R v Vilayur

1. The accused (the applicant) is charged with an offence of conspiracy with two others (Mr El-Debel and Mr Kahlon) with the intention of dishonestly obtaining a gain from the Commonwealth, contrary to s 135.4(1) of the Criminal Code Act 1995 (Cth) (Criminal Code). The trial for the applicant is to be heard in March 2024, separately from the trial in respect of the two others.

2. The applicant has applied to the Court for further statements to be provided from a number of individuals who are not currently witnesses in the proceeding, and for a Basha inquiry to be conducted in relation to those individuals, a procedure for cross-examining witnesses in advance of the trial, named after the case of the same name: R v Basha (1989) 39 A Crim R 337.

3. The application, which ultimately proceeded pursuant to a Further Amended Application in Proceeding filed on 10 November 2023 (application), is opposed by the Crown.

4. There was initially also an issue about further disclosure of all telephone intercept material relating to the applicant’s criminal matter. However, the parties have resolved that aspect of the dispute.

The Crown case

5. In order to understand the detail of the interlocutory dispute, it is helpful to understand the nature of the charge. It suffices to repeat the case as set out in an earlier judgment dealing with a separate (unsuccessful) application for a permanent stay of proceedings made by the accused in R v Vilayur [2023] ACTSC 59 (Vilayur) at [5]-[10]: 5. The Crown alleges that the applicant conspired with Mr El-Debel and Mr Kahlon with the intention of dishonestly obtaining a gain from the Commonwealth. 6. At the relevant time, Mr El-Debel was a senior public servant in the Department of Finance (Department). His duties included overseeing spending by the Department, including the procurement of personnel to work in various IT projects. In performing these duties, Mr El-Debel sat on or advised evaluation panels which made recommendations as to the acceptance of candidates. 7. The applicant and Mr Kahlon were contractors to the Department. They were also the sole owners of two companies. Mr Kahlon was the sole owner of New Horizons Business Solutions Pty Ltd (New Horizons) and the applicant was the director of Algoram Business Solutions Pty ltd (Algoram). 8. At the time of the alleged offence, the applicant held the role of ‘SAP Technical Delivery Director’ with the …Department… He held this role by virtue of a sub-contractual arrangement through his own company, Algoram. 9. The Crown alleges that from March 2019, the applicant, Mr El-Debel and Mr Kahlon were parties to an agreement. That agreement relevantly included that: (i) the applicant and Mr Kahlon would put forward candidates for the various positions offered under IT projects for the Department through New Horizons and Algoram; (ii) from time to time, Mr El-Debel would dishonestly provide the applicant and Mr Kahlon with information about procurement exercises, and Mr El Debel would also provide advice to the relevant procurement panel with the object of favouring candidates put forward by New Horizons and Algoram; (iii) from time to time, the applicant and Mr El-Debel would organise for Algoram candidates to have advance knowledge of the procurement panel processes; (iv) when candidates put forward by New Horizons or Algoram were selected, New Horizons and Algoram would obtain a gain, namely a share of the amounts payable in respect of the engagement of the candidate; and (v) from time to time, an amount representing a portion of the share of those amounts would be paid to Mr El-Debel. 10. In respect of the element of “gain” required for an offence under s 135.4(1)(a) of the Criminal Code, the Crown prosecutor clarified that the Crown case is not that the applicant or Algoram ever actually paid Mr El-Debel any monies from the margins earned by Algoram from its contractors. Rather, the Crown alleges that the agreement was that Mr El-Debel would be paid for his role in influencing the selection of candidates put forward by Algoram.

6. There were two reports which preceded the investigation by the Australian Federal Police (AFP) which led to the charge against Mr Vilayur. The first was a report prepared by KPMG dated 15 May 2019 (KPMG Report) which disclosed systematic deficiencies in the procurement processes of the Department. The second was the report of Ashurst dated 25 July 2019 (Ashurst Report), which reported allegations of dishonesty of Mr Vilayur, Mr El-Debel and Mr Kahlon and recommended that the matter be referred to the AFP, which it then was.

