REGINA v FARHAT [1999] NSWCCA 174

New South Wales Court of Criminal Appeal CITATION : REGINA v FARHAT [1999] NSWCCA 174 FILE NUMBER(S) : CCA 60245/99 HEARING DATE(S) : 21 June 1999 JUDGMENT DATE : 21 June 1999

PARTIES : Commonwealth Director of Public Prosecutions Tagro Farhat JUDGMENT OF : Studdert J at 25; Greg James J at 20; Adams J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Armitage DCJ

COUNSEL : Mr D G Shaehli, Mr Bourke (Crown) Mr Newman (solicitor) SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Newman & Associates (appellant) CATCHWORDS : Criminal Appeal Act 1912 ACTS CITED : Crimes Act 1914 Health Insurance Commission Act 1973 Evidence Act 1995 Jago v District Court of New South Wales (1989) 41 A Crim R 307 at 312 CASES CITED: Bunning v Cross (1977) 141 CLR 54 Apostolides v The Queen (1984) 154 CLR 563 DECISION : Application dismissed.

IN THE COURT OF CRIMINAL APPEAL 60245/99 STUDDERT J GREG JAMES J ADAMS J MONDAY 21 JUNE 1999

REGINA v TAGRO FARHAT

JUDGMENT

1 ADAMS J: This is an appeal pursuant to s 5F of the Criminal Appeal Act 1912 from a judgment of his Honour, Judge Armitage QC in the District Court on 7 May 1999 in which his Honour refused an application by the applicant for a permanent stay of proceedings. 2 A notice of motion which sought, in addition, to attack the validity of certain search warrants issued in the course of the investigations of the offences with which the applicant was charged was not considered by his Honour. I will return to this matter later but I note here that the notice of motion was incompetent for a number of reasons, one of which was that no reference is made in it as to the orders sought. 3 The applicant was committed for trial to the District Court on 24 June 1996 and arraigned on 22 July 1996. Although her trial was first listed for hearing on 20 October 1997 and then the following year, it was most unfortunately not reached on these occasions. However, it is now listed for trial on 28 June 1999, that is to say in one week. 4 The applicant stands indicted on 47 counts of which 38 arise under s 29D of the Crimes Act 1914 (Cth) (defrauding the Commonwealth) and 9 under s 67 (b) of the Crimes Act 1914 (uttering a document knowing it to be forged). The charges relate to alleged bogus claims made on the Health Insurance Commission (HIC) by the company of which the applicant was a director in respect of patient visits to the medical centre at which the applicant was also the receptionist and office manager. As I apprehend it, the grounds for the application were that because of the manner in which the investigation was conducted by officers of the HIC the applicant could not have a fair trial and the prosecution "has been corrupted" by a number of specified events. 5 The power of the Court to prevent its processes being used in a manner which gives rise to injustice is undoubted. As Mason CJ observed in Jago v District Court of New South Wales (1989) 41 A Crim R 307 at 312: "The continuation of processes 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". However, as his Honour added (ibid at 314): "A permanent stay should be ordered in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare...[indeed] 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 a trial can relieve against its unfair consequences'". In the same case, Brennan J (as he then was) pointed out that more radical remedies than adjusting the procedures of trials, making rulings on evidence and giving directions to the jury might be needed where the proceedings themselves constituted an abuse of process (ibid at 324). His Honour went on to say: "An abuse of process occurs when the process of the Court 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". Deane J implicitly accepted that it would be an abuse of process justifying a permanent stay in the exceptional case when nothing that can be done by the trial judge could overcome substantial and inevitable unfairness or the continuation of proceedings would be of itself unfairly oppressive (see (1989) 41 A Crim R 332 and 334). 6 The applicant submitted in the District Court that the proposed prosecution had been "corrupted in five different ways". They are set out in his Honour's reasons as follows: "1. The unlawful removal of private medical records from the St George Medical Centre unsupervised in any way jeopardised their integrity by alteration, loss or destruction. 2. Search warrants obtained by HIC officers on or about 24 November 1994 and 7 March 1995 were grounded upon evidential material obtained in an unauthorised manner and contrary to law. 3. In breach of the rules of natural justice the respondent withheld evidence from the applicant. Particulars of that read as follows: 'The diary note ought to have been annexed to one of Dr Steele's three statements. Its concealment had the effect of protecting Dr Steele's and HIC officers' credit'. 4. Procedures laid down in the Health Commission Act 1973 were not complied with. In the particulars given in respect of that matter Pt 8P of the Health Insurance Act 1973 (sic) is referred to. 5. Officers of HIC acted deceitfully towards the applicant".