Reported Decision : (2001) 119 A Crim R 519 New South Wales Court of Criminal Appeal CITATION : R v Giovannone [2001] NSWCCA 22 FILE NUMBER(S) : CCA 60728/00 HEARING DATE(S) : 6 February 2001 JUDGMENT DATE : 22 February 2001 PARTIES : Philip Giovannone - Applicant Crown - Respondent JUDGMENT OF : Sheller JA at 1; Grove J at 44; Kirby J at 45 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0863 LOWER COURT JUDICIAL Flannery DCJ OFFICER : COUNSEL : R A Bonnici - Applicant P Hock - Crown SOLICITORS : S Moran & Co - Applicant S E O'Connor - Crown CATCHWORDS : Criminal law and procedure - appeals against interlocutory rulings - When court will interfere with discretion of prosecutor as to continuation and conduct of proceedings - When court will grant a stay of proceedings - Criminal Appeal Act 1912, s5F LEGISLATION CITED : Criminal Appeal Act 1912 Evidence Act 1995 (Cth) BWM (1997) 91 A CrimR 260 House v The King (1936) 55 CLR 499 R v Tolmie (unreported) NSWCCA, 7 December 1994 Maxwell v The Queen (1996) 184 CLR 501 Barton v The Queen (1980) 147 CLR 75 CASES CITED: R v Brown (1989) 17 NSWLR 472 R v Van Phu Ho (unreported) NSWCCA 18 July 1994 R v Pirrottina (unreported) NSWCCA 27 September 1996 Jago v District Court (1989) 168 CLR 23 Butera v DPP for the State of Victoria (1987) 164 CLR 180 R v Menzies [1982] 1 NZLR 40 DPP v Hardas (unreported) District Court 2 September 1999 DECISION : 1. Leave granted on both applications; 2. Appeals dismissed. IN THE COURT OF CRIMINAL APPEAL 60848/98 SHELLER JA GROVE J KIRBY J Thursday, 22 February 2001 REGINA v Philip GIOVANNONE JUDGMENT 1 SHELLER JA: Pursuant to s5F of the Criminal Appeal Act 1912, Philip Giovannone seeks leave to appeal against two interlocutory judgments and orders of Acting Judge Flannery, one given on 7 November 2000 and the other on 8 and 9 November 2000. 2 The applicant stood trial in the District Court in May 2000 on an indictment containing three counts that on 16 November 1994 at Sydney he: (a) "did an act, namely did ask Trevor Haken to speak with a person at the Australian Federal Police with a view to removing Giovannone's name from an Australian Federal Police brief with an intent thereby to pervert the course of justice" (referred to as the 'Rubber Count'); (b) did an act, namely did ask Trevor Haken to provide protection from arrest for a drug dealer named 'Rocky' with intent to pervert the course of justice (referred to as the 'Rocky Count'); and (c) did corruptly give Trevor Haken, an agent of the Crown, a benefit namely, $200 as an inducement on account of Trevor Haken showing favour to Giovannone in relations (sic) to the affairs of the Crown (referred to as the 'Corrupt Reward Count')." These charges have been referred to as the "bribery type charges". 3 The jury were unable to agree on a verdict and were discharged. The Crown has directed that there should be a re-trial. 4 On a separate indictment the applicant was charged that on 12 July 1995 at Sydney, being a person giving evidence on oath at a hearing before the Royal Commission into the NSW Police Service, he gave false evidence that was to his knowledge false in a material particular, namely that he had never given money to a police officer (referred to as the "false testimony charge"). It is not clear on the evidence what was the precise form of either indictment at any given time. Amendments said by the applicant to be significant were made at various times. 5 On or about 26 June 1998 the applicant had been charged by way of information and summons with four counts of which the first mirrored the false testimony charge except that added at the end were the words "whereas Giovannone had given the sum of $200 to Trevor Haken on 16 November 1994". Apparently the original intended indictment to be presented by the Crown had the four counts on the one form and used words identical to the information and summons presented to the magistrate presiding at committal proceedings. There are some slight changes between the Rubber count and the Rocky count in the indictment presented at the trial from the form in the original counts 2 and 3 in the intended indictment presented to the magistrate. 6 On 11 May 2000 a Crown prosecutor sent a notice of particulars relied on by the Crown saying that the matters if they proceeded to trial would do so by two separate trials. "The first trial will comprise the three counts presently numbered 2, 3 and 4 on the current indictment. The proposed second trial would be in respect of count 1 on the current indictment." The form of the three bribery type charges in this revised indictment was set out and the first and second "perverting the course of justice" differed from the forms I have set out above. Particulars were given. The Crown said that it relied principally on the evidence of the witness Haken and the tape recordings of discussions between Haken and agent Kieran Miller and the accused on 15 and 16 November 1994 to establish them. The notice of 11 May concluded under the heading "The Second Trial". "The evidence on this single count of 'giving false evidence at a hearing before the Royal Commission', will depend partly on the result of count 3 in the first trial, 'the $200 payment'. At present, it would be the Crown's intention to lead: (a) the admissible evidence on count 3; and (b) the relevant parts of the accused's evidence at the Royal Commission on 12 and 13 July 1995." 