R v SELIM

[2007] NSWSC 154

Supreme Court of NSW|2007-03-02|Before: Fullerton J

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Source facts

Court

Supreme Court of NSW

Decision date

2007-03-02

Before

Fullerton J

Catchwords

CRIMINAL LAW - Stay of proceedings - Application for permanent stay - non-disclosure by prosecution - Application for temporary stay - CDPP to pay costs for previous trials

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW - Stay of proceedings - Application for permanent stay - non-disclosure by prosecution - Application for temporary stay - CDPP to pay costs for previous trials

Judgment (117 paragraphs)

[1]

Background 1 Mr Selim was arraigned before me on 21 February 2007 in respect of an indictment containing two alternate counts laid contrary to s 39 of the Crimes Act 1914 (Cth) and 11.1 and 11.3 of the Criminal Code (Cth). 2 In summary, the first count alleges that on or about 30 January 2003 Mr Selim procured Karl Brooks to destroy or to render illegible or undecipherable evidence, in the form of computer data on a nominated Pan Pharmaceuticals Limited computer, knowing that the data may be required as evidence in a judicial proceeding. The second count alleges that on the same date Mr Selim procured Mr Brooks to attempt to achieve the same objective. 3 The data the subject of both counts was original data from the testing of a medication known as Travacalm. This data was sought by the auditors of the Therapeutic Goods Administration ("the TGA"). As at 30 January 2003 Mr Selim was the Chief Executive Officer of Pan Pharmaceuticals Limited (now in liquidation) and Mr Brooks was employed by that company as the Information Technology Manager. 4 By Notices of Motion filed on 13 February 2007 Mr Selim seeks an order that the proceedings be temporarily stayed and, irrespective of whether that relief is granted, an order that the trial be permanently stayed. 5 Were a trial to proceed before me it would the third trial of Mr Selim in respect of the same allegations. The trial is listed in this Court following a successful application being made by the Commonwealth Director of Public Prosecutions to the Chief Justice of this Court the effect of which was to transfer the proceedings from the District Court to this Court. This occurred before the second retrial was listed for hearing in the District Court. The order in which the Motions for relief should be heard

[2]

6 The Notices of Motion seeking in turn a temporary stay and a permanent stay were filed at the same time, namely 13 February 2007, and have been heard together. The evidence relied upon by the applicant consists of a lengthy affidavit from Mr Thorpe and 23 documentary exhibits. The affidavit was filed on 19 February 2007, the day listed for the trial of Mr Selim before me. Mr Robberds QC, who appears with Mr Bromwich for the Commonwealth Director of Public Prosecutions as respondent to the Motions, sought and was granted the opportunity to file evidence in reply. In the result, a lengthy affidavit and two lever arch volumes of annexures was sworn by Ms Lehn, a solicitor employed by the Commonwealth Director of Public Prosecutions. This affidavit was filed on 20 February 2007. Ms Lehn has had carriage of the matter from early 2003. 7 Each of both Mr Thorpe and Ms Lehn have given evidence and been cross-examined. In addition, both parties have tendered evidence in the course of the hearing of the application to supplement the evidence filed and called in the proceedings. By agreement I have had tendered before me the transcript of the committal proceedings, and the transcript of evidence of the first and second trials, the former inclusive of counsels' closing addresses and the latter the Crown's opening address. 8 I have had regard to the affidavit evidence and the oral evidence in its entirety and those parts of the transcript of the earlier proceedings to which my attention has been drawn. 9 Early in the course of argument I expressed the view that the question of whether the applicant should be required to stand trial at all on the indictment in respect of which he has been arraigned should be determined in advance of whether the indictment ought be stayed on condition that the costs of some or all of the previous proceedings are paid. On one view, were I to be satisfied that Mr Selim should not be tried at all, no question would arise as to whether the Commonwealth Director of Public Prosecutions should pay reasonable costs before it will be permitted to proceed to trial against him a third time. 10 On the applicant's behalf however, Mr Byrne SC submitted that I should first resolve the question of whether a temporary stay should be granted since this relief is sought to remedy past unfairness and that the applicant is entitled to have that question resolved before the Crown should be permitted to bring the case to trial. He submits that it is only after resolution of that question that there is any need for the Court to address the further question as to whether there is demonstrated such incurable unfairness in any trial that might proceed before me that the Crown should being prevented from trying Mr Selim altogether. Mr Byrne SC submits that the focus of the enquiry into whether a temporary stay should be granted is retrospective while the question as to whether permanent stay should be granted is prospective or predictive. 11 While I see some force in this submission, based as it is on the different considerations that apply, or might apply, to the determination of whether a temporary stay ought be granted as distinct from the separate question of whether the trial should be stayed permanently, it is not a matter upon which I need to express any concluded view in order to resolve the substantive questions raised on the application. 12 I advised the parties before calling on Mr Robberds QC to respond to the applicant's submissions that I was not persuaded that grounds for a permanent stay had been made out. I indicated then that I would give reasons for that decision when publishing my judgment. The Order for a Permanent Stay

[3]

13 The grounds upon which it is said that the trial should be permanently stayed are particularised in the Notice of Motion, namely "the persistent failure on the part of the prosecution to discharge its obligation to disclose relevant material to the defence". Mr Byrne has developed this ground further in submissions. 14 The burden of establishing irredeemable unfairness so as to preclude a fair trial rests on the applicant and the onus in establishing it is a heavy one: R v Petroulias (2005) 62 NSWLR 663 at 688 [103-104]. I also proceed on the basis of long established principle which emphasise that the grant of a permanent stay is a wholly exceptional remedy Jago v The District Court of NSW (1989) 168 CLR 23 Per Mason CJ at 31, Brennan J at 46-47, Dean J at 56, Toohey J at 71, Gaudron J at 74-75; that it must be used sparingly and with the utmost caution; Jago v The District Court of NSW per Gaudron J at 76; and should be ordered only in an extreme case Jago v The District Court of NSW Mason CJ at 34. It has also been emphasised that it must only be granted where the applicant establishes that the claimed for unfairness cannot be remedied by other measures at the Court's disposal: Jago v The District Court of NSW per Mason CJ at 34 and Gaudron J at 75 and further, where it can be demonstrated that the Court's processes being utilised to try those charged with criminal offences will be abused if they are engaged for that purpose, such as to outweigh the legitimate public interest in bringing those charged with criminal offences before a court to enable the question of guilt to be tried in accordance with due process R v WRC (2003) 59 NSWLR 273 at 282 [para 51-56]. 15 It is not submitted that there is any abuse of process by the Commonwealth Director of Public Prosecutions seeking to have Mr Selim stand trial a third time per se, or that the past unfairness he complains of, of itself, renders any further trial unfair. Neither is it submitted that the manner in which the re-trial is to be conducted before me is productive of abuse in the sense that with the passage of time evidence has been lost or is otherwise not available, or witnesses are compromised in their ability to recall and give evidence of relevant events R v Reeves (1994) 122 ACTR 1. The Grounds for a Permanent Stay

[80]

58 I do not proceed on the basis that it necessary for the applicant in this case to establish fault, in the sense of male fides on the part of the prosecuting authorities in their failure to disclose the information complained of, accepting, as I do, that inadvertence or error may be sufficient (see Simpson J in Fisher at [24] and [47]), however I must be satisfied that it is an error committed in discharge of the duty of disclosure, or inadvertence as to the extent to which that duty required production of material to the defence, before relief could be granted. I also proceed on the basis I do not have to be satisfied that there is a causal link between the fact of non-disclosure and the reason for a retrial (R v Ulman- Naruniec). That said however, an explanation for the late disclosure, where it is available, it not without importance given that the nature of the remedy that is sought is an unusual one, requiring me to give due weight to the public interest that is served by the Crown being permitted to bring a person to trial without preconditions being imposed on the right to prosecute, so ever long as this is done without unfairness to the accused. For that reason, the extent to which the Crown or the prosecuting authorities in the present case have contributed to the fact that certain material was not available in the first trial and/or whether they contributed to the situation that presented during the course of the retrial when the signed Blakes' statement of 21 May 2003 was produced for the first time, is not without importance. An explanation for the late disclosure may also have a bearing on whether an order of the kind here sought should ultimately be made. As Sulan J observed in R v Ulman-Naruniec 143 A Crim R 532 at 562, when speaking of the vigilance with which the prosecution must approach the discharge of its duties: …..not every failure to make full disclosure will result in a miscarriage of justice. No system is perfect. Not every investigation or trial will be perfect. In any system which relies on human beings, error can occur. There are, however, circumstances in which the party's obligation are so serious that the Court will intervene to protect an abuse of its processes.

[95]

74 I have received both oral and written submissions directed to the significance or materiality of the Fraser email in the first trial. I am not sitting as a member of the Court of Criminal Appeal after conviction, as was case In Grey where the question posed was whether the breach of the duty of disclosure in that case gave rise to a miscarriage of justice, because the accused lost the prospect of an acquittal, I am, in effect, being asked to put myself in the position of the jury in the first trial and resolve what they would have done with this one item of evidence in the context of a trial that was in no sense a single issue trial. The addresses from counsel, extending as they did over some days bear out my view that the trial was both complex and the issues multi layered. The timing of Mr Selim's departure from the Pan Pharmaceuticals premises was at issue in the trial given that Mr Brooks had given evidence that he was spoken to by Mr Selim between approximately 6.30 and then again within 15 0r 20 minutes of that time, and there was wealth of evidence pointing to there being real doubt as to whether Mr Selim was at Pan Pharmaceuticals at this time, but that was not the only challenge to the Crown case. I have listened carefully to the reconstruction of the arguments put to the jury on the issue of the time at which events occurred, and the question of whether by reference to that analysis Mr Selim was implicated in criminal conduct by directing that Mr Brooks destroy the computer data, but I am left with the clear impression that the Fraser email would not have had the effect that Mr Byrne SC contends for. Put coarsely, the Fraser email is what not what might be described as a "smoking gun". For whatever reason the jury were unable to reach a unanimous verdict, I cannot come to the conclusion that an email from Mr Fraser in June 2005 as to his recollection of the time that Mr Selim left the premises two years earlier with Mr Tribe, would have so overwhelmed the jury that they would have unanimously agreed that there was a reasonable doubt as to whether the conversation occurred at all such a to warrant an acquittal.

R v SELIM

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Judgment (117 paragraphs)

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Legislation Cited (2)

Cases Cited (7)

Cited By (12)