N
THE SUPREME COURT OF NEW SOUTH WALES
CRIMINAL DIVISION
NO 70007 of 1991
R -v- CHEUNG
BADGERY-PARKER, J.
THURSDAY 26 NOVEMBER 1992
REGINA v. CHEUNG YING LUN
JUDGMENT
(On
stay application)
HIS HONOUR: The accused Cheung Ying Lun also known as Garry Cheung is to stand trial in this court on 15 February 1993 upon an indictment charging that between 1 August 1988 and 12 May 1989 he was knowingly concerned in the importation into Australia of a quantity of heroin exceeding the commercial quantity.
The accused has applied for an order that all proceedings on the proposed indictment be permanently stayed. That application is rejected for the reasons following.
THE CROWN CASE
On 8 May 1989, the vessel "Nimos" berthed at the Glebe Island Container Terminal in Sydney. Its cargo included a freezer and a water heater, within which were concealed 148 blocks of high grade heroin with a total gross weight of approximately 50 kilograms.
The impending arrival of the drug had on 24 April 1989 been made known to the Australian Federal Police by one Cheung Siu Wah who had been a party to the export of the drug in December 1988 from Hong Kong by sea to Vanuatu and who had supervised its repacking and transhipment in Vanuatu.
The activities of those in Sydney who were to receive the drug and deal with local distributors were monitored by police. A controlled delivery of the drug by Cheung Siu Wah to those others took place on 12 May 1989 and those involved were arrested. Cheung Siu Wah, who seemingly was thought to have committed no crime in Australia, was allowed to return to Vanuatu. Following publicity in that country in relation to the drug seizure in Australia, he was arrested by Vanuatu police and charged with importation and possession of heroin in that country. He pleaded guilty and is now serving a term of imprisonment.
On the day of the arrests in Sydney, officers of the Royal Hong Kong Police, acting on information provided by Cheung Siu Wah and the results of their own investigations since 24 April, arrested the accused and three others, Cheung Wai Man, Ng Yun Choi and Fung Chi Kwong.
After his arrest and extradition to Australia, Ng Yun Choi pleaded guilty to a charge of conspiracy to import heroin, and was sentenced to a term of imprisonment which he is now serving. He gave evidence at the trial, in Sydney during 1991, of six men all of whom were eventually convicted of conspiracy. They were Cheung Wai Man (who had been extradited from Hong Kong) and Chan Kam Wah, Chi Tak Leung, Law Yat Kai, Tsui Lok Ping Tyrone and Law Chiu Chun all of whom had been arrested in Australia. Cheung Siu Wah also gave evidence at that trial.
The accused is a resident of Hong Kong where he was an officer in the Customs and Excise Service, holding the rank of Inspector. A major part of his work involved the accumulation of intelligence in respect of illegal drugs, and for that purpose the cultivation of informants. He was highly successful and had received several commendations. Ng Yun Choi, Cheung Siu Wah and Cheung Wai Man, known drug dealers, had all acted as his informants from time to time.
The Crown proposes to call both Ng Yun Choi and Cheung Siu Wah, and expects that their evidence will establish the following facts.
In about March 1988, the accused was made aware that Cheung Wai Man was in a position to provide in Hong Kong a very large quantity of heroin. His principals included Siu Lain and Ko Lo Wah, said to be members of a gang known as the Big Circle, who were bringing heroin into Hong Kong from China.
During 1988 the accused was in close touch with Cheung Siu Wah, a Hong Kong businessman. Cheung Siu Wah was involved, with one Lau Wah, in a project for the establishment of a garment factory in Vanuatu, to be staffed with immigrant labour from Mongolia, a province of China. The accused was contemplating an investment in that project with a view to his eventual retirement from government service. In August 1988, the accused proposed to Cheung Siu Wah that the latter participate with him in the export from Hong Kong and importation into Australia of a large quantity of heroin. He would be assisted by Ng Yun Choi and the heroin would be obtained through Cheung Wai Man. Generally the plan was that Cheung Siu Wah would use the cover of the proposed garment factory to transport the heroin to Vanuatu, from whence it was thought comparatively easy to bring it undetected into Australia. The accused would ensure safe passage through customs in Hong Kong. The details were developed at a series of meetings between the accused, Cheung Siu Wah and Ng Yun Choi. Ng Yun Choi originally acted only as informer, keeping the accused advised of the activities of Cheung Wai Man and Cheung Siu Wah, but was gradually called upon to play a more active part (indeed, ultimately, in about March 1989, he was admitted to the project with a share of the anticipated profits). It was he who arranged the purchase of a van in which the heroin would be concealed (according to the accused's plan) for the voyage to Vanuatu and the painting of the van with the name of the garment company (as directed by the accused); it was he who eventually took delivery of two consignments of heroin from Siu Lam and from Law Yat Kai, an associate of Ko Lo Wah; it was he who concealed it in the panels of the van; and it was he who drove the van to the loading area and into the container previously booked by Cheung Siu Wah. The accused co-ordinated these activities and the obtaining by Cheung Siu Wah of a cheque to enable the purchase of the van; but the Crown does not allege that he played any direct part in either the purchase of the van or its financing.
The ship left Hong Kong on or about 13 December 1988, a round-a-about voyage via Korea which would not bring it to Vanuatu before late February. In the meantime, Cheung Siu Wah travelled to Vanuatu to make arrangements for the collection of the cargo, the unloading of the van from the container and the heroin from the van, the eventual transport of the heroin suitably concealed to Australia, and its concealment in Vanuatu in the interim. Having made those arrangements, he returned to Hong Kong.
There followed a great deal of delay both in the arrival and unloading of the heroin in Vanuatu, and in the re-shipment of it from there to Australia. The cause seems to have been a combination of the coup attempt in Vanuatu and bad weather. Whatever the cause, it created a great deal of concern and uncertainty among the conspirators. In March and April 1989, there was a flurry of phone calls, and finally the accused directed Cheung Siu Wah (who had by then returned to Vanuatu) to go to Australia on 24 April 1989, evidently to placate the persons waiting there to receive the drugs. On arrival in Australia, Cheung Siu Wah went (as earlier noted) to the police, and it seems that even after the ship had arrived he further delayed delivery of the heroin to facilitate police surveillance and the conduct of investigations both here and in Hong Kong. The delays caused such concern to the accused (so contends the Crown) that on three occasions early in May (the first, the fifth and ninth) he made telephone calls to Cheung Siu Wah. Those calls were lawfully intercepted and recorded by the Australian Federal Police, and the transcripts of what was said are heavily relied on by the Crown to show the accused's guilty involvement.
Cheung Siu Wah was interviewed a number of times by police in Australia, but for some reason no statement was obtained from him until some months later, following his arrest by the Vanuatu police. Cheung Wai Man and Ng Yun Choi were both interviewed in Hong Kong soon after their arrest, and statements were obtained from them. Whether or not it was at that time Cheung Wai Man's intention to co-operate with the authorities and plead guilty, the fact is that he ultimately pleaded not guilty, and at his own trial he made a statement to the jury denying any involvement in or knowledge of the importation. The accused was interviewed by police in Hong Kong on two occasions but made no admissions.
THE FORESHADOWED DEFENCE
The resolution of the stay application would have been assisted had counsel for the accused chosen to place before the court a complete and precise statement of the line of defence. He has not chosen to do so, and given that the law imposes no obligation on any accused person to make any disclosure whatsoever (except in relation to alibi), it would have been inappropriate for the court to press him to do otherwise. Clearly it would be wrong to draw any adverse inference from the failure of the accused to adopt that course - for example, an inference that he has no substantial defence and is concerned only to put the Crown to proof.
Nevertheless, so far as it is sought to mount an argument that, because of certain events or circumstances, the accused is prejudiced in presenting his defence, the court is put on enquiry as to what the defence is. Counsel has made many references to the defence, sometimes quite explicitly, usually rather cryptically, but has not at any stage sought to define it closely. Rather I have been obliged to attempt to glean the real nature of the defence from those remarks of counsel, from the written submissions in support of this application, from the applications of the accused and his solicitor, and from the transcript of proceedings earlier which took place before Wood, J. If I have misunderstood the real nature of the defence, that is a price the accused must pay for the way he has chosen to present this application.
It is my understanding that the accused does not contest that, in much the maimer alleged by the Crown, an importation of heroin into Australia did take place on or about 8 May 1989, and that at least for a short time before that date, the accused was aware that something of that nature was going on. However, he denies any criminal involvement. He will say that such dealings as he had with Cheung Siu Wah, Ng Yun Choi and Cheung Wai Man (and especially in the period approximate to the exportation of the heroin from Hong Kong) were solely referrable to the perfectly proper pursuit of his duty as a customs officer to gain criminal intelligence in regard to drug dealings in and through Hong Kong. He will not, as I gather, contend that he did not have any meetings with them at times proximate to the drug importation, including possibly some of the meetings of which one or other of the informer witnesses will give evidence, but he will deny that, at any such meeting which may have taken place, any such conversation occurred as they allege, in which he assumed an active role in planning, organizing, conducting or supervising the drug exportation. It seems that as to some of the meetings alleged he will deny that they took place at all.
He will, to that extent only, raise direct issues of primary fact. He has, however, not attempted to place before the court on the stay application any evidence to that effect, for example evidence to show that he was elsewhere at any relevant date or time.
