Rosamond v R

Applicable Legal Principles

1. In considering this application for leave to appeal, I note that s 5F(3)(a) of the Criminal Appeal Act permits an appeal, by leave, to this Court against an interlocutory judgment or order given in the proceedings. A ruling on evidence given in the course of a trial is not, within the words of s 5F(3)(a), an interlocutory judgment or order: R v Powch (1984) 14 NSWLR 136; Steffan v R (1993) 30 NSWLR 633.
2. An order dismissing an application to discharge a jury, or an order discharging a jury, is amenable to an application for leave to appeal under s 5F(3)(a). Whilst an order dismissing an application to discharge a jury is an order of a kind that may be the subject of a grant of leave to appeal, a strong circumstance against the grant of leave is that the underlying basis for the application or complaint about the ruling against which leave to appeal is sought relates to or is based upon the admissibility of evidence: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [16], [106], [208]; DSJ v R; NS v R [2014] NSWCCA 77 at [7].
3. Leave should not readily be granted unless an appropriate case is made out showing an error of principle which is apt to cause an irregularity or an injustice: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25].
4. In considering whether or not to grant leave, the Court has regard to the fact that one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to the requirement to obtain leave is to prevent, or minimise, the fragmentation of the process of criminal justice: R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215 at [23].
5. Finally, an appeal from an interlocutory judgment on an application to discharge a jury, a matter of procedure, is subject to the degree of appellate restraint identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.
6. On any appeal after a grant of leave, the Court of Criminal Appeal may affirm or vacate the judgment or order made below and substitute any other judgment or order which ought to have been made: s 5F(5).

Relevant Chronology of Proceedings

1. The proceedings first came before the District Court of NSW in May 2020. On 31 July 2020, the accused was arraigned on an Indictment which, when presented to the jury, contained 60 counts of corruptly giving a benefit to Ms Rosemary Rogers, an employee of the National Australia Bank ("NAB") contrary to the provisions of s 249B of the Crimes Act 1900, and 32 counts of dishonestly obtaining a financial benefit by deception contrary to s 192E of the Crimes Act.
2. Upon arraignment on 31 July 2020, the accused pleaded not guilty to all counts, and the proceedings were set down for trial on 26 July 2021. No doubt it was anticipated that that period of 12 months would be more than sufficient to enable the proper preparation of the matter for trial.
3. In 2021, it appeared that there was an issue with respect to Legal Aid funding as to the briefing of senior counsel and as to whether funding would be approved for a forensic accountant report.
4. As will become apparent, the Crown was in possession of, and had served in August 2019, a forensic accountant's report by Mr Matthew Fehon. The author of that report, Mr Fehon, had carried out various investigations and had prepared that report at a time when he was retained by King & Wood Mallesons, solicitors for the National Australia Bank (NAB).
5. Legal Aid did not provide funding to the applicant for a forensic accountant report.
6. On 8 June 2021, on the application of the accused, the trial date was vacated on the grounds that the accused did not have senior counsel briefed. The Court, on 9 July 2021, fixed a fresh date for the trial to commence on 25 July 2022, with an estimate of four months.
7. In accordance with a previously fixed timetable, on 25 October 2021, the accused applied for a "temporary stay" of the trial. On 29 October 2021, Sutherland SC DCJ ("the Judge"), for the reasons which he published, dismissed the application for a temporary stay.

Judgment on First Stay Application

1. In the course of his reasons, the Judge said this with respect to the application before him: "At the heart of the application is the proposition that the accountant's report which has been served as part of the Crown brief is critical to the determination of the guilt or otherwise of the accused applicant. In the applicant's written submissions, the expert report is described as 'central to the prosecution case'. The reported attachments are described as running to some 46,000 pages. …"
2. The Crown's submissions on that issue were noted by the Judge in the following way: "The Crown, on the other hand, submits that while the report is important, to the extent that it goes beyond relevant expertise it will not be able to be relied upon. To the extent that it reaches actuarial or mathematical conclusions, or traces the dissipation or transfer of funds, it will rest upon proof of primary material such as MYOB records, bank accounts and the like. Significantly, the Crown submits that the forensic accounting report is not 'fundamental' to the Crown case. The assertion in the affidavit of the accused's solicitor relied upon in the motion to vacate the original date of the trial, namely that 'the Crown case is largely based on assertions, assumptions and conclusions made in that report' is not agreed to by the Crown."
3. His Honour drew attention to the fact that Ms Rogers, the recipient of the corrupt benefits identified in the Indictment, had pleaded guilty to a large number of offences. Ms Rogers had provided a lengthy statement to investigators about the offences and had provided an undertaking to give evidence in the trial of the applicant. Ms Rogers was anticipated to be giving direct evidence about the receipt of corrupt benefits and the subsequent authorisation of inflated invoices. She, of course, was a person who could give direct evidence of all of the facts and matters which had occurred, and which were the basis of the Indictment against the applicant.
4. His Honour reached the following conclusion in his judgment: "Dealing with the present application on what might be described as first principles, the defence contends that analysis by a different accountant would have the possibility of yielding a different figure for the amount defrauded, or alternatively the possibility of demonstrating that there has not been a fraud committed upon the NAB. The accountant's report relied upon by the prosecution would appear to have little, if anything, to do with the … counts relating to payments of benefits paid to Ms Rogers. With respect to counts where the quantum of a defrauding is alleged, it obviously will have a part to play in an assessment of quantum. …"

