R v SELIM

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

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

16 What is submitted on the applicant's behalf is that I should be satisfied, in all the circumstances, that it would an abuse of the court's process to have Mr Selim stand trial in this Court where the Commonwealth Director of Public Prosecutions and /or the prosecuting authorities have breached their duty to make full disclosure to the defence in the past. It is said that this reveals that they must lack an appreciation of the nature and extent of their duty and that this, in turn, exposes the applicant to the risk that they will breach their duty to his detriment in the future. It is further submitted that Ms Lehn's evidence on this application, and evidence the principal investigator Mr Irwin has given in each of the earlier trial proceedings, is such that I could not be satisfied that either they have made proper or adequate disclosure even at this time, that they will not do so in the future, or that there is a risk that they will not. 17 In so far as the evidence of Ms Lynn is concerned, I am also asked to find that she has an appreciable lack of understanding of the issues in the trial such as to make it unlikely that there will be in the future (or even that there has been to date) full disclosure of material relevant to those issues.

18 So far as the evidence of Mr Irwin is concerned, I am asked to find that because he has deliberately concealed relevant evidence about the process by which he took a statement from Mr Brooks in July 2003, and that he has given untruthful evidence on oath about it, I could not be confident that he has to date, or will in the future, produce material to which the defence are entitled. I am also to find that Mr Brooks has colluded with Mr Irwin in concealing the truth about the process by which he gave his first statement to the TGA and that he has given at best a disingenuous account under oath on the subject in the committal proceedings, and at worst that he has also deliberately lied.

19 While the facts before the Supreme Court of South Australia in Ulman- Naruniec 143 A Crim R 531 bear no direct relationship to the facts in this case, I share the views expressed by Belby J at 47 where he says ….. "If there had been a finding of deliberate withholding of information in order to frustrate the proper defence of the prosecution or a finding that prosecution witnesses had previously lied on oath, then absent further explanation, an inference might properly be drawn that those involved might continue to attempt to frustrate the due process of the administration of justice, such that one could not be sure that further relevant information would not be withheld. If that were the situation, or if there was any hint of the existence of further relevant information being withheld, justice would demand a stay of proceedings, at least until the Court could be satisfied, if it could be, that no more information was being withheld."

His Honour went on to say: "It is well recognised that our system of justice reposes a great deal of responsibility and trust in prosecuting authorities, and requires the utmost integrity of them in the faithful discharge of their responsibilities….If courts and accused persons cannot proceed on the assumption that those responsibilities will be properly discharged, then the criminal adversarial system as we know it cannot survive. In the absence of evidence that there is a continuing failure to discharge those responsibilities the court must assume they will be properly discharged."

20 Given the seriousness of the allegation that there has been a deliberate withholding of evidence by Mr Irwin and Mr Brooks, and the submission that Ms Lehn has such an inadequate appreciation of her duties as a prosecutor and such an inadequate understanding of the issues in the trial, that she has breached her duty of disclosure, it is necessary that I determine these questions at the outset. While that these findings will have a bearing on whether I should grant a temporary stay they will not dictate whether that should be the result. On the other hand, these findings have a direct bearing on whether a permanent stay should be ordered. Has Ms Lehn Breached her Duty of Disclosure?

21 I will deal with the complaint directed at Ms Lehn first. As I noted earlier Ms Lehn has sworn an affidavit in the proceedings. This affidavit could only be described as detailed and comprehensive. Exhibited to that affidavit are two volumes of material. I have also had the benefit of seeing and hearing Ms Lehn give evidence. On the basis of what Ms Lehn has deposed to in her affidavit, and the evidence she has given under cross examination, I am left in no doubt that she has endeavoured at all times to discharge her duties as a prosecutor in accordance with the Director's published guidelines and in full appreciation of her duty to make available to the defence materials that she considers may be relevant in the proceedings. I am confident that conscious of her duty in this regard she has made from time to time a sensible appraisal of material in her possession or material otherwise available to her.

22 When I consider the way in which the authorities have held the duty of disclosure should be understood, and the way in which compliance with it might be tested, I am confident that Ms Lehn has acted responsibly and with due diligence in her carriage of this matter to date, such that I can safely proceed on the assumption that she will continue to act in the same manner in the forthcoming proceedings.

23 As a prosecutor she is not obliged to anticipate a defence case and is not fixed at law with perfect prescience such as to impose on her a duty to foresee what may emerge as an issue in the unfolding of the criminal process (see R v Glover (1987) SASR 310 at 314).

24 The test of what the prosecution is required to disclose is set out in R v Spitiri (2004) 61 NSWLR 369: I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).

(See [17] and [20] where Justice Simpson stated that she agreed that that test correctly encapsulates, for New South Wales, the prosecution's duty of disclosure. Justices Grove and Shaw agreed with Justice Simpson.)

25 Because my focus at this time is on whether Ms Lehn knew and appreciated at the time of the committal, and thereafter, the way in which her duty of disclosure should be discharged to the Court, I leave to one side whether or not with the perfect sight that hindsight brings, she would have produced the material complained of earlier if she had recalled she had it, or whether she would have sought out earlier than 17 November 2006 additional material held by third parties if she had believed they were in possession of it. Whether she would have or not is not to the point given that the time at which the question of whether or not she has breached her duty of disclosure is when the material is at hand, or at her disposal, such that she can make a sensible appraisal of it.