7 Significant for the applicant's argument was the statement that the proposed trial on this count would take place after the proposed trial of the other three counts. The applicant believed, so it is said, that if the Crown did not secure a conviction on the corrupt reward count, the false testimony count would not be proceeded with and would be no billed. On 18 August 2000 when the matters came before the Chief Judge of the District Court, the Crown indicated an intention of reversing the order of trials and of seeking to have the false testimony trial heard before the re-trial. This was confirmed by a letter from the Crown dated 5 October 2000. 8 The applicant made two applications by notices of motion dated 20 October 2000. One was for an order that the trial of the indictment on the three charges should be first conducted and the trial on the indictment for the false testimony charge be relegated to the second and subsequent trial. The other was that the criminal proceedings against the applicant as the accused be permanently stayed. In support of the first of these applications an affidavit by the applicant's solicitor, Mr Rea, sworn on 25 October 2000, was filed in which it was said that since the inception of substantive proceedings in the matter it had always been agreed between the Crown and the accused and approved by the presiding judicial officers that there would be two separate trials running "back to back" with the trial of the bribery trials preceding the trial of the false testimony charges. The rationalisation of the two trials was said to be obvious from the fact that the bribery type charges alleged to have occurred on 16 November 1994 stood alone and pre-dated the false testimony charge. The false testimony charge, which was alleged to have occurred during proceedings of the Royal Commission into Police Corruption on 12 and 13 July 1995, as a matter of fact and law depended and could only be brought if and when it was proved beyond reasonable doubt that the accused paid the sum of $200 to Trevor Haken on 16 November 1994 to induce him in the way suggested by the bribery charges. In para 6 of his affidavit Mr Rea deposed: "Therefore as a matter of logical sequence it follows that the Bribery charges should precede the False Testimony charge." 9 The affidavit went on to refer to the listing of the matter before the Chief Judge of the District Court on 18 August 2000 when it was indicated that it was the Crown's intention to proceed to a further trial and that the Crown intended to reverse the order of the trials so that the false testimony charge was to proceed to trial before the trial of the bribery type charges. It was said that as a matter of strict chronology there was no reason forthcoming from the Crown as to why the order of the trials should be reversed, that as a matter of fairness to the accused in terms of the due process of law and the particular circumstances of the matter there was no plausible reason why there had been a decision by the Crown to reverse the order of trials and that the use of such a discretion by the Crown at that point of time in the history of the matter was tantamount to an abuse of process. There appeared to be no grounds for reversing the order of the trials except unfairly to prejudice the accused and put him at a disadvantage as to his understanding of the charges and proceedings against him. The affidavit continued: "15. From a strict factual point of view, before the Crown has to prove that $200 was paid by the accused to Trevor Haken in support of its allegation in the False Testimony trial that the accused lied about the fact and is therefore guilty of giving false testimony, the proof of that critical fact can only come from a conviction by a Jury on the Bribery Type charges, or absurd as it may seem if the false testimony trial runs first, if Trevor Haken gives evidence about that fact in the False Testimony trial. Such a procedure would effectively defeat the purpose of having two separate trials because of the prejudice that the False Testimony charge causes the accused in his first trial. 16. Further the issues raised in the proceedings before the Royal Commission into Police Corruption cannot be used in evidence against the accused in any other matters, including the Bribery Type charges except to prove the false testimony charge. Thus by reversing the order and conducting the trial of the False Testimony charge first, all issues of credibility that could be in that trial could be used in the Bribery Type charges trial, which is exactly what the Royal Commission into Police Corruption said should not be done." 10 The grounds for the stay application were as follows: "1. There has already taken place a previous trial which concluded in the Jury not being able to reach a unanimous verdict on any of the three charges heard. 2. The proceedings against the accused are oppressive, vexatious and unfair. 3. The decision of the office of the DPP not to discontinue the proceedings against the accused is erroneous in that the discretionary guidelines of whether or not a prosecution should be continued has not been followed. 4. As a matter of public and economic policy, the continuation of these proceedings is an 'affront to the Public Conscience'. 5. The matters set out in the previous stay of proceedings are herein re-instated and relied upon in particular: (a) The delay in bringing the proceedings. (b) The conduct of the solicitor of the DPP initially handling the matter, from the point of view of the unfairness and hardship it caused and created for the Accused. (c) The personal stress and medical detriment to the Accused which he is experiencing because of these proceedings and their continuation and conduct. (d) The entrapment-type situation created against the Accused. 6. That there is and has been an Abuse of Process on all and/or each or any of the above grounds and reasons entitling the Accused to a Permanent Stay of Proceedings. 