CRIME - fraud - application for temporary stay - voluminous expert report - funding for senior and junior counsel
Cases Cited: Dietrich v R [1992] HCA 57
177 CLR 292
Source
Original judgment source is linked above.
Catchwords
CRIME - fraud - application for temporary stay - voluminous expert report - funding for senior and junior counsel
Cases Cited: Dietrich v R [1992] HCA 57177 CLR 292
Judgment (2 paragraphs)
[1]
Judgment
This is an application by Helen Rosamond seeking a stay of proceedings in relation to a criminal trial in which she faces a substantial number of allegations of fraud, broadly described. The application is brought by way of Notice of Motion dated 7 October 2021 and is supported by an affidavit of her solicitor, Mr Arthur Aguirre, similarly dated 7 October 2021. The trial is presently fixed to commence in the Sydney District Court on 25 July 2022 with an estimate of 4 months.
In order to give consideration to the application it is necessary to provide an overview of the background to the prosecution.
The Crown allegation, put succinctly, is that over a period of 5 to 6 years, there was a systematic defrauding of the National Australia Bank (NAB) by Ms Rosamond and her alleged co-offender, Ms Rosemary Rogers. The total amount of the alleged fraud would appear to have been in the vicinity of $25 million.
The Crown Case Statement indicates that an event management company, Human Group Pty Ltd, provided services to the National Australia Bank whereby they organised and managed events and functions for the bank over approximately a twelve-year period. The detail of the services provided is not of direct relevance for present purposes but it suffices to note that during the twelve-year period, NAB paid in excess of $118.6 million to the Human Group for the provision of such services.
At relevant times, the present applicant was the sole director of that company and effectively controlled it.
During a nine-year period from early 2009 until the end of 2017, Ms Rosemary Rogers held the position of Chief of Staff to the Chief Executive Officer of the National Australia Bank. She was a highly trusted employee of the bank and had been employed by NAB since 1995. Her position of influence and trust was exemplified by the fact that she held a financial delegation to authorise payments of up to $20 million per transaction. Amongst other duties, Ms Rogers organised events, particularly for senior executives, run by the Office of the Chief Executive Officer.
From time to time, a contractual service agreement between Human Group and the NAB was extended. Ms Rogers was directly involved in engaging the applicant's firm, Human Group, on a day-to-day basis for functions and events and was also in charge of approving invoices from Human Group that were submitted for payment.
From at least 2013 until the time she resigned at the end of 2017, Ms Rogers, or members of her extended family, received numerous financial benefits from the applicant in these proceedings, Ms Rosamond, via her firm, Human Group. These payments and benefits included luxury holiday accommodation and travel, international travel, the provision of pre-paid credit cards, the purchase of boats, a motor car and a caravan, together with payment of substantial home renovations and the payment of a deposit for the purchase of a holiday house.
In the Crown case, there was an ongoing arrangement between the applicant, Rosamond, and Ms Rogers that the provision of "kickbacks" or secret commissions to Ms Rogers as an employee of NAB would ensure that Human Group continued to be used by the Office of the CEO at the NAB to provide ongoing event management and function organisation. Ms Rogers would also approve for payment invoices which were either overinflated or for non-existent services. Her delegated authority meant that she was able to approve the inflated invoices without any scrutiny.
59 of the 73 counts contained in the indictment relate to identified payments or purchases for the benefit of Ms Rogers or members of her family. Each identified payment or benefit is alleged to have been as an inducement or reward for Ms Rogers, in her capacity with the NAB, showing favour to the applicant's company in relation to the business of Ms Rogers' employer, the National Australia Bank.
Twelve counts in the indictment relate to the dishonest obtaining of a financial advantage by deception. Each of those counts relate to the alleged issuing of inflated invoices to NAB, variously for amounts ranging between several hundred thousand dollars and up to approximately $3.3 million.
Two further counts relate to the publishing or use of false documents in order to obtain a financial advantage. One such count related to the issuing of a false invoice for $2.2 million with respect to the provision of services relating to the recruitment of the former Premier of NSW into the Bank's service, whilst the other count related to false documentation with regard to an amount of approximately $500,000.
