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". As to matters 1 and 2, his Honour held that even if the documents were removed unlawfully and even if the search warrants were obtained in an unauthorised manner and contrary to law, those matters would not provide a reason for a permanent stay of proceedings. Having regard to the statements of principle which I have set out from Jago v District Court of New South Wales , it is obvious that this must be the case. The mere fact that evidence is improperly or illegally obtained will not necessarily involve its rejection as evidence (see Bunning v Cross (1977) 141 CLR 54 and now section 138 of the Evidence Act 1995), let alone provide a basis for a permanent stay. 7 As to the matter in paragraph 3, his Honour held that the material adduced before him did not establish that the diary note (in which Dr Steele, the employee of the Medical Centre, who took photocopies of the Centre's records and provided them to the investigating officers of HIC, made a note of the circumstances of her communications with them) was in fact withheld, I take it in the sense that it was required to be produced, either by any compulsory process or pursuant to the prosecution's general duty of disclosure in the interests of fairness. I do not consider that this court should revisit this finding of fact. Nevertheless, having regard to the failure of the submissions made on behalf of the applicant to identify any legal basis for controverting his Honour's finding, I have myself considered the material in the appeal book. 8 So far from his Honour's decision being in error, I am of the view that it was manifestly correct. His Honour concluded that even if he did err in his view of the evidence, the complaint whether considered alone or in conjunction with the first and second matters, did not constitute a basis for the granting of a permanent stay. I consider that this conclusion was plainly right. 9 So far as the fourth and fifth complaints were concerned his Honour concluded that there was no substance in them. This conclusion was also correct. Amongst other things s 8P of the Health Insurance Commission Act 1973 authorises an officer to require a person to produce documents in that person's custody with some exceptions as to clinical records, but there is nothing in that provision or indeed in the Act which prevents a request for the provision of documents including clinical records, although in the latter case no doubt disclosure of the clinical details would require the permission of the patient. 10 In the particulars of the application no more than a request, as distinct from a requirement, was alleged by the applicant and so far as the evidence went before his Honour, there was nothing to suggest the contrary. 11 The particulars of the alleged deceit were that the request by the officer to produce documents had the effect of concealing the fact from her that her employee Dr Steele had "acted unlawfully and clandestinely towards her". 12 There was no evidence which justified the conclusion that Dr Steele had acted unlawfully. Whilst acting clandestinely is not improper unless in breach of some duty, which was not established on the evidence, had there been any evidence to support the submission that relevant documents had been removed and were missing or destroyed and that the investigators were party to such an occurrence, this might have provided the basis for a submission that the trial would be unfair in the absence of such material. However, insofar as the evidence touched upon this point, it was to the contrary effect. Furthermore, it was not suggested to Dr Steele in the committal proceedings, even though the applicant had available the diary note to which I have referred, that any such event or events had occurred. Dr Steele disclosed merely that she had copied documents, although it is fair to infer that four files were removed from the medical centre by her for this purpose. Dr Steele is a Crown witness and can be cross-examined on behalf of the applicant in respect of this matter in the trial. 13 The application for leave to appeal appears to be from the order of the District Court confirming the applicant's trial date of 28 June 1999. It is obviously an interlocutory order and of course leave is required to appeal to this Court under s 5F (3) of the Criminal Appeal Act 1912. If the material order be the refusal to grant a stay the same consequence applies. The ground for the application is as follows: "His Honour erred in applying the wrong test, namely, that it is for the defendant to adduce evidence of actual loss or destruction or even tampering with evidentiary material removed from the appellant's premises without lawful or any authority". 14 His Honour did not in fact apply such a test. His Honour simply concluded that there was no evidence that suggested that the documents, after having been removed and before being replaced, were in any way interfered with. 15 It is scarcely necessary to cite authority for the proposition that the mere possibility that evidentiary material was lost or destroyed could not provide a basis for a permanent stay of proceedings but, if authority be required, such a conclusion necessarily follows from the reasoning of the High Court of Australia in Jago v District Court of New South Wales (1989) 41 A Crim R 307 in which the Court rejected the argument that presumptive rather than actual prejudice from delay provided a basis for a stay. 16 At all events no attempt is made by the applicant in this Court to demonstrate the possible significance of the material dealt with by Dr Steele. The written submissions in this Court do not differ in substance from those that did not find favour in the District Court. Considered as a whole, the written submissions of the applicant do not fairly represent the evidence and make no attempt to argue by reference to legal principle the mode by which it is suggested his Honour at first instance erred. 17 I am of the view that this application has no merit and should therefore be refused. It is nevertheless necessary to mention, in the light of some observations made by his Honour, if any attack is contemplated on the search warrants, consideration needs to be given to the question whether such an attack can be made in the trial itself, that is collaterally, or whether proceedings relating to the warrants themselves need to be independently taken, but this is a question which I do not think this Court needs to give any consideration to for present purposes. 18 I therefore propose that the application should be dismissed. 19 STUDDERT J: I agree. 20 GREG JAMES J: I also agree. It is of course for the trial judge to deal with questions that might arise at the trial concerning witnesses not being called or evidence not being disclosed. 21 The High Court has looked at such a matter in Apostolides v The Queen (1984) 154 CLR 563. It is to be remarked, however, insofar as this is an application to stay proceedings as an abuse of process, that s 80 of the Constitution provides that trial on indictment for offences against the laws of the Commonwealth is to be by jury. 22 The questions that have been raised before us are peculiarly those for the province of the jury at the trial, subject to the appropriate directions of a trial judge. 23 In my view the application before the trial judge and here was entirely misconceived. I see no basis on which the trial judge might be said to have fallen into error. 24 It is on that basis that I agree with what has been said by Mr Justice Adams and by the presiding Judge. 25 STUDDERT J: The orders of the Court then are those proposed by Mr Justice Adams. ********************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.