Supreme Court of SA|2003-12-24|Before: Sulan JJ, Bleby J

R v ULMAN-NARUNIEC No. SCCRM-03-125, SCCRM-03-108 [2003] SASC 437 (24 December 2003)

Court of Criminal Appeal: Bleby, Besanko and Sulan JJ

2 For the purpose of this judgment I will refer to Ms Ulman-Naruniec as "the accused". She appeals against the refusal of the trial Judge to grant a permanent stay of her trial. On this appeal I have the misfortune of disagreeing with the conclusion of Sulan J.

3 There is no doubt that the first and second trials proceeded on an inexcusable failure of the DPP to provide the accused with material fundamental to her defence of the charge. The prosecution case was that only she and her estranged husband were involved in the importation. Therefore there could be no one else who would undertake the disputed money transactions by remitting money to her husband's account in Poland in the circumstances described. The failure to disclose the Dziki connection, Mr Pallaras' involvement with Mr Naruniec in drug importation and the Pallaras relationship with Ms Kambouris was inexcusable.

4 The failure on the part of the DPP to disclose his awareness of the information in his possession compounded the problem and also flawed the first voir dire hearing in what is now the third trial.

5 In short, there was a failure by both the Australian Federal Police ("AFP") and the DPP to disclose significant and relevant information to the defence.

6 However, the trial Judge accepted Agent Clements' explanation on the first voir dire that he did not, after 8 December 1998, regard Ms Dziki as a suspect in the importation of the ecstasy. Although there were many unsatisfactory aspects of Clements' evidence on the second voir dire, the trial Judge rejected a submission on behalf of the accused on that hearing that Clements, on the first voir dire, had told a deliberate lie about that. The Judge accepted the evidence of Agent Buckland on both the voir dire hearings that, by 8 December 1998 the AFP had excluded Dziki as a person who could have been involved in the importation of the ecstasy. The Judge specifically found that the AFP did not deliberately conceal the information about Dziki and Pallaras. The AFP had made the DPP aware of Ms Dziki and the role she played in the cannabis production. He considered that that was not the conduct of an organisation deliberately setting out to suppress the Dziki and Pallaras material.

7 The trial Judge was also not prepared to draw any inference from the failure of the DPP to give any explanation for his conduct that there was a conscious decision not to disclose the Dziki and Pallaras material to the defence. He was not prepared to conclude that the DPP acted dishonestly.

8 Neither of these findings as to the conduct of the AFP and the DPP were challenged on appeal. They are of some significance in my conclusion that a permanent stay is not justified.

9 However, it is not merely the non-disclosure about which the accused complains. She alleges that she has been denied access to important material which could be relevant to her defence. In short, that material is:

1. The taped record of interview of Ms Dziki conducted on 8 December 1998;

2. Documents seized from Ms Dziki's premises and which were subsequently returned to her;

3. Documents referred to in the AFP case note entry of 5 December 1998;

4. Documents referred to in the AFP case note entry of 4 December 1998 relating to documents obtained from Ms Dziki. I take these to be the same documents as those referred to in item 2 above and will not deal with them further; and

10 It was not suggested that there was necessarily any information in items 1 and 2 which would assist the defence or which would cause a line of inquiry material to the defence to be taken. Consistent with their belief formed at the time, the relevant officers of the AFP were only able to say that, to the best of their recollection, there was nothing in the record of interview or the documents which linked Ms Dziki with the importation of ecstasy.

11 The documents referred to in the AFP case note entry of 5 December 1998 were those referred to in an entry which read:

"Large amount of documentation (in English and Polish) concerning money transfers, bank accounts and bank deposits were seized by AFP".

12 The trial Judge accepted the evidence of Agent Buckland that there were not any documents coming within that description arising from the search of the premises referred to in that case note entry.

13 As regards the diaries of Agent Clements, his evidence was that he had handed the diaries in to the archives section of the AFP after he had completed them and had received new diaries to replace the used diaries. The Judge noted that he had received no explanation regarding the missing diaries, regarding the system of archiving the diaries or regarding steps undertaken to locate the missing diaries. The Judge regarded this as "unsatisfactory", particularly as the DPP was aware from the outset of the second voir dire that Agent Clements' credibility was under challenge. Nevertheless, that does not appear to have affected the Judge's finding that the concealment of material by the AFP was not deliberate.

14 In addition to the non-disclosure by the AFP and the DPP and the inability now to gain access to the documents referred to above, the only other elements of prejudice to the accused would appear to be the general prejudice caused by delay in the hearing and the cost and inconvenience of two trials and the first voir dire hearing which proceeded on false premises.

15 As to whether or not a permanent stay of the proceedings should be granted, it is not merely a matter of asking whether or not the accused can now have a fair trial. Unfairness to an accused is but one aspect of whether an abuse of process is brought about by the continuation of prosecution proceedings. Furthermore, unfairness comes about in a variety of ways and in varying degrees. Merely because a trial may be described as being "unfair" for one particular reason does not necessarily require that it be stayed as an abuse of process. There will often be other means of rectifying the unfairness.

16 In determining what the correct approach should be to a permanent stay of a trial based on unfairness, Mason CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 endorsed the approach of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464. Richardson J had spoken of two related aspects of the public interest which bear on the question. He said, at 481:

"The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."

17 Having cited that passage with approval, Mason CJ said in Jago at 30:

"In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed."

18 Mason CJ went on to agree with Richardson J's explanation of the rationale for the exercise of the power to stay a prosecution. Richardson J had said on that topic in Moevao at 482:

"The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

19 Mason CJ went on to say, at 31 that the power to stay would be used "only in most exceptional circumstances". Having referred to various other means by which unfairness to an accused in a criminal trial can be overcome he said, at 34:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111, per Wilson J."

20 Brennan J contrasted unfairness in a trial with abuse of process. He said, at 47 - 48:

"Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. ..... When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law."

21 Brennan J also referred to the ability by other means of controlling unfairness in most cases. He said, at 49:

"By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness."

22 Toohey J also linked the two concepts of unfairness and abuse of process. He said, at 71 - 72:

"Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other."

23 Whilst Deane and Gaudron JJ both tended to concentrate on the unfairness of a trial as being a basis for a stay, rather than linking it with concepts of abuse of process, both stressed the exceptional nature of the remedy when invoked for that purpose.

24 It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the Judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court, and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.

25 In that light, I proceed to consider whether the disadvantage occasioned to the accused meets that necessary test.

26 One can be justifiably critical, as the trial Judge was, of the behaviour of both the AFP and the DPP in the investigation and prosecution of the accused to date. I am concerned that there has been no attempt by the DPP to explain that conduct. Perhaps of greater concern is the lack of any attempt to place before the court any information regarding what enquiries have now been made to ensure that there is no further relevant information which has not been withheld. I would be more comforted if that had been done.

27 However, as I have pointed out, the trial Judge has held that the withholding of that information was not deliberate. The trial Judge rejected a submission on the second voir dire that Agent Clements had been untruthful on the earlier occasion. He merely held that Clements "was not a witness on which I would rely on some matters". 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 were any hint of the existence of further relevant information being withheld, justice would demand a stay of the prosecution, at least until the court could be satisfied, if it could be, that no more information was being withheld.

28 In the absence of any evidence as to any further inquiries into the existence of other possible relevant information, should the court act on the assumption that there may yet be more information that is being withheld? Should a stay be granted because there has been silence beyond what the accused has so far extracted by means of the diligence and persistence of her advisers? Uneasy as one may feel about the conduct of the prosecuting authorities and the process to date, to stay proceedings based on a suspicion that there may be more material not yet disclosed is not to act on evidence, especially where there has been a finding that there was no deliberate intention to withhold material. One must assume that, whatever shortcomings there may have been in the conduct of this matter to date, both the AFP and the DPP are now aware of their responsibilities and will act accordingly. The unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information can be rectified by the court ensuring that proper disclosure is made and, if necessary, by staying the trial until it is made. There is nothing on the evidence to suggest that it will continue in this case.

29 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. The obligations of disclosure have been referred to by Sulan J. I will not repeat them. 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 that they will be properly discharged. I would therefore not grant a stay for reasons that include an inference or suggestion that further material may remain undisclosed.

30 Neither would it be proper to grant a stay by way of punishment of the prosecuting authorities for not complying in the past with their obligations. Punishment or retribution should form no part of a reason for staying a prosecution. The sole question is whether to allow the third trial to proceed constitutes an abuse of the process of the court as that has been explained.

31 Leaving aside indignation at the past behaviour of the AFP and the DPP concerning their obligations of disclosure, and accepting, as I believe one must, that proper disclosure has been and now will continue to be made, what remains to justify the exceptional cause of permanently staying the proceedings? Will a third trial now be unfair such that the unfairness or injustice to the accused constitutes an abuse of the process of the court? I remind myself that the unfairness will have to amount to truly exceptional circumstances and will have to be such as is not amenable to control by other means available to the court.

