R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan

The five accused stand charged on indictment dated 5 November 2020. There are two counts on the indictment, each of which relates to offences of conspiracy to bribe a foreign official contrary to ss 11.5(1) and 70.2(1) of the Criminal Code (Cth).

In count 1 of the indictment, the Director of Public Prosecutions (DPP) charges that, between about 1 January 2000 and 30 June 2005, Paul Dougas, Mark Read and Geoffrey Linke in Sydney, the Republic of the Philippines and elsewhere, did conspire with each other, Lyndsay Chapple, Mohit Kumar and Yolanda Fernandez and various others to provide a benefit to another person with the intention of influencing a foreign public official in the Philippines in the exercise of the official’s duties as a foreign public official in order to obtain or retain business (the Philippines conspiracy).

In count 2 of the indictment, the DPP charges that between about 1 December 2006 and about 20 June 2012, Geoffrey Linke, Paul Casamento and Andrew Counihan in Sydney, the Socialist Republic of Vietnam and elsewhere, did conspire with each other, Lyndsay Chapple, Adam Carey, Mohit Kumar and Nguyen Ngoc Thang and various others to provide a benefit to another person with the intention of influencing a foreign public official in Vietnam in the exercise of the official’s duties as a foreign public official in order to obtain or retain business (the Vietnam conspiracy).

There is a further indictment which has been presented against Jacobs Group (Australia) ACN 001 024 095 Pty Ltd, formerly known as Sinclair Knight Merz Pty Ltd (the Company). The Company pleaded guilty to the three charges on the indictment in the Local Court and will be sentenced by this Court.

At the first mention of this matter before me on 9 November 2020, the question arose whether I would permit the accused to be arraigned on 9 December 2020 by audio visual link (AVL) from the following locations:

On 13 November 2020 I directed the parties to provide written submissions on the question of this Court’s power to arraign by AVL accused persons who were located outside New South Wales.

As a consequence of the written submissions made by the parties, I am satisfied that I can proceed to arraign the accused remotely. My reasons are as follows.

Section 97 of the Criminal Procedure Act 1986 (NSW) provides that if a guilty plea is accepted in the Local Court the Magistrate must commit the accused person, relevantly, to this Court for sentence. Section 102(1) provides that this Court may proceed to sentence when the accused has been brought before the Court under s 97 as if the accused had on arraignment in this Court pleaded guilty to the offence on indictment. Section 102(2) provides that, in such circumstances, the accused person is taken to have been convicted on indictment. These provisions are relevant to the Company as it entered a plea in the Local Court.

The following provisions are relevant to the arraignment of the individual accused.

Section 130 of the Criminal Procedure Act relevantly provides:

Section 154 of the Criminal Procedure Act provides:

In Regina v Michael Taylor [2003] NSWCCA 194 Bell J (Spigelman CJ and Miles AJ agreeing) explained the effect of s 154 as follows at [145]:

Section 13 of the Bail Act 2013 (NSW) requires a person who is granted bail or in respect of whom bail is dispensed with, to appear in person before a court as and when required to do so in proceedings for the offence.

Section 3 of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the AVL Act) includes the following definition:

Section 3A(1) provides:

Section 22C relevantly provides:

Section 22C(7A) was inserted into the AVL Act by sch 1.9 of the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW) which came into force on 27 October 2020. The explanatory note to the amendment said:

Regulation 4B of the Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW) (the AVL Regulation) provides that the prescribed period referred to in s 22C(9) of the AVL Act ends on 26 March 2021. Accordingly the proposed arraignment date of 9 December 2020 falls within the prescribed period.

It follows from ss 97 and 102 of the Criminal Procedure Act that there is no need for the Company to be arraigned on indictment in this Court since, the plea having been entered in the Local Court, the Company is taken, for the purposes of sentence, to have been convicted on indictment in this Court.

As none of the individual accused persons has pleaded guilty, it is necessary that each be arraigned in this Court. The wording of s 130(2) of the Criminal Procedure Act would tend to suggest that this Court’s jurisdiction depends on an accused person being arraigned. However, the Court of Criminal Appeal (Basten JA, Harrison and Beech-Jones JJ agreeing) decided in KS v Veitch [2012] NSWCCA 186 (Veitch) that the District Court had jurisdiction to issue a subpoena in criminal proceedings before the accused was arraigned. Basten JA said at [21]:

It follows from Veitch that this Court and the District Court have some powers pre-arraignment, which include the power to issue a subpoena. However in Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 Brennan J said at 37:

It would seem to follow from what Brennan J said, which was accepted to be correct in JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 at [27] (Basten JA, Beazley P and Ward JA agreeing), that arraignment is necessary before any substantive applications, such as the foreshadowed applications for separate trials, are heard. I understand it to be common ground that the accused ought be arraigned before any substantive application is dealt with.

As referred to above, the matter has been listed for arraignment on 9 December 2020. It is necessary to determine the further question whether those accused who are presently located in London and Melbourne respectively are amenable to arraignment on AVL or whether they need to be either present in Court or present in New South Wales. I understood from what was said on 9 November 2020 that the Crown had no objection to any of the accused being arraigned on AVL from their present locations.

The starting position is that an accused person, even one in respect of whom bail has been dispensed with, is required to attend court in person, except where expressly excused by the Court: s 13 of the Bail Act. Bail has been dispensed with in respect of all of the accused apart from the accused Mr Counihan. Bail has been granted to Mr Counihan on conditions which include that he reside at a nominated address in the United Kingdom and that he personally attend court when required to do so.

Section 3A of the AVL Act displaces s 13 of the Bail Act by providing that a requirement that a person appear is taken to be satisfied if a person appears by AVL under the AVL Act. As the proposed arraignment is to occur on 9 December 2020, s 22C of the AVL Act has effect since the prescribed period has not expired. The arraignment of an accused other than on the day appointed for trial is not a physical appearance proceedings within the meaning of s 3 of the AVL Act. None of the accused is a detainee as bail has been dispensed with in respect of each accused, apart from the accused Mr Counihan, who has been granted bail.

Accordingly, s 22C(2A) entitles each of the accused persons to appear by AVL if the Court directs or the parties consent. Any potential ambiguity as to the territorial operation of s 22C(2A) is removed by s 22C(7A) which expressly provides that appearance by AVL may take place from a place within or outside New South Wales, including a place outside Australia “if the court directs or the parties to the proceedings consent”.

As at 9 November 2020, the Court had made no such direction. Although the Crown has indicated that it has no objection to that course, neither the Crown, nor any of the accused had applied for a direction under s 22C(2A) or s 22C(7A). No party had expressly consented to this course.

However, following my direction that submissions be provided, the parties have formalised their positions. The Crown has confirmed that it will apply for a direction if necessary. The accused Mr Counihan has applied for a direction under s 22C(2A). The accused Mr Linke “continues to have no objection to his arraignment proceeding by way of audio-visual link”. The accused Mr Dougas has submitted that “it is valid and appropriate for the arraignment to be conducted via AVL” which I take to be an application for a direction or consent to arraignment by AVL. The accused Mr Read has confirmed that he “continues to consent to the arraignment occurring via AVL” and requests that he be arraigned by AVL.

On 2 December 2020, my Associate communicated with the parties to obtain formal confirmation that each consented to the arraignment of each accused by AVL at the locations proposed. Each party has communicated his, in the case of each accused, or its, in the case of the Crown, consent to that course.

For the reasons given above, I note the following: