Supreme Court of WA|2006-04-12|Before: McKechnie J

Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2006] WASC 65 (12 April 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD & ORS -v- THE QUEEN [2006] WASC 65

BETWEEN : SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD

Criminal law and procedure - Stay of indictment - Interests of justice - Double jeopardy - Delay in prosecution - Documents missing - Tainted witnesses - Whether a fair trial can be had

First-Named Applicant : Mr T J Game SC & Mr M B J Lee

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

Fourth-Named Applicant : Mr A J Howard QC & Mr M O'Connell

Respondent : Commonwealth Director of Public Prosecutions

Bankinvest v AG v Seabrook (1988) 14 NSWLR 711

BHP Billiton Ltd v Shultz [2004] HCA 61; (2004) 79 ALJR 348

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334

Commonwealth Service Delivery Agency v Bourke [1999] SASC 154; (1999) 75 SASR 299

Connelly v DPP [1964] AC 1254

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

Garrett v The Queen [1977] HCA 67; (1978) 139 CLR 437

Hunter v Chief Constable West Midlands Police [1981] UKHL 13; [1982] AC 529

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

Lipohar v The Queen (2000) 200 CLR 485

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Mickelberg v The Queen (No 3) (1992) 8 WAR 236

R v Salmat Document Management Solutions Pty Ltd & Ors [2005] WASC 232

Re Chapman & Jansen (1990) FLC 92-139

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

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

Rogers v The Queen (1994) 181 CLR 251

Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268

VIM v The State of Western Australia [2005] WASCA 233

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Director of Public Prosecutions v Byrne [1991] RTR 119

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Green v United States [1804] USSC 11; (1957) 355 US 184

Green v United States [1958] USSC 54; (1958) 356 US 165

Grofam Pty Ltd v Australia & New Zealand Banking Group Ltd (1993) 116 ALR 535

Herron v McGregor (1986) 28 A Crim R 79

House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Hunter v Chief Constable of the West Midlands Police (Birmingham Six case) [1981] UKHL 13; [1982] AC 529

Mraz v The Queen (No 2) [1956] HCA 54; (1956) 96 CLR 62

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173

Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636

1 There is pending in this Court an indictment charging Matthew James Hall, Nicholas John Aldridge, Patrick Joseph Ward and Salmat Document Management Solutions Pty Ltd as follows:

"1. Between on or about 1 January 1995 and 18 September 1998 at Perth in the State of Western Australia SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 83(1) of the Proceeds of Crime Act 1987.

2. Between on or about 1 January 1995 and 1 September 1995 at Perth in the State of Western Australia MATTHEW JAMES HALL was knowingly concerned in the commission of an offence against a law of the Commonwealth by SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD namely, that between on or about 1 January 1995 and 18 September 1998 SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 5(1) of the Crimes Act 1914 and section 83(1) of the Proceeds of Crime Act 1987.

3. Between on or about 2 September 1995 and 30 June 1997 at Perth in the State of Western Australia NICHOLAS JOHN ALDRIDGE was knowingly concerned in the commission of an offence against a law of the Commonwealth by SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD namely, that between on or about 1 January 1995 and 18 September 1998 SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 5(1) of the Crimes Act 1914 and section 83(1) of the Proceeds of Crime Act 1987.

4. Between on or about 1 January 1995 and 18 September 1998 at Perth in the State of Western Australia PATRICK JOSEPH WARD was knowingly concerned in the commission of an offence against a law of the Commonwealth by SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD namely, that between on or about 1 January 1995 and 18 September 1998 SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD engaged in organised fraud, contrary to section 5(1) of the Crimes Act 1914 and section 83(1) of the Proceeds of Crime Act 1987."

2 There is a circularity in the indictment and the law. The principal charge is against Salmat for engaging in organised fraud.

3 The Proceeds of Crime Act 1987 (Cth) s 83(2) defines "organised fraud" as conduct:

"(a) that constitute three or more public fraud offences;

(b) from which the person derives substantial benefit."

4 As the law then stood under the Crimes Act 1914 s 29D:

"A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence."

5 As the law then stood under the Crimes Act s 5(1):

"Any person who ... is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth ... shall be deemed to have committed that offence and shall be punished accordingly."

6 Hall, Aldridge and Ward are said to be accessorily liable by being knowingly concerned in Salmat's offence. However, in order to prove Salmat's engagement in organised fraud, it is necessary to prove that each of Hall, Aldridge and Ward committed fraud because these are the three public fraud offences necessary under s 83(2). It is not contended that they received any direct personal benefit so it is said that the benefit obtained by Salmat was the substantial benefit making it liable under the Proceeds of Crime Act s 83(2)(b). (There was a suggestion by the prosecution that each man received an indirect benefit but having regard to the Salmat Group Incentive Scheme [Exhibit 1 in the proceedings] I ignore that suggestion).