7. For any other reason and/or grounds which may arise or which this Honourable Court deems appropriate." 11 On 7 November 2000 Acting Judge Flannery refused the motion that the false testimony trial take place after the conclusion of the trial of the bribery type offences. 12 On 9 November 2000 Acting Judge Flannery refused the stay of proceedings on all counts on both indictments giving reasons for judgment which began on 8 November 2000. 13 The applicant seeks leave to appeal from both these decisions. In doing so, he sought to rely on a further affidavit of Mr Rea, sworn on 8 December 2000 to which the Crown objected on the basis that if leave were granted the appeal to this Court under s5F was not a re-hearing and accordingly, it was not open to put before the Court new or fresh evidence. A substantial part of the affidavit was in the form of a history of the matter including a section headed "Uncontested facts", paras 17-30. Paragraph 25 and substantial parts of what followed under the heading "The Background", paras 31-79, sought to introduce or refer to material not before Acting Judge Flannery. On that basis, we rejected the paragraphs containing such material. 14 In BWM (1997) 91 A CrimR 260 at 265 Hunt CJ at CL said: "In my opinion, an appeal against an interlocutory judgment or order pursuant to s5F is not by way of rehearing. This Court, unless specifically empowered to act otherwise, acts as a court of error, not as a court of rehearing. The basis upon which it does so pursuant to s5 of the Criminal Appeal Act, on an appeal against conviction on indictment, was discussed in detail by this Court in Kurtic (1996) 85 A CrimR 57 at 59-60, and it is unnecessary to repeat here what was said there. In hearing appeals from such convictions, even where the trial was by judge alone without a jury, this Court has no power to rehear the issues at the trial or to make any finding which could have been made in the court of trial." 15 Gleeson CJ at 261 agreed with Hunt CJ at CL's reasons subject to one qualification. The Chief Justice said: "As at present advised, I am not convinced that the key to the understanding of the nature of the appeal is to be found in the application, or rejection, of the description 'rehearing'. On any view of the matter, the present appeal, if leave were granted, would be an appeal against a decision that was both interlocutory and discretionary. Quite apart from the absence in s5F of the Criminal Appeal Act 1912 (NSW) of any reference to a rehearing, those aspects of the appeal have significant consequences as to its character. The nature of an appeal by way of rehearing was explained by Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 619. The question whether an appeal is by way of rehearing is not identical with the question whether, on an appeal from a discretionary judgment, the appellate court is either entitled or obliged to exercise its own discretion afresh, even in the absence of demonstrated error by the trial judge: House (1936) 55 CLR 499 at 504-505." 16 At 268 Hidden J said that he saw the force in the analysis of the nature of an appeal under s5F in Hunt CJ at CL's reasons and in particular his view that the court should not interfere with the exercise of a discretion by a trial judge unless error was shown. However, his Honour said that he preferred to express no concluded view. 17 It would not be going too far to say that counsel for the applicant in the course of submissions ranged widely over factual material and at the least came close to inviting the Court to re-consider it. Accordingly, it is not out of place to refer to what was said in House v The King (1936) 55 CLR 499 and to those cases which had been concerned with stay applications. In House v The King at 504-5 Dixon, Evatt and McTiernan JJ said: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide of affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 18 In R v Tolmie (unreported) NSW Court of Criminal Appeal, 7 December 1994, Hunt CJ at CL, with whom McInerney and Bruce JJ agreed, examined the basis upon which a permanent stay will be granted. His Honour said: "To justify such a stay, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing which the trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences: Barton v The Queen (1980) 147 CLR 75 at 111; Jago v District Court (1989) 168 CLR 23 at 34, 75; The Queen v Glennon (1992) 173 CLR 592 at 615-616. The right to a fair trial is entrenched in the criminal justice system, to ensure that innocent people are not convicted of criminal offences, and a stay of proceedings may be granted to prevent an unfair trial: Jago v District Court ( at 29, 56, 72). But that right must be balanced against the right of the community to expect that persons charged with serious criminal offences are brought to trial ibid (at 33, 72). In that sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed: ibid (at 30). The grant of a stay of proceedings is discretionary, and the circumstances will usually have to be extreme for such relief to be given: ibid (at 31, 60, 75); The Queen v Glennon (at 605, 615-616). The onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by the refusal of a stay is in the relevant sense unacceptable, to the extent that the trial would be unfair: Barron v AG (1987) 10 NSWLR 215 at 219, 233; Regina v Basha (1989) 39 A CrimR 337 at 338; Regina v Laurie Peter Helmling (CCA, 11 November 1993, unreported) at 4)." 