R. v. O'MEARA [2001] NSWCCA 201

M. C. Grogan (Appellant) COUNSEL : In person J.K. McDonnell (Solicitor) (Intervener) S.E. O'Connor (Appellant) SOLICITORS : In person I.V. Knight, Crown Solicitor (Intervener) CATCHWORDS : CRIMINAL LAW - Practice and procedure - Stay of proceedings - Crown appeal DECISION : Appeal allowed; Order for stay discharged.

OF CRIMINAL APPEAL CCA 60081/01 DC 97/21/3206 POWELL JA WOOD CJ at CL SULLY J

JUDGMENT 1 POWELL JA: This is an application by the Crown to extend the time for appealing, and, if that extension be granted, an appeal in respect of a Judgment delivered, and order made, by Moore DCJ on 14 November 2000, by which Order his Honour stayed conditionally the further prosecution of an indictment which had been found against the Respondent as long ago as August 1997. 2 By that indictment, the Respondent was charged with three offences, they being:

1. that on 15 February 1997 at Tahmoor he did cultivate prohibited plants, being a number of plants not less than the commercial quantity;

2. that on 15 February 1997 at Tahmoor he did possess a firearm namely a .22 calibre Jennings self loading pistol, without being licensed to do so by licence or permit; and

3. that on 15 February 1997 at Tahmoor he did possess a firearm namely a 12 gauge Mossberg repeating shotgun, without being licensed to do so by licence or permit. 3 As outlined in the Crown's Written Submissions, the proceedings the subject of the order arose from a search of what is said to be the Respondent's property at Tahmoor on 15 February 1997. On that day, so it is said, a Police helicopter flew over the property whilst investigating another matter. Police in the helicopter saw a large number of cannabis plants growing on the property. The Respondent was seen standing on the verandah of the house on the property. When police attended the house the Respondent was found hiding in the roof. A search warrant was obtained and police found, in addition to those plants which had been seen growing:

(a) a large number of cannabis plants growing in a shed fitted out with hydroponic equipment;

(c) a loaded pistol and ammunition in the Respondent's car in the garage; and

(d) a loaded shotgun and ammunition under what was said to have been the Respondent's bed.

Following the search, the Respondent was then arrested and charged. 4 As best as I can judge it from some of the statements made by the Respondent during the course of the hearing of this application the Respondent asserts (inter alia):

(a) that the property was not then his property but a property which his wife had contracted to purchase;

(b) that, at the time, he - who seemingly was a licensed real estate agent as well as an accountant - was, on behalf of his wife, conducting a final inspection of the property prior to completion of the purchase;

(c) that neither the pistol nor the shotgun was his; and

(d) seemingly, that, at the time, he was not aware of the existence of the pistol or the shotgun, or of the location of either of them. 5 On 24 July 1997, the Respondent was committed for trial to the Campbelltown District Court. 6 According to the Crown's Written Submissions, between 29 August 1997 and 10 May 2000, the Respondent made various applications to Moore DCJ seeking orders that:

(a) the Director of Public Prosecutions be restrained from proceeding on indictment;

(b) the proceedings be stayed because of a lack of legal aid;

(c) the proceedings be removed to the High Court for interpretation of what were said to be constitutional matters;

(d) the indictment be quashed because of a denial of civil rights under the international Covenant on Civil and Political Rights;

(e) the indictment be quashed because the charges were said not to constitute a criminal offence;

(f) the indictment be quashed because of a breach of the Commonwealth of Australia Constitution;

Further, according to the Crown's Written Submissions, Moore DCJ, during that time, granted the Respondent a number of adjournments to enable presentation of his applications and for legal aid to be obtained; dates for the hearing of the trial on the hearing of the various Notices of Motion were vacated; on some occasions Moore DCJ was not available and, on one occasion, following the hearing of a number of applications by the respondent, his Honour reserved his Judgment for a period of time. During that time, so it is said, all applications made by the Respondent were dismissed. Finally, according to the Crown's Written Submissions, the Respondent also made various applications in the Local Court, the Supreme Court and the High Court of Australia, none of which has been successful. 7 On about 30 September 1999 - the relevance of which date will shortly appear - the Respondent caused to be filed in the Common Law Division of the Court, a Summons he which he sought against a number of defendants - including Det. Snr. Const. Rodney Grant - the following (inter alia) relief: "9. A declaration that the presence of the fifth defendant (Rodney Grant) being the informant in another matter currently before the Courts, involving the plaintiff, and with the fifth defendant having sighted and/or having had the opportunity to sight confidential case notes relating to the matter, does prejudice the plaintiff to the point where to maintain the indictment would be a miscarriage of justice." 8 Thereafter, on or about 30 November 1999, the Respondent caused to be filed in the High Court of Australia a Notice of Motion and an Affidavit in Support seeking the removal into the High Court of what was said to be "The constitutional issues contained in the above Summons". In consequence, the proceedings commenced by the Respondent in the Common Law Division of the Court were placed in a holding list to await a hearing date from the High Court. The materials which are before the Court do not reveal the fate of that application or of like proceedings in the Common Law Division. 9 Although it would appear from a Judgment delivered by Moore DCJ on 1 August 2000 that no formal Notice of Motion or sworn Affidavit in support of it was ever filed in the District Court - facsimile copies of draft Notices of Motion and of unsworn Affidavits only having been forwarded to Moore DCJ's Associate - a Judgment delivered by Moore DCJ on 10 May 2000 records that what was then thought to have been a Notice of Motion filed in the District Court at Campbelltown by the Respondent was listed for the purpose of fixing a hearing date. That Notice of Motion sought a multiplicity of orders of which the following provide a sufficient example: "1. An order that the Director of Public Prosecutions has no right of appearance in this matter. 2. An order that the Director of Public Prosecutions has no standing on the ground that any attempt by the Director of Public Prosecutions to exercise the executive powers and functions of her Majesty is in breach of the Commonwealth of Australia Constitution Act 1900 ('the Constitution'), s.2. 3. An order that the current Letters Patent to the Governor General issued by Elizabeth the Second by the Grace of God, Queen of Australia and her other Realms and Territories, Head of the Commonwealth are invalid by reason of a breach of the Constitution section 2."

