R v Medich (No 2)

1. [1]

   On 1 November 2013 Ronald Edward Medich (“the applicant”) pleaded not guilty to an indictment alleging the following:

2. [2]

   The applicant was due to stand trial on 25 August 2014. However, that date was vacated on 25 July 2014: R v Medich (No. 1) [2014] NSWSC 1013.

3. [3]

   By notice of motion dated 18 June 2014 the applicant seeks a permanent stay of each of the counts contained in the indictment. That order is opposed by the Crown.

4. [4]

   The following affidavits were read in support of the applicant’s motion:

5. [5]

   Mr Daley, who is the applicant’s solicitor, was not cross-examined.

6. [6]

   The following affidavits were read by the Crown:

7. [7]

   Of those persons, the following were cross-examined:

8. [8]

   In addition Mr Pickering SC, the Deputy Director of Public Prosecutions (NSW), gave oral evidence but was not cross-examined.

9. [9]

   Because of the bases on which the present application is brought, it is necessary to set out, in full, the Crown case statement which has been filed in the proceedings:

10. [10]

    The Crown proposes to call Fortunato (“Lucky”) Gattellari (“Gattellari”) to give evidence against the applicant at his trial (T6 L25-27). Gattellari pleaded guilty to the murder of the deceased (on the basis of being an accessory before the fact) and has been sentenced: R v Gattellari; R v Kaminic [2013] NSWSC 1097.

11. [11]

    Exhibit 2 in the application before me is a document headed “Defence Case Statement”. The document is undated but I infer from its contents that it was prepared for the purposes of supporting an application pursuant to s. 91 of the Criminal Procedure Act 1986 for the attendance of various persons for cross-examination at the applicant’s committal proceedings. It is apparent from reading that document that a substantial part of the defence case is that Gattellari was someone who was prone to violence, who knew the deceased, and who had a motive, arising from his own dealings with the deceased, to kill him. As a consequence, and consistent with the statement made by the applicant at the conclusion of the committal proceedings, the credit of Gattellari is very much in issue.

The establishment of Strike Force Narrunga

1. [12]

   Strike Force Narrunga was established virtually immediately following the deceased’s murder on 3 September 2009. Det. Sheehy was appointed the Investigation Co-ordinator, heading a team of investigators from the Homicide Squad and elsewhere. Det. Fitzhenry was appointed the officer in charge of the investigation on 4 September 2009 and he remains in that position.

2. [13]

   As the co-ordinator, Det. Sheehy played a fundamental role in directing the investigation (T31 L5-7). In particular, he identified those persons who, in his view, warranted close attention (T31 L9-16).

3. [14]

   As the officer in charge, Det. Fitzhenry has been responsible for the supervision and management of the investigation on a day to day basis. That role has included providing direction to other police, allocating tasks for investigation and assessing material (referred to in the evidence as “product(s)”) obtained as a consequence of those tasks being carried out. All tasks allocated, and all product(s) obtained as a result, have been recorded on the Police Investigations Management System known as “E@glei”.

4. [15]

   Various other officers have been assigned to the investigation of the deceased’s murder. They include Dets. Howe, Blanch, King, Groves and Watson.

Reference of the investigation to the NSW Crime Commission

1. [16]

   In about November 2009 the New South Wales Crime Commission (“the Commission”) received a request from Strike Force Narrunga to assist in the investigation. On 16 December 2009, pursuant to the provisions of s. 25 of the (now repealed) New South Wales Crime Commission Act 1985 (“the NSWCC Act”) the investigation was referred to the Commission under the code-name “Limbri”.

The Summons issued to the applicant to attend the Commission

1. [17]

   In or about July/August 2010, following discussions between police and persons attached to the Commission, summonses were issued to a number of people requiring them to attend before the Commission and give evidence (T27 L22-34; T29 L1-34). Those persons included the applicant and Gattellari.

2. [18]

   The decision as to who was to be issued with a summons was made at the Commission in consultation with police. Those police included Det. Fitzhenry (para. 7 and 8 of his affidavit), Det. Howe (T 17 L48-50; T25 L37-43) and Det. Sheehy (T27 L32-34; T 28 L47-49). Det. Sheehy, who also had input into the order in which people might be called to give evidence (T 28 L40-49), agreed (T34 L9-21) that when these discussions were taking place the applicant was a “person of interest” to the investigation. Det. Sheehy was not prepared to concede that the applicant was a “suspect” at that time although in my view, the distinction he sought to draw between the two was really a distinction without a difference. The unequivocal evidence of Det. Blanch (T44 L15-17) was that the applicant was a suspect when he appeared before the Commission

3. [19]

   One of the purposes of issuing a summons to the applicant was to promote conversations amongst those who had been identified as persons of interest to the investigation. It was envisaged that such conversations as did occur would be recorded pursuant to various warrants which were in existence at the time. It was obviously hoped that the content of those conversations might provide police with further investigative leads (T 25 L47 – T26 L3) although there is no evidence that this in fact eventuated.

4. [20]

   However, promotion of conversations was not the sole purpose of issuing a summons to the applicant. Another purpose was to enable material which had been obtained in the course of the investigation to be put to him at a hearing (T26 L5-7; T27 L36-44).

The applicant’s appearance before the Commission

1. [21]

   On 1 September 2010 the applicant, represented by his then solicitor Mr Bamford, appeared before Assistant Commissioner Singleton. Mr O’Connor acted as Counsel assisting the Commission. By the time of the applicant’s appearance on that day, police had been investigating the deceased’s death for almost 12 months, as a result of which they had gathered substantial material concerning the applicant (T27 L43-44). That material included the fact that the applicant had been involved in a series of disputes with the deceased (T28 L7-12).

2. [22]

   At the commencement of the hearing Assistant Commissioner Singleton said the following to the applicant (at T1-2 of Annexure 5 of Ex. TWD 1 to the affidavit of Mr Daley sworn on 26 June 2014):

3. [23]

   Subsequently, he said to the applicant (at T3):

4. [24]

   Having ascertained that Mr O’Connor had no objection to the giving of the direction which was sought on the applicant’s behalf, Assistant Commissioner Singleton then said:

5. [25]

   At the commencement of the hearing, Mr O’Connor informed the applicant that the Commission was conducting enquiries into the deceased’s murder. As the hearing proceeded, he questioned the applicant about a range of matters, including:

6. [26]

   No admissions were made by the applicant as to any involvement in the deceased’s murder and nothing he said directly implicated him in the murder.

7. [27]

   Because of the issues raised on the present application, it is necessary to make reference to some of the applicant’s evidence.

8. [28]

   The applicant was asked about his knowledge of the existence of the covert recording (referred to at paras. (47) and following of the Crown case statement) and the effect of such knowledge upon his relationship with the deceased. At T75 the following exchange took place between Mr O’Connor and the applicant:

9. [29]

   The reference in that answer to the “ICAC enquiry” was a reference to an enquiry conducted by the Independent Commission Against Corruption into various allegations arising from the covert recording. A copy of the Commission’s report is Exh. 11 in the present application.

10. [30]

    A further exchange took place (commencing at T81) in relation to the covert recording:

11. [31]

    In terms of his relationship with Gattellari, the applicant gave the following evidence (commencing at T85):

12. [32]

    He was then asked (at T86) about financial arrangements between himself and Gattellari:

13. [33]

    This topic of financial arrangements was the subject of further questioning (at T88):

14. [34]

    During the applicant’s evidence, calls were made for the production of documents. On 13 and 23 September 2010 documents were produced to the Commission by Mr Bamford in response to those calls. Those documents were not passed on to the police (affidavit of Mr O’Connor at paras. 11-12).