26 I note that at the time the brief of evidence was served on 3 November 2004 it comprised 24 volumes of evidence and, I emphasise, 3 volumes of disclosure materials (see paragraph 16 Ms Lehn's affidavit). I also note and accept as true that after the first trial there was some complaint about non-disclosure resultant from the production of a document which has come to be referred to in the proceedings as MFI 21 (statement to Blakes' of 19 November 2003). As a result of this complaint Ms Lehn reviewed correspondence and other documents held by the Commonwealth Director of Public Prosecutions in August/September 2006 to ensure that everything that should have been disclosed had been disclosed. I also note that since that time other materials have been produced as they either came into Ms Lehn's possession or as she became aware of their existence, or possible existence, in the possession of third parties. In this context, I refer to the contentious statement she sought from Blake Dawson Waldron on 17 November 2006 in the course of the second trial and the compendious sets of materials she has obtained from them and served on the defence since that time (Annexures AY and AZ to Ms Lehn's affidavit). I also note that a folder of statements, noted up by Ms Lehn in the pre-committal phase, were served on 18 February 2007.

27 Against this background, I have every confidence that Ms Lehn has faithfully discharged her duty of disclosure to the best of her ability and that she will continue to do so in the future. I also have no doubt that she knows well and appreciates the issues in the trial as they have come to be crystallised in the previous proceedings. To the extent that the answers she gave under cross examination are relied upon by Mr Byrne SC to found a submission that she does not, even now, appreciate the significance of the time at which Mr Selim left Pan Pharmaceuticals, I reject that submission.

Has Mr Irwin deliberately withheld evidence and colluded with Mr Brooks?

28 I move now to the question of whether there has been any deliberate withholding of evidence from either Mr Irwin or Mr Brooks and, if so whether they colluded to ensure that this should occur. Were I satisfied that Mr Irwin has lied under oath, and that he has colluded with Mr Brooks to mislead the defence (and in turn the Local Court and District Courts) as to the true position in respect of the taking of his witness statement, and further, that they have both deliberately withheld the existence of the statement used in the process of its preparation, there may be some prospect of my being persuaded that a permanent stay should be ordered on the basis that it would be an abuse of process for me to stand by and permit them to participate in a further trial. I am however not satisfied that the evidence discloses they have misconducted themselves in this way. That is not to say that I am thoroughly satisfied that their evidence has been at all times entirely accurate or given with care. It is simply to say that I am not satisfied that they have lied or set out to deceive the Courts before whom this evidence was given.

29 Mr Brooks was the first witness to be asked about the process by which his witness statement in cross-examination in the committal proceedings. It is important that I extract that evidence in some detail given the fact that Mr Byrne SC asks me to conclude that the evidence given by Mr Brooks at this time was either deliberately false or that his answers were designed to eschew any reference to the fact that the very first statement he made about the events of late January 2003 was to Pan Pharmaceuticals lawyers in circumstances where their legal interests and those of Mr Selim were not coincident.

30 At the committal proceeding he was asked the following questions: Q. But the first statement you made was on 23 July 2003? A. Which statement to the TGA?

Q. Mr Irwin? A. Yes, yes it was, that's right.

Q. There was a further statement made on 18 September 2003 2003? A. Yeah, I'd like to see those. I can't remember the exact dates…(T-57.37-46)

BYRNE: Q. Just to recap Mr Brooks, the first one was 23 July 2003? A. Yes 23 July…(T-58.5-7)

Q. If I can ask you some general questions about the process of making these statements. You spent some considerable time with Mr Irwin on that day, is that right? A. From memory, yes.

Q. How long did you spend with him, about compiling this statement? A. It would have been several hours….(T-59.13-21)

Q. This one being the first probably took a lot longer than the others, is that fair to say? A. Yes it is.

Q. You understood how important it was to give a true version of events in what you were saying? A. Yes I did.

Q. You were going to be asked some questions about a matter that you considered to be a very serious one, is that right? A. Yes.

Q. It was a very solemn occasion, it wasn't just something that was a relatively straight forward every day occurrence was it? A. No it wasn't.

Q. It's something in which you've never been involved before, making a statement to an investigator in relation to a matter that you regarded as very serious? A. No I hadn't been involved before.

Q. As you said you spent a considerable amount of time with him? A. When I say I hadn't done that before I'm just not when the ASIC statement was taken, so I'm just - I just want to make sure I don't -

Q. It was done on 24 October 2004? A. No I hadn't done that kind of thing before then.

Q. We'll come to that later, but I'm just concentrating now on this statement of 23 July? A. Mm Hm…(T-59.35 to 60.11)

Q. This is a statement made on 24 October, right? A. Yes.

Q. That's with the benefit of the computer notes that you originally made, right? A. No, this statement was actually faxed to Gail Thompson and she prepared that statement and then visited me at Pan to make sure that it looked okay and for me to sign it.

Q. To make sure that it looked okay? A. Yes. So I didn't actually make this statement to Gail in the same sense that I did to Mr Irwin.

Q. She prepared it for you? A. Yes. I faxed it to her. I've got that here.

Q. She made the whole statement for you? A. I've got that here.

Q. What did you say you've got there? A. I've just got the fax that I sent to her.

Q. Can I have a look at that, please? A. Of course.

Q. This document that you've just produced is a fax from you to Gail Thompson dated 21 October 2003, right? A. Yes.

Q. And it says, "Gail, as requested by yourself please find following the five page statement that I made to Brett Irwin of the TGA on 23 July 2003 to be used as a starting point for a formal statement that I will make with you this coming Friday", right? (T-81.46 - 82.21)

31 While it is true that Mr Brooks made no reference in his evidence to the statement he made to Pan Pharmaceuticals lawyers on 21 May 2003, a statement which as a matter of chronology was first in time, I am bound to allow for the logical possibility, before concluding that he lied or was dissembling, that he was distinguishing in his own mind for entirely innocent purposes between a statement to private lawyers retained by his employer and a statement given to investigators in the course of a criminal investigation, whether that be the TGA or the Australian Securities Investment Commission.

