Solicitors:
Horowitz & Bilinsky Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/334189
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 27 July 2016
Before: Lakatos SC DCJ
File Number(s): 2012/334189
[2]
Judgment
HOEBEN CJ at CL: I agree with Button J.
BUTTON J: On 2 August 2016, I joined in orders of this Court granting leave to appeal but dismissing an appeal brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) by Marco Romolo (the applicant). The appeal was against the refusal of Judge Lakatos SC to order a permanent stay of a criminal trial in the District Court of New South Wales. The following are my reasons for doing so.
Background
The background of the matter was not disputed between the parties, and may be shortly stated.
The applicant is charged with importing a commercial quantity of a border controlled drug (methamphetamine), by joint commission of the offence, contrary to s 307.1 and s 11.2A(1) of the Schedule to the Criminal Code Act 1995 (Cth). The applicable maximum penalty is imprisonment for life.
In a nutshell, the Crown case is that 5,939 grams (4,691.8 grams pure) of the prohibited drug in question were imported into Australia whilst contained in a number of boxes. The Crown case is also that the applicant implicated himself in the offence, chiefly by repeatedly contacting the courier company that imported the boxes and enquiring about them, and using the name of the false addressee whilst doing so.
By way of a letter of 19 February 2014 sent by his solicitors to the Commonwealth Director of Public Prosecutions (the CDPP), the applicant has indicated that much of the Crown case would not be disputed by him at trial. It was also indicated, however, that an important part of his case would be that, as a result of a meeting he had with a man at City Gym in East Sydney, he believed that he was involved in the importation of steroids, not cocaine. If the Crown were unable to disprove that proposition beyond reasonable doubt, then the mental element of the offence of intention or recklessness with regard to the prohibited drug would not have been proven, and the applicant would be entitled to an acquittal.
The matter was listed for trial on 16 November 2015. Early that morning, it was discovered that the motor vehicle of the applicant's mother, which was parked in a secure car park, had had a number of projectiles fired into it. As well as that, found in a mailbox near to her home was a note which read: "IF YOU TALK OR DROP NAMES IN COURT THIS WILL BE COMING FOR YOUR FAMILY". Accompanying the note were two live rounds of ammunition.
As a result of that event, the applicant is adamant that he will not provide the name of the man whom he claims he met at the gym to any person in authority. That includes in the witness box; or to his solicitor (in order, for example, to facilitate a subpoena relating to any corroborative material with regard to that person); or indeed in support of an application to receive physical protection from the police.
The restriction that those circumstances have placed upon the applicant - in particular, with regard to naming the putative interlocutor in the witness box - led to the application for a permanent stay of the trial, on the simple basis that the applicant could not receive a fair trial according to law.
Primary judgment
The matter came before his Honour on 27 July 2016. In a judgment that was delivered ex tempore but is no less cogent for that fact, his Honour recounted the undisputed background of which I have given a thumbnail sketch; summarised the essential submissions of senior counsel for the applicant; analysed the relevant authorities; summarised the submissions of the Crown; canvassed a number of possible procedural solutions to the problem that his Honour accepted existed; and ultimately determined that the trial should not be stayed. The penultimate paragraph of the judgment is as follows:
However, the balancing of the competing considerations on the one hand and the fairness of the accused's trial, allowing him to put a proper defence and the undoubted public interest which the Courts have expressed in the prosecution of serious crime, I consider if the accused chose to give evidence but not name names or perhaps to a lesser extent gave evidence in closed court - although as I said there are riders to that proposition - that both those mechanisms would allow him to put his substantive defence before a jury. Not everything he might wish, but certainly his substantive defence before the jury with a significant explanation as to why he could not be more forthcoming. The Crown has indicated in any event, that she would not press in any cross-examination, the accused to name any names, given the circumstances.
The application
The applicant promptly sought leave to appeal, and had the matter listed urgently before us due to the imminence of the trial.
The following grounds of appeal were notified by the applicant and maintained before us:
Ground 1: His Honour erred by failing to have regard to the prejudice suffered by the Applicant in circumstances where the relevant person was not named.
Ground 2: His Honour erred by finding that a closed court would allow the Applicant to put his substantive defence before the jury.
