial".
In respect of an application for a stay, the onus is on the applicant to establish a factual basis for the stay, and satisfy the Court that any trial would be an abuse of process.
The courts have confirmed that the onus is necessarily a heavy one; Williams v Spautz (1991-92) 174 CLR 509 (529); TSVR [2014] NSWCCA 174 at [64].
There has been a protracted dispute dating from the 1990s between the hierarchy of the church, that is, His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand, and Father Mitrev and a group of local parishioners concerning the control of the affairs of Saint Petka, including ownership of the Rockdale church and other property, the appointment or exclusion of clergy, and the proper use of monies received from parishioners.
Bishop Petar and the accused had commenced proceedings in the Equity Division of the New South Wales Supreme Court in 1997 against a number of parishioners, which continued to 2013. In those proceedings, various judges made a number of findings and declarations and orders.
In 2014, declarative and injunctive relief was sought by Bishop Petar and the accused related to those various orders which have been made by other judges in the earlier proceedings. The plaintiffs contended that the defendant Kotevich, who had been appointed as the defendant to represent a number of persons, and the plaintiffs' contention was that the defendant and the represented persons were not entitled to be members of the parish assembly and thus the association because neither the name of Mr Kotevich nor those of the represented persons appeared in the parish register or domovnik maintained by Father Mitrev.
The key issue in the proceedings before Justice Stevenson was whether it was a condition precedent of church law that to be a member of the parish assembly and thus the association, a person must be registered in the domovnik, and as part of the Equity proceedings a number of affidavits by Father Mitrev were read and he was called to give additional oral evidence over several days from 19 to 27 May 2014.
In essence, the contention was that because Mr Kotevich and the represented persons did not meet all of the purported requirements, they were therefore not listed in the domovnik and accordingly should be declared ineligible for membership in the association and be permanently restrained from voting with the association on nominating and accepting new members.
The defendant contended that many of the people who were listed in the domovnik did not fulfil the stated requirements in some instances because they were fictitious or deceased and the domovnik was not maintained and regularly updated by Father Mitrev.
The defendant contended that he and the represented persons were properly members of the association regardless of the domovnik.
Stevenson J found that on a proper construction of the church law, it was not a condition precedent to a person's status as a member of the church parish or to a parishioner's entitlement to be a member of the parish assembly (and thus the association) that such person's name appears in the parish priest's domovnik.
Accordingly, the declarative and injunctive relief sought by the plaintiffs was refused.
The Court also found that Father Mitrev had given false evidence both in the proceedings before Stevenson J and in earlier proceedings in 1997 about the circumstances in which he maintained his domovnik and related evidence. Father Mitrev was referred to the New South Wales DPP for consideration of prosecution as previously referred to.
A number of matters have been raised on behalf of the accused as relevant to the stay application. These include that in the Supreme Court proceedings the evidence was recorded by court reporters and not by way of any audio recording. Father Mitrev, when he gave evidence, required the assistance of a Macedonian interpreter.
Initially the interpreter was Slavika Bozinonski, being a qualified level 3 interpreter, born on 1 September 1958. She interpreted the questions posed in English into Macedonian and the answers given by the accused in Macedonian into English. The Court reporters recorded what was said in English by way of question and answer.
On the last day of Ms Bozinonski's interpretation, after court had concluded for the day, she fainted, apparently as a result of a urinary tract infection. The interpreting was then performed on the following days by Boris Petrusev.
Ms Bozinonski had been provided as the interpreter by the plaintiffs who were represented by Mr Parker SC.
In the intervening period since the hearing, Ms Bozinonski has retired and had a number of medical problems which, to some extent, may have been coexistent at the time of her interpreting in the Supreme Court Equity proceedings.
It is now indicated by Associate Professor Whaeratne, psychiatrist, that in his opinion, because of the deterioration in her cognitive abilities and a number of physical problems, she is no longer capable of giving evidence in the proceedings.
The applicant's solicitor, Mr Jakimoski in his affidavit at para 7 states:
"I am unable to obtain instructions from the accused about the evidence that he gave between 19 May 2014 and 30 May 2014. I am instructed that the accused cannot recall the questions of him and his answers during that time."
Prior to the introduction of tape recorders or sound recording, all matters at every level of court in this State were recorded by way of court reporters preparing a transcript. With the development of technology, sound recording was introduced resulting of course in an audio recording.
In the Supreme Court proceedings, only court reporters were used for the purposes of recording the evidence as part of the normal process. There is no requirement that proceedings be sound recorded in the Supreme Court or in this Court. It is common even in this Court for proceedings from time to time to be only recorded by way of court reporters present in the Court preparing a transcript.
It has been submitted by Mr Katsinas on behalf of the applicant that the applicant is now prejudiced because there is no audio recording of the questions as interpreted into Macedonian or the accused's response in Macedonian so that it is not possible to determine whether the English questions were properly interpreted or the Macedonian answers properly interpreted by the interpreter.