7 Salmat as the principal is vicariously liable for the state of mind in respect of the conduct and the conduct of Hall, Aldridge and Ward: Proceeds of Crime Act s 85.

8 Hence there is a symbiosis among the charges. Salmat is said to be guilty of organised fraud because of its vicarious liability for the acts of its three employees who in turn are knowingly concerned in the organised fraud by each committing separate frauds themselves.

Outline of prosecution case: The principal allegations

9 The prosecution has filed a comprehensive summary of the prosecution case.

10 In the outline the allegations that the prosecution would seek to prove beyond reasonable doubt at trial are as follows. Salmat conducted a national business printing and packaging large bundles of letters on behalf of clients. Salmat then delivered the bulk mail to Australia Post ("AP") for delivery to the addressees. Salmat's bulk mail business was conducted in Western Australia at Osborne Park.

11 Salmat engaged a State Manager who was responsible for the bulk mailing business. During the period covered in the indictment the State Managers were, consecutively, Hall, Aldridge and Ward. Other employees, now substantial prosecution witnesses, were Luigi Bellino the Production Manager; Lynette White the Postal Clerk and; Thanh Doan the Job Costing Officer.

12 A major Salmat client was Western Power Corporation (Western Power) who used Salmat's bulk mailing business on a daily basis to print electricity bills and pamphlets, package the material into envelopes to be delivered to customers and lodge the letters with AP for delivery.

13 Western Power would courier an electromagnetic tape to Salmat. The electronic data on the tape was used to print the material. An intelligent sorting machine then placed the correct material into envelopes for each addressee. Records were kept at these stages.

14 The letters were sorted by Salmat to take advantage of discounts offered by AP under its National Pre-Sorting Plan. Essentially, the mail was pre-sorted into postcodes.

15 Salmat reported back to Western Power and forward to AP as to the mail prepared. Each checked the report. Western Power checked against its records. AP used calculations based on weight to determine the approximate total of letters in the lodgement.

16 From about 15 May 1995 to 18 September 1998 Salmat lodged certain "Direct Bags" of "small" Western Power letters with AP under cover of Mailing Statements in which Salmat under declared to AP the number of letters in the lodgements with the intention of defrauding AP of postage fees payable on the undeclared letters.

17 The fraudulent under declaration of Western Power mail was effected on instructions from Hall, Aldridge and Ward. In or about January 1995, Ward, who was Salmat's State Manager in Victoria at the time, attended at Salmat's bulk mailing business in Perth and instructed Salmat's postal clerk, White, to effect under declaration to AP of the numbers of letters in large lodgements of mail. Ward provided White with a pro-forma "pink sheet" and instructed her to commence recording the under declaration of mail to AP on the "pink sheet" showing the true number of letters invoiced to the client and the false number of letters declared to AP. Ward also instructed White to commence keeping a written record of the under declaration of mail to AP in an exercise book. Shortly afterwards Hall provided White with written "guidelines" containing instructions on how to effect the under declaration of mail to AP by mis-stating certain aspects of the weight of the lodgement. Hall also provided White with a Victory exercise book with instructions to use it for keeping a written record of the numbers of undeclared letters and the amount of money "saved" as a result of the under declaration of mail to AP by recording the relevant information in the exercise book in columns. White commenced keeping a written record of the under declaration of mail to AP in the Victory exercise book. I interpose to note that the exercise book is a crucial part of the prosecution case and is relied upon to prove the frauds.

18 About 15 May 1995 White commenced under declaring mail in accordance with the instructions and directions of Ward and Hall. Soon AP detected particular instances of under declaration of mail and queried White. Hall instructed her to cease the under declaration of mail to AP in accordance with the instructions in the "guidelines" and to revert to the previous practice of simply under declaring the numbers of letters in large lodgements of mail by "a few hundred" and to continue keeping a written record of the under declaration in the "pink sheets" and the exercise book.

19 About 2 September 1995 Aldridge replaced Hall as the WA State Manager of Salmat's bulk mailing business in Perth. Aldridge instructed White to continue the fraudulent under declaration of Western Power mail.

20 In early 1997 AP was having problems with its procedure for checking the accuracy of statements by Salmat in Mailing Statements declaring the number of letters in "mixed mass lodgements" of Western Power mail.

21 This problem was dealt with as follows. During early 1997 conversations occurred between AP and Salmat personnel concerning the problem, including conversations between AP's account manager for Salmat, Aldridge and Bellino. The AP account manager enquired whether Salmat could provide a breakdown of the weight and the total number of each component of Western Power "mixed mass lodgements" (envelopes, pamphlets, sheets of A4 paper used to print bills) for the purpose of more precisely checking the accuracy of the number of letters declared by Salmat in the accompanying Mailing Statements by calculating the overall weight of the lodgement and comparing it against the actual weight.