32 Mr Irwin was asked questions as to the same process in which he took the statement from Mr Brooks in the first trial. Q. So between February and 23 July 2003 how many times would you have spoken to Mr Brooks in that period? A. In that period not too many.

Q. Can you give us some help with that, what are we talking about? A. Once or twice.

Q. You took the first statement that he made on 23 July 2003? A. Yes.

Q. The process of taking that statement is a fairly lengthy one I suggest to you? A. Yes. The original statement was, yes.

Q. It's not simply a situation of Mr Brooks coming in and saying, well look here's my statement. That's all I want to say about it and leaving? A. No.

Q. You sat down with him and went through with him in quite some considerable detail of the things that you considered were important is that right? A. Yes I think - I believe on that occasion we actually spent time with him the day before as well.

Q. It's a process of obtaining from the witness all of the things that the witness can say about the general investigation that you think are relevant? A. At that stage, yes.

Q. It's a painstaking process is it not? A. Yes it is.

Q. You spoke to him the day before 23 July? A. I believe so.

Q. How long for, approximately? A. I couldn't say.

Q. Was the conversation prior to 23 July along the general terms, these are the broad areas that we're interested in, these are the kinds of topics that we want you to cover in your statement, these are the things we want you to think about, that kind of approach? A. Yes… ( 19/03/06 T-179.31 - 181.9)

33 Mr Irwin was also asked questions at the first trial as to the time he spent on 22 and 23 July compiling the statement from Mr Brooks, which he appointed to be 2-3 hours, and confirmed that the process by which the statement was taken, was by him asking Mr Brooks particular questions and, through that process, obtaining from him his version of events. He also gave evidence that the statement was taken on a laptop computer to enable corrections or amendments to be made as the statement was being prepared. (T19/03/06T182-184)

34 It is clear that he made no mention of having utilised the statement to Blake Dawson Waldron as a template, or that he was given access to it at all. That said, I cannot be satisfied that this was a deliberate omission on his part, much less that it was motivated by a desire to conceal the fact because of some arrangement with Mr Brooks. Other inferences are equally open. It may be that by March 2006 he had simply forgotten the process by which the statement was taken from Mr Brooks and had forgotten that he had used the Blakes' statement as a template. It may be that he is importing from the investigative process generally a 'painstaking approach' to the preparation of the Mr Brooks statement, when in fact that part of the process was made easier for him because the facts in a narrative and convenient form were at hand. (I note in this regard that in excess of 100 statements were included in the brief of evidence served - see Annexure G to Ms Lehn's affidavit.) While it is difficult to see how his memory might have failed him or the convenience of having a prepared statement might have been overlooked, this alone does not allow me to find that he has lied.

35 I am fortified in this conclusion by the fact that on 9 October 2006 Mr Irwin produced his diary where he records against 22 July 2003 (the first of two days over which the statement was taken) the following: "Brooks supplied a copy of the statement he supplied to Pan lawyers. (This statement was converted to TGA format) and that at Mr Brooks independently produced under subpoena to him a version of the signed Blakes' statement (MFI 21), albeit not the signed version that I am satisfied was likely to have been the one that Mr Irwin was given.

36 I will return to consider whether the Commonwealth Director of Public Prosecutions should have taken steps of some kind to obtain the signed Blakes' statement before 17 November 2006, and, if so the consequences that flow from their failure in that regard, when I come to considering the significance of the signed Blakes' statement in the application for a temporary stay.

37 Accordingly, irrespective of whether the prosecution has or has not disclosed relevant material in sufficient detail and/or in a timely way either in advance of the committal, before the first trial or up to point where the jury were discharged in the second trial, and irrespective of whether that has resulted in unfairness against which relief might be given in the form of a temporary stay, I am not persuaded that it there has been any deliberate withholding of evidence by Mr Irwin or by Mr Brooks in collusion with Mr Irwin. Moreover, I am not persuaded that the prosecution has failed to discharge its duty since that time, or that it will fail to discharge its duty of disclosure in the unlikely event that relevant material comes to its notice from time to time during the trial before me.

38 I cannot and do not proceed on the untested assumption or unproved assertion that further material is likely be or might be in the possession of the prosecuting authorities, much less that this unidentified material will or may remain undisclosed because of irresponsibility, intransigence or worse on the part of the prosecuting authorities.

39 No adequate basis has been made out for my ordering a permanent stay and accordingly I dismiss the Notice of Motion that seeks that relief. The Order for a Temporary Stay

40 Mr Selim seeks an order that the proceedings be stayed conditional upon the Commonwealth Director of Public Prosecutions paying the reasonable the costs incurred by him committal proceedings in the Local Court in July 2005 and/or, following his committal for trial to the District Court, the costs of proceedings in respect of a trial before Judge Geraghty in March 2003 where a jury was discharged being unable to reach a unanimous verdict ( " the first trial ), and/or the costs of a re- trial before Judge Sorby in November 2006 where the jury was discharged as a result of adverse publicity in the course of the trial ("the second trial").

41 The grounds upon which the temporary stay is sought are said in the Notice of Motion to be contained in the affidavit of Andrew Thorpe dated 13 February 2007. Mr Thorpe is Mr Selim's solicitor. More precise grounds have been articulated by Mr Byrne SC in the course of argument.

42 They concern what is said to have been the failure on the part of the prosecting authorities to disclose to the defence relevant and material information of specified kinds in advance of each of the previous sets of trial proceedings, such as to have been productive of unfairness in the way Mr Selim was prosecuted in each of those sets of those proceedings.