As to the three intercepted telephone calls on which the Crown relies, the accused does not dispute that they occurred nor does he dispute the legality of the intercept nor the integrity of the resultant recording. However, he will challenge the interpretation of the Cantonese conversations into English, and will contend that the conversations properly understood do not have the sinister connotation which the Crown asserts. He will endeavour to show that they occurred in a context which dispels any such sinister connotation.
GROUNDS OF THE STAY APPLICATION
There is an onus on an accused person who seeks a stay of a prosecution, to establish the facts on which he relies: Regina v. Sloane (1990) 49 A. Crim. R. 270.
Shortly stated, the factual bases upon which it is asserted that the accused is entitled to a stay are:-
(a) that the Australian Government sought his extradition to Australia from Hong Kong without paying due regard to the consequences that extradition might have upon his capacity to conduct his defence;
(b) that the consequence in fact of his extradition is that he is deprived of access to witnesses, information and documents in Hong Kong which he would need, or at least, of which he would wish to avail himself, for the purposes of the trial;
(c) that he has exhausted every course of action reasonably available to him to obtain access to such information, witnesses and documents but in that regard has been frustrated by the refusal of relevant authorities in Hong Kong to make the same available to him;
(d) that were he on trial in Hong Kong, he would have available to him familiar mechanisms of the law, such as exist here, and also the provisions of the Hong Kong Bill of Rights, to enable him to have access to such materials or at any rate to have the benefit of a judicial determination, after full argument and examination of the relevant materials, of the question whether he was entitled to such access.
(e) that were he on trial in Hong Kong, he would likely have the benefit of a jury, all or most of the members of which would understand Cantonese, whereas an Australian jury not thus equipped will be unable to comprehend or perceive matters vital to the credit or lack of credit of the informer witnesses.
The legal basis of the application for stay which, in the accused's submission, gives point and legal effect to the factual matters to which I have referred is to be found in the decisions of the High Court of Australia in Jago v. The District Court of New South Wales & Ors (1989) 168 CLR 23 and of the English Court of Appeal (Criminal Division) in Regina v. Judith Ward (unreported June 1992). Shortly, the contention founded on Jago is that the consequence of the facts which the applicant asserts is that he is not able to have in New South Wales a fair trial and that upon that becoming apparent to the court, the court should stay the proceedings. It includes a contention that, apart from any unfairness that may result from his being deprived of access to, and the use of certain documents that he has sought, there is crucial and incurable unfairness because he is deprived of the opportunity of a ruling by this court on the claim of immunity asserted in respect of those documents. To the extent that it might be argued against the accused that the principle in Jago does not extend far enough to embrace the sort of unfairness that is alleged here, the applicant argues that the common law ought be understood, in the absence of binding authority to the contrary, to give to a citizen of this country all of the rights recognized by the International Covenant on Civil and Political Rights to which Australia is a signatory.
In relation to this last aspect, an application was made by Mr. Bodor, QC on behalf of the Human Rights Commission to intervene in the proceedings. I reserved my decision upon that application but invited counsel to tell me what submissions would be put on behalf of the Commission should such leave be granted. I received such submissions, written and oral, accordingly. Since I reserved my decision on the stay application, I have reached the conclusion that it would be proper (for reasons which I will briefly state later in this judgment) to grant leave to the Commission to intervene; and I have accordingly had regard to the helpful, clear and cogent submissions which Mr. Bodor presented on behalf of the Human Rights Commission, for which assistance I am grateful.
Shortly stated the argument based on Ward's case is that where the prosecution in fact does not disclose to an accused person all of the matters which the accused person is reasonably entitled to know before he stands trial, the proceedings ought be stayed. Counsel for the accused was not daunted by the fact that the principle expressed in Ward relates to the obligation of disclosure on the part of the prosecuting authority. His argument directed itself to the fact of non-disclosure, irrespective of the party whose conduct caused such non-disclosure, whether the prosecuting authority itself or some third party with authority or power, lawful or unlawful, to withhold such disclosure. On this submission it is not to the point that the DPP has no power to compel the Hong Kong authorities to disclose whatever material may be relevant. The argument for the accused looks primarily only at the position of the accused and contends that if he in fact is deprived of access to materials which he ought to have for the purpose of his defence, the outcome must be the same even if it is not the prosecution who is withholding such materials from him. However, additionally Mr. Nichsolson sought to rely on the circumstances surrounding the extradition as effectively extending the class of person embraced by the phrase "the prosecution" to include the Government of Hong Kong and/or its law enforcement agencies.
RELEVANT LAW: JAGO v. THE DISTRICT COURT
Jago was a case in which a stay was sought because of the long delay between the offences and the charges, and between the laying of charges and the trial. The stay was refused by the trial judge and his decision was upheld by the Court of Appeal and by the High Court. The High Court held, in effect, that proceedings may be stayed where the right to a fair trial is so much impaired that the further prosecution of the proceedings will be an abuse of process. In the words of Mason, CJ.:
"The continuation of process which will culminate in an unfair trial can be seen as a misuse of the court process which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial."
The Chief Justice pointed out that the appropriate remedy for unfairness, specifically because of undue delay but not limited to that, was not necessarily a stay of the proceedings.
"There is no reason to confine the discretionary power of the courts by arbitrarily stipulating that a stay is the only proper remedy for undue delay."
Mason, CJ. went on to make a second and related point:
"In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair. Thus orders may be directed to ensuring fairness in pre- trial procedures."
His Honour instanced an order for expedition where delay was becoming prejudicial. His Honour gave other instances of orders which might be made, short of a permanent stay, to meet the exigencies of the particular case - the grant of a limited or conditional stay, or the making of an order that a proceedings be stayed and not proceeded with further without specific order of the court.
There are two other important points which emerge from the judgment of Mason, CJ. in Jago. First, the power to grant a stay or to make any other order to prevent the use of court processes in a manner which gives rise to injustice is discretionary, to be exercised in a principled way. Second, the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. The touchstone for the exercise of discretion is in every case fairness. As to that, Mason, CJ. said:
"The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. ... At the same time it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged."
It was his Honour's view that:
"A permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare." (p.34).
Speaking more generally, rather than in the context of delay alone, his Honour said:
"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR at 111 per Wilson, J."
Brennan, J. maintained the distinction between a power to prevent an abuse of process and a power to ensure a fair trial. His Honour said:-\
"A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party."
His Honour pointed out that obstacles in the way of a fair trial are often encountered in administering criminal justice, but do not ordinarily cause the proceedings to be permanently stayed:
"Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and to determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might other suffer."
On the other hand:-
"More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the law is put in motion for a purpose which in the eye of the law it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings generally speaking is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose. ... When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. ..."
Brennan, J. pointed out that:
"When serious delay is attributable to the prosecution and an accused has been prejudiced thereby, the courts are tempted to offer the remedy of a permanent stay. ..."
"It avoids the possibility that a person may be convicted after a trial and which he may suffer some prejudice in his defence."
His Honour emphasized, however, that:-
"However understandable the granting of a permanent stay for delay causing prejudice might be, the remedy cannot be supported unless it would truly be an abuse of process to try the case. In determining what does amount to an abuse of process the considerations which favour the expansion of that notion so that it will support the remedy of permanent stay for delay causing prejudice to an accused must be set against countervailing considerations which have particular force in the criminal jurisdiction. Before this court sanctions such an expansion of the notion, it is appropriate to consider the need for such a radical discretionary power to refuse to try a criminal case and the effects of vesting such a power in a trial judge."
His Honour continued (p.49):-
"By the flexible use of the power to control the procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but that are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases brought to a halt be adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the advocacy of the orders, rulings and directions of a trial judge removing unfairness to an accused caused by delay or other misconduct by the prosecution.
Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society..."
At p.53 his Honour expressed disapproval of cases in this court and other State Supreme Courts where "these courts have asserted that the categories of cases in which the power to grant a permanent stay should be exercised are not closed and the power is available whenever it would be unfair to the accused to permit the prosecution to proceed ... in practice so broad a power does not fall far short of a power which is incompatible with the rule of law".
Deane, J. held that the power of a court to control proceedings before it includes the power to ensure that the court's process is not abused by the proceedings being made an instrument of unfair oppression. The reference commonly made to an accused's right to a fair trial was in his Honour's view not sufficiently precise:
"Strictly speaking, however, there is no such directly enforceable right since no person has the right to insist upon being prosecuted or tried by the state. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial."
His Honour acknowledged that as a general proposition it can be said: -
"That the fault or impropriety on the part of the prosecution in pre trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one."
His Honour proceeded to offer examples:
"One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing is defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (eg. adjournment, further particulars or new trial) which would avoid unfairness in a subsequent trial or re-trial. It is however possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus one can envisage circumstances which calculate an unreasonable delay on the part of the prosecution in bringing proceedings to trial that so unfairly and permanently prejudice the ability of an accused to defend himself that no subsequent trial could be a fair one."
His Honour was disposed, as was the Chief Justice, to adopt a broad view of abuse of process so that the prosecution of an accused in circumstances where the trial could not be fair might amount to such. He said:
"An unfair trial represents a miscarriage of the curial process. If circumstances exist in which it can be seen in advance that the effect of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one, the continuation of the proceedings to the stage of trial against the wishes of the accused will constitute an abuse of that curial process. In such a case, the continuation of proceedings to the stage of trial will inevitably infringe the right not to be tried unfairly and a court which possess jurisdiction to prevent abuse of its process, possesses jurisdiction at the suit of the accused to stay the proceedings pursuant to that power."