In addition, that form of Notice of Motion sought the following (inter alia) order, the relevance of which will shortly appear: "7. An order that the indictment presented by the respondent against the applicant in respect of the offences the subject of the above numbered proceedings, be quashed on one or more of the following grounds: ……… (i) the actions of the informant in this matter, Rodney John Grant, participating in an unlawful seizure of property from the applicant on 23 September 1999; prime facie having access to that property seized, such seized property including, but not limited to: (1) All correspondence between the appellant and his legal advisers. (2) The originals of all statements by witnesses for the defence, including contact details. (3) Computer files recording all possible defences available to the appellant, in the event that the matter proceeds to trial. (4) The appellant's defence strategy if and when the matter proceeds to trial, has so contaminated the conduct of the prosecution case that no neutral observer could pereceive (sic): (5) That the prosecutor is neutral; (6) That the appellant's defence strategy to the charges having now been, or possibly been, made available to the prosecutor, that the appellant: (a) could now receive a fair trial according to law; (b) has not been prejudiced to an extent that a miscarriage of justice is likely to occur if the matter proceeds to trial. (7) that the appellant being unlawfully deprived of material essential to his defence, such material having taken over two years to compile, unable to be accurately reconstructed; the appellant has been unlawfully deprived, by the informant for the prosecutor, of the appellant's means to defend himself at any trial."

10 The facts upon which the Respondent sought to rely to support the application which was ultimately dealt with by Moore DCJ were set out in a form of Affidavit which the Respondent claimed to have sworn in May 2000. So far as is relevant that Affidavit was as follows: "3. On 23 September 1999, Detective Constable Rodney Grant, in company with Federal Officer Stephen Graham McTackett and numerous other persons, executed a search of my then premises at 70 Spinnaker Way, Corlette and then business premises at 251 Soldiers Point Road, Salamander Bay. The searches were conducted under the stated authority of search warrants."

then, after a reference to certain Property Seizure Records of which the Respondent had been given copies, it continued "5. I have caused a reconciliation to be made which itemises property seized and receipted, which property was not authorised by the warrant. It also soon became apparent that not all property taken has been properly receipted. ………"

A little later, after referring to what occurred when Det. Grant and the Federal agents first appeared, it continued: "11. Det. Grant and other persons then disappeared into various rooms out of my sight. I saw Det. Grant enter the study and open the cupboards where all the material relating to my defence in this matter was stored. On the evening of 22 September 1999, I had filed some material and noticed that all the property mentioned below was safely stored in one of the cupboards. After my release on bail on 23 September 1999, I was extremely concerned as to the whereabouts of the material vital to my defence in these subject proceedings. As a result of this concern, I searched the relevant cupboard, and then the rest of the house, but all material vital to my defence had disappeared during the above search and seizure. The material prepared for my defence included: (a) Names, addresses, contact details and in at least one instance, a statement, of witnesses for the defence, including details of the evidence which they would be prepared to give at trial. This evidence was critical to my defence as it came from persons who exercised on a daily basis around the Port Stephens area, and their evidence placed myself and my blue heeler dog in Port Stephens at the times I was supposedly in Tahmoor. These were independent witnesses, not known to myself, but who came forward as a result of my canvassing the Port Stephens area for witnesses immediately after the event whilst the matter was fresh in their mind. (b) Statements from the tenants of 71 Greenacre Drive, Tahmoor (the subject property) as at the date of the search and seizure. (c) Original documentation relating to the lawful possession of $30,000.00 which disappeared during the search by Det. Grant at Tahmoor on 15 February 1997. ……… (d) Sensitive and privileged correspondence between the deponent and his legal advisers; (e) Photographs of the person whom it would have been put for my defence was the person wrongly identified by various neighbours to the property; as the deponent. This was critical to the defence as one or more of the neighbours to the subject property identified the deponent as being in the vicinity of prohibited plants. (f) Statement from the person referred to in (e). He is the only witness that I have been able to locate, and he is now in a nursing home with advanced alzeimers (sic) disease. He is no longer capable of giving a statement. (g) Sound recording of threats made by police attending the premises 71 Greenacre Drive, Tahmoor on 15 February 1997, to wit: "Shoot the bastard and plant a gun on him'. (h) 141 page Affidavit of Helen Christine Langley sworn 3 February 1999. The DPP (sic) have offered to replace this document. 12. On 23 September 1999, I noticed one of the persons involved in the unlawful search of my home 'downloading' data from my computer. I said: 'I will show you how to download the data so that it is not corrupted'. He said: 'No, you will probably delete all the data with one keystroke. I see from the computer books here that someone has a substantial knowledge of computers.' I said: 'That computer has an encryption program written into it. If you attempt to download without the code you may corrupt and destroy most or all of the data'. He said: 'I know what I am doing. Piss off!' On my return to my home later that day, I started up the computer and noted that many of the files were corrupted. The hard drive on the computer was making grating noises. It was found to be beyond repair, little of the data was recoverable and I was forced to replace a computer. Information lost from the hard drive included: (a) Draft of the statements referred to in 11(a) and (e). (b) Contact details of all witnesses for my defence. 13. I verily believe that the main purpose of the unlawful search and seizure of 23 September 1999 was to allow Det. Grant access to my home so as to allow him or persons associated with him to remove all material relevant to my defence to a point where I am left defenceless."

