BETWEEN : SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD

Criminal law and procedure - Remission of proceedings from District Court to Supreme Court - Whether the Court should exercise discretion conferred by s 76 of the District Court of Western Australia Act 1969 (WA) - Corporation charged with organised fraud contrary to s 83(1) of the _Proceeds of Crime A_ct 1987 (Cth) - Senior officers of a corporation charged with being knowingly concerned in the commission of offences - Whether procedural, factual and legal complexity of proceedings sufficient to justify remission - Whether inherent nature of proceedings are of substantial public interest to justify remission - Whether possible application for permanent stay of proceedings based on absence of evidence calls for authoritative adjudication - Whether possible application for permanent stay of proceedings based on the alleged abuse of prosecutorial discretion calls for authoritative adjudication

Crimes Act 1914 (Cth), s 5(1), s 29D, s 86A

Criminal Code 1913 (WA), s 577, s 611A, s 612, s 688

Criminal Procedure Rules 2000 (WA), r 35

District Court of Western Australia Act 1969 (WA), s 42, s 77, s 45(3), s 76, s 81(1), s 79

Proceeds of Crime Act 1987 (Cth), s 83, s 85

Proceeds of Crime Act 2002 (Cth)

Supreme Court Act 1935 (WA), s 16, s 43(1), s 58(1)(b)

Proceedings remitted from District Court to Supreme Court

Third-named Applicant : Mr A J Glynn SC & Mr C Eberhardt

Fourth-named Applicant : Mr A Howard QC & Mr M G O'Connell

First-named Applicant : Fearis Salter Power Shervington

Third-named Applicant : Robertson O'Gorman Solicitors

Respondent : Commonwealth Director of Public Prosecutions

Champion v Richardson [2003] VSC 482

Commonwealth Service Delivery Agency v Bourke [1999] SASC 154

Connell v Gunning (1993) 10 WAR 402

Connell v The Queen (No 5) (1993) 10 WAR 424

Director of Public Prosecutions v Esso Australia Pty Ltd [2000] VSC 572

Duncan v Crews; Stanley v Farlow [2001] NSWSC 376; (2001) 161 FLR 250

Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Lipohar v The Queen (1999) 200 CLR 485

R v Disun [2003] WASCA 47; (2003) 27 WAR 146

R v Johnson, Rae & Salt (1978) 19 SASR 157

Re Grinter; Ex parte Hall [2004] WASCA 79; (2004) 28 WAR 427

Re His Honour Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; 86 A Crim R 100

Rogers v The Queen (1994) 181 CLR 251

Walker v Midlink Nominees Pty Ltd [2000] WASC 112; (2000) 22 WAR 318

La Maccia v Minister for Primary Industries and Energy (1992) 110 ALR 201

Penny v The Queen, unreported; FCt SCt of WA; Library No 3129; 16 November 1989

Pinkstone v The Queen [2004] HCA 23; (2004) 206 ALR 84

R v Anderson (1974) 5 ALR 268

R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681

1 SIMMONDS J: This is an application for the transfer to this Court of criminal proceedings pending in the District Court of Western Australia. The proceedings are on indictment for offences against federal law by the applicants, Salmat Document Management Pty Ltd ("Salmat"), a national concern with bulk mailing operations across the country, as well as Nicholas John Aldridge, Matthew James Hall and Patrick Joseph Ward, who were at various times senior officers of Salmat for Western Australia in its bulk mailing operations here.

2 In the hearing before me, each of the four applicants was separately represented. Their applications raised substantially, but not entirely, the same issues.

3 Initially, there was a question of the source of the power of the Court to entertain this application. Reliance was variously placed on s 16 of the Supreme Court Act 1935 (WA), s 45(3) of the District Court of Western Australia Act 1969 (WA) ("District Court Act"), r 35 of the Criminal Procedure Rules 2000 (WA) and s 577 of the Criminal Code 1913 (WA). Reference was also made to s 81(1) of the District Court Act. However, at the commencement of the hearing, all the parties, including the respondent, the Commonwealth Director of Public Prosecutions, agreed that the application should be referred to s 76 of the District Court Act, which is as follows:

"A Judge of the Supreme Court may, upon the application of any of the parties to an action or matter brought in the Court, if he thinks fit, order that the action or matter be tried or heard in the Supreme Court sitting at such place as is specified in the order."