Mr Katsinas in his submissions referred to an audio recording as being the primary evidence, but in fact the primary evidence in this matter is in fact the transcript prepared by the court reporters. He has submitted that because of the lack of an audio recording, the accused is prejudiced in his defence because the accused's solicitor cannot get appropriate instructions and in the absence of the audio it makes it impossible to raise any defences such as honest mistake, carelessness, misunderstanding or inadvertence, and that the accused is therefore prejudiced.
In essence, he has relied on the fact that there is no audio recording, that the interpreter is not available, and that because of the medical evidence being extracted from a number of medical reports and the evidence of Associate Professor Whaeratne, that there is a real risk that Ms Bozinonski was at the time of the interpreting suffering from a cognitive defect such that any interpretation by her into Macedonian or from Macedonian could not be relied on as accurate.
In my view, the evidence available from the medical reports and from Associate Professor Whaeratne simply indicates that it is possible that Ms Bozinonski may have been suffering from the onset of cognitive deterioration. However, on the evidence before me I am of the view it is purely speculation as to whether her ability to accurately interpret in the proceedings in 2014 was affected in any way at all, let alone in any significant fashion.
I note that in his submissions Mr Katsinas has relied on the cases of R v Reeves (1994) 122 ACTR 1 and R v Davis (1995) 57 FCR 512. Each of those matters related to the destruction of primary documents such as financial records or patient health records either before or after the institution of the criminal proceedings.
This matter is substantially different. There never was an audio recording to be destroyed, nor was there ever required to be an audio recording of the Supreme Court proceedings.
Mr Jakimoski in his evidence indicated that he had supplied a copy of the whole of the transcript in English to the accused, to be dealt with by the accused in such fashion as he thought fit, that is, either by endeavouring to read it in English or arranging for someone to interpret it into Macedonian for him.
Mr Jakimoski's assertion at para 7 of his affidavit needs to be understood in the light of his evidence on the stay application. As previously referred to, he said:
"I am unable to obtain instructions from the accused about the evidence that he gave between 19 May 2014 and 30 May 2014. I am instructed that the accused cannot recall the questions asked of him and his answers during that time."
In his evidence yesterday, he indicated that in order to obtain instructions he would interpret what was recorded in the transcript in English as the question and the answer into Macedonian and then ask the accused what precise words had been used by the interpreter in Macedonian in interpreting the question to him and what precise words he had used in answering in Macedonian for the interpreter to interpret into English; that is, he was not seeking to obtain instructions in the general sense as to whether the offender had understood the question or whether the interpreted answer represented his answer.
I note in that regard that the quality of the instructions is hindered by the fact that although Mr Jakimoski may well be fluent in Macedonian he is not an accredited interpreter. I have no doubt at all that the accused, with appropriate assistance in relation to the questions and answers recorded in the transcript in English, with the assistance of an interpreter being put to him, would have little difficulty in recalling whether they represented the effect of his answers and understanding of the questions.
The transcript still exists. It has not been destroyed like the documents referred to in the matters of Reade and Davis.
Possible defences such as honest mistake, carelessness, misunderstanding or inadvertence would be readily discernible from the accused's memory of the events, assisted if needs be by the transcript being interpreted into Macedonian.
For the purpose of this application, I have read the entirety of the transcript given in the Equity Division commencing on 19 May 2014 by the accused. Evidence by him was given on 19, 20, 21, 22 and 23 May 2014, interpreted by Ms Bozinonski. Further evidence was given by him, interpreted by Mr Petrusev, on 27 May 2014.
Although each of the parties has only referred to some specific parts of the transcript, I note as indicated that I have read all of Father Mitrev's evidence. I do not intend to take the time to refer to all of the pages referred to by Mr Katsinas or by Mr Hughes for the Crown on the application, at least in the sense of the detail of what was referred to. Some of the more significant materials are referred to at pps 26 and 27, 28 and 29 to 30, 33, 61, 62, 65, 67, 88, 150, 153, 157, 171, 179, 204, 242 and 243. I will simply note in relation to the relevant parts of those pages that they have been highlighted by me as to what I consider to be the relevant parts of the transcript provided as part of Exhibit 1 on the application.
It is evident on a small number of occasions that the accused provided an answer in English. It cannot be determined, however, from the transcript whether the question in English had in fact already been interpreted to him in Macedonian, but I note from the evidence in the Supreme Court, Father Mitrev has been in Australia, and as I understand it, the local priest at Saint Pekta, since approximately 1995. While it is always appropriate for witnesses whose native tongue is not English to have the assistance of an interpreter, it is unlikely that he has not acquired some knowledge of English in the intervening period.