32 I turn to consider the evidence now no longer available. Despite the lack of a full explanation, there is no evidence to suggest that the documents obtained from Ms Dziki were returned in order to deny the accused access to them. They were returned at a time when the AFP agents had formed the view that Ms Dziki was not involved in this offending but without realizing the potential importance to the defence of the accused of Ms Dziki's involvement with Naruniec. There is no suggestion that the tape recording of the record of interview or Agent Clements' diaries have been deliberately destroyed. There is some suggestion that the AFP's subsequent search in response to subpoenas was inadequate or that further time was needed to undertake a proper search. If the search has in fact been inadequate, as I have said, the court's process can be invoked to ensure that a proper search is made. However, there is no evidence that any of that material which has not been located in fact contains evidence which would be harmful to the prosecution case or which would be of assistance to the defence. The accused complains of lack of a chance to examine the material to see if any such evidence exists. She complains that she cannot have a fair trial because she cannot identify what is in the material which is now unavailable and which, if produced, might have put the defence on a line of inquiry that could have assisted her case.

33 The cases suggest that there will be a stay granted on the grounds of abuse of process where plainly material evidence is no longer available, being evidence, the lack of which would mean that the prosecution cannot prove its case or evidence without which it can be shown that the accused has been denied an opportunity to mount a defence.

34 An example of the first type appears in R v Reeves (1994) 122 ACTR 1. The accused was charged with 16 counts of complicity in making accounting documents which were false or misleading and which he ought reasonably to have known to be false or misleading, six counts of stealing, three counts of offences against the Companies Act 1981 (Cth) and two counts of attempting to pervert the course of justice. Many relevant records of the company concerned were destroyed without reference to the prosecuting authorities or the accused. They were essential for the proof of the prosecution case. There was a fundamental defect which went to the root of the trial. Not only was the prosecution deprived of evidence which could prove the case, but so was the accused denied access to the means of his defence.

35 Holmden v Bitar (1987) 47 SASR 509 was a case of a person charged with a breach of the Quarantine Act 1908 (Cth) by bringing tins containing meat pate into Australia. Section 86D of the Act provided that the averment of the prosecutor in the information, "shall, in the absence of proof to the contrary, be deemed to be proved". The goods in question had been seized and destroyed. As the accused bore the onus of proving that the contents were not as averred, there was no way in which the accused could make an effective answer to the prosecution. There was nothing to suggest that destruction before prosecution was required as a matter of public interest. In those circumstances the trial was stayed.

36 A third example is R v Lord and Fraser, noted in [1983] Crim LR 191 where the parts of compressors the subject of a charge of conspiracy to defraud had been so negligently handled and treated that they had deteriorated and become intermixed so that it was impossible to say which part belonged to which compressor. The items were obviously crucial to the prosecution and defence, and the particular charge was stayed.

37 I am not aware of any case where a stay has been granted on a ground of abuse of process because evidence, not shown to be essential to the defence case, merely might contain something of some assistance or might promote some relevant line of inquiry. If that were the case, many a prosecution might be stayed because of some failure on the part of police to investigate a particular line of inquiry that cannot later be pursued.

38 In Penney v R [1998] HCA 51; (1998) 155 ALR 605 one of the grounds of appeal against conviction was that unfairness and incompetence in the police investigation rendered the verdict unsafe and unsatisfactory. Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agreed, said at 609 - 610:

"[16] It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.

[17] There was no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant's counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.

[18] The appellant's submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case."

39 Defective as the handling of the police investigation may have been in this case, I do not consider that the complaint of lack of access to the material in question would justify the extreme step of a permanent stay. The accused can put it no higher than that there is just a possibility that some of the lost material may be of some assistance.

40 Before it can be said that the accused is denied access to documents such as to affect her right to a fair trial, it is appropriate to ask whether, if the documents still existed, they could have been required to be produced on subpoena at the instance of the accused. In order to justify that course, where there is an objection to production, it must be "on the cards" that the documents will materially assist the defence: Alister v R [1984] HCA 85; (1985) 154 CLR 404 per Gibbs CJ at 414; Hunt and Boyce v Judge Russell (1995) 63 SASR 402 per Perry J at 409. As this is a case in the District Court, having regard to s 25 of the District Court Act 1991, the question must be whether it is "on the cards" that the documents comprise "evidentiary material". By definition that means that they must have "evidentiary value" in the proceedings: Hunt and Boyce v Judge Russell (Ibid) at 409.

41 The recording of conversations captured by means of listening devices or telephone intercepts may be lawful but is a serious invasion of a person's privacy. The production of such material may well require special consideration: R v Gillard and Preston (1999) 76 SASR 76. See Duggan J at 88 and my own remarks at 93. Subject to that, however, the basic test remains the same: See Duggan J (Ibid) at 88 [50]. The recording of material obtained by listening devices may require a practical solution in the face of technical difficulties, as was found in Gillard and Preston, without compromising fairness to the accused.

42 In my opinion, on the evidence in this case and on the findings of the trial Judge, it was not "on the cards" that the missing material would be likely to assist the defence. The evidence did not go as far as that. Any deficiencies in the investigation which might raise a doubt on the prosecution case will no doubt be exploited before the jury and, if appropriate, may be the subject of comment by the Judge. I do not consider that the lack of access to this material either alone or taken in combination with the matters which follow, would justify a permanent stay on the ground of abuse of process in accordance with the principles explained in Jago.

43 There remain the questions of delay in the trial brought about by the two preceding trials and two voir dire examinations and the cost and inconvenience to the accused of that process followed by the continuation of a third trial. Jago's Case (supra) is authority for the proposition that delay in itself will not necessarily constitute an abuse of process. It will usually be accompanied by something else, such as death of a material witness, loss and destruction of evidence or other similar features. It was not suggested that any material witnesses in this case had died or were not available to give evidence. There has been no loss or destruction of any known evidence. There is, of course, the problem of fading memories with the passing of time. But that in itself is not sufficient cause for a stay.

44 The case against the accused relies very much on physical evidence and observations no doubt contemporaneously recorded. So far as the money transactions are concerned, it relies on inferences to be drawn from documents and relatively easily established matters of fact.

45 The only remaining unfairness is the cost and inconvenience of the first two trials. They may well have taken a different course if proper disclosure to the defence had been made. That cost and inconvenience can be alleviated to some extent by, as the trial Judge did, ensuring that the third trial does not go ahead unless the accused is compensated in some measure for the cost and expense to which she has been put by the failure of the prosecuting authorities to comply with their obligations.

46 Accordingly, I do not consider that any ground has been made out which would justify allowing the accused's appeal. In my opinion, that appeal should be dismissed.

47 I agree with the conclusion of Sulan J and with the effect of the authorities to which he refers that the order for the payment of costs, although on the face of it not authorised by the District Court Act, is of a different character from what one would normally regard as an order for the payment of costs. It is a payment, in effect, for the relief of the unfairness sustained by the accused brought about by the failure to disclose.

48 We have no information as to whether the accused has funded her own defence, or whether she has been assisted by the Legal Services Commission. In my opinion it makes no difference. If the order is justified at all, there is no reason why the scarce resources of the Legal Services Commission should be depleted at the expense of the defence of other accused persons where unfairness results in the incurring and payment of costs for proceedings which have miscarried by reason of the defaults of the AFP and the DPP.

49 In respect of this appeal we are not concerned with the principles which might govern a permanent stay, but merely with a stay pending redress of what the Court has found to be an injustice caused by an unnecessary failure to disclose. It is the unfairness of the third trial that is to be cured, in part, by the payment of the costs of the two trials which can be said to have miscarried. In my opinion the entitlement is not diminished by virtue of the fact that those trials failed for reasons not connected with the non-disclosure. Had the non-disclosure been revealed before either of the previous trials, the accused would have been entitled to a stay of proceedings until full disclosure was made. It is because that non-disclosure was not revealed that the trials went ahead. I would dismiss the DPP's appeal against the order staying proceedings until the Crown pays or undertakes to pay the reasonable costs of the accused of the two earlier trials.

50 The accused is not seeking access to tapes of all telephone conversations recorded. Those that are of interest have been identified from the summaries prepared for the DPP. There can be little doubt that, for the reasons expressed by Duggan J and me in R v Gillard and Preston (1999) 76 SASR 76, the defence is entitled to copies of the tapes of the conversations that have been identified. That much appears not to be in dispute.

51 Some of the conversations are in English, some are in Polish and some are in Greek. I agree with Sulan J that, in respect of those in English, there should be no obligation on the DPP to provide transcripts of those conversations. That was not suggested in Gillard and Preston, nor would it be reasonable to require a transcript. The purpose of making the tapes available is to enable them to be listened to for the purpose of extracting such material as may be favourable to the defence. Not all of it will be. None of it may be. The prosecutor's obligation is discharged if opportunity is given for the tapes to be listened to.

52 In respect of the conversations in Polish, it would appear that the accused is fluent in Polish. For the same reason, I believe it is not necessary to provide translations of those conversations. There is nothing to suggest that the accused is not sufficiently aware of the nature of her defence to draw the attention of her advisors to those conversations which may appear to be of relevance so that a translation and transcript can then be arranged of those considered to be of significance. In the alternative, if the accused lacks sufficient confidence to be able to identify any conversations that should properly be reviewed by her solicitor, the alternative is to have the tapes listened to and translated by an interpreter whose translation can be recorded and then reviewed by her solicitor. As in the case of conversations in English, a transcript could then be prepared of those conversations which the accused seeks to use in evidence. The question is whether the cost of such translation should be borne by the DPP.

53 There will be many cases in which, for the proper preparation of a defence, a translation of documents will be necessary as part of the expense of preparing the case for trial. In most cases the accused will justifiably insist on obtaining his or her own translation. I see no difference between a translation of a tape recording for this purpose and translation of a document. Those resources will not normally be required to be provided by the prosecuting authority.