11 In the Judgment which he delivered on 10 May 2000, Moore DCJ recorded that, on 8 May 2000, there had been two matters involving the Respondent listed before him, they being, first, an application by the Respondent to have Moore DCJ certify that a number of Judgments which he had delivered on 14 April 2000 were proper for determination by this Court on appeal; and, second, the Notice of Motion to which I have earlier referred which it was thought had been filed in the Registry. So far as the first matter was concerned, his Honour declined to give the Certificate sought. Having done so, his Honour then turned to the question of the Notice of Motion and recorded his view that, with the exception of the relief prayed in paragraph 7(i), the matters sought to be raised were without merit but that there appeared to be available to the Respondent an argument in relation to the relief sought in paragraph 7(i), albeit that that argument would not support quashing the indictment although it could be a ground for seeking a stay of proceedings "possibly conditional on the material (if it was wrongly taken) being returned". His Honour therefore indicated that he would at a later date entertain that application. 12 Before the Respondent's application came on for hearing before Moore DCJ, there had been filed on behalf of the Crown, the following:

(a) an Affidavit sworn by Federal Agent McTackett deposing to the fact that he did not partake in either the search or subsequent seizure of any documents or property which might come within the descriptions contained in paragraphs 7(i)(1) to 7(i)(4) of the Notice of Motion; that all documents and/or property seized by police or Australian Taxation Officer personnel during the search at either 7 Spinnaker Way, Corlette or 251 Soldiers Point Road, Salamander Bay were delivered to, and recorded by either Federal Agent Barnes or Federal Agent Jones; that, on occasion, those documents and property had been delivered into his custody from the secured premises of the Australian Taxation Office at Newcastle when required for investigative procedures and/or court proceedings; and that on no occasion had those documents or that property been shown, or provided, to members of the New South Wales Police Service or staff or Crown Prosecutors of the office of the Director of Public Prosecutions (New South Wales);

(b) an Affidavit sworn by Det. Snr. Const. Grant deposing to the fact that at no time did he take, seize or retain any documents or items which might come within the descriptions contained in paragraphs (i)(1) to (i)(3) in the Notice of Motion upon which the Respondent sought to rely; and that at no time had he seen any such documents or items or shown any such documents or items to staff or Crown Prosecutors of the office of the Director of Public Prosecutions (New South Wales);

(c) an Affidavit sworn by Ms. Kay, the solicitor in the office of the Director of Public Prosecutions having the carriage of the prosecution file, deposing to the fact that at no time had she been provided with any item or document which may have been seized by Federal Agents on 23 September 1999; and that, as the result of inquiries which she had made, she believed that no member of the staff of the office of the Director of Public Prosecutions nor any Crown Prosecutor had had access to any item or document or information contained therein which might have been seized by Federal Agents on 23 September 1999;

(d) an Affidavit sworn by one Rodney Brown an employee of the Australian Taxation Office in which he identified the documents and other items seized by him at 70 Spinnaker Way, Corlette, which documents he deposed were handed to Federal Agent Barnes; and further deposing to the fact that none of the items and documents seized on 23 September 1999 had been shown or provided to members of the New South Wales Police service or staff or Crown Prosecutors of the office of the Director of Public Prosecutions (New South Wales);

(e) an Affidavit sworn by Ms. Randell, also known as Ms. Rodgers, an employee of the Australian Taxation Office, identifying the documents and other items seized by her at 70 Spinnaker Way, Corlette, which documents and other items she deposed she had delivered to Federal Agent Barnes; none of which documents or items, so she deposed, fell within the descriptions contained in paragraph 7(i)(1) to 7(i)(4) of the Notice of Motion upon which the Respondent sought to rely; and deposing to the fact that she had provided none of the items or documents to members of the New South Wales Police Service or staff or Crown Prosecutors of the office of the Director of Public Prosecution (New South Wales); and, further, that on 24 September 1999 she attended at the Australian Federal Police Headquarters at Newcastle and took possession of the documents and other items which had been seized at 70 Spinnaker Way, Corlette, and 251 Soldiers Point Road, Salamander Bay, which documents and other items were then taken to the secured premises of the Australian Taxation Office, Newcastle where they were being used to investigate whether the Respondent and others may have committed any offences under the laws of the Commonwealth;

(f) an Affidavit by one Peter Ryan, an employee of the Australian Taxation Office, identifying a number of items of property which he had seized at 70 Spinnaker Way, Corlette, which items of property he deposed to having delivered to Federal Agent Barnes, and which items of property, so he deposed, he did not show to any member of the New South Wales Police Service; and further identifying a number of items of property seized by him at 251 Soldiers Point Road, Salamander Bay, which items of property so he deposed he delivered to Federal Agent Jones;

(g) an Affidavit sworn by one Roger Steel, an employee of the Australian Taxation Office, in which Affidavit he deposed to having copied the information held on a home computer at 70 Spinnaker Way, Corlette, which information, when copied, he delivered to Federal Agent Barnes; and which information, so he deposed, he did not show to any member of the New South Wales Police Service; and further deposing to having copied information held on a computer at 251 Soldiers Point Road, Salamander Bay, which information, when copied, he delivered to Federal Agent Jones; and which information, so he deposed, he did not show to any member of the New South Wales Police Service; (h) an Affidavit by Federal Agent Barnes, in which she deposed to having been the Property Recording Officer at the time of the execution of the search warrants at 70 Spinnaker Way, Corlette, and identified the Property Seizure Record which she had completed and a copy of which she delivered to the Respondent's wife at the completion of the search; and further deposing to the fact that, on the completion of the search, all seized items were taken to the Australian Federal Police office at Newcastle where, on the following day, the property which had been seized was "signed over to the custody" of Ms. Randell;