The Current District Court Trial

1. On 26 July 2022, pre-trial argument commenced with respect to the admissibility of tendency evidence and, as well, summaries of evidence pursuant to s 50 of the Evidence Act 1995.
2. On 8 August 2022, a jury was empanelled, and the trial commenced. On 15 August 2022, an application was made to discharge the jury with respect to the giving of evidence about an interview in which the applicant participated. That application was unsuccessful. On 15 September 2022, a further application was made to discharge the jury regarding the evidence of an uncharged act relating to the applicant giving money to Ms Rogers. That application was unsuccessful.
3. On 12 October 2022, the Crown called the expert forensic accountant witness, Mr Matthew Fehon. The Crown did not attempt to tender his report but, rather, led his evidence orally.
4. On 17 October 2022, which was the 45th day of the trial, an application was made to discharge the jury on the basis that the Crown had unfairly expanded the scope of the expert evidence which had been given by Mr Fehon.
5. On the following day, Sutherland SC DCJ delivered an oral judgment refusing the application.
6. In considering this appeal, it is appropriate to keep in mind that his Honour had limited time within which to consider the issues and formulate his judgment, and that he delivered his oral judgment very promptly.

The Interlocutory Judgment on the Application for Jury Discharge

1. As earlier noted, the application to discharge the jury was made on day 45 of the trial.
2. His Honour described the application in this way: "The basis for the application for a discharge focussed on a number of different aspects of the evidence of a forensic accountant, Mr Matthew Fehon. At its heart, the application was based on claimed unfair prejudice relating to the ambit of evidence adduced from Mr Fehon. The unfairness was contended to arise as a consequence of the Crown, so it was said, having made a number of representations about limiting the evidence that they would rely upon from Mr Fehon … In his oral submissions [counsel] on the behalf of the accused, advanced the proposition that the Crown was effectively estopped from leading any evidence from the expert above and beyond the limitations which it was said had been indicated in the earlier representation."
3. His Honour then identified parts of the evidence (which had not been objected to) to which he was taken as having been led in contravention of the asserted limitation. He identified the relevance and significance of the evidence. It will be convenient to refer to this evidence as the "disputed evidence".
4. His Honour concluded that he had not been satisfied by the accused "… in the overall context of the trial …", that the prejudice claimed had been established.
5. Of importance in the context of the application to discharge the jury was that his Honour noted: "Whether or not the transactions were or were not fraudulent, or whether payments were or were not made with the requisite corrupt intention will be matters for the jury, and that will be made clear to them in directions." (emphasis added)
6. His Honour dismissed the application.