54 In respect of those conversations in Greek, one must assume that neither the accused nor her advisors are fluent in Greek. In that case the same procedure can be used as I have suggested would be appropriate for translation of the Polish conversations if the accused lacks confidence in discerning relevant Polish conversations.

55 Accordingly, I would allow the appeal by the DPP but only to the extent necessary to set aside the order staying the prosecution until the Crown provides written transcripts of the identified telephone intercepts. In all other respects, I would dismiss the appeal of the DPP and confirm the orders of the trial Judge.

56 The facts are set out in the reasons for judgment of Sulan J. I gratefully adopt his Honour's statement of the background facts and the primary facts. I will repeat the facts only where it is necessary to understand the reasons which follow.

57 I think it is important at the outset to identify the critical findings of fact made by the Judge and those findings which are challenged on appeal. The critical findings of fact relate to the issue of whether the accused can now be given a fair trial, the issue of whether the non-disclosure of material by the Australian Federal Police ("AFP") and the Commonwealth Director of Public Prosecutions ("DPP") was deliberate and the issue of the extent to which relevant documents and other material has been lost or destroyed. The submissions of counsel for the accused were directed towards the second issue, namely, the issue of non-disclosure by the AFP and the DPP. Although in the end I do not think he pressed the submission, counsel for the accused initially suggested that the Judge erred in not finding that the non-disclosure was deliberate. I think it is fair to say that his principal submission was that even accepting the Judge's characterisation of the conduct of the AFP and the DPP an order for a permanent stay should have been made.

58 It is convenient to start with the second issue, namely the issue of non-disclosure. The Judge found that the AFP and the DPP failed to disclose to the accused the material he described as the Dziki material and the Pallaras material. The nature of that material is fully described in the reasons of judgment of Sulan J. The accused asked the Judge to find that the AFP and the DPP had deliberately concealed that material. In the course of dealing with that submission, the Judge considered the extent to which he could rely on the evidence of two Federal agents involved in the investigation. The Judge found that Agent Clements was not a witness upon whom he could rely on some matters. By contrast, the Judge said that he could rely on the evidence of Agent Buckland. The Judge noted that both counsel for the DPP and counsel for the accused urged him to accept Agent Buckland as a truthful and reliable witness. The Judge found that the AFP did not deliberately suppress the Dziki material or the Pallaras material. In making that finding the Judge relied on the conduct of the AFP in making the Dziki material and the Pallaras material known to the DPP.

59 It is not necessary to identify the matters upon which the Judge relied to make that finding as the finding was not challenged on appeal. In any event, in my opinion, there was a proper basis for the Judge to find that the AFP had not deliberately suppressed the Dziki material and the Pallaras material and I would not interfere with the Judge's finding.

60 The Judge also rejected the accused's submission that the DPP had deliberately concealed the Dziki material and the Pallaras material. It is important to note that in referring to deliberate concealment, the Judge had in mind that the DPP had intentionally concealed the relevant material, knowing that it had an obligation to disclose it. In considering this issue the Judge referred to the information and material which was in the possession of the DPP. With very good reason he expressed great disquiet at the failure of the DPP to provide any explanation of its failure to disclose the material to the accused. However, in the end the Judge was not prepared to draw the inference that the DPP had acted dishonestly. He said:

"It is a serious charge to be laid against a prosecuting authority. There would need to be cogent evidence present to support any such finding. There is no such cogent evidence which supports such a finding."

61 Counsel for the accused was careful not to put his argument too high and, as I have said, in the end I do not think he challenged the Judge's refusal to make a finding of dishonesty. Even if he had, I would reject such a challenge. It is true that the issue is finely balanced, particularly in view of the DPP's failure to offer any explanation for its conduct. Furthermore, the issue is one of what inference should be drawn in light of the primary facts which are not contested and in that sense this court is in as good a position as the Judge to determine what inference should be drawn. Nevertheless, it is an inference of dishonesty and as an appeal Judge I would wish to be clearly persuaded that the Judge was wrong in refusing to draw the inference of dishonesty. I am not so persuaded.

62 The Judge found that the failure to disclose the Dziki material and the Pallaras material (including the involvement of Tina Kambouris with Mr Pallaras) meant that the trial process in each of the earlier trials was flawed. It is not entirely clear to me what the Judge meant by that description. He did say that he did not need to find whether the non-disclosure had caused a miscarriage of justice in each of the earlier trials. I take the Judge to be saying that there was a failure by the prosecution to comply with an important obligation of disclosure in relation to information relevant to issues in the trial.

63 As to the issue of whether the accused could now be given a fair trial, the Judge made the following finding:

"I accept that the disclosure which has now been made indicates that if the trial proceeded, the accused could obtain a fair trial, subject to any rulings which may need to be made and to which I made reference in the Reasons I published with regard to the earlier Voir Dire hearing."

64 A little later in his reasons for judgment he said:

"As I said earlier, as a result of the disclosure since the Second Trial, I am of the opinion that the accused can obtain a fair trial in the present Trial."

65 As to the third issue, the Judge made a series of findings in relation to items of evidence said to have been lost or destroyed. First, the Judge referred to the loss of the audio tape recording the interview between Agent Clements, Ms Dziki and Ms Dziki's solicitor (Mr Robert Wyatt) on 8th December 1998. He found that Mr Wyatt's notes were sufficient to indicate (albeit in brief form) the topics discussed at the interview and that there was nothing in those notes to suggest that anything said in the interview was likely to provide assistance to the accused in her case. Those findings of fact were not challenged on appeal. Secondly, the Judge referred to documents seized by the AFP on 5th December 1998 and described in the Promis System in the following way:

"Large amount of documentation (in English and Polish) concerning money transfers, bank accounts and bank deposits were seized by AFP."

66 The Judge found that there were no documents falling within the above description and that the entry on the Promis System was a careless one. In doing so he relied on the evidence of Agent Buckland. As I have said, the Judge said that he could rely on the evidence of Agent Buckland. I did not understand there to be any challenge to the Judge's finding.

67 Thirdly, the Judge referred to the fact the diaries of Agent Clements for the calendar years 1998 and 1999 were lost or destroyed. The Judge found that the lack of explanation regarding the missing diaries was most unsatisfactory. Fourthly, the Judge referred to missing documents seized from Ms Dziki by the AFP, many of which were returned to Ms Dziki on 8th December 1998. The documents which were retained by AFP were provided to the accused. The Judge said that the return of the documents to Ms Dziki had to be seen against the background that the AFP had decided that Ms Dziki was not involved in the narcotic importation. The Judge also referred to the following passage in the reasons for judgment of Callinan J (with whom McHugh, Gummow, Kirby and Hayne JJ agreed) in Penney v The Queen [1998] HCA 51; (1998) 72 ALJR 1316 (at 1319 - 1320)

"It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.

There is no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant's counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.

The appellant's submission on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial".

68 The Judge also rejected submissions by the accused that in failing to seek a handwriting sample from Ms Dziki or to investigate the possibility that Ms Tina Kambouris was responsible for the transfer of money overseas, the prosecution breached the standard of fairness required of it or that these failures meant the accused would not obtain a fair trial. There was no challenge to the Judge's rejection of those submissions. The Judge also rejected a general submission by the accused that as a result of the failure to disclose the Dziki material or the Pallaras material prior to the earlier trials further investigation of Ms Dziki's involvement or Mr Pallaras' involvement had gone "cold" due to the passage of time. Again, it may be noted that there is no challenge to the Judge's conclusion on that point.

69 Having made his findings of fact, the Judge then discussed the relevant authorities including Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Williams & Ors v Spautz [1992] HCA 34; (1992) 174 CLR 509, Moevao v Department of Labour [1980] 1 NZLR 464 and Walton v Gardiner (1993) 177 CLR 378.

70 It is unnecessary to discuss these authorities in any detail because they are discussed in the reasons for judgment of the other members of the Court and because it is not suggested that the Judge did not identify the correct legal principles. However, there are two important statements in the authorities to which I think reference should be made. In Jago v The District Court of New South Wales, Mason CJ (at 30) cited with approval the following passage in the reasons for judgment of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482.

"The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

71 In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said (at 395 - 396):

"As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice."

72 The Judge expressed his conclusion on the accused's application for a permanent stay as follows:

"After undertaking the balancing exercise, I am of the opinion that a permanent stay should not be granted. Notwithstanding the grave breaches of the AFP's and the DPP's obligation to disclose and the flawed basis upon which the previous two trial proceedings considered either together or combined with the other grounds identified by Mr Edwardson and which remain extant, I have concluded that they do not outweigh the other issues militating against a stay. In my opinion the interests of justice or the administration of justice do not demand that there be a permanent stay of the third Trial of the accused."

73 It is not argued by the accused that the Judge erred in undertaking what he described as the balancing exercise. Once that is accepted, the accused can only succeed if she can show that the Judge erred in making or failing to make a finding of an intermediate fact or in placing so little weight on one of the relevant factors that it can be inferred that the Judge must have committed the type of error which would justify the intervention of this Court (House v The King (1936) 55 CLR 499; Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 398 - 399). Neither of those matters is established. The Judge found that the accused could be given a fair trial and, in my opinion, that carries with it a finding that all relevant disclosure has been or will be made. The Judge declined to find that the DPP had acted dishonestly. The Judge appears to have found that for the most part the accused is unaffected by any documents or other evidence lost or destroyed. In those circumstances, and bearing in mind that the charge is a serious one and it is acknowledged by the accused that there is a case to answer, the Judge did not err in refusing the accused's application for a permanent stay.