The presence of the police at the applicant’s examination

1. [35]

   Dets. Fitzhenry and Blanch were present at the Commission for the duration of the applicant’s examination. They observed the proceedings via a CCTV link from another office within the Commission’s premises although Mr O’Connor said that there was no particular reason for the police not to be in the hearing room (T83 L30). As noted at [22] above, Assistant Commissioner Singleton made reference to the fact that the hearing was being monitored by “… anyone else that’s authorised by the Commission in another room in the building”.

2. [36]

   Neither Det. Fitzhenry nor Det. Blanch took any notes of what was said in the hearing (affidavit of Det. Fitzhenry para. 10; affidavit of Det. Blanch at para. 5). Det. Fitzhenry stated (para. 11 of his affidavit) that his focus at the time was also directed to other matters for which he was responsible. He agreed (T55 L29-31) that whilst “listening or half listening” to the applicant’s evidence he was directing officers to do things in relation to the investigation, as well as “attending to … phone calls” and “co-ordinating other resources” (T57 L39-42). He remained for the entire period over which the applicant gave evidence (T57 L44-49).

3. [37]

   Det. Fitzhenry said (para. 11 of his affidavit) that he was unable to understand some of the subject matter of the applicant’s evidence because it “involved complex commercial dealings”. However the issues about which the applicant was questioned were not so restricted. They extended, as I have said, to a number of other matters which Det. Fitzhenry conceded he was able to understand, including the relationship between the applicant and the deceased, its breakdown, and the existence of a motive on the part of Gattellari to kill the deceased (T56 L11 - T57 L17).

4. [38]

   Det. Fitzhenry said that apart from the creation of two specific tasks (see [50] and following below) he did not use any part of the applicant’s evidence for any investigative purpose, and did not assign any other task to any other person to do anything arising from that evidence (T95 L17-22). In particular, he did not use any part of the applicant’s evidence to obtain warrants to search for financial records and the like (T95 L28-31).

5. [39]

   Det. Blanch gave evidence that he could not recall any matters of investigative value arising from the applicant’s evidence. He had no recollection of having made any use of that evidence in the investigation, and had no recollection of any other officer having done so (para. 7 of his affidavit; T45 L23-24).

6. [40]

   The evidence of Dets. Fitzhenry and Blanch that no investigative use was made of the applicant’s evidence was generally consistent with the assessment of Det. Sheehy that the examination of the applicant was not a particularly significant development in the investigation (T35 L4-6).

The debrief following the applicant’s evidence

1. [41]

   What was described in the evidence as a “debrief” was held at the Commission at the conclusion of the applicant’s evidence (T83 L16-18). Mr O’Connor said that in broad terms, the purpose of that debrief was to discuss, and obtain the views of investigating police about, the applicant’s evidence (T83 L20-23).

2. [42]

   Although he had no specific recollection of it, Det. Fitzhenry agreed that it was “very likely” that he was present at the debrief and that he took part in it (T62 L49 - T63 L1). When he was referred to his duty book, he agreed that it recorded his attendance with a number of other persons, including Det. Blanch (T63 L33-48). Det. Blanch agreed that he attended, and accepted that there was some discussion about the applicant’s evidence on that occasion (T43 L40-44). He was unable to recall who participated in such discussion, although he had a recollection that Det. Fitzhenry was present at the time, along with officers of the Commission (T43 L48-T44 L1). Det. Howe said that he was not present (T18 L6-9).

Subsequent discussions about the applicant’s evidence

1. [43]

   On 2 September 2010, the day after the applicant gave evidence, Dets. Sheehy, Howe and Fitzhenry met at the Commission (T35 L17-19). Det. Sheehy accepted that it was likely that the fact of the applicant having given evidence was discussed, although he could not recall speaking with Det. Fitzhenry about the content of what the applicant had said (T35 L21-39).

2. [44]

   Det. Fitzhenry said (para. 12 of his affidavit) that he was present at the Commission on that day. His affidavit contains no reference to any meeting with other police at that time and he was not cross-examined on that issue. Det. Howe accepted that either on that day of the applicant’s examination, or on the following day, he discussed the applicant’s evidence with Det. Fitzhenry, in the course of which Det. Fitzhenry provided him with information about what the applicant had said (T18 L11-27).

3. [45]

   Generally speaking, those involved in the investigation saw no impediment to discussing the applicant’s evidence (T23 L11-14; T30 L10-15; T83 L34-39; T90 L29-33). Consistent with this, and although the evidence before me is not precise, what was said by those called before the Commission was discussed between investigating police (T44 L19-38) as was other evidence obtained in the course of the investigation (T62 L32-39).

4. [46]

   However, it is important to note that at least as far as Det. Fitzhenry was concerned (he being the only witness asked) there remained a prohibition upon any discussion about the applicant’s evidence with lawyers employed by the Director of Public Prosecutions (“DPP”) who were briefed to conduct, or carry out work in relation to, the applicant’s prosecution. Det. Fitzhenry explained that his discussions with DPP lawyers were limited to other aspects of the investigation and did not extend to discussions about the applicant’s evidence before the Commission (T90 L3-6).

5. [47]

   It is also apparent that at least some of the police involved saw no impediment to using the applicant’s evidence for the purposes of the investigation (T35 L47- T36 L1; T43 L31-33; T45 L30-34). However notwithstanding this, there is evidence that leaving aside the two tasks created by Det. Fitzhenry (discussed at [50] and following below) nothing said by the applicant in his examination was used for any investigative purpose (see [38]-[40] above).

The release of the transcript of the applicant’s evidence

1. [48]

   On 24 February 2011 Det. Fitzhenry requested the release, by the Commission, of the transcripts of the evidence of all persons who had appeared before it in relation to the investigation into the deceased’s murder, including the applicant. On 1 March 2011 Commissioner Bradley approved that request. A transcript of the applicant’s evidence was uploaded to E@glei on 24 October 2011(affidavit of Det. Fitzhenry at para. 22).

2. [49]

   A subsequent issue arose regarding the release, to the DPP, of a transcript of the applicant’s evidence. It is sufficient for present purposes to note that the transcripts of all persons who had given evidence before the Commission in relation to the investigation were ultimately provided to the DPP, as well as to the applicant. The issue of the extent to which any DPP lawyer has read the transcript of the applicant’s evidence is discussed at [65] and following below.

The tasks created by Det. Fitzhenry

1. [50]

   After he had uploaded the transcript of the applicant’s evidence onto E@glei, Det. Fitzhenry reviewed it. He created two tasks to be followed up for the purposes of the investigation (para. 26 and following of his affidavit; T60 L24-26).

2. [51]

   The first task was created by Det. Fitzhenry on 12 July 2012 and was assigned to Det. Howe. It was in the following terms (affidavit of Det. Howe at para. 40):

3. [52]

   Despite being created, the task was not pursued. This was because of limited resources, along with the fact that it was assessed as being of low priority (affidavit of Det. Howe at para 41; T19 L5-7).

4. [53]

   Det. Howe said (at para. 41 of his affidavit) that he did not read the transcript of the applicant’s evidence in association with this task. He agreed that although he did not have a specific recollection of reading the terms of the task, he would have done so when it was allocated to him (T19 L9-36). He understood that the task contained information about what the applicant had said when giving evidence before the Commission about the turning point of his relationship with the deceased (T19 L38-43). He said that he was not aware, before reading the task, what the applicant may have said about that issue (T20 L24-27). He also said that he had been aware of the break down in the applicant’s relationship with the deceased from an early point in the investigation (T52 L20-28). Det. Fitzhenry was aware of such break down even before the investigation had commenced (T95 L41 – T96 L4).

5. [54]

   Det. Howe also said (T20 L29-42) that since July 2012 he had been largely involved in the preparation of the Brief of Evidence against the applicant which had involved him taking more than 50 witness statements, as well as undertaking a review of other evidence obtained by the police. However, none of those statements related to the task created by Det. Fitzhenry on 12 July 2012, nor did they relate to any evidence given by the applicant about the time at which his relationship with the deceased commenced to break down (T52 L35-T53 L2).