(i) an Affidavit sworn by Federal Agent Jones, in which Affidavit she deposed to having been the Property Recording Officer on the search at 251 Soldiers Point Road, Salamander Bay, identified the Property Seizure Record which she then completed and a copy of which, upon the completion of the search, she gave to the Respondent's son; and further deposing to the fact that, on completion of the search of the premises, all the items seized were conveyed to the Australian Federal Police office at Newcastle where, on the following day, that property was "signed over to the custody" of Ms. Randell. 13 The hearing of the Respondent's application commenced before Moore DCJ on 31 July 2000, on which day the Respondent was cross-examined before the matter was adjourned until the following day. On the following day after the Crown Prosecutor then appearing informed Moore DCJ first, that none of the material which had been seized in the search or which was alleged to have disappeared was in the possession of the New South Wales Police Service and, further, that she had been instructed that all material which had been seized was in the possession of the Australian Taxation Office or the Australian Federal Police in Newcastle where the Respondent might inspect all that material under the supervision of the Australian Federal Police and that if he were able to identify any material which he said formed part of his defence on the State charges that material would be copied and provided to him. The hearing was further adjourned in order to permit the Respondent to inspect that material. 14 According to a form of Affidavit which was prepared by the Respondent and which was verified by him when the hearing before Moore DCJ resumed on 10 August 2000, on 8 August 2000, in company with his wife and son, he attended the premises of the Australian Federal Police, Newcastle, for the purpose of examining material seized on 23 September 1999 and ascertaining if any of the material removed on that date, which material he said related to the defence of the State proceedings, was in the custody of the Australian Federal Police. In that form of Affidavit, the Respondent asserted that none of the material which was produced for his inspection contained the missing defence evidence. 15 By the time the hearing resumed before Moore DCJ, the Respondent had prepared a fresh form of Notice of Motion which sought the following orders: "1. The indictment against the applicant be permanently stayed on the grounds that the applicant had been unfairly and irrevocably prejudiced on the following grounds: (a) The actions of the informant in this matter, Rodney John Grant, participating in an unlawful seizure of property from the applicant on 23 September 1999; prima facie having access to that property seized; such seized property including, but not limited to: (i) All correspondence between the appellant and his legal advisers; (ii) The originals of all statements by witnesses for the defence, including contact details; (iii) Computer files recording all possible defences available to the appellant, in the event that the matter proceeds to trial; (iv) The appellant's defence strategy if and when the matter proceeds to trial (b) The actions of the informant in this matter, Rodney John Grant; participating in an unlawful seizure of property from the applicant on 23 September 1999. (i) having collaborated and/or colluded with Federal Agent Stephen Graham McTackett prior to and during the said search and seizure, and (ii) having trespassed on the applicant's property, in particular the applicant's study which held all the applicant's material relating to his proposed defence to these proceedings; (iii) having unlawfully arrested the applicant. has caused the applicant irrevocable prejudice to an extent that no directions from a trial Judge could make good and/or undo that prejudice. 3.(sic) Such further or other orders that this Honourable Court deems appropriate."

16 When the hearing before Moore DCJ resumed on 10 August 2000, the Respondent was not further cross-examined. The Crown Prosecutor then appearing tendered the Affidavits which had earlier been sworn on behalf of the Crown, only Det. Snr. Const. Grant, Federal Agent McTackett and Ms. Randall being cross-examined - in the case of Ms. Randall only very briefly and then not in relation to the events of 23 September 1999. In the course of the Respondent's cross-examination of Det. Snr. Const. Grant, it emerged that a video tape record had been made of the premises at 70 Spinnaker Way, Corlette while the search of the premises was in progress, which video tape record, so Det. Snr. Const. Grant asserted, revealed that he made no search but stood in and did not move from the family room in the Respondent's house. Despite the existence of that record, and the Respondent's assertion that Det. Snr. Const. Grant had left the family room and gone into the study in the house, the video tape record was not tendered in evidence. The Respondent's cross-examination of both Det. Snr. Const. Grant and of Federal Agent McTackett makes it abundantly clear that he claimed that the purpose for which he was arrested on 23 September 1999 at 70 Spinnaker Way, Corlette was to remove him unlawfully from the premises so that Det. Snr. Const. Grant would be free to remove from the premises evidence said to be vital to the Respondent's defence to the matters for which he had been indicted. At the conclusion of the hearing on 10 August 2000, Moore DCJ reserved his Judgment. 17 It is clear from what I have recorded that critical issues of fact to be determined by Moore DCJ was whether the materials which he identified in paragraph 11 of his Affidavit of 18 May in fact existed, and were in the premises at 70 Spinnaker Way, Corlette at the time of the commencement of the search; whether, when the Respondent returned to those premises following his arrest and later release on bail, those materials "had disappeared" and if so, whether the "disappearance" of those materials occurred on that day and because of the actions of the Det. Snr. Const. Grant or persons acting in concert with him. A further critical issue which arose was whether, as the Respondent asserted, those materials, if they had "disappeared", were materials vital to his defence of the charges upon which he had been indicted and whether, in consequence, if the trial were to proceed, the result would be an unfair trial. 18 It seems clear enough that Moore DCJ concluded that the determination of the first group of critical issues depended upon his assessment of the relative credibility as witnesses of, on the one hand, the Respondent and, on the other, of Det. Snr. Const. Grant and Federal Agent McTackett. That this was so appears from the following passages in his Honour's Judgment: "16. The starting point in the applicant's application is his assertion that the materials were at his house immediately prior to the search. The only affirmative evidence of this comes from Mr. O'Meara, by affidavit. It was the deliberate choice of counsel for the respondent not to cross-examine Mr. O'Meara on his affidavits. The learned Crown Prosecutor for the Respondent elected 'to call some evidence in response to Mr. O'Meara's affidavits and have the matter determined on that basis.' Failure to cross-examine a witness can lead a Court more readily to accept the evidence of that witness although this is not a necessary result. I do not take the Prosecutor's general election not to cross-examine, as any concession of the truth of this part of Mr. O'Meara's assertion. The various interlocutory applications brought by Mr. O'Meara have led to acrimony with the different Crown Prosecutors who have appeared from time to time. I take the present Crown Prosecutor's election as being one, deliberate, technique to attempt the speedy resolution of the matter…… ……… 20. There is evidence from people engaged in the search, that none of them became aware of any of the District Court materials, either at the search or at any time later, and that the Australian Tax Office still has all the material taken away in the search. That does bear on this issue. However, for that to be probative, it is necessary to examine the intermediate step, namely whether it is likely that there has been a coincident loss of that material due to the activities of Det. Grant or any person acting in concert with him. That is one of the ways in which all the issues are to some extent bound up with one another. ……… 21. Det. Grant swore an affidavit and was cross-examined by Mr. O'Meara. Because of his calling, he was home in the witness box. His demeanour was not such as would cause me to disbelieve his evidence. However, he clearly was antagonistic to Mr. O'Meara. ……… However, I formed an unfavourable impression about the way in which he changed his answers as to his purpose in being in Mr. O'Meara's residence. ……… 22. The purpose for Detective Grant's presence at the search, asserted by him, which I believe was his purpose in being there, and which I quote in full, was - 'I was requested by the officer from the Tax Department. He actually sent a letter to my commander asking for me to attend because I had knowledge of Mr. O'Meara's background and they believed that New South Wales offences may be detected.' ……… 27. ……… There is a noticeable absence of detail from any source, as to the activities of Detective Grant or Detective Sergeant McTackett while the search was taking place. This may be a defect of drafting technique by the lawyer who drafted the documents. I assume a lawyer did so, on instructions. ……… No attempt was made by the respondent to introduce the video tape into evidence or otherwise corroborate Detective Grant's evidence. Detective Sergeant McTackett was cross-examined by way of one 'omnibus' question and replied in kind. Thus, apart from general denial, on the affidavits, of any knowledge of anything relating to the Applicant's allegations, there is no specific evidence of the activities of Detective Grant or Detective Sergeant McTackett during the search, apart from the very limited detail which came out in cross-examination. Mr. O'Meara was arrested soon after the search started. I assume that from then, he had no opportunity to observe the search. At some unspecified time, Detective Grant left Mr. O'Meara's house by car, alone, and reached Newcastle Police Station before Detective Sergeant. McTackett and Mr. O'Meara, under arrest, in another car. 28. No doubt Mr. O'Meara's wife and son, who were somewhere at the house during the search, remained behind when the search party left. Mr. O'Meara did not present any evidence from them. There was no explanation for that. They had access to material, if any, not taken in the search, until Mr. O'Meara returned home that evening."