Toohey, J. also declined to treat the principles of abuse of process and the tight to a fair trial as separate and distinct. He said:
"It is consistent with authority in principle to regard each notion as part of the responsibility of the courts to see that justice is done for the parties and the wider community, ensuring that the appropriate remedy s applied in the particular case. Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (a fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other."
Gaudron, J. acknowledged the existence of a discretionary power to grant a permanent stay of proceedings founded not on any narrow view of abuse of process but a power exercisable if the administration of justice so demands. The power was to serve the general purpose of controlling the court's process and proceedings and accordingly:
"The limited scope of the power to grant a permanent stay necessarily directs an enquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding, as distinct from any broad consideration of the general merits of the case ... Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused ... The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessary limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise as to demand the grant of a permanent stay."
In all of the passages quoted, the emphasis has been added by me.
I take from that case the following propositions which govern the way in which I should approach the present matter.
1. There is a power in this court to stay proceedings either permanently or conditionally.
2. It is a power to be exercised in exceptional circumstances only, where the making of any other order would be ineffectual to secure the object of the exercise of the power.
3. The object of the exercise of the power is to protect an accused person from being exposed to a trial which in the circumstances must be unfair.
4. The exercise of the power is discretionary and involves a balancing of the interests of the accused on the one hand with, on the other, the community's right to expect that persons charged with criminal offences are brought to trial.
5. The conditions for the exercise of the power look not only to the fact of unfair treatment of the accused but also to its source. Distinctions are to be drawn between situations of unfairness attributable to the conduct of the accused, the conduct of the prosecutor, or the conduct of some person or body outside the court's control.
6. The conditions for the exercise of the power are not satisfied merely by demonstrating that the accused has been or is being in some respect treated unfairly, whether or not there is a means available to the court to remedy such unfairness at the time when it was brought to notice. The condition of the exercise of the power is that the trial itself will be an unfair trial.
RELEVANT LAW - REGINA v. JUDITH WARD
On 4 November 1974 Judith Ward was convicted in the Crown Court of 12 charges of murder and other offences arising out of her alleged involvement in a number of IRA bombings. On 17 September 1991, the Home Secretary referred her case to the Court of Appeal (Criminal Appeal Division) acting under s.17(l)(a) of the Criminal Appeal Act 1968. On 4 June 1992, that court quashed the convictions on all counts. One of the substantial matters that led to that outcome was the failure of the DPP to disclose before or during the trial certain evidence not used at the trial, some in the possession of the police, some in the possession of forensic scientists engaged on behalf of the prosecution and some in the possession of the DPP itself. The judgment of the court delivered by Glidewell, LJ. makes a close examination of the obligation cast upon the prosecution to make disclosure of material in its possession but not proposed to be used at the trial. The obligation to disclose arises in relation to evidence which is or may be material in relation to the issues. Before trial, the measure of the obligation to disclose relates to the issues which are reasonably expected to arise in the course of the trial. During the trial, the obligation may be extended, insofar as issues unexpectedly arise in the course of the trial which were not reasonably foreseeable beforehand. The obligation is to disclose only such evidence as is or may be material - which means something less than crucial but admits of the possibility that there may be material in the possession of the prosecution, the nature of which is such that it is relatively so insignificant in the context of the case viewed as a whole that non-disclosure may be excused. The court emphasized however that the scope of the application of the proposition that there may be evidence the disclosure of which is not required because it is not material is limited to matters which at the end of the day can be seen to have been of no real significance.
"The possibility that this view will ultimately be taken of any particular piece of disclosable evidence should be wholly excluded from the minds of the prosecution when the question of disclosure is being considered. Non- disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence."
The court held that the extent of the prosecution's duty of disclosure was not adequately to be measured in terms of the Attorney-General's Guidelines (1982) 74 Cr. App. R. 302. The accused is entitled to be supplied with "all relevant evidence of help to the accused" which is not to be led at the trial. The court emphasized that "all relevant evidence of help to the accused" is "not limited to evidence which will obviously advance the accused's case". It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their selection of evidence to be led. The court recognized the existence of public interest immunity and the possibility that material might ultimately be withheld from the accused by reason of the public interest. It emphasized, however, that it was no part of the duty of the prosecuting authority to make a decision that certain material should be withheld on such grounds. The decision whether evidence otherwise disclosable should be withheld from disclosure on the grounds of public interest immunity was one to be made only by the court.
In Ward, there was no issue about the fact of non-disclosure, and the major matter argued was whether in the circumstances of the particular case the failure to disclose particular evidence amounted to a material irregularity in the trial. Consequently, a great deal of the very lengthy judgment is concerned with an analysis of the significance of particular items of evidence in relation to the issues at the trial, and needs no further comment. Shortly, the materials not disclosed comprised a number of statements made by the accused at different stages of the police investigation; the statements of a number of other witnesses whom the police had interviewed; and material in the possession of the forensic scientists, which was relevant to the evaluation of the results of certain tests earned out by the scientists, upon which the Crown case heavily relied.
At pp.60-61 of the judgment, the court summarized the principles of law and practice which in its view at the present time govern the disclosure of evidence by the prosecution before trial.
"(i) 'Where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call that person as a witness, they are under a duty to make that person available as a witness for the defence ...' Archbold, 44th edition, paragraph 4-726. It is part of the same passage as is quoted with approval in this court in Lawson (1990) 90 Cr. App. R. 107 at 114 from the preceding edition. 'Material evidence' means evidence which tends either to weaken the prosecution case or to strengthen the defence case.
(ii) Unless there are good reasons for not doing so, the duty should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies: Lawson. Where there are good reasons for not supplying copies of the statements, the duty to disclose can be performed by supplying the name and address of the witness to the defence.
(iii) In relation to statements recording relevant interviews with the accused, as we have already said, subject to the possibility of public interest immunity, the defence are entitled to be supplied with copies of all such statements.
(iv) In relation to the evidence of expert witnesses, both for the prosecution and the defence, the Crown Court (Advance Notice of Expert Evidence) Rules 1987 now require that any party to the proceedings in the Crown Court who proposes to adduce expert evidence must, as soon after committal as possible, furnish the other party with a written statement of any finding or opinion of which he proposes to give evidence, and where a request in writing is made by that other party, either supply copies of, or allow the other party to examine, the record of any observation, test, calculation or other procedure on which such finding or opinion is based. There is an exception to rule 4 which is not here relevant. What the rules do not say in terms is that if an expert witness has carried out experiments or tests which tend to disprove or cast doubt upon the opinion he is expressing, or if such experiments or tests have been carried out in his laboratory and are known to him, the party calling him must also disclose the record of such experiments or tests. In our view the rules do not state this in terms because they can only be read as requiring the record of all relevant experiments and tests to be disclosed. It follows that an expert witness who has carried out or knows of experiments or tests which tend to case doubt on the opinion he is expressing is in our view under a clear obligation to bring the records of such experiments and tests to the attention of the solicitor who is instructing him so that it may be disclosed to the other party. No doubt this process can often be simplified by the expert for one party (usually the prosecution) supplying his results, and any necessary working papers, to the expert advising the other party (the defence) directly.
(v) It is true that public interest immunity provides an exception to the general duty of disclosure. For present purposes it is not necessary to attempt to analyse the requirements of public interest immunity. But in argument the question arose whether, if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right to withhold the documents so that, if necessary, the court can be asked to rule on the legitimacy of the prosecution's asserted claim. Mr. Mansfield's position was simple and readily comprehensible. He submitted that there was such a duty, and that it admitted of no qualification or exception. Moreover, he contended that it would be incompatible with a defendant's absolute right to a fair trial to allow the prosecution, who occupy an adversarial position in criminal proceedings, to be judge in their own cause on the asserted claim to immunity. Unfortunately, and despite repeated questions by the court, the Crown's position on this vital issue remained opaque to the end. We are fully persuaded by Mr. Mansfield's reasoning on this point. It seems to us that he was right to remind us that when the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Police (sic; presumably an erroneous substitution for 'these') considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned. (emphasis added)
(vi) For the avoidance of doubt we make it clear that we have not overlooked the Attorney General's Guidelines for the disclosure of 'unused' material to the defence in cases to be heard on indictment: see (1982) 74 Cr. App. R. 302. It is sufficient to say that nothing in those guidelines can derogate in any way from the legal rules which we have stated. It is therefore unnecessary for us to consider to what extent the Attorney General's guidelines relating to 'sensitive material' (the phrase used in those guidelines) are in conformity with the law as we have expounded it in the judgment."
Mr. Nicholson on behalf of the accused placed particular emphasis on the proposition that appears at the end of paragraph (v) of that extract that "if in a wholly exceptional case the prosecution are not prepared to have the issue of public interest immunity determined by the a court, the result must inevitably be that the prosecution will have to be abandoned". In his submission, the situation here is entirely analogous to that. Documents exist which may help the accused and he is being deprived of any opportunity to examine them - to examine the bulk of evidence from which the prosecution has selected that upon which it will rely. In his submission, the court should approach the matter from the point of view of the accused and since the court is not being given the opportunity, by examination of the non-disclosed material, to determine for itself whether it should be disclosed or whether it is protected by some relevant immunity, the prosecution must be stayed.