6. [55]

   The second task, created by Det. Fitzhenry on 19 February 2013, was entitled “Investigate defence (Medich) case theory Gattellari”. Det. Fitzhenry assigned this task to himself and Det. King.

7. [56]

   Det. King, whose affidavit was read but who was not cross-examined, stated (at para. 10) that he had not read the applicant’s transcript when carrying out duties in response to the task. Det. Fitzhenry said (para. 27 of his affidavit) that the task was created “as a result of the applicant’s defence case submissions” (see above at [11]). Det. King submitted nine products relevant to that task and Det. Fitzhenry submitted eleven. Those eleven products were uploaded to E@glei (T59 L20-36).

8. [57]

   Det. Fitzhenry explained (T61 L6) that this second task “would have came (sic) out of (his) review of the transcript”. He also agreed (T60 L49 to T61 L2) that the investigation of the defence case theory was undertaken in order to arm the prosecution with material to meet such a case.

9. [58]

   However Det. Fitzhenry said (at para. 28 of his affidavit) that he did not use the applicant’s transcript, or his knowledge of its contents, when obtaining products in relation to this task. He said (T61 L22-24; T94 L26-32) that the transcript was used for “background information” and that he had not reviewed it when undertaking the task.

Access to the transcript of the applicant’s evidence by police

1. [59]

   Once uploaded to E@glei, Det. Fitzhenry (along with other police) had access to the transcript of the applicant’s evidence. Det. Fitzhenry could not recall the number of times he accessed it nor the purpose(s) for which he may have done so (affidavit at para. 23; T62 L20-26). He did say (T 58 L37-39; affidavit at para. 32) that he had recorded aspects of the evidence in a timeline (see [76]-[82] below). The evidence does not establish any other occasion(s) on which any other officer accessed the transcript.

The search warrants obtained by Det. Howe

1. [60]

   In October 2010, on the application of Det. Howe, warrants were issued authorising the search of the applicant’s residential and business premises (p.521-527 of the affidavit of Mr Daley of 10 July 2014). Each warrant authorised a search for items which included the following:

2. [61]

   Det. Howe agreed (T22 L10-11) that financial records were a “substantial element” of each warrant. He said that he had not read the transcript of the applicant’s evidence (affidavit at paras. 41 and 68). When it was put to him that when applying for the search warrants he was aware of the evidence given by the applicant before the Commission about financial transactions, Det. Howe responded (T22 L24-26):

3. [62]

   Det. Howe said (T22 L44 – T23 L9) that he believed he would have consulted with other members of the investigation team, but not with staff of the Commission, about what to include in the application for each warrant. When asked whether it was likely that he would have consulted with Det. Fitzhenry about the scope of the search warrants, and the material for which searches were to be conducted, Det. Howe replied (commencing at T23 L18):

4. [63]

   Detective Howe said that it was his decision to search for financial documents and that this decision was informed by the nature of the deceased’s murder, and not by anything said by the applicant (or anyone else) in evidence to the Commission (T53 L18-50):

5. [64]

   When asked whether he had seen the documentation produced by the applicant’s then solicitor following the applicant’s examination ([34] above) Det. Howe said (T22 L39-42) that he was not aware if such documentation had been provided, and said that if it had been provided, he had not seen it. Det. Fitzhenry said that he had no recollection of telling Det. Howe that production of documents had even been sought by the Commission (T58 L16-18).

The knowledge of DPP lawyers of the applicant’s evidence

1. [65]

   A number of lawyers from within the office of the DPP have been identified as currently having, or having previously had, some role in the conduct of the applicant’s prosecution.

2. [66]

   Mr Pickering SC, the Deputy Director of Public Prosecutions, gave evidence (T40 L35-41) that when appointed to that position in February 2012 he was asked by the Director to “essentially make all decisions in the Medich matter”. He said that since that time he has made all decisions at a senior level about the conduct of the applicant’s prosecution, unless there was a particular issue which warranted the involvement of the Director himself. Mr Pickering said (T40 L24-25) that he has not read the transcript of the applicant’s evidence before the Commission. He also said (T40 L27-31) that he knew from conversations with him, that Mr Babb SC, the Director, had similarly not read it.

3. [67]

   Apart from his overall supervisory role, Mr Pickering appeared on behalf of the Crown in the sentence proceedings against Gattellari. He said (T40 L43 – T41 L1) that he did not read the transcript of Gattellari’s evidence before the Commission for the purpose of appearing in those proceedings.

4. [68]

   Shortly after the applicant was arrested, Mr Hobart SC, a Crown Prosecutor, was briefed to oppose an application for bail which was made by the applicant to this Court. Mr Pickering said that Mr Hobart’s involvement in matters relating to the applicant’s prosecution was limited to appearances in relation to that bail application and “doing some mentoring of the solicitor who was involved in it”. He explained that Mr Hobart has not, at any stage, been formally briefed to appear for the Crown, be it in committal proceedings or in the trial. Accordingly, he has never had the brief in any form. Whilst he would necessarily have had access to some material for the purposes of the bail application, such material would have been limited to statements of facts and similar documents which are customarily relied upon by the Crown in applications of that nature (T41 L20-32).

5. [69]

   Mr Pickering said (T41 L25-26) that the only person within the office of the DPP who had been briefed to appear in the applicant’s committal proceedings or his trial was Ms O’Rourke (T41 L25-27). That may not be strictly correct given the evidence of Ms Harris that she is also a Crown Prosecutor and is briefed, with Ms O’Rourke, to appear for the Crown at the applicant’s trial (T9 L11-13). However, nothing turns on Mr Pickering’s evidence in this respect.

6. [70]

   Ms O’Rourke was briefed in late February 2012. She appeared for the Crown at the committal proceedings and is to appear at the trial. She first received the brief of evidence on 7 May 2012, which at that time included the transcript of the applicant’s evidence before the Commission (affidavit at paras. 4 and 5). To the best of Ms O’Rourke’s recollection she became aware that the transcript was included in the brief at some time between May and August 2012. She explained (at paras. 6 and 7 of her affidavit) that upon reading the decision of Garling J in R v Seller; R v McCarthy [2012] NSWSC 934 she requested her then instructing solicitor, Ms Derrig, to retrieve the transcript of the applicant’s evidence from her brief. Ms O’Rourke said (at para. 10 of her affidavit) that she had not read, and had no recollection of ever actually seeing, the transcript of the applicant’s evidence before its retrieval by Ms Derrig.

7. [71]

   Ms Derrig recalled (para. 5 of her affidavit) a conversation in which Ms O’Rourke had told her that they were not permitted, and/or should not read, transcripts of any evidence given before the Commission. As a consequence, Ms Derrig collected all such transcripts from Ms O’Rourke’s chambers and placed them, along with her copies of the same material, on a shelf in her office, separate from her copy of the brief. Ms Derrig said (para. 10 of her affidavit) that she did not read any of the transcripts of evidence given by anyone before the Commission.

8. [72]

   Ms O’Rourke explained (T6 L29-42) that she considered it relevant, in her capacity as Crown Prosecutor, to have regard to all of Gattellari’s prior statements in order to assess his credit. She said that as part of that exercise she had reviewed (inter alia) the transcripts of Gattellari’s evidence before the Commission, and was not aware of any reason why she should not have done so. She pointed out (T6 L44-46) that Gattellari had been “cross-examined extensively” on the content of those transcripts in the committal proceedings.