A Further Application

1. After his Honour delivered the ex tempore judgment to which reference has just been made, counsel for the applicant informed the Court that he was instructed to renew the temporary stay application "… on the basis that we are not in a position to meet Mr Fehon's evidence".
2. Counsel informed the Court that he was not in a position to make that application on short notice, but that he may be in a position to argue such an application on the following morning.
3. The Judge asked him what he meant by a "temporary stay" given that the context was that the trial had continued in front of the jury for many days.
4. The following exchange took place: "His Honour: … Does that meant that what you're applying for, or intending to apply for, is effectively an adjournment of this trial so that you can either get instructions or get advice from another expert or something to that end, to then be in a position to proceed with the trial, or is it an application to effectively stop this trial? Hughes: At this point, that's a question I can't answer. His Honour: I don't know what a temporary stay in the middle of a trial means. Hughes: I suppose it is in the nature of an adjournment. Having only had a limited time to consider what the next step would be, it would be in the nature of adjournment in order to seek an expert who might be able to put us in a position to meet the evidence that, for the reasons I said yesterday, we're not in a position to meet. Depending upon availability of experts and how long that takes, I can't say how long of an adjournment would be required, or if there would be a consequence that, in effect, … that this trial could not continue.
5. The Crown opposed the application submitting that it would seem to be a delaying tactic.
6. At the end of the Crown's submission, his Honour said: "Dr Hughes, I don't propose to entertain what you've described as a temporary stay application in the middle of a jury trial after X number of months."
7. His Honour made further remarks. And then said: "His Honour: Now, I mean, I don't propose to stop the trial for there to be some exploration about the possibility of an expert on the same basis that was, in effect, advanced or on a related basis to what was advanced, and declined, last year. A lot of water has gone under the bridge since then and if you can only proceed to a certain point with your cross-examination, I will hear what you want to say in due course, but the proposition that there should be no cross-examination, we adjourn for some legal application tomorrow and send the jury away for another half day, I'm not prepared to do it."
8. Counsel took instructions and responded that his instructions were to seek leave to appeal his Honour's judgment on the application to discharge the jury to this Court. Counsel announced that the trial should continue whilst that application was made, and that he would commence cross-examination of Mr Fehon. The Judge directed that the jury return for the continuation of the trial.
9. At that point, the Crown prosecutor asked for clarification from counsel for the applicant as to whether the application to this Court was based on the judgment delivered orally earlier or in relation to the adjournment application which had just been refused. Counsel for the applicant responded that it was in relation to the earlier judgment.

Ground 3

1. Ground 3 asserts that the Judge in dismissing the application for an adjournment, failed to consider the impact of not granting the adjournment on the accused's right to a fair trial.
2. The application for an adjournment did not articulate any proper basis for an adjournment. It started out as an application for a "temporary stay". There was no articulation of how long the adjournment was sought for, for what purpose, what would be achieved by an adjournment and what the prejudice was to the applicant if it was not granted.
3. As best as can be identified, initially the applicant was seeking an adjournment to enable her to make a more formal application for a temporary stay. It was unclear to his Honour what the difference was. Any adjournment would have involved, at least, a temporary stay of the hearing of the trial.
4. Counsel told the Court that he could not predict the length of the required adjournment, or whether the inevitable consequence of any adjournment would be that the trial could not continue. He said he did not expect the matter to be resolved quickly. He did not address or identify any prejudice in the event the adjournment was refused. In fact, he told the Court that he was in a position to commence his cross-examination of the expert, Mr Fehon.
5. The refusal of that adjournment application was well within the discretion of the Judge. The submission now made that the Judge did not consider the applicant's right to a fair trial is without merit. No submission to that effect was made to the Judge. The Judge had just found that no prejudice had been occasioned to the applicant by the admission of the disputed evidence. The Judge was clearly entitled to deal with the application giving only brief reasons having regard to the circumstances.
6. In addition, the application to this Court was futile as, by the time the application under s 5F was heard by this Court, the applicant had concluded the cross-examination of Mr Fehon, and he had been discharged as a witness.
7. This ground is without merit. I was not prepared to grant leave for it to be advanced as a ground of appeal.