A brief perusal of the particulars in the 59 counts relating to the provision of benefits to Ms Rogers is illustrative of the nature of such emoluments. By reference to approximate amounts and dates, the allegations relate to:
$3200 for flights and $1600 for accommodation at Crown Towers in February 2013;
in March 2013, a holiday to Sydney for relatives of Ms Rogers to the value of approximately $4800;
A payment of birthday party costs for one of her family in the amount of approximately $70,000;
In April 2013, provision of flights to Fiji for $7,500;
Between May and July 2013, the provision of a pre-paid MasterCard worth in excess of $37,000 and payment for a European holiday in the amount of approximately $160,000;
In the latter part of 2013 and early 2014, a cash transfer of $350,000;
In October 2013, a holiday at a resort in Wolgan Valley, NSW for Ms Rogers and her extended family in the amount of approximately $45,000;
A further pre-paid MasterCard worth $10,000;
In December 2013, a payment for accommodation at Crown Towers Melbourne for $4000 and a payment of $145,000;
In February 2014, flights and accommodation worth approximately $40,000;
In March 2014, payment of a bay liner boat valued at approximately $46,000;
In April 2014, a holiday to Fiji worth $24,000;
In May 2014, a pre-paid MasterCard worth in excess of $96,000;
In June 2014, a holiday to the United States for the Rogers family valued at $620,000;
Between August 2014 and January 2015, a payment of patio renovations at the Rogers' premises worth approximately $130,000;
In August 2014, a holiday to the Gold Coast worth $35,000;
In September 2014, a payment of party costs at a winery for $15,000;
In October 2014, further accommodation at Crown Towers Melbourne worth over $2000;
At the end of 2014, payment for a BMW X5 motor vehicle for in excess of $170,000;
In October 2014, travel from Melbourne and a holiday at Wolgan Valley resort worth approximately $65,000;
In November 2014, accommodation at Crown Metropol worth approximately $4,500;
In December 2014, payment of Marina berthing fees for the Rogers' boat worth $7500;
In early 2015, payment for a caravan worth more than $90,000;
In February 2015, payment of a holiday to Tasmania worth approximately $30,000;
In April 2015, a holiday for Ms Rogers' family and her sister's family, a total of 8 persons, for a holiday at a privately-owned island in Fiji worth $250,000;
In April and May 2015, flights to Adelaide worth approximately $4000;
In June 2015, accommodation at Crown Towers Melbourne worth $26,000;
In July 2015, flights to Sydney and then a holiday in Broome for Ms Rogers' sister worth $25,000;
In August 2015, a further holiday at the Wolgan Valley Resort to a value of $55,000;
Between October 2015 and October 2016, the provision of prepaid MasterCards worth $220,000 in total;
In December 2015, a further payment of $7,500 for marina berthing fees;
In January 2016, over $5000 worth of flights and accommodation to Perth;
In January 2016, flights to Chile for Ms Rogers' nanny worth over $6000;
In April 2016, two occasions of accommodation at Crown Towers in Melbourne worth in excess of $12,000;
In April and May 2016, payment of $115,000 for an upgraded boat (plus trade in);
Between May 2016 and May 2017, payments for renovations at the Rogers' premises worth approximately $470,000;
In June and July 2016, additional accommodation on a number of occasions at Crown Towers Melbourne totalling in excess of $33,000;
In August 2016, a further holiday at the Wolgan Valley Resort worth in excess of $75,000;
Between September 2016 and September 2017, several occasions of accommodation at Torquay valued in excess of $4000;
In October 2016, a holiday at Berkeley River in Western Australia worth in excess of $26,000;
In December 2016, further extended accommodation at Crown Towers Melbourne valued in excess of $18,000;
In January 2017, further marina berthing fees of $7,500;
In February 2017, payment for dinner at Heston Blumenthal of approximately $1500;
In March 2017, further accommodation at Crown Towers Melbourne for approximately $3,500;
In April 2017, a further holiday for the Rogers' family and her sister's family to Port Douglas worth over $65,000;
In August 2017, a further holiday for the Rogers' family and her sister's family worth over $47,000;
In September 2017, flights and accommodation to Sydney worth over $10,000 and in September 2017, payment of a $380,000 for a holiday house for the Rogers family.
All of these payments were made by Human Group and authorised by the accused. The recipient in each case was either directly to Ms Rogers or payment of the provision of flights, accommodation and other expenses for her family or her extended family.
In due course an investigation into what was suspected to be fraudulent conduct by their employee led NAB to call in the NSW and Victoria Police. A forensic accountant, Mr Fehon, was initially retained by solicitors acting on behalf of the National Australia Bank, King & Wood Mallesons, with a view to providing professional forensic accounting assistance to NSW Police with respect to the bank's original confidential investigation into the allegation of fraud against the bank.
In due course, Mr Fehon was directly engaged by NSW Police with the stated objective of identifying NAB-related funds which had been used for non-NAB-related purposes. The court on the present application has been provided with the expert witness statement of Mr Fehon which sets out the background and nature of the extent of his very substantial investigation. The court has not been provided with the voluminous annexures to which reference is made. Mr Fehon's statement makes it clear that the ultimate purpose of his investigation was to quantify the alleged misappropriation and to determine how each of the amounts had been recorded in the MYOB accounts of the Human Group company.
The forensic accounting report, and the investigations undertaken in the course of preparing that report, was extraordinarily expansive. The National Australia Bank had first been alerted to the allegation of it having been the victim of fraudulent activity following receipt of a letter from an anonymous whistleblower in early December 2017. The letter claimed that "Rose", in due course ascertained to be Ms Rosemary Rogers, was receiving gifts and/or benefits from Helen Rosamond and Human Group Pty Ltd. The letter identified particular alleged gifts or benefits as including an amount of $1.5million being paid directly into Rose's NAB account which had been drawn from the Human Group St George Bank Account. It also identified the purchase of a boat as well as cash payments which were said to have been couriered "to Rose's office".
Ms Rogers would appear to have been permitted to immediately resign from her position at NAB on 11 December 2017.
The contract for provision of services and event management between Human Group and NAB was terminated in February 2018. In the course of the NSW Police investigation, search warrants were executed on Human Group business premises, their accountants, and also the personal residence of Ms Rosamond.
The scope of the investigation which the forensic accountant was asked to pursue included quantifying the alleged misappropriation during an identified period between 1 July 2014 and 28 February 2018. This focused relevant period was identified, notwithstanding information that the alleged fraud may have commenced as early as 2007 or 2008. The detailed and wide-ranging investigation included analysis of the contractual relationship between NAB and Human Group; identifying and quantifying any budgets, forecasts or costings provided during the relevant period; quantification of amounts paid to NAB during the entire contractual period between December 2005 and February 2018; and a forensic accounting investigation into identified NAB projects during the relevant period.
The ultimate report was completed by August 2019 and served as part of the prosecution brief. There were two separate reports attached as exhibits to the statement of Mr Fehon. The first related to management of the Human Group and the NAB contract and what is described as "investigation methodology". The second report related to quantification of the alleged misappropriation. Four volumes were also attached as an additional exhibit which set out what is described as "detailed project analysis" for each of the financial years ending 30 June 2015 - 30 June 2018. The extensive investigation and work undertaken apparently included the utilisation of some 25 employees of the forensic accounting firm and included examination and analysis of a very substantial amount of material collated and acquired by NSW Police. It also included the actual interviewing of potential witnesses.