9. [73]

   Ms Harris, who is briefed to appear with Ms O’Rourke at the applicant’s trial, has not read, and has not had access to, the transcripts of the evidence of Gattellari or the applicant (para. 5 of her affidavit) although she said (T10 L14-15) that she had read documents containing excerpts of the former. When asked to identify such document(s), Ms Harris referred (T10 L16-25) to a summary of Gattellari’s evidence (including his evidence before the Commission and his evidence at the committal hearing) which had been prepared by Ms Lind, another solicitor from the DPP.

10. [74]

    Ms Lind gave evidence that she commenced working on the applicant’s prosecution in May 2013 but had not had access to, and had not read, a transcript of his evidence before the Commission. She said (T12 L26-46) that she had read the entirety of the transcripts of Gattellari’s evidence and had used (inter alia) those transcripts to prepare the document to which Ms Harris referred. The remaining persons from within the office of the DPP whose affidavits were read, but who were not cross-examined, were Ms Rowe, Ms Carmody and Ms Rowbotham. Each said that they had not read the transcript of the applicant’s evidence.

11. [75]

    Having regard to the evidence of those lawyers from the DPP who are, or who have been, involved in the applicant’s prosecution, I am satisfied that although some of them may have been able to access a transcript of the applicant’s evidence, none of them have read it.

The Timeline document

1. [76]

   What has been referred to as the “timeline document” (“the timeline”) is a chronology of relevant events compiled by the police in the course of the investigation. It is an investigative tool available to the police (T58 L41-46) to which Det. Fitzhenry has added parts of the applicant’s evidence (see [59] above).

2. [77]

   Det. Howe said (T24 L23-32) that he had made extensive use of the timeline in the investigation although he had not seen any entry in it which related to the evidence of the applicant. He was not able to say what investigative use may have been made of the timeline by other police (T58 L58 L18 - T59 L10).

3. [78]

   Within the DPP, Ms O’Rourke has had access to the timeline since about late 2012. She retained a copy of it in her brief up until 23 June 2014. She said (T7 L42-50) that she had accessed the document up to four times, but more likely two or three times, and in doing so had read specific portions of it, but that she had never used it specifically in terms of the applicant (T7 L42 – T8 L2). Ms O’Rourke also explained (T8 L12-17) that her use of the timeline had, as its focus, specific dates and events. This was because she was compiling a report on co-offenders and needed specific details about what occurred on particular days.

4. [79]

   Ms O’Rourke stated that she had been unaware that the timeline contained information about the applicant until she was so informed on 23 June 2014 by Ms Lind (affidavit at para.16). Upon being so informed, she directed that her copy of the timeline, along with all other copies of it (including any electronic copies) be collected and returned to the police. She informed the Director of the position and then requested that a letter be sent to the Crown Solicitor notifying him of the position, so that such information could be disclosed to those acting for the applicant in the present matter (affidavit at para.17).

5. [80]

   Ms Harris gave evidence that she was first advised of the existence of the timeline on 13 June 2014. She has never accessed it.

6. [81]

   Ms Lind has had access to the timeline but has not read any entry in it which refers to the applicant’s evidence. Ms Lind directed Ms Rowe to send a disc containing the timeline back to the police on 23 June 2014. When asked how many times she had accessed the timeline Ms Lind said (T14 L42-46) that she could not say with any certainty, but estimated that it would have been in excess of 20 or 30 occasions. When asked how extensively she had used it on those occasions she replied (T14 L50 – T15 L2) that she had used it to look up dates but had not read it in its entirety.

7. [82]

   When assigned to work on the applicant’s prosecution on about 11 June 2014, Ms Rowe was provided with a disc containing the timeline. On 20 June 2014 she accessed the document and observed an entry referring to the applicant and the Commission. She did not read the entry and then closed the document (paras. 6-8 of her affidavit).

Gattellari’s evidence before the Commission

1. [83]

   Gattellari gave evidence before the Commission on three occasions, namely 3 September 2010, 12 October 2010 and 19 October 2010. The transcripts of his evidence have been tendered on the present application. It is necessary to set out some of that evidence in light of the submissions made on behalf of the applicant.

2. [84]

   At T5 of Gattellari’s evidence on 3 September 2010 (Annexure 5 of Ex.TWD 1 to the affidavit of Mr Daley sworn 26 June 2014) the following is recorded:

3. [85]

   A T6 Gattellari was asked:

4. [86]

   The following is then recorded at T8:

5. [87]

   At T49 Gattellari was questioned by Mr O’Connor about financial transactions between himself and Safetli including, in particular, a transaction in which monies which originated from the applicant passed through Gattellari’s account and were ultimately applied to a deposit on a property purchased by Safetli. At T51 the following is recorded:

6. [88]

   In respect of the issue of the breakdown of the applicant’s relationship with the deceased, the following is recorded at T22:

7. [89]

   The following is then recorded at T24:

8. [90]

   In the course of his evidence on that day, Gattellari was asked whether he had asked Safetli to kill the deceased. He replied (at T49):

9. [91]

   When appearing before the Commission on 19 October 2010 Gattellari indicated that he wished to assist the investigation into the murder of the deceased. At the conclusion of the proceedings on that day, Assistant Commissioner Singleton said to Gattellari:

The taking of Gattellari’s statements

1. [92]

   The task of taking statements from Gattellari was allocated to Dets. Groves and Watson. Between 19 October 2010 and 14 December 2011 Gattellari made a series of statements and participated in an electronically recorded interview. At an earlier stage of the investigation, before giving evidence, he had made a Statutory Declaration in which he had set out aspects of his business relationship with the applicant.

2. [93]

   The statements made by Gattellari were set out by Det. Watson in his affidavit (commencing at para. 17) as follows:

3. [94]

   Noting that Det. Watson had played no part in obtaining the statement in (viii) (as to which see [100] below) Det. Watson explained in his affidavit that:

4. [95]

   By reference to his duty book for 19 October 2010 Det. Watson agreed (T69 L18-21) that various meetings took place between about 10:45am until sometime after 2:00pm on that day. When asked whether he knew, prior to taking Gattellari’s first statement, that it was expected that Gattellari would implicate the applicant, Det. Watson said (T69 L25-28):

5. [96]

   Before taking Gattellari’s first statement Det. Watson was aware that a number of hearings had been conducted at the Commission, one of which involved the applicant (T69 L45 - T70 L1). However, when asked whether he was made aware of the applicant’s evidence before speaking with Gattellari, Det. Watson responded (T70 L5-6):

6. [97]

   Det. Watson was then asked about whether he had been briefed in relation to the subject matter to be covered in any statement taken from Gattellari (T70 L17-26):

7. [98]

   Det. Watson agreed (T71 L28-35) that prior to taking Gattellari’s first statement he had “some idea” of the subject matter which was to be covered:

8. [99]

   Det. Watson also acknowledged that he was aware, prior to taking Gattellari’s statements, that there was evidence to implicate Gattellari in the deceased’s murder (T72 L6-8). He was also aware that a matter of interest to the investigation was establishing a connection between the applicant and the deceased’s murder (T72 L37-44). However, Det. Watson unequivocally rejected the suggestion (T73 L6-11) that he had been made aware, prior to 19 October, of parts of the substance of the applicant’s evidence to the Commission. He said that he was still not aware of the substance of anything said in any hearing before the Commission. He specifically denied the suggestion that he enquired about what account the applicant had given of various matters in the course of being examined (T73 L13-21):

9. [100]

   Det. Groves, who had been a member of Strike Force Narrunga since its creation, generally corroborated the evidence of Det. Watson as to the manner in which Gattellari’s statements were obtained. In respect of the final statement of 14 December, Det. Groves explained (at para. 21 of his affidavit) that it had been prepared as a consequence of Gattellari being asked a number of questions to clarify what he had earlier said.

10. [101]

    Det. Groves said that along with Det. Watson he attended a briefing on 19 October 2010, the subject of which was the “interview plan” concerning Gattellari (T74 L28; T75 L6-8). At that time he was briefed on the subject matter to be covered in any interview with Gattellari (T75 L19-22). He agreed (T75 L28-36) that as a member of Strike Force Narrunga he had been kept informed of developments in the investigation by Dets. Fitzhenry and Blanch.

