Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Derley v R [2016] NSWCCA 60 Hearing dates: 12 April 2016 Date of orders: 22 April 2016 Decision date: 22 April 2016 Before: Payne JA at [1]; Price J at [145]; Adamson J at [146]. Decision: (1) Grant leave to appeal. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – Appeal – Application for a permanent stay of prosecution – whether the proceedings are an abuse of process – whether the appellant can receive a fair trial– double jeopardy –House v The King principles Legislation Cited: Crimes Act 1900 (NSW), s 193B Criminal Appeal Act 1912 (NSW), ss 5F Criminal Procedure Act 1986 (NSW), s 62 Director of Public Prosecutions Act 1986 (NSW), s 7 Drugs Misuse and Trafficking Act 1985 (NSW), s 25 Cases Cited: Broome v Chenoweth (1947) 73 CLR 583 Calleija v R [2012] NSWCCA 37; 223 A Crim R 391 House v The King (1936) 55 CLR 499 Jago v The District Court of New South Wales (1989) 168 CLR 23 R v Baker [2000] NSWCCA 85 R v Burrell [2004] NSWCCA 185 R v BWM (1997) 91 A Crim R 260 R v Carroll (2002) 213 CLR 635 R v Edwards [2009] HCA 20; 83 ALJR 717 R v Rogers (1994) 181 CLR 251 TS v R [2014] NSWCCA 174 Williams v Spautz (1992) 174 CLR 509 Yang v R [2012] NSWCCA 49; 219 A Crim R 550 Category: Principal judgment Parties: Kenneth Robert Derley (Appellant) Crown (Respondent) Representation: Counsel: Mr R Bonnici / Ms E Tringali (Appellant) Ms M Cinque SC (Respondent) Solicitors: Colleen V Donnelly Solicitor (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/00282722 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 October 2015 Before: Whitford SC DCJ File Number(s): 2014/282722 headnote [This Headnote is not to be read as part of the judgment] On 29 September 2015, Mr Kenneth Derley was arraigned in the District Court of NSW on an indictment containing one count of supplying a prohibited drug in an amount not less than a commercial quantity contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW) and on one count of knowingly dealing with the proceeds of a crime contrary to s 193B of the Crimes Act 1900 (NSW). Mr Derley applied for a permanent stay of proceedings on the basis that he had experienced irremediable prejudice in the conduct of his prosecution such that he was not able to receive a fair trial. On 19 October 2015, Mr Derley's application for a permanent stay was rejected by the primary judge. The primary judge found that the circumstances of Mr Derley's prosecution were not so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. The primary judge found that the delays in Mr Derley's prosecution had resulted in him wasting reasonable costs, but this was adequately remedied by a temporary stay until such time that the DPP paid or undertook to those costs. Mr Derley sought leave to appeal against this decision under s 5F(3) of the Criminal Appeal Act 1912 (NSW). He relied upon a number of grounds of appeal, each of which involve claims that the proceedings are an abuse of process and that, broadly speaking, due to the conduct of various officers of the New South Wales Police, New South Wales Crime Commission and the Director of Public Prosecutions ("DPP"), Mr Derley is unable to receive a fair trial. Held by Payne JA, Price and Adamson JJ agreeing, granting leave to appeal, but dismissing the appeal: 1. The appellant did not identify, or establish, House v The King error: at [58]. 2. The primary judge engaged in a careful and thorough exercise in weighing all of the relevant matters. This balancing of competing considerations is fundamentally a discretionary exercise and not one lightly interfered with: at [63], [65]-[66]. R v Baker [2000] NSWCCA 85 per Spigelman CJ at [11]; Yang v R [2012] NSWCCA 49 at [25]. 3. It is clear that to grant a permanent stay of proceedings, the Court must be satisfied the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: at [79] R v Edwards [2009] HCA 20; 83 ALJR 717. 4. The complaints raised by Counsel for the appellant are not of a kind that could not be remedied by any of the numerous case management techniques available to the judge who will ultimately hear and determine any trial in this matter: at [81]. Judgment 1. PAYNE JA: On 29 September 2015, Mr Kenneth Derley was arraigned in the District Court of NSW on an indictment containing one count of supplying a prohibited drug in an amount not less than a commercial quantity contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW) and on one count of knowingly dealing with the proceeds of a crime contrary to s 193B of the Crimes Act 1900 (NSW). The following day, the District Court began hearing Mr Derley's application for a permanent stay of the proceedings brought against him. 2. The application for a permanent stay of the proceedings was heard over a number of days, concluding on 15 October 2015. On 19 October 2015, in a detailed written judgment, Whitford SC DCJ rejected Mr Derley's application for a permanent stay. 3. Mr Derley seeks leave to appeal against this decision under s 5F(3) of the Criminal Appeal Act 1912 (NSW). He relies upon three general grounds of appeal and nine special grounds of appeal. Each of these will be considered in turn, but all involve claims that the proceedings are an abuse of process and that, broadly speaking, due to the conduct of various officers of the New South Wales Police, New South Wales Crime Commission and the Office of the Director of Public Prosecutions ("DPP"), Mr Derley is unable to receive a fair trial. That conduct relates to various dealings with a key witness for the prosecution, described in these reasons as "Witness X", and various alleged failings in the disclosure of those dealings to Mr Derley's representatives and consequent delay. [1] 4. Mr Derley sought leave to introduce fresh evidence on the appeal, confined to a letter sent from the DPP to Mr Derley's lawyers which was received after delivery of judgment by Whitford SC DCJ. That letter detailed a teleconference held on 15 October 2015 between the Crown, a solicitor from the DPP and Witness X. The Crown did not oppose the tender of the letter and it became Exhibit 1 on this application. 5. Given the importance of the matter to Mr Derley and the serious nature of the application for a permanent stay, I propose that leave to appeal should be granted. For the reasons that follow, I would dismiss the appeal. Factual background 1. The uncontroversial factual background to this matter was set out in an agreed chronology which was tendered by consent before the primary judge. What appears below draws heavily on that chronology. 2. On 10 June 2010, Mr Derley allegedly supplied Witness X with a commercial quantity of cocaine in return for a sum of money. This alleged supply is the subject of the first count in the indictment. 3. At that time, Witness X was under surveillance by a joint taskforce containing officers from the NSW Police and the NSW Crime Commission. On 10 June 2010, Mr Derley was observed visiting Witness X. Mr Derley was not at that time a person of interest to the taskforce. 4. Witness X allegedly paid the appellant for the cocaine she was given with banknotes which had been marked and given to her by an undercover operative working as part of the taskforce. 