22 Bellino advised Aldridge that the information requested by AP could be obtained from the Material Utilisation Report produced by the Intelligent Inserting Machine used to package the Western Power bills and pamphlets into envelopes. Bellino advised Aldridge that he believed that he could devise a form for providing the information to AP that could be utilised to facilitate the fraudulent under declaration of Western Power mail by overstating the number of A4 pages and/or pamphlets in a lodgement, thereby increasing the apparent weight of that component of the lodgement, and then understating the number of envelopes by a corresponding weight. He advised Aldridge that, by dividing the weight of the overstated amount of A4 pages and/ or pamphlets by the weight of a single envelope and then subtracting the result from the number of envelopes actually used in the lodgement, the form could be utilised to understate the number of envelopes in the lodgement. By understating the number of envelopes in the lodgement, the form could be utilised to under declare the number of letters in a Mailing Statement because the understated number of envelopes in the form would be consistent with the under declared number of letters in the Mailing Statement.

23 Aldridge agreed with Bellino's proposal to devise the form to facilitate the fraudulent under declaration of Western Power mail to AP and instructed him to proceed with the proposal.

24 AP agreed to Salmat using the Bills Run Summary Form in conjunction with the Mailing Statement form when making mixed mass lodgements of Western Power mail. Aldridge and Bellino agreed to "trial" the Bills Run Summary Form for 2 weeks by suspending the fraudulent under declaration of Western Power mail to ascertain whether AP would accept the information in the form without physically checking the number of letters in the lodgements.

25 Bellino ascertained that AP employees were accepting at face value the information in the Bills Run Summary Form and advised Aldridge accordingly. Aldridge authorised the use of the Bills Run Summary Form by the production manager to facilitate the fraudulent under declaration of Western Power mail.

26 From conversations with Bellino and White, Aldridge was aware of the commencement and continuing utilisation of the Bills Run Summary Form in the fraudulent under declaration of Western Power mail and did not withdraw his authorisation of the practice.

27 In June 1997, Ward replaced Aldridge as the WA State Manager of Salmat's bulk mailing business in Perth. Bellino advised him of the fraudulent under declaration of Western Power mail and Ward approved continuation of the practice which ceased after about 18 September 1998.

28 The indictment was originally filed in the District Court but even before it had been filed, the committal proceedings were subject to litigation: Re Grinter Ex parte Hall [2004] WASCA 79; (2004) 28 WAR 427.

29 Following the presentation of the indictment, the four accused applied for the matter to be remitted to the Supreme Court under the District Court of Western Australia Act 1969 (WA) s 76. Over objections from the prosecution they were able to persuade a Judge to transfer the case to the Supreme Court: Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268.

30 By applications dated 7 April 2005 the accused Ward, Hall and Aldridge, and by application dated 8 April 2005 Salmat, applied for orders that the proceedings be stayed permanently pursuant to the Criminal Procedure Rules 2000.

31 Various direction hearings followed, involving the setting of timetables and the disposition of applications for production of documents: R v Salmat Document Management Solutions Pty Ltd & Ors [2005] WASC 232.

32 The applications involved 5 days of argument commencing on 24 October 2005 at the conclusion of which I reserved my decision.

33 Each application was supported by affidavit. The affidavits were formally read into evidence and in addition exhibits were tendered. In response to requests the prosecution produced a number of charts outlining its case with particular reference to the exercise book.

The legal basis for the application: the interests of justice

34 The applications were brought under the Criminal Procedure Rules 2000 s 25.

35 The Criminal Procedure Rules 2000 were repealed following the lodging of the applications but before the first hearing. Where there is a change in the procedure to be followed at trial, the Court decides the matter according to the law as it currently stands: Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 521; VIM v The State of Western Australia [2005] WASCA 233. I propose to deal with the application on the basis of the Criminal Procedure Act 2004 (WA) s 90 on the basis that that Act and the Rules which are made under it govern subsequent proceedings on the indictment.

36 The Supreme Court has always had an inherent power to regulate its own proceedings so as to prevent its processes being abused: Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334. This power includes a power to stay proceedings on an indictment permanently, or temporarily, as the circumstances may dictate. The inherent power was implicitly recognised by Parliament under repealed provisions of the Criminal Code which granted the prosecution a right of appeal against an order staying an indictment.

37 The power is now encompassed in s 90 of the Criminal Procedure Act 2004 which invests the Court with power to permanently stay an indictment if it is in the interests of justice to do so. If the interests of justice dictate then the Court has a duty to stay the indictment: by analogy Hunter v Chief Constable West Midlands Police [1981] UKHL 13; [1982] AC 529. There is no practical difference between the exercise of a duty and the exercise of a discretion in these circumstances. There is an evidential burden on an applicant seeking the exercise of the power because in the normal course an indictment will proceed to trial.

