AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Supreme Court 2 March 2007

R v SELIM

[2007] NSWSC 154

Fraud & dishonesty
CRIMINAL LAW STAY OF PROCEEDINGS APPLICATION FOR PERMANENT STAY NON DISCLOSURE BY PROSECUTION APPLICATION FOR TEMPORARY STAY

Citation: R v Selim [2007] NSWSC 154
Court: Supreme Court of New South Wales
Date: 2 March 2007
Judge(s): Fullerton J

Background

The accused, a former Chief Executive Officer of Pan Pharmaceuticals Limited, faced two alternate charges under federal legislation. Both counts alleged that on or about 30 January 2003 he procured the company's IT Manager to destroy or attempt to destroy computer data relating to the testing of a medication called Travacalm, knowing the data might be required as evidence in judicial proceedings. The data had been sought by auditors from the Therapeutic Goods Administration.

By the time proceedings reached the Supreme Court, the accused had already been through two prior trials. The first, in the District Court before Judge Geraghty in March 2003, ended when a jury was unable to reach a unanimous verdict. The second, before Judge Sorby in November 2006, was aborted after adverse publicity during the trial. The Commonwealth Director of Public Prosecutions (CDPP) then successfully applied to transfer the matter to the Supreme Court ahead of any further District Court retrial.

Facing a third trial, the accused filed two Notices of Motion seeking, first, a temporary stay conditional on the CDPP paying the costs of some or all of the previous proceedings, and second, a permanent stay on the basis of persistent prosecution non-disclosure.

  • Whether the prosecution's alleged persistent failure to disclose relevant material to the defence established grounds for a permanent stay of proceedings.
  • Whether the conduct of the prior committal and trials was so unfair, due to non-disclosure, as to warrant a temporary stay conditional on the CDPP meeting the costs of those earlier proceedings.
  • In what order the two stay applications should be determined.

Decision

Fullerton J refused both applications. On the permanent stay, her Honour applied the established principle that a permanent stay is a wholly exceptional remedy, to be granted only in extreme cases and used sparingly and with utmost caution, citing Jago v The District Court of NSW (1989) 168 CLR 23. The heavy burden of establishing irredeemable unfairness, such that no fair trial could be held, rested on the accused. Her Honour was not persuaded that burden had been met.

The accused did not contend that seeking a third trial was itself an abuse of process, nor that past unfairness alone rendered any further trial inherently unfair. The court found that the alleged non-disclosures did not reach the threshold required to justify the most extreme remedy available in criminal proceedings, particularly where the claimed unfairness could potentially be addressed by other measures.

On the temporary stay, the court considered each category of alleged non-disclosure in turn, including complaints about the conduct of the committal proceedings and both prior trials. One specific allegation concerned conference notes relating to a key prosecution witness, Mr Brooks, who had altered his account of the date of a critical conversation. Fullerton J found that the substance of the conference and what was discussed had been disclosed through Mr Brooks' own trial evidence, meaning no breach of the disclosure duty was established. Even if there had been a breach in that respect, her Honour found no resulting prejudice to the accused.

Regarding the committal proceedings, the court rejected the argument that they were forensically futile simply because the alleged date of the offence had changed between committal and trial. The transcript showed cross-examination had ranged broadly across the witness's evidence and was not confined to the date issue alone. No injustice of any kind was demonstrated by the change in date.

Orders Made

  • Application for permanent stay refused.
  • Application for temporary stay refused.

Key Takeaways

  • A permanent stay of criminal proceedings remains a remedy of last resort, available only in extreme cases where irredeemable unfairness is established and no other curative measure is available to the court.
  • The burden of proving such irredeemable unfairness rests on the applicant and is a heavy one, as confirmed by reference to Jago v The District Court of NSW and R v Petroulias.
  • Where a prosecution witness discloses in evidence the substance of a pre-trial conference and what was discussed, that disclosure may satisfy the prosecution's duty, even where formal conference notes were not separately produced to the defence.
  • A temporary stay conditional on payment of prior trial costs requires demonstrated unfairness in how those earlier proceedings were conducted; the mere change of an alleged date between committal and trial does not, without more, establish such unfairness.
  • Committal proceedings are not rendered forensically futile simply because the precise particulars of the charge shift between committal and trial, especially where cross-examination covered the witness's evidence broadly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 39
- Criminal Code (Cth), ss 11.1, 11.3
- Criminal Procedure Act 1986 (NSW), s 91

Cases
- Jago v The District Court of NSW (1989) 168 CLR 23
- R v Petroulias (2005) 62 NSWLR 663
- R v WRC (2003) 59 NSWLR 273
- R v Spitiri (2004) 61 NSWLR 369
- Grey v The Queen [2001] HCA 65
- Mallard v The Queen 224 CLR 125
- R v Fisher 56 NSWLR 625
- R v Frangulis [2006] NSWCCA 363
- R v Glover (1987) SASR 310
- R v Mosley (1992) 28 NSWLR 735
- R v Reeves (1994) 122 ACTR 1
- R v Ulman-Naruniec 143 A Crim R 531