4 In the event, I accept that s 76 is sufficient authority for the application to be made. I do so on the basis of the discussion of the term "action or matter" in the context of s 79 of the District Court Act in the judgment of Malcolm CJ in Connell v The Queen (No 5) (1993) 10 WAR 424, at 444 - 445. I gave leave to amend the applications to refer them to s 76, while noting that counsel for the applicants did not finally abandon, even if they did not address any oral argument to, the other bases I have noted.

5 I also note that, unlike Connell (No 5), the proceedings in these prosecutions are ones in federal jurisdiction. It was assumed before me that the statutory procedural law of this State to which I will refer applies here as law "picked up" up for the purposes of a federal matter (with an exception I will note). For earlier proceedings in this matter considering whether such procedural law was so picked up, I was referred to Re Grinter; Ex parte Hall [2004] WASCA 79; (2004) 28 WAR 427, to which I will briefly return.

6 It was conceded by the parties that the District Court and the Supreme Court had concurrent jurisdiction in these proceedings, apparently on the basis of District Court Act s 42, on which I note Re His Honour Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; 86 A Crim R 100, at 52, per Malcolm CJ, Kennedy and Murray JJ agreeing. Argument before me then went to the factors which it was contended should inform the exercise of the discretion referred to in s 76, "if [the Judge of the Supreme Court applied to] thinks fit". The only authority I was referred to on the exercise of a discretion of this sort where there was concurrent jurisdiction was the decision of Cummins J in Director of Public Prosecutions v Esso Australia Pty Ltd [2000] VSC 572 on the authority to remove matters from the County Court of Victoria to the Supreme Court of that State under s 359(1) of the Crimes Act 1958 (Vic). I could find no Western Australian authority that had referred to this case.

7 In the circumstances, assisted by DPP v Esso (supra), I have determined that this is an appropriate case for the exercise of my discretion to order a transfer under s 76 of the District Court Act. I set out below the background to this application, the approach that I believe I should adopt to it, and the bases for my determination.

8 On 11 March 2003, Salmat, Aldridge, Hall and Ward were charged with various offences arising out of an alleged fraud on Australia Post. This fraud allegedly consisted of the under-declaration of bulk mailings submitted to Australia Post by Salmat on behalf of Western Power, a client of Salmat. Specifically, Salmat was charged that between 1 January 1995 and 18 September 1998, contrary to s 83(1) of the Proceeds of Crime Act 1987 (Cth), the conduct I have referred to represented Salmat's engagement in "organised fraud". It was agreed for the purposes of the proceedings before me that s 83(1) was applicable notwithstanding the repeal of s 8 (1): Federal Criminal Law, looseleaf (1995), [14-1505] (Editor's Note). The penalty for engagement in "organised fraud" under that section is, if the offender is a natural person, a fine not exceeding $250,000 or imprisonment for a period not exceeding 25 years, or both; and for a body corporate, a fine not exceeding $750,000. By s 83(2), a person is taken to engage in "organised fraud" if, and only if, he or she engages in acts or omissions that constitute three or more "public fraud offences", from which the person derives "substantial benefit". For the purposes of s 83, a "public fraud offence" is defined by s 83(4) as an offence under either s 29D or s 86A of the Crimes Act 1914 (Cth), amongst other things.

9 Aldridge, Hall and Ward were charged with being "knowingly concerned" in the commission of Salmat's offence but over the particular periods stipulated for those individuals. This was contrary to s 5(1) of the Crimes Act and s 83(1) of the Proceeds of Crime Act. For the purposes of the proceedings before me, the Crimes Act provision was agreed to be applicable notwithstanding the repeal of that provision: see Federal Criminal Law, [2.1840].

10 For the purposes of my appreciating the complexity of the proceedings likely in this matter, I was referred in some detail to the particular periods to which the charges against the individuals related. For Hall, the dates were 1 January 1995 to 1 September 1995, which coincided with the period during which he was the Western Australian State Manager of the bulk mail division of Salmat. For Aldridge, the dates related to the period 2 September 1995 to 30 June 1997, which coincided with the period during which he was Hall's successor as such Manager. Ward's dates were the entire period to which Salmat's charge related, namely, 1 January 1995 to 18 September 1998, coinciding with the period which began when he was Victorian State Manager of the bulk mail division of Salmat and which ended while he was acting as Aldridge's successor as the Western Australian Manager. The end date of 18 September 1998, I was told, was that on which the first search warrants were executed, in Victoria, for the purposes of the nation-wide investigation by the Australian Federal Police of Salmat's conduct of the sort alleged in the Western Australian proceedings.