38 The power given to superior courts under s 90 of the Criminal Procedure Act is wider than the power given to the Magistrates Court under s 76, that latter power being limited to a stay for abuse of process.

39 The power in s 90 certainly encompasses abuse of process. Clearly it is in the interests of justice to stay an indictment which is an abuse of process. However, the power given is wider than examples of abuse of process and may be exercised in an appropriate case whether or not the proceedings can be characterised as an abuse of process. The outer limits of such a power are not matters necessary for me to resolve. Clearly, the identification of the interests of justice cannot subjectively relate to an individual Judge's own conception as to where the interests of justice may lie. However, it may not be possible to set out exhaustively the reasoning process which may lead a Judge to conclude that the interests of justice require that an indictment be stayed. The interests of justice in a particular case may be no more than a conclusion made after ascribing weight to a whole range of factors.

40 I do not consider that the power enables a Judge to stay a case that the Judge regards as weak or tenuous. In Doney v The Queen [1990] HCA 51; (1991) 171 CLR 207 the High Court denied power for a trial Judge to uphold a submission of no case to answer and direct a verdict of acquittal on the basis that the evidence was weak or tenuous even if the Judge sitting on appeal might regard a verdict of guilty upon the evidence as unsafe and unsatisfactory. The decision in Doney manifests the strong principle in Australian jurisprudence that in indictable matters the function of the jury as fact-finder is paramount.

41 To stay an indictment in the interests of justice it is not necessary to conclude that there is no case to answer or that the case is foredoomed to fail. There is a separate power to adjudicate those questions before trial: Criminal Procedure Act s 98(2)(c). In this respect I consider that the alteration of the law by s 98(2)(c) makes the case of Lam (1998) 100 ACrim R 188 distinguishable.

42 In deciding whether the interests of justice require a stay of an indictment a Judge should be careful not to stray beyond a proper judicial role. The institution and continuation of judicial proceedings is a wholly executive function. The Director of Public Prosecutions Act 1983 (Cth) authorises that function to be carried out by the Director. The distinction is made plain in Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514.

43 The other members of the majority (Gaudron and Gummow JJ) at 534 considered that there are certain decisions involved in the prosecution process that are, by their nature, insusceptible of judicial review. They added two qualifications, the second being that, of necessity, a court always retains power to prevent abuse of its process, including its criminal process (at 535). Although I have reached the conclusion that the concept of interests of justice under s 90 is wider than the concept of abuse of process as understood in the common law, nevertheless it seems wise to acknowledge and carefully segregate the limited nature of the jurisdiction I am called upon, or a Judge is called upon, to exercise. A Judge is not a Director of Public Prosecutions. It is not enough for a Judge to conclude that were he or she to exercise the prosecutorial discretion, in accordance with published prosecutorial guidelines, an indictment would not be presented or would be discontinued. A Judge can only exercise the power if satisfied that the processes of the Court, having been invoked, cannot continue in the interests of justice.

44 The classification of a case as weak may nevertheless be relevant. It may be that a combination of factors, including the weakness of a particular case, is sufficient to cause a Judge to conclude that in the interests of justice the indictment should be permanently stayed.

45 When a Judge has not seen or heard witnesses then it will ordinarily be difficult to classify a case as strong or weak. In the present case, there are some inconsistencies apparent in the evolving statements of White and Bellino. Furthermore, there are errors in the exercise book.

46 In crucial respects the prosecution case will depend upon the oral testimony of White and Bellino who speak of incriminating conversations with Hall, Aldridge and Ward. Both White and Bellino are accomplices and it is likely that their evidence will attract a warning to the jury about the special need for care in relying upon their evidence. The exercise book is not evidence independent of White. Other documents may confirm the accuracy of the entries in the exercise book and to that extent may corroborate the fact of under lodging. But there is no independent evidence of the incriminating conversations that White and Bellino have set out in their statements. In places the statements contain assumptions and conclusions about important matters.

47 I do not regard the prosecution case as strong because of the matters I have just listed. However, bearing in mind the paramount role of the jury, I give little weight to this factor in my evaluation of the interests of justice.

48 The phrase "interests of justice" appears in many statutes and is a phrase often referred to by Courts. The interests of justice arise in many contexts. In relation to cross-vesting jurisdiction the Full Court of the Family Court in Re Chapman & Jansen (1990) FLC 92-139 said per Nicholson CJ at 77,959:

"In my view the expression 'the interests of justice' is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred."

See also Bankinvest v AG v Seabrook (1988) 14 NSWLR 711.

49 BHP Billiton Ltd v Shultz [2004] HCA 61; (2004) 79 ALJR 348 is another case where the phrase "interests of justice" was considered in respect of cross-vesting legislation. As Kirby J held at [172] the determination of the interests of justice is a power that involves the judicial evaluation of a number of factors. It requires an ultimate judicial decision framed in terms of criteria expressed in very general language.