A strikeforce had been formed by NSW Police and considerable resources were utilised in ongoing meetings and liaison with identified officers of the police investigation by the forensic accounting team. It would appear that the cost of such a concentrated level of assistance to the police investigation was borne by National Australia Bank although the forensic accounting team were, from July 2018, subject to a confidentiality agreement with respect to all the data and information provided by NSW Police. That confidentiality agreement is also said to have precluded the forensic accountant from providing any information pertaining to the details of the investigation, including interim or final findings, to either the principal original retaining firm of solicitors (King & Wood Mallesons) or to NAB itself unless permitted or directed by NSW Police.
The breadth and detail of the investigative forensic accounting team's enquiries embraced the total payments made by NAB to Human Group between December 2005 and February 2018. This was a total of slightly more than $118 million. During the identified relevant period (July 2014 - February 2018) in excess of $35 million was paid to Human Group by NAB. The report also examined assets and personal expenditure and tax returns of both Ms Rogers and Ms Rosamond as well as the detailed accounts of current and former corporate affiliates connected with Ms Rosamond. An analysis of the various structures including the hierarchy of employees in both Human Group and the NAB were also undertaken and in some instances set out in schematic diagram form.
The expanse of the investigation and the number of persons retained in pursuit of such detail, may cast some light by way of explanation on the circumstance that the entire report and investigation by that forensic accounting team is said to have cost approximately $3.8 million. It appears clear that much of the report is, prima facie, beyond the relevant expertise of an accountant. The actuarial aspect of the forensic accounting report would appear principally to have derived from identified expenditure from NAB, on the one hand, and from MYOB records maintained by Human Group, on the other, together with tracing funds through bank and other expenditure records.
As noted earlier, Ms Rosamond was charged in March 2019. Her alleged co-offender, Ms Rosemary Rogers, was also arrested and charged in March 2019. The forensic accountant's report and its voluminous attachments and annexures were served in August 2019. In the same month, August 2019, civil proceedings were brought in the Supreme Court of NSW by the NAB. In due course, freezing orders were made to preserve the assets of Ms Rosamond and Human Group Pty Ltd. Copies of the various orders made in the Supreme Court in that regard have been tendered in these proceedings. Those orders prevent disposing of, transferring, dealing with, or diminishing the value of any assets up to the unencumbered value of $23 million. Exceptions to the order related to ordinary living expenses and also paying reasonable legal expenses incurred in respect of both the civil and criminal proceedings.
In October 2019, Henry J stayed the civil proceedings pending the outcome of criminal proceedings against Ms Rosamond. A copy of her Honour's judgment, NAB v Human Group Pty Ltd [2019] NSWSC 1404, has also been tendered in the present application as an annexure to the principal affidavit relied upon under the hand of the applicant's solicitor, Mr Arthur Aguirre.
In February 2020, the alleged co-offender, Ms Rosemary Rogers, entered pleas of guilty with respect to some 36 counts.
On 12 March 2020, the applicant was committed from the Downing Centre Local Court to stand trial in the District Court. Following a number of adjournments, the applicant was arraigned on 31 July 2020 and the matter was listed for trial on 26 July 2021.
I should note in passing that although the accused applicant entered pleas of not guilty with respect to all 73 counts on the indictment, she was apparently arraigned in what the court file notes as "short form". Neither party has raised any jurisdictional question with respect to the present application. I am satisfied that an indictment has been filed and presented such that jurisdiction is vested in this court for the purpose of seeking a stay of the proposed trial (in this regard, see the discussion regarding the jurisdiction of the District Court in Jago v District Court of NSW (1989) 87 ALR 577 per Brennan J at 585 to 589; see also Kolalich v R (1991) 57 A Crim R 237).
In December 2020, the freezing orders were varied so as to extend to the assets of an identified company (ACN). There was a dispute between the NAB and Ms Rosamond and Human Group as to whether or not $3.8 million of assets held by that company were caught by the original freezing orders. The detail of various interactions between the solicitors then acting for Ms Rosamond and solicitors acting on behalf of the National Australia Bank are set out in a further judgment of Henry J: National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900.
Henry J ultimately determined that the original freezing orders did not preclude Ms Rosamond and Human Group dealing with the assets of ACN to pay for their ordinary living and reasonable legal expenses in accordance with the original exceptions to the freezing order. However, following a detailed analysis of the source and transfer of funds to ACN, her Honour varied the freezing orders so as to prevent the applicant utilising the assets in ACN for the purpose of legal expenses. Her Honour considered it to be significant that an amount of approximately $670,000 of ACN's funds had already been utilised to pay legal and other expenses of which some $76,000 had been paid since the original freezing orders were made. Her Honour was not satisfied that the circumstances of the serious criminal charges and the then upcoming four month trial justified a conclusion that Ms Rosamond's interests outweighed the proprietary interests that NAB held in such funds.
In the course of her Honour's judgment, she referred to evidence called from the accountant for Ms Rosamond and Human Group who provided evidence with respect to the flow of funds evidence and a tracing analysis relied upon by the plaintiff, namely NAB. Mr Costain, the accountant, would appear to have given detailed evidence regarding cash reserves held by Human Group and substantial additional funds said to be owed by other clients than NAB. Her Honour ultimately determined that the freezing orders should be varied so as to prevent Ms Rosamond and Human Group from accessing the assets held by the company, ACN.
Presumably as a consequence of the inability to fund private legal representation of senior and junior counsel, which had been anticipated, a change of solicitor in respect of the criminal proceedings would appear to have taken place as a consequence of the decision of Henry J in December 2020. The present solicitor acting on behalf of Ms Rosamond, Arthur Aguirre, applied for and received a grant of Legal Aid on 9 February 2021. Following a non-acceptance by the Public Defenders on 17 February 2021, Mr Aguirre applied for an extension of the Legal Aid approval so as to include approval for senior and junior counsel together with conference and preparation time, and also approval for an expert accounting report which was said to be at an approximate cost of over $1 million. That request for further funding was approved in part by the Legal Aid Commission on 21 April 2021. It was, however, restricted to senior counsel without the assistance of a junior and, significantly for the present application, no approval was given for a forensic accounting report.