However, more significantly having considered all of the transcript and the particular portions I have been taken to by counsel for the parties, I am of the view that the interpreter, Ms Bozinonski, was extremely careful to ensure that her interpretations were accurate and appropriate. On a number of occasions she sought to refer to her dictionary in order to ensure accuracy or indicated to the Court that she had used a particular interpretation for a word used in English in order to ensure that the Court and the parties understood any impact or potential impact on the question as interpreted into Macedonian. On some occasions, having provided an interpretation and the proceedings moved on, she then indicated that in the previous interpretation she had used a particular interpretation to ensure that the Court understood how she had performed the interpretation.
There is no indication in the transcript that there was any significant problem in relation to her conduct in interpreting at any time, nor has any specific matter been raised on this application. Rather, the Court is asked to speculate about potential defects in her cognitive ability as a result of her subsequent deterioration.
As I have indicated, this is not a case where there has been destruction of records or a relevant period of delay amounting to a fundamental defect that goes to the root of the trial. In this instance, the proceedings were recorded and transcribed in the normal manner in the Supreme Court Equity Division, that is, by court reporters, without the benefit of a sound recording.
There is a legitimate public interest in the disposition of any serious allegation of perjury. Public confidence in the administration of justice would be eroded if a witness, particularly a priest on oath, were able to avoid prosecution for the serious offence of perjury simply because evidence was given through the use of an interpreter to a court which did not sound record its proceedings.
Counsel for the accused has submitted the accused is denied the opportunity to advise his legal representatives of a possible defence of genuine mistake. Even without the accused having access to an audio recording of his own evidence or the opportunity to examine Ms Bozinonski, in my view the evidence points away from the false statements being genuine mistakes and supports the aspect of knowledge. For example, the updates to the domovnik, being the central issue in relation to the proceedings that did occur, had a temporal connection with the significant events in the legal proceedings resulting in the inference that the versions of the domovnik were not a genuine attempt to keep a record of church membership.
There was also apparently a large volume of errors in the domovnik and the existence of a strong motive for the accused to give false evidence. Further, the fact that the accused in his evidence modified his position in relation to aspects of his evidence under re-examination is not consistent with any defence related to speculation about this translation.
The health of Ms Bozinonski is unfortunate as it makes her unavailable. However, the state of her health at the time she carried out her duties as an interpreter, on the face of the record, was not in any way adversely affected, nor, as I have expressed, in my view, does the evidence called on this application, either by way of the tender of documents or the evidence of Associate Professor Whaeratne demonstrate any necessary cognitive defect that would have adversely impacted her ability to appropriately interpret.
In particular, I have noted on occasion that some of the answers provided by way of interpretation into English were very lengthy and detailed, that is, in my view they demonstrate the interpreter's ability to take account of what had been said by the accused in his answer in Macedonian and interpret it into appropriate English.
In this matter it is not as though the Crown case turns on a single answer but rather the effect of the general tenor of the accused's evidence as to what he did in relation to the compilation from time to time of the domovnik, and such evidence as indicates that his evidence in that regard was false.
In Webb v R; R v Webb [2012] NSWCCA 216 it was said that the Court should look at what areas of challenge or confrontation "would realistically present themselves in the context" of the trial as opposed to "theoretical" questions.
In Webb at [66] it was stated:
"Because a permanent stay of criminal proceedings is a wholly exceptional step, it has been said that it should be ordered only in an extreme case: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 and 282 [55-] [56] Spigelman CJ."
At [68] it was stated:
"The fact that loss of primary evidence does not of necessity render a trial unfair, it was emphasised by the Full High Court in R v Edwards [2009] HCA 20; 83 ALJR 717 at 722 [31]:
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available. Documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than of the materials which could relevantly bear upon the matter does not make the trial unfair."
In R v McCarthy NSWCCA 12 August 1994, Gleeson CJ as he then was observed at p 11:
"Time and time again it happens in criminal proceedings for any one of a variety of reasons witnesses who may be regarded as important by one side or the other die or become ill or lose their memory or lose documents. If the result of that were that nobody could obtain a fair trial and the proceedings had to be permanently stayed, it would go a long way towards solving the problems of delay in the criminal lists in this State. However, the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial or that proceedings need to be stayed. In this connection I refer to what was said in R v Adler (unreported CCA 11 June 1992) and R v Goldberg (unreported CCA 23 February 1993)."
That statement has been applied on a number of occasions both by the Court of Criminal Appeal and by single judges in this State, as referred to in Webb at [70].
As I have already indicated, in my view, the circumstances that there is no audio recording and that Ms Bozinonski is now not fit to give evidence do not make it impossible for the accused to raise any necessary defence such as honest mistake, carelessness, misunderstanding or inadvertence.
Accordingly, the application for a stay is dismissed.
[3]
Amendments
01 October 2020 - Incorrectly typed case name in text and on cover sheet amended.
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Decision last updated: 01 October 2020