74 For the reasons given by Bleby and Sulan JJ, I agree that the appeal by the DPP should be allowed but only to the extent that the order of the Judge that there be a stay of the prosecution until the Crown has provided written transcripts, including translation of any foreign language, of the three hundred and twenty eight telephone intercepts identified by the solicitors for the accused be set aside. The appeal by the DPP is otherwise dismissed.

76 This appeal and cross-appeal relates to two decisions on issues antecedent to trial made by a judge of the District Court on 24 September 2002[1] and 3 April 2003.[2] The case has had an unfortunate history.

77 The appellant, Ms Dana Ulman-Naruniec, is charged on Information with being knowingly concerned with importation into Australia of a prohibited import contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). I shall refer to the appellant as the accused.

78 The accused was charged with the offence on 11 November 1998. In May 1999, the Commonwealth Director of Public Prosecutions ("DPP") laid an information in the District Court. In June 2000 the accused stood trial and a jury was unable to arrive at a verdict. She was re-tried and convicted on 20 March 2001. The accused appealed against the conviction. On 29 August 2001, the Court of Criminal Appeal allowed her appeal. The conviction was quashed and a re-trial ordered. She had been in custody between 20 March 2001 and 29 August 2001 when she was released on bail.

79 The trial was re-listed before the District Court. The accused sought various orders including a permanent stay of the prosecution. There were two voir dire hearings, the first commenced on 6 June 2002 ("the first voir dire hearing"). The trial judge refused the application. The accused made a further stay application. The hearing commenced on 17 February 2003 ("the second voir dire hearing"). On 3 April 2003, the trial judge ordered a stay of the prosecution until the Crown had provided written transcripts of three hundred and twenty eight telephone intercepts, including translations thereof. He ordered that the prosecution be stayed until the Crown pays or undertakes to pay the reasonable costs of the accused of the earlier two trials.

80 Both the accused and the DPP have appealed the decision. The accused contends that the trial judge erred in failing to order a permanent stay. The DPP has cross-appealed on two grounds. The first ground is that the trial judge erred in ordering a stay of the prosecution until the Crown pays or undertakes to pay the reasonable costs of the accused of the earlier two trials. The second ground is that the trial judge erred in ordering a stay of the prosecution until the Crown has provided written transcripts, including translations, of the 328 telephone intercepts identified by the solicitors for the accused.

81 The accused is charged that between 31 March 1998 and 5 November 1998 at Adelaide she was knowingly concerned in the importation into Australia of a prohibited import, being 1.3471 kilograms of 3, 4 - methylenedioxymethamphetamine, being not less than a commercial quantity. The prosecution case is that the accused was involved in a joint criminal enterprise with her estranged husband, Sam Naruniec ("Naruniec") to import 22,000 tablets of the drug commonly known as ecstasy into Australia.

82 The events leading to the arrest and subsequent charging of the accused commenced with an investigation by the Australian Federal Police ("AFP") code-named "Operation Cadillac". Operation Cadillac was engaged in the investigation of drug importation. One of the targets of the investigation was a person named George Pallaras ("Pallaras"). Pallaras was suspected to have been involved in the distribution of illegal drugs in Australia. During the investigation of Pallaras' activities, the AFP obtained information about associates of Pallaras. Naruniec was one of those associates. The AFP obtained authority to conduct a number of telephone intercepts. As a result of those intercepts, the AFP became aware that Naruniec was intending to send a quantity of drugs from Poland to Australia. I shall deal in more detail with the telephone intercepts later in my reasons.

83 The AFP received information about a parcel of tablets which had been sent by Naruniec to Australia to an address at which the accused resided. On 29 October 1998, they intercepted the parcel and they removed the tablets that were hidden in two speakers forming part of a stereo system. They substituted the prohibited ecstasy tablets with tablets not containing a prohibited drug and re-sealed the parcel. The parcel was then delivered to the Flagstaff Hill Post Office.

84 The accused collected the parcel from the post office. It is alleged that she removed the tablets from the speakers and placed them in bags. It is alleged that when she removed the tablets, she wore gloves. The police attended at the accused's home and seized the stereo system and the bags.

85 When she was interviewed by the AFP, the accused told them that she did not know that the parcel contained narcotics. She said she had been told by Naruniec that the parcel contained Viagra. The accused denied that she was involved in a joint criminal enterprise with Naruniec to import narcotics.

86 At the first two trials, the prosecution case was presented on the basis that the only persons involved in the importation were the accused and Naruniec, and that there was an inherent improbability of some other person being involved. As part of the evidence relied upon by the prosecution, there were four applications for telegraphic transfers of monies, each made in writing and each for the sum of $9,800. On each occasion, an amount of $9,800 was deposited with a financial institution that was requested to transfer the monies to Poland. I shall refer to that evidence as "the money transfer transactions". The Financial Transactions Reports Act 1988 provides that cash transactions of $10,000 or more must be reported to the Australian Transactions Reports and Analysis Centre ("AUSTRAC"). The money transfer transactions included one application that was made on 9 April 1998 and three applications that were made on 15 April 1998. The transfers were made in the names of "Julia Urban", "Anne Werner", "Julia Aldam" and "Justine Hober". They were made from the Aberfoyle Park and Edwardstown branches of the Bank of South Australia and the Marion Shopping Town branches of the Commonwealth Bank and Westpac Banking Corporation. The recipient of all the transfers was an account in the name of Naruniec at Bank Gdanski, Gdanski, Poland.

87 The prosecution case is that the four applications for money transfer were made as part of a joint criminal enterprise between the accused and Naruniec. The prosecution alleges that the accused, using false names and addresses, was involved in the transfer of the funds to Naruniec. It is alleged that the money was sent to Naruniec to be used in the acquisition of the ecstasy that was imported into Australia in late October 1998. The accused has always denied depositing the sums of $9,800 and denied being involved in the money transfer transactions.

88 The third trial commenced before the District Court on 6 June 2002. It commenced before a jury was empanelled with the first voir dire hearing. The accused challenged the admissibility of evidence relating to the money transfer transactions. Counsel for the accused relied upon a number of grounds to support her application to exclude that evidence. It is not necessary to repeat each of those grounds, other than to refer to the ground and argument relating to a person named Urszula Dziki ("Dziki"). In addition to the challenge to the evidence relating to the money transfer transactions, the accused sought a permanent stay of the prosecution on the grounds of an abuse of process.

89 The Dziki issue arose shortly before the third trial. Mr Edwardson, who was then counsel for the accused, wrote to counsel for the DPP on 4 June 2002 advising him that the accused's instructing solicitor had obtained a copy of sentencing remarks relevant to Dziki. Dziki had been sentenced in the District Court on 31 May 2002 for various offences involving the possession and production of cannabis. The solicitor had searched that court file. Mr Edwardson provided to counsel for the DPP documents which it appeared that neither counsel nor the DPP had received from the AFP. Amongst the material which the accused's instructing solicitor had obtained were papers that disclosed that on 4 December 1998, a number of AFP officers (who were the same officers involved in the investigation of the accused's matter) had commenced surveillance on premises situated at 9 Abbott Avenue, Morphett Vale. The premises were occupied by Dziki and Naruniec before he left to travel overseas. The papers disclosed that Naruniec had been living in a de facto relationship with Dziki prior to his departure.

90 Mr Edwardson informed prosecuting counsel that Dziki had been stopped on 4 December 1998 whilst driving her motor vehicle at Adelaide. When spoken to by an AFP officer, it was put to her that he believed that there were narcotics in her vehicle. The officer had a warrant to search Dziki's vehicle. The warrant alleged that she was a suspect in connection with the prohibited importation of narcotics, the subject of the charge upon which the accused had been presented. Prior to the first voir dire hearing, counsel for the accused sought various documents from the DPP. It appears the AFP had possession of documents that demonstrated that Dziki was involved in an enterprise with Naruniec in respect of illegal drugs.

"Having regard to the fact that the Crown had on two previous trials sought to establish circumstantially that my client is the female responsible for various electronic telegraphic transfers to Poland I find it extraordinary that the Australian Federal Police officers have failed to provide to the Commonwealth DPP the relevant material which we have now forwarded to you. The association between Dziki, her mother, and my client's estranged husband at relevant times in 1998 is extremely relevant and important to the question of the identification of the alleged female responsible for the electronic transfers of money. In my view this evidence which we have had to obtain ourselves given that it was not provided by the AFP, puts an entirely different complexion on the issue of the identification of the female responsible for these transfers and the relevance of the so-called "relationship" between my client and her estranged husband.

I would be most grateful if you would attend as quickly as possible to the obtaining of all relevant documentation in the possession of the AFP, whether it be statements not disclosed, photographs not disclosed or documents seized not being disclosed. These documents are obviously relevant to a complete picture of the police investigation into this matter."

92 As a consequence, the day before the first voir dire hearing commenced, the prosecution provided information regarding Dziki to the accused's legal advisers.