5. On 8 December 2010, a number of houses were searched as part of the taskforce operations, including Mr Derley's house. During the search, the police allegedly recovered some of the marked banknotes. These banknotes are the subject of the second count in the indictment. 6. Witness X's house was also searched on 8 December 2010, after which she was arrested for a number of offences and subsequently refused bail. 7. On 12 April 2011, Mr Derley was charged with supplying a commercial quantity of cocaine and dealing with proceeds of crime. 8. On 26 May 2011, Witness X attended the NSW Crime Commission and met with an Assistant Director, Mr O'Connor, and an officer of the Commission, Mr Neil Tuckerman. Witness X apparently did not wish to talk about Mr Derley during this meeting. 9. On 14 July 2011, Witness X met with Mr Tuckerman, Detective Sergeant Thorpe and Detective Senior Constable Paul Grace of the NSW Police. At this meeting, Witness X agreed to cooperate with and assist with taskforce operations, although at that stage she had not agreed to give a statement regarding Mr Derley. She was subsequently released on bail. Witness X began assisting the taskforce with their operations in late 2011. 10. On 28 February 2012, under s 62 of the Criminal Procedure Act 1986 (NSW) a magistrate dismissed the charges against Mr Derley following committal proceedings. 11. On 4 May 2012, the DPP filed a Notice of Intention to file an ex officio indictment relating to Mr Derley (the "first ex officio indictment"). It appears on the evidence that this proposed ex officio indictment was never signed. Mr Derley was never arraigned on the first ex-officio indictment. 12. Prior to the committal proceedings the appellant submitted a "no bill" application to the DPP. Over the course of the following 12 months the appellant submitted an additional four "no bill" applications to the DPP. 13. On 19 December 2012, Witness X, Mr Tuckerman and Detective Senior Constable Keegan and Detective Sergeant Brianna Lee met at a café. The motivation for this meeting, what was said at this meeting, the disclosure of those matters to Mr Derley's legal representatives and what records exist from this meeting were all contentious issues in the hearing before the primary judge. The primary judge heard evidence from, inter alia, Mr Tuckerman, Detective Sergeant Thorpe, DSC Keegan and DS Lee about this meeting and its aftermath and made careful findings about all of these matters. To the extent necessary he resolved conflicts in the evidence, including by making credit findings. 14. On 5 April 2013, Superintendent Jonathan Beard, a senior NSW police officer, informed Detective Sergeant Thorpe, who was an important contact in the NSW Police for Witness X, that Witness X had agreed to make a statement to be used in the prosecution of Mr Derley, and directed her to take that statement. No witness statement was taken from Witness X at that time. Detective Sergeant Thorpe gave evidence, which the primary judge accepted, that she decided not to take the statement at that time due to concerns for the safety of Witness X and other undercover operatives of the taskforce as Witness X was still at that time engaged in undercover operations on behalf of the taskforce. 15. On 9 April 2013, the DPP advised the appellant that the matter was to proceed to trial. 16. On 22 April 2013, the appellant filed an application for a permanent stay of proceedings, which was listed for hearing on 20 May 2013. 17. Between 13 and 15 May 2013, the NSW Police had a number of conversations with Witness X. Witness X was due to meet with Mr Derley and was asked to wear a listening device. Witness X indicated that she remained willing to give the police a statement to be used against Mr Derley in his trial regarding the events of 10 June 2010, however, she refused to wear the device as she was afraid that Mr Derley would know that she had agreed to co-operate with the police in the trial against him. 18. On 16 May 2013 the DPP directed that no further action was to be taken in relation to the first ex officio indictment. 19. The reasons for this direction by the DPP were canvassed at length at the first hearing and the primary judge made a finding about the absence of evidence about the Director's reasons for taking this course. A complaint was made by counsel for Mr Derley that the reasons for the Director taking that course were the subject of a successful claim for legal professional privilege. The ruling of the primary judge about that claim for legal professional privilege was made in a prior judgment of the primary judge from which no leave to appeal was sought. At the hearing of this application, counsel for Mr Derley accepted that there was no ground of appeal specifically addressed to this question and no application was made to add a ground. Counsel submitted that the matter was nevertheless important background information for the stay application. 20. On 20 May 2013 an order was made by Blanch DCJ to give effect to the termination of the proceedings on the first ex officio indictment. Mr Derley was never arraigned on that indictment. 21. Witness X continued to cooperate with the taskforce operations between 16 May 2013 and early May 2014 [Primary judgment at [49]]. 22. On 1 October 2013, Witness X signed a statement to be used in criminal proceedings against Mr Derley. This statement was given to the DPP by the police in August 2014. Witness X was granted an indemnity relating to her outstanding criminal charges. The terms of the indemnity were not in evidence before the primary judge and no application was made to put it before this Court. 23. A second Notice of Intention to file an ex officio indictment was filed on 16 September 2014 and the trial was listed for hearing on 3 October 2014 (the "second ex officio indictment"). Mr Derley filed a Notice of Motion in the District Court seeking a permanent stay of proceedings on that day (or perhaps even the day before). 24. Mr Derley was arraigned on the second ex officio indictment on 29 September 2015. On 30 September 2015, the hearing of Mr Derley's motion seeking a permanent stay of the proceedings commenced before the primary judge. Decision of the primary judge 1. The primary judge concluded that the proceedings were not an abuse of process and that the factual circumstances of Mr Derley's prosecution did not create such unfairness or prejudice as to justify the grant of a permanent stay of proceedings [Primary judgment at [98]]. 2. The primary judge determined that the only "defect attending the proceedings", the wasted costs occasioned by the abandonment of the first ex officio indictment, was adequately remedied by a temporary stay until such time that the DPP paid or undertook to pay the reasonable costs thrown away by the appellant in his preparation for the abandoned May 2013 trial. There was no application by the DPP for leave to appeal from this order [Primary judgment at [110]]. Delay in prosecuting Mr Derley 1. The primary judge gave close attention to the delay in prosecuting Mr Derley, and in particular the delay occasioned by the decision to "no bill" the first ex officio indictment and the related delay in taking a witness statement from Witness X, from the time she agreed to make such a statement (April 2015) until she did so (October 2015). 