43 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 for the purposes of determining whether a temporary stay should be granted. In so far as the committal proceeding is concerned a separate complaint is made.

44 In order to clear the way to consider what I regard as the more substantial grounds for the orders sought, namely an order relating to the costs of the first and/or second trials, I will deal first with whether the Commonwealth Director of Public Prosecutions should be required to pay the costs of the committal proceedings before it is permitted to put Mr Selim on his trial a third time. The costs of the committal

45 As I understand the submission ultimately put by Mr Byrne on the applicant's behalf, it is contended there was unfairness occasioned to Mr Selim because the committal proceedings were conducted on a false premise, namely that the date upon which it was then alleged Mr Selim procured Mr Brooks to destroy the evidence namely 31 January 2003 was different from the date upon which the Crown alleged this same conduct occurred at the first and second trials namely 30 January 2003. As a consequence, it is submitted, the conduct of the committal proceedings were forensically futile or "a waste".

46 I am unpersuaded that the committal proceedings were without forensic utility. Not only was I informed from the bar table that the Commonwealth Director of Public Prosecutions did not oppose Mr Brooks being made available for cross examination pursuant to s 91 of the Criminal Procedure Act 1986 (as amended), but my own review of the transcript of the committal proceedings makes it patent that cross examination was not limited to the date upon which the offence was alleged to have occurred but ranged over a variety of subjects relevant to a testing of his evidence generally. Quite apart from the fact that the committal proceedings would have been convened in any event, given that the matter was to proceed on indictment, and, quite apart from the fact that I am confident that there would have been an application to test the evidence of Mr Brooks irrespective of the date upon which it was alleged the offence had occurred, I am not satisfied that injustice of any kind has been demonstrated by the fact that by the first trial the relevant date had reverted to 30 January 2003.

47 While it is true that Mr Selim served an alibi notice in accordance with the Criminal Procedure Act following the committal proceedings, the detail of which establishes beyond any doubt that he was not at the Pan Pharmaceuticals premises at any relevant time on 31 January, this was not itself a forensically futile exercise. While it did not serve its intended purpose once the date was re established to be 30 January 2003, the "alibi" evidence was put to effective use in the first trial in any event by founding a means of attacking Mr Brooks's reliability and undermining the strength of the Crown case.

48 The precise reason why the date changed from 30 January 2003 (the date Mr Brooks nominated in his statement of 23 July 2003 served on the defence as part of the brief of evidence) to 31 January 2003 prior to the committal, and the reason by he reverted to 30 January 2003 immediately prior to the first trial after a conference with prosecuting counsel, requires some appreciation of the evidence in the case. However, I do not consider it essential to track the evidence in any detail since I am firmly of the view that the change in date could not sensibly be attributed to fault on the part of prosecuting authorities in the management of their case, or to any misunderstanding on their part of the case they were intending to lead against Mr Selim. The change in dates is sufficiently explained by the fact that Mr Brooks claims to have made an error when he informed the prosecuting authorities of the necessity to change the date from 30 January to 31 January prior to committal, an error which he rectified after conferring with prosecuting counsel prior to trial on 8 March 2006 and after he determined from the internet traffic logs on the HPLC computer that the software he used to perform the low level format - the process by which the original data was designed to be rendered unreadable- was downloaded on 30 January 2003. It was that action that in his mind gave certainty to the date when he was given the destruction instruction by Mr Selim. The corrected error had the effect that he reverted to his original position, namely that the conduct with which Mr Selim is charged occurred on 30 January 2003. This was the case that was led by the Crown at the first trial and the second trial and will be the case to be led in any third trial.

49 Mr Byrne has not sought to make a case that there is fault or any relevant misconduct on the part of the prosecuting authorities in their conduct of the committal proceeding. He rests his claim for a temporary stay until the costs of committal are paid on the general claim that his client has suffered an injustice as a result of the error or mistake on the part Mr Brooks as a witness in the proceedings. Not only am I satisfied that this should not result in a financial penalty being visited upon the prosecuting authorities, I am unpersuaded, for the reasons I have already given, that there is any relevant injustice that has been occasioned to Mr Selim by that error and its later correction. Accordingly the discretion to order a temporary stay to enable Mr Selim to recover the costs of the committal is not enlivened and I refuse to order a stay referable to those costs. The costs of the first and second trials

50 I move now to consider that part of the application that concerns the costs of the first and second trials. The Power to Order a Temporary Stay

51 It is clear that this Court has the power to temporarily stay proceedings on indictment, effective until the Crown has paid the reasonable costs an accused has thrown away in previous proceedings, in circumstances where it has been demonstrated that an injustice or unfairness would result from the Courts processes being used to put an accused on trial a second or third time without some redress. I note that orders of the kind under consideration have been held to have been properly made where the conduct of the prosecuting authorities in adjourning a trial was unconscionable (R v Mosley (1992) 28 NSWLR 735); where fault was attributed to the prosecuting authorities by the production of relevant material in its possession very late in a second trial which resulted in the jury being discharged and in the accused being unable to afford private representation at his retrial (R v Fisher 56 NSWLR 625) and where the prosecuting authorities were found to be in flagrant breach of their duty to disclose evidence which had a tendency to show the accused could not have been involved in a transaction central to the Crown case (R v Ulman- Naruniec 143 A Crim R 531 per Belby J at 49 and Sulan J at 232). I note in the case of Ulman- Naruniec that while the Court was prepared to accept that the withholding of the information was not deliberate, no explanation from the prosecuting authorities was forthcoming to explain the failure to produce the material (Belby J at 537-8).

52 In each of the cases cited the exercise of the power is shown, in its application, to derive from the control the court exercises over its own processes so as to ensure trials are conducted fairly.

