R v Tasich (No 2) [2012] NSWDC 262

District Court New South Wales

Medium Neutral Citation: R v Tasich (No 2) [2012] NSWDC 262 Hearing dates: 4 December 2012 Decision date: 04 December 2012 Before: Neilson DCJ Decision: Notice of motion dismissed Catchwords: CRIMINAL LAW - Stay application - Knowingly give false evidence to ICAC - Accused acquitted on separate charge of bribery - Application for stay of proceedings rejected by trial judge - Hung jury at first trial - Crown rejected application for entry of nolle prosequi - Question of requirement to give reasons for accepting or rejecting request for nolle prosequi - Applicability of issue estoppel in criminal proceedings - Question of abuse of process - Whether use of Court's procedures unjustifiably oppressive - DPP Prosecution Guidelines Legislation Cited: Crimes Act 1900 s 249B(2)(a) Independent Commission Against Corruption Act 1968 s 87(1) Cases Cited: Darwich v R [2011] NSWCCA 62 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 R v Selim [2007] NSWSC 154 R v Seller [2012] NSWSC 934 R v Tasich [2012] NSWDC 96; (2012) DCLR (NSW) 261 Rogers v R (1994) 181 CLR 251 Williams v Spautz (1992) 174 CLR 509 Category: Interlocutory applications Parties: Regina (Crown) Lou Tasich (Accused) Representation: Mr G Corr (Crown) Mr G Wendler (Defence) File Number(s): 2009/264101

Judgment 1This is an application by the accused for a stay of proceedings. The application for the stay is opposed by the Crown. 2It is important to bear in mind the chronology of the matter. In June 2007 the Independent Commission Against Corruption (ICAC) commenced an investigation into allegations of impropriety in the administration of the Wollongong City Council. Those investigations including the giving of development consents for Council property and dealings between property developers and members of the Council. 3In September 2007 the accused gave evidence to ICAC. That was at a compulsory Examination. On 3 December 2009 there was the first listing before this Court of charges against the accused arising from the ICAC investigation. There were four charges. The charges included the three on the current indictment and a charge of corruptly offering a financial benefit as an inducement, a charge contrary to s 249B(2)(a) of the Crimes Act 1900. The three charges on the current indictment are of offences contrary to s 87(1) of the Independent Commission Against Corruption Act 1988 (the 'ICAC Act'). 4On 22 February 2011 the solicitors then acting for the accused wrote to the DPP. The substance of the letter is this: "You would now be aware that the allegations against our client have now been adjourned for mention at the Sydney District Court on 18 March 2011. Prior to that date we would ask that the Director of Public Prosecutions consider splitting the indictments [sic] so that there would be two separate trials with respect to the allegations against our client. It is submitted to you that the Crown ought to bring one indictment for the allegation of 'Corruptly offering a benefit to Mr Peter Coyte on 2 May 2007' and a separate indictment for the allegation of 'Knowingly give false evidence to ICAC either on 27 September 2007 and 19 September 2007'. 5Whilst it is acknowledged that it is the allegation of 'corruptly offering a benefit' which led to the ICAC investigation we submit to you that firstly, it would be prejudicial to our client to have both allegations dealt with together and further that the evidence which relates to the 'corruptly offering a benefit' derives from different witnesses to the ICAC allegations and ought to be dealt with separately. 6Should the Crown not agree with this submission then the writer has instructions to file a Notice of Motion and put an application before the court for separate trials. 7Should it be the intention of the Crown to accede to this submission then we would ask that the Crown respond in writing and advise the defence as to which witnesses and which documents the Crown would seek to rely upon with respect to each of the separate trials." 8The Crown did not oppose separate trials, as evidence admissible on the current charges, that is, knowingly giving false evidence, was not admissible in relation to the bribery charge and the resultant prejudice could not, in the opinion of the DPP, be cured other than by separation of the counts. When the matter came back before the Court on 18 March 2011 fresh indictments were filed. The present indictment contained three counts. They are these: 1. On 19 September 2007, at Sydney, in the State of New South Wales, at a compulsory Examination conducted by the Independent Commission Against Corruption, [the accused] gave false evidence in a material particular, namely, that at lunch meetings with Peter Coyte at which Wollongong City Council car parks were discussed, Peter Coyte had solicited a corrupt benefit from him, the said Lou Tasich knowing the statement to be false. 