2. His Honour heard evidence from a number of NSW Police and NSW Crime Commission officers involved in dealing with Witness X, and made findings (addressed below) about a number of matters, in particular issues regarding the safety of Witness X and other undercover officers and the degree to which those concerns explained delays in the prosecution of Mr Derley and the delay in taking a statement from Witness X. 3. Counsel for the appellant accepted that the safety of Witness X was a relevant consideration for the primary judge to have taken into account. Counsel, however, challenged the primary judge's finding on the basis that "too much weight had been placed on Witness X's safety". 4. A recurring theme in the appellant's submissions was that his Honour erred in accepting the evidence of Detective Sergeant Thorpe that she did not obtain Witness X's statement on or close to 5 April 2013, despite instructions to do so, based on her concerns for Witness X's safety while she was still participating in undercover police operations. The primary judge gave close consideration to the evidence of Detective Sergeant Thorpe and the reasons she gave in evidence for not obtaining a statement from Witness X as soon as Witness X had indicated in April 2013 that she was willing to make such a statement. His Honour found that the delays were adequately explained by Detective Sergeant Thorpe's safety concerns and the practical obstacles to obtaining the statement while Witness X worked undercover and away from Sydney. 5. The primary judge concluded that delays in the prosecution of Mr Derley were a result of precautions taken to protect Witness X and other undercover officers working as part of the taskforce [Primary judgment at [49]]. "The delay in the taking of the induced statement and the further delay in serving it are attributable to concerns about protecting witness X and ensuring her safety, the safety of others, in particular undercover officers with whom she worked in the controlled operations, and protecting the integrity of the various investigations in which those operations were conducted." [Primary judgment at [61]] 1. Furthermore, his Honour considered that the actions of the police and the DPP in this regard were "reasonably consonant with the proper administration of justice" [Primary judgment at [67]]. 2. The primary judge also gave close consideration to the sequence of ex officio indictments and the relationship between those indictments and delays attending the prosecution of Mr Derley. At paragraphs [44] and [45] of his Honour's judgment, the primary judge outlined the applicable law, in particular Broome v Chenoweth (1947) 73 CLR 583. His Honour, relying upon that authority, concluded that the "no-billing" of the first ex officio indictment did not create a bar or impediment to the second ex officio indictment [Primary judgment at [47]]. The primary judge also made a finding that it was open to the DPP to present an ex officio indictment even after the appellant was discharged following a committal hearing [Primary judgment at [26]]. As will be seen, his Honour was correct so to conclude. 3. His Honour then considered all of the evidence about delay and concluded: "It seems to me that the accused is in no different position at the present day to the position he would have been in had the Director acceded to his representations in March 2013 and no-billed the matter on the basis that on the state of the evidence then available the matter was foredoomed to fail, and then instituted new proceedings after service of the induced statement of X" [Primary judgment at [96]] Credibility of the principal witnesses 1. The primary judge made detailed and careful findings regarding the credibility of witnesses, having weighed all the evidence. The principal complaint about this made by counsel for the appellant was that the primary judge should not have preferred the evidence of Detective Sergeant Thorpe over that of Mr Tuckerman where it was in conflict, and therefore should have given Detective Sergeant Thorpe's evidence little or no weight. 2. The primary judge's assessment of the credibility of Mr Tuckerman and Detective Sergeant Thorpe is evident in his findings regarding the failure, prior to the hearing of the application for a permanent stay, of the prosecution authorities to disclose to the defence the circumstances surrounding and content of a file note of the 19 December 2012 meeting [Primary judgment at [70]]. 3. That file note, prepared one month later by Mr Tuckerman, recorded Witness X making a statement to Mr Tuckerman to the effect that Mr Derley was not involved in supplying drugs on 10 June 2010 (referred to by the parties as the "exculpatory statement"). 4. Given the prominence in the appellant's submissions of complaints about the primary judge's findings on these issues, it is important to observe what his Honour did, and did not, find. 5. In relation to the file note, his Honour accepted that Witness X had probably made the statement recorded in it. He also found, having heard their evidence, that neither of the police officers present at the meeting had heard Witness X make the statement [Primary judgment at [75]]. 6. Mr Tuckerman, who also gave evidence at the hearing, described this statement by Witness X as "an outburst". The primary judge accepted that this was Mr Tuckerman's belief, despite that description not appearing in the file note [Primary judgment at [82]]. 7. Mr Tuckerman said that he had told Detective Sergeant Thorpe, (but not his superior at the NSW Crime Commission Mr O'Connor) about the "exculpatory statement", at some unidentified time after the 19 December 2012 meeting. He made no record of doing so. However, the primary judge preferred the evidence of Detective Sergeant Thorpe, who denied having ever been told about the statement [Primary judgment at [81]]. Counsel for Mr Derley accepted the primary judge's finding that DSC Keegan was unaware of the "exculpatory statement", although he had been at the meeting on 19 December 2012. 8. In contrast to a number of submissions made by counsel for the appellant, the primary judge concluded that, contrary to the Prosecution Guidelines published by the DPP, and in particular "Guideline 18 Disclosure", the "exculpatory statement" was not, at that time, disclosed to the defence as it should have been. 9. However, his Honour concluded, at [95] - [97], that the delayed disclosure was not so unfair that the current proceedings should be permanently stayed: "[i]t is conceded by all relevantly concerned, with the possible exception of Mr Tuckerman, that the file note should have been disclosed to the defence…However, contrary to the submissions advanced on behalf of the accused, this is not a case where the delay, of itself, produces a situation in which the institution and maintenance of these proceedings now is so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process." [Primary judgment at [88]-[95]] Principles relevant to determination of this application 1. The legal principles which govern the present application are not in dispute. Although two sets of lengthy written submissions were filed in this matter by the appellant, they did not address the authorities. At the hearing, counsel for the appellant accepted that the respondent's submissions correctly stated the law. 2. Proceedings under s 5F of the Criminal Appeal Act 1912 (NSW) do not proceed by way of rehearing. The role of this Court, if leave is granted under s 5F, is to review the correctness of the interlocutory decision under the principles established in House v The King (1936) 55 CLR 499: TS v R [2014] NSWCCA 174; R v BWM (1997) 91 A Crim R 260 at 264. 