19 Later in his judgment, the Chief Judge pointed out that a likelihood that the prosecution will fail is not the same thing as saying that it is doomed to failure. "There is a very real distinction to be drawn between the power of the courts to stay proceedings permanently and the discretion of the prosecutor to file a no bill; cf R v Maxwell (1994) 34 NSWLR 606 at 608F-G, where reference is made to Connelly v DPP [1964] AC 1254." 20 The decision of the New South Wales Court of Criminal Appeal in Maxwell was reversed by the High Court; Maxwell v The Queen (1996) 184 CLR 501. At 512 Dawson and McHugh JJ said: "Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial; see Barton v The Queen (1980) 147 CLR 75 at 90-91, 96." After referring to R v Brown (1989) 17 NSWLR 472, Dawson and McHugh JJ said at 514: "The court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion is undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise." 21 At 534 Gaudron and Gummow JJ, speaking of the "prosecutorial discretion" said: "The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what; Barton v The Queen at 94-95; Jago at 38-39, 54, 77-78; Williams v Spautz (1992) 174 CLR 509 at 548; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75." Judgment on Application to Reverse Order of Trials 22 In his reasons for judgment delivered on 7 November 2000, Acting Judge Flannery said: "The Crown proposes in the false testimony charge to rely on the evidence given by the accused before the Royal Commission into the Police Service conducted by Mr Justice Wood. I do not agree with what Mr Rea swore in paragraph six of his affidavit, therefore as a matter of logical sequence it follows that the bribery charges should proceed the false testimony charge. In paragraph thirteen Mr Rea avers to, there is no plausible reason why the decision to reverse the order was made. To my mind, there is a plausible reason which, to my mind, is legitimate. There are probably a number of plausible reasons but one is that it seems to me to be beyond serious dispute that the false testimony trial will be a shorter trial than the bribery type charges. One does not have to be imaginative to assert that proposition because the previous trial of those matters took approximately two months. The Crown proposes to prove its false testimony charge by reference to certain passages in the evidence given by the accused at the Royal Commission plus some evidence that Mr Haken at the relevant time or times was a police officer. It is submitted in the affidavit in paragraph fourteen that to commence with the false testimony trial is tantamount to an abuse of process. Although many words have been spoken about this subject in this proceeding I do not propose to add to those words, it is sufficient for me to say that I do not think that the exercise of such a discretion by the Crown amounts to an abuse of process nor do I think that such a reversal would unfairly prejudice the accused." It is useful to observe that ordinarily, though perhaps not exclusively, abuse of process would connote bad faith or oppression. 23 Counsel for the applicant criticised this passage in the reasons for judgment. He submitted that a large part of the two months spent in the hearing of the previous trial was taken up with the voir dire and arguments about the admissibility of evidence. The bribery type charges re-trial would be considerably shorter. Even so, the nub of Judge Flannery's comment was that beyond serious dispute the false testimony trial would be shorter than the bribery type charges trial. 24 After the passage which I have quoted, Judge Flannery said: "The law on the subject is probably nil when one considers the precise subject with which we are dealing…." 25 In some way it was suggested that the learned judge had overlooked or not taken account of the law about abuse of process and unfair prejudice. This is not what his Honour meant and what he said discloses no error. The nub of the applicant's argument was that a trial on the false testimony count would expose the applicant, if he gave evidence which he might be bound to do in order to defend the charge, to cross-examination about the events of 16 November 1994 which could then be used by the Crown at the re-trial of the bribery type charges. 26 There is no principle that, where an accused person faces separate trials, he is entitled to have the trial of the more serious offence concluded before facing trial on the other charge; Regina v Van Phu Ho (unreported) NSWCCA, 18 July 1994; R v Pirrottina (unreported) NSWCCA, 27 September 1996 at 9. In Ho the appellant was charged with a State offence of supplying heroin and a Federal offence of importing heroin. The trial date for the State offence was fixed first. It was submitted on behalf of the applicant that the prosecution of the relatively more minor State offence before the trial of the more serious importation offence constituted a procedural irregularity and that the Federal prosecutor intended to adduce the same evidence as that put forward in the State matter as an overt act in its prosecution. At 5 in his judgment, Mahoney JA, with whom Gleeson CJ and Dunford J agreed, said: "As Mr Drake has pointed out, his Honour was conscious of the fact that, as he said in his judgment, the sale of the heroin which is the substance of the State charge 'represents an overt act relied upon by the Commonwealth DPP in its case'. His Honour took that into account in deciding what he should do. Whether his Honour was right or wrong in the exercise of his discretion, there was no error of principle involved. But taking the matter beyond that, I do not think that if there was any irregularity it is one which would warrant this Court's intervention. The two trials are to proceed at different times. Having regard to what has been said about them, I do not think there would be any prejudice warranting the grant of leave to appeal or the upholding of an appeal in a case such as this because of the sequence of them." 27 In Jago which concerned an application for a stay of a prosecution on grounds of unreasonable delay, Brennan J observed at 49-50: "By the flexible use of the power to control 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 they 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 …… 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. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from the delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. It is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for there would be largely discretionary. If permanent stay orders were to become common place, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind." 28 In my opinion it was entirely in the discretion of the Director of Public Prosecutions to decide in which order the trial on the false testimony and the re-trial should take place. Nor do I think a change, if there was one, once the trial on the three counts had finished with a hung jury can be validly criticised. In my opinion, no ground was shown which required Judge Flannery to exercise his discretion in a way favourable to the applicant. Judge Flannery referred to R v Brown, which the High Court approved in Maxwell. His Honour quoted the following passage at 481: "It can be said, however, that although the discretion of the prosecuting authorities in this regard is not absolute and unfettered in the sense that the court is powerless to intervene, the discretion is very wide and in its exercise the authorities are entitled to take account of practical considerations including matters relating to the availability of resources. To describe a bona fide decision by the Director of Public Prosecutions as an abuse of the process of the court is no light matter, and courts should pay due regard to the consideration that it is the executive which is entrusted with the primary responsibility of making decisions of this character." 29 I am quite satisfied that Acting Judge Flannery properly took account of the arguments that were put to him and no ground is shown for interfering with his Honour's conclusion that the discretion exercised by the prosecutor was a correct exercise of discretion and a sensible exercise of discretion. It was not, in any relevant sense, so prejudicial to the applicant that nothing the trial judge could do in the conduct of the trial could relieve the applicant against its unfair consequences so that this Court was called upon to intervene. Judgment on the Stay Application 30 Acting Judge Flannery observed that the stay grounds were numerous and referred to the factual background as follows: "In relation to what has been called by others the bribery type offences that allegedly occurred on 16 November 1994, they occurred in a hotel called Hart's Hotel. The meeting, appears to have been initiated by Trevor Haken and he certainly had with him a tape recorder and the conversation was taped. The tape initially of the conversation I just adverted to was, to my mind, substantially unintelligible but the Crown managed to obtain a CD and I did not think that the CD was unintelligible The Crown also proposes to tender a transcript of that CD. It was not until 26 June 1998 that these proceedings were commenced and I mean all the charges were laid. That was a considerable time after the bribery offences are alleged to have occurred, between three and four years, and a considerable time after the alleged false testimony occurred, nearly three years. The Royal Commissioner reported on 26 May 1997. There were, of course, committal proceedings and there was a problem at the committal proceedings, as not infrequently happens, where more than one person from the prosecution side was involved in the matter. Without identifying anybody (I do not think it is necessary) the first person I do not think had carriage of the matter and it was indicated that Mr Haken would be available for cross-examination. When the person who had the carriage of the matter, returned to the forensic arena she took the view, and persuaded the Magistrate of the efficacy of it, that Haken be not called at the committal. That led to consideration of an appeal to the Supreme Court and that, without going into great detail about it (I think it is unnecessary) did not proceed but there were negotiations about the matter which almost came to fruition but ultimately agreement could not be reached. Prior to the first trial which was of the bribery counts, it being common ground that the perjury count should be dealt with separately and as a back-up trial, the accused had a Basha inquiry of Mr Haken, which opportunity was availed of, and he was also cross-examined at the trial. So the problem of him not being cross-examined at the committal, I would have thought, was solved by the permission given by his Honour Judge Coorey, quite properly with the utmost respect, to allow the accused a Basha cross-examination of the principal Crown witness, Mr Trevor Haken. The trial before Judge Coorey in all took approximately two months, approximately half of the period was voir dire time and the balance was trial time. On all counts the jury were unable to agree upon a verdict. The back-up trial of perjury or what might be safer to describe as false testimony, a charge not under the Crimes Act , but under the Royal Commission Act , s21. This did not commence shortly thereafter the disagreement was announced, in fact it remained in the Registry and the arrangement to have it heard second was made prior to the Judge Coorey trial. On or