53 The onus of establishing unfairness of a relevant kind rests on the applicant. It is not the law that there is any necessary unfairness to an accused by the mere fact of there being a second or even a third trial in respect of the same alleged criminal conduct. Mr Byrne SC does not contend otherwise.

54 The parties are not in agreement however as to whether some fault or misconduct on the part of the prosecuting authorities giving rise to the injustice complained of needs to be established, and, if so, the degree of fault or the seriousness of the misconduct, before the discretion to make an order for a temporary stay is enlivened. Is There a Test to be Applied?

55 In R v Fisher at [7], Justice Santow was of the view that a temporary stay of the kind sought here should only be granted for the rare and extreme case of gross unfairness on the part of the Crown. Implicitly, he was satisfied on the facts of that case that error of that kind had been shown. In the same case Justice Simpson described the circumstances in which relief was or might be available as special and unusual, however, contrary to the submission advanced by Mr Robberds QC, I am of the view that Her Honour, when using that expression was referring to the way in which the power to order a stay came before the Court in Mosley, as distinct from a set of characteristics that must be found to obtain in every case before a temporary stay should be ordered [para 24 and para 47].

56 Mr Byrne SC submits that in this case there has, in any event, been a demonstrated and gross unfairness suffered by his client in having to bear the costs of proceedings that were tainted by the misconduct of the prosecuting authorities in discharge of their responsibilities to disclose to the defence relevant material. While Mr Robberds QC urges me to accept that there are preconditions to the exercise of the discretion to order a temporary stay in the terms in which their Honours expressed it in Fisher he submits that even if that not be the test, Mr Selim has suffered no unfairness from the way in which the prosecuting authorities have conducted the trial proceedings against him and that no misconduct of any kind has been shown.

57 Whether the test is as stringent as the terms in which Justice Santow expresses it, indeed whether there is a test as such to be applied before a temporary stay should be ordered, I do not consider falls to me to decide. I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said the prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering the stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again.

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.

59 Even though these observations were made in the context of his Honour considering whether a permanent stay should be granted, I consider they are apposite to the exercise of my discretion for the grant of a temporary stay in this case. It is important to keep in mind that the granting of a temporary stay until costs of the previous proceedings, or some part of them, are paid is not designed to punish the Crown for inadequacies in pre- trial or trial process, or deficiencies of which there may be many in the course of an investigation, but to redress an injustice that can be shown to be the result of the late disclosure of information where this is in breach of the prosecution's duty to disclosure.

60 As I see it, one of the questions for determination in the present case is whether, in all the circumstances, I am persuaded that the identified categories of information, said by the applicant to be relevant and material to his defence, should have been produced in a more timely fashion and, if I am satisfied they were not, whether their late production was in breach of the Commonwealth Director of Public Prosecutions' duty of disclosure or that they contributed in a material way to that state of affairs.

61 In order to answer this question I must consider whether the information was relevantly in the possession of those who had the corresponding duty to disclose.

62 I must also consider, as I see it, whether there are any reasons why the information was not disclosed earlier, either at the time that it was known to be in the prosecutor's possession, or at some time prior to the first or second trials. This will necessarily involve me deciding the extent to which the Commonwealth Director of Public Prosecutions had a duty to make enquires of third parties who may have been in possession of material of relevance, or potential relevance to the proceedings. It will also involve me deciding whether any failure on the part of the investigators to retain materials gathered in that process, is sheeted home to the Commonwealth Director of Public Prosecutions such as to put it in constructive breach of their independent duty of disclosure. As to the last question the parties are agreed that the duty of the prosecuting authorities is a collective duty in the sense that the investigators have a duty to make known and available material in their possession that may be relevant, and that any failure to make that material known to the prosecution will be a breach of the duty of disclosure for which a remedy of an appropriate kind might be sought (see generally Grey v The Queen [2001] HCA 65 and Mallard v The Queen 224 CLR 125 where undisclosed material of relevance to a material issue in the trial proceedings was held to have resulted in a miscarriage of justice). Nature of any Injustice arising in the First and Second Trials

63 In so far as the proceedings at the first trial are concerned, it is submitted that so egregious is the nature and extent of the failure to disclse relevant material to the defence before the trial that Mr Selim has been deprived of the fact of an acquittal (cf the reasonable prospect of an acquittal) occasioning, in the result, such injustice that he should be entitled to recover the costs of the first trial and, by parity of reasoning the costs associated with his retrial, before he is prosecuted further. (The material at issue here is the "Fraser email" as to which see later).

64 Were I to find that there was a failure to disclose that material before the first trial, but that it was not of such weight or significance that with reasonable certainty it would have resulted in an acquittal, then it is submitted, I should find that the costs of the first and second trials should be borne by the prosecution on a separate basis, namely to remedy an injustice that resulted when other material was produced for the first time during the second trial. (The material referred to here is the signed Blakes' statement.)

65 In effect, I am asked to find that the application to discharge the jury in the second trial on the basis of the late disclosure of the Blakes' signed statement, an application that was being considered by his Honour Judge Sorby at the time of the publication of the prejudicial press article, would have been successful and that this would have resulted in a successful application for a temporary stay of any retrial in the District Court. Although there is some similarities in the proceedings before the trial judge and the proceedings before me there are also important differences. It may have been that without the intervention of the prejudicial publicity his Honour may simply have adjourned the proceedings to allow the significance of the signed Blakes' statement to be explored rather than taking the extreme measure of discharging the jury. In addition, he may have allowed Mr Byrne SC to examine Mr Brooks on the voir dire as to the provenance of the document or permitted the recall of Mr Irwin for the same purpose. For these reasons the fact that there was an application before the trial judge to discharge the jury which, if granted, may have been the foundational to a stay of any retrial until the costs of the second trial were paid, has no ultimate bearing on whether I grant the applicant the relief he seeks.