Ground 3: His Honour erred by failing to grant a permanent stay.
Submissions of the applicant
Senior counsel for the applicant accepted that the charge is a serious one. He also submitted that threats of this nature are relatively rare. He reiterated that the nub of the defence case, founded as it is on the belief of the applicant about the enterprise in which he had involved himself, in a practical sense calls upon the applicant to give evidence. He submitted that, unless the person at the gym can be named by the applicant, his credibility will undoubtedly be called into question by the jury. And if that person is unable to be properly investigated (by way of subpoenas and the like), a search for important corroborative evidence (for example, a criminal record, or perhaps a documented tendency to inveigle unsophisticated people into assisting with the importation of prohibited drugs, mistakenly believing that they are assisting with the importation of some far less serious contraband) would be unable to be properly undertaken by the lawyers for the applicant.
Senior counsel emphasised that the primary judge had accepted, as a finding of fact, the genuineness of the threat.
He separately submitted that any direction to the jury intended to ameliorate the circumscribed position of the applicant could very well impermissibly intrude upon its function as tribunal of fact.
He concluded by submitting that there should not be a trial at any cost. Here, the cost will either be the possible infliction of death, or the presentation of a defence case that is inevitably restricted, and as a result very likely to fail in raising a reasonable doubt about the necessary mental element.
In short, he submitted that, in all the circumstances, it was an error for his Honour to refuse to permanently stay the trial.
Submissions of the Crown
The Crown submitted that leave should not be granted, because no error had been demonstrated in the judgment of his Honour. It was said that, contrary to the principle that the jurisdiction of this Court is founded upon identification of error at first instance, the applicant had simply sought to repeat the submissions that had not found favour before the primary judge.
It was submitted that one may accept that the threat is real, and that the applicant feels pressured and circumscribed as a result. But there are many ameliorative steps that could be taken. They include the applicant giving evidence in a closed court, or referring to the person without giving his name, or using a pseudonym for him, or seeking protection for himself and his family from the police. And in any event, to the extent that the applicant was prepared to involve himself with criminals who were, on his admitted understanding, engaged in the business of importing steroids illegally, it was said that the regrettable problems that have developed are very much of his own making.
In short the submission was that the applicant is entitled to a fair trial, not a perfect one. A permanent stay of a pending serious criminal charge is very much a remedy of last resort. In all the circumstances, it was said that no error has been shown either in the reasons of his Honour, or in the result.
Determination
Before setting out my response to each of the three grounds, it is convenient to recount a number of propositions that I consider are relevant to applications for a permanent stay of a serious criminal charge founded upon threats of violence.
First, it is well-known that a permanent stay is an extraordinary remedy, and indeed a remedy of last resort. It is true, as Leeming JA said at [1] in TS v The Queen [2014] NSWCCA 174, that the granting of such a stay is not an example of a court declining to exercise jurisdiction, but rather an example of it decisively doing so. Still and all, the effect of such an order is that a charge sought to be brought by the executive (in the form of the CDPP) is unable to be determined in that part of the judicature in which the Constitution or the legislature has invested jurisdiction. And the practical effect is that an accused person is granted a permanent immunity from prosecution. That abnegation of the usual constitutional arrangements of this country, combined with the extraordinary practical outcome, means that the remedy must be reserved to truly exceptional cases: see Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [18].
Secondly, I do not accept the fundamental submission of senior counsel that it is rare for threats of violence to be made against persons involved in the criminal justice system. To the contrary, regrettably violence and the threat thereof permeate the context in which that system operates. For example, it is notorious that prisons are violent places in which paedophiles are at risk of serious harm or death: for a recent example see Hughes v R [2015] NSWCCA 330. It is also notorious that young men are vulnerable to sexual predation in prisons. And yet those facts do not mean that the criminal justice system simply throws up its hands and refuses to exercise its criminal jurisdiction and imprison persons pursuant to the laws created by Parliament. Rather, the system does its best to resist violence and the threat thereof. Indeed, far from giving in to violence, reducing violence is one of the primary and inherent purposes of the criminal justice system itself.