about 18 August 2000 the Chief Judge was advised by the Crown that he was proposing to commence the false testimony trial and finalise the false testimony trial prior to the commencement of the trial for the other three counts. That communication was put into writing on 5 October 2000. The particulars have been the subject of some complaint by the accused. Particulars were given on 11 May 2000 and those particulars are contained in exhibit 5 on the voir dire." 31 Acting Judge Flannery said the grounds in support of the application were that it was likely that the second trial of the three bribery type charges would produce the same result or an acquittal. His Honour continued: "It is stated, in the affidavit in support, that all indications are that a second or subsequent trial would produce the same result as the first trial. Not only did the jury disagree but they had an opportunity prior to summing-up to consider the matter because his Honour gave what is called a Prasad direction and they deliberated on the Prasad direction for about an hour and a half and decided they would hear more. For completeness it is not unworthy of note to state that the accused did not give evidence at the trial. The accused relies on the jury disagreeing and the fact that his Honour gave a Prasad direction as part of the basis for a stay. The next basis is that Mr Haken, who on the previous trial was the principal witness, had been discredited and that it would be unlikely for any jury of twelve to agree to convict on his evidence. The next ground is that the cases on the bribery type counts are not merely weak but they are non-existent. On the first count it is put that the accused's name was never, currently in any event, or proximately to the commencement of these proceedings, on any Australian Federal Police brief. As regards the second count the accused, through his counsel, submits that there was no course of justice, Rocky had been imprisoned and was on parole but there was no current matter, no current charge, no current arrest, no current proceeding. It follows that Mr Bonnici says that in both counts one and two there is no case. As regards the third count, as I understand it and I do not pretend to completely state Mr Bonnici's submissions, but he points to difficulties for the Crown in relation to that count, the use of the words 'in relation to the affairs of the Crown', the weakness, which I will come to later, as to the proof of the payment of two hundred dollars and of course the previous weak case, this is in counts one and two, which I have adverted to, so he submits in effect, as I understand it, that there really is not a case, it is not just a matter of them being a weak case." 32 His Honour said that he did not regard the application as frivolous but he had three problems with it. He stated these as follows: "One is, and I am not suggesting I am bound by his decision on this, but one is that my predecessor, his Honour Judge Coorey, allowed these matters to go to the jury. My second difficulty is that it is my view, and I am not overly confident that I am correct, but it is my view that it has to be a hopeless prosecution before a stay is granted when the proper course would be to hear some evidence and if the submission is sound direct a verdict. It has to be a case which is plainly hopeless. My third concern is that since 1990 the law on this subject of perverting the course of justice has altered somewhat and I know of no authority on it and counsel have been most assiduous, and I use that word in the plural, I use the word counsel in the plural, have not taken me to any authority on the subject. I refer to s312 of the Crimes Act . 'A reference in this part to perverting the course of justice is a reference to obstructing, preventing, perverting, or defeating the course of justice or the administration of the law.' Now we have this addendum to that crime, formerly a common law crime, of the words 'or the administration of the law.' Now I do not know what is comprised in the administration of the law, I doubt that anybody could say that they know, and for that reason I do not think it is appropriate (in addition to the other two reasons I have given) to deal with the matter on an interlocutory application and stay proceedings. It is a matter which ultimately may have to be resolved by the Court of Criminal Appeal, or indeed the High Court, maybe not in this case but on some other occasion. The accused correctly said about the first tape that was played that it was bad and plainly ambiguous. I do not think that is the case in respect to the CD which is now being played. As regards the transcript it may be, and I say no more than that at this stage, that the person who transcribed it may have to be called. It seems to me on my reading of the majority judgments in Butera , I am not referring to the dissenting judgment of her Honour Justice Gaudron, that the transcript, if proved, would be admissible." 33 His Honour then referred to passages in the decision in Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 and the approval in the joint judgment of a statement by Cooke J in R v Menzies [1982] 1 NZLR 40 at 49. 