Relief sought on the application

7. The applicant seeks that the Crown “provide all disclosure”, in particular: (a) Further statements and/or proofing notes from: (i) Ms Rosemary Huxtable; (ii) Ms Katherine Jones; (iii) Ms Lucelle Veneros; (iv) Mr Stewart Munro; and (v) Mr Martin O’Dea; (b) Further statements and/or proofing notes from the above-named individuals relating to the Department’s “Australian Federal Police Capability and Support Services Panel” (Panel) and in particular, the nature and role of the panel within the Department; (c) Further statements and/or proofing notes from the individuals referred to above in relation to the KPMG Report, particularly: (i) Who received such report; (ii) Who was aware of such report; (iii) Who had access to such report; (iv) Who responded to such report; and, (v) What, if any, action was taken by the Department in relation to such. (d) Further statements and/or proofing notes from the individuals referred to above in relation to the Ashurst Report, particularly: (i) Who received such report; (ii) Who was aware of such report; (iii) Who had access to such report; (iv) Who responded to such report; and, (v) What, if any, action was taken by the Department in relation to such. (e) Further statements and/or proofing notes from the Department officials referred to above relating to: (i) The applicant’s involvement in procurement practices during the relevant charge period; (ii) Mr El-Debel’s liaison with the applicant in relation to procurement practices; (iii) Mr El-Debel providing advice to procurement panels during the relevant charge period; and (iv) Knowledge of the applicant’s relationship with Mr El-Debel.

8. Orders are also sought for a Basha inquiry for the purpose of cross-examining the five individuals named above, as well as two additional people, Mr Stephen Gibson and Ms Remona Zheng.

9. At the material times, the individuals listed above who are the subject of the application held the following positions: (a) Ms Huxtable was the Secretary of the Department; (b) Ms Jones was the Deputy Secretary, Business Enabling Services, of the Department; (c) Ms Veneros was the Deputy Secretary, Shared Services Transformation Group of the Department; (d) Mr Munro was the acting First Assistant Secretary, Service Delivery Office of the Department; (e) Mr O’Dea was a procurement consultant engaged by the Department; (f) Mr Gibson was the police informant in the prosecution, who had carriage of the investigation from 11 September 2019 to 28 April 2020 and from 5 August 2021; and (g) Ms Zheng was the Senior Legal Officer of the Department’s Legal and Assurance Branch.

10. Ms Veneros, Mr Munro, Mr O’Dea and Mr Gibson are all expected to be called as witnesses in the Crown case. Ms Huxtable, Ms Jones and Ms Zheng are not presently being called as witnesses in the Crown case. No witness statements or proofing notes have been taken from them.

11. The subject areas of cross-examination proposed are the same as the proposed subject matter of the witness statements set out above, with the following additional topic of questioning: (a) Compliance with legislative requirements, policy guidelines, procedures and frameworks related to: (i) Procurement; (ii) Duties of disclosure (as to conflicts of interest); and (iii) Responses to concerns about impropriety, misconduct and fraudulent/corrupt behaviour; (iv) The appointments awarded to the applicant and Mr El-Debel during the charge period; (v) Mr El-Debel’s declination of participation in evaluation committees during the charge period; (vi) Departmental approval for the alleged conduct of the applicant, said to constitute the offending.

12. With the Crown having now agreed to disclose the entirety of the telephone interceptions involving not only the applicant but Mr El-Debel and Mr Kahlon, the evidence that is the subject of the disclosure sought which remains disputed essentially falls into two categories (as submitted by the applicant): (a) Evidence from executives of the Department relating to: (i) The Panel; (ii) The response within the Department to the KPMG and Ashurst Reports; and (iii) The complainant’s knowledge of the conduct alleged on the part of the applicant, said to constitute the offending. (b) Evidence from investigating officers within the AFP relating to the Panel.