There had been a number of mentions of the criminal proceedings in the District Court whilst the various approvals being sought from Legal Aid were clarified.
On 23 April 2021, the District Court was advised that approval for Legal Aid in the qualified sense that I have described above, had been received but that funding was being requested for a detailed forensic accounting report. A solicitor from Legal Aid also appeared to keep the District Court appraised of the matters being considered by the Legal Aid Commission.
The material tendered in this application and annexed to Mr Aguirre's affidavit indicates that Mr Greg James QC had prospectively been retained.
A further submission by Mr Aguirre to the Legal Aid Commission expressed the strong view that without a forensic accountant's report, the matter against Ms Rosamond could not be properly defended and would not be able to proceed to trial. A request for junior counsel to assist Mr James QC was also made as well as additional conferences than the number which had been approved.
On 4 May 2021, the Grants Division of Legal Aid determined that the request for an expert forensic accountant's report at an estimated cost of $1 million and the request for dual counsel as proposed by Mr James QC were not approved.
On 7 May 2021, at a mention of the criminal trial, Mr Aguirre indicated that a notice of motion would be filed seeking to vacate the trial date which had been fixed to commence on 26 July 2021 with, as noted earlier, an estimate of 4 months.
Legal Aid subsequently advised, on 24 May 2021, that there was no right of appeal to the Legal Aid Review Committee against the scope and extent of the grant of aid which had been approved.
On 8 June 2021, an application for the dates fixed for the trial in July 2021 to be vacated was acceded to by Jeffreys DCJ. No transcript of his Honour's reasons has been provided in the present application. A chronology of proceedings in the District Court included in the Crown Tender Bundle indicates that the trial was vacated on the grounds that the accused did not have senior counsel briefed. I note that Mr Greg James QC appeared on the application and it would appear that his appearance was limited to an appearance on the motion to vacate. The affidavit in support of the application set out the chronological background of the involvement of Mr Arthur Aguirre, solicitor. It indicated that both senior and junior counsel had advised the solicitor, following receipt of the brief from the previous solicitors, that given the volume of material the matter would not be able to be prepared for trial in the 10 weeks available between the time of the filing of the notice of motion in May 2021 and the date for the trial in July.
Of some significance, in addition to the availability of counsel, the applicant's solicitor deposed in his affidavit that the Crown brief included a forensic accountant's expert report which was described as being in excess of 26,000 pages and said to have been commissioned "by an interested party". The affidavit in support on the motion asserted at [22]:
"The Crown case is largely based on assertions, assumptions and conclusions made in that report. The report remains untested."
Mr Aguirre also deposed as to his strongly held view that the matter could not properly be defended in the absence of a forensic accounting report to respond to the report relied upon by the Crown. Such view was said to have been confirmed by both senior and junior counsel. The trial was sought to be vacated on the basis that the current approved Legal Aid grant was inadequate to fund the preparation of the matter generally, failed to provide for junior counsel in addition to senior counsel, and did not provide for the preparation of an expert accountant's report in response to that relied upon by the Crown. It was further submitted that even in the event of approval for an accountant's report for the defence, there was inadequate time for such a report to be prepared prior to the date fixed for trial.
In all of these circumstances, Jeffreys DCJ vacated the trial date.
On 9 July 2021, a fresh date for the trial was fixed for 25 July 2022, again with an estimate of 4 months.
On 10 September 2021, the proceedings were again mentioned in the District Court seeking a timetable for an application for a temporary stay which was proposed to be brought on behalf of Ms Rosamond. In accordance with that timetable and notice of motion, submissions were filed on behalf of the applicant and a response was filed by the Crown including an outline of submissions. The matter came before this court on 25 October 2021. Following an outline of oral submissions, the matter was adjourned to permit the Court time to peruse the material which had been filed. The matter resumed on 27 October when full oral submissions were developed and heard. Judgment was then reserved.
PRINCIPLES
As articulated by Mason CJ and McHugh J in Dietrich v R [1992] HCA 57; 177 CLR 292; 199 ALR 385 at CLR 297-298; ALR 386:
"…the common law of Australia does not recognise the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system."
In the particular circumstances attending the trial against Mr Dietrich before the Victorian County Court, the High Court held that in circumstances where he was required to appear unrepresented, in all the circumstances of that case, he had been deprived of his right to a fair trial and of a real chance of acquittal. The real chance of acquittal had turned on the circumstance of the defence alleging that the heroin the subject of various counts on the indictment had been "planted" by either police or prison officers. The text of a note sent by the jury during the course of their deliberations, and the fact of a not guilty verdict being returned with respect to one of the items of heroin, undoubtedly played a part in the majority determining that a real chance of acquittal had been lost as a consequence of the offender not being represented by competent counsel.
As Gaudron J held, the trial of Mr Dietrich was not one in which it could be said that the conviction which had been sustained was inevitable. Gaudron J drew a distinction, as did Dawson J, that in a case involving the denial of an opportunity to obtain legal representation, whether through a Legal Aid scheme or privately, there would be a denial of a right to trial with representation. Such a trial would be fundamentally flawed so that, without further enquiry, a conviction entered against such an accused would have to be set aside. In her Honour's view, Dietrich's case was not a case of that kind. As her Honour noted (at CLR 376; ALR 447), the case was "one in which the accused was unrepresented because he lacked means to provide for his defence and because he was refused Legal Aid."
In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, the majority, per Mason CJ, Deane and Dawson JJ, clearly indicated that the types of injustice which may justify a stay of proceedings of a criminal prosecution were not closed. Their Honours said that the jurisdiction to stay proceedings on grounds of abuse of process "extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness." (at CLR 393) Thus proceedings which could clearly be seen to be foredoomed to fail or where there was a manifest abuse of process, would justify a court in exercising a discretion to stay proceedings. The majority referred to the judgment of Gaudron J in Jago v the Queen (1989) 168 CLR 23 at 58 where her Honour said that the exercise "is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands."