50 In a matter somewhat closer to the present case, in that it concerned criminal proceedings, Malcolm CJ referred to the interests of justice in Mickelberg v The Queen (No 3) (1992) 8 WAR 236 at 251 and said:

"The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice."

51 The ascertainment of truth through criminal proceedings on indictment may come at too high a price. In a somewhat different context, that of legal professional privilege, in Pearse v Pearse [1846] EngR 1195; (1846) 1 De G & Sm 12; 63 ER 950 Vice-Chancellor Sir J L Knight Bruce at 957 of the English Reports said:

"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination, nor probably would the purpose of the mere disclosure of truth had been otherwise than advanced by a refusal on the part of the Lord Chancellor in 1815 to act against the solicitor who, in the cause between Lord Cholmondeley and Lord Clinton, had acted or proposed to act in the manner which Lord Eldon thought it right to prohibit. Truth, will like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much."

52 Judges have a discretion to reject evidence that is unlawfully or unfairly obtained. This objection arises from the public interest because convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price: Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 73. In general, the public interest as referred to in Bunning v Cross seems to me to be coterminous with the interests of justice.

53 In the present case, it is not suggested that the DPP has acted unlawfully but clearly questions of unfairness are implicit and explicit in the submissions made by the applicants. It is submitted that the delay in this case is prejudicial although any assertion that the delay was deliberate or tactical is disclaimed.

54 The proper approach to take is that a Judge hearing an application under s 90 of the Criminal Procedure Act 2004 is not constrained to find that a continuation of the proceedings would be oppressive or an abuse of process. The Judge is given a discretion in terms of the widest possible ambit to decide to stay a charge if it is in the interests of justice to do so. The "interests of justice" is not susceptible of any precise definition. The content of the interests of justice can only be given form by the facts of a particular case. Illustrations from other cases where courts have decided that the interests of justice either do or do not require a stay have limited utility and almost no precedential value. Above all the touchstone is fairness. This involves fairness both to the prosecution and the defence. Fairness is relative and the Courts recognise that some trials may never be completely fair. Even Parliament has acknowledged this: Evidence Act 1906 (WA) s 31A. However, the touchstone remains fairness.

55 In dealing with the matters raised by the applicants I have assumed that there will be a joint trial. Were the matter to proceed I imagine there will be applications for separate trials but I ignore this for present purposes.

56 In summary, the applicants all point to the inordinate delay as leading to a conclusion that no fair trial can now be had. In addition to the prejudice of delay, they submit documents that might have been available to support their case are missing or have been destroyed as part of a normal disposal schedule by AP, Western Power and Salmat. I find the delay and conduct of the proceedings is such that Salmat is entitled to rely on its disposal schedule. There is no evidence that documents were deliberately destroyed when charges were imminent.

57 The delay affects the reliability of witnesses' memories and denies the opportunity to contradict witnesses, particularly White, Doan and Bellino with contemporaneous statements.

58 The applicants submit that White and Bellino at least are accomplices and that no direction or warning can be crafted to deal with their evidence.

59 The applicants submit that there are inconsistencies apparent in the statements of White and Bellino.

60 Ward and Salmat also make a submission about double jeopardy.

61 The conclusion I reach is that the interests of justice require that the indictment is stayed permanently. I shall explain why.

Proceedings in the nature of double jeopardy: The background

62 This is a submission made on behalf of Ward, and necessarily, because of its derivative liability, on behalf of Salmat. The submission is not open to Aldridge or Hall.

63 In 1998 the Australian Federal Police ("AFP") commenced Operation Crenel. Federal Agent Jambrich was the designated Case Officer. Two companies were under investigation, one of which was Salmat. Search warrants were executed in 1998 and 1999 over Salmat and the homes of its staff in Victoria, South Australia, Queensland, New South Wales and Western Australia.

64 Ward was charged with two other men in Victoria with being knowingly concerned with a fraud pursuant to the Crimes Act: s 29D. Salmat was not charged. There was some delay in bringing the applicant Ward to trial in Victoria. He was committed for trial after a hearing on 7 June 2000 but subsequently another person was charged and proceedings on indictment were delayed until the committal proceedings were finalised. The timeframe for the fraud pleaded in the Victorian indictment was between 15 September 1995 and 30 June 1998. I interpose to observe the timeframe of the Victorian indictment is within the timeframe of the Western Australian indictment and includes the time when Ward was in Western Australia.

65 The trial commenced on 20 March 2002 in the County Court.

66 As the trial progressed it appeared that there was a large number of documents of relevance which had not been disclosed to the accused. On 29 April 2002 Ward was acquitted by direction.