Mr Agius on behalf of the DPP contests that proposition. He emphasized the distinction between the prosecuting authority whose obligation of disclosure was the subject matter of the judgment in Ward, and any other party which is not the prosecutor and over which the prosecutor can exercise no control or compulsion. He submitted that in respect of parties of this sort said to be in possession of documents required by the accused for the purpose of his defence, there was no obligation on the prosecutor to obtain that material, but both the prosecutor and the accused were equally in a position to use such means as the law permits to obtain such materials.
I accept the submission made on behalf of the DPP. Ward deals and purports to deal only with the obligation of disclosure that falls upon the prosecuting party. The analogy that Mr. Nicholson seeks to advance is not valid. Where the prosecutor wrongly refuses to produce documents, that of itself might justify a stay, without enquiry except as to whether any of the material withheld is "relevant material of help to the accused" - that phrase being understood in the expansive sense explained in the judgment. The obligation of disclosure that rests on the Crown is an obligation of voluntary or spontaneous disclosure, not a matter merely of responding to a request or complying with a subpoena.
But where an accused person seeks access to information contained in documents which are in the hands of a person or body which is not the prosecutor, no such obligation of disclosure can arise. The only obligation of such a person or body is to comply with the requirements of a subpoena validly issued.
If, because there is a valid claim of privilege or public interest immunity, or because (as here) the party concerned is not amenable to subpoena, the documents are not made available, the ground (if any) of complaint on the part of the accused is not that there is a breach of an obligation of disclosure, but that because he has not access to the documents in question, his trial cannot be a fair trial. In other words, the relevant principles are to be found not in Ward but in Jago.
Mr. Nicholson submitted that for the purpose of the application of the principles laid down in Ward, it was appropriate to regard the class of persons or organizations embraced by the phrase "the prosecution" as extending to include the Government of Hong Kong and/or its law enforcement agencies. He relied upon the following matters.
1. That the accused had never been in Australia until brought here pursuant to the extradition order and all the acts done by him upon which the Crown relies, were done or alleged to have been done in Hong Kong.
2. That by reason of his alleged activities in Hong Kong, he was arrested there and charged with offences under the law of Hong Kong in respect of which if convicted there he was liable to a maximum sentence equal to that which he faces in the present matter.
3. That if thus tried in Hong Kong, he would have been able to utilize legal process under the law of Hong Kong to gain access to the materials that he now seeks, whereas by reason of his extradition and the attitude adopted by the authorities in Hong Kong he is in New South Wales deprived of access to those matters.
4. That that deprivation was a necessary consequence of the decision to extradite him.
5. That the decision to extradite him was made without regard to his interests, and that that is established by the contents of Exhibit AS4.
6. That the investigation which led to the prosecution was carried out jointly by the Hong Kong police and the Australian police.
I find as a fact that the accused was charged in Hong Kong with drug offences under the Dangerous Drugs Ordinance of Hong Kong and, subject to the availability of evidence, could have been prosecuted there; that he would in the defence of any such prosecution have had available to him the remedy of subpoena to secure access to documents if those documents were not voluntarily or spontaneously disclosed by the prosecution and that he could have commenced proceedings pursuant to the provisions of the Hong Kong Bill of Rights Ordinance to compel production if the ordinary process of subpoena was not effective (but I do not find, looking at the expert evidence tendered on both sides from Messrs. McCoy and Bruce, that such proceedings under the Bill of Rights Ordinance would have been successful. I make no finding either way). I find that the witness Cheung Siu Wah who was at the relevant time a prisoner in Vanuatu was not willing to go to Hong Kong to give evidence and could not have been compelled to do so; that at the relevant time Cheung Wai Man and Ng Yun Choi were under arrest and unlikely to have been willing to give evidence for the Crown in Hong Kong; and that for those reasons the prosecuting authority in Hong Kong was not in a position to proceed. I find d that the decision to extradite the accused to Australia was taken in recognition both of that fact and of the opinion held that it was contrary to Australia's interest that persons who appeared to have committed so serious an offence against the law of this country should not be brought to trial. It was regarded as important in the interests of Australia to bring the accused and his co-offenders to trial, and hopefully to conviction and the receipt of heavy sentences, in order to deter suppliers of narcotics outside Australia from similar activities against the law of his country. I find that the decision to seek extradition was made without any consideration being given to the question whether the accused might be prejudiced in his trial in this country by reason of any inability to obtain access to witnesses and documents in Hong Kong.
It does not appear to me that there is anything in those circumstances to create a situation in which the Royal Hong Kong Police or the Royal Hong Kong Customs should be regarded as in any sense part of "the prosecution". They participated in the investigation, but that is a different matter. The prosecution is a prosecution in Australia for an alleged offence against the law of Australia and it is conducted by the Commonwealth Director of Public Prosecutions. The obligation of disclosure does not fall on those who, whether in Australia or elsewhere, investigated the matter - it is not an obligation cast on the Australian Federal Police for example. It is an obligation that falls upon the prosecutor but the extent of it is such as to require disclosure of materials in the possession of those by whom the investigation was carried out so far as the DPP is in a position to compel production. Thus the DPP is obliged to disclose all material able to assist the accused which is in the possession of Australian authorities and all material which has come into the DPP's possession from the Royal Hong Kong Police, the Royal Hong Kong Customs or any other source. It is true that in Ward it was made clear that the obligation of disclosure extended to materials in the possession not only of the DPP and the police but also forensic scientists independent of both who had been engaged to carry out investigations: but it would seem that the DPP was in a position to compel production of materials supplied to it by its consultants or held by the consultants on its behalf - hence the obligation of disclosure extended so far. That is not the relationship between the DPP and the Royal Hong Kong Police and the Hong Kong Customs. It seems to me that those bodies are not part of the prosecution and as the DPP lacks any power to compel them to hand over materials in their possession, it would be absurd and unjust to impose on the DPP any obligation of disclosure in respect of such materials. For those reasons, I am of the view that nothing in Ward will assist in the resolution of this application.
RELEVANT LAW - INTERNATIONAL COVENANT
By the Human Rights and Equal Opportunity Commission Act 1986, the Commonwealth established the Human Rights and Equal Opportunity Commission as a body corporate with perpetual succession, with functions including "to promote an understanding and acceptance, and the public discussion, of human rights in Australia" and "where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues". "Human rights" is defined in s.3(1) of the Act to mean "the rights and freedoms and recognized in the Covenant, declared by the declarations or recognized or declared by any relevant international instrument".
By "the Covenant" is meant "the International Covenant on Civil and Political Rights", a copy of the English text of which is set out in Schedule 2 of the Act.
Paragraph 3 of Article 14 provides:
"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality;
…(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
The Commission resolved to seek leave to intervene in this stay application (not the trial itself, if it proceeds) for the purpose of assisting the court in relation to the human rights issues said to be involved in the proceedings. I have determined that the Commission should have leave to intervene for that purpose and that it is proper that I should receive submissions on his behalf in view of recent authority emphasising the relevance of the content of the Covenant to the common law of Australia. See for example Mabo v. Queensland (1992) 66 ALJR 408 at 417, 422, per Brennan, J. and per Kirby, P. in Regina v. Greer (Court of Criminal Appeal, unreported 14 August 1992). In Mabo, Brennan, J. said (at 417):-
"The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential rule of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning."
I have no difficulty with that. It seems to me abundantly clear that the rule of the common law expressed by the majority in Jago (ironically, not altogether commanding the assent of Brennan, J.) does not offend but is on the other hand entirely consonant with "contemporary values", including those expressed in the Covenant. In Greer, the learned President observed that those basic rights expressed in the Covenant are rights which the common law in Australia will ordinarily respect.
It appears to me that the relevance of the Covenant to the present matter is this and no more than this, that it puts the court on notice that a trial conducted in circumstances where the accused has not been accorded fully the rights referred to in paragraphs (b) and (e) of paragraph 3 of Article 14 of the Covenant may be an unfair trial within the meaning of the principles established by Jago.
I would have welcomed some assistance from counsel for all parties as to the meaning of the phrase "in full equality" in the opening paragraph of clause 3 of Article 14 of the Covenant. It may refer to equality with all other persons facing trial in this country - paragraph (b) is perhaps more compatible with that reading - or, equality with the prosecutor. Whatever be the proper interpretation, I am not persuaded that the accused has not been afforded "in full equality" "adequate time and facilities for the preparation of his defence". So far as relates to time, the accused has had more than sufficient: I note that the trial was adjourned by Wood, . in September/October 1991 to allow him the opportunity of taking such steps as have in fact been undertaken only since the beginning of August 1992.
It is true that some of the material to which the accused seeks access is held outside Australia, and that, therefore, its production cannot be compelled but is dependent upon the good grace of those having custody and control of it; but the same is true of any person who is tried in this country in respect of a crime part or the whole of which is alleged to have committed in foreign parts; and the same is true of the prosecutor. In respect of such material as is not available in Australia, the accused has had, equally with any other person to be tried in respect of such an offence, and equally with the prosecutor, the opportunity to avail himself of the provisions of the Australian law for the obtaining of such materials. He has had the opportunity to have witnesses examined in Hong Kong and so far as Australian law provides a machinery, has had access to the machinery which would possibly secure the production for the purpose of that examination of relevant documents. He has been frustrated in relation to the production of documents and the attendance of witnesses who are Crown servants, not because the law of Australia does not treat him equally with every other accused person but because the law of Hong Kong does not permit compulsion in those regards. I am certainly not prepared to hold that he has been deprived of adequate facilities for the preparation of his defence in respect of procuring witnesses other than Crown servants to be examined in Hong Kong.