In the present application, there has not been a refusal of Legal Aid, as occurred in Dietrich, with a consequential absence of representation. In the present matter, the unfairness or injustice which is asserted derives from the claimed inadequacy of the grant. That submission rests upon two aspects of the asserted inadequacy of the grant of Legal Aid funds going respectively to the failure to allow for the provision of junior counsel in addition to senior counsel, and the declining of the application to fund the acquisition of a forensic accountant's report estimated at a cost of approximately $1 million.
At the heart of the application is the proposition that the accountant's report which has been served as part of the Crown brief is critical to the determination of the guilt or otherwise of the accused applicant. In the applicant's written submissions, the expert report is described as "central to the prosecution case". The reported attachments are described as running to some 46,000 pages. (I am unaware as to whether the reference to 26,000 pages in the supporting affidavit is correct or which of the figures may in fact be a typographical error. I do not see any necessity in ascertaining precisely how many pages include printouts, bank statements or other supporting documentary material).
The cost of that report as being in excess of $3 million is relied upon in highlighting its asserted significance in the prosecution case.
The applicant seeks to rely upon a report from an experienced costs consultant who has apparently examined the detail of the prosecution forensic accounting report and has estimated, on a conservative basis, that a fair and reasonable amount for engaging a forensic accountant to review the prosecution report is an amount approaching $1.6 million. That sum is supported by an estimate from an accounting firm.
It is asserted by the applicant in her counsel's written submissions, that the "central foundation" of the Crown case is established by that expert's report and that it will be necessary to challenge the evidence through well-prepared and detailed cross-examination. It is submitted that it is essential that the accused has the benefit of an independent expert to review the methodology, assumptions and raw data upon which the prosecution report is based. It is further urged in those written submissions that the applicant's solicitor has been unable to retain senior counsel who are prepared to act without the assistance of a junior in light of the amount of work involved in preparation. Accordingly, the absence of a Legal Aid grant extending to junior counsel is pressed as a further basis on which a stay of the proposed trial should be granted.
Before turning further to the detail of the application, it is significant, in the applicant's submissions, that what is sought is a temporary stay, rather than a permanent stay.
The learned Crown Prosecutor, Mr Prince, urges that what is in fact being sought is, in essence, a permanent stay conditioned upon the absence of a reconsideration by Legal Aid and the continued existence of the freezing orders in the Supreme Court.
Dr Hughes, on behalf of the applicant, submits that the temporary stay application requires different considerations to those in which a permanent stay might be granted. He relies upon the observations of the Court of Criminal Appeal in Re K [2002] NSWCCA 374 where the court, per Beazley JA, Sully and Simpson JJ, granted a temporary stay of a trial in the District Court as a consequence of adverse publicity which had created unacceptable risks to the holding of a fair trial against the particular accused of the same racial origin as other well-publicised offences. The refusal by the trial judge to effectively adjourn the trial so that the effect of the publicity might dissipate, was overturned by the Court of Criminal Appeal who stayed the trial temporarily to a future date at least six weeks later following the conclusion of identified sentence proceedings against another person. Those circumstances are manifestly far removed from those in the present application.
Bathurst CJ, with whom Bellew J had agreed, in R v Seller and McCarthy [2015] NSWCCA 76; (2015) 89 NSWLR 155 dealt with a refusal by a primary judge to grant either a permanent or a temporary stay. Seller and McCarthy had been the subject of examinations by the Australian Crime Commission, which examinations were compulsory and in respect of which the privilege against self-incrimination had been claimed. The distribution of transcripts of those interviews and the intention of the Commonwealth DPP to call an officer of the Australian Taxation Office who had been present during some of the examinations and had access to the transcripts, led to the granting of a permanent stay by Garling J in respect of a proposed trial. A Crown appeal against that stay was successful although dissemination of the transcripts was found to be improper and had the potential to prejudice a fair trial. As there was no evidence of actual prejudice, the prosecution was able to continue although without access to the transcripts.
The proceedings were subsequently assigned to Button J as the primary judge. In pre-trial procedures, motions were brought by the accused seeking a variety of orders. The primary judge made orders prohibiting the identified officer of the Australian Taxation Office from giving evidence but declined to stay the proceedings either permanently or on a temporary basis. It had been contended on behalf of the accused that members of the prosecution team might have had access to the material and that in those circumstances the continued prosecution was inherently unfair.
The Crown appealed against the ruling prohibiting the ATO officer from giving particular evidence. The accused persons also appealed against the refusal to grant a stay of proceedings because of the possibility of the inadvertent dissemination of the compulsorily acquired material. Both appeals were dismissed by the Court of Criminal Appeal. The Court agreed with the finding by the trial judge, Button J, that the circumstance of the Australian Taxation officer being fully aware of the compulsory examination had such an influence on his evidence such as to preclude him from being able to give evidence, in order to ensure a fair trial. The court was not persuaded to the view, argued on behalf of the appellant accused, that the possibility of dissemination of the material to other persons in the prosecution team would warrant a permanent stay.
Grounds upon which the appellant accused submitted that there was "a real risk" that the compulsorily acquired material had assisted the prosecution were examined in detail. Bathurst CJ agreed with the finding of the primary judge that the possibility of such an unsourced disclosure was not sufficient to make the orders which had been sought. The existence or possibility of that risk was not such as would justify either a permanent or temporary stay of the proceedings.
Seller and McCarthy, properly understood, and as detailed in the judgment of Fullerton J with whom the Chief Justice and Bellew J both agreed, indicated that the unfairness in the trial brought about by the dissemination of compulsorily acquired material was capable of being remedied by discretionary orders of the trial judge of the very kind made by the primary judge in that case. The potential risk relied upon by the accused appellants was insufficient for the grant of a stay.