11. [102]

    Det. Groves said (T76 L5) that when he attended the Commission on 19 October 2010 he was aware that the applicant had previously been the subject of an examination. He also said (T76 L15-19) that he was aware, prior to speaking with Gattellari on that day, that police were already in possession of substantial evidence which implicated Gattellari in the deceased’s murder. He agreed (T76 L30-32) that prior to speaking with Gattellari for the first time he was briefed as to the state of the evidence concerning the applicant’s possible involvement in the deceased’s murder. However, he rejected (T76 L34-36) the suggestion that such briefing included any reference to the applicant’s evidence before the Commission. He agreed that the applicant’s account would have been a subject of interest (T76 L45) but could not recall, one way or the other, whether he had read the transcript of the applicant’s evidence (T77 L 36-42).

12. [103]

    The process of obtaining Gattellari’s various statements was conducted over more than 12 months. Det. Groves agreed (T77 L7-20) that during that period he had many conversations with Dets. Fitzhenry and Howe about the subject matter of the investigation generally, and about the evidence of Gattellari in particular.

The charging of the applicant

1. [104]

   The applicant was originally charged with solicit to murder, and later with murder. Det. Sheehy gave evidence that the decision to charge the applicant with murder was made by the DPP (T36 L21-23). He was unable to recall who made the decision but recalled that the matter was “in the hands of Mark Hobart at the time” (T36 L25-27). Depending upon what input Mr Hobart may have actually had into that decision, the evidence of Det. Sheehy in this respect appears to be at variance with that of Mr Pickering who said (T42 L1-6) that as a matter of policy, the only person within the DPP who is able to provide advice in a matter involving an allegation of murder is the Director or the Deputy Director. He said that there was no record that the current Director, Mr Babb SC, or the former Director, Mr Cowdery QC, had ever given such advice. The evidence of Det. Sheehy in this respect also appears to be at variance with that of Mr Pickering SC as to the limited involvement of Mr Hobart (at [68] above).

2. [105]

   Ms O’Rourke said (T8 L21-23) that she understood that the decision to charge the applicant with the deceased’s murder may have come as a consequence of advice given by someone within the DPP but that because she was not involved in the matter at that point, she could not say specifically from whom.

3. [106]

   To the extent that the evidence given in relation to this issue by various witnesses might not be consistent, I am satisfied that nothing turns on it.

Submissions of the applicant

1. [107]

   Senior counsel for the applicant submitted that if it were established that the circumstances were such that it could not be said that the applicant’s trial would produce no miscarriage of justice, a stay should be granted. In support of the proposition that such circumstances were established, he made a number of submissions.

2. [108]

   It was firstly submitted that the Commission’s conduct in the present case was unlawful in a number of respects. These were said to include examining the applicant at a time when he was a suspect, and allowing the police to be present in the course of that examination. However, senior counsel for the applicant expressly acknowledged that even if aspects of the Commission’s conduct were in fact unlawful, that did not determine the matter. He accepted that the question of whether a permanent stay was warranted was to be determined according to the application of the relevant test. He submitted that such test was in the terms expressed in [107] above.

3. [109]

   The primary submission advanced on behalf of the applicant was that the presence of Dets. Fitzhenry and Blanch at the applicant’s examination, along with the fact that both officers remained involved in the investigation thereafter, warranted a permanent stay of the applicant’s trial.

4. [110]

   It was submitted that as a consequence of their presence at the examination, both officers had necessarily become privy to the applicant’s account of events which were relevant to the case against him. Senior counsel also relied on the fact that Det. Fitzhenry was the officer in charge of the investigation and that Det. Blanch had been the informant when the applicant was charged. He submitted that given their respective positions, their presence at the applicant’s examination was at odds with the principle respecting proof by the prosecution, unaided by the accused: see Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252 at [45] (“Lee”), citing X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92. He submitted that the availability, to the police, of information derived from the applicant’s evidence had operated to upset the balance between the prosecution and an accused: Lee at [32].

5. [111]

   Senior counsel submitted that a combination of all of these circumstances resulted in the investigation becoming “tainted”, and that this justified the making of an order for a permanent stay of the applicant’s trial.

6. [112]

   In the event that this primary submission was rejected, senior counsel submitted that a number of other matters provided a further basis upon which to grant the order sought. Such matters included the following:

7. [113]

   It was further submitted that as a consequence of his appearance before the Commission, and the events which had subsequently taken place, the applicant was not able to determine what course he would adopt at any trial, and would be forced to consider that issue in light of the answers he had been compelled to give. It was submitted that as a consequence, any trial had been fundamentally altered, thus warranting a permanent stay: X7 (supra) at [124] per Hayne and Bell JJ.

8. [114]

   Finally, and in the event that these submissions were rejected, senior counsel for the applicant argued that a temporary stay of proceedings ought be granted, until such time as the DPP undertook:

Submissions of the Crown

1. [115]

   The Crown emphasised a number of fundamental principles in relation to the granting of a permanent stay of a criminal trial, and in doing so submitted that the applicant’s formulation of the relevant test was incorrect. It was submitted that in order for a permanent stay to be granted the applicant was required to establish that in all of the circumstances, 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. The Crown submitted that for a number of reasons, that test had not been satisfied.

2. [116]

   The Crown submitted that the applicant’s primary position amounted to an argument that the trial should be stayed simply because an opportunity had arisen, as a consequence of the presence of Dets. Fitzhenry and Blanch at the applicant’s examination, for the police to build a case against the applicant based upon his own evidence. The Crown submitted that this was tantamount to the proposition that the applicant was required to do no more than establish some degree of “presumptive prejudice” in order to be granted a permanent stay. It was submitted that this was contrary to authority.

3. [117]

   Similarly, the Crown argued that the applicant’s submission that the investigation had become “tainted” was really another way of saying that the applicant was entitled to a permanent stay because of what might theoretically have happened in the investigation. It was submitted that such proposition was at odds with the terms of the appropriate test, which required that the Court be satisfied that the continuation of the proceedings would (as opposed to could” involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of powers. It was submitted that bearing in mind what was said to be the correct test, the focus should necessarily be upon what had in fact occurred following the applicant’s examination, rather than what might have occurred.

4. [118]

   The Crown submitted that there had been no “tainting” of the investigation at all and pointed, in particular, to the evidence that nothing said by the applicant had been used for any investigative purpose. It was submitted that the mere fact the police discussed the evidence, and/or contemplated that they were at liberty to use it, fell well short of justifying a conclusion that the investigation had been tainted at all, let alone in a manner which warranted the granting of a permanent stay.

5. [119]

   In particular, the Crown submitted that save for the two tasks created by Det. Fitzhenry (one of which was not pursued, and the other of which had arisen, on the Crown’s submission, from the provision of the defence case statement) there was no evidence of any investigative step having been taken by the police in the aftermath of the applicant’s examination. It was also submitted that nothing said by Gattellari, be it in his evidence or his statements, had emanated from anything said by the applicant, and that Gattellari‘s his ultimate decision to co-operate with police was not the consequence of any evidence which he understood that the applicant had given to the Commission. The Crown also submitted that quite apart from the evidence of the officers concerned, the form in which Gattellari’s statements were taken, as well as their content, tended completely against the conclusion that the applicant’s evidence was used to obtain them.

6. [120]

   The Crown further submitted that the evidence did not support a conclusion that the search warrants executed at the applicant’s home and business premises were connected to anything said by him to the Commission. It was submitted that the search warrants sought the seizure of a broad range of material and that it was entirely unsurprising, in all of the circumstances, that such material included financial documentation. The Crown submitted, in particular, that there was no reason to reject the evidence of Det. Howe in these respects.