93 It appears that the background to the relationship between Dziki and Naruniec, and the AFP's knowledge of it, resulted from a number of telephone intercepts made in November 1998. The target of the intercepts was the person Pallaras who was suspected of being involved in the purchase of substantial quantities of cannabis. The AFP intercepted a telephone call from Dziki to Pallaras in which Dziki indicated that she had been a business partner of Naruniec. A meeting was arranged between Pallaras and Dziki. Pallaras asked Dziki if she would arrange for Naruniec to telephone him. Shortly after that call, a further telephone intercept was made of a telephone call from Naruniec to Pallaras. Naruniec indicated that he had been in partnership with Dziki for about two years and that they were equal partners. He indicated that Dziki could be trusted and that Pallaras could pay the entire proceeds of the transaction being undertaken with him to Dziki. The AFP suspected that the transaction involved the sale of cannabis. Naruniec indicated that Dziki would send his share of the proceeds to him in Poland. Naruniec also indicated that he had a personal relationship with Dziki.

94 On 4 December 1998, as a result of various telephone intercepts, the AFP stopped a motor vehicle driven by Dziki in Gilbert Street, Adelaide. The police located bags in the motor vehicle containing approximately two kilograms of cannabis material. The police suspected that Dziki was intending to sell the cannabis to Pallaras. Both South Australian Police and officers of the AFP attended her premises at Morphett Vale and located cannabis plants growing hydroponically. On the same day, police attended premises at Goodwood occupied by Dziki's mother and located hydroponically growing cannabis plants. The following day, they attended premises at Seaton rented by a man with a similar name to Naruniec and located cannabis plants growing hydroponically. They also attended premises at Goodwood and premises at Clarence Park. Naruniec was apparently associated with all of the properties. Dziki was aware of them and directed the AFP to the properties.

95 On 8 December 1998, Dziki, accompanied by her solicitor, Mr Wyatt, was interviewed by AFP Federal Agent Clements, in company with AFP Federal Agent Buckland. The police had suspicions that Dziki had become involved in the importation of narcotics with Naruniec.

96 Clements and Buckland, who both gave evidence, said that they had formed the opinion that, whilst Dziki was involved with Naruniec in the cultivation and sale of cannabis, she was not involved in the importation of narcotics with Naruniec. Clements said that because the AFP had not discovered anything that linked Dziki to the importation of the ecstasy, they had eliminated her from their investigations into the importation. However, in the course of the search of Dziki's premises on 4 December 1998, police seized a number of items, including documents, some of which pointed to the possibility that she may have been involved in transferring money to Naruniec in Poland. There was also material which pointed to Dziki as having possibly made deposits of monies in financial institutions in Adelaide for the purpose of transferring funds to Poland.

97 It was submitted to the trial judge by counsel for the accused that the evidence relating to the relationship between Dziki and Naruniec raised a reasonable possibility that she was the person involved in the money transfer transactions and that a jury could therefore not conclude that the accused was involved in the money transfer transactions, rendering the evidence inadmissible. It was also put to the trial judge that he should exclude the evidence in his discretion because of the failure of the prosecution to disclose the existence of Dziki and her relationship with Naruniec when they first became aware of it in November 1998. It was submitted that such late disclosure had deprived the accused of the opportunity to further investigate the role of Dziki. The late disclosure of the evidence relating to Dziki formed the basis of the application for a permanent stay.

98 Counsel who appeared for the prosecution, argued that the Dziki evidence was not relevant. He relied on the circumstantial evidence which pointed to the accused as being the person involved in the money transfer transaction. The trial judge rejected that submission. The trial judge found that the Dziki evidence was relevant to the question of whether it was the accused who was involved in the money transfer transactions. He determined it was relevant in two ways, firstly, as evidence which may be used to undermine the prosecution case and, secondly, as evidence to support the accused's case. I agree with the trial judge's conclusion. The accused had always denied that she was involved in the money transfer transactions. The evidence relating to Dziki and Pallaras which may point to others who may have been involved in drug transactions with Naruniec was relevant to the defence case.

99 On 22 December 1998 an Australian Federal Police officer, Julie Marie Dillon swore an affidavit in proceedings in the Supreme Court pursuant to the Proceeds of Crime Act 1987 (Cth). In those proceedings the DPP was seeking various orders in relation to the property of the accused and Naruniec. In the course of the second voir dire hearing, a number of drafts of that affidavit were discovered. In an earlier draft of the affidavit it was disclosed that on 8 December 1998 Dziki handed a facsimile to the AFP that she had received at her home. The facsimile contained information that included details of an account of Naruniec with the Bank of Gdansk in Poland. That information was not disclosed in the final affidavit filed in the Supreme Court, dated 22 December 1998. It is clear that on 8 December 1998 the AFP were aware that Dziki had knowledge of Naruniec's bank account including the number of that account in Poland. Although the date of the facsimile to Dziki disclosing details of the bank account post-dates the date of the applications of the money transfer transactions, nevertheless, it raises the question whether there was other material available to Dziki at the time of the telegraphic transfers from which she would have known the details of Naruniec's account in Poland. The material may well have been relevant to the defence, as it could have established that the accused was not the only person who had knowledge of Naruniec's bank account in Poland. The material raised other possibilities as to who might have been involved in the money transfer transactions.

100 There is yet another item of evidence which might connect Dziki with the money transfer transactions. A photocopy of a note was produced during the second voir dire hearing. That note had written on it the name "Urban". The note also contained a telephone number. There is some uncertainty where the note was found, but there is some material to suggest that it had been found at the home of Dziki. Urban was one of the names used on one of the money transfer transactions. Evidence had been called that Urban was a name known to the accused. If the note was found at Dziki's home, there was also evidence that it was a name known to Dziki. Again, this was some evidence upon which the defence may have relied in suggesting that there were other people who might have been involved in the money transfer transactions.

101 In the second voir dire hearing a note entitled, "SUMMARY OF DETAILS FOR D.P.P. ON SAM NARUNIEC" came to light. In that note, which had been prepared by Clements, there is reference to Dziki's involvement with Naruniec in the production and sale of cannabis and that Dziki was Naruniec's girlfriend. I will come to the detail of that note later, but it again provided some further material that the defence may have relied upon in cross-examining officers of the AFP about their knowledge of the involvement of others in illegal drug transactions with Naruniec.

102 In the first voir dire hearing, the trial judge concluded that Clements and Buckland were honest witnesses. He concluded that the material relating to Dziki was not conveyed to the DPP because it did not occur to Clements that it was relevant to the prosecution of the accused. The trial judge found that both Clements and Buckland were aware of their duty to provide all information relevant to a charge against the accused, whether the information was inculpatory or exculpatory. He concluded that it did not occur to Clements that the material relating to Dziki had relevance to the question of the identity of the person involved in the money transfer transactions in April 1998. His Honour said:

"The existence of Ms Dziki and the evidence regarding her relationship with Mr Naruniec, had never been conveyed to the Director of Public Prosecutions by the Australian Federal Police. None of the declarations provided to the Director of Public Prosecutions by the Australian Federal Police, mentioned Dziki. In his evidence, during the voir dire hearing, officer Clements explained that it never occurred to him that he should provide the information regarding Ms Dziki to the Director of Public Prosecutions as he did not consider it relevant to the charge against the accused. He said that from the evidence available to him he had formed the opinion that the accused was involved with her estranged husband, Sam Naruniec in the importation of the ecstasy. Officer Clements said that there was circumstantial evidence which indicated it was the accused who was engaged in the money transfer transactions. He said that by the time of meeting with Ms Dziki of 8 December he had eliminated her from their investigation regarding the importation of the ecstasy."[3]

"I am satisfied that the police did not disclose anything with respect to Ms Dziki because they believed she was not involved in the importation of the ecstasy or the money transfer transactions. They concluded that she had no relevance to the importation charge. With the benefit of hindsight and with their thought processes concentrated towards matters to which they were directed by Counsel for the accused during the course of their evidence it is likely the police officers would have concluded that Ms Dziki had relevance to the accused's case. However, they are not to be judged in that light. There was nothing in their conduct to suggest that they acted illegally or improperly in not disclosing the presence of Ms Dziki."[4]

104 Subsequent events revealed that Clements' evidence during the first voir dire hearing had been unsatisfactory. The trial judge's conclusion that there was a failure to disclose because the police considered Dziki had no relevance to the importation charge cannot, in my opinion, be sustained due to the unsatisfactory evidence of Clements. There had also been a recorded interview with Dziki. The tape of that interview cannot now be located. The trial judge accepted Clements' evidence that that interview was conducted in order for the police to learn more about Naruniec and that they had excluded Dziki as a suspect in the ecstasy transaction. Documents had been seized from Dziki's home. Some documents were returned to her. An incomplete and ambiguous record was kept of which documents had been seized and returned. The trial judge found that there was no basis for concluding that there was evidence which had been lost that would lead to the accused being unable to obtain a fair trial. He relied on the evidence of the AFP officers Clements and Buckland that insofar as they could recall, there was no material that had been discovered at Dziki's home that was relevant to the importation charge.