Thirdly, it is notorious that persons who are called by the prosecution to give evidence against an accused person are very often under real pressure not to do so. It is not uncommon for persons who have been subpoenaed to give evidence in criminal trials to fail to attend, for them to be arrested pursuant to a bench warrant, and thereafter for them to be incarcerated until they have given their evidence. Nor is it uncommon for persons to refuse to give evidence in such circumstances, thereby exposing themselves to conviction for contempt and incarceration. Nor is it uncommon for persons to contradict their previous statements in circumstances in which one may suspect that they have been pressured to do so. Nor is it unheard of for a person who could give exculpatory evidence on behalf of an accused person, inculpatory of another, to refuse to do so, and to take active steps in order to avoid being compelled to do so.
All of those are well known aspects of the real world in which the criminal justice system operates. And yet, in none of those circumstances - including the unavailability of a witness who may exculpate an accused - do the courts simply put an end to proceedings by way of a permanent stay.
Fourthly, the criminal justice system operates subject to threat in other ways as well. It is notorious that trials are sometimes conducted in New South Wales in circumstances where malefactors may seek to disrupt them. It is also the fact that measures sometimes need to be taken to protect the anonymity and security of juries.
In short, it is difficult to accept that, merely because a seemingly sincere threat of violence has been made against the applicant and his family, it would be appropriate for him to be granted a de facto permanent immunity in relation to a serious pending charge, bearing in mind all of the other ways in which the criminal justice system sets its face against threats of violence.
Fifthly, as his Honour said, the entitlement to a fair trial is not an entitlement to a perfect trial. Almost every criminal trial conducted in New South Wales is an imperfect one. For example, prejudicial evidence will very often be placed before a jury by way of a slip by counsel, or by witnesses refusing to answer direct questions directly. Separately, the evidence able to be obtained in resistance to a prosecution will very often be limited or negligible, not least because of the passage of time between the alleged offence and trial in the case of certain allegations. Exculpatory evidence may be unavailable to an accused person for countless reasons; yet again, that fact by no means leads of itself to a permanent stay.
Sixthly, the position adopted by the applicant is an understandable one. And I accept that all of the proposed remedies have their drawbacks. Having said that, the use of a pseudonym or a generic reference to the alleged man at the gym is said to be unsatisfactory, as it will not permit the lawyers for the applicant properly to investigate that person. A closed court is said to be unsatisfactory, because persons could readily infer that inculpatory evidence is being given about them from the closure of the court itself. The applicant is not prepared to receive protection from the authorities, because that would require him to be completely frank with police about the reason why he needs that protection, including naming the person, and he will not do so.
As I say, one can accept all of that. But there comes a point at which, whilst accepting that no option is perfect (whether on its own or combined with others in the suite of options), nevertheless one comes to the view that the applicant must simply make his decisions on the basis of the options open to him. Yet again, people caught up in the criminal justice system - including completely innocent ones - are sometimes placed in the invidious position of needing to decide whether they will accept police protection and, in extreme circumstances, start their life again by way of an altered identity, or decline that protection and run the risk of harm or death.
In short, seen in the context in which the criminal justice system operates, the threats made to the applicant and his family are to be deplored; I do not accept that they are exceptional, let alone unique.
Having set out the general principles that I believe apply to this matter, I turn to determine the particular grounds of appeal.
Ground 1
I repeat Ground 1 for convenience:
His Honour erred by failing to have regard to the prejudice suffered by the Applicant in circumstances where the relevant person was not named.
This ground may be dealt with shortly. A reading of the judgment shows that his Honour was well aware of the prejudice that would be suffered by the applicant if the person whom he claimed he had met at City Gym were not to be named. So much is apparent from the following extracts from the judgment.
First, his Honour noted the potential prejudice when recounting the submissions of the applicant at p 62 of the Appeal Book:
… if the threats are real, as Mr Thangaraj [senior counsel for the applicant] contends they are, it would result, in effect, in the absence of a crucial witness or crucial evidence supportive of the accused's case.
Secondly, his Honour observed the potential prejudice when discussing the options available to the applicant at p 64 of the Appeal Book:
The second possibility is the accused gives evidence and does not name persons. The risk, as Mr Thangaraj [senior counsel for the applicant] argues in summary, is that the defence is weakened because of any inability of the defence to adduce evidence supportive of the proposition that the co-offender or co-accused was indeed a criminal.