7. [121]

   It was further submitted by the Crown that no DPP lawyer involved in the applicant’s prosecution had read a transcript of the applicant’s evidence, and that no difficulty arose from the fact that Ms O’Rourke and others involved in the applicant’s prosecution had read all or part of Gattellari’s evidence. In this latter respect, it was pointed out that the applicant himself had relied upon what Gattellari had said before the Commission to extensively cross-examine him at the committal hearing.

8. [122]

   The Crown further submitted that to the extent that the applicant maintained, despite what was said to be evidence to the contrary, that aspects of Gattellari’s evidence derived from the disclosure to him of aspects of what the applicant had said, it would be open to the applicant to argue, in due course, for the exclusion of such evidence pursuant to ss. 90, 137 and 138 of the Evidence Act 1995. That such a course was available was, the Crown submitted, contrary to the proposition that a permanent stay was warranted. Finally, the Crown submitted that in light of the defence case statement and the statement made by the applicant at the conclusion of his committal hearing, there was no indication that the applicant was in any way prejudiced, as a result of his appearance before the Commission, in being able to determine what course he might adopt at any trial.

Submissions of the applicant in reply

1. [123]

   In reply, senior counsel for the applicant emphasised that the applicant’s primary position was that to obtain the order sought, he needed to do nothing more than establish the presence of Dets. Fitzhenry and Blanch at the applicant’s examination, and their continuing involvement in the investigation.

2. [124]

   Senior counsel also submitted that the decision in Lee (supra) made it clear that the granting of a permanent stay was not dependent upon establishing unfairness. He submitted that the key issue in Lee was that the trial had been altered in fundamental respect by the prosecution having in its possession the evidence which had been given by the appellants before the Commission. It was further submitted that although Lee did not involve an application for a stay, the decision necessarily informed the circumstances in which such a remedy might be granted.

3. [125]

   Finally, senior counsel submitted that the real vice concerning Gattellari’s evidence was that important aspects of the applicant’s evidence had been disclosed to him. Accepting that to be the case, it was submitted that such vice was not able to be remedied by the manner and form in which any subsequent statements may have been taken.

The general principles and the applicable test.

1. [126]

   There are a number of fundamental principles which govern the exercise of the discretion to grant a permanent stay of a criminal trial.

2. [127]

   Firstly, the categories of circumstance which may justify such an order are neither closed, nor capable of exhaustive definition: R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [33]; 723.

3. [128]

   Secondly, a stay of proceedings of a criminal trial is an extreme remedy. It will be reserved for the most exceptional cases: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 31 per Mason CJ.

4. [129]

   Thirdly, the onus is upon an applicant to establish the necessary factual basis for the making of such an order: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 at [9].

5. [130]

   In the present case, the parties are at issue as to the precise terms of the test which is to be applied. In Edwards (supra), having made reference to the earlier decision of the majority in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, the High Court (Hayne, Heydon, Crennan, Kiefel and Bell JJ) formulated the relevant test in the following terms (at [23]; 720):

6. [131]

   In R v CB; MP v R [2011] NSWCCA 264 McClellan CJ at CL, having referred (inter alia) to the decisions in Edwards and Jago said (at [119]-[120]:

7. [132]

   In R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 273 FLR 155 Bathurst CJ, having referred to McClellan CJ’s judgment in CB, said (at [110]:

8. [133]

   In my view, the statement in Edwards (at [23]; 720) represents the test which is to be applied. In order to satisfy that test, the applicant must point to a fundamental defect of such a nature such that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences: Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Dupas v R [2010] HCA 20; (2010) 241 CLR 237 at [18].

9. [134]

   With these principles in mind I turn to consider the applicant’s primary submission.

The presence of the police at the applicant’s examination

1. [135]

   In X7 (supra) the High Court considered the question of whether the provisions of the Australian Crime Commission Act 2002 (“the ACC Act”) permitted an examination of a person charged with an indictable offence against the Commonwealth, in circumstances where the proposed examination encompassed the subject matter of the charges. In the context of that question of statutory construction, Hayne and Bell JJ (with whom Kiefel J agreed) made a number of observations regarding important aspects of the criminal process. In particular, their Honours said (at [124]; 142-143):

2. [136]

   The subsequent decision of the High Court in Lee and anor. v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363 (“Lee v NSWCC”) also involved a question of statutory construction. The respondent had sought an order for examination pursuant to the provisions of s. 31D of the Criminal Assets Recovery Act 1990 in circumstances where the proposed examination was to encompass matters relevant to offences alleged against the appellants. The majority (French CJ, Crennan, Gaegler and Keane JJ) concluded that the proposed examinations could proceed. French CJ, in reference to the passage in X7 (at [124]; 142-143), said (at [54]):

3. [137]

   In Lee the appellants had been found guilty of offences of drug supply. Both had given evidence in examinations before the Commission which canvassed the subject matter of the charges which were then pending against them (which were not the charges upon which they ultimately went to trial). The evidence established that those conducting the subsequent trial, including the Crown Prosecutor, had access to the transcripts of those examinations. In this regard, the High Court noted (at [15]):

4. [138]

   The Court then said (at [32], footnotes omitted):

5. [139]

   In further reference to the decision in X7 the Court said (at [45]-[46]):

6. [140]

   In R v X [2014] NSWCCA 168 the respondent had been charged with offences of drug manufacture. After being charged, he was issued with a summons pursuant the ACC Act and subsequently took part in an examination in which he was questioned about the subject matter of those charges. The primary judge ordered a permanent stay of the respondent’s trial. The Court of Criminal Appeal set aside that order.

7. [141]

   Hidden J (with whom Simpson and Hamill JJ agreed) considered the decisions in X7, Lee v NSWCC and Lee. Having done so, and bearing in mind that the issue before the primary judge was whether a permanent stay of the trial should be ordered, his Honour said (at [53]):

8. [142]

   His Honour expressly acknowledged (at [56]) the importance of the principles governing the trial process as expressed by the majority in X7. However, he accepted the submission advanced by the Crown that in determining whether a permanent stay of proceedings is warranted, it is necessary to determine whether prejudice has been occasioned and, if so, whether it can be remedied in such a way as to ensure a fair trial. In doing so, his Honour referred to the observations of Hayne J in Lee v NSWCC (at [79]-[81]):

9. [143]

   In respect of these passages, Hidden J observed (at [57]):

10. [144]

    As with the present case (but unlike the situations in each of X7, Lee v NSWCC and Lee) the issue in X was whether a permanent stay of proceedings should be granted following the respondent’s examination. In these circumstances, I accept the Crown’s submission that the observations of Hidden J serve to confirm that the focus in a case such as the present case concerns the consequences, upon any proposed trial, of the examination. The fact of the examination itself, even if unlawful, does not inevitably justify an order for the permanent stay of the trial.

11. [145]

    In the present case, there is obviously no doubt that Dets. Fitzhenry and Blanch were present when the applicant gave evidence. Neither took notes. Det. Fitzhenry’s focus was not entirely directed to the applicant’s evidence. There were some aspects of the applicant’s questioning which he did not fully understand although, as I have pointed out, the subject matter of the questioning was not restricted to complex financial dealings. Clearly, there were matters about which the applicant was questioned which Det. Fitzhenry understood.

12. [146]

    It is equally clear that Det. Fitzhenry (and, I infer, Det. Blanch) both remained at the Commission for the duration of the applicant’s evidence. Further, and although the evidence is not precise, I am satisfied that the applicant’s evidence was the subject of some discussion following his examination. At the very least, it was discussed at the debrief on 1 September.

13. [147]

    Further, the matters about which the applicant was questioned by Mr O’Connor were obviously relevant to the investigation of the deceased’s murder. The applicant was a suspect in that investigation.