66 I have already referred to R v Spiteri as specifying the nature and extent of the prosecutor's duty of disclosure. Whether it has been shown to have been breached, and if so when it was breached; the significance or materiality of the information that was produced after the first trial and in the course of the second trial; and, ultimately, whether any injustice results from production at that time are also questions at issue in this aspect of the proceedings. "The Fraser email"

67 This is an email passing between the Investigator Mr Irwin and Mr Fraser an officer of the TGA of 28 June 2005 (and a related email passing between Mr Irwin and Mr Prestridge another officer of the TGA) each of which were copied to Ms Lehn of the Commonwealth Director of Public Prosecutions on the same date. In the email Mr Fraser estimates the time at which Mr Selim left the Pan Pharmaceuticals premises on 30 January in the company of Mr Tribe, another TGA officer at "about 5.30 - 6.00" (see Annexure 9 to Mr Thorpe's affidavit). It is the applicant's case that these emails should have been disclosed to the defence prior to the committal proceedings commencing in the Local Court on 18 July 2005 but were not disclosed until after the first trial. 68 I note that the e-mails became available to the defence in the second trial as a result of a subpoena issued by the defence to the TGA in September 2006 - that is between the first and second trials. I also note in that regard that as at that date the email passing between Mr Irwin and Mr Prestridge was no longer recoverable from the TGA computer system. However, upon a search being made by Ms Lehn of the computer system at the Commonwealth Director of Public Prosecutions, it was retrieved and produced under cover of correspondence between the Ms Lehn and Mr Thorpe on 19 September 2006 (Annexure AE to Ms Lehn's affidavit).

69 It is Ms Lehn's evidence that she had quite simply forgotten of the existence or content of the emails when the issue of the time at which Mr Selim left Pan Pharmaceuticals on the 30th January was the subject of cross examination at the first trial. I accept this evidence as truthful. Mr Byrne SC has not submitted that I should find otherwise. He has however sought to persuade me that I should find Ms Lehn's explanation for failing to produce the emails at the time she received them in June2005 -13 days before the committal proceedings - as inadequate or unacceptable, and that that I should conclude that notwithstanding her having forgotten about them by the time of the first trial some 8 months later, she breached her duty of disclosure by not disclosing them at the time they were received. He submits that while this is an important factual finding on the application, even were I to find that there is an adequate explanation for her not producing the emails in the days prior to committal, the fact of their non production was productive of injustice and his client should not have to bear the costs of that injustice. In short, he says that error on her part whether it sources in part from a failure of memory of a lack of appreciation of the significance of the evidence to the defence, will not relieve the prosecuting authorities of the responsibility of remedying a resultant injustice.

70 Applying the test as laid down in Spiteri, I do not regard Ms Lehn as in relevantly in breach of a duty of disclosure at or during the first trial given that had genuinely forgotten that the Fraser email had been copied to her.

71 On the other hand, accepting as I do that the timing of Mr Selim departure from the Pan Pharmaceuticals with Mr Tribe on 30 January 2003 was being reviewed by Mr Irwin with his fellow TGA officers in the emails, and that this was very likely if not certainly because of the defence subpoenas that had at that time issued to Qantas, the RTA and a telephone company dealing with Mr Tribe's travel movements and Mr Selim's whereabouts, it is difficult to conclude that Mr Fraser's estimate of the time of Mr Tribe's departure was not at least possibly relevant to an issue in the case. It is not to the point that the precise time at which the conversation between Mr Selim and Mr Brooks was not an element of the offence. It is moreover not to the point that the Fraser email was an estimate only of the departure time. What is to the point, is that it was a matter that the prosecution was on notice may be relevant to the ultimate question as to whether the destruction instruction or a relevant subsequent conversation took place at all, depending at that time on all the evidence which was then available or might later be brought to bear on the issue.

72 Even if it be a breach in a minor respect, only highlighted because of the inordinate focus that has been given to the issue for the purpose of these proceedings as distinct from its significance to the issues at trial, I do regard the emails as material that should have been disclosed at the time of their receipt in June 2005. I wish to make it clear that this finding is made without in any way reflecting on Ms Lehn's diligence and professionalism. It is for this reason that I disregarded the breach entirely when deciding, for the purposes of ruling on the application for a permanent stay, whether I had any basis for doubting the integrity and intelligence with which she has discharged her professional duties to the Court in the past such as may cause me concern about her future capacity to do the same.

73 While I am satisfied that Ms Lehn should have made the email available to the defence in the 13 day window of opportunity prior to committal, I do not regard her failure as being productive of the injustice Mr Byrne SC complains of on his clients' behalf. This is because I am not persuaded that the evidential value of the Fraser email is such that it would have resulted in the jury acquitting Mr Selim at the first trial. Since the email was available at the second trial I do not have to concern myself with whether the costs of the second trial are recoverable on this basis. The significance or materiality of the Fraser email

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.

75 I note without reciting it that each of officers Fraser and Tribe gave evidence at the first trial. Mr Fraser gave evidence that he finished work on 30 January 2003 at approximately 6pm and that Mr Tribe and Mr Selim left before him. Mr Tribe gave evidence that he recalled leaving before Mr Fraser and confirmed that Mr Selim was with him. Mr Fraser did not give evidence of the time that he left the premises but Mr Prestridge with whom Mr Fraser was travelling said that they left together between perhaps 5.30 and 6.30pm. It is not clear what evidence Fraser gave, if any, as to when Mr Tribe (and Mr Selim) left the premises. It was clear however that they left before him. In the second trial Mr Fraser was called before the trial aborted. By that time of course the email had been produced. Mr Byrne SC read the contents of the email into evidence.