His Honour then recorded his findings of fact as to the critical issue as follows: "29. I find on balance, and on balance only that - (i) the materials set out in paragraphs 6 and 9 were removed from the applicant's residence during the search, and (ii) they were taken by either Detective Grant or Detective Sergeant. McTackett, and (iii) if taken by Detective Sergeant McTackett, they were taken with knowledge, at the time or soon after, of Detective Grant, and (iv) they have not been returned to Mr. O'Meara, and (v) the evidence does not permit me to elaborate on (ii) or (iii) and I do not speculate about that. Insofar as these findings are inferential, each is the only reasonable inference to draw."

(The materials referred to in paragraph 6 of His Honour's Judgment were those set out in paragraph 11 of the Respondent's Affidavit of 18 May 2000, while the materials referred to in paragraph 9 of his Honour's Judgment were those set out in paragraph 7(a)(i)-(iv) of the original form of Notice of Motion.) 19 Moore DCJ concluded his Judgment in the following way: "39. The findings made in paragraph 29 do not necessarily mean that there should be an order for a stay. I cite an oft repeated passage from the Judgment of Gleeson CJ in R. v. McCarthy and Ors . (unreported CCA 12 August 1994). 'Time and again it happens in criminal proceedings that 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 nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way to solving the problems of delay in the criminal list 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).' The materials removed from the applicant's residence are as set out in paragraph 6. Some of that material may be able to be replaced and in respect of some of it secondary evidence could be received. However, I feel that it would not be possible to relieve against the unfair consequences of the loss of that material, by way of directions for the jury. Such secondary evidences (sic) as can be obtained is (sic) of less effect than the primary evidence. This is particularly so in relation to the sound recording referred to in 6(g). There is a complete loss of evidence referred to in paragraphs 6(e) and (f). It is a fair comment by the applicant, that the evidence referred to in 6(a) is critical to his defence. It cannot be effectively replaced. There is no challenge to the applicant's evidence that such material as was duplicated on his computer hard drive, has been corrupted and is irretrievable, as a result of the activity of one of the searching officers. In the affidavit of Marianne Randall, Australian Taxation Office Officer of 20 June 2000, she says that in the material presently held at the ATO, there is one diskette which contains (in effect) material which the applicant has described 'all possible defences available to the applicant'. Even if this material has been saved, it does not remedy the other deficiencies. I observe that it is strange, to say the least, that where the material was seized on 23 September 1999 it had still not been examined on 8 August 2000. If it turns out that the material at the Australian Tax Office, if returned, will remedy the applicant's detriment, then that can be dealt with by way of an application to rescind the stay, in accordance with its terms. 40. I order a stay of proceedings, until there is returned to the applicant, such of the material referred to in paragraph 6 as is adequate to ensure that a fair trial can be conducted."

20 As will be apparent from the contents of paragraph 39 of Moore DCJ's Judgment, his Honour appears to have accepted uncritically the Respondent's assertion that the materials referred to in paragraph 11 of his Affidavit of 18 May 2000 were critical to his defence of the charges in respect of which he was indicted and that in the circumstances he could not receive a fair trial, and did not appear to examine the validity of the former assertion. 21 His Honour's approach to that question appears to have coloured his approach to the appropriate form of order for a stay to be made, which stay, as is apparent, is intended to operate until such time - which time appears to be incapable of being determined by reference to objective criteria - as there has been returned to Mr. O'Meara such of the material - the form of, and the detail contained in it, which is for the most part unknown - contained in paragraph 11 of Mr. O'Meara's Affidavit of 18 May 2000 as is adequate to ensure that a fair trial can be conducted. 22 The ground of appeal taken in the Notice of Appeal which was filed on behalf of the Crown was: "That his Honour erred in exercising his discretion to grant a conditional stay of proceedings in respect of the charges of cultivate prohibited plant (not less than the commercial quantity) and possess unlicensed firearm (x2).

1. An order vacating the order made by Moore DCJ; and

2. Such further or other orders as this Court might think fit. 23 Before the appeal came on for hearing - indeed, before the Crown's Written Submissions had been filed and served - the Respondent filed what was described as a "Submission" which contained the following (inter alia): "1.1 The respondent submits that the applicant is not competent to bring the appeal. The applicant (sic) submits that the Director of Public Prosecutions Act 1986, s.4(1), providing that 'the Governor may appoint a Director of Public Prosecutions', is invalid under the Constitution s.109 by way of inconsistency with the Director of Public Prosecutions Act 1983, s.5(2) which provides that 'There shall be a Director of Public Prosecutions' (and an Associate Director of Public Prosecutions) 1.2 The inconsistency meets the cover-the-field test, which was formulated by Isaacs J, in Cowburn's case in 1926 and re-formulated by Dixon J, in Ex parte McLean in 1930. In fact the test appeared inchoately in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR at p.154, referring to: 'repugnant Commonwealth legislation operating on the same field (then) the legislation must give way'. ……… 1.4 It is also submitted that the Director of Public Prosecutions does not have right of appearance for the following reasons; (a) the Business Names Act 1962 ('the Act'), s5 provides that it is an offence to carry on business in New South Wales without being registered under the Act. ……… (c) if the Court is to allow the Director to appear then it would condone an illegality. It is submitted that the Court is under an obligation not to condone an illegality. 'In part it is necessary to ensure that the Courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.'"

24 In the light of the matters sought to be raised by the Respondent in paragraph 1.1 of that "Submission", a Notice pursuant to the provisions of s.78B of the Judiciary Act 1903 was given and the Attorney-General for New South Wales - but not the Attorney-General for the Commonwealth - intervened in the appeal, filing submissions in respect of both matters sought to be raised by the Respondent in his "Submission". In the event, the Respondent did not, on the hearing of the appeal, seek to advance any oral submission in support of the matters raised in his "Submission". 25 Both in its Written Submissions and in the oral submissions advanced on the hearing of the appeal, the Crown accepted that, as the making or refusal of an order for a stay involved an exercise of a judicial discretion, the manner in which an appeal against the exercise of that discretion was to be determined is governed by the principles discussed in the well known passage in the joint Judgment of Dixon, Evatt and McTiernan JJ in House v. The King (1936) 55 CLR 499, 504-505 - in its Written Submissions the Crown drew the Court's attention to the Judgment in R. v. Alexandroaia (1995) 81 A.Crim. R. 286, 290. 26 In the present case, so the Crown submitted, there was error by reason of:

(a) failure to give weight to relevant considerations whilst giving undue weight to other considerations and making findings not available on the evidence;

(b) the misapplication of the relevant principles relating to stay applications; and

(c) the making of an order in terms unjust to the Crown.

27 Although the matters upon which, in the course of its submissions, the Crown sought to rely as establishing the first of the alleged errors to which I have referred in the preceding paragraph were far more extensive, it seems to me that the matters to which I refer below are sufficient to establish that Moore DCJ, in his Judgment, did err in the respect alleged. Those matters, in my view, demonstrate that, as I have earlier (para. 20 (above)) suggested, his Honour appears to have accepted uncritically the Respondent's assertion that the materials referred to in paragraph 11 of his Affidavit of 18 May 2000 were critical to his defence of the charges in respect of which he was indicted and that, in the circumstances, he could not receive a fair trial, and did not appear to examine the validity of the former assertion. 28 It is appropriate here to recall that the offences with which the Respondent was charged are three, they being:

(a) that on 15 February 1997 at Tahmoor he did cultivate prohibited plants, being a number of plants not less than the commercial quantity;

(b) that on 15 February 1997 at Tahmoor he did possess a firearm namely a .22 calibre Jennings self loading pistol, without being licensed to do so by licence or permit; and

(c) that on 15 February 1997 at Tahmoor he did possess a firearm namely a 12 gauge Mossberg repeating shotgun, without being licensed to do so by licence or permit. 29 It is also appropriate to recall that, as I have earlier (para. 4. (above)) noted, the Respondent does not appear to dispute:

(a) that on 15 February 1997 he was at the property at Tahmoor; and

(b) that the pistol and shotgun were in fact found on the property on 15 February 1997;