11 On or about 24 July 2003, the Commonwealth Director of Public Prosecutions served a substantial committal brief on the accused, comprising approximately nine lever arch folders of witness statements and 21 lever arch folders of exhibits. Following service of the committal brief, the Commonwealth Director of Public Prosecutions sought to examine certain witnesses pursuant to s 102 of the Justices Act 1902 (WA). On 22 April 2004, the summons for compulsory examination was quashed by the Full Court of this Court in Re Grinter (supra).

12 On 7 May 2004, in the Court of Petty Sessions at Perth, all accused pleaded not guilty and were committed to stand trial in the District Court. All accused had applied unsuccessfully over the opposition of the Commonwealth Director of Public Prosecutions to have the matter committed to this Court.

13 On or about 9 July 2004, the Commonwealth Director of Public Prosecutions filed an indictment against all accused in the District Court, and on 3 August 2004 the accused were arraigned before a Judge of that Court where all pleaded not guilty. A status hearing in that Court has been scheduled for 19 January 2005.

14 I also note that it was not contended that transfer of this case from the District Court to the Supreme Court would, of itself, significantly delay the trial in these proceedings. That trial in the District Court would, at the earliest, come on in June or July 2005, while the earliest it would come on in this Court would be July or August 2005.

15 I have already set out the terms in which my discretion is conferred by s 76 of the District Court Act. No factors relevant to that discretion are there indicated. I was referred to s 577 of the Code, on transfers "upon good cause shown", to s 77 of the District Court Act, on remissions by a Judge of the District Court to this Court by reason of an action's or matter's "nature or magnitude or by reason of the question of law involved", and to s 81(1) of the District Court Act, on removal by a Judge of this Court by way of certiorari "if the judge thinks it desirable that the cause, matter or proceeding should be tried in the Supreme Court". These provisions confirm for me the breadth of my discretion, and s 77 is suggestive of the matters I may properly take into account. But none is of any greater help, it seems to me.

16 Of more assistance is the judgment in DPP v Esso (supra), which involved an application to transfer proceedings from the County Court to the Supreme Court of Victoria. The proceedings arose out of a charge involving 21 counts. The accused was committed for trial in the County Court by the Melbourne Magistrates' Court on 1 February 2000. The charges arose out of the Longford gas disaster and followed the report of the Royal Commission into that disaster of June 1999. The charge had 21 counts pursuant to certain provisions of the Occupational Health and Safety Act 1985 (Vic). There was concurrent jurisdiction in both the County Court and the Supreme Court of Victoria in respect of them. The application to transfer had been made by the Director of Public Prosecutions. The application had been made pursuant to s 359(1) of the Crimes Act 1958 (Vic) which provided that "the Supreme Court may" order that the accused be tried in a sitting of the Supreme Court specified in the order, adding that the order "may be made notwithstanding that in its result a case which would otherwise be tried by the Supreme Court is ordered to be tried by the County Court or vice versa".

17 Cummins J indicated that, although the matter "is likely to be of trial complexity", such complexity did not persuade him that it ought to be heard in the Supreme Court "as distinct from the County Court". Nor did the circumstance that a number of steps had already occurred in the County Court, including a mention hearing on 23 March 2000, a listing conference on 4 April and a directions hearing (later vacated) fixed for 19 June. Apparently it was only after the committal that the Director of Public Prosecutions had taken over the prosecution: DPP v Esso (supra) at [6].

18 However, his Honour concluded that there were "other considerations" which in his view did "militate towards the matter being heard" in the Supreme Court of Victoria. He described those matters as follows at [7]:

"The matter is of substantial significance to the parties involved and to the persons affected by it. It is a matter of legal significance, and the terms of the Act are terms which may call for authoritative, that is to say, legally binding construction. It seems to me that it is appropriate that an authoritative court, that is to say, a legally binding court, should be seized of those matters. Further, the matter is of substantial public interest, and by that I do not mean the quantum of publicity but, rather, the inherent nature of the matters are matters of what the court and the law regards as of substantial public interest."