76 I refuse to order a temporary stay on the basis of late production of the Fraser email. "The signed Blakes' statement" or "The statement of 21 May 2003". 77 There is in evidence before me a statement signed and dated by Mr Brooks on 21 May 2003 (Annexure 16 to Mr Thorpe's affidavit and Annexure AT to Ms Lehn's affidavit). This has been referred to by me as "the signed Blakes' statement" for ease of reference since, as I have noted earlier in these reasons, it was made to a solicitor employed by Blake Dawson Waldron solicitors, retained to act on behalf of the liquidator of Pan Pharmaceuticals Limited.

78 This document is to be distinguished from what I am satisfied is an earlier version of that statement, notwithstanding that the version of the draft bears the date 19/11/03. I shall refer to the latter document as MFI 21 solely because that is the identifier given to it in the second trial and the way it has been referred to in argument before me (Annexure 17 to Mr Thorpe's affidavit). The weight of evidence and the submissions advanced by Mr Robberds QC as to the way I should interpret the exchange of emails between Mr Brooks and Ms Bylhouwer of 19 November 2003 (behind Annexure AY of Ms Lehn's affidavit) satisfies me that this is the case, and I am satisfied of this notwithstanding the fact Mr Brooks has not given evidence on the issue to date. He has not given evidence because MFI 21 was not produced until after the first trial and the second trial aborted before he had been called to give evidence at all.

79 Mr Brooks made a total of six statements to Mr Irwin in the course of the investigation up to and including a statement of 10 March 2006, within days of the first trial. (It was in this statement that he explained, in effect why he was reverting to 30 January 2003 as the date upon which relevant events occurred) The first of these six statements, and the only statement relevant for this aspect of the argument, is dated 27July 2003 (see Annexure 2 of Mr Thorpe's affidavit and Annexure K of Ms Lehn's affidavit). I shall refer to that statement as the TGA statement.

80 I am satisfied for the purposes of this application that the signed Blakes' statement which is dated 21 May 2005 and which predates the TGA statement dated 23 July 2003 was in fact the statement used by Mr Irwin as a template when he came to take the TGA statement from Mr Brooks on 22 and 23 July 2003. Furthermore, I am satisfied that this is the statement Mr Irwin was given a copy of by Mr Brooks on the 22 July 2003 as he records in his diary against that date. There is no evidence to suggest that there is any other statement made to Pan Lawyers as at the date when Mr Irwin took the statement from Mr Brooks as part of the investigation by the TGA. No other rational conclusion is open on the evidence before me, and, as I have already observed, there are no material differences between the statements such as would give rise to a concern that Mr Irwin was given access to any other statement.

81 The fact that Mr Irwin has prepared the TGA statement by utilising the signed Blakes' statement was not known by either the defence or officers of the Commonwealth Director of Public Prosecutions until Mr Irwin's diary was produced in July 2006 ie after the first trial and before the second trial. While the signed Blakes' statement was not available to the defence until 17 November 2006, that is during the course of the second trial, MFI 21 was available to the defence, it having been produced on subpoena by Mr Brooks before the second trial.

82 This existence of the signed Blakes' statement is said by Mr Byrne SC to have a direct bearing on the circumstances in which Mr Brooks came to give his first statement to Mr Irwin of 23 July 2003 and, that is a circumstance of such significance that it should have been disclosed to the defence by Mr Irwin in advance of the committal proceedings and/ or discrete enquires made as to its whereabouts when its existence, or likely existence, was made known to the Commonwealth Director of Public Prosecutions after the first trial by Mr Irwin. 83 I am satisfied that the existence or likely existence of a document of this kind was only known to the Commonwealth Director of Public Prosecutions when reference was made to it in an entry in Mr Irwin's diary also produced under subpoena issued by the defence and returnable in July 2006. I am also satisfied that at that time Ms Lehn has assumed, wrongly as it turns out, that the statement to which the diary entry referred was, or was likely to have already been produced to the defence by Mr Brooks, given that on its face MFI 21 seemed to be as she described it a " civil statement" since it contained no durat, and that its contents were very similar to the TGA statement. It is true she made no enquiries to confirm that this was so but then neither it seems did Mr Thorpe notwithstanding that he knew the Blake Dawson Waldron were the solicitors acting for Pan Pharmaceuticals and that he could have issued a subpoena to them seeking production of the document and documents related to it. He does not explain why he did not take that course. He also effectively, albiet understandably from his perspective, closed his mind to the possibility that MFI 21 was the statement to which the diary entry referred because of the date printed on the document of 19/11/03.

84 The only conclusion that I can fairly draw from the misassumptions made by the both Ms Lehn and those she instructed at trial, and Mr Thorpe and those he instructed at trial, is that they were ultimately productive of understandable and thoroughly honest errors. Just as no blame can be levelled at Mr Thorpe for failing to make enquiries on his client's behalf as to the whereabouts of the statement to which Mr Irwin's diary refers, similarly no finding adverse to Ms Lehn, or the prosecuting authorities more generally can safely be drawn by the fact that Ms Lehn accepted, without more, the account Mr Irwin gave to her to the effect that he believed that the statement Mr Brooks produced under subpoena was the document he had had access to, although he told Ms Lehn that he could not be sure of it. I come to that view as I am not persuaded that Mr Irwin has deliberately misled the prosecution any more than he has deliberately misled the Court, although, as I have said his evidence is not without features that cause me some disquiet.