It is probably the case that if the matter goes to trial the accused will in fact not be able to obtain the attendance and examination of some witnesses on his behalf but that is not a consequence of any discrimination against him by the law of Australia. He has the same right to obtain the attendance and examination of witnesses on his behalf and under the same conditions as witnesses against him as does the Crown. It appears to be the fact that certain witnesses whom the Crown proposes to call are willing to travel to Australia and that the authorities in Hong Kong are willing to permit them to travel; it is no doubt the case that if the accused should wish to call witnesses from Hong Kong, they may not be willing to come or their employers may not be willing to permit them to come, at least in the absence of proper provision for reimbursement of their expenses and salaries. The evidence does not show that the accused is in any different position from the Crown in that regard - neither is in a position to compel the attendance of witnesses. The evidence shows that the Legal Aid Commission has indicated a willingness to meet the cost of bringing some witnesses to Australia, but even if that be not so (and I note that there was some contest about the reasonableness of the amounts demanded for expenses and salary) it does not necessarily follow that the trial will not be fair. In any event, the evidence does not show that the accused is deprived of the opportunity to bring to Australia any particular witness nominated by him. In respect of witnesses other than Crown servants, just as the Crown could not oblige any such person to come to Australia to give evidence but must, if it wished to take that person's evidence, using the procedures provided by s.7V of the Evidence Act, so too the accused has had the opportunity of availing himself of that procedure. That it was not entirely successful owes more to the fact that the application was not made until unreasonably late in the piece than to any unwillingness on the part of the court or the Crown to facilitate the examination of such witnesses.
I have said, that in my view the effect of the Covenant is that it draws to the attention of the court that a trial, which takes place in circumstances where the so called "minimum guarantees" are not afforded to the accused, may be unfair within the Jago principle. It does not in my view follow that it must be unfair. It is necessary to examine the circumstances and see to what extent in the particular case the fact that the accused is deprived in whole or in part of one of the rights purported to be guaranteed by the Covenant in fact prejudices him, and whether it does so to such an extent that the trial is to be seen as unfair.
"UNFAIR TRIAL"
It is clear from the judgments in Jago that a stay of proceedings may be the appropriate remedy where the prosecution is an abuse of process in the traditional and narrowest sense (and, per Brennan, J., only then) - that is, where the prosecution is brought for an improper purpose, or is oppressive (eg. successive prosecutions for the same act) etc.; but also where the continuance of the prosecution will be in a broader sense an abuse because, whether on account of delay or for some other reason, the outcome will be a trial which, no matter how the trial judge may utilize his many powers and discretions, will be unfair. It is clear that it is not the possibility of unfairness to the accused which calls for the drastic remedy of a permanent stay, for such may well be mitigated, or obviated, by other remedies within the discretion of a judge pre-trial or within the discretion of the judge at the trial. Absent abuse of process in the narrowest sense, a stay is justified if it appears, at the time when the stay is sought, that no other exercise of the court's discretion at that stage or during the trial is likely to avoid a trial which, after the trial, will be seen to be unfair.
It is perhaps worth pausing for a moment to ask what is meant by a "fair trial" or an "unfair trial". Jago and other relevant authorities from various jurisdictions were discussed by Professor David Paciocco, The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept (1991) 15 Crim. L.i 315. At p.332-333 the learned author said:
"The 'fair trial' rationale has been challenged on the basis of its uncertainty. It has been said that the invocation of such a broad discretionary power would be 'unacceptable in a country acknowledging the rule of law.' DPP v. Humphrys (1977) AC 1 at 24. and its dangers have been lamented as 'too obvious to need stating'. Connelly (1963) 3 All E.R. 510 per Lord Edmund Davies at 519. Discretionary powers are not, of course, unknown in the law. They can be exercised on a more or less principled basis, and this is particularly true, I would suggest, of a discretion to ensure that a trial is fair. There is a significant difference between saying that judges have the power to stay proceedings to achieve a fair result (which might arguably be a subjectively exercised power not in keeping with the rule of law) and saying that judges have the power to stay proceedings to ensure a fair trial. This is because the fairness of a trial can be tested by its conformity with those principles underlying the accusatorial system of justice ..A fair trial is a public hearing in which the Crown makes a specific allegation, for which the accused has never before been convicted or acquitted, that the accused has violated a pre-existing rule of law, during which trial the Crown bears the burden of establishing that allegation with evidence before an independent and neutral trier of law and fact, without compelling the accused in any way to participate in establishing the allegation against him until a case to meet has been established, and in which the accused is provided with a reasonable opportunity to make full answer and defence. It is only where the conduct of those responsible for the prosecution of an offence has jeopardized one or more of these accusatorial principles that the power to act to ensure a fair trial should arise."
The remedy of stay is available to prevent the occurrence of an unfair trial: to prevent injustice. It is a remedy not to be resorted to wherever and whenever there is a risk of procedural injustice but only where if, if the trial is permitted to proceed, the outcome (if a conviction results) would be such that a court of criminal appeal after the event would be unable to say that no miscarriage of justice had occurred. The equation of the concept of an unfair trial with the concept of miscarriage of justice is implicit in the judgment of Mahoney, JA. in Gill v. Walton (1991-92) 25 NSWLR 190 at 210-211. It may, as his Honour pointed out, include the situation where there is a denial of natural justice; but I would with respect include his Honour's use of the term "unacceptable injustice" which extends beyond the traditional concept of a denial of natural justice to embrace the "procedural or evidentiary fairness of a particular trial"; but does not extend so far as to give rise to the power to stay a prosecution "whenever there will be less than perfect justice". (His Honour dissented in respect of the outcome of that particular case, but the approach of the other members of the court was entirely different and did not, as I understand the matter, involve any dissent from the principles which Mahoney, JA. expressed). Mahoney, JA. went on to say:
"It is settled that, if a party to a proceeding cannot or will not have a fair trial of the matters involved, the supervisory jurisdiction of this court may be invoked. I do not mean by this that this power may be exercised whenever there will be less than perfect justice. This power is exercisable when the trial of the issue will depart so far from perfect justice that the result is unacceptable. The mere fact that a defendant in a proceeding, criminal or civil, suffers from disadvantages which, in a perfect system operating perfectly, he would not suffer, is not sufficient to warrant intervention by this court. I made reference to this in, for example, the Barron case" (Barron v. Attorney General for New South Wales (1987) 10 NSWLR 215 at 226-22 7) "and in the Cooke case" (Cooke v. Purcell (1988) 14 NSWLR 51 at 65-67). In Jago, the members of the High Court made reference to this matter (at 33, 48 et. seq., 55-56, 71, 76-78). No doubt in each case the court will have regard to what, in other cases which have been decided by it, it has seen to be an unacceptable disadvantage. But in the end the court will make a decision, more or less normative, in respect of the particular disadvantages in question."
A court of criminal appeal asked to set aside a conviction upon the grounds of some demonstrated procedural defect or error of law or discretion does not intervene merely upon demonstration of the error; but only if the court finds itself unable to say that no actual miscarriage of justice has resulted. Where the case is able to be seen in advance as of that nature, the fact that the accused if convicted might confidently expect to be successful on appeal is not a sufficient reason to refuse a stay: Barton v. The Queen (1980) 147 CLR 75 at 96-97. However, the existence of a right of appeal is not irrelevant: the grant of a stay is reserved for the case where "no other means is available" to avoid injustice, and unless so much is established at the time of the stay application, the case for stay is not made out. It is necessary to bear in mind the community's interest in having a trial (Jago per Mason, CJ. at p.34., Brennan, J. at p.4.9, Toohey, J. at p.72) and unless there is seen in advance to be a "fundamental defect which goes to the root of the trial of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences", the proper course is to refuse the stay, leaving the accused to his right of appeal, when with the benefit of hindsight, the question whether the conviction was a miscarriage of justice may better be able to be determined.
As it seems to me, when it is said that a stay must be granted to prevent an unfair trial, what is referred to is a trial so affected by the events that have happened that it can fairly be said in advance that a guilty verdict would be set aside after the event as a miscarriage of justice.
It is not enough that there be a risk of miscarriage - indeed there is a risk of such in every trial. It is to be recognized that much that appears, in advance of the trial, to present such a risk can be (and in the ordinary trial is) nullified by the appropriate exercise of the trial judge's powers and discretions. An "unfair trial" in the relevant sense is only a trial of which it can be said in advance, that notwithstanding all that the trial judge may do, a miscarriage of justice will be the outcome. The degree of probability of miscarriage of justice that must be shown is a high one: not a mere possibility that the trial will be unfair; not that such an outcome is "on the cards", or just probable, or very probable; "there must be a fundamental defect" (per Mason, CJ.), it must be seen in advance that "any trial must necessarily be an unfair one" (per Deane, J.).
It follows that a trial may be permitted to proceed even after gross delay or even where the accused has not had the benefit of the "minimum guarantees" mandated by the international Covenant, where he has no legal representation or has been unable to locate or summon witnesses whom he would have wished to call, or to have access to documents which he would wish to have used, unless it can be seen in advance that the situation is such that should a conviction result it would represent a miscarriage.