14. [148]

    In all of these circumstances, the presence of Dets. Fitzhenry and Blanch at the applicant’s examination provided each of them with the opportunity to hear what the applicant said, and to use that information to advance the investigation against him if they wished to do so.

15. [149]

    However, I am satisfied that neither Det. Fitzhenry nor Det. Blanch availed themselves of that opportunity. The evidence of both officers, which I accept, establishes that apart from the creation of the two specific tasks by Det. Fitzhenry, nothing that they heard in the course of the applicant’s evidence was used for any investigative purpose by either of them. In these circumstances, and where the evidence does not establish that any other officer used anything said by the applicant for such a purpose, it cannot, in my view, be said that the Crown has been aided by the applicant’s evidence.

16. [150]

    Det. Fitzhenry did review the transcript of the applicant’s evidence before creating each task. The first task was not pursued at all. The second was created, not as a consequence of the applicant’s examination but as a consequence of the receipt of the Defence case statement. Importantly, Det. Fitzhenry did not use the applicant’s evidence when undertaking the task and obtaining products in relation to it.

17. [151]

    Det. Fitzhenry also uploaded the transcript of the applicant’s evidence onto E@glei, and added aspects of it to the timeline. As a consequence, it was open to any officer who may have had access to that system to access the transcript and/or the timeline and make use of either. However the fact that this was possible is not evidence of the fact that it occurred. There is no evidence any officer accessed this material and then used it for some investigative purpose. For the reasons I have already stated, the evidence tends wholly in support of the conclusion that no investigative use was made of the applicant’s evidence at all.

18. [152]

    The presence of the police at the applicant’s examination, and the associated opportunity to use the applicant’s evidence in the investigation, has the capability to create unacceptable injustice or unfairness. However, what the applicant must establish in order for a permanent stay to be granted is that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly prejudicial as to constitute an abuse of process. The mere presence of the police at the applicant’s examination, without more, does not meet that test, particularly in circumstances where the applicant’s examination was not regarded by those conducting the investigation as being particularly significant.

19. [153]

    In advancing his primary submission, senior counsel for the applicant referred me to the recent decision of Logan J in QAAB v Australian Crime Commission [2014] FCA 747. The applicant in that case had been present at premises when a large drum of chemical was found in the course of the execution of a search warrant. He was charged with some relatively minor offences in respect of drug paraphernalia but was not charged in relation to the drum of chemical. He was then issued with a summons pursuant to s. 28 of the ACC Act requiring his attendance for a compulsory examination. One of the circumstances surrounding that examination concerned the presence, at the examination, of the person in charge of the investigation.

20. [154]

    His Honour ultimately dismissed the application. However in doing so he said, in a passage relied upon by the applicant (at [39]):

21. [155]

    It was submitted on behalf of the applicant that the prejudice to which his Honour referred reflected precisely what had occurred in the present case. Leaving aside the fact that his Honour was not dealing with an application for a permanent stay, I am unable to accept that submission.

22. [156]

    His Honour concluded that the pursuit of lines of enquiry following the attendance of an investigator at an examination might prejudice a fair trial. To begin with, pursuing a line of enquiry arising from an examination is a step beyond mere attendance at such examination. Moreover, as I have already noted, the evidence of Det. Fitzhenry and Det. Blanch was that nothing said by the applicant was used by either of them to pursue any line of enquiry. There is no evidence of any other officer having used anything the applicant may have said.

23. [157]

    Further, even if were established that a line of enquiry arising from the applicant’s evidence was pursued, it would remain necessary for the applicant to establish that as a consequence of that having occurred, the continuation of the proceedings would result in unacceptable injustice or unfairness. All of these considerations simply highlight the fact that, as Hidden J observed in X, it is the effect of an examination upon a person’s trial which the important consideration. Such effect will depend upon the circumstances of the case at hand.

24. [158]

    I am also unable to accept the submission that the presence of the police at the applicant’s examination had the effect of upsetting the balance between the applicant and the prosecution in the manner referred to by the High Court in Lee. In Lee the Court was not called upon to consider whether the trial should be permanently stayed. Moreover, the factual circumstances in that case were markedly different. Part of what upset the balance in that case was the fact that the Crown Prosecutor had had access to, and had used in preparing the trial, the transcripts of the evidence given by the appellants before the Commission. The evidence in the present case establishes that the lawyers involved in the prosecution of the applicant have not even accessed the transcript of his evidence before the Commission, much less used it for any purpose.

25. [159]

    For all of these reasons, I do not accept the applicant’s primary submission that the presence of the police at the applicant’s examination warrants an order for a permanent stay of the trial. I now turn to consider the remaining matters relied upon.

Discussions between Police

1. [160]

   The majority, if not all, of the police involved in the investigation believed that there was no impediment to discussing the applicant’s evidence. Although the evidence of the police on this subject is not completely clear, I am satisfied that some discussions took place, at the very least, at the debrief.

2. [161]

   The mere fact that evidence was discussed is not sufficient to warrant a stay of the applicant’s trial, nor is the fact that the police considered that there was no impediment to the use of the applicant’s evidence. The more important consideration is the use, if any, to which that evidence was put. For the reasons I have already given, it was put to no use by Dets. Fitzhenry and Blanch, and there is no evidence of it being put to use by any other officer.

The application for Search Warrants

1. [162]

   Det. Howe gave evidence that he had not read a transcript of the applicant’s evidence. He said that his application for Search Warrants was not influenced by anything said by the applicant in that evidence. He also said that his application was not influenced by any document(s) which may have been produced to the Commission by the applicant’s then Solicitor. I accept Det. Howe’s evidence in those respects. As he pointed out, he was investigating an alleged contract killing. It is unsurprising, in those circumstances, that the production of financial documentation (in respect of both the payment for the murder and the relationship between the applicant and the deceased) would be sought.

Gattellari’s evidence

1. [163]

   The applicant relied upon a number of passages of the questioning put to Gattellari in his examination before the Commission which, it was submitted, indicated that important aspects of the applicant’s evidence had been disclosed.

2. [164]

   The first instance is the passage at [84] above concerning the provision, by Riv Group, of credit. The question put by Mr O’Connor made reference to the fact that the Commission had previously had “the benefit of having spoken” with the applicant. That was an obvious reference to the applicant’s earlier examination. However as the Crown pointed out, the investigating police were in possession of information in relation to these financial arrangements long before, and independently of, anything said by the applicant in his evidence.

3. [165]

   Firstly, in a Statutory Declaration made on 11 September 2009, Gattellari himself had said (inter alia):

4. [166]

   Secondly, there were references to these financial arrangements in telephone conversations between Gattellari and the applicant which were recorded by the police in 2009 and 2010 prior to the applicant giving evidence (see paras. [136]-[137] and [797]-[798] of Gattellari’s statement signed on 28 November 2011). Although in the course of that statement Gattellari provided further information in relation to such financial dealings by reference to those conversations, the dealings themselves were clearly known to the police as early as 2009. I am not satisfied in these circumstances that anything said by the applicant about that subject when examined resulted in Gattellari’s evidence being forthcoming.

5. [167]

   It is also significant that in the statement obtained between 21 July 2011 and 25 November 2011 (at [93](vii) above) Gattellari made reference to these same financial arrangements. As Det. Watson explained (at [94](d) above) this statement was made as a consequence of Gattellari being provided with material by the police and being asked to comment on it. That material did not include anything said by the applicant.

6. [168]

   The second instance is the passage at [85] above. Gattellari was asked about the existence of security over the line of credit. The terms of the question put by Mr O’Connor included a reference to the applicant having “indicated” the existence of such security. That was obviously a reference to the applicant’s earlier evidence before the Commission. In his response, Gattellari explained that “with the charges … we can’t dispose of anything without his permission”.