2. On 27 September 2007, at Sydney, in the State of New South Wales, at a compulsory Examination conducted by the Independent Commission Against Corruption, [the accused] gave false evidence in a material particular, namely, that he, in March 2007, had complained to Noreen Hay that Peter Coyte had sought a corrupt benefit from him, the said Lou Tasich knowing the statement to be false. 3. On 27 September 2007, at Sydney, in the State of New South Wales, at a compulsory Examination conducted by the Independent Commission Against Corruption, [the accused] gave false evidence in a material particular, namely, that he, in February 2007, had complained to Frank Gigliotti that Peter Coyte had sought a corrupt benefit from him, the said Lou Tasich knowing the statement to be false. 9The evidence is that Ms Noreen Hay was the member of the Legislative Assembly for Wollongong and that Mr Gigliotti was then a member of the Wollongong City Council. The Court ordered that there be two trials, one on each of the indictments and that those two trials run consecutively. The trial of the bribery offence commenced on 7 November 2011 before Norrish DCJ and a jury. On 21 November 2011 that jury found the accused not guilty of the bribery allegation. Although back to back trials had been ordered, the trial of the current charges could not commence because his Honour was required to go to the country on circuit and the Crown Prosecutor had an overseas commitment, and because the bribery trial had run for much longer than expected. The current charges were then listed for hearing on 13 June 2012. 10On 15 May 2012 the accused made an application to the DPP for the entry of a nolle prosequi. That application was received by the DPP on Thursday 17 May 2012. The accused was not given any written or oral response to his application until 13 June 2012, when the prosecutor advised the accused's counsel that the prosecution would proceed. The matter was listed before Knox DCJ on 13 June 2012. I have been told, without objection, that that day was taken up with legal argument. On 14 June 2012 a jury was empanelled but no evidence was adduced. His Honour was required to deal with an application for a stay of proceedings. On the morning of Friday 15 June 2012 his Honour gave short oral reasons for rejecting the application for the stay of proceedings and advised counsel that he would deliver more detailed written reasons later. His Honour did so: R v Tasich [2012] NSWDC 96; (2012) DCLR (NSW) 261. 11The first witness in the Crown case was then called, Mr Peter Coyte. On 26 June 2012 his Honour discharged the jury, which was unable to reach either a unanimous verdict or a majority verdict in relation to any of the three counts contained in the indictment. His Honour ordered that the matter be listed before the list judge on Friday 17 August 2012 for further listing. 12On Wednesday 11 July 2012 the accused made a further application to the DPP for the entry of a nolle prosequi. That application was received on Thursday 12 July 2012. On the evening of 16 August 2012 a solicitor from the office of the DPP telephoned the accused's solicitor Ms Barbara Green. The evidence of Ms Green on that issue is this: "On or about 5pm on the day before the mention date i.e. the 16 August I received a phone call from the DPP solicitor in the matter who informed me that the matter would proceed. As best I can remember the short conversation went as follows and to the effect: I said: 'I can't believe that. Of all the trials! Why would you expect to get any different result when the two juries didn't convict our client'[.] She said: 'We usually proceed when there's only been one trial and we think Coyte is a strong witness.'" 13The matter came before Acting Judge Madgwick on 17 August 2012. His Honour was the list judge. His Honour was advised that the current accused would be making an application for a stay of proceedings. With the consent of the parties, his Honour fixed today for the hearing of that application. In the meantime, the accused filed a formal notice of motion which prays for a permanent stay, "by reason of unfairness and oppression and therefore an abuse of the Court's process". The notice of motion then recites that the accused was relying upon an affidavit of Ms Barbara Green. That affidavit was sworn on 20 November 2012, and has become exhibit 1-1. 14The first four paragraphs of the affidavit essentially recite historical matters about the litigation which I have already described. Paragraphs 5 to 14 of the affidavit discuss evidentiary matters arising from the trial of the bribery matter and arising from evidence given at the trial that had been commenced by Knox J on 13 June 2012. The affidavit then recites the making of the earlier application for a nolle prosequi and the refusal by Knox DCJ of a stay of proceedings. 15The 17th, 18th and the first part of the 19th paragraph of the affidavit are these: "17. On or about 11 July 2012 a further application was made to the DPP that, given the history of the litigation to date, further consideration be given to entering a nolle prosequi to the second indictment. 18. The allegations are now over five years old. Identical evidence to be given for the third time if the second indictment is to proceed. The prosecution witnesses will be giving evidence for the third time, and, in respect of the core prosecution witnesses, if one counts their evidence at committal and the ICAC for the fifth time!, the accused who is now an undischarged bankrupt will be giving evidence for the third time and, if one counts his evidence before the ICAC, the fifth time! 19. The matter was listed before the District Criminal Court for mention on 17 August 2012. On that day it was indicated to the Court that the interlocutory hearing date was sought for an application to stay the indictment. The listing judge, Madgwick DCJ, listed the stay matter for hearing on 3 December 2012." Ms Green then sets out the telephone call of 16 August 2012, which I have already quoted. 16The application made to the DPP dated 11 July 2012 is exhibit 3-3. Commencing on p 3, it sets out reasons why consideration should be given to the filing of a nolle prosequi. That again sets out evidence concerning count 1, count 2 and count 3, making, after each of the discussion of the evidence concerning the counts, the allegation that, if there be another trial, the witness in question would have to be recalled and would be examined and cross-examined, if one included the committal, for the fourth time. That allegation is made in respect of the evidence of Mr Peter Coyte, Ms Noreen Hay, a Ms Lylea MacMahon and Mr Gigliotti. This submission is then made: "The controversies, if there be another trial, will be agitated for the fourth time. There can be no doubt that a further trial will create anxiety and discomfort for the aforementioned core prosecution witnesses and other witnesses when they learn that they will be compelled to attend court for the fourth time to be examined and cross-examined about matters previously traversed in detail - I understand that some of the witnesses now reside out of the State of NSW." 17The antepenultimate paragraph refers to certain of the personal circumstances of the accused, namely that he is fifty-two years of age and has no criminal record other than for some traffic offences, that he is an undischarged bankrupt, with the sole custody of a seven year old daughter, that his brother had recently died, leaving him to be the sole carer of his eighty-year-old mother who suffered from dementia. The penultimate paragraph refers to the undoubted cost to the State of a further trial lasting an estimated two weeks. The final paragraph prayed for some consideration of the application prior to the callover on 17 August 2012. 18The accused, by his counsel, asks me to look not only at one particular aspect of the case, but to look at the "picture", to look at the matter in globo. Much was made initially about the fact that the outcome of the bribery trial indicated that the current case against the accused might be very weak and it was, at one stage, submitted that the only inference to be drawn from the verdict of not guilty to the bribery charge was that the jury implicitly rejected the evidence of Mr Peter Coyte, the principal Crown witness, and accepted the evidence given by and on behalf of the accused. Implicit in such submissions was an earlier rejected contention that there would be an inconsistency between any conviction on the current charges and the acquittal on the earlier charge. That earlier decision was one made by Judge Knox, with which I wholly concur. At [23] Judge Knox said this: "The Crown case was that, knowing an allegation had been made against him of bribery, the accused made a counter-assertion against Mr Coyte with an erroneous and false chronology, to deliberately blacken Mr Coyte's name or at least to deflect attention from his own actions. On the Crown case, this was not a case of a mistake as to a date but was rather a deliberate and false account given to ICAC in circumstances where the accused knew the false material was both important to the Commission's determination and serious in its content." 19Commencing at [35] his Honour discussed the topic of "issue estoppel". His Honour said this: "35. I do not accept that the doctrine of issue estoppel applies to criminal trials. I note the comments in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at [2] and McClellan CJ at CL in Gilham v R at [144]. However, even if I am [sic] wrong on that, there is no authority of which I am aware which supports the proposition earlier relied on by Mr Wendler. Nor am I aware of any authority that an acquittal in an earlier trial following a contest of evidence between two witnesses necessarily means that a subsequent tribunal of fact is prevented from determining a similar contest of credibility between those two witnesses - especially where, as here, there are different charges and different issues of fact. 36. If what is now argued constitutes an abuse of process based on a giving of identical evidence in two trials, I do not consider that the accused has established the grounds to support that application. 37. These are separate and different charges (three counts of giving false evidence to ICAC) compared to an offering of a bribe. There are clearly different elements in relation to the different indictments. Certainly the Crown will have to consider the falsity of the statements made by the accused to ICAC on each of the counts in relation to the particulars alleged and the times alleged. 38. The factual matters relate to different events and time periods. The charges in this trial are brought under different legislation compared to that in the first trial. 39. I do not accept the interpretation nor the inevitability of the conclusion from the jury's verdict as urged upon me by Mr Wendler. Nor do I accept that the jury's verdict was such that the Crown is now estopped from re-asserting the conduct of the accused in this second trial. There are a variety of different reasons why the jury could have come to the verdict it did. Those could include, for example, that they did not believe Mr Tasich but were not satisfied on the evidence of Mr Coyte or that they were not satisfied that the other elements for those offences had been proved. 40. Mr Wendler has referred me to various authorities which relate to the law of double jeopardy. In short summary, the latter authorities make it clear that the Crown may not challenge the ultimate result in a previous trial where there was an acquittal. The Crown is clearly not seeking to do that here - rather the Crown is relying on the evidence given by the accused before ICAC to show that the complaints the accused made in his examination were false. 41. I do not find that the first trial has resolved all the issues to be determined in this trial. 42. While the earlier trial concluded the contest of evidence as between Mr Tasich and Mr Coyte on those matters in relation to the count on that indictment, what the present trial will deal with are different events and statements, not previously resolved against the Crown by earlier proceedings." 20All that has happened since his Honour ruled on the earlier application for the stay of proceedings was the trial for which the jury was empanelled on 14 June 2012, which jury was discharged on 26 June 2012 as being unable to reach any verdict on any of the three counts in the present indictment. That, in itself, adds nothing to the factual background of the stay application. Hung juries are not uncommon, and second and even third trials are very common. But there is no suggestion, for example, that there is any missing witness who cannot be called, that there has been a death or incapacity of any material witness, or that any evidence has been lost. 21However, there is one further ground for the accused before me. Before going to that, I should say something about the state of the law. There are a number of places in which the principles applicable to the granting of a permanent stay of proceedings are collected. The first convenient collection is in R v Selim [2007] NSWSC 154, a decision of Fullerton J. At [14] her Honour said: "The burden of establishing irredeemable unfairness so as to preclude a fair trial rests on the applicant and the onus in establishing it is a heavy one: R v Petroulias (2005) 62 NSWLR 663 at 688 [103-104]. I also proceed on the basis of long established principle[s] which emphasise that the grant of a permanent stay is a wholly exceptional remedy: Jago v The District Court of NSW [1989] 168 CLR 23 per Mason CJ at 31, Brennan J at 46-47, Dean[e] J at 56, Toohey J at 71, Gaudron J at 74-75; that it must be used sparingly and with the utmost caution; Jago v The District Court of NSW per Gaudron J at 76; and should be ordered only in an extreme case: Jago v The District Court of New South Wales [per] Mason CJ at 34. It has also been emphasised that it must only be granted where the applicant establishes that the claimed [sic] for unfairness cannot be remedied by other measures at the Court's disposal: Jago v The District Court of NSW per Mason CJ at 34 and Gaudron J at 75 and further, where it can be demonstrated that the Court's processes being utilised to try those charged with criminal offences will be abused if they are engaged for that purpose, such as to outweigh the legitimate public interest in bringing those charged with criminal offences before a court to enable the question of guilt to be tried in accordance with due process: R v WRC (2003) 59 NSWLR 273 at 282 [para 51-56]." 22There is also the decision of the Court of Criminal Appeal in Darwich v R [2011] NSWCCA 62 at [172]. That dictum was made by Johnson J, with whom McClellan CJ at CL and James J concurred. I will not read the dictum in full but I must point out that, again, the Court demonstrated that the onus of satisfying that there is an abuse of process lies upon the party alleging it and the onus is a heavy one. His Honour cites for that proposition the decision of the High Court of Australia in Williams v Spautz (1992) 174 CLR 509 at 529. 23The law is also conveniently recorded by Garling J in R v Seller [2012] NSWSC 934, where his Honour commenced to set out the legal principles at [204] and the state of English law at [216]. His Honour's consideration of the legal principles ends at [222]. In [210] his Honour pointed out that McHugh J in Rogers v R (1994) 181 CLR 251 at [16] pointed out that abuse of process cases normally fall into one of three categories. Those categories are: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." 24In the current proceedings the accused relies on the second category. However, the accused does not maintain that he will not obtain a fair trial but rather that given all the circumstances the continuation of prosecution would be oppressive. 25At [215] Garling J cited a dictum of Brennan J in Jago v The District Court of New South Wales at [28]. It is worthwhile repeating what fell from Brennan J: "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 interest 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. ... Refusal by a court to try a criminal case does not undo the anxiety and disability which pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim." 26When considering the law of England, Garling J pointed out that the English authorities divided cases into two categories: (a) where it would be impossible to give the accused a fair trial; and (b) where it offends the Court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. That appears to be the general principle upon which his Honour was relying in R v Seller, as is the second sentence of the two sentences in [208] of his Honour's consideration of the legal principles. 27It must therefore be clearly acknowledged that the circumstances in which the Court grants a permanent stay of proceedings are limited and the burden of proof lies upon the applicant, in this case the accused, and the onus of establishing it is a heavy one. Furthermore, the law basically requires that allegations of criminal behaviour be prosecuted so that the community be protected. 28Eventually the accused relied upon the proposition that he sought a stay because the Director of Public Prosecutions had not given a detailed or proper response to the accused's application for a stay of proceedings. Indeed, the accused went so far as to say that such a response ought be in writing. When pressed about the nature of the stay based on that ground the accused, by his counsel, essentially acceded, not formally, to the proposition that would only permit an interim stay of proceedings. The problem with this submission is that it is legally untenable. 29The Director of Public Prosecutions is not required to give any reasons for making a decision, let alone to give any reasons in writing. In the course of argument I suggested that, if the accused believed that the DPP was required to give him written reasons for failing to grant his application for the entry of a nolle prosequi, he could obtain mandamus from the Supreme Court. A response from Mr Wendler was that it was not necessary to seek mandamus because there was an alternative: a stay of proceedings in this Court. However, because the DPP is under no legal obligation to give any reasons for his decision-making, mandamus would not lie against him. 30Much was made by the accused of the Prosecution Guidelines issued by the DPP. An extract of them is before the Court as exhibit 2-2. Part 7 refers to the discontinuing of prosecutions. The relevant section of the Guidelines is this: "Accused persons or their representatives or prosecutors may make application that a charge or charges be discontinued or varied or that a bill of indictment not be found. Such applications are to be dealt with expeditiously. In considering and preparing such applications regard is to be had principally to three tests set out in Guideline 4, bearing in mind any additional considerations of fact or argument put forward by the defence. In trials and matters committed for sentence it is the responsibility of the Crown Prosecutor, Trial Advocate or Lawyer who authors the report to the Director's Chambers to ensure that the consultations with the police officer-in-charge and the victim described above have occurred. The views of the police officer-in-charge and the victim should be included in the report. However, if the police officer-in-charge or victim is not able to be consulted within a reasonable time, the attempts made to contact him or her must be described in the relevant report. After a decision has been made, the lawyer with the carriage of the matter must notify the police officer-in-charge and the victim of the decision as soon as practicable." 31The second paragraph in the quote is not directed, for example, to an accused's solicitor, or an accused's counsel, who may make an application for a nolle prosequi. It is an internal direction, clearly to prosecutors who seek that the charges be discontinued. I do not know the internal workings of the ODPP but I would expect that, if an application is made by a lawyer for an accused, it would be given to the lawyer at the ODPP with the conduct of the matter who would then prepare a report to either the DPP or one of his Deputies in order that a final decision could be made on it. Nowhere in the guideline is there any suggestion that there is any requirement to give reasons to anybody for either accepting or rejecting an application for a nolle prosequi. 32Mr Wendler, for the accused, sought to categorise the opinion expressed by the solicitor with the conduct of the matter at the DPP, with whom Ms Green spoke on the evening of 16 August 2012, as the reason of the DPP for refusing the application for the entry of a nolle prosequi. However, the opinion of that solicitor cannot be seen to be the opinion of the Director or one of his Deputies. Furthermore, it is only a statement of policy in the first clause of what the solicitor said and a statement of opinion as to the strength of a witness in the second clause of the sentence, and minds, of course, may differ as to whether a witness is a strong one or a weak one. Indeed that is why we generally have juries so that the decision making process is taken out of the hands of one person. 33The burden of proof on the accused is a heavy one. No concatenation of any of the reasons put forward persuades me in the slightest that the accused is entitled to the relief which he seeks. Taken individually, nothing supports a stay application. Even such arguments as there are which are valid taken in globo do not, in my view, provide sufficient grounds for the stay of proceedings. The only thing that really stands out in this case is the fact that the proceedings have been protracted and the witnesses may need to give evidence for either a fourth or fifth time. However, that is not uncommon in litigation in this State, either in this Court, the Supreme Court, the Local Court or in any other jurisdiction. It is not uncommon in the criminal jurisdiction of this Court and it is not uncommon in the civil jurisdiction of this Court. Re-trials are often ordered in each jurisdiction by the Court of Appeal or the Court of Criminal Appeal. I am aware of one such case that will come back shortly in the list, over which I preside, which will require a person to give evidence for the third time about events that occurred over ten years ago. 34The accused has the onus of proof and the accused has failed to discharge it. In my view there is no valid ground for granting any permanent stay of proceedings. The application is refused. Notice of motion filed 20 November 2012 is dismissed. Now I should send you off to see the List Judge should I not? WENDLER: Yes, it should go back to the List but I wonder if that could be not immediately so that we can have a week or so to study your Honour's reasons for judgment. HIS HONOUR: They will take longer than that to be transcribed. I think the chances of your appealing from my decision to the Court of Criminal Appeal bearing in mind House v The King is exceedingly remote. WENDLER: Well that is a matter for other consideration. HIS HONOUR: Indeed it is but I mean from my point of view what is important is that the matter gets on for trial and dealt with as soon as we can and delaying in granting a date-- WENDLER: No, no, I am not seeking six weeks or ten weeks, I am just seeking the matter be put over till the call over list not this Friday but next Friday. HIS HONOUR: That is the last day of term, it will be bedlam. DISCUSSION AS TO DATES Stood over for directions before the list Judge on Friday 7 December 2012.