Grounds 1 and 2

1. In Grounds 1 and 2 the applicant submits in substance that the Crown should not be permitted to depart from a submission which it made during the hearing of the judgment on the first stay application with respect to the disputed evidence of Mr Fehon because requiring the applicant to cross-examine on such matters without the benefit of an expert report or advice in conference from an expert accountant, would create an unfair trial of a kind which would warrant discharge of the jury.
2. The applicant did not seek for the purposes of this application to prove the restriction on leading evidence from Mr Fehon to which the Crown, it was said, had agreed. Rather, the whole of the applicant's submission was based upon the statement made by the Crown in its submissions which are set out at [19], namely that the Crown would not lead evidence from Mr Fehon that went beyond "relevant expertise" and that to the extent that Mr Fehon's opinion reached actuarial or mathematical conclusions or traced the disposition or transfer of funds, the Crown would lead proof of the primary material such as records, bank accounts and the like, to give weight to any opinion Mr Fehon expressed.
3. As well, the applicant relied upon a statement at [145] of the judgment on the first stay application, where the Judge said: "The Crown is not calling a forensic accounting expert to give an opinion as to the existence of a fraud, although that may well have been part of the original report which was prepared."
4. Proceeding upon the assumption that the Crown's submission and that statement by the Judge was correct and represented the position of the Crown as at 29 October 2021 does not lead inexorably to the conclusion that the Crown, depending upon the circumstances, ought not be permitted to vary from that statement, because much will depend upon what the variation in evidence was, and whether such evidence carried weight, in the trial having regard to the other evidence in the trial, and the way in which the trial had been conducted, including what directions had already been given to the jury.
5. The applicant submitted that once such a statement was given, and the evidence which was adduced went further than that which the Crown had indicated, the trial was accordingly unfair.
6. In propounding this argument, the applicant relied upon two decisions of the UK Court of Appeal: R v Bloomfield [1996] EWCA Crim 1801, and R v Hamza [2007] QB 659; [2006] EWCA Crim 2918. Both of these decisions deal with whether it would be an abuse of process to allow the prosecution to depart from an unequivocal statement that a defendant would not be prosecuted. Neither establishes any general principle. The facts of each case are far removed from the circumstances here.
7. I do not accept the applicant's submissions.
8. The disputed evidence, which was the basis of the application to discharge the jury, formed a small part of the whole of the evidence of Mr Fehon. The applicant accepts that it is possible for the Judge to give directions to the jury that would address any answer of the expert which the Judge thought may have been in some way unfair to the applicant. The applicant also accepts that there was no objection taken to the evidence being given and that the questions and answers upon which the applicant relies were properly admissible and fell within the expertise of the witness.
9. As well, the applicant accepts that her counsel did not put any evidence before the Judge in support of the application for discharge to establish any detriment to the applicant by reason of the disputed evidence being given and admitted before the jury.
10. In oral submissions on the hearing of the application, counsel submitted that, since the applicant had not pursued obtaining any expert report in reply to the Crown's expert after the judgment on the first stay application, because of what the Crown had said during that application, this Court would infer that this was the detriment the applicant would suffer because of the Crown's "departure" from its agreed position.
11. I do not accept that the applicant is entitled to leave to appeal on these grounds.
12. The Judge gave his judgment promptly and concluded that, amongst other things, a discharge of the jury was not warranted because directions of an appropriate kind could be given to address any unfairness to the applicant arising from the disputed evidence.
13. His Honour was also not convinced that any detriment had been suffered of a kind which would warrant a discharge of the jury.
14. Both of these conclusions were undoubtedly correct and so the decision not to discharge the jury fell clearly within the discretion which the Judge had and properly exercised. Any appeal to this Court on these grounds would not succeed.
15. There are other considerations in this Court which would lead to a refusal of leave to appeal.
16. By the time this application was heard in this Court, the applicant had completed the cross-examination of the expert. No questions were asked, as the Court was informed, by counsel for the applicant about the opinions expressed by the expert in the area of controversy.
17. On the hearing of the application for leave, the applicant could not demonstrate any detriment to her position of a kind which could only be remedied by a discharge of the jury. As well, the applicant accepted that as a matter of general principle, the Crown would be entitled to reconsider its position from a statement earlier made, in circumstances where the accused had created a change in circumstances which warranted such a change of position.
18. A further matter to be considered on an application for leave against an interlocutory judgment is that the application, notwithstanding the submissions to the contrary by counsel for the applicant, was in substance and effect an application complaining about the giving of evidence to which no objection had been taken and which it was conceded was plainly relevant and admissible. Although the application was phrased as though it was an appeal against an order based upon the failure of the Judge to discharge the jury, all submissions supporting the discharge application depended upon prejudice which it was claimed arose from the leading of the disputed evidence by the Crown.
19. This was in substance and effect, an application dealing with the admissibility of evidence. Such a matter is of significance on the issue of whether this Court should grant leave to appeal: Brown v R [2022] NSWCCA 121 at [25] (Simpson AJA, Rothman and Ierace JJ agreeing).
20. The trial is far advanced, the evidence was admissible and admitted without objection. The applicant accepted that directions could be given to remedy any unfairness caused to her by the evidence being admitted and the applicant accepts that no evidence was led pointing to any detriment or prejudice which the applicant suffered by reason of the admission of the evidence notwithstanding earlier statements to the effect which had been identified.
21. This is not an appropriate matter for leave to be granted for all of those reasons.
22. I should add, lest there be any misunderstanding, nothing in this judgment can be taken to indicate that the Judge ought to give any directions or the terms of any such directions which the Judge ought to give. These are matters entirely for the Judge upon application by counsel and with the assistance of the parties.
23. It is for these reasons that I joined in with the Court's decision to decline to grant the applicant the relief sought.
24. I propose the following formal order: 1. Application for leave to appeal pursuant to s 5F of the Criminal Appeal Act against a judgment of Sutherland SC DCJ on 18 October 2022 declining to discharge a jury is refused.
25. BUTTON J: The judgment of Garling J reflects my own reason for joining in the decision of the Court on 24 October 2022.
26. WILSON J: I agree with Garling J, whose judgment reflects my reasons for joining the orders made on 24 October 2022.

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