67 A principal witness for the prosecution was Bellino whose evidence alleged fraudulent conduct concerning Salmat in Victoria and Western Australia with particular reference to the conduct of Ward. White gave evidence at the committal hearing broadly in accordance with her proposed testimony in these proceedings.

68 The reason why the trial collapsed was non-disclosure by the Crown. During the course of the trial, on 23 April 2002, a witness Margaret Allan gave evidence that once mail had been sorted into sort categories production staff would enter the quantities in a sort category onto a tally sheet. She referred to other documents used by production staff on which the quantity of mail to be lodged was recorded. These documents had not previously been disclosed to the defence. Approximately 200 job bags comprising tally sheets and production documents containing counts were then made available to the defence. As a result of this development the prosecution led no further evidence leading to the acquittal.

69 The possibility of proceedings in Western Australia was clearly live from an early stage. On 8 November 1999 Ward's solicitors were advised by the AFP that it was proposed that Ward be charged with defrauding AP in Western Australia. On 21 July 2000 Ward's solicitors wrote to the DPP saying, inter alia, "it would be undesirable for Mr Ward to be compelled to defend himself on two fronts and accordingly the prosecution of any charges in Western Australia should be deferred". Ward was not charged with the present offence until 11 March 2003, nearly 12 months after his earlier acquittal.

70 The applicants submit that the allegations at the heart of the Victorian and Western Australian proceeding is that of fraud on AP covering a very similar timeframe and relating to similar actions. There are different witnesses but there are also important witnesses in common.

71 The dates on both indictments include periods when Ward was living and working permanently in the other State. In respect of the Victorian indictment spanning 2 years and 9 months, Ward lived and worked for 12 months in Western Australia. In respect of the West Australian indictments spanning 3 years and 9 months, except for that 12 month period, Ward lived and worked in Victoria for 2 years and 6 months of that period.

"Carrying on from Melbourne where there had been a culture of cheating Australia Post I knew that Patrick [Ward] expected us to make profits by cheating Australia Post in Perth. There was never any direction from Patrick Ward to stop this practice. I believed there was a culture of cheating Australia Post within the whole Salmat organisation."

73 The prosecution case in Western Australia relies on the "X factor" memorandum and intercepted telephone calls. Other Crown evidence proposed is that of White who was at all times in Western Australia but said she was given a copy of "the pink sheet" and told by Ward that this was the form that was used in Victoria to record under lodging and that quantities under lodged should be recorded in an exercise book.

74 Evidence relating to the X factor memorandum and evidence of certain conversations Bellino had with Ward was led in Victoria. The prosecution was refused leave to lead other evidence relating to Western Australia.

75 It is I think accepted by the applicants that a strict autrefois acquit cannot arise. This is undoubtedly right. The allegations in relation to Victoria and Western Australia, while having many common elements, are themselves different. A conviction - or as in this case an acquittal - of the applicants on an indictment alleging a precise form of fraud in Victoria cannot, as a matter of law, be pleaded as an answer to the West Australian indictment.

76 The applicants' argument is however broader in scope and focuses particularly on the interests of justice.

77 There is a national character to the proceedings. The offences both under the Crimes Act in Victoria and under the Proceeds of Crime Act in Western Australia are Federal offences. The matter was investigated by the AFP and is prosecuted by the Commonwealth DPP.

78 One central premise which the applicants advance is that a stay should be ordered, in part, because the Federal authorities had it within their power to deal with the whole matter once and for all. It seems to be accepted that the only way of dealing with the whole matter was by way of an indictment for conspiracy or something similar. I say "something similar" because it would be possible to charge a company with organised fraud selecting as particulars discrete frauds in different parts of Australia.

79 Essentially, the submission of Ward is that the solution for the DPP to avoid charging and conducting a second trial of the applicants was to have proceeded against the applicants on a single count of conspiracy to defraud AP encompassing the relevant conduct of the applicants and others from any part of Australia.

80 At first sight this submission appears to fly in the face of the authority of decisions such as R v Hoar [1981] HCA 67; (1981) 148 CLR 32 where in a joint judgment of Gibbs CJ, Mason, Aickin, Brennan JJ at 38:

"... Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed."

"... We have a long tradition of resistance to double jeopardy and double punishment. Dangers of these arise when commission of offences and of conspiracy to commit those offences (or offences including those offences) is charged."

82 In the Schedule to the Criminal Code Act 1995 (Cth) it is provided:

(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. ..."

This is undoubtedly to give effect to the principle underlying Hoar. There is a need for caution such as to require the personal attention of the DPP.

83 Ward supports the submission by relying upon Connelly v DPP [1964] AC 1254. It is said that the Connelly principle is that as a general rule where offences of the same or similar character could have and should have been drawn in one indictment, in the absence of any special circumstances, sequential prosecutions for those offences should, in the interests of justice, be stayed as an abuse of process.