In the present application, Dr Hughes submitted that it was not necessary for the accused to demonstrate that she would not have a fair trial. In his submission it was sufficient to establish that there was such a risk.
I do not accept that submission as a blanket statement of principle. An assessment of the level of risk of an unfair trial is required to be made. Where such a risk is a mere possibility, such a risk will not justify either a permanent or temporary stay.
Circumstances in which a temporary stay of a criminal trial were sought during the course of a trial were dealt with by Garling J in R v Warwick (No 64) [2019] NSWSC 163 and also in R v Warwick (No 69) [2019] NSWSC 1059 per Fullerton J. The circumstance in which a temporary stay was sought before Fullerton J arose as a consequence of a Mr Warwick having terminated the services of his previous legal representatives. In considering the application (which was in due course refused) her Honour said at [50]:
"Even were I to find the termination of the applicant's relationship with Legal Aid NSW, and with counsel retained by them to act on his behalf, was his fault (in the relevant sense), but that there remained a reasonable possibility that the applicant might obtain alternate legal representation without unacceptable delay, the question whether, as a matter of discretion, after a balancing of the competing interests, the stay ought be granted to secure that representation would arise (see R v Small (1994) 33 NSWLR 575 at 590-591)."
The circumstances in which a trial has been found to be unfair such as to warrant a permanent stay, or in some circumstances a temporary stay, are both many and varied. In some instances, deficiencies in evidence sought to be relied upon by the prosecution have been considered to be of such significance as to create such prejudice that a fair trial cannot be conducted. Such prejudice on occasion arises because of substantial delay in the commencement of a prosecution. Cases in which there has been great delay between the dates upon which it is alleged that offences occurred can create such prejudices.
In R v Littler [2001] NSWCCA 173, alleged sexual assaults which were variously said to have occurred as early as 1955 and as late as 1963 were said to have resulted in prejudice which fell into three main classes. The first concerned the unavailability of numerous potential witnesses who were dead, demented, or otherwise unable to be identified. A lengthy list of Marist Brothers who had been on the staff of Westmead Boys Home had been provided to the trial judge.
Adams J examined other cases in which the absence of evidence to assist the defence had in some cases led to the granting of a stay and in others had not led to such a result. In R v George Adler (Unreported, NSWCCA 11 June 1992), Gleeson J had said
"…the fact that a witness who was potentially able to corroborate an accused is, for one reason or another, such as death, disappearance, or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial…"
In a number of other identified and unreported cases, an assessment had been made of the possible significance of evidence which was said to be unavailable. However, even in such circumstances where the evidence which might have been able to be given was known, a permanent stay had not been granted. In R v Tolmie (Unreported, NSWCCA 7 December 1994), Hunt CJ at CL pointed out that it was not possible to assess the prejudice that the accused might have suffered as a result of missing evidence since nothing was known of what evidence, if any, the two unavailable witnesses could have given.
Such circumstances, whilst not justifying a stay, were dealt with in the course of the trial by directions given to a jury requiring them to consider the prejudice occasioned by delay and the possible absence of available evidence.
Such circumstances were different in R v Stringer [2000] NSWCCA 293 where the issue at the proposed trial was whether sexual activity between consenting males had occurred before or after the complainant had turned 18 years of age. The District Court trial judge, Shillington DCJ, had made an order permanently staying the trial based upon the impossibility of the accused being able to obtain objective material which could verify his contention that the relevant acts had occurred after the complainant was 18 years of age. The detailed records which were unavailable included employment records, airline passenger manifests, and accommodation details which related to precisely which year a holiday had been taken and other source material such as banking records. The trial was held in 1999 and the offending conduct was said to have occurred between 18 and 20 years earlier. The loss of such records was held by the trial judge to have resulted in irreparable unfairness to the accused. His Honour accordingly granted a permanent stay.
On appeal by the Crown to the Court of Criminal Appeal, Grove J said at [11]-[16]:
"11 It is well established that a permanent stay should not be granted simply because witnesses or evidentiary material have become unavailable or lost: R v Adler unreported CCA 11 June 1992; R v Goldberg unreported CCA 23 February 1993; R v McCarthy unreported CCA 12 August 1994; R v Tolmie unreported CCA 7 December 1994; R v Hatfield [1999] NSWCCA 340.
12 Every case must nevertheless be determined in the context of its own facts and there is undoubted jurisdiction to stay proceedings to prevent unfair trial. Although the jurisdiction involves the exercise of discretion, the circumstances will usually have to be extreme for such relief to be given; Jago v District Court of New South Wales 1989 168 CLR 23; The Queen v Glennon 1992 173 CLR 592; R v Tolmie supra.
13 Were the employment or accommodation records or the passenger manifests accessible, it is reasonable to conclude that they would be determinative of the issue joined between the prosecution and the respondent - did the acts charged occur in 1980 or 1981? I am conscious that this does not exactly recite the dates in the indictment but it is a broadly convenient statement of the substantial issue.
14 The situation is to be distinguished from those where records simply might be of assistance to an accused. Of course, in this case the records may determine the issue in favour of the prosecutor but there is nothing to suggest that the chances are other than equal, either way.
15 Shillington DCJ concluded that there was no way in which a jury could be adequately instructed so as to avoid unfairness in the conduct of the trial. It was submitted by the Crown that it would suffice to draw the attention of the jury to the disadvantage suffered by the accused as a result of delay and consequent absence of corroborative record and to caution them to take this into account as a restraining influence against conviction. Such a direction would not adequately focus attention upon the essence of the issue namely whether there is a reasonable possibility that the records, if available, would determine the contested issue in favour of the accused. In the present circumstances, that question would have to be answered in the affirmative. The perception of unfairness is not altered by the necessity of a similar affirmative answer to the congruent question whether there is a reasonable possibility that such records would determine the contested issue in favour of the prosecution.