Issues

13. The application ultimately concerns two issues: (a) Whether the Court should make an order requiring further statements from the people named on the topics requested; and (b) Whether the Court should order a Basha inquiry (that is, whether those people should be cross-examined prior to the hearing).

14. In substance, the relief sought is a request for a more expansive investigation to be conducted around the existence of, and compliance with, the procurement and disclosure processes within the Department, for the results of that investigation to be made known to the accused and for the accused to have the opportunity to cross-examine witnesses and other people not presently involved in the proceeding about what they knew and when.

The Court’s power to require further disclosure

15. There is a live issue as to the Court’s power to intervene and make orders for further statements to be obtained and disclosed.

16. The application referred generally to the Court Procedures Rules 2006 (ACT) but did not specify which procedural rule was being invoked. The Crown referred to r 4738 as giving the Court a procedural power to make any direction about the conduct of the proceeding it considers appropriate, either on application by a party or on its own initiative. Any procedural power is facilitative of the conduct of the proceeding. It does not provide a free-standing source of power in the sense of a substantive right to disclosure.

17. In that regard, there is no section dealing directly with disclosure in the Director of Public Prosecutions Act 1983 (Cth). There is a power for the Director to make guidelines with respect to the prosecution of matters (s 11), however any relevant applicable guidelines were not in evidence on the present application. There may also be relevant obligations arising from the operation of rules 66, 66A (disclosure), and 66B (calling of witnesses) of the Legal Profession (Barristers) Rules 2021 (ACT), applying in the Territory as delegated legislation. However, the parties did not rely on those potential qualifications and the application proceeded on the basis that the rights and obligations under consideration here are governed by the common law. It is uncontroversial that the Court has an inherent power to: (a) protect its own processes (Maxwell v The Queen (1996) 184 CLR 501 (Maxwell) at 513-514); and (b) ensure that a person is not tried unfairly (Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325 at [202] and Dietrich v The Queen (1992) 177 CLR 292 at 299).

18. There are practical limitations on the power of the courts to control how the prosecuting authorities perform their functions. That point was made in the context of the exercise of the prosecutorial discretion in R v Brown (1989) 17 NSWLR 472 at 479-80, referred to in Maxwell at 513, but it is not limited to decisions made by the prosecution about what charge to lay or whether to proceed with a prosecution. The principle operates as a broader proposition, in that the court generally does not scrutinise how the prosecuting authorities investigate or conduct the case, such as by ordering further inquiries to be conducted about a particular topic or that further witnesses be called: see R v Apostilides (1984) 154 CLR 563 at 576. The court will intervene only in limited circumstances, such as to ensure that a person is not tried unfairly and that its processes are not abused.

19. In Vilayur at [61]-[62], Baker J described the duty of disclosure and the limit on the Court’s power to intervene as follows (emphasis added): 61. The prosecutor has a “duty” to disclose documents which: …can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). See R v Reardon (No 2) [2004] NSWCCA 197; 60 NSWLR 454 at 468, cited with approval in Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 at [334]. 62. Whilst the “duty” of disclosure is a matter for the prosecution, which the Court will not review, a failure to comply with the duty may result in a stay being granted if it is shown that there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair”: Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48; 102 NSWLR 72 at [139].

20. Similarly in R v Bui [2011] ACTSC 102; 5 ACTLR 230 at [27], Refshauge J referred to the power to stay proceedings as being in aid of the courts’ general power to prevent unfairness to the accused, citing Connelly v Director of Public Prosecutions (1964) AC 1254 at 1347.