105 The trial judge placed considerable reliance upon the evidence of the AFP officers. The trial judge rejected the submissions of counsel for the accused that the defence had been deprived of the opportunity to fully investigate the involvement of Dziki. Counsel for the accused submitted that three and a half years had passed and the accused had been deprived of the opportunity of having her legal advisers further investigate the involvement of Dziki. The trial judge said:

"I am of the opinion that the non-disclosure of the Dziki material resulted from the failure of the police to recognise it had relevance to the money transfer issue. I also indicated that the decision was a bona fide one. As a result of reaching that conclusion, it follows that the accused is denied the basis for the submission initially made, namely, that it would be an affront to justice to require the accused to be tried for a third time where the police had deliberately excluded exculpatory evidence."[5]

106 One matter which was left outstanding after the first voir dire hearing was the telephone intercepts. The trial judge noted that the prosecution was in a position to provide the defence with summaries of the telephone intercepts. He gave liberty to the accused to apply to the court for orders if anything arose from the telephone intercepts which required determination by the court. As I observed earlier, the telephone intercepts which had been disclosed to the accused's legal advisors during the first voir dire hearing were part of a very large investigation by the AFP code named "Operation Cadillac".

107 The accused made a further application for a stay of the prosecution (the second voir dire hearing). The accused submitted that the conduct of the AFP was such that there had been an abuse of process. A number of grounds were relied on. Those relevant to this appeal are:

1. That the AFP and/or the DPP failed to make relevant disclosure in relation to Dziki and Pallaras before either of the earlier trials.

2. That there was a failure to make relevant disclosure in relation to Pallaras at the first voir dire hearing.

3. That there was a deliberate and orchestrated attempt by the AFP to conceal material.

4. That the DPP deliberately failed to disclose the material in relation to Dziki and Pallaras.

5. That there was destruction or loss of relevant evidence, such as a tape recording of the interview between Dziki and the AFP on 8 December 1998, documentation relating to overseas money transfers in English and Polish, Clements' diaries for the years of 1998 and 1999, and unidentified material that was seized by the AFP on 4 and 5 December 1998 that may be relevant to the importation of narcotics.

6. That the evidence of Clements in the first voir dire hearing was untruthful.

7. That the manner in which the first two trials were presented was unfair because the accused was deprived of cross-examining witnesses about the involvement of others, including Pallaras and Dziki with the AFP.

8. That the accused and the Court were misled in the first voir dire hearing, having been left with the impression that the DPP knew nothing of Dziki.

108 A number of matters that had been the subject of previous argument were raised. More information had become available to the accused's legal advisers. Much of this information became known as a consequence of the AFP being required to produce documents in answer to subpoenas issued on behalf of the accused.

109 As I have mentioned, prior to the interview of Dziki on 8 December 1998, both AFP officers, Clements and Buckland, suspected that Dziki and Naruniec were involved in the importation of ecstasy, the subject of the current charge. After the interview, both said that they did not hold that suspicion. Rather, they believed that Dziki's involvement with Naruniec was solely in relation to the production of cannabis. Thus, the agents eliminated Dziki from the ecstasy investigation.

110 The transcript of the interview that the agents relied upon has been lost. One of the consequences of the agents' decision to eliminate Dziki as a suspect in the investigation was that no further inquiries were made surrounding Dziki's involvement in the transfer of funds to Naruniec in Poland. As it transpired, Dziki was in possession of Naruniec's bank account details in Poland. It does not appear that there was any follow up to ascertain when she first became aware of those details, in what circumstances she became aware of them and whether and when she had ever transferred monies to Naruniec.

111 Documents produced and tendered at the second voir dire hearing indicated that the DPP had knowledge of the involvement of Dziki in December 2002. It is not known when the DPP acquired such knowledge. However, a letter dated 7 May 1999 from Clements to the DPP mentioned Dziki as the girlfriend of Naruniec. Correspondence existed from a senior solicitor of the DPP to Clements requesting production to that solicitor of the brief held by the South Australian Police in regard to the prosecution of Dziki for possessing cannabis. There is also in existence the previously mentioned memorandum entitled, "SUMMARY OF DETAILS FOR D.P.P. ON SAM NARUNIEC" written by Clements. This document refers to Dziki and her relationship with Naruniec, including dealings in cannabis.

112 The trial judge ruled that the DPP had a duty to disclose to the accused the presence of Dziki, her involvement with cannabis and her relationship with Naruniec. The trial judge mentioned that the requirement to disclose was more compelling considering the AFP's belief that Naruniec and Pallaras were involved in the importation of ecstasy. The trial judge noted in his ruling on the second voir dire hearing that counsel for the DPP accepted that there was a duty of disclosure by a prosecuting authority which applied equally to law enforcement agencies investigating an offence.

113 The trial judge had accepted the evidence of Clements and Buckland at the first voir dire hearing and relied on that evidence for his findings and in support of the exercise of his discretion to refuse the earlier application for a stay.

114 It became clear in the second voir dire hearing that the DPP had been informed about Dziki. Clements' memorandum stated inter alia:

"It is suspected that the proceeds from the sale of this cannabis was to be sent to NARUNIEC and used to finance further imports of narcotics into Australia.

DZIKI has stated that the cannabis crops located during the searches were NARUNIECs' (sic) and she and her mother were tending them on his behalf."

115 When Clements wrote the memorandum, he was of the view that the money received by Dziki from the sale of cannabis was to be transferred to Naruniec in Poland for the purpose of purchasing narcotics and importing them to Australia. That was relevant to the defence to support the contention that others were involved and that the accused had been duped by Naruniec.

116 In affidavits sworn by a Federal Police Agent named Bridle on 11 January 1999 to support a warrant for the telephone intercepts, Bridle stated that the AFP believed that the ultimate recipient of the ecstasy was to be Pallaras and that Pallaras had been in telephone contact with "Urszula" on 25 November 1998. Bridle deposed that Dziki had been given Pallaras' telephone number by her business partner, "Sam", who was in Poland. It follows that in January 1999 a senior officer of the AFP suspected Pallaras was involved in the importation of narcotics and that Pallaras and Dziki were in contact.

117 There were intercepts of conversations between Naruniec and Pallaras indicating that they sold drugs through an established network of distributors. They had an ongoing enterprise. Pallaras was to finance further ventures with the profits made from earlier ventures. In those circumstances, it is surprising that in December 1998 Clements and Buckland came to the conclusion that Dziki, who was associating with Pallaras, was no longer a suspect in the ecstasy transaction, and that investigations of her possible involvement ceased.

118 In December 1998 the DPP issued proceedings against the property of the accused and Naruniec. An affidavit of Julie Dillon, which was sworn on 22 December 1998, did not disclose that Pallaras was involved in the importation of ecstasy and other drugs, or that he had been in contact by telephone with Naruniec. The trial judge was not given a satisfactory explanation about the failure to refer to Pallaras in the affidavit.

119 Counsel for the DPP conceded that the same senior solicitor who was involved in the advising in respect of the prosecution of the accused was also involved in drafting the affidavit under the Proceeds of Crime Act 1987 (Cth). The affidavits in support of applications for telephone intercepts had been seen by an officer of the DPP, although it was not the same officer. The trial judge noted that the AFP and the DPP were well aware of the involvement of Pallaras and Naruniec in drug dealings and that the AFP believed that Pallaras was involved in the importation of ecstasy. None of this material had been disclosed to the accused in any of the earlier trials or during the first voir dire hearing.

120 The trial judge found that the Pallaras material was relevant to the defence case. He concluded that the evidence could undermine the Crown case, that is, that the accused and her husband were solely involved in the importation of ecstasy. The prosecution presented their case on that basis in the first two trials. He found that there had been a significant failure of the prosecution in discharging its duty to disclose all material which may be of assistance and relevance to the defence case.

121 No evidence was called to explain the conduct of the DPP. The first voir dire hearing had proceeded on a false premise. In his decision on the second voir dire hearing, the trial judge found it was disquieting that the prosecuting authority had offered no explanation for allowing the first voir dire hearing to proceed on a false premise. He said that there was and remained an obligation on the part of the DPP to disclose the Pallaras material to the accused. He was satisfied that both the AFP and the DPP had information that Pallaras and Naruniec were involved in the importation of ecstasy. He concluded that any reasonable person conducting the prosecution should have formed the view that that material was relevant to an issue in the case and it should have been disclosed.

122 Clements had given evidence at the first voir dire hearing that he could not locate the tape of the interview with Dziki on 8 December 1998. He said that he could not recall whether the interview had been taped. In the first voir dire hearing, Clements had given evidence that he searched all material in the possession of the AFP relating to Dziki. It had been supplied to the DPP. Clements, in the second voir dire hearing, testified that he could not recall if he had searched the computer recording system of the AFP (called the "Promis System"). The Promis System contained all details regarding the investigation. It later transpired that there was a Case Note Entry of 8 December 1998 on the Promis System. That Entry recorded that the interview with Dziki had been tape recorded on 8 December 1998. No satisfactory explanation was given by Clements for the Case Note Entry of 8 December 1998. The trial judge found Clements' evidence in the second voir dire hearing was unsatisfactory. He concluded that Clements had given untruthful evidence in the first voir dire hearing.

The trial judge's findings in the second voir dire hearing

123 In the first voir dire hearing, Clements had given evidence that he could find no record of the interview with Dziki. There was no record that the interview had been audio taped. This evidence was untrue. The trial judge found that the AFP and DPP knew that there was a duty to disclose material which may be relevant to the accused. He concluded that the Pallaras and Dziki material had not been disclosed and, as a consequence, the first two trials had proceeded on a flawed basis.