The test therefore that has to be applied is a demanding one. It is a test which has not been addressed by the submissions advanced on behalf of the applicant. Counsel has been content to demonstrate what materials have been withheld from the accused and to what forensic purpose such materials may have been put; but has not gone the necessary further step, to show how the lack of any such material so relates to the issues in the case that a trial in the absence of access to such material will necessarily be in the relevant sense unfair. Notwithstanding the lack of assistance from counsel in that regard, this is a matter that lies at the heart of the application and which I must consider in due course.
Before I come to that, it is convenient at this stage to direct some attention to submissions put on behalf of the accused, which seek to characterize as unfair any trial which takes place in New South Wales, by comparison of the anticipated incidents of such a trial with the incidents of a hypothetical trial in Hong Kong.
It is true that the accused could have been put on trial in Hong Kong for alleged offences against the laws of that place: but also, Australia had and has the right to put him on trial in this country for alleged offences against the laws of Australia, once the accused is found within the jurisdiction. When he is validly called for trial here, as he has been, the question whether his trial will be unfair is to be determined, not by a consideration of how a trial might take place elsewhere, on other charges and under a different system of law, but by an examination of the way it will (foreseeably) be conducted here. That in my view is self-evident. (Indeed, ultimately counsel for the accused expressly abandoned his original submission that the accused had a right to be put on trial in Hong Kong and that proceedings here should be stayed until after he had been tried in Hong Kong for any offence against the laws of that place).
It may be the case that in Hong Kong he could have issued subpoenas to the Royal Hong Kong Police and the Hong Kong Customs and Excise Service (or relied upon Ward to compel disclosure), and he could have had the benefit of a determination by the trial judge of the obligation of those parties to disclose information and produce documents, a determination in the course of which the trial judge might have exercised a power to inspect the documents before ruling and a determination in respect of which there may have been a right of appeal; and that he would have been in a position to issues summonses for the attendance of witnesses who would, whether Crown servants or not, have been compelled to attend; and to have had the evidence of Cantonese speaking witnesses heard by jurors who were native speakers of that language. Such, no doubt, would be the incidents of a trial in Hong Kong (although it is by no means clear that the claim for public interest immunity advanced against the accused here, and which would no doubt be advanced in Hong Kong, would be rejected). But all of that, it seems to me, is beside the point.
The accused will (unless a stay be granted) stand trial in Sydney on 15 February 1993. The question is whether that trial will, in the circumstances, be unfair, so that if a guilty verdict ensues it might be expected to be set aside for miscarriage of justice; or whether, notwithstanding that it may appear that in some respects the treatment of the accused may have been unfair, appropriate orders, rulings and directions either pre-trial or at the trial will be able to be made and moulded so as to produce in the result a trial that is not unfair. The fairness or unfairness of that trial is not to be determined by a consideration of how some other trial might have been conducted elsewhere.
It is appropriate, also, to deal at this stage with a further submission made on behalf of the accused, which takes its stand upon the proposition that (as will be seen) documents are being withheld from the accused because of a claim in the nature of public interest immunity which, asserted by authorities in Hong Kong in respect of documents which are held in Hong Kong, is not capable of being determined in this court. It is put that a normal incident of a fair trial in New South Wales is the right to have access to all documents which may serve a legitimate forensic purpose and in the event that there is an objection to production, to have that objection determined by the trial judge. It is put, that the fact that the accused is deprived of the right to have access subject to any such determination, and of the right to have that determination made by the trial judge, necessarily renders the trial unfair.
Undoubtedly, the fact that the accused cannot compel the production of documents before this court, and cannot have the issues which arise in respect of such production determined by this court after proper arguments, inspection of the documents by the trial judge, if appropriate, and subject to a right of appeal, are circumstances which are of great relevance in determining whether the trial which may follow must be an unfair one. But it seems to me that it is not possible to reach a conclusion that the trial, even in those circumstances, must necessarily be unfair, without regard to what it is that is withheld from the accused, what is the nature of the forensic purpose that it would serve if produced, and what is the extent of the prejudice that the accused will suffer. For example, if there is evidence available to the accused to support his case on a particular issue, it may be very difficult for him to show that he is in any way or significantly prejudiced because he cannot get access to other evidence upon the same issue, because a party in possession of other evidence upon that issue fails or refuses to produce it, because he is unable to ask the trial court to rule on the propriety of the objection that is taken, and because he cannot invoke the coercive powers of the trial court to have that material brought before it. In short, the question whether the trial will be an unfair one because the accused is unable to compel the production of documents before the court, and unable to have the benefit of a ruling by the court upon such objections to production as may be taken, must depend upon an evaluation of the forensic purpose to which the documents would be put and the significance of each particular item in the context of the case as a whole.
THE PAPER CHASE
The resolution of the stay application would have been assisted had the applicant's counsel provided a single definitive statement of the documents which, it is asserted, were at the time of the hearing still withheld from the accused, and the lack of which is asserted to produce (in conjunction with the asserted lack of access to relevant witnesses) the consequence that the trial of the accused must be unfair. The argument eventually proceeded on the basis that documents hereinafter referred to as the Police Schedule and the Customs Schedule were the best reference points.
I propose now to set out a brief account of the correspondence between the accused's solicitor and the relevant Hong Kong authorities in order to show what material is presently withheld by them from the accused; for what stated reasons; and with what asserted consequences to the accused.
On 11 September 1991, 16 September 1991 and again on 30 September 1991, the solicitors acting for the accused wrote letters to both the Royal Hong Kong Police and the Hong Kong Commissioner for Customs and Excise requesting that a very large quantity of documentary material be made available by each, on the basis that it was necessary to have access to it so that the accused should be able "to obtain a fair trial". Undertakings to preserve the confidentiality of any "sensitive" information were offered.
The response to both sets of requests was a letter dated 9 October 1991 upon the letterhead of the Attorney-General's Chambers, Prosecution Division and signed by A.P. Duckett, QC, Deputy Crown Prosecutor. That letter indicated that the requests for information, much of which "relates to informers, suspects, surveillance, intelligence gathering and files associated with the investigation and detection of criminals involved in drug trafficking", had been considered in the light of the Attorney-General's Guidelines (1982) 1 All E.R. 734 and of s.57 of the Dangerous Drugs Ordinance, CAP 134, Laws of Hong Kong which provides, inter alia, measures to preserve the anonymity of informers or persons who have assisted the police with respect to offences under that Ordinance. The result was a willingness to supply only a very limited part of the material sought. The letter states:
"The remainder of the information requested by you, which is not inconsiderable, has been considered item by item and in terms of the overall implications. As previously mentioned it deals for the most part with informers, suspects, criminal intelligence, surveillance, investigation techniques and the illegal drug trade. It is of a highly sensitive nature. Despite your assurances of security for any information released, and with due consideration to your client's right to a fair trial, we have decided that, because of the potential dangers inherent in the release of the requested information and the considerations already referred to, your request for this information should be refused."
A request for yet more information was made by the solicitors in a letter to the Royal Hong Kong Police of 14 October 1991 and in a letter to the Deputy Crown Prosecutor on 15 October 1991.
On 22 November 1991 a senior assistant crown prosecutor in Hong Kong wrote to the solicitors informing that "various materials requested by you" were being assembled, and a further letter of 17 December 1991 advised that the documents in question would be posted that day to the Commonwealth DPP who is in a better position than the Hong Kong authorities to determine whether they should be passed on to the solicitors having regard to "the case itself, Australian law and any rulings of the court".
Pursuant to that correspondence some of the requested material was transmitted from Hong Kong to the Commonwealth DPP and all of what was received by the DPP was in due course passed on to the solicitors.
Further information (or documents containing such) was sought in June 1992; and then on 13 August 1992 the solicitors wrote to the Royal Hong Kong Police and to Hong Kong Commissioner of Customs and Excise enclosing with each letter a list of documents still sought from each body respectively, with a request that the same be produced in Hong Kong in association with and for the purposes of the then proposed and imminent examination of witnesses pursuant to letters of request despatched from this court to the High Court of Hong Kong. Copies of these lists had been annexed to one of the letters of request issued by this court, and they were there identified respectively as Annexure A (relating to the police) and Annexure B (relating to the Customs).
(The need to annex copies thereof to an affidavit later filed produced a confusing multiplicity of references. For ease of reference and to avoid confusion hereafter I shall refer to the list of documents solicited from the Royal Hong Kong Police as "the Police Schedule" and the list submitted to Customs as "the Customs Schedule").
As will later appear in more detail at the relevant stage of this judgment, no documents were produced in Hong Kong; but it seems that the Hong Kong authorities were prepared to treat the request as directed not only to production in Hong Kong but as a further plea to produce relevant material in Sydney for the purpose of the trial - for by letter dated 4 September 1992, on the letterhead of the Attorney-General's Chambers, Civil Division over the signature of a senior assistance Crown solicitor, there was a further and detailed response to the letter of 13 August to the Royal Hong Kong Police; and by letter dated 8 September 1992, on the letterhead of the Attorney-General's Chambers, Extradition Unit over the signature of Mr. A.A. Bruce, a senior assistant Crown Prosecutor, a further and exclusive response to the request of 13 August 1992 to Customs and Excise.