34 Acting Judge Flannery continued: "A further argument of the accused is that entrapment occurred relying of course on the popular case of Ridgeway (1995) 184 CLR 19." His Honour cited the judgment of Mason CJ, Deane and Dawson JJ and came to the conclusion that in the dichotomy between cases in which the police conduct has induced an accused person to commit the offence which he or she has committed where the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations and the case where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes and essential ingredient of the charged offence. His Honour said: "I think that assuming inducement that public interest in the conviction and punishment of those guilty of crime prevails, however, it seems to me that it has not been established that Haken's conduct, or Miller's conduct, has induced the accused to commit any crime if he has committed any crime. True it is Haken, on the evidence so far anyhow, initiated the meeting. True it is he brought along a tape recorder, but it does not seem to my mind, on reading the transcript here, that the accused has satisfied me that he has been induced to commit these offences." 35 Next the judge dealt with reliance placed upon cost and medical evidence and observed that counsel indicated that he did not rely on one single matter which would warrant the stay but the totality of events which had occurred. His Honour observed: "There is also criticism of the fact that in the tape and in the video of course nobody ever says money passed over on the tape and it is not visible on the video and whilst I only know this from the no bill application made by Mr Bonnici in 1999, neither surveillance officer can say they actually saw the actual money at the time Haken picked up the cigarette packet. The remarks I have made so far, although purporting to be general, have been dealing more particularly with the three bribery type counts. The application for a stay also relates to the perjury count and as I understand it, although the written submission on the subject was put with more vigour, in respect to what happened at the Royal Commission, what Mr Bonnici put to me here was not that the Commissioner, or counsel assisting, did anything improper in their questioning of the accused at the Royal Commission, it is that the ambit of what is appropriate at a Royal Commission is a wider ambit than the ambit of what is appropriate in a trial in this Court, particularly in a jury trial and that without being in any way critical in his submissions orally as to the conduct of the Royal Commissioner and counsel assisting he says that if this tape is played or if the transcript is shown to the jury as an exhibit or otherwise then that presents a different picture and if that is the way the Crown is proposing to present its case on that count, and it is, that the proceedings should be stayed. In addition to that the accused submits that the reality was not that he deliberately gave false testimony but that by reason of his state of health, activities the night before, his injuries sustained when he was a boxer, and his general psychiatric condition was such that he was not in a position to do himself justice in the somewhat difficult climate of being called as a witness in a Royal Commission in these circumstances and that whereas he did not acquit himself as one would expect of an experienced witness, he did not commit perjury." 36 Acting Judge Flannery expressed his interim conclusion on those matters as follows: "I think all those matters are not matters warranting a stay but they are certainly matters of fact, they are matters of weight, they are matters that are properly to be considered by the jury." 37 The judge then continued: "There was reference to the imperfections in the bribery count indictment and that have occurred from time to time. Mr Bonnici submits that particularly in relation to counts one and two that they are in general terms and that the pleader should set out the conversation. Well I have anxiously looked at what I have always regarded as the authority on these subjects, Archbold, and I have not found anything and counsel have not referred me to anything which would suggest that it is inappropriate, or wrong, or unfair, to aver as has been averred. The averments, as I see them, asking Haken to speak with a person at the AFP with a view to removing Giovannone's name from an Australian Federal Police brief and ask Trevor Haken to provide protection from arrest for a drug dealer named Rocky, to my mind adequately set out the case sought to be made against Mr Giovannone. No motion has been taken out to quash the indictment, no demurrer has been taken and I think that was a proper decision. I do not think it is unfair to ask an accused to deal with the indictment in the manner in which it has been averred." 38 At that point the trial judge indicated that he proposed to refuse the application but said that he would conclude his remarks on the following day. On 9 November 2000 he turned to consider the District Court decision in DPP v Hardas (unreported) 2 September 1999. In that case, which also involved Haken, Judge Viney had, pursuant to s138 of the Evidence Act 1995 (Cth) excluded evidence of conversations between Haken and the accused. As the result of his doing so, Judge Viney concluded that there had to be an acquittal. Judge Viney said to the jury: "This man is charged with attempting to pervert the course of justice and you will see from that evidence that all the movement about getting money came from Haken and Fowler". Acting Judge Flannery considered there was a point of distinction between this case and that of Hardas. His Honour said: "I have read the listening device transcript of the conversation at Hart's Hotel between Haken and the accused, exhibit 7 on the voir dire , and it seems to me that the comment made by his Honour Judge Viney, which I have just quoted, is not applicable to this case. I might say so with respect, even Mr Bonnici who does not miss any arguments which are possibly in his favour, concedes that the Rocky count, the Rocky element, was introduced by his client. There can be some argument