16 Subject to the next matter with which I will deal, it is not demonstrated that Shillington DCJ acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, has mistaken facts or has not taken into account some material consideration and his exercise of discretion on the issue presented for his decision was untainted: House v The King 1936 55 CLR 499."
However, the law making an act such as buggery a criminal offence, irrespective of the age of the participants, was current and applicable in both 1980 and 1981. The circumstance that the complainant might have turned 18 was irrelevant to a consideration of such an offence. Accordingly, the majority, Grove J and Smart AJ, held on that basis that the permanent stay should be quashed and the trial should proceed in the District Court. Adams J dissented. His Honour was of the view that given the decriminalisation of the act between consenting males having been abolished as a crime in 1984, it would be an injustice to permit the prosecution to proceed on the basis of time not being of the essence.
Smart AJ, in agreeing with Grove J, that the trial should not have been stayed, made some additional comments. His Honour said at [134]:
"It is not reasonably open to a Court to regard the loss or absence of any useful records as usually being sufficient in itself to justify the grant of a permanent stay. This is not a case such as Davis (1995) 81 ALR 156. He was a medical practitioner who had seen thousands of patients and his clinical records had been destroyed in circumstances where no blame had been attributed to anyone. The alleged offence had occurred many years previously. Without his clinical records the doctor would not be able to say what he did and why and to give instructions to his counsel."
It is trite to observe that in more recent times, a veritable plethora of historical sexual abuse cases have come before the court. The nature of such complaints often leads to what in other circumstances might be viewed as inordinate delay. The unfairness which is occasioned may lead to the granting of a permanent stay, but it is to be observed that the circumstances are generally exceptional.
In R v Edwards [2009] HCA 20, the High Court set aside an order for a permanent stay of proceedings which had been made in the Supreme Court of Tasmania. In the Supreme Court, the trial judge had held that the overall delay in proceedings being commenced, together with the absence and loss of significant primary evidence, persuaded him to grant the application for a permanent stay.
The factual background to the trial which came before the Supreme Court of Tasmania in 2008 arose from circumstances relating to the operation of an aeroplane which had taken off from Launceston Airport in darkness, without the necessary runway lighting having been turned on, on the night of 23 October 2001. The trial judge had determined, by reference to the decision of the High Court in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, that the absence of the identified evidence, together with delay, meant that a continuation of the trial could constitute an unacceptable injustice or unfairness. The test had been misstated as the High Court had approved a formulation as to whether continuation of proceedings "would involve unacceptable injustice or unfairness".
The High Court examined the prejudice said to be occasioned by the delay in initiating proceedings and the loss of electronic data which may have resolved the issue of whether the runway lights were or were not active at the relevant time. The Court held that the fact that a tribunal of fact was called on to determine issues of fact with less than all of the material which could relevantly bear upon the matter in issue, did not make a trial unfair. The court went on to say at [33]:
"It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition. It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case."
CONSIDERATION
The asserted inadequacy of the grant of Legal Aid in that it does not extend to the retaining of junior counsel as well as senior counsel, would not, of itself, warrant the granting of a stay, either temporary or permanent. In Wong v R [2001] WASCA 32, the trial of the accused had continued in circumstances where he withdrew the retainer of the legally-aided junior barrister who had been briefed at the very commencement of the trial. The basis upon which instructions were withdrawn was that it was argued that the complexity of the case required representation by senior counsel. The submission was buttressed by the proposition that senior and junior counsel were retained for the prosecution.
In rejecting a ground of appeal based on the circumstance that the accused had been required to continue the trial unrepresented, the Western Australian Court of Appeal distinguished the situation referred to in Dietrich. Pidgeon J said at [57]:
"It would not have been a proper exercise of discretion for her Honour to adjourn the trial. Apart from the enormous public expense and the future delay likely to be caused to the lists, an adjournment would not have resulted in the appellant being represented. As much of the legal aid assigned was wasted, it would be unlikely that he would again receive legal aid. In my judgment the Court ought not, and no Court would, stay the matter until Queen's Counsel is assigned."
In the Crown's written submissions, reference was also made to Hamilton v DPP [2012] NSWSC 1365. The peculiar circumstances of that case related to the exclusion from the Local Court during the hearing of evidence from a complainant in an allegation of sexual assault, of the defendant's son, who was a solicitor and who had been acting for him in the lead up to the hearing. Notwithstanding his exclusion during the hearing of the evidence of the complainant because of the fact of a closed court, a competent local solicitor remained in court during the hearing. A challenge to conviction because of the exclusion of the defendant's son was not upheld. SG Campbell J said at [58]:
"…a fair trial according to law is not necessarily denied by the unavailability, or absence, of a favoured legal representative, if a competent representative appears."
No question had arisen about the local solicitor's competence and accordingly the absence of the defendant's son did not create an unfairness that would lead to a quashing of the conviction.
The trial of the accused, Ms Rosamond, would not be unfair were she to be represented by a single counsel, whether silk or a competent junior. The Crown has indicated that the prosecution will be conducted by single counsel although such a factor is not determinative in a consideration of the fairness of the trial (see the remarks of Pidgeon J in this respect in Wong v R at [52]-[54]).
The absence of second counsel, whether considered as a factor on its own, or in combination with the asserted amount of preparation required, or in combination with the potential absence of a further forensic accounting report, would not in my view justify either a temporary or permanent stay.
With respect to the focus on the expert accounting report, there are a number of competing considerations. The significance of any expert in a criminal trial will be tempered by the importance of their opinion with respect to the factors at issue in the proceeding. Trials regularly proceed where an expert called on behalf of the prosecution is subject to rigorous cross-examination by competent counsel without, in many instances, the availability or instruction or assistance from an expert retained on behalf on an accused. The chemical analysis of prohibited drugs; the identification of DNA or fingerprint evidence; the analysis of blood spatter; and the identification by ballistics experts of, for example, bullets connected with a particular weapon; the extent of wounds or other injuries, and a multitude of other examples, are instances in which cross-examination, preceded by appropriate research and preparation by a competent practitioner, is regularly pursued in criminal trials without the further addition of defence experts.