"It seems to me, therefore, that the true gravamen of the submissions of [counsel for the DPP] go beyond a question of court competence - and I have already said that I consider that the County Court has that expertise in trial process - but, rather, the matter is of substantial public importance, of substantial importance to the persons affected, and may require or call for authoritative adjudication, that is to say, construction of the Act, as is appropriate to be heard and determined in this court."

20 As will become apparent, I do not interpret the judgment of Cummins J in DPP v Esso to purport to state comprehensively the factors which a Court should consider in approaching the exercise of a discretion like that in s 359(1) of the Crimes Act or s 76 of the District Court Act, nor to require all of those to which he referred to be present before a transfer might be ordered. However, I do derive considerable assistance from his decision, as will also appear below, in considering how to approach the exercise of my discretion in this case.

21 Counsel for the Commonwealth Director of Public Prosecutions pressed on me the argument that, as I understood her, I needed to find this case was suitable only for the Supreme Court. While that would be a case where a transfer should be ordered, I believe that it sets too high a standard for all cases. Rather, I take from DPP v Esso (supra) the appropriateness of considering in a case like this one whether, even where the District Court could indeed deal with the matter, the case is of such significance that I should transfer it to this Court.

22 In the submissions before me, there was considerable attention focused on the complexity of the prosecutions here procedurally, evidentially and substantively.

23 Procedurally, the indictment, it was pointed out, raises a question of the appropriateness of the joinder of the accused, given the different periods over which the offences alleged against them were committed. There were also the issues concerning stay of proceedings altogether, which I was told would be raised, and to which I return separately below.

24 Evidentially, the trial, I was told, was one expected to run over 10 weeks, with a substantial body of oral and documentary evidence likely to be involved, as I have indicated. For the complexity of the conduct alleged to constitute "organised fraud" for the purposes of s 83(1) of the Proceeds of Crime Act 1987, I was referred to the Statement of Material Facts in this case, annexed as "BVR 2" to the affidavit of Brian Vincent Rolfe of the solicitors for Ward, sworn for the purposes of his application and dated 21 October 2004.

25 Substantively, there were at least significant issues as to the application of s 85 of the Proceeds of Crime Act 1987 which has to do with the attribution of the "state of mind" of a servant or agent of Salmat acting within the scope of their actual or apparent authority to Salmat for the purposes of its criminal liability.

26 Undoubtedly, one can expect the trial in this matter to be a complex one. Undoubtedly also on that account, it would be suitable for a court like this Court: see R v Johnson, Rae & Salt (1978) 19 SASR 157, King J, at 160. However, I note that Johnson concerned an application to the Supreme Court of South Australia to transfer a matter to the District Court of that State. It does not seem to me that Johnson is authority that a transfer from the District Court to the Supreme Court would be justified in all cases on complexity grounds alone. I say this bearing in mind the view of Cummins J in DPP v Esso (supra), where he said that the County Court of Victoria is "well able and competent to preside in matters of trial complexity and daily ... demonstrates precisely that" (at [6]). I have the same view with respect to the District Court of Western Australia.

27 It was put to me by counsel for the applicants that complexity, at least at the level to be seen in this case, may be relevant, at least where there are other factors that point towards transfer. In such a case, it was said, it may tip the balance. In view of the breadth of the discretion afforded me by s 76 of the District Court Act, I am not able to conclude that complexity may not in a suitable case do so. In this case, it is unnecessary for me to consider the issue further, as I consider that there are other factors which are sufficient to cause me to exercise my discretion. However, at the very least, there are no arguments from lack of complexity against a transfer in this case.

28 This takes me to the other factors I have referred to.

The factors arising out of absence of evidence

29 This went to Australia Post's destruction, apparently as part of its normal business practice, of certain records of what was said for the applicants to be considerable significance to the possibility of a fair trial of the accused. This destruction, I was told, would form the basis of applications by all of the accused for a permanent stay of the proceedings against them. In those applications, the destruction would be put in the context of the seven to nine-year delay since the commencement of the period over which the offences were alleged to have been committed by the accused. These applications would have the effect, it was said, of calling for the consideration by the relevant Court of a conflict of authority on the correct approach to resolving an application for a stay based on destruction of evidence made prior to the presentation of the prosecution's evidence. None of that authority is binding on either the District Court or this Court. In these circumstances, it was put to me that it was appropriate to have the application before this Court, which could address the conflict authoritatively, as in DPP v Esso (supra).