…
The fourth [option] is that the accused does not give evidence. As I say, accepting at face value the defence of this accused, in my view, if through no acts of his own this accused is prevented from speaking up in his defence in the way his counsel suggests he wishes to do so, that would be a fundamental defect in this trial.
Thirdly, his Honour considered the potential prejudice when balancing the competing factors in his final determination at pp 64-65 of the Appeal Book:
… In my view, ultimately I consider the accused would not be deprived of a fair trial if he gave evidence and did not name the persons involved… I accept that on one view if a person or persons were named and identified there could be more powerful evidence supporting the defence.
…
I consider if the accused chose to give evidence but not name names or perhaps to a lesser extent gave evidence in a closed court… that both those mechanisms would allow him to put his substantive defence before a jury.
Because these extracts show that his Honour manifestly had regard to the subject matter that founds the ground, I consider that this ground should be rejected.
Ground 2
I repeat Ground 2 for convenience:
His Honour erred by finding that a closed court would allow the Applicant to put his substantive defence before the jury.
Again, I consider that this ground can be dealt with shortly. A reading of the judgment shows that his Honour was well aware of the arguments for and against closing the court. Indeed, his Honour referred explicitly to the potential for that course of itself to lead to the malefactors believing (correctly or otherwise) that the applicant was in the process of implicating them. At p 64 of the Appeal Book, his Honour said:
The risk, according to Mr Thangaraj, and there is some merit in this submission if I might say, is that the persons who might be the subject of the disclosure could send agents to the Court in order to listen to the evidence which the accused might give, and they are confronted with a closed court, would automatically assume there was to be a disclosure of their identity. Once again, if one follows that logic through, there is clearly a risk of injury or death still remaining.
The availability of this ameliorative step was canvassed in the judgment, and its advantages and disadvantages weighed up. His Honour considered the fairness of the trial of the accused; the ability of the accused to put forward a proper defence; and the disadvantages outlined above in relation to the inferences that may be drawn from closing the court. His Honour contrasted this to the public interest in the prosecution of a serious crime, and the principles of open justice, and determined that the applicant could still put his substantive defence before a jury if he gave evidence in a closed court.
As well as that, what his Honour actually said about the topic at p 65 of the Appeal Book is this:
However, the balancing of the competing considerations on the one hand and the fairness of the accused's trial, allowing him to put a proper defence and the undoubted public interest which the Courts have expressed in the prosecution of serious crime, I consider if the accused chose to give evidence but not name names or perhaps to a lesser extent gave evidence in closed court - although as I said there are riders to that proposition - that both those mechanisms would allow him to put his substantive defence before a jury. Not everything he might wish, but certainly his substantive defence before the jury with a significant explanation as to why he could not be more forthcoming. The Crown has indicated in any event, that she would not press in any cross-examination, the accused to name any names, given the circumstances.
To my mind, his Honour was saying that, if the applicant gave evidence in a closed court, recounted the alleged meeting about steroids at City Gym, but did not name the person with whom he met, adopting that course would put the substantive defence of his mistaken belief in the nature of the items imported before the jury. That statement is objectively correct, as is his Honour's appreciation that that would not be the entirety of the evidence that the applicant could give.
I do not accept that his Honour approached this issue erroneously, or determined it erroneously. This ground should therefore be rejected.
Ground 3
It is clear that this ground focuses on the outcome at first instance, not the process of reasoning that led to it, in accordance with the last leg of House v The King (1936) 55 CLR 499; [1936] HCA 40. Yet again, I believe that, in light of the overarching principles to which I have referred, it can be determined shortly.
I determine no error at all in the outcome of this matter at first instance. To the contrary, I would have regarded any other outcome in the circumstances that I have outlined as being wrong, and liable to correction on appeal.
It follows that this ground should also be rejected.
Orders
It is for the above reasons that I joined in the following orders when judgment was reserved:
1. Leave to appeal granted.
2. Appeal dismissed.
N ADAMS J: I agree with Button J.
[3]
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Decision last updated: 31 October 2016