as to whether the Rubber element or the Rubber count was initially introduced by Mr Giovannone or Haken. I say that by reason of the strange banter which nearly always is the situation in this type of case between police, undercover people and the accused. The situation is not sufficiently clear to me to warrant the granting of a stay on the Rubber count. For those reasons, whilst I do not in any way suggest that I disagree with the decision of his Honour in the case he was dealing with, my view is the case is distinguishable. A few other matters of less importance on that subject, one is that his Honour did not grant a stay of proceedings in that case. The other of course is that another distinguished brother, Judge Coorey, was asked to stay the proceedings in this matter and his attention was drawn later in the case when at the stage where it was appropriate to apply for a direct verdict, to wit the end of the Crown case. The accused counsel referred to the Hardas case then. So if one is talking about judicial comity, I do not see it as the case but it could be that I have two persons who may have come to different decisions. But I do not think that is the case. I think Judge Viney was dealing with a different factual situation from that which Judge Coorey and I are dealing with in this case. For those reasons I distinguish Hardas's case from the present. Finally unless something has happened unbeknown to me, Jago is still the law. The then Chief Justice Sir Anthony Mason says in Jago , at 31 that the power to stay should be used only in most exceptional circumstances. His Honour also said at 34 on this occasion, '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 a trial judge can do in the conduct of a trial can relieve against its unfair consequences".' Citing I might add Mr Justice Wilson in Barton . Despite the accumulation of matters adverted to by Mr Bonnici I do not see any prejudice to the accused in commencing this trial. Tapes and transcript are available. It is only a conversation in relation to all matters between Haken and the accused. It is not as if there has been any dead, ill, overseas witness or any other reasons which might warrant further consideration for a stay. And for all those reasons, including of course what I said yesterday, the application for a stay of proceedings on all counts on both indictments, is refused." 39 As I indicated during argument, I have some difficulty with the proposition that in the exercise of discretion to stay the proceedings in the present case it was relevant to compare another different case and examine how the discretion was exercised by another judge in that case. 40 The material put before Judge Flannery was again in some detail rehearsed before this Court. What, to my mind, was not demonstrated was error. It was not suggested that Acting Judge Flannery had not taken into account the material put before him and I do not think that it can be said that the conclusion he reached was so unreasonable or plainly unjust that we should infer that there had been a failure properly to exercise the discretion. 41 Mr Bonnici, who appeared for the applicant, with force and skill went over a good deal of the material that was relied upon before Acting Judge Flannery in both applications. In light of my view that no error was demonstrated, there is no purpose in dealing with this review of the material in detail. Some time was spent looking at the transcript of the taped meeting between Mr Haken and the applicant. Nothing that we were taken to seemed to me to indicate that this material could not be admitted or if admitted would not have supported the bribery type charges. These are matters eminently for the trial judge and the jury and not for this Court. Similarly, submissions put about the form of the indictments are submissions to be put to the trial judge. Under both heads it is significant that the Crown case as alleged was thought appropriate to put to the jury. Moreover, at least one member of the jury apparently was not prepared to acquit. As part of the argument that the continuance of these prosecutions was an affront to the public conscience we were referred to the indemnity from prosecution granted to Mr Haken on 21 August 1995 and an imposing list of offences of corruption and dishonesty by Mr Haken beginning in the early 1970s and continuing to the early 1990s. By contrast the applicant was being brought to trial on four less serious offences without any significant criminal history. This submission is misconceived. It may be that if Mr Haken had not been granted immunity or if the immunity had been granted other than for proper reason the failure to prosecute him would be an affront to the public conscience. But whether that is so or not it does not to my mind mean that that affront carries over to or affects the propriety of prosecuting the applicant. 42 Acting Judge Flannery carefully and conscientiously reviewed and dealt with the material put before him in the application for the stay. His Honour rightly recognised that he should only grant the stay in the most exceptional circumstances and cited the passage from Jago which is restated, as I have already quoted it, in Tolmie. Acting Judge Flannery properly instructed himself. There is no error and no reason for us to interfere with the result that he reached in the exercise of his discretion. Conclusion 43 The result is that, in my opinion, leave should be granted on both applications to this Court but that in each case the appeal should be dismissed. 44 GROVE J: I agree with Sheller JA. 45 KIRBY J: I agree with Sheller JA. ***** 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.