30 Before turning to the issues of law any such applications were said to raise, I note that the parties proceeded before me on the basis that the District Court would have jurisdiction to entertain an application for a permanent stay of proceedings. The matter appears not to have been finally determined, however (see Criminal Law Western Australia, [610.25]), although I note the discussion of the point of Malcolm CJ favourable to such jurisdiction in Connell (No 5) (supra), at 451. I note that there have been a number of cases where this Court had occasion to consider refusals of applications for a stay to a judge of the District Court, where the point was not raised: see Connell v Gunning (1993) 10 WAR 402, Rowland J in Chambers, an application after the refusal, and R v Disun [2003] WASCA 47; (2003) 27 WAR 146, an appeal against conviction.

31 As to the merits of any such application, at this stage of the proceedings, it is, of course, not possible for me to form a decided view on the significance of the destruction of the evidence referred to. I do note, however, that, on the material before me, there is reason to consider that the evidence destroyed may be of considerable significance to the accused. That material is the analysis of material of this nature in relation to charges in Victoria by accountants retained by one of the Victorian accused who is one of the accused in the Western Australian proceedings, and the only one to be among the individuals charged in the proceedings in that State (Ward). This analysis was undertaken for the purposes of his trial in Victoria on charges under s 29D of the Crimes Act 1914 (one of the provisions referred to by s 83 of the Proceeds of Crime Act 1987), and was provided, I was told, to the prosecution in that case. Those charges arose out of the same Australian Federal Police investigation that resulted in the present proceedings, and concerned the same alleged form of fraudulent conduct as in these proceedings, but practised in Victoria, over a period (for Ward) shorter than but within the corresponding period for the purposes of the proceedings in this State, and involving a client or clients other than Western Power.

32 Ward stood trial on the Victorian proceedings in March 2002. I was told that, on 29 April 2002, following preliminary argument and in the early stages of the prosecution case in those proceedings, the Crown offered no further evidence and Ward and the other accused were acquitted by direction. An analysis of certain evidence for the purposes of this trial had been prepared by the accountants for the purposes of those proceedings and is contained in a report dated 13 February 2002 annexed to the affidavit of Brian Vincent Rolfe of the solicitors for Ward in support of the application for transfer sworn on 23 November 2004.

33 The accountants' analysis, annexure "BVR 11" to the Rolfe affidavit, identified certain documents produced by Australian Post called "Revenue Protection Logs". Revenue Protection Logs are described in the accountants' report as a "contemporaneous and independent (of Salmat) record of the number of items received for mailing by Australia Post, net of any errors, duplicates, spoiled items (such instances arose)". The accountants' analysis concluded that those logs were, to a significant extent, at variance with the case of the Commonwealth Director of Public Prosecutions in the Victorian proceedings, showing that in close to 50 per cent of the cases of discrepancy the discrepancy favoured Australia Post: par 4.4(e) and par 8.19 of BVR 11. The accountants' analysis also noted that Revenue Protection Logs were missing for more than 20 per cent of the transactions they analysed: par 11.2.

34 On 2 July 2004, for the purposes of the proceedings in this State, the Commonwealth Director of Public Prosecutions responded to a request from solicitors for Ward by letter dated 31 May 2004 asking for, among other things, any "Revenue Protection Logs". The response annexed as "BVR 7" to the further affidavit for the purposes of these proceedings by Rolfe, sworn on 19 November 2004. The response says that the "queries" were "addressed" in statements by three officers of Australia Post in Perth enclosed with the letter, enclosures which are annexed to the 19 November affidavit as "BVR 8", "BVR 9" and "BVR 10". Those statements confirmed the destruction of all of the various documents used for checking bulk mailings to which they refer, including "discrepancy logs and/or revenue protection logs" ("BVR 9", statement of Paul Joseph Beck of 30 June 2004).