7. [169]

   As the Crown pointed out, immediately before this the following questions and answers were recorded:

8. [170]

   These questions made no reference to the applicant’s evidence at all. Significantly, in response to the second, Gattellari volunteered the existence of the security. It was immediately following that answer that Mr O’Connor asked the question in [85] above. In these circumstances, any disclosure of the applicant’s evidence (such as it was) did not result in Gattellari’s disclosure of the existence of the security. Its existence had already been volunteered.

9. [171]

   Moreover, as the Crown also pointed out, it is not incumbent upon the presentation to establish these various financial dealings as a fact in its case. They are relied upon by way of background only.

10. [172]

    The third instance is the passage at [86] above. In his question, Mr O’Connor made reference to the applicant having “indicated that the electrical companies are soaking up a substantial proportion of (the applicant’s) wealth” to the point where he had indicated that there would not be any further credit extended. Gattellari did not expressly cavil with that proposition, but said that no further credit was being sought in any event.

11. [173]

    Although the terms of Mr O’Connor’s question might infer some reference to the applicant’s evidence, such terms did not accurately reflect what the applicant had in fact said in response to being asked about his relationship with Gattellari (see [31] above).

12. [174]

    The applicant in fact said nothing about the investments soaking up a substantial proportion of his wealth, nor did he assert that he was not prepared to make any further investment, or extend any credit.

13. [175]

    The gravamen of the applicant’s complaint in this respect is that important parts of his evidence were disclosed to Gattellari. I am not able to accept that such disclosure occurred in circumstances where the question that was asked did not, in fact, reflect the applicant’s evidence. In any event, the fact that the applicant had invested heavily in businesses with Gattellari was known to the police well before he gave evidence. In March 2010, police intercepted a conversation between Gattellari and Kim Shipley in which the funding of the electrical companies, and the applicant’s frustration at the lack of return as expressed to Shipley, were discussed (see statement of Gattellari at [93](vi) above at [725]-[726]).

14. [176]

    The fourth instance is the passage at [87] above. When the transcript of Gattellari’s examination is read as a whole, it would appear that the monies advanced to Safetli, and the loan that Gattellari asserted he had made to Jim Emirian, were two separate amounts. Although Mr O’Connor’s questions made reference to what the applicant had been “told by this Commission”, that is of limited significance in circumstances where no reliance is placed by the Crown on loans made by Gattellari. In particular, the Crown does not rely upon any loan to Safetli as evidence of payment (or part payment) for the deceased’s murder. Accordingly, even if there was some disclosure of what the applicant had said, the Crown does not rely upon it. Moreover, Gattellari’s evidence that such loans were made without authorisation would appear to assist the applicant’s case as it is outlined in the defence case statement.

15. [177]

    The fifth instance is the evidence at [87]-[89] above. Gattellari was asked about the deterioration of the relationship between the applicant and the deceased. In the course of that questioning, Mr O’Connor made reference to the deceased’s taping of private conversations between himself and the applicant (referred to in the Crown case statement at paras. 47 and 48) and the date on which the applicant became aware of that fact. Gattellari said he knew nothing about any tape.

16. [178]

    There are a number of observations to be made concerning this aspect of Gattellari’s examination. Firstly, as the Crown submitted, Mr O’Connor’s questions to Gattellari on this subject made no reference to the applicant’s evidence. In particular, they did not suggest that such evidence formed the basis of the questions which were asked. Secondly, Gattellari was asked an open-ended question (without reference to anything the applicant may have said) about the events which led to the deterioration of the relationship between the applicant and the deceased. He responded simply to the effect that “court cases” were an indication that the relationship had soured. Thirdly, and to the extent that Gattellari was asked about the date of 3 March 2009, Mr O’Connor had made it clear when questioning the applicant that the Commission’s source of this information was “what came out of the ICAC enquiry” (at [28]) above. None of this involved the disclosure of what the applicant had told the Commission.

17. [179]

    For all of these reasons, I am not satisfied that anything put to Gattellari in the course of his examination supports the making of an order sought.

The roles of Dets. Groves and Watson in obtaining Gattellari’s statements

1. [180]

   Neither Det. Groves nor Det. Watson were present at the applicant’s examination. Because of their involvement in the investigation they had some appreciation of the subject matter which was to be covered in any statement(s) obtained from Gattellari. However, that does not support a conclusion that the applicant’s evidence before the Commission was used, in any way, in the task of obtaining such statements. Both officers rejected the suggestion that the briefing prior to taking Gattellari’s first statement included any reference to the applicant’s evidence. There is no reason not to accept the evidence of each officer in that respect. There is no other evidence which establishes that the applicant’s evidence was used, in any way, in the process of obtaining Gattellari’s statements. I am satisfied that it was not.

2. [181]

   Moreover, the manner in which Gattellari’s statements were taken, and in some cases the reason(s) for which they were taken, tend completely against a conclusion that the applicant’s evidence was used in that process. As set out in the respective affidavits of Dets. Groves and Watson, some of the statements were generally taken as a free form narrative in which Gattellari simply recounted his involvement, and that of others, in the deceased’s murder. Others were taken that form, and came about as a consequence of the police seeking clarification, either of audio/visual material obtained in the investigation or of something that Gattellari had previously said. There is no indication at all that the applicant’s evidence was used in the course of that process.

Knowledge of DPP lawyers of Gattellari’s evidence and statements

1. [182]

   Ms. O’Rourke, as well as Ms Harris and Ms Lind, have had access to Gattellari’s evidence, or at least aspects of it. That is to be expected, given the reliance placed upon Gattellari’s evidence in the Crown case. As Ms O’Rourke properly pointed out, it is necessarily part of her trial preparation to familiarise herself with any statement, in whatever form, previously made by Gattellari. That is so in the case of any witness. It is all the more so when the evidence of that witness is significant.

2. [183]

   For the reasons I have already expressed, I am satisfied that no material part of the applicant’s evidence before the Commission was put to Gattellari when he gave evidence, and that nothing said by the applicant in his evidence was used for the purposes in obtaining Gattellari’s various statements. In those circumstances, and bearing in mind the unchallenged evidence of Ms O’Rourke, Ms Harris and Ms Derrig that they have not read the transcript of the applicant’s evidence, there is no warrant to restrict their access to the statements and evidence of Gattellari. The fact that they have had such access provides no basis for the orders sought by the applicant, particularly as that material will obviously form a significant part of the basis of the cross-examination of Gattellari at any trial, as it did at the committal proceedings.

The applicant’s position at trial

1. [184]

   On the evidence before me I am not satisfied that any aspect of the applicant’s evidence before the Commission, or anything that has occurred in association with that appearance, has left him in a position where he is unable to determine what course he might wish to take at any trial. As I have noted at [26] above, the applicant made no admissions and nothing he said directly implicated him in the deceased’s murder. The applicant has made the general content of his defence known, both in the case statement as well as in his statement to the committing Magistrate. There is no evidence before me which supports a conclusion that the applicant’s capacity to defend himself has been altered or compromised by his appearance before the Commission, or anything relating to that appearance.

A temporary stay of proceedings

1. [185]

   It was submitted on behalf of the applicant that in the event that I rejected the application for a permanent stay of proceedings, I should order a temporary stay on the terms set out in [114] above. In light of the views I have reached in relation to Gattellari’s evidence, the provision of his statements, and the knowledge of this material on the part of the Crown Prosecutors and their instructing solicitors, there is no warrant for the making of an order for a temporary stay. To the extent that the applicant’s submission relied upon the proposition that any DPP lawyer(s) had accessed the applicant’s evidence, the evidence is completely to the contrary. I am satisfied that no DPP lawyer has read any part of that evidence.

2. [186]

   For the foregoing reasons I make the following orders:

   1. (1)

      The applicant’s notice of motion dated 18 June 2014 is dismissed.