3. The decision of the primary judge was a discretionary one. In those circumstances, this Court will not intervene unless it can be established that there was some error on the part of the primary judge which caused his discretion to miscarry: Calleija v R [2012] NSWCCA 37 at [6]; 223 A Crim R 391. 4. The power to grant a permanent stay of criminal proceedings should only be exercised in exceptional cases: Jago v The District Court of New South Wales (1989) 168 CLR 23. The Court must be satisfied the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: R v Edwards [2009] HCA 20; 83 ALJR 717 at [23]. The mere risk of unacceptable injustice or unfairness is insufficient: TS v R [2014] NSWCCA 174 at [1] per Leeming JA. 5. The Court should only grant a permanent stay if satisfied that no other means are available to remedy that feature which, if unremedied, would render the proceeding so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay: Jago at 57 and 78. 6. There is no rule that commencement of a prosecution based on an ex officio indictment, filed after earlier trial proceedings on the same or similar subject matter had been discontinued by the Crown, and even in the absence of any significant new evidence, will generally, let alone must, constitute an abuse of process: R v Burrell [2004] NSWCCA 185. Grounds of appeal 1. Twelve grounds of appeal were pressed by counsel for Mr Derley in writing; three "general grounds" and nine "specific grounds" of appeal. None of these twelve grounds of appeal was specifically addressed in oral argument. As the argument developed it became clear that the twelve grounds were largely repetitive and overlapping. This approach to identification of alleged error is to be deprecated. 2. In the circumstances, I propose first to address the "general" grounds of appeal, which contain the core of the complaints made by the appellant, and then deal relatively briefly with each of the "specific" grounds of appeal which were developed in writing but were not the subject of oral address. 3. The three "general" grounds of appeal largely restated the basis on which the original application for a permanent stay was made to the primary judge: 1. The primary judge erred in determining that in the circumstances of the matter the accused can get a fair trial. 2. The primary judge was in error in finding that the behaviour and conduct of the prosecuting authorities does not bring the administration of justice into disrepute. 3. The primary judge erred in deciding that the continuation of the proceedings is not an abuse of process and an affront to the public conscience. 1. The written and oral submissions made on behalf of Mr Derley did not specifically identify House v The King error. Counsel did not take up the invitation of the Court to explain how it was that such error was asserted. Rather, both the written and oral submissions tended to make assertions about factual matters and complain that the primary judge had given too much weight to particular facts compared to others. 2. In oral address, counsel for Mr Derley summarised his principal complaints as being that: 1. the primary judge incorrectly weighed all of the evidence and gave too much emphasis in his conclusions to the safety of Witness X and others involved in undercover operations compared to the interests of Mr Derley in achieving a fair and speedy trial; 2. the primary judge incorrectly weighed the oral and written evidence and relied too heavily on findings he made about the credibility of DCS Thorpe in preferring her evidence to that of Mr Tuckerman; 3. Mr Derley had suffered irreparable prejudice by being denied the "right" to be tried in May 2015 on the first ex officio indictment and that the effluxion of time and conduct of the prosecuting authorities, particularly that recorded in Exhibit 1 on this application, meant that Mr Derley could never receive a fair hearing. 1. In my view each of these complaints about the decision of the primary judge is without substance. 2. So far as the first complaint is concerned, it was summarised by counsel for Mr Derley as follows: the primary judge used safety as an excuse for all the defects in the prosecution by giving too much weight to DS Thorpe's evidence. This complaint is without merit for the following reasons. 3. First, the primary judge was obliged by the decision of the High Court in Jago and the principle therein described (to which the court was specifically taken by counsel) to take into account the explanation for the delay in conducting the proceedings against Mr Derley. This the primary judge did at [55]–[60]. 4. Second, the appellant's complaint is in essence that the primary judge gave too much weight in the balancing exercise to safety - which was specifically acknowledged to be a factor his Honour was required to take into account. This balancing of competing considerations is fundamentally a discretionary exercise and not one lightly interfered with: R v Baker [2000] NSWCCA 85 per Spigelman CJ at [11]; Yang v R [2012] NSWCCA 49 at [25]; 219 A Crim R 550. 5. Third, in conducting the weighing exercise, as he was obliged to do, there was abundant evidence that the safety of Witness X and other undercover officers was a relevant concern. In May 2013, Witness X herself indicated to police that she was apprehensive of what would happen if the appellant knew she was willing to give a statement against him [Primary judgment at [39]]. 6. The agreed chronology showed that Witness X continued to cooperate and assist police with controlled operations until around May 2014 [Primary judgment at [49]]. This fact, of itself, demonstrates that the safety of members of the taskforce, both civilian and police, was a relevant concern until May 2014. Further, having carefully reviewed all the evidence, including that given by Detective Sergeant Thorpe, I am of the view that his Honour was fully entitled to take the evidence of safety concerns into account and to conclude that it was a satisfactory explanation for the delay in obtaining Witness X's statement. 7. Fourth, the result his Honour reached was not in my view incorrect. It could not be described as "plainly unreasonable or unjust"; to the contrary, it was a careful and thorough exercise in weighing all of the relevant matters, including the explanation for the delay and, of course, the public interest in having those charged with serious criminal offences brought to trial. Against this, his Honour plainly analysed and weighed the prejudice to Mr Derley occasioned by withdrawal of the first ex officio indictment and the consequent delay (including the delay in obtaining the statement from Witness X), and granted a temporary stay, conditional upon the Crown paying or agreeing to pay wasted costs. 8. In my view no error has been shown in his Honour's approach. 9. So far as the second recurring theme in the submissions made by counsel for Mr Derley is concerned (that his Honour erred in giving too much weight to the evidence of Detective Sergeant Thorpe), in my view no error has been demonstrated in his Honour's approach for the following reasons. 