An assessment of whether or not an expert should be retained on behalf of an accused will often be a decision which will be influenced by the financial capacity of an accused, by the significance or critical nature of the expert evidence to the issues at trial, and by questions as to the likelihood of a contrary opinion to that relied upon by the prosecution.
Undoubtedly, similar considerations will be brought to bear by the Legal Aid Commission in deciding whether or not the expenditure of public funds is justified in a particular circumstance.
In the present matter, the essence of the Crown case, as I described earlier in these Remarks, is that the accused, Ms Rosamond, corruptly supplied benefits by way of payment for goods or services and in some cases, by direct transfer of money, for the benefit of an employee of the National Australia Bank in order to ensure both the continuity of work being provided from NAB to the company controlled by the accused and, on the Crown's case, to ensure that inflated invoices for services rendered, or purportedly rendered, would nonetheless be paid.
In the present matter, the defence consistently have sought to describe the forensic accounting report as either central or critical to the prosecution.
The Crown, on the other hand, submits that that while the report is important, to the extent that it goes beyond relevant expertise it will not be able to be relied upon. To the extent that it reaches actuarial or mathematical conclusions, or traces the dissipation or transfer of funds, it will rest upon proof of primary material such as MYOB records, bank accounts and the like. Significantly, the Crown submits that the forensic accounting report is not "fundamental" to the Crown case. The assertion in the affidavit of the accused's solicitor relied upon in the motion to vacate the original date of the trial, namely that "the Crown case is largely based on assertions, assumptions and conclusions made in that report" is not agreed by the Crown.
Of relevance to the ultimate application which is made before me, I note that Ms Rogers pleaded guilty to 27 counts of corruptly receiving a benefit and asked the sentencing court to take into account a further 6 such identified matters. She also pleaded guilty to obtaining a financial advantage with respect to a false invoice which she obtained from the applicant in an amount of $2.2 million. Ms Rogers also pleaded guilty to 4 rolled-up counts of causing a financial disadvantage to her employer, the National Australia Bank. The financial disadvantage to the NAB in those rolled-up counts was a total in excess of $12 million. The value of the benefits received directly by Ms Rogers and said to have been provided by the applicant to her totalled in excess of $5.5 million.
Ms Rogers was sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years 9 months by Acting Judge Conlon SC in the District Court at Sydney in January 2021. Ms Rogers has provided a lengthy statement to investigators and has provided an undertaking to give evidence in the trial of the present applicant. Judge Conlon noted that the offender's undertaking included giving direct evidence about the receipt of corrupt benefits and Ms Rogers' subsequent authorisation of the inflated invoices. Judge Conlon noted that Ms Rogers was able to give direct evidence of all of the facts which he had referred to in the course of the sentence proceedings which have been set out in Agreed Facts which reflect the Crown Case Statement. His Honour was of the view that to be able to present before a jury a case of multiple frauds committed over a 4 to 6 year period against a banking organisation by calling direct evidence from the offender within the bank as to precisely what occurred, as opposed to a trial presented purely by documents, must be regarded as being of significant assistance to the authorities.
The corrupt agreement alleged will now be the subject of direct evidence from the recipient of the benefits, Ms Rosemary Rogers, who was also the person who approved payment by NAB in respect of the allegedly inflated invoices. It is proper to describe her evidence as central to the Crown case.
The expertise of the accountant upon which the Crown intends to rely will relate to the actuarial or arithmetical computation of the amounts of payments and ultimately to an assessment of the amounts by which the NAB is said to have been defrauded.
As submitted by the Crown, such evidence will depend upon proof of the primary materials giving rise to the summaries and tables prepared by the forensic accounting team. The Crown is not calling a forensic accounting expert to give an opinion as to the existence of a fraud, although that may well have been part of the original report which was prepared. It is not without note that the expert's report and statement were dated 12 August 2019 and the urgent ex parte application for asset preservation orders or freezing orders was made by the NAB and granted over the assets of Ms Rosamond and Human Group on 19 August 2019. The quantum of the overall fraud was calculated in the tables prepared by the forensic accountant.
The estimated cost of a forensic accounting report being prepared for the accused is also a matter of some quite substantial variability. Material tendered on this application variously has a professional estimate of the cost of a report to meet that relied on by the prosecution in excess of $1.5 million. The request to Legal Aid was for a report estimated to cost approximately $1 million while a letter from the former solicitors acting on behalf of Ms Rosamond forwarded to a costs consultant indicated that "a forensic defence expert has been instructed. He has estimated his cost to prepare an opposing report and appear as an expert witness at approximately $500,000."
Dealing with the present application on what might be described as first principles, the defence contends that analysis by a different accountant would have the possibility of yielding a different figure for the amount defrauded, or alternatively the possibility of demonstrating that there has not been a fraud committed upon the NAB. The accountant's report relied upon by the prosecution would appear to have little, if anything, to do with the 59 counts relating to payments of benefits paid to Ms Rogers. With respect to counts where the quantum of a defrauding is alleged, it obviously will have a part to play in an assessment of quantum. The manner of calculation will be able to be cross-examined by competent counsel without the imperative necessity of a wide-ranging forensic accountant's report prepared for the defence.
I am not persuaded that the risk of unfairness in the trial is such as to warrant a stay of proceedings either on a permanent or on a temporary basis.
The application is refused. I decline to make the orders sought.
[2]
Amendments
20 July 2022 - Paragraph numbering amended.
21 December 2022 - Publication restriction lifted.
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Decision last updated: 21 December 2022