84 In my opinion, the true question is not whether a conspiracy charge may have been appropriate but whether laying separate charges in Victoria and Western Australia was plainly inappropriate and has led to an injustice of the type requiring intervention in the form of a permanent stay. This is not merely a semantic difference. A course of conduct may give rise to a number of potential offences and the selection of the charges is a matter entrusted to the DPP. A conspiracy charge would have been inappropriate. A conspiracy involving all the alleged criminal conduct throughout Australia would have been very unwieldily. There may have been many defendants and the documentary and other evidence would have expanded exponentially. Moreover, there are likely to be constitutional difficulties in such a course: Constitution s 80:

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

85 Parliament has so prescribed: Judiciary Act 1903 (Cth) s 70:

"Offences committed in several States

When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein."

86 Whether a conspiracy indictment would be able to proceed under s 70 of the Judiciary Act is speculation. My reference to the Constitution is simply to lend force to the view that the submission that the indictment as framed is inappropriate should be rejected. See also Lipohar v The Queen (2000) 200 CLR 485.

87 The second submission advanced by the applicant Ward relates to the proceedings in Victoria. Those proceedings ended in an acquittal. The principles are deceptively simple.

88 In Garrett v The Queen [1977] HCA 67; (1978) 139 CLR 437 evidence was led in Garrett's trial that he had been charged with raping the prosecutrix and acquitted. The Judge said that the acquittal on the earlier charge was a neutral fact and no inference could be drawn from it for or against the applicant or the prosecutrix. Barwick CJ with whom Stephenson, Mason and Jacobs JJ agreed said at 445:

"The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds."

"... If any evidence is inconsistent with a previous acquittal, then that evidence is inadmissible against the accused. Even if the evidence is consistent with the acquittal, it should be excluded on the grounds of fairness if the circumstances require it."

90 In R v Storey [1978] HCA 39; (1978) 140 CLR 364 the High Court by majority (Stephen, Mason, Jacobs and Aickin JJ) (Barwick CJ, Gibbs and Murphy JJ dissenting) held that a conviction for rape following an acquittal on a charge of forcible abduction could not stand. The Court reached its conclusion for different reasons. A majority of the Court held that issue estoppel is not applicable to criminal proceedings.

91 I note a formal submission by counsel for Salmat that issue estoppel does apply in criminal proceedings contrary to R v Storey.

92 In Rogers v The Queen (1994) 181 CLR 251 the majority of the Court (Mason CJ, Deane and Gaudron JJ) (Brennan and McHugh JJ dissenting) held that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The majority decided the case on the basis of abuse of process. Mason CJ considered at 255:

"The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law.

...

The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories."

93 Deane and Gaudron JJ both decided the case on the basis of abuse of process.

94 In R v Carroll (2002) 213 CLR 635 the respondent was charged with perjury. The alleged perjury being his sworn evidence at a trial for murder that he had not killed the victim. He had been convicted of murder but on appeal the conviction had been quashed and a verdict of not guilty entered.

95 The High Court held that the perjury indictment was an abuse of process and should have been stayed by the Judge. The prosecution had sought to controvert the acquittal on the charge of murder given that the charge of perjury raised the same ultimate issue as that which had been raised in the trial. The issue was whether the indictment was an abuse of process.

96 Gleeson CJ and Hayne J in a joint judgment said:

"[47] Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.

[48] To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.

...

[50] Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z , R v Arp and R v Degnan are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial."

I interpose to emphasise the words "not necessarily" in [50].

97 Gaudron and Gummow JJ in a joint judgment discussed the exercise of the power:

"[73] The power to stay is said to be discretionary. In this context, the word 'discretionary' indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. ..."

98 I do not consider that Salmat and Ward are in jeopardy again for the same conduct. However, the intertwining of the evidence of White and Bellino in the two cases raises acutely the issue adverted to in the authorities. The High Court accepts that a stay may be inappropriate if a fair trial can be achieved while acknowledging the full weight of the acquittal. This may be so where there is the possibility of crafting appropriate directions to deal with evidence led in both trials. In the present case, beyond suggesting that it was possible, counsel for the Crown did not provide any form of direction.

99 I do not think it is possible to separate the evidence of White and Bellino from the acquittal in the Victorian case. No direction I can contemplate would be sufficient to explain to the jury how the evidence of White and Bellino given in this trial can comfortably sit with the full weight that must be given to the acquittal.

100 The present proceedings fall short of the strict principle of double jeopardy. However, to continue the proceedings will mean that Ward is deprived of the full force and effect of his Victorian acquittal. The evidence of Bellino and White will necessarily impugn the effect of the acquittal because their evidence is in substance that Ward was guilty of the same type of fraud in Victoria. No direction to a jury is capable of remedying or explaining how the evidence and the acquittal can stand together.

101 Apart from other reasons relating to delay and missing documents I would stay the indictment against Salmat and Ward in the interests of justice for these reasons.