21. The duty of disclosure was considered in detail in Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48; 102 NSWLR 72 (to which Baker J made reference in the extract above) at [123]-[142]. The NSW Court of Criminal Appeal was there considering the duty under the common law in the context of a federal charge, as is the case here. At [126]-[128], the Court discussed Marwan v Director of Public Prosecutions [2019] NSWCCA 161; 278 A Crim R 592 (Marwan) at [29], where Leeming JA (with whom R A Hulme and Adamson JJ agreed) described the duty of disclosure relevantly as follows: It is also to be borne in mind that the so-called ‘duty’ is unusual. So too is what may loosely be described as the “right” of the accused to disclosure … . For it is quite plain that the ‘duty’ to disclose is not owed directly to an accused, so as to enforce the production of documents as might occur in civil litigation through discovery and interrogatories, or pursuant to freedom of information legislation. To the contrary, an accused person cannot ordinarily obtain an order that the prosecution disclose documents which have been withheld. Rather, the accused is entitled to a fair trial, and can insist that the trial be stayed, permanently or temporarily, if it can be established that that will not occur, absent adherence by the prosecution to that duty.

22. In Bradley v Senior Constable Chilby [2020] NSWSC 145, Adamson J (as her Honour then was) explained the common law position at [51]: The prosecutor’s duty of disclosure is not enforceable directly. Thus, an accused is not entitled to an order requiring the prosecution to produce particular documents covered by the duty or to an order for stay of the proceedings pending provision of particular documents: Gould at [60]-[62]. As Basten JA explained in Gould at [63]-[64], the basis of a court’s jurisdiction to order a stay is its jurisdiction to prevent an unfair trial: see also R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 at [120] (McColl JA, R S Hulme and Hislop JJ agreeing). Thus the Court has power to grant a stay until the duty is complied with if the substantive hearing, absent production of the documents, would be likely to be unfair (Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh); [1992] HCA 57) or if there is a tangible risk that it would be unfair (Re K [2002] NSWCCA 374 at [9]-[10] (Beazley JA, Sully and Simpson JJ)

23. The reference to Gould was a reference to Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 333 FLR 352 (Gould) where Basten JA (Johnson and Adamson JJ agreeing) went on to say at [65]: The duty of disclosure extends to material which might open up useful lines of inquiry to the defence, without any narrow view being taken of what might be relevant.

24. An accused who alleges that disclosure is inadequate is entitled to request the issuance of subpoenas to obtain documents said to fall within the duty: Gould at [14], [18] and [19].

25. Subsequently, the High Court considered the duty of disclosure in the context of s 142 of the Criminal Procedure Act 1986 (NSW) in Edwards v The Queen [2021] HCA 28; 273 CLR 585 (Edwards). The statutory obligation of disclosure related to information or documents “in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person” as well as “information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness”: Edwards at [3].

26. The majority judgment confirmed (at [23]) that the statutory provision was only one of several sources of the prosecutorial duty of disclosure, before going on to state (at [26]) that whatever the precise scope of the section, “it plainly does not extend to all information in the possession of the prosecutor or to information that does no more than provide a potential avenue for inquiry”.

27. In this case, the application is essentially for questions to be asked by the prosecution of existing or potential witnesses to get information that the applicant considers might assist his case. In that regard, there may be particular situations where the duty of disclosure may extend to requiring further inquiries to be made, but it depends upon the risk of unfairness of the trial. In Marwan, Leeming JA stated at [38]: Thus the “right” of the accused invoked in the present case turns upon the risk of unfairness of the trial. The applicant must establish that the duty of disclosure extends to a duty to make further inquiries in the present case, and further that only if that occurs and the results of those inquiries are disclosed to the applicant will the risk of unfairness of the trial be avoided. … [His Honour went on to cite Gould at [63]].

28. It is for the applicant to establish “the prospect of unfairness by reference to what would be denied to him at trial”, including to “establish the factual foundation” for the submission: Marwan at [64].