124 The first voir dire hearing had also been decided on a flawed basis. The trial judge had been misinformed by Clements. The trial judge noted that the DPP had pitched its case in the first two trials on the basis that there was a joint enterprise solely between Naruniec and the accused, such that Naruniec worked the European end and the accused handled matters in Australia. He observed that counsel for the DPP in his address in the second trial said, in relation to the money transfer transactions, that "if it was not the accused who sent the money in April 1998, then it was a stranger and it did not make sense that a stranger would effect the transfer of the money." That submission was incorrect as officers of the DPP were aware that there were other people who had been involved with Naruniec in illegal drug transactions. Counsel was not informed by solicitors for the DPP that his submissions were misleading. The trial judge found that the AFP held many documents relating to Dziki than had been provided to the DPP and to the accused's legal advisers before and during the first voir dire hearing.

125 The trial judge found that it was surprising that no evidence was called by the DPP to explain why adequate disclosure had not been made. He found that the prosecuting authority should have recognised when the material came to the attention of its officers and that it should have been passed on to the accused's legal advisers.

126 The trial judge referred to a number of items of lost evidence, including:

(i) the tape recording of the interview between Dziki and the AFP on 8 December 1998.

(ii) a volume of documentation (in English and Polish) concerning money transfers, bank accounts and bank deposits which had been seized by the AFP. (Referred to in the Case Note Entry of 5 December 1998.)

(iii) diaries of Clements for the years 1998 and 1999.

(iv) documents seized from Dziki's residential premises which were returned and not recorded by the AFP. (Referred to in the Case Note Entry of 4 December 1998.)

127 The trial judge found Buckland to be a credible witness. Nevertheless, it is difficult to understand how the trial judge accepted Buckland's evidence in respect of documents returned to Dziki. I shall return to the trial judge's conclusions in respect of this evidence later in these reasons.

128 In considering the application for a permanent stay, the trial judge said:

"I mentioned earlier in these reasons that Mr Edwardson relies on the accumulation of the factors which I identified earlier. I have dealt with each of these factors during the course of my Reasons. Some of those factors I have rejected. It seems to me that of all of the factors which remain extant, the most important of them is the failure of the AFP and the DPP to make disclosure of the Dziki material and the Pallaras material prior to either of the earlier trials. An equally important factor, is that the AFP and the DPP allowed both trials to proceed, being aware that there was evidence to suggest that George Pallaras, at the very least, may have been involved in the transaction, to the extent that he was to sell the ecstasy imported by Sam Naruniec and that he was to receive some of the proceeds of sale.

Disclosure by prosecuting authorities to accused persons of not only inculpatory material and information but also exculpatory material and information goes to the very heart of the criminal justice system. An accused person is in the hands of the prosecution authority regarding disclosure. There is a heavy onus on the prosecuting authority to ensure that it makes proper disclosure. In this case, proper disclosure was not made. No explanation has been given for the failure to disclose the Dziki material and the Pallaras material. In the end, whilst there is an obligation upon a law enforcement agency to make proper disclosure, in the circumstances of this case, the DPP had received the information from the AFP, and therefore the ultimate obligation was on the DPP to make that disclosure. In the absence of any explanation, it would be idle to speculate as to the reason why the DPP failed to make disclosure. I need to say that I feel that it is a matter of great concern that no explanation was furnished. I had an expectation that a prosecuting authority should explain the reason or reasons why there was a failure to disclose."[6]

129 The trial judge had earlier dealt with the principles relating to applications for a permanent stay of proceedings. He had referred to the decision of Mason CJ in Jago v The District Court of New South Wales & Ors[7] who said that the power should be used only in the most exceptional circumstances.[8] The trial judge further referred to the statement of Gaudron J that the conferral of jurisdiction imports a prima facie right in the person making the jurisdiction to have it exercised.[9] He also referred to the decision of the High Court in Williams v Spautz[10] and to the judgment of Richardson J in Maevao v Department of Labour, [11] which had been approved by Mason CJ in Jago.

130 The trial judge found that there had been a failure by the AFP and the DPP to disclose relevant material to the defence prior to the earlier two trials. I agree. There had also been a failure to make disclosure to the defence of relevant material prior to the determination of the first voir dire hearing. That material included information about the involvement of Dziki, information that the AFP had a suspicion that the proceeds of sale of cannabis was to be sent to Naruniec in Poland to finance further importation of narcotics into Australia, information about Pallaras being involved with Naruniec, and information about the telephone intercepts, which included discussions about Naruniec's and Pallaras' plans to import narcotics into Australia.

131 The trial judge found that officers of the DPP had knowledge of information about Pallaras and Dziki that had not been disclosed. No explanation was forthcoming about the DPP's failure to disclose, yet the trial judge was not prepared to infer that there had been a conscious decision on the part of the DPP not to disclose the Dziki and Pallaras material. The failure of the DPP to offer any explanation to the court for the consistent breach of obligations of disclosure over two trials and a voir dire is disturbing. In the absence of any explanation by the DPP, the trial judge should have concluded that, at the very least, there was a reckless disregard by the DPP of the obligation to disclose.

132 The trial judge concluded that "notwithstanding the grave breaches of the AFP's and the DPP's obligation to disclose and the flawed basis upon which the previous two trials had proceeded", those factors did not outweigh the other issues militating against a stay. He concluded that, in his opinion, the interests or the administration of justice did not demand that there be a permanent stay of the third trial of the accused.

133 The trial judge considered a further application of the accused for a conditional stay of the prosecution. He ordered that the trial be stayed until the Crown pays, or undertakes to pay, the reasonable costs of the accused of the previous two trials. He further ordered that the prosecution be stayed until the Crown had provided written transcripts, including translations of any foreign language, of 328 telephone intercepts identified by the solicitors for the accused as being intercepts which they consider may be relevant to the presentation of the defence.

135 The accused appealed the trial judge's decision to refuse a permanent stay. The particulars allege that, having regard to the findings that the first and second trials were flawed, and having regard to the findings that the DPP was in breach of its duty to disclose material which may assist the defence case, any further trial would be oppressive. It was submitted that the case presented by the Crown in the first two trials was misleading and unfair.

136 Trial by jury for serious offences is a fundamental right within our criminal justice system. Criminal proceedings are adversarial. The adversarial system, by its nature, requires information to be placed before the jury by the parties. The prosecution has the discretion to determine what evidence will be placed before the jury. That leaves the prosecution and the police with what some may describe as too much power. The creation of an independent office of the DPP has as one of its purposes to ensure that all relevant information is disclosed to the defence. The DPP is not an arm of the investigating authority. Any disadvantage which may be perceived to the defence resulting from the defence's inability to investigate matters as thoroughly as the prosecution is overcome or lessened by the obligation of the prosecution to make all relevant material available, including that which may be helpful to the defence.[12]

137 The duty of disclosure is a duty imposed by the court to ensure that a trial is fair. The adversarial process requires both sides to be fully informed about the strengths and weaknesses of the evidence. It is then for each to determine what evidence will be presented to the jury, subject to the overriding duty of the prosecution to place relevant evidence which the prosecution considers credible before the Court. If the prosecution has knowledge of material which may be relevant or has potential relevance to the defence, then there is a duty to disclose it.

138 The procedure in indictable matters is that disclosure to the defence of the evidence upon which the prosecution intends to rely at trial is usually made during the course of committal proceedings. It does occur, however, that after the committal, information will become available to the prosecution upon which the prosecutor intends to rely. That additional material should be disclosed to the defence as soon as practicable after the decision is made to rely upon the material. If a witness is to be called, then a copy of that witness's statement should be provided.

139 During the course of an investigation much material is collected that cannot, or it is decided will not be used or relied upon by the prosecution in the presentation of its case. That material may, in some cases, run counter to the prosecution case. Some of it might reasonably be expected to assist the accused in advancing a defence. That material, subject to certain exceptions, must be disclosed to the accused and their advisers. If the information is subject to public interest immunity, or legal professional privilege, or is precluded by statute from disclosure, then the public interest in non-disclosure overrides the obligation to disclose. Otherwise, it should be disclosed as soon as it becomes available. The obligation to disclose is a continuing one. If the DPP considers that the material is relevant, but that it should be withheld because it falls within one of the exceptions, the DPP should advise the defence of the existence of it and the grounds upon which the DPP has determined to withhold it. The defence can then issue subpoenas seeking production of the material and the decision of the DPP can be tested by the court.