102 All four applicants base their applications in part on the question of delay. The Crown very properly conceded that there had been a prejudicial delay although it submitted that the delay was not of the order to justify a stay of the indictment.

103 The effect of delay on a criminal trial is both well-known and troubling. Every trial, and certainly every criminal trial, concerns events which occurred some time ago. A criminal trial is always a remembrance of things past and the effect of delay upon memory is common knowledge. But mere delay is unlikely of itself to justify a stay of the proceedings. A court has a number of options to try to overcome any unfairness that delay may bring.

104 The particular provisions of the Proceeds of Crimes Act and the Crimes Act under which this prosecution is brought do not have time limits for the bringing of a prosecution. Parliament does not prohibit, for reasons of unfairness, the bringing of a prosecution after a period of years. Nor can there be any general rule or rule of thumb about delay because the causes of delay are many and various. A crime may lay undiscovered for a long period. A complex matter may require a lengthy investigation. Where a matter depends chiefly on the evidence of witnesses whose memories may be affected by delay the potential for unfairness is obviously increased. Where a prosecution depends chiefly upon documents or other contemporary material it may be that a delay has comparatively little effect on the fairness of the trial process.

105 The issue of undue delay amounting to abuse has been the subject of considerable judicial scrutiny commencing conveniently with Jago v District Court of New South Wales especially per Mason CJ at 53; Deane J at 55 ff before setting out five matters at 60 - 61:

"(i) the length of the delay;

(ii) reasons given by the prosecution to explain or justify the delay;

(iii) the accused's responsibility for and past attitude to the delay; and,

(iv) proven or likely prejudice to the accused.

The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime."

106 In Jago, Gaudron J at 76 would confine the nature of the power to grant a permanent stay because it is a power to refuse to exercise jurisdiction.

107 Brennan J at 49 was of the view that by the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a Judge can virtually eliminate unfairness. With the greatest respect, Brennan J may paint too optimistic a picture of judicial skill in eliminating unfairness where delay has been so lengthy that important material no longer exists.

108 The views expressed in Jago by Deane J were endorsed by the majority in Walton v Gardiner (1993) 177 CLR 378.

109 A useful summary of the effect of delay can be found in Johannsen & Chambers [1996] QCA 111; (1996) 87 A Crim R 126. A majority of the Court (Fitzgerald P and Thomas J) allowed the appeal in respect of Johannsen. McPherson JA dissented.

"... there is a strong public interest in the prosecution of serious offences and the conviction of offenders. However, that proposition must be qualified; the public has a superior interest in ensuring that judicial processes are not abused, that accused persons' trials are fair to them (cf Dietrich [1992] HCA 57; (1992) 177 CLR 292; 64 ACrimR 176; Yuill (1993) 69 ACrimR 450, 452-453; O'Neill [1995] QCA 331; (1995) 81 ACrimR 458), that innocent persons are not convicted and that public confidence in the administration of justice is maintained."

111 To support this application, the AFP case notes were subpoenaed and eventually supplied. The relevant extracts are attached as a schedule to this judgment.

112 It is not part of the exercise of power under the Criminal Procedure Act s 90 that an indictment be stayed in order to punish or discipline the prosecution or the investigators. The touchstone is fairness of the trial process, not case management sanction.

113 The relevance of the case notes is two-fold. First, they demonstrate that there has been inordinate delay in circumstances where, in some cases, allegations of offences committed three years before the investigation commenced became allegations of offences eight years before charge for no reason connected with the need for further investigation.

114 Secondly, the case notes demonstrate that the delay was not contributed to by the applicants.

115 A Court has options other than a stay of the indictment. Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 is one such example. Significantly Longman was heard by the Court on 23 October 1989 just 11 days after the Court had handed down its decision in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. The Court did not hold that the facts in Longman gave rise to an abuse of process.

116 In Longman the delay between the first alleged offence and the trial was in the order of 25 years.

117 The decision of the High Court was principally concerned with the issue as to the need for a warning to be given by a trial Judge in the light of a statutory provision enjoining Judges against giving a warning about uncorroborated evidence unless the Judge was satisfied that a warning was appropriate in the circumstances. At 91 of the joint judgment of Brennan, Dawson and Toohey JJ said:

"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."

118 Deane J felt that the long effluxion of time was of significance. However, it would not suffice of itself to produce the consequence either that it was not open to the Judge to fail to be satisfied that a warning was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. Deane J decided the matter on particular facts of the case without, it seems to me, purporting to lay down any general proposition. McHugh J also decided the matter largely upon particular facts but said at 108:

Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2006] WASC 65

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (344 paragraphs)

Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2006] WASC 65 (12 April 2006)

Salmat Document Management Solutions Pty Ltd

Parties

Legislation Cited (8)

Cases Cited (28)