29. In Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 (Eastman), the Court of Appeal stated at [338] (emphasis added, citations omitted): One can find in the authorities statements to the effect that the duty of disclosure is not necessarily confined to matters known to the prosecution, and that, in some circumstances, the prosecution has an obligation to make enquiries to discharge its duty of disclosure. Thus, it has been suggested that the prosecution has a duty to make reasonable enquiries about prior convictions of prosecution witnesses and other matters reflecting materially upon the credibility of prosecution witnesses. Hence, in R v Garofalo, Ormiston JA concluded, ‘by reference to considerations both of authority and principle, that at the least there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses’, whether or not any request has been made by the defence for disclosure of such convictions. …

30. The Court of Appeal in Eastman went on to discuss a number of authorities bearing on the question, before stating at [343] (emphasis added): Garofalo imposes a positive obligation on the prosecution to make enquiries as to the prior convictions of every proposed Crown witness, and establishes a rule requiring the prosecution to ‘inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness’s credibility’. Putting prior convictions to one side, however, it seems to us that common law rules generally are concerned with the disclosure of material which has been gathered by police and the prosecution in the course of the investigation process. During that process, material will have been ascertained which may strengthen or weaken the case sought to be made by the prosecution. Fairness dictates that the prosecution must disclose to the defence any information in its possession which may assist the defence, either by undermining the Crown case or by providing exculpatory material. An aspect of that duty requires the prosecution to inquire into information which may affect the credibility of potential Crown witnesses, if there is sound reason to suspect that material exists which might impinge upon credibility or reliability. And again, fairness requires that material gleaned from those inquiries which may cast doubt on the credibility or reliability of those witnesses whose credit is investigated must be disclosed to the defence. That said, the prosecution is under no duty to investigate speculative or tenuous suspicion. To adopt the words of King CJ, the obligation to investigate only arises ‘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’.

31. The point repeatedly being made in these authorities is that the court’s power is concerned with the conduct of the trial and ensuring that a person is not tried unfairly. The power of the court is not concerned with ensuring that every potential line of investigation or avenue of inquiry is carried out. The court generally does not judicially supervise the prosecution’s forensic choices.

32. Further, there is a distinction between an obligation or duty to disclose information, and a free-standing obligation to investigate or make further inquiries to get information. Where it is likely, in the sense of being a ‘tangible risk’, that the choices made might result in an unfair trial, the power permits a stay of the proceeding until such unfairness is remedied but it does not allow the Court, via a procedural rule, to order that further statements be obtained from existing witnesses or that statements be obtained from other people. The Court’s power to order a Basha inquiry.

33. A Basha inquiry arises in aid of the same principle that the Court has the power to order a temporary stay of proceeding to prevent an unfair trial (Basha at 338). In R v KS; R v KN; R v KI [2020] ACTSC 275, Elkaim J described the process at [6] as follows (emphasis added): A Basha inquiry is traditionally held to permit an accused person to cross-examine a witness in the absence of a jury where that witness was not called at a committal hearing. The purpose is to overcome any prejudice from the fact that the witness did not give evidence at the committal hearing. Before such a procedure is adopted, the accused person must demonstrate the particular issue(s) which he or she intends to pursue and the judge must be satisfied that there is, at least, a serious risk of an unfair trial if the accused person is not given the opportunity to do what otherwise would have been done at the committal proceedings. The onus lies upon the accused to demonstrate that the disadvantage or prejudice which he or she would otherwise suffer during the trial is unacceptable. The procedure is not to be used to try out risky questions which may otherwise prove to be embarrassing or unproductive in the presence of a jury.

34. His Honour was there adopting submissions made by the prosecution in that matter and expressly omitted citations, but the above passage aligns with the applicable considerations at common law in cases such as R v Sandford (1994) 33 NSWLR 172 at 180-181.

Issue 1: Should further witness statements be obtained from the individuals named in the application?

35. Here, it is accepted that because the accused is seeking “material” that does not yet exist, recourse to subpoena processes is not available. However, as the authorities set out above make clear, the Court does not have power to order further statements to be obtained.

36. The authorities establish that the real question for the Court is whether the lack of the additional witness statements or of witness statements from other people within the Department gives rise to a likelihood, or a tangible risk, that the impending trial will be unfair. If that is the case, the relief available is for a stay of proceedings. That question was determined in Vilayur. There has been no change identified since that judgment was delivered that would warrant the Court revisiting that decision.

