R v Pratten (No 17) [2015] NSWSC 642

Supreme Court New South Wales

Medium Neutral Citation: R v Pratten (No 17) [2015] NSWSC 642 Hearing dates: 22 May 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Common Law Before: Rothman J Decision: 1. The trial date, being the trial date of empanelment of 1 June 2015, is vacated and the matter is listed to commence by empanelment on 15 June 2015. Catchwords: CRIMINAL LAW – application for indefinite adjournment of commencement of trial – accused without legal representation – degree of preparedness of accused to present own defence – resolution of pre-trial issues relating to admissibility of evidence – time remaining for resolution of further pre-trial issues – fairness to the accused – duty of courts to give party opportunity to present case but not to ensure that party take best advantage of that opportunity – accused not impecunious however grant of Legal Aid should not be withdrawn Cases Cited: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Sullivan v Department of Transport (1978) 20 ALR 323 Category: Procedural and other rulings Parties: Regina (Crown) Timothy Charles Pratten (Accused) Representation: Counsel: Regina (Crown) Timothy Charles Pratten (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Timothy Charles Pratten (Accused) File Number(s): 2010/00315475 Publication restriction: None

EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is an application brought by the accused, Mr Pratten, for an indeterminate adjournment to the empanelment of a jury and the commencement of the trial. The application is based on a number of factors. The first is that there are outstanding issues that require resolution before the trial commences. The second is the inability of Mr Pratten to conduct the trial without legal representation; and the third is Mr Pratten's desire for greater time to prepare his case. There are a number of matters with which I should deal and I will do so very briefly. 2. The Court is aware that Mr Pratten was intimately involved in the preparation and presentation of his defence during the first trial. The Court is also aware that he was intimately involved in the appeal and in the civil proceedings agitating a collateral attack on the prosecution of the first trial (the collateral attack). 3. Further, Mr Pratten submits from the dock that he has "now had time to examine the evidence of an expert who testified in the first trial". This submission confirms the degree of familiarity that Mr Pratten has with the evidence that was adduced in the first trial and generally with the nature of the case against him. 4. Mr Pratten, during the course of his submissions from the dock, has also made clear that he wishes to challenge search warrants and affidavits on the basis of that he was not appraised of the existence of them at an earlier time. From this submission, the Court is aware that Mr Pratten has read those affidavits. 5. Mr Pratten says he wishes to obtain further particulars but accepts that there are no outstanding particulars, that is, particulars that have been requested and not answered. 6. Mr Pratten puts three particular issues that require resolution before the commencement of the trial. The first of them is the admissibility of the amended tax assessments. The admissibility of the amended assessments was a matter upon which the Court ruled in the first trial. I have heard nothing to suggest that that ruling is sought to be challenged. On the contrary, the Crown has stated it does not wish to tender the amended assessments or the default tax assessments. 7. The fact that the amended assessments had been issued was adduced in the first trial for the sole purpose of establishing that they were issued and that the Commonwealth was a victim of the dishonest obtaining of a financial advantage by deception (i.e. that the Commonwealth alleged moneys were owing). The amended assessments were ruled inadmissible for the purpose of suggesting that the accused was required to pay amounts to the Commonwealth resulting from the allegedly false tax returns or to calculate the tax owing. The ruling resulted in the objection being withdrawn. 8. However, the statement from the Crown that the amended assessments are not sought to be tendered resolves any issue that otherwise may be thought to arise. 9. The second issue to be resolved before the trial commences relates to what I shall describe as the "container issue", being material that is said to have been obtained either by the Australian Federal Police or by law enforcement authorities in Vanuatu. That which is before the Court seems to suggest, although no final determination can be made, that this material is in the possession of the Vanuatu Government and not available either to the Crown or Mr Pratten. 10. The third issue is the relevance of particular expert evidence that will be adduced by the Crown during the course of the trial. 11. The retrial of this matter was originally set for 18 May 2015. It was adjourned for two weeks until 1 June 2015 in order to allow a greater time for preparation for the lawyers then representing Mr Pratten. The period between 18 May 2015 and 1 June 2015 was set aside for the determination of any preliminary issues before the commencement of the jury trial. Much of that time is still available if there is a question of the admissibility of amended tax assessments, which I hasten to add seems to have gone away, that needs to be determined. 12. Likewise, if there are questions associated with the container issue upon which an application is sought to be made, then no doubt that is also a matter that can be determined between now and 1 June 2015. 13. As to the relevance of expert evidence, the accused, whether represented or unrepresented, has the capacity to object to evidence either on the voir dire during the course of the trial itself or before the commencement of the jury trial. The fact that the expert evidence is said to be irrelevant is a matter that, if not dealt with before the commencement of the jury trial, can be dealt with during the course of the jury trial and before the adducing of that evidence. 14. Lastly, Mr Pratten submits that he wishes to obtain the services of a tax expert and adduce evidence from that tax expert in his defence case. I note that this matter has been the subject of indictment since at least 2012. There can be no suggestion that, as earlier stated, Mr Pratten has not been involved in the preparation of the first trial, the appeal and the collateral attack. There also can be no suggestion that since the determination of the Court of Criminal Appeal and the order for a retrial Mr Pratten has not had ample opportunity to obtain a tax expert. 15. The question of fairness of the accused is one with which, it seems to me, I need to deal. I will deal with two aspects of fairness raised by Mr Pratten. First, Mr Pratten states that in the first trial a submission was put to the jury that they could draw inferences from the fact that certain documents were not produced by him, being documents relevant to the loans that his counsel argued existed and of which there was some mention in documents complied later in time. I do not recall that submission being made, but I am prepared to accept that it was. Such a submission is not available to the Crown on the authority of RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620. There is no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference that can be drawn. 16. Moreover, Mr Pratten states that he can obtain the references to the Crown submission regarding the non-production of loan documentation on his computer given a moment. That simply confirms the degree to which Mr Pratten is able to prepare his case adequately in the time available. 17. The second aspect of fairness to the accused with which I shall deal is a more general one. His Honour Deane J, then a member of a Full Court of the Federal Court of Australia, in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 held that: "Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable inopportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe (see R v Moodie (1977) 17 ALR 219)." 1. I add that an accused's opportunity to present their case in a criminal trial includes presenting any case in answer to the Crown case either by way of cross-examination or an independent case. 2. However, Deane J later remarked in the same judgment at 343: "It is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." 1. There has been abundant opportunity to prepare this case. If that opportunity has not been utilized by Mr Pratten it cannot be the function of the Court to repair that failure. 2. Lastly, Mr Pratten submits that he is effectively impecunious. The relevance of that submission is not immediately apparent, but as an assertion it cannot be accepted at face value. In paragraph 15 of the affidavit sworn by William Peter Lowe on 19 May 2015 and read in these proceedings Mr Lowe stated that he visited Mr Pratten at his business premises, being the premises of the insurance broking firm that is at the centre of some of the allegations concerning Mr Pratten's failure to declare income. It is not apparent on the evidence that Mr Pratten earns nothing from that business operation. 3. Nevertheless, it seems to me that in the peculiar circumstances of this case some allowance ought to be made for Mr Pratten to put himself in order. There is a week between now and the adjourned date on which the trial was scheduled to commence. I am not prepared to adjourn the trial without a date. I am prepared to grant a two week adjournment to the commencement of the empanelment of the jury and the commencement of the trial, which would result in those events occurring on 15 June 2015. 4. The Crown suggests that on the basis of what has occurred the grant of Legal Aid will, "no doubt", be withdrawn. I hope that that is not a necessary result of what has occurred in these proceedings. First, it seems to me that the grant of Legal Aid ought, assuming Mr Pratten's continued eligibility for Legal Aid otherwise, to extend to the payment of any expert considered necessary to be called in his defence. 5. Secondly, in the event that a solicitor and counsel can be obtained, it would seem to me that the Legal Aid Commission ought to allow instructions to be given to another solicitor and counsel. There can be no doubt, whoever be at fault in the demise of the relationship between Mr Pratten and counsel and solicitor previously acting, that it is the duty of the Court to ensure that a fair trial is conducted and in doing so it is preferable that Mr Pratten be represented.