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Court of Criminal Appeal 21 June 1999

REGINA v FARHAT

[1999] NSWCCA 174

Fraud & dishonesty

Citation: Regina v Farhat [1999] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 21 June 1999
Judge(s): Adams J, Greg James J, Studdert J

Background

The appellant was a receptionist and office manager at a medical centre, and also a director of the company operating that centre. She faced 47 counts on indictment: 38 charges of defrauding the Commonwealth under s 29D of the Crimes Act 1914 (Cth) and 9 charges of uttering forged documents under s 67(b) of the same Act. The charges related to alleged bogus Medicare claims submitted to the Health Insurance Commission (HIC) in respect of patient visits.

The appellant was committed for trial in June 1996 and arraigned in July 1996. Her trial was listed but not reached on two earlier occasions, and at the time of the appeal was listed for hearing one week away, in late June 1999.

Before the trial commenced, the appellant applied to the District Court for a permanent stay of proceedings. Judge Armitage QC dismissed the application. The appellant then brought this appeal under s 5F of the Criminal Appeal Act 1912, arguing that the prosecution had been so tainted by the conduct of HIC investigators that a fair trial was impossible.

  • Whether the manner in which HIC officers conducted their investigation (including the removal of medical records and the obtaining of search warrants) was so improper as to justify a permanent stay of proceedings
  • Whether the prosecution had breached its disclosure obligations by withholding a diary note made by a key witness
  • Whether non-compliance with procedures under the Health Insurance Commission Act 1973 and alleged deceit by HIC officers provided grounds for a permanent stay
  • Whether the delay in bringing the matter to trial, considered alongside the other complaints, collectively justified a permanent stay

Decision

The Court of Criminal Appeal unanimously dismissed the application, agreeing with the District Court's refusal of the stay on all grounds.

Adams J, delivering the primary judgment, affirmed that the power to grant a permanent stay is reserved for extreme cases. Drawing on Jago v District Court of New South Wales (1989), his Honour confirmed that a permanent stay requires a fundamental defect going to the root of the trial, one so severe that no action by the trial judge could remedy the unfairness. The mere fact that evidence may have been improperly or illegally obtained does not automatically warrant exclusion of that evidence, let alone a permanent stay of proceedings.

On the complaints concerning the removal of medical records and the obtaining of search warrants, the Court held that even if those acts were unlawful, they did not provide a basis for a permanent stay. On the alleged withholding of Dr Steele's diary note, the District Court found no evidence that the note had been improperly withheld, and Adams J considered that finding not only correct but "manifestly correct." The complaints about non-compliance with the Health Insurance Commission Act 1973 and alleged deceit by investigators were found to have no substance, including because the relevant provision authorised officers to request production of documents, and the evidence showed no more than a request was made.

Greg James J added that the constitutional requirement for jury trial in Commonwealth indictable offences (s 80 of the Constitution) made the questions raised peculiarly matters for the jury under appropriate trial directions. All three judges agreed the application was "entirely misconceived" and that the District Court had not erred.

Orders Made

  • Application dismissed

Key Takeaways

  • A permanent stay of criminal proceedings is an exceptional remedy, available only where there is a fundamental defect going to the root of the trial that no trial judge could cure, not merely where investigative irregularities have occurred.
  • Unlawfully or improperly obtained evidence does not automatically justify a permanent stay; the question of whether such evidence should be excluded is a separate matter governed by Bunning v Cross principles and s 138 of the Evidence Act 1995.
  • In dismissing the appeal, the Court confirmed that delay alone, or delay in combination with other complaints that lack individual merit, will not ordinarily provide a basis for a permanent stay.
  • Where a prosecution is alleged to have withheld material, the trial judge retains the capacity to address non-disclosure issues through the conduct of the trial itself, including directions to the jury.
  • Under s 80 of the Constitution, Commonwealth indictable offences are to be tried by jury, and evidentiary and witness-related questions of the kind raised here are properly for the jury, guided by appropriate trial directions.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1914 (Cth), ss 29D, 67(b)
- Health Insurance Commission Act 1973 (Cth), s 8P
- Evidence Act 1995 (NSW), s 138
- Constitution (Cth), s 80

Cases
- Jago v District Court of New South Wales (1989) 41 A Crim R 307
- Bunning v Cross (1977) 141 CLR 54
- Apostolides v The Queen (1984) 154 CLR 563