10. First, what the primary judge found was based on days of oral testimony, a good deal of written evidence and a careful consideration of credit issues. In part, his findings on conflicting testimony of Detective Sergeant Thorpe and Mr Tuckerman, were based on credit. In part, the findings were based on the observed frailty of Mr Tuckerman's recollection. In part, they were based on a careful assessment of the contemporaneous documents and an assessment of the likely course of events based on those documents. In my view no error has been demonstrated in his Honour's approach. This Court is not conducting a re-hearing. 11. Second, in both written and oral submissions, counsel for the appellant asserted that Detective Sergeant Thorpe's evidence was necessarily unreliable since she had given conflicting and inconsistent versions of why she had not taken Witness X's statement in April 2013. I do not accept the primary judge should have concluded, much less that he was bound to conclude, that Detective Sergeant Thorpe's evidence on this topic was inconsistent or unreliable. 12. It was put a number of times by counsel for Mr Derley that "plausible deniability", an answer given by Detective Sergeant Thorpe, is a "vastly different" reason to safety concerns. However, reading Detective Sergeant Thorpe's evidence as a whole, and particularly looking at the passage where this so call inconsistency arises, her answer to the question about why no statement was taken in April 2013 referring to "plausible deniability" was clearly directed to the situation where a target of the police taskforce might ask Witness X if she was cooperating with police or giving statements to the police. It was not, as counsel suggested, an admission that Detective Sergeant Thorpe was not concerned with safety issues, but purely motivated to avoid informing Mr Derley about a statement from Witness X, demonstrating an abuse of process in Mr Derley's prosecution. I can detect no error in the primary judge's assessment of the reliability of Detective Sergeant Thorpe's evidence. 13. So far as the third recurring theme in the appellant's submissions is concerned; that Mr Derley had been denied a right to be tried in May 2013 and that he could now never have a fair trial because of contamination of Witness X's recollection, in particular by the conduct recorded in Exhibit 1; in my view the complaint is without merit. 14. So far as the proposition that Mr Derley had a right to be tried in May 2013 on the first ex officio indictment is concerned, it is contrary to authority. As Deane J explained in Jago at 56-57, an accused has no direct right to insist on being tried by the State. The protection of a permanent stay is properly to be understood as a right to prevent injustice in a trial at the time that trial occurs. This principle was plainly understood by the primary judge and no error has been shown. 15. So far as complaint is made about the contamination of Witness X's recollection by the conduct described in Exhibit 1, I do not think that the conduct justifies the imposition of a permanent stay. I do not accept that any aspect of the conduct described in Exhibit 1 is such as to disturb the balance of factors considered by the primary judge. 16. Nothing, in my view, is improper about counsel for the Crown and his or her instructing solicitor conferring with an important witness prior to a criminal trial. I do not accept that there is any rule prohibiting counsel from asking a witness about a prior statement allegedly made by that witness. Of course, as there was here, there may well be disclosure requirements which arise in relation to the answers given by the witness to this questioning. 17. The matters disclosed by Exhibit 1 seem to me to be essentially matters for the trial judge. That judge will have all the usual powers to make rulings on evidence and give directions to the jury. If, contrary to the view I have formed about Exhibit 1 on the information presently available, it subsequently emerges that there is underlying unfairness, the trial judge can and will deal with that matter then. 18. Finally on this topic, I note that the Crown prosecutor confirmed at the hearing of this application that the Crown will consent to a Basha inquiry being conducted prior to a jury being empanelled about Witness X's statement (R v Basha (1989) 39 A Crim R 337). Exhibit 1, either alone or in combination with all of the evidence, provides no basis for the grant of a permanent stay. 19. It remains to address the three "general grounds" in the light of the conclusions I have reached about the principal matters of complaint. 20. As to the first "general ground" of appeal, it is clear that to grant a permanent stay of proceedings, the Court must be satisfied the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: R v Edwards (op cit). 21. In my view, the primary judge was correct to conclude that: "This is not a case where the delay, of itself, produces a situation in which the institution and maintenance of these proceedings now is so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process." [at [91]] 1. Further, counsel for the appellant could not identify any aspect of the proceedings about which he made complaint that could not be remedied by any of the numerous case management techniques available to the judge who will ultimately hear and determine any trial in this matter. Counsel for the appellant accepted that "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": Jago at 49 per Brennan J. 2. As to the second "general ground" of appeal, in my view it is not made out. The primary judge both recited and applied the correct test for the grant of a permanent stay. Any fair reading of his judgment would demonstrate that his Honour was not providing an "imprimatur" for misconduct by prosecuting authorities. To the contrary, his Honour was rightly critical of the failure to disclose the 19 December 2012 statement in a timely manner (at [89]) and, more generally, the delays in the prosecution of Mr Derley particularly when viewed in isolation (at [56]). 3. His Honour made factual findings and balanced, in accordance with the accepted principles, the conduct about which Mr Derley complained with the other matters his Honour was required to take into account. Those matters included, of course, the public interest in people accused of serious criminal offences facing the court. 4. I do not accept that his Honour erred in finding, on the basis of all of the evidence and by application of the correct test, that grounds for the grant of permanent stay had not been met. In my view the primary judge was correct in this conclusion and no error has been demonstrated. 5. As to the third "general" ground of appeal, it is put by counsel for Mr Derley that the primary judge erred in deciding that the continuation of the proceedings is not an abuse of process and an affront to the public conscience. 6. The principles governing the grant of a permanent stay are entrenched in notions of abuse of process; of there being a fundamental defect going to the root of the prosecution; and in fairness involving a balancing of considerations relevant to the accused person and the public interest, particularly in having persons charged with criminal offences being brought to trial: Calleija v R [2010] NSWCCA 37 at [37]; 223 A Crim R 391 7. I do not accept that the conduct here proven, in the context of this stay application and having regard to the additional fresh evidence in Exhibit 1, warrants the description of an affront to the public conscience. In reaching this conclusion I have had regard to the following matters: 1. that no error has been shown in either the primary judge's identification, or application, of the relevant legal principles; 2. that the primary judge took into account relevant matters in weighing whether a permanent stay was required in the present case, in particular, the interests of the accused on the one hand and the public interest in criminal proceedings in serious matters being determined by a judge and jury on the other; 3. that no successful challenge has been made to his Honour's careful factual findings that the reasons for delay in this case were centred around legitimate concerns for the safety of Witness X and others in ongoing undercover operations; 4. that the prejudice which was suffered by Mr Derley was the wasted costs of preparation for a trial which did not take place in May 2013. The primary judge addressed this prejudice by his Honour's award of a temporary stay until those costs had been paid or agreed to be paid by the prosecution. 1. It goes without saying that nothing said in this judgment, and nothing in what the primary judge found, is to be understood by prosecuting authorities as a judicial imprimatur for failing to disclose relevant material. That is a serious matter and was deserving of the strong criticism made by the primary judge of that conduct. This Court views a failure to disclose of this kind very seriously, however, for the reasons I have given, it does not in the present case give rise to prejudice of the kind warranting the grant of a permanent stay of proceedings. 2. For these reasons, the decision of the primary judge was not in my view attended by error. Grounds 1-3 should be dismissed. Specific grounds of appeal 1. The appellant raised a further nine "specific" grounds of appeal which contend that a number of errors were made in the primary judge's findings and reasoning. As has been noted, these "specific" grounds are overlapping and repetitive in many respects. One way of understanding these "specific grounds" of appeal is as further and overlapping particulars of the "general grounds" of appeal which are addressed above. 2. Notwithstanding this, I propose to deal briefly with each of these "specific" grounds of appeal. Ground 4 - The primary judge misdirected himself in his findings that the prosecuting authorities misused the processes of the Court to the benefit of the prosecution and the detriment of the accused. 1. The appellant submitted that the primary judge should have concluded that the proceedings are an abuse of process to the detriment of the appellant because the prosecuting authorities issued two ex officio indictments, and did not follow their own guidelines. 2. The primary judge concluded, correctly, that an ex officio indictment addressing the same or similar subject matter as an ex officio indictment which was earlier withdrawn is not of itself evidence of any "misuse" by prosecuting authorities of the processes of the Court: "I reject the submission made on behalf of the accused that the termination of the prosecution in May 2013 was orchestrated with an intent to cause irreconcilable prejudice to the accused and so an abuse of process on that account". [Primary judgment at [66]] 1. I can detect no error in this finding. 2. The Court was also taken to the DPP Guidelines by counsel for the appellant. There was plainly non-compliance with Guideline 18 in the late disclosure of Witness X's "exculpatory statement", but this was specifically addressed by the primary judge at [89] and taken into account in his Honour's reasons. 3. Despite repeated requests, counsel for Mr Derley did not identify any part of the judgment of the primary judge where it was said that his Honour had 'misdirected himself'. No such identification appears in the written submissions. 4. In my view Ground 4 should be dismissed. Ground 5 - The primary judge did not address the failure of the Director of Public Prosecutions to follow his own relevant Prosecution Guidelines. 1. The applicant submitted that the DPP, NSW Police and the NSW Crime Commission did not follow their own guidelines. This was raised particularly in relation to the mandatory disclosure of the "exculpatory statement", as required under Guideline 18. 2. The appellant's submissions also complained about the lack of notes or records kept by the Police relating to the 19 December 2012 meeting, asserting that this was "in contrast to accepted protocol and procedures". No such "accepted protocols and procedures" were identified. 3. The primary judge did in my view take into account the relevant non-disclosure of the "exculpatory statement", which is the subject of Guideline 18. His Honour did not need the Guideline to do so. 4. The primary judge found that the failure to disclose was unintentional and, because Mr Derley and his advisers now have the document, they are in a position to "take from it whatever forensic value it affords": at [89]. 5. Guideline 15, "Induced Statements" was also raised on behalf of the appellant, on the basis that the Director did not give prior authorisation for the NSW Police to obtain an induced statement from Witness X. No doubt prior authorisation for an induced statement is desirable, and investigatory bodies who do not obtain prior approval do so at their own risk. I do not accept that in the present case this failure to obtain prior approval gave rise to irremediable prejudice to Mr Derley. 6. Counsel for Mr Derley also took this Court to Guideline 12 ("Reasons for decisions") and highlighted that the Director had exercised his discretion not to disclose his reasons for withdrawing the first ex officio indictment. The Court was also taken to Guideline 16 ("Informers") which says that an accused person should be informed in advance of the trial if the police have information going to the informer's motivations. Counsel noted that the appellant had not been given an explanation for Witness X's change of mind in April 2013. I do not consider that the appellant has established that either of these Guidelines has been breached. Even so, this is the type of material that a defence counsel would put before a jury; it is not decisive in this application. 7. In my view Ground 5 is not made out. Ground 6 - The primary judge did not sufficiently take into account the vexatious aspect of the history and conduct of these proceedings as against the accused. 1. The appellant addressed this ground by reference to the rights of the accused. Broadly, the appellant submitted that the history of the proceedings are oppressive and a denial of Mr Derley's human rights. In particular, the appellant's submissions stress that the appellant still does not know the reason why the 20 May 2013 trial did not proceed. 2. His Honour plainly did weigh that matter and concluded that even though the conduct of the proceedings was in at least one respect oppressive to Mr Derley, the circumstances were not so unfair that a permanent stay was the only remedy: for example at [95] and [106]. As has already been observed, this balancing of competing considerations is fundamentally a discretionary exercise and not one lightly interfered with: R v Baker [2000] NSWCCA 85 per Spigelman CJ at [11]; Yang v R [2012] NSWCCA 49 at [25]; 219 A Crim R 550. 3. I do not detect any error in his Honour's approach. In my view his Honour was correct to conclude: "…absent some demonstration of bad faith, or other abuse, it seems to me beside the point for present purposes what the Director then knew. When events are viewed in the context just outlined, I am not satisfied that any reasonable criticism can be directed to the conduct of the "Prosecuting Authorities"" [Primary judgment at [64] – [65]] 1. In my view Ground 6 should be dismissed. Ground 7 - The primary judge did not refer to the issues of whether the filing of the second ex officio indictment is a form of double jeopardy and analogous to issue estoppel. 1. At [45] the primary judge, in my view correctly, found that in all the circumstances the termination of the first ex officio indictment did not mean that the filing of the second ex officio indictment gave rise to double jeopardy. His Honour cited Dixon J in Broome v Chenoweth (1947) 73 CLR 583 at 599: "The rule against double jeopardy requires for its application not only an earlier proceeding in which the defendant was exposed to the risk of a valid conviction for the same offence as that alleged against him in the later proceedings but that the earlier proceeding should have resulted in his discharge or acquittal. This last requirement may be satisfied by something less than an actual adjudication upon the truth of the allegations contained in the charge or upon the existence of some exculpatory fact. It may be enough if the judgment or order pronounced in favour of the person who stands in jeopardy must, according to its legal construction, imply a failure upon the part of the prosecution to make out the charge or some ingredient therein or even a preliminary condition legally indispensible to a conviction, that is if the condition is of a kind that cannot be fulfilled after the failure of the earlier charge and before the laying of the later charge." 1. In the present case, the order of the court bringing to an end proceedings on the first ex officio indictment did not imply a failure on the part of the prosecution to make out the charge or some ingredient therein. 2. It is equally clear that the appellant's discharge at committal afforded no protection from a subsequent prosecution on an ex officio indictment based on the same facts. Deane J said in Williams v Spautz (1992) 174 CLR 509 at 545: "Committal proceedings are not judicial in nature… an order for trial or discharge at the end of committal proceedings does not even finally determine whether the person committed for trial or discharged will or will not be indicted". 1. The appellant also submitted that the primary judge did not consider an "analogy" between this matter and issue estoppel. There are manifest difficulties in the way of accepting that submission. For one, the principle of issue estoppel does not apply in the criminal law in this country: R v Rogers (1994) 181 CLR 251 at 254-5, 278; R v Carroll (2002) 213 CLR 635 at 662, [90]. For another, the decision of this Court in R v Burrell (cited above) tends strongly against acceptance of the submission of the appellant. 2. The second ex officio indictment was not a "form of double jeopardy" and there is no error shown in his Honour's failure to describe it as such. The filing of a second ex officio indictment did not raise issues "analogous" to issue estoppel and no error has been shown in his Honour failure to treat it as such. 3. Ground 7 should be dismissed. Ground 8 - The primary judge failed to take sufficiently into account the prejudice caused to the accused by the non-disclosure at the relevant time of the exculpatory statement made by Witness X to the prosecuting authorities. 1. The appellant submitted that if he (and his lawyers) had been aware of the "exculpatory statement" on or shortly after 19 December 2012, they would have raised this as part of a no-bill application and filed an application for a permanent stay by March 2013. The effect of this, the appellant submitted, was that "if [the statement was] disclosed to the Defence around the time it was made, [it] would have seen the end of the proceedings." 2. This submission repeats an argument that was made before the primary judge. The submission made to his Honour was that if Mr Derley and his legal representatives were aware of the "exculpatory statement" by March 2013 "the whole course of conduct would have been changed", presumably referring to Mr Derley's pre-trial approach and trial strategy. 3. It is true that the non-disclosure of the "exculpatory statement" prior to the May 2013 trial date certainly deprived the appellant of the opportunity to put that statement in a no bill application or in a notice of motion before the court relating to the first ex officio indictment. 4. Nevertheless, the question that the primary judge had to answer was whether the non-disclosure caused prejudice to the appellant in the current proceedings, such as to warrant the grant of a permanent stay. 5. The primary judge dealt with this issue at paragraph 89 of his judgment: "It is certainly regrettable, even disturbing, that the document was not earlier disclosed. However, I have no basis for concluding that the failure to disclose it was anything other than an oversight, rather than a deliberate attempt to withhold the information from the accused. In any event, the accused now has the document and can take from it whatever forensic value it affords" [Primary judgment at [89]] 1. As outlined above, his Honour then found that the delayed disclosure is not so unfair that the current proceedings should be permanently stayed, as the accused is in essentially the same position now as he would have been if the statement had been disclosed in 2013 [Primary judgment at [95]-[97]]. 2. I do not consider that the appellant has established any error in the primary judge's reasoning. 3. Before leaving this ground, it is necessary briefly to address the lengthy written submissions made by the appellant which raise what in my view is a false issue, namely the assertion that any trial conducted in May 2013 was doomed to fail without Witness X's statement. His Honour did not make the finding that the appellant invited him to make to that effect, namely that any trial conducted in May 2013 was doomed to fail without Witness X's statement. On the available material, and in particular the strong circumstantial case that was available, his Honour was correct not to accept the invitation so to conclude. 4. Nevertheless, the appellant appears to continue to assert that the May 2013 proceedings were foredoomed to fail and that this is somehow a demonstration of irremediable prejudice entitling him to a permanent stay of proceedings. I do not accept that this is so. In truth, it is a false issue. Let it be assumed that the reason the DPP decided not to proceed to trial in May 2013 was that he then believed that the prosecution was doomed to fail. Assuming that to be the reason, it is nevertheless clear the DPP determined not to proceed in 2013. In my view, that does not mean that a trial based upon a subsequent ex officio indictment, even in the absence of any significant new evidence, will necessarily constitute an abuse of process: R v Burrell (op cit). It is, in any event, a false issue as the statement of Witness X is now available. The careful balancing process, on all of the evidence, about whether the appellant could have a fair trial in the current proceedings is what the primary judge was required to conduct. 5. The primary judge addressed the correct question and no error has been shown. 6. Ground 8 should be dismissed. Ground 9 - The primary judge misdirected himself in his assessment of the reliability of the evidence of the Crown witnesses. 1. I have addressed this topic at some length in addressing the "general" grounds of appeal. 2. The appellant submitted that the primary judge erred in finding that Mr Tuckerman's file note of 27 January 2013 was not contemporaneously written as this was contrary to Mr Tuckerman's oral evidence. The appellant also identified a number of what he said were "inconsistencies" in Detective Sergeant Thorpe's oral evidence, submitting that this impugned her credibility. 3. Without repeating what is said above at [68]-[71] in my view: 1. the primary judge did not misdirect himself in his assessment of the reliability of the evidence of the Crown witnesses; 2. the conclusions the primary judge reached were clearly open to him; and 3. no error has been shown in his Honour's conclusions about the reliability of evidence given by Crown witnesses. 1. Ground 9 should be dismissed. Ground 10 - The primary judge was in error in finding that relevant communications between the Police and the Director of Public Prosecutions in relation to Witness X changing her mind about making a statement against the accused is subject to legal professional privilege. 1. In his supplementary submissions, the appellant contended that the primary judge should not have ruled that certain (unidentified) communications between Detective Sergeant Thorpe and the DPP were the subject of client legal privilege. The appellant also asserted, in the alternative, that even if the communications were privileged they should be disclosed, as a matter of discretion, in the interests of fairness. 2. It is apparent that the ruling by the primary judge in relation to client legal privilege was made in a separate judgment on a separate occasion and no application for leave to appeal was made in respect of it. Counsel for Mr Derley accepted that this was so at the outset of the hearing. 3. Ground 10 should be dismissed. Ground 11 - The primary judge gave too much weight to the issue of the safety of Witness X to condone the conduct of the prosecuting authorities as against the rights of the accused. 1. I have addressed this topic at some length above in addressing the "general" grounds of appeal. The appellant submitted that the primary judge ought to have given more weight to the numerous "defects" in the prosecution of Mr Derley, and erred in that he placed too much weight on the issue of Witness X's safety. 2. The appellant's submissions on this ground of appeal are tied to the submissions on ground 9 concerning the reliability of the Crown witnesses; that too much weight was placed on Detective Sergeant Thorpe's evidence regarding safety. My reasons for rejecting these complaints are set out above at [68] – [71]. 3. Finally on this ground, the appellant complained in writing that a number of documents relating to the safety of Witness X were not provided to the appellant as they were the subject of a successful claim for public interest immunity. 4. The Court's ruling on public interest immunity was made on a separate occasion and involved parties who are not parties to the current proceedings. At the outset of the hearing, counsel for Mr Derley accepted that there was no application for leave to appeal from that separate public interest immunity decision and that complaint could not be made in these proceedings about those issues, not least because relevant parties to that separate public interest immunity ruling had not been joined to this application. 5. Ground 11 should be dismissed. Ground 12 - The primary judge was inconclusive as to the power and scope of an ex-officio indictment. 1. The primary judge correctly identified the DPP's power to present an ex officio indictment under s 7(2)(c) of the Director of Public Prosecutions Act 1986 (NSW) [Primary judgment at [25]]. 2. The appellant complains that the primary judge did not conclusively rule on the DPP's statutory power to "no bill" an ex officio indictment once it has been "filed". 3. The primary judge correctly concluded that whatever the scope of that power, it made no relevant difference so far as the outcome of these proceedings: "On 20 May 2013 this Court made, or purported to make, an order discharging the accused. In circumstances where no indictment had been presented, there were no proceedings on foot and, accordingly, likely no jurisdiction in the Court to make such an order. Whether or not I am right in that conclusion, it seems to me that the decision to "no bill" brought an end to the prosecution at that time, without adjudication, and created no bar to its re-institution." [citations omitted] [Primary judgment at [44]-[45]] 1. There is no unfairness to Mr Derley in the way the primary judge addressed this issue. The present proceedings do not provide an occasion to determine the precise power and scope of the power of the DPP to decide not to proceed to trial in relation to an ex officio indictment which has been notified and on which the accused has not yet been arraigned. Whatever the way in which the proceedings on the first ex officio indictment were brought to an end, that process did not imply a failure on the part of the prosecution to make out the charge or some ingredient therein. 2. As the primary judge correctly found, whatever view is taken of the events of May 2013 in the District Court, Mr Derley has not established grounds for the grant of a permanent stay in relation to a trial on the second ex-officio indictment. Conclusion 1. In my view this is a clear case where the appellant has not demonstrated any relevant error on the part of the primary judge. No basis for this Court to intervene with his Honour's discretionary decision has been shown. Nor, in my opinion, and taking into account the fresh evidence on the appeal, has the appellant established any relevant abuse, or unfairness, warranting the grant of a permanent stay. For the reasons I have given, I would grant leave to appeal but dismiss the appeal. 2. The Orders of the Court I propose are: 1. Grant leave to appeal. 2. Appeal dismissed. 1. PRICE J: I agree with Payne JA. 2. ADAMSON J: I agree with Payne JA. ********** Endnote 1. Suppression orders, giving Witness X this pseudonym, were made by Judge Woodburne SC in the District Court on 5 March 2015. These orders have not been the subject of any appeal. Amendments 06 June 2019 - publication restriction removed - judgment published 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. Decision last updated: 06 June 2019