nor - although the Respondent disputes that he owned either the pistol or the shotgun and asserts that he was not aware of the existence of either pistol or shotgun or of the location of either of them - that the pistol was found in the Respondent's car in the garage and that the shotgun was found under what was said to have been the Respondent's bed. 30 The first group of materials said by the Respondent to have been removed from the premises at 70 Spinnaker Way, Corlette was said to contain names, addresses, contact details and, in at least one instance, the statement of witnesses for the defence, the evidence of which witnesses was said to "(place the Respondent and his) blue heeler dog in Port Stephens at the times (he) was supposedly in Tahmoor". Given that, as I have just noted, the Respondent does not dispute that he was at the Tahmoor property on 15 February 1997, it is clear, so it seems to me, that the evidence of those alleged witnesses could not bear on the firearms charges with which the Respondent stands indicted, a fact to which Moore DCJ, as is apparent, made no reference in the course of his Judgment. At best, as it seems to me, that evidence might be said to bear upon the charge of cultivating prohibited plants and then only if part of the evidence upon which the Crown would seek to rely on the hearing of that charge was evidence that the Respondent had been seen at the premises at Tahmoor at times prior to 15 February 1997 and in places at or near the place or places where the plants were being grown. No attempt appears to have been made by the Respondent on the hearing before Moore DCJ to direct his Honour's attention to the evidence sought to be relied upon by the Crown to establish that charge and still less to indicate to his Honour how the evidence of those witnesses was said to be "critical" to the Respondent's defence to that charge. Finally, it is to be observed that, despite the fact that it is almost four years since the Respondent was committed for trial, he has at no time given notice of, nor sought leave to tender evidence in support of, any alibi based upon what is said to be the evidence of those witnesses (see Criminal Procedure Act 1986 s.48). 31 The second group of materials referred to in the Respondent's Affidavit are said to be statements from the tenants of the Tahmoor property as at the date of the search and seizure, the Respondent's Affidavit containing no indication as to the contents of those statements nor any suggestion that the identity, or whereabouts, in May 2000, of those tenants were not known to the Respondent. In the absence of some indication as to the contents of those statements it is difficult to see how the Respondent would be disadvantaged by the loss of the evidence of the tenants, as it is quite impossible to know whether, and, if so, to what extent, the tenants or any of them would be able to give evidence directed towards any of the three charges upon which the Respondent stands indicted. Further, in the absence of an indication that the identities, and the then current whereabouts, of those tenants was not known to the Respondent, it would be difficult, indeed, to accept that, by reason of what was alleged to have been the taking of those statements, the Respondent had been deprived of any relevant contact details. It seems clear enough that the Respondent was aware of the identity of the tenants of the Tahmoor property as at 15 February 1997 - indeed, if, as he has asserted, he was on the property on that day carrying out a pre-completion inspection of the property, one would have thought that the names of the tenants and the nature of their tenancy or tenancies would have been included in the contract for sale and they would have attorned tenant to the Respondent's wife on completion - as also does it seem clear that the Respondent was able to obtain the alleged statements from those tenants after 15 February 1997. 32 The third group of materials alleged to have been taken from the property at Spinnaker Way, Corlette was said to have been original documentation relating to the lawful possession of $30,000.00 which disappeared during the search at Tahmoor on 15 February 1997. The relevance of that documentation - unless it is said that the presence of such a sum of money at the subject property at the time bore, in some way, upon the charge of cultivating prohibited plants - to any of the three charges upon which the Respondent stands indicted does not appear to have been the subject of any evidence tendered, or any submission advanced, by the Respondent on the hearing before Moore DCJ, nor, as is apparent from what I have recorded above, was the question of the relevance of that material to any of those charges examined or determined by Moore DCJ. 33 The fourth group of materials alleged to have been taken from the property at Spinnaker Way, Corlette is described as "sensitive and privileged correspondence between the (Respondent) and his legal advisers", a description which, if I may say so, I find decidedly curious as what I have earlier (para. 6(above)) recorded would suggest that, at least between 29 August 1997 and the hearing before Moore DCJ, the Respondent did not have legal advisers but acted for himself. But even if it be the fact that at some time the Respondent did have legal advisers, in the absence of evidence to the contrary - and there appears not to have been any such evidence - one would be entitled to think that those advisers would have retained, and would be in a position to make available to the Respondent, the originals of any correspondence from the Respondent to them and copies of any correspondence from them to the Respondent. 34 The fifth and sixth groups of materials are said to be photographs of, and a statement by, the person who, so it would be put on any trial, was the person wrongly identified by various neighbours as having been the Respondent - I assume - although the validity of the assumption may be questionable - that part of the evidence to be relied upon by the Crown on the hearing of the charge of cultivating prohibited plants was evidence by neighbours placing the Respondent on the subject property at or near the place or places where the plants were being grown at various times prior to 15 February 1997. Two things might be noted about these materials, they being, first, that they would not appear to bear upon the firearm charges in respect of which the Respondent stands indicted; and, second, that it appears clear enough (T.10/8/00 pp. 57, 60) that the person referred as the subject of the photographs is the Respondent's father-in-law, a fact which, in my view, would make it improbable in the extreme that the Respondent would not have another photograph or other photographs of him, which photograph or photographs could be used for the purpose of cross-examining any neighbour who would be called on the hearing to give evidence of the type suggested. Despite the matters to which I have just referred, Moore DCJ in paragraph 39 of his Judgment (see para. 19 (above)) wrote (inter alia): "There is a complete loss of evidence referred to in paragraphs 6(e) and (f)". 35 The seventh of the materials said to have been taken from the property at Spinnaker Way, Corlette is described as "sound recording of threats made by police attending the premises 71 Greenacre Drive, Tahmoor on 15 February 1997, to wit: "Shoot the bastard and plant a gun on him"'. While, if it were to be suggested that, on 15 February 1997 the Respondent had been shot during the course of the search and a weapon had been "planted" on him, the facts, first, that no such suggestion appears at any time to have been made, and, second, that, as I have noted above, the Respondent does not appear to deny that on the occasion of the search the two weapons were found, makes it difficult for me, in the absence of any explanation - for none was offered - by the Respondent to understand what is the relevance of the tape, even if it ever existed. 36 The various matters to which I have referred lead me, as I have earlier noted to conclude that, in uncritically accepting the Respondent's assertion that the materials referred to in paragraph 11 of his Affidavit of 18 May 2000 were critical to his defence of the charges in respect of which he was indicted and that in the circumstances he could not receive a fair trial and in failing to examine the validity of the former assertion Moore DCJ did err in the respects firstly relied upon by the Crown. 37 In seeking to demonstrate that Moore DCJ erred in the second of the respects which I have set out above, the Crown submitted:

(a) that his Honour failed to consider whether the Respondent had discharged the onus to which, in a case such as this was, he was subject to demonstrate actual prejudice due to the unavailability of evidence (reference was made to Gill v. Director of Public Prosecutions (1992) 64 A Crim. R 82, 94 ) which prejudice was incapable of being cured by an appropriate direction to the jury (reference was made to Barron v. The Attorney-General (1987) 10 NSWLR 215, 219, 233 ; R. v. Basha (1989) 39 A Crim.R 337, 338 ) so that, if he were required to stand trial, he would be deprived of his right to a fair trial; and

(b) that his Honour made no reference whatsoever to the community's right to expect that persons charged with criminal offences are brought to trial (reference was made to Jago v. District Court (NSW) (1989) 168 CLR 23, 33 per Mason CJ, 49-50 per Brennan J, 60-61 per Deane J and 71-72 per Toohey J ), which right, as Mason CJ pointed out in his Judgment in Jago v. District Court (NSW) supra is a matter to which regard must be had when an accused person makes an application for a stay of proceedings. 38 The power which, so it seems now to be accepted, all courts, be they Local Courts (Director of Public Prosecutions v. Shirvanian (1998) 44 NSWLR 129) or District Courts (Jago v. District Court (NSW) supra) or superior courts (Barton v. The Queen (1980) 147 CLR 75) have to stay proceedings, whether those proceedings be civil or criminal nature is, so it seems now to be agreed, derived from the power impliedly granted to every court to prevent its processes being abused or being used to bring about injustice. The circumstances in which it might be said a court's processes are being abused or used to bring about injustice include the commencement or maintenance of proceedings for an improper purpose (Williams v. Spautz (1992) 174 CLR 509), the commencement of proceedings which would, or the conduct of proceedings in a manner which would, lead to unjustifiable vexation or oppression (Barton v. The Queen supra) or the commencement or maintenance of proceedings in circumstances where the defendant will be deprived of his right to a fair trial. The power to grant a stay to prevent, or to rectify the consequences of, an abuse of process permits the grant of both permanent and conditional, or limited, stays, the nature of the stay granted depending upon the circumstances which have given rise to the application. Thus, a permanent stay may be based upon the court's determination that the proceedings will inevitably fail (Ridgeway v. The Queen (1994-1995) 184 CLR 19, 43) or that the proceedings involve irremediable prejudice to the accused person which interferes with the conduct of a fair trial (Jago v. District Court (NSW) supra) which cannot be overcome by appropriate directions to the jury; or that the proceedings have been brought for an improper purpose (Williams v. Spautz supra). A limited or conditional stay may be granted until such time as the prejudice to which the defendant would otherwise be subjected if the proceeding were to continue has been removed (Barton v. The Queen supra). 39 What must be established in order to justify the grant of a stay will vary in accordance with the basis upon which the stay is sought. That this is so is made clear by the following passage of the joint Judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v. Spautz supra at 518-519: "The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, 'to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial which is unfair'. This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression will result in unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose. However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought. If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it."

40 The relevance of the community's interest in seeing that persons charged with criminal offences are brought to trial is made clear in the following passage in the Judgment of Mason CJ in Jago v. District Court (NSW) supra at 33-34: "The test of fairness which must be implied 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: see Barton ; Sang ; Carver v. Attorney-General (NSW) . At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. 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: Barker v. Wingo ; Bell v. Director of Public Prosecutions , as explained in Watson , and Gorman v. Fitzpatrick . In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be rare: Re Cooney . To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson ."

41 Although paragraph 39 of Moore DCJ's Judgment, which I have set out (para. 19 (above)), would seem to indicate that his Honour appreciated the approach required to be taken to an application for a stay based upon an alleged loss of evidence, and although his Honour appears to have concluded that "it would not be possible to relieve against the unfair consequences of the loss of that material by way of directions for the jury", it seems to me that, in the absence of any real analysis of the

nature of the materials which were said to have been taken and have not been returned and of the relevance of those materials to the matters upon which the Respondent stood indicted, and in the light of his Honour's uncritical acceptance of the Respondent's statements as to the nature and relevance of those materials, his conclusion that, if the proceedings were to continue in the absence of those materials, the Respondent would be subjected to irremediable prejudice cannot be supported. Further, it is clear that his Honour did not, in the course of his Judgment, carry out the balancing exercise referred to by Mason CJ in Jago v. District Court (NSW) which I have earlier (para. 40 (above)) set out. In those circumstances it seems to me, the Crown has made out the second of the errors charged by it against Moore DCJ. 42 In the light of the matters which I have set out above, I conclude that the discretion vested in Moore DCJ miscarried and that it is necessary for this Court to exercise the discretion. That being so, I do not find it necessary to deal with the third of the errors alleged by the Crown to have been made by Moore DCJ. 43 Even if one is to proceed upon the basis that the materials to which the Respondent referred in paragraph 11 of the Affidavit which the Respondent claimed was claimed in May 2000 were in fact taken from the premises at 70 Spinnaker Way, Corlette by Federal Agents or Australian Taxation Office personnel under the supervision of Federal Agent McTackett and that those materials - other than the Affidavit of Ms. Langley - have not been returned, nor copies of them supplied, to the Respondent, what I have earlier written will, I believe, make clear that it is my view that the Respondent has failed to demonstrate that unless the proceedings be stayed until such time as those materials, or copies of them are returned or provided to him, he will be deprived of his right to a fair trial. 44 For those reasons I propose the following orders:

1. ORDER that the time for filing a Notice of Appeal be, and be deemed to have been, extended up to and including 15 February 2001.

3. ORDER that the order for a stay made by Moore DCJ on 14 November 2000 be discharged.

45 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Powell JA. I agree with his reasons and the orders he proposes.

46 SULLY J: I agree with Powell JA. **********

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