140 The duty to disclose extends beyond the prosecutorial authority. Those who advise or gather evidence for the prosecutorial authority are under a duty to provide the authority with all relevant information, whether that information is of assistance or is detrimental to the case. All information that has some bearing on the offence or offences charged and the surrounding circumstances of the case must be disclosed.[13]

141 The Court of Appeal in England considered the issue of disclosure in Hennessy & Ors v R.[14] The question of the protection of identity of an informer was discussed. The court said:

"... but cases may occur when for good reason the need to protect the liberty of the subject should prevail over the need to protect informers. It will be for the accused to show that there is good reason. This should normally be done, not in the course of a trial, but in any proceedings which may be started to set aside a subpoena or a witness summons served upon a Crown witness who is alleged to be in possession of, or to have control over, tape-recordings, transcripts of such recordings and the like. We appreciate that those whose telephones have been tapped will not normally know they have been - and those who do the tapping intend that this should be so and for good reason - the public interest is involved. This the Courts must keep in mind. They must also keep in mind that those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution." [15]

142 In Grey v The Queen,[16] a decision of the Court of Appeal in New South Wales in a dissenting judgment, Simpson J referred to the guidelines of the DPP. She said:

"The guidelines which I have extracted show, in my opinion, what ordinary notions of fairness would in any event suggest that, had those involved in the prosecution of the appellant been conscious of the existence of the letter, and of the benefit Reynolds received, and had they complied with the obligations suggested in the guidelines, the Bandouvakis letter would have been disclosed to the appellant, and his legal advisers would have been in a position to make use of it in cross-examination of Reynolds." [17]

143 The majority dismissed the appeal. They did not deal with that issue, as it was unnecessary in their view. Grey appealed to the High Court. The High Court allowed the appeal.[18] In a joint judgment, Gleeson CJ, Gummow and Callinan JJ agreed with Simpson J that the question in the case was whether the failure to disclose a document could be said to have had sufficient relevance to a material issue in the proceedings so as to conclude that the appellant had not had a fair trial. The majority agreed with Simpson J when she said:

"The fundamental question which emerges from all the guidelines and rules, and independently, from ordinary notions of fairness, is whether the undisclosed document could be said to have had sufficient relevance to a material issue in the proceedings. The material issue was Reynolds' credibility. As I have said his evidence was important, if not critical, to the prosecution case, given the issues as they emerged. The fact that he gave to the police information about the very matters with which the appellant was charged, resulting in reduction in his own sentence, was highly relevant to his credibility. Having given the information in 1993, he was obliged at the risk of himself being re-sentenced; to maintain his position when the appellant was tried: Criminal Appeal Act 1912 (NSW), s 5DA. I am of the view that the unavailability to the defence of the evidence might have caused the appellant to lose a fair chance of acquittal: Mraz (No 1) (1955) 93 CLR 493." [19]

"... While her Honour was prepared to accept that the failure to disclose was not occasioned by bad faith it was, in her opinion, significant. This was because Mr Reynolds' credibility was 'the material issue' in the prosecution case. Because the information he gave to police concerned 'the very matters with which the appellant was charged', this made disclosure of police arrangements with him 'highly relevant to his credibility'. The failure to provide that information to the appellant had therefore caused the loss of a fair chance of acquittal."[20]

145 The prosecution's duty of disclosure was considered in The Queen v K.[21] King CJ, with whom Cox and Debelle JJ agreed, said:

"There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R v Paraskava (1983) Volume 76 Criminal Appeal Reports 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness."[22]

146 Counsel for the DPP conceded that the DPP had failed to make adequate disclosure. No evidence was proffered to the trial judge to explain the failure. There has still been no satisfactory explanation of the reason for the prosecution presenting a misleading case at both trials. The failure of a prosecuting authority to discharge duties fundamental to an accused receiving a fair trial is a matter of grave concern. The integrity of the criminal justice system is dependent upon those who prosecute discharging their duty. Trials cannot be regarded as fair unless prosecuting authorities are vigilant about discharging those duties. It does not follow that every failure on the part of the prosecuting authority to make full disclosure will result in a miscarriage of justice. No system is perfect. Not every investigation or trial can be perfect. In any system which relies upon human beings, errors will occur. There are, however, circumstances in which the failure to discharge a party's obligations are so serious that the court will intervene to protect an abuse of its processes. There will be occasions, although rare, in which the court will decide to order a stay or to set aside a conviction, if the conduct of the prosecution has been such as to cause prejudice to the accused and the court concludes there cannot be a fair trial.

147 Counsel for the accused submitted that the accused had been deprived of a forensic advantage, that disadvantage had not been cured in that there were documents which had been either lost or returned to Dziki which may have assisted the accused directly or, alternatively, provided lines of further investigation which the defence could have pursued to assist in the presentation of the defence case. The material fell into the following categories:

(i) A tape-recording of the interview between Dziki and the AFP on 8 December 1998.

(ii) Clements' diaries for the years 1998 and 1999.

(iii) Documentation relating to overseas money transfers in English and Polish.

(iv) Unidentified material that was seized by the AFP on 4 and 5 December 1998 that may be relevant to the importation of narcotics.

148 On 8 December 1998 Dziki was interviewed by Clements and Buckland. In the first voir dire hearing, both Officer Clements and Officer Buckland gave evidence that they had formed the opinion by 8 December that, while Dziki was involved with Naruniec in the cultivation and sale of cannabis, she was not involved in the importation of narcotics with Naruniec. Buckland said she was of the belief that Dziki was no longer involved with the importation and with the money transfer transactions. Buckland considered the interview with Dziki was informal. There was no particular person who directed the investigation of Dziki in respect of narcotics importation to cease. Clements testified that he and the investigation team discounted Dziki totally from any involvement, and that if she was deemed to have been involved then she would have been charged. According to Clements, the existence of Dziki and her exoneration from the investigation relating to narcotics was known to the DPP. Clements could not recall to whom he had spoken or to whom he had written to at the DPP to advise them in relation to Dziki. The trial judge accepted that evidence. In the second voir dire hearing, the trial judge referred to the earlier voir dire hearing, and it appears that he accepted the evidence of Clements and Buckland that their interview with Dziki on 8 December was to obtain further information about the activities of Naruniec and that there was no suspicion in respect of Dziki being involved in the importation of ecstasy. Buckland gave evidence that she had no recollection as to whether a tape-recording of that interview existed. Clements had given evidence in the first voir dire hearing that he could not find any reference to the conversation of 8 December having been recorded. In the second voir dire hearing Clements said he could not recall having gone to the Promis System to ascertain whether there had been a recorded interview. It is clear that the interview had been recorded because there is a reference to that recording on the Promis System on a Case Note dated 8 December 1998. It follows that Clements either lied at the first voir dire hearing or, alternatively, failed to carry out the most basic checks to see if the interview had been recorded. The fact that Buckland could not recall the interview having been recorded demonstrates that her memory of the events which occurred some five years before was not entirely reliable. This is not surprising, because the investigation was extensive and continued over many months. In the second voir dire hearing, the trial judge referred to the tape-recording of the interview having been lost, but made no new or additional finding in respect of the interview.

149 The trial judge concluded after the second voir dire hearing that Clements was an unreliable witness. He concluded that Buckland was both honest and reliable. That finding is not supported by Buckland's evidence in respect of the tape-recorded interview. The trial judge failed to address the question of what might have been contained in the interview which may have assisted the accused in the presentation of her defence. There was no satisfactory explanation as to why Dziki was no longer considered a person who may have been involved with Naruniec in the importation of narcotics. Clearly, on 8 December 1998, the AFP were interested in Dziki's knowledge of Naruniec and of his affairs, which included Naruniec's involvement in the importation of narcotics. It is not clear, therefore, why the AFP had at that stage discounted Dziki when, on 4 and 5 December 1998, they had conducted a series of searches of premises in which it was revealed that there were documents which may have been relevant to the importation of narcotics.

150 Although there appears to have been no direct link between Dziki and the importation of narcotics, Dziki still had links with parties who were suspected of being involved with Naruniec in drug importation. Dziki was in telephone contact with Pallaras and the telephone intercepts reveal that Pallaras was to receive substantial quantities of cannabis from her in her capacity as a business partner of Naruniec's, and that funds from the cannabis production were to be used for further ventures to import narcotics. Furthermore, Dziki had an intimate relationship with Naruniec at the time of the narcotic importation. Telephone intercepts revealed that Dziki continued to contact Pallaras after her arrest. On 31 December 1998, Dziki telephoned Pallaras and told him about her arrest and apologised for getting him into trouble. She also advised him that his telephone number was in the possession of the police and that his name had been mentioned in relation to Dziki's mother's premises which had been under surveillance.

151 It is difficult to understand why Dziki was completely eliminated from the investigation by the AFP into the importation of narcotics. The links between her and the importation of narcotics, although indirect, are numerous. She appears to have had some dealings with parties who were under suspicion after her arrest. The decision to eliminate her on 8 December 1998 was, to say the least, curious.

152 In my view, it is not possible to conclude that there may not have been something said by Dziki in the course of the 8 December 1998 interview that would have assisted the accused. The loss of the tape-recording and record of the interview should be considered in light of other material which is no longer available.

153 Federal Agent Clements kept diaries in the course of his duties. These diaries recorded events during the course of any investigation, including records of meeting potential witnesses and recording conversations with them. The defence sought the production of those diaries, in particular for the purpose of ascertaining whether meetings between Dziki and Agent Clements had been recorded. There appeared to be no other record of meetings between Dziki and Clements. Clearly, there were some meetings and the diaries may have produced evidence of those meetings and any discussions which had taken place.

154 Clements gave evidence that he had handed the diaries to someone whom he believed had given them to the archive section of the AFP. He had received new diaries to replace them. He said that he had not looked for the diaries in response to subpoenas issued. The trial judge found the lack of explanation regarding the missing diaries to be most unsatisfactory. An AFP officer, Jennifer Saunders, gave evidence that she had a supervisory role in the collection of documents in answer to the subpoena. She also, together with Buckland, searched for Clements' diaries, but was unable to locate them.

155 No one was called from the archive section to explain how it could be that these important documents had been misplaced or lost. The trial judge commented:

R v ULMAN-NARUNIEC No. SCCRM-03-125, SCCRM-03-108 [2003] SASC 437

At a glance

Court

Decision date

Before

Source

Judgment (362 paragraphs)

R v ULMAN-NARUNIEC No. SCCRM-03-125, SCCRM-03-108 [2003] SASC 437 (24 December 2003)

Parties

Cases Cited (16)