85 I can however, perhaps with the benefit of the perfect vision I am afforded, see a proper basis for a further statement to have been taken from Mr Irwin detailing the circumstances in which the statement from Mr Brooks was taken, once he was reminded of it when he produced his diary and once it came by that means to the attention of Ms Lehn. That this did not happen, and that a corrected account of the circumstances in which the statement was taken from Mr Brooks surfaced in cross-examination for the first time at the second trial, is regrettable. The fact that it did not happen however does not make out a case that the prosecuting authorities have misconducted themselves, or that they have breached their duty of disclosure in some way. This is gainsaid by the fact that Ms Lehn genuinely believed (as apparently did Mr Hastings QC Crown counsel at the second trial) that the document had already been produced.

86 I am not satisfied that there has been any breach of the duty of disclosure in respect of the signed Blakes' statement, or that the prosecuting authorities have misconducted themselves by their piecemeal acknowledgment of the use that was made of it.

The significance or materiality of the signed Blakes' statement

87 If I am wrong about that, and there is relevant misconduct on the part of the prosecuting authorities or that the failure to produce the material is a state of affairs for which the prosecuting authorities should be held responsible, I am nevertheless not persuaded that the signed Blakes' statement of 21 May 2003 was of sufficient materiality to the proceedings at the earlier trials such that its late production is productive of injustice. That is not to say that circumstances is which a witness statement is taken may not, in a given case, be relevant. For example, where it can be shown or suggested that some pressure was brought to bear on a witness, or some suggestion is made as to what the witness should include or exclude in a statement, or where the investigating officer was compromised by a conflict of interest thereby compromising the integrity of the investigation (R v Frangulis [2006] NSWCCA 363) then the failure to disclose material that might establish those facts would be a most material breach. Nothing of that kind is suggested here. While consistency between the signed Blakes' statement and the TGA statement does not advance the strength of prosecution case as a matter of logic (it plainly does not as matter of law) neither does the consistency between the statements necessarily advance the defence case, although it may be something the cross examiner might chose to make use of when testing Mr Brooks. I do not see that the inability to test him on this subject at the first trial deprived Mr Selim of any measurable forensic advantage. I am not satisfied that its late production would necessarily found an application to discharge the jury, although, as I have made clear, I refrain from posing that question for myself. Conference Notes of 8 March 2003

88 It is submitted that the notes of a conference with Mr Hastings QC, then senior counsel for the Commonwealth Director of Public Prosecutions and Mr Brooks on 8 March 2006, that is in the week prior to the first trial on 13 March 2006, should have been produced before the first trial. These notes, and other notes of conferences with Mr Brooks were produced for the first time by Ms Lehn at the request of junior counsel for the applicant on 3 November 2006 (Annexure AP to Ms Lehn's affidavit ).

89 No complaint is made about late disclosure of notes other than those of 8 March 2006.

90 It is apparent from the notes, and confirmed by Ms Lehn in her evidence before me, that the significant issue that was canvassed with Mr Brooks in the conference was the question of the date on which the significant conversations occurred at the Pan Pharmaceuticals premises not the time at which they occurred. The date was an issue because, as I have noted, an alibi notice had been served by the defence concerning Mr Selim's movements 31 January and, again as I have noted it was the prosecution case at committal and up to 8 March 2003 that the conversation between Mr Selim and Mr Brooks occurred on 31 January 2003. It is also clear from the notes that Mr Hastings was concerned to let Mr Brooks know of the various sources of information that raised real doubts as to whether the conversation, if it occurred, took place on 31 January. As Ms Lehn expresses it in her evidence before me, Mr Hastings put it quite forcefully to Mr Brooks that the prosecution was possessed of information that would indicate that Mr Selim was not at the Pan Pharmaceuticals premises at 6.30 on 31 January 2003. Quite properly Mr Brooks was not informed that an alibi notice had been served.

91 It is however clear from the conference notes that consistent with what Mr Brooks had said about the time of the conversation in his various statements and in his committal evidence, namely about 6.30pm, that this remained his firm position even if there were doubts in his mind as to the date.

92 The fact that Mr Brooks conferred with Mr Hastings QC a few days before 1O March 2006, when he furnished a further statement in which he reverted to 30 January being the relevant date, was given in evidence during his cross examination at the first trial (T369/19-30). In this way, the defence were on notice not only that the conference took place but what was discussed. Mr Brooks gave evidence that the details provided to him by Mr Hastings QC related to toll gate records and various telephone records (T43, 497 and 498 and 524). This was noted by Ms Lehn in the conference notes. Contrary to the submission advanced by Mr Byrne SC before me, this evidence not only provided a means by which Mr Brooks could be challenged as to why he changed the date of the conversation back to 30 January 2003 namely because the prosecution led him to see that the date must be wrong, but by necessary inference and on a fair read of his address to the jury on this discrete subject, this is precisely a submission he made to them (29/03/06 pages 29 and 30).

93 In practical sense then the fact of the conference and what was discussed was disclosed by Mr Brooks in his evidence He did not give evidence inconsistent with what he said in conference about the time of the conversation, and what he said in conference was not inconsistent with it. Were that the case it may have necessary to disclose the notes themselves. The notes of conference were not called for.

94 Applying the test in Spiteri I am not persuaded that there has been any breach of the duty of disclosure in the conference notes not being formally produced prior to, or the during the course of, the first trial.

95 If I am wrong about that I am firmly of the view that no prejudice was suffered by Mr Selim by the notes being provided after the first trial and accordingly no basis for a temporary stay to recover the costs of the first trial on this basis has been made out. Conclusion

96 In summary I refuse the application for a permanent stay for the reasons given and refuse the application for a temporary stay again for the reasons given.

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