37. Even absent the previous determination of the issue, the applicant has not established a lack of compliance with the duty of disclosure, including in respect of the credibility or reliability of any existing evidence that is to be led in support of it, such as to give rise to any sound or solid reason to conduct further investigations.

38. The charge is conspiracy with the intention of dishonestly obtaining a gain from the Commonwealth. As far as I can discern, the line of questioning that the applicant wishes the prosecution to pursue in further statements relates to the question of dishonesty. The potential argument appears to be that Mr Vilayur’s conduct was not dishonest because people knew what was occurring and permitted it through their failure to adhere to their own mandatory processes.

39. That is an argument that the applicant can address on the evidence as it stands. There is no existing material that the prosecution has not disclosed. The applicant has the KPMG Report, the Ashurst Report, and the ability to cross-examine each of Ms Veneros, Mr Munro, Mr O’Dea, and Mr Gibson about matters such as when they received the report, who had access to it and how they responded to it.

40. The accused submitted that the extra statements would avoid the applicant being surprised by evidence at trial and allow him to be aware of and understand the case against him, in order to properly prepare his defence. However, the mere fact that there may be a gap in the evidence does not of itself bespeak unfairness, nor does it deprive the applicant of the ability to properly prepare. The applicant presently has the same information and material as the prosecution. Fairness does not require that an accused be given the answers (by way of a witness statement) to questions that might be asked in cross-examination before that process occurs.

41. Otherwise, the topics that are the subject of the applicant’s request are speculative, as opposed to establishing a solid foundation for further investigations to be carried out as part of the prosecutorial duty of disclosure. It is not enough that the applicant is seeking to open up for investigation further lines of enquiry. The touchstone is fairness to the accused: Marwan at [66].

42. The applicant separately submitted that the evidence demonstrates he clearly signalled an intention to resign from the Department during the period of the Panel’s inception and conclusion, and that he was dissuaded by Ms Veneros. Had he resigned, the investigation that led to the charge would never have occurred.

43. If the line of inquiry is in truth directed to whether there was improper obtaining of evidence, akin to entrapment or an aid and abet complaint, then that is accommodated through the application of the provisions of the Evidence Act 2011 (ACT) (Evidence Act). That matter is addressed under Issue 2.

Issue 2: Should the Court order a Basha inquiry?

44. The particular issue that the accused wishes to purse is a complaint about improper obtaining of evidence, described by the accused in submissions as an ‘aid and abet’ issue. The accused also wishes to investigate compliance with the mandatory regulatory framework. The accused contended that there are a series of checks and balances in place under legislation to safeguard the security and integrity of the public service. Reference was made (among others) to: (a) The Public Governance, Performance and Accountability Act 2013 (Cth); (b) The Public Governance, Performance and Accountability Rule 2014 (Cth); (c) The Public Disclosure Act 2013 (Cth); (d) The Financial Management and Accountability Act 1997 (Cth); (e) The Commonwealth Fraud Control Framework 2017; and (f) The Australian Government Protective Security Policy Framework.

45. The Panel was part of that system of checks and balances.

46. Again, the applicant has already raised the issue in the context of the earlier application for a stay of the proceeding dealt with in Vilayur. Baker J held at [53] and [72] that such an argument is readily accommodated in the context of the trial itself by an application for the exclusion of evidence under s 138 of the Evidence Act. The voir dire process enables cross-examination of the witness in the absence of the jury.

47. It was not at all clear to me from the submissions made why the accused would be disadvantaged or prejudiced by making use of that procedure and I am separately not persuaded that there may be unacceptable prejudice occasioned during the trial. Accordingly, the basis for ordering a Basha inquiry has not been made out.

Conclusion

48. For the reasons given, the Court orders as follows: (1) The application is dismissed.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: 12 January 2024