The last mentioned letter maintained, on behalf of the Hong Kong Customs and Excise, in respect of the items requested in paragraphs 2, 3, 4, 5, 6, 7 and 9 of the Customs Schedule, the attitude previously expressed on 9 October 1991 by Mr. Duckett. In relation to the matters mentioned in paragraph 8, the writer indicated that relevant material was being searched for and if located would be examined and if not subject to a justifiable claim for privilege, would be made available as soon as possible. Pursuant to that intimation, material relevant to the request in paragraph 9 of the Customs Schedule (but not, in the applicant's submission, sufficient for his needs) was supplied in a letter from Hong Kong Customs and Excise to the solicitors dated 11 September 1992.
The letter of 4 September 1992 referring to the contents of the Police Schedule identified certain of the documents requested as being not in the possession of the Commissioner of Police and therefore unable to be released; others as being still examined to see if they could be released; some as having been already supplied; and other as to which the attitude expressed in Mr. Duckett's letter of 9 October 1991 was maintained. As to other parts of the material sought, the documents requested were enclosed with the letter.
In respect of the documents still under consideration, further replies on 9 and 11 November 1992 made some documents available; but disclaimed knowledge of the existence of or possession of others, and in some cases suggested other sources to which the request might be directed; and asserted that yet others were still the subject of consideration.
That was how the matter stood when the hearing of the stay application concluded, and I did not understand Mr. Agius, on behalf of the Crown, to contest Mr. Nicholson's submission that I should approach the stay application on the basis that no further documents would be made available. (So too, in respect of one group of documents, being statements taken by Royal Hong Kong Police Officers from Cheung Wai Man, who has already been convicted in Australia on a charge arising out of the heroin shipment, and in respect of which Australian Federal Police have advanced a claim of public interest immunity on which I have yet to hear final submissions, it is common ground that I should approach the stay application on the basis that the accused will not be granted access to those documents).
The result of the above described exchanges is that the Police Schedule and the Customs Schedule stand as the most convenient statement of the documents of which the accused claims to be deprived, and the lack of which he asserts to have the consequence that his trial will necessarily be unfair. They are not, however, a definitive statement of those documents, because they include some material which, it is conceded, has in fact been supplied, and some the claim for which is no longer pressed.
FORENSIC PURPOSE
Upon the approach derived from Jago v. District Court, whether a stay should be ordered requires consideration of the question whether the fact that the accused cannot get access before the trial to the documents he lists nor make use of them at the trial will (alone or in conjunction with other circumstances) cause any trial that ensues to be unfair. That compels an enquiry as to whether any document to which he points in fact exists, and (if it does) as to the use to which the accused would put such document or class of document at the trial or in the course of preparation, that is to say, for what forensic purpose is access sought.
It is no basis for objection to a subpoena that the party who served it does not know whether or not documents exist meeting the description in the subpoena; although if he is not able to prove that documents exist he will not be in a position to invite the court to deal with the subpoenaed party for disobedience to the subpoena. So, it is no objection to the accused's case merely that he has asked for the production of documents some of which he does not know to exist in fact. However, the want of such documents cannot be shown to lead to an unfair trial unless it is shown that such documents do exist (or, perhaps, having at some former time existed, have since been destroyed: indeed the destruction of evidence which would otherwise have been available has been a major consideration in many cases where a stay of proceedings has been granted on the basis of delay). The question whether each particular document to which the accused points has been shown to exist is something to be dealt with as a matter of fact in respect of each document as I come to it.
The enquiry into forensic purpose is similar to that which arises where, upon the return of a subpoena for the production of documents by a stranger to the litigation, the party producing objects to the documents being made available for inspection by the parties (but after any objection to the subpoena itself or claim for privilege or public interest immunity has been disposed of adversely to the party producing): in terms of the analysis undertaken by Moffitt, P. in Waind v. Hill & National Employers' Mutual General Association Limited (1978) 1 NSWLR 372, the second step. His Honour pointed out that there are three steps in the procedure of having a third party bring documents to court, and in their use thereafter:
"The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross- examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs."
In relation to the second step, the learned President posed the question, "Does he" (ie the trial judge) "have a judicial discretion to permit the use of the documents in any such way as he considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts ...?" (p.383) and in the course of the following pages, gave a firm affirmative answer. His Honour at p.384 observed:
"It is true that in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded (sic). It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as is necessary in the proper conduct of the litigation. It is difficult to see why to do that which is 'requisite for the purpose of justice' should be restricted by some arbitrary limit ... If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the court, then the documents are in the control of the judge who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the court. So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitted the inspection of a stranger's documents can be to add, in the end, to the relevant evidence in the case."
At p.385 his Honour stated the practice to be as follows:
"Where however objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings in which event he will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise because, if relevant, they may be admitted in a variety of ways, as by first establishing facts or adopting procedures which make them admissible or by their being admitted by consent. If apparently relevant, I do not see how the objections of the stranger could prevent their admission in evidence, by consent or otherwise, or the inspection which may lead to this occurring."
His Honour's statement at p.384 that "the only legitimate purpose of requiring the production and permitting the inspection of a stranger's documents can be to add in the end to the relevant evidence in the case" is not to be understood as meaning that there is no right to inspect documents except such as would themselves be admissible. That is made abundantly clear by the sentence immediately preceding; and by the passage on p.385 that I have quoted also. Indeed, it was established in Madison v. Goldrick (1976) 1 NSWLR 651 that an accused is prima facie entitled to inspect any document which may give him the opportunity to pursue a proper and fruitful course in cross-examination, in the latter case Samuels, JA. pointed out that:
"Unless some means is available of obtaining access to documents such as witness's statements, a defendant ... may be quite unable to establish vital discrepancies where they do in fact occur."
In Regina v. Saleam (1989) 16 NSWLR 14, the Court of Criminal Appeal adapted to the question of the right of access to subpoenaed documents the test expressed by Gibbs, CJ. in Alister v. The Queen with regard to the question whether a judge required to rule upon a claim for public interest immunity should inspect documents. Hunt, J. (as he then was) said:
"In my view when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made ... In my view the criterion finally suggested by Gibbs, CJ. in Mister v. The Queen" (Alister v. The Queen (1984) 154 CLR 404) "as that which had to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production. He must be satisfied that it is 'on the cards' that the documents would materially assist the accused in his defence. Before granting access when such an objection has been taken the judge should usually inspect the documents (or those which the Crown may suggest are sufficiently representative) for himself, as it is unfortunately not unknown for the objection taken to be misconceived ... If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents."
In summary, therefore, the accused will have shown a legitimate forensic purpose for which he seeks access to the documents in question if he shows that they have apparent relevance to the subject matter of the trial, meaning thereby the issues to be tried. If they have no apparent relevance, there is no legitimate forensic purpose attaching to them; if they have apparent relevance, and hence are capable of being used to add to the relevant evidence, either directly by tender or indirectly by facilitating the testing of other evidence, it is for the accused and his counsel to determine whether they can in fact be used, and it would be wrong to conclude that they have no legitimate forensic purpose, merely because it does not appear to the judge that the documents in question can in fact be used to the advantage of the accused.
In the Police and Customs Schedules, there is appended to the description of each class of document sought a brief statement of the forensic purpose to which the accused would propose to put the material if made available to him. There were earlier statements of forensic purpose made in certain affidavits of the accused's solicitor filed at earlier stages of the proceedings especially in relation to the applications for adjournment in September and October 1991. Also, in written and oral submissions in the course of the stay proceedings, Mr. Nicholson endeavoured to make more clear the several forensic purposes that the documents would serve.
So far as I am able to gather from the submissions of counsel and the assertions of forensic purpose in the two Schedules and in Mr. Bilinsky's affidavits, the documents, or some particular documents or classes of document, are sought for one or more forensic purposes which I would summarize or paraphrase as follows.
1. To demonstrate to the jury the true nature of the relationship between the accused and the informer witnesses Cheung Siu Wah and Ng Yun Choi who, together with Cheung Wai Man, were informants, conveying to the accused as an investigator valued information about drug dealing which over the years had led to many major drug seizures and arrests.
2. To demonstrate to the jury the professional ability and integrity of the accused in his duties generally and in his dealings with informants in particular.
3. To reinforce other evidence of his good character, including demonstration of his integrity (in that he had not availed himself of many earlier opportunities to be corrupt) and of the high regard in which he was held by his superiors (manifested by official commendations and glowing periodic appraisals).
4. To show that he had earned commendations and good reports despite a tendency, sometimes criticized by his superiors, to be lax in the matter of submitting written reports; and in the light of that to minimize the adverse effect of his admitted failure in the period when the relevant heroin shipment was in progress, to make any report of the facts or suspicions becoming known to him.
5. To demonstrate the involvement in the heroin shipment of other persons than those already charged, and in particular members of the Triad group known as Lo Luen and of the Big Circle gang.
6. To demonstrate the lack of evidence of contact between him and those by whom the shipment was effected, including not only Cheung Siu Wah and Ng Yun Choi and the five men already convicted after the trial before Sully, J. in 1991, but also the so far unidentified members of the Lo Luen Triad and the Big Circle gang.
7. To provide evidence to contradict the evidence of Cheung Siu Wah and Ng Yun Choi of specific acts done by the accused in furtherance of the heroin shipment, in particular showing that those men (and indeed the accused himself) were under police surveillance during periods when meetings are alleged to have taken place between them, yet relevant surveillance reports do not disclose any such meetings as the informant witnesses allege.