35 The law on the stay of proceedings because of destruction of evidence was reviewed by James J in Duncan v Crews; Stanley v Farlow [2001] NSWSC 376; (2001) 161 FLR 250. His Honour noted the statement in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 that the power to stay only arises in the event of a fundamental defect which goes to the root of the trial "of such a nature that nothing a trial Judge can do in the conduct of a trial can relieve against its unfair consequences": Duncan and Stanley at [48]. After noting other authority establishing that "mere absence of evidence that has become unavailable otherwise than by the fault of the defendant is not itself generally sufficient to justify a stay of proceedings" (at [49]), and the variety of ways in which a trial Judge may deal with absence of evidence, his Honour considered the decision of Wicks J in Commonwealth Service Delivery Agency v Bourke [1999] SASC 154. That case was, like Duncan and Stanley, one concerning prosecutions for knowingly obtaining social security payments to which the recipient was not entitled, contrary to certain provisions of the Social Security Act 1991 (Cth). In Duncan, as in Bourke, the Magistrate granted a stay at the commencement of the trial before the commencement of the prosecution case. In Stanley, however, the Magistrate refused to grant the stay. In all three cases, the basis for the application for the stay was the destruction by Centrelink of documents necessary to obtain payment and completed by the accused for the purpose, called Fortnightly Continuation Forms.

36 Wicks J in Bourke (supra), in considering whether the Magistrate erred in granting the stay before considering the prosecution evidence, determined "that the issue in this case was not the strength of the prosecution case without the fortnightly forms, but, rather, whether denying the defendant the opportunity to corroborate his version of events without the fortnightly forms would constitute an abuse of the court's processes". In light of that view, he determined that the stay was properly dealt with by the Magistrate "as a preliminary step": at [22].

37 James J in Duncan and Stanley (supra), after referring to this part of the judgment of Wicks J in Bourke (supra), concluded that "to approach the matter in this way fails to appreciate adequately that the onus in cases of this kind remains on the prosecution to prove the guilt of the accused beyond reasonable doubt from first to last and that the absence of essential documentation may appropriately be considered as leading to an acquittal where the tribunal of fact is not persuaded of guilt no matter what might have been the contents of the forms" (at [64]). On that basis, after a consideration of what might be done in relation to the destroyed documentation by a trial judge, his Honour concluded that a stay should not have been granted in Duncan, and he upheld the refusal of the stay in Stanley.

38 I agree with the view put to me by counsel for the applicants that the cases of Bourke, on the one hand, and Duncan and Stanley, on the other, show a conflict of views on the appropriate approach to an application for a stay based on the destruction of evidence and made before the commencement of the presentation of the prosecution's evidence in this case. None of those authorities is binding in this State. Were similar applications to be made in these proceedings, the Court would need to consider how it should deal with this conflict if, in its view, to deal with it was necessary to decide the applications. I should note that the Court might conclude it was not necessary to address conflict, on the basis that Bourke (supra) was distinguishable on its facts. The Court might conclude, for example, that the Revenue Protection Logs that had been destroyed were not the only evidence that could support the case of the accused, which was the basis upon which Bourke was distinguished in Champion v Richardson [2003] VSC 482, Kellam J at [32], a case which did not refer to Duncan and Stanley.

39 However, if the Court were to consider it was necessary to address the conflict, it would be most desirable to have an authoritative review of it of the sort this Court can provide, but the District Court cannot.

40 It was put to me that it was particularly desirable for this Court to address the matter as it would be arising in proceedings where the Court would be exercising federal jurisdiction. However, I do not attach any particular significance to that, as the Court would be faced with resolving apparent conflict in the authorities on a matter of common law concerning a stay of proceedings based on the destruction of evidence. The authorities are judgments of single judges of State Supreme Courts. This is a matter that it seems to me has to be approached as I indicate below. Whether the common law is being applied for the purposes of a federal matter, or for the purposes of a State one, the character and significance of what is at stake remain the same. Having said that, however, the addressing of the conflict by this Court would appear to me to be a matter of national legal interest, given the aspect of criminal procedure of a common law character involved.

41 I should also note that, as a conflict of first instance Supreme Court decisions from different States is involved, the Court would appear to have no alternative but to identify the correct approach to matters of this kind, whether it is that of Bourke (supra), of Duncan and Stanley (supra), or some other possibility. This is the approach referred to in Walker v Midlink Nominees Pty Ltd [2000] WASC 112; (2000) 22 WAR 318, Owen J, at [25], although there his Honour was dealing with the case of a single decision of a judge of the Federal Court.

