R v Spadina [2013] NSWSC 4

Supreme Court New South Wales

Medium Neutral Citation: R v Spadina [2013] NSWSC 4 Hearing dates: 11 December 201218 December 2012 Decision date: 18 January 2013 Jurisdiction: Common Law - Criminal Before: Price J Decision: 1.The trial date of 4 March 2013 is vacated. 2.The accused is to serve on the Commonwealth Director of Public Prosecutions no later than 28 January 2013 a schedule of up to 400 items of the missing Dutch electronic material for which he requires transcripts from the National Police Agency of the Netherlands' BVO system. The schedule is to specify (so far as possible) the warrant ID, record ID, MSN ID and telephone number for each item. 3.Upon receipt of this schedule in accordance with order 2, the Commonwealth Director of Public Prosecutions is to apply no later than 4 February 2013 to the Attorney-General (Cth) for an urgent request to be made under the Mutual Assistance in Criminal Matters Act and the Mutual Assistance in Criminal matters (Kingdom of the Netherlands) Regulations to the Kingdom of the Netherlands for the provision of the material specified in the accused's schedule and the transcripts of the Von Hohenberg phone calls that were intercepted by the Austrian and German Authorities. 4. The accused's trial is to be temporarily stayed until the provision of the requested material or further order of the court. 5. All further requests by the accused for audio recordings of his telephone calls that were intercepted by the Australian Federal Police are to be made to the Commonwealth Director of Public Prosecutions no later than 8 February 2013. Any such request is to precisely identify the telephone call for which the audio recording is required. The audio recordings requested are to be provided to the accused no later than 27 February 2013. 6. The proceedings are to be listed before Latham J on 1 February 2013 for mention. Catchwords: Criminal Law - application for temporary stay of proceedings - missing Dutch intercept material - whether "on the cards" material would assist the accused - whether risk that the trial would not be fair. Legislation Cited: Criminal Code (Cth) 1995 s 307.11(1), s 11.5(1) Drug Misuse and Trafficking Act 1985 (NSW) s 25(2), s 27 Mutual Assistance in Criminal Matters Act 1987 (Cth) Mutual Assistance in Criminal Matters (Kingdom of the Netherlands) Regulations Telecommunications (Interception and Access) Act 1979 Cases Cited: Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302 R v Watt [2012] NSWSC 1574 Re K [2002] NSWCCA 374 Category: Interlocutory applications Parties: Radoslav Spadina Commonwealth Director of Public Prosecutions Representation: Counsel: Mr H Dhanji + Ms S Beckett (respondent) Mr A Djemal (applicant) File Number(s): 2008/250866