8. To show that the accused had filed intelligence reports implicating in criminal activity some of the very people with whom he is alleged to have conspired to bring about this heroin shipment; and that the ensuing investigations were, at least in some instances, committed to investigators other than himself over whom he had no control; thus founding a submission that it was unlikely, so unlikely as to be absurd, to suggest that he would have engaged in criminal activity jointly with such persons.
9. To equip his counsel for cross-examination of the two informer witnesses by arming him with every statement made by each, and with the notes or other record of every interview that each may have had with police officers; and with the statements of others who participated in various stages of the enterprise.
10. To examine the extent of the information available to the Australian Federal Police and Royal Hong Kong Police at each stage of the investigation, in the hope of showing, should it be the case, that it was possible that:
(a) the informers had been coached to expand or embroider their stories to the detriment of the accused;
(b) that one or other police force or police officer had concealed or failed to communicate to others material which might be favourable to the accused or indeed, tend to show that he was not criminally involved;
(c) that the police had been (whether improperly or merely inefficiently) selective in respect of the persons they chose to interview or the lines of enquiry they chose to follow, hence failing to uncover the involvement of others in the shipment and failing to uncover matters which would have tended to show that the accused was not criminally involved.
11. To show the lack of any other evidence to implicate the accused other than the testimony of the informers and the three telephone intercepts; the lack of corroboration of the evidence of the informants as to things allegedly said or done by the accused prior to the first of those telephone calls; and to emphasize that lack in light of the breadth and depth of the investigation.
12. To show the existence of and to use, at least in cross-examination of the informers, evidence of other persons involved in the shipment that is inconsistent with certain parts of the evidence of those informers; to found a submission that they have altered their stories to the detriment of the accused, or at least, that their stories are unreliable or otherwise not worthy of belief.
13. To show motivation on the part of the informers falsely to incriminate the accused, namely:
(a) in order to eliminate the Hong Kong Customs and Excise Services' best and (to the informers) most dangerous investigator;
(b) to protect the Triad and Big Circle members by whom the shipment was in fact directed;
(c) to benefit themselves financially and by their securing immunity from prosecution.
14. To demonstrate the criminal character of the informer witnesses and others.
15. To investigate whether the maimer m which police officers were required, by relevant orders or regulations, to deal with informers inhibited Customs officers from making their informers available to police officers during the relevant period of the heroin transaction.
16. (Taken verbatim from the Customs Schedule because I do not understand and hence cannot paraphrase the forensic purpose asserted). (paragraph 4 relating to Investigation Bureau Intelligence reports of information provided by certain named persons). "Gary Cheung seeks to identify the relationship between the named persons and the Department either through himself or others within the Department as sources of information concerning dealing in dangerous drugs or to exclude that situation."
It does not, of course, follow from the fact that the accused has identified a legitimate forensic purpose for access to particular documents which are withheld from him, that a trial held without his having such access will necessarily be unfair. However the contrary is true - if the accused is unable to show a legitimate forensic purpose for access to some document, the withholding of it cannot occasion unfairness at the trial.
The Crown's response was threefold - (i) to deny, in most instances, the capacity of the documents (even if they exist - as to which there was another issue) to serve the stated purpose; (ii) in some instances to deny the legitimacy of the suggested forensic purpose; (iii) to submit that, even if any or all of the documents sought be capable of serving a legitimate forensic purpose, the fact that the accused has been unable to gain access to them does not mean the trial will be unfair nor otherwise justify a stay.
Were the question in fact one of granting or withholding access to documents in fact produced on subpoena, the Crown's submission that the documents were not capable of serving the suggested forensic purpose would not arise: R. v. Saleam (supra). It will, however, be a matter of significance in determining whether the fact that the accused is deprived of access to documents in respect of which a legitimate forensic purpose has been identified is likely to cause the trial to be unfair.
The forensic purposes which are stated in the paragraphs I have numbered 1, 2, 3, 4, 6, 7, 8, 9, 11, 12, 13 and 14 appear to be legitimate matters that the accused might properly pursue at the trial. On the other hand, those asserted in paragraphs 5, 10, 15 and 16 are less obviously so. Indeed that stated in 16, I simply do not understand; and that stated in 15 appears almost to be frivolous. It was not the subject of specific submissions. If the implication is that the accused refrained from disclosing to police his dealings with informers and information received, because of some inhibition he felt arising from the way that the police were obliged to act in such event, it would have been open to him to lay an evidentiary foundation by asserting that such was the case: but that is lacking. If the point relates to the conduct of other customs officers, it appears to be irrelevant.
As to the forensic purpose stated in paragraph 5, I am of the view that to establish, if it were possible to do so, that others were involved in the shipment in addition to the six already prosecuted and Cheung Siu Wah and Ng Yun Choi, and (as the Crown alleges) the accused himself, does not in any way contribute to the defence that the accused was not and cannot be proved to have been involved. The proposed investigation of the adequacy, competence or thoroughness of the investigation, implicit in paragraph 5 and expressed in paragraph 10(c) appears on the face of it to be no more than a fishing expedition in the sense specifically deprecated in Associated Dominions Assurance Society Pty. Limited v. John Fairfax & Sons Pty. Limited:-
"A 'fishing expedition' in the sense in which the phrase has been used in the law means as I understand it that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not."
To show that police did not investigate as thoroughly as might have been done (paragraph 10(b)) is a matter of no relevance or significance unless there is some reason to believe that a better investigation would have revealed matters of assistance to the accused; not merely matters implicating others. The existence of any such matter would have to be shown, or at least reason to believe in its existence. One would have thought that the accused was best placed to know of the existence of any exculpatory material upon which he wished to rely, but he has given no evidence of the existence of any such.
The forensic purpose expressed in paragraph 10(a) amounts to fishing, in the sense that there is no evidence that informers had been coached to expand or embroider their stories to the detriment of the accused; although there was some cross-examination at the first trial along those lines. Can it nevertheless be justified? Just as it may be a legitimate forensic purpose to seek access to statements of witnesses in advance of their giving evidence, so that discrepancies may be detected, it may also, as was the case in Madison v. Goldrick, be a legitimate forensic purpose to seek access to statements in the possession of a police officer in order to show that he had the wherewithal to construct what was alleged to have been a false confessional statement. That, however, falls short of showing the validity of the forensic purpose stated in paragraph 10(a). It would be one thing to obtain access to successive statements made by the same witness in order to show how his story had developed or varied from time to time. In such a case, however, the relevant material would be what appeared in the witness's statements, not what was within the knowledge of police officers conducting the investigation - if indeed, the witness's story had been expanded at the instigation of the police, the source was as likely to be in the imagination as in the knowledge of the police officer.
With these preliminary comments, I now turn to a consideration of the accused's claim in respect of each group of documents he has sought.
DOCUMENTS DENIED TO THE ACCUSED
It appears to me that the onus which rests upon the accused to establish the factual basis of his claim to a stay requires him to show, as to each document or class of documents of the withholding of which he complains:
1. Some prima facie reason to believe in the existence of the document.
2. That the documents are not available despite reasonable efforts on the part of the accused to procure them.
3. A legitimate forensic purpose.
4. In what way the lack of access to the document will render the trial unfair.
As I pointed out in the course of the argument, this last is not so much a matter of fact to be proved by evidence, but a matter to be demonstrated by legal argument, on which basis I cut short the oral evidence of Mr. Bilinsky and invited Mr. Nicholson to tell me from the bar table in what way lack of access to each document would prejudice the accused.
I propose now to consider those matters in respect of each of the documents identified in the Schedules, except so far as they have already been produced.
It is to be noted that of the documents identified in the two Schedules, some have been provided and need no further consideration, namely in the Police Schedule, paragraphs 19, 22, 26, 28, 40 and 41 (subject to these qualifications, that material presented in accordance with paragraphs 22 and 28 excludes the statements from Cheung Wai Man which are subject to an unresolved claim of public interest immunity; and of the five files identified in paragraph 41, two only have been provided); and in the Customs Schedule, paragraph 3. In relation to certain criminal records referred to in paragraphs 23 and 35 in the Police Schedule, some have been provided; and there is an offer to produce the record of any other named person once it is clear that that person is to be a witness at the trial.
It is convenient to deal with the documents not necessarily in the order in which they are set out in the Schedules.
1. Police Schedule, paragraphs 5, 14, 15, 16, 17, 19, 22, 37, 38 and 39
Each of these items in the Schedule relates wholly or in part to materials which, if they exist (as to which I find it unnecessary to make any finding) might be expected to be in the possession of the Australian Federal Police, in the form either of originals received from Hong Kong or copies of materials sent to Hong Kong.
There is no evidence of any attempt to obtain them from the Australian Federal Police; and no reason to suppose that the Australian Federal Police will be unwilling to produce them if called on subpoena to do so, or on request (subject, of course, to the existence of any legitimate forensic purpose to be served by granting access to them to the accused). The accused has failed to show that he is denied access to any such documents; and they therefore call for no further consideration in relation to the stay application.
I shall refer later again to paragraphs 5, 19, 22 and 38 so far as they are expressed to refer also to materials not likely to be in the possession of the Australian Federal Police.
2. Police Schedule, paragraphs 4, 5 and 8
These items relate to recording of telephone calls by the Royal Hong Kong Police. To the extent that paragraph 5 refers also to recordings made by the Australian Federal Police, it has been already de