42 Counsel for Salmat pointed out to me that a Court facing the task of addressing the apparent conflict I have referred to might follow the course of stating a case for this Court: cf Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757, French J at [76]. However, counsel reminded me that, under s 49 of the District Court Act, a District Court Judge can only state a case for the Court of Criminal Appeal on "any point of law arising in any trial of a person on indictment". By contrast, a Judge of this Court can, under s 43(1) of the Supreme Court Act 1935 (WA), "at any time before judgment" reserve a point of law for the Full Court. If the matter remained in the District Court, it was said, the accused would be required to await the trial before seeking to persuade a Judge of the Court to reserve the issue for this Court to consider. However, I consider that the response of counsel for the Commonwealth, that s 49 needed to be read with s 611A of the Criminal Code, is correct. The Code s 611A(1) permits the Court, after a commitment for trial but before or after an indictment has been presented, to determine "any question of law or procedure if it considers it is convenient to do so to facilitate the preparation for, or the conduct of, the trial, or is otherwise desirable". I note also s 611A(3), which provides that any proceedings under s 611A(1) "occurring before the trial of the person committed or indicted has begun are to be taken as being part of the trial", as well as s 612. When so read, s 49 of the District Court Act should be taken as extending to any application for a stay under s 611A(1) caught by s 611A(3), a view which seems correct both on the language of the provision and supported by the judgment of Malcolm CJ in Connell (No 5) (supra), 451 - 452.

43 Counsel for Salmat said that, regardless of the position under State law, as this was federal matter, Constitution s 80 was inconsistent with such an expansive notion of a trial. However, I do not need to go further into that response, as I consider that I am able to determine the applications before me without regard to any power of a Judge of the District Court to state a case for this Court.

44 There was some argument before me on whether or not there could be an appeal, without or without leave, from or other review of a decision of the District Court refusing an application for a permanent stay of proceedings like these. I was referred by counsel for Ward to the decision of Rowland J in Gunning (supra), refusing an application for review of a refusal of a stay where such application was founded on the inherent supervisory jurisdiction of this Court.

45 Counsel for the Commonwealth Director of Public Prosecutions directed me to s 79(1)(b) of the District Court Act as providing for an appeal from a refusal of a stay by way of leave. However, counsel for Salmat submitted to me that, while such leave might be applied for, it would be unlikely to be given, in light of the statement in Roddan (supra), at 60, per Malcolm CJ, Kennedy and Murray JJ agreeing, recognising that the Full Court "should be slow to interfere in pending criminal proceedings in the District Court because of the dangers of fragmenting the criminal process". That case was one concerning the possibility of review by way of certiorari of the discharge of an earlier order staying criminal proceedings. There is a similar statement in the context of appeals from interlocutory orders in criminal cases, applicable it seems to me to orders of either a Supreme Court Judge or a District Court Judge, in Connell (No 5) (supra), in the judgment of Malcolm CJ. His Honour says (at 445) that "interlocutory appeals in criminal proceedings raise questions of policy and the fragmentation of the criminal process", which was a "further reason" against construing s 58(1)(b) of the Supreme Court Act as giving the Full Court jurisdiction to hear applications for leave to appeal in criminal proceedings governed by Code Ch 69.

46 However, it also seems to me Connell (No 5) indicates the Full Court does not have jurisdiction to hear appeals in criminal matters from decisions of District Court Judges except as Code Ch 69 allows: see the comparison of appeals from judgments of the District Court and of the Supreme Court to the Full Court in the judgment of Malcolm CJ at 444 - 445, especially at 444. The relevant provision of the Code for this purpose is, it seems to me from my reading of Connell (No 5), s 688, which would not allow an appeal where there was a refusal of an application for a permanent stay by the accused until after conviction.

47 In the circumstances, it seems to me that the matter of the conflict in the authorities is one of considerable legal significance. The potential for this litigation to require that conflict to be addressed means, in my view, that the litigation's "inherent nature" is "what the court and the law regard as of public interest": DPP v Esso (supra), [7]. In that case, however, the "substantial public interest" appears to have been located in the significance of the litigation to the public of Victoria, although this is not altogether clear from the judgment. In this case, the "substantial public interest" is bound up in legal issues concerning the conflict of authorities on a common law aspect of criminal procedure. Those issues are matters of public interest that is substantial because of their importance nationwide to those concerned with this common law aspect of the administration of criminal justice.

48 It is true, as counsel for the Commonwealth Director of Public Prosecutions pointed out to me, that it is not certain that an application for a stay will be made, although I consider that one is highly likely. I have also noted that, if such an application is made, it is not clear that the conflict between Bourke (supra), on the one hand and Duncan and Stanley (supra), on the other, will be addressed. However, in view of the likelihood that such an application for a stay will be made and the possibility that the conflict will be addressed, weighed with the importance of the legal issues that conflict raises, it seems to me that matter of legal and public significance is involved in these proceedings such as to make applicable the characterisations in those respects in DPP v Esso (supra).

49 Furthermore, there is no doubt that the prosecutions are of substantial significance to the parties involved, carrying as they do a significant gaol term for the individuals concerned. It is not, however, evident to me that the matter is of substantial significance to other parties affected to which Cummins J was referring in DPP v Esso at [7]. As I have noted, that case involved prosecutions arising out of a disaster at the Longford gas plant in Victoria. I was told that the matters alleged in the Western Australian proceedings have been the subject of media and public interest in this State. I was also reminded that Salmat is a national concern, and I was told it is a wholly owned subsidiary of a publicly listed company that had made an announcement about the prosecutions in this State to the Australian Stock Exchange. The client whose mailings were involved here was this State's largest utility, Western Power. However, Cummins J in DPP v Esso appeared to conclude that the substantial public interest should not be equated with the "quantum of publicity", and in any event it seems to me that the matters in issue here are not readily to be equated, in terms of publicity or their impact on affected third parties, with the Longford gas disaster.

50 At the same time, I must continue to remind myself of the breadth of discretion conferred by s 76 of the District Court Act. It seems to me that it is not essential that the prosecutions have substantial significance for third parties, at least in the DPP v Esso sense. This is particularly the case in respect of a legal issue of the sort represented by the conflict of authorities in relation to a stay of prosecution on which I have focussed.

Factors engaged by an application for a stay on the basis of alleged abuse of prosecutorial discretion

51 I was referred to the possibility of an application on this basis by one of the accused, Ward, in respect of the prior proceedings against him in Victoria to which I have already referred. Reference would be made in that application to the discussion in Lipohar v The Queen (1999) 200 CLR 485 at [125] and [126], per Gaudron, Gummow and Hayne JJ of the power of a court to deal with an injustice that might arise out of proceedings in more than one State in respect of one course of conduct. While the conduct relied upon in the Victorian proceedings was not the same conduct as that in the Western Australian ones, involving, as the conduct in this State did, a different physical location and mailing clients as I have indicated, the modus operandi was the same, and the charges so far as Mr Ward was concerned arose out of the same investigation and related to a period that is part of the corresponding one for the purposes of the proceedings in this State. It would be submitted that the discussion in Lipohar had been framed in broad terms, and reference would also be made to the discussion in R v Carroll (2002) 194 ALR 1 (at [36] - [47], per Gleeson CJ and Hayne J) of the principle, from Rogers v The Queen (1994) 181 CLR 251 (at 273 per Deane and Gaudron JJ), of "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct". The issues in the foreshadowed application would be difficult ones upon which there was a lack of high authority other than those just referred to. They were also issues of considerable importance for prosecutions arising out of national criminal investigations.

52 I have noted that the considerations raised here are limited to just one of the accused, Ward. However, they go in my view to further matters of legal significance whose "inherent nature" is at least arguably of substantial legal and public interest. They go to reinforce my view that this is an appropriate case for the exercise of the discretion in s 76.

53 In these circumstances, I have concluded that this is an appropriate case for the exercise of my discretion under s 76 of the District Court Act to transfer this case from the District Court to this Court.

54 There are issues of substantial significance to the parties, that have the potential to raise matters for which authoritative resolution would be particularly appropriate, matters that are of substantial public interest. The transfer is not shown as likely to produce any significant delay in the trial process. The other issues in the trial are of a complexity making them suitable for adjudication in this Court, if not only in this Court.

55 I will hear from the parties as to the appropriate form of the orders that should be made in light of these reasons.