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Supreme Court 18 January 2013

R v Spadina

[2013] NSWSC 4

Drugs
CRIMINAL LAW MISSING DUTCH INTERCEPT MATERIAL

Citation: R v Spadina [2013] NSWSC 4
Court: Supreme Court of New South Wales
Date: 18 January 2013
Judge(s): Price J

Background

The accused faced charges of conspiring to import a commercial quantity of pseudoephedrine into Australia, and of aiding and abetting the supply of a large commercial quantity of pseudoephedrine. The Crown alleged he was a co-principal of the Australian end of an international drug importation operation, involving a Dutch-based syndicate that purportedly arranged to ship 210 kilograms of pseudoephedrine from the Democratic Republic of Congo to Australia between December 2005 and September 2007.

The investigation, known as Operation Lacerta, arose from intelligence provided by the National Police Agency of the Netherlands (NPA), which was conducting its own parallel investigation (Operation Mayer) into approximately 35 Dutch syndicate members. The NPA gathered a substantial volume of intercepted telephone calls, SMS messages, and facsimiles relevant to the syndicate's operations.

The accused filed a motion seeking to vacate the trial date (set for 4 March 2013) and for a temporary stay of proceedings. His central complaint was that significant volumes of Dutch intercept material had not been disclosed, and that proceeding to trial without it would deny him a fair trial.

  • Whether the trial date should be vacated and a temporary stay granted on the basis that missing Dutch electronic intercept material might assist the accused.
  • Whether it was "on the cards" (meaning a realistic, rather than fanciful, possibility) that the missing material could assist the defence.
  • Whether the risk to trial fairness arising from the missing material outweighed the countervailing interests of justice, including the interests of witnesses and the public in timely proceedings.
  • Whether the missing AFP intercept material provided an independent basis for vacating the trial date or granting a stay.

Decision

Price J applied the "on the cards" test drawn from Petroulias v R [2007] NSWCCA 154 and Re K [2002] NSWCCA 374. That test asks whether there is a realistic possibility, as opposed to a mere speculation, that the undisclosed material would assist the accused. His Honour found that the nature of the Dutch intercept material, given its sheer volume and its direct relevance to the syndicate members who were alleged to have communicated with the accused, meant it was on the cards that the missing material could assist the defence.

His Honour accepted that a significant portion of the Dutch material had not been provided, including intercepts from the NPA's BVO system and phone calls made by one syndicate member that had been intercepted by Austrian and German authorities. The Crown conceded it did not possess the missing data and acknowledged some material may no longer be available. Despite this, the court found the risk to trial fairness was sufficient to warrant intervention.

The court balanced the accused's fair trial interests against the considerations raised by the Crown, including the risk of fading witness memory across more than 200 witnesses (over 50 of whom were overseas), cost, and public confidence in the administration of justice. Notwithstanding those concerns, Price J concluded the fair trial interests of the accused prevailed, and that a temporary stay was appropriate rather than an outright permanent stay.

On the AFP intercept material, the court found no sufficient basis for relief. The accused had held the BRIO report (a searchable database summarising approximately 130,000 intercepted connections) since June 2010, had requested 242 calls in May 2012 which were supplied, and had made no further requests. The evidence did not support vacating the trial date or granting a stay on that basis.

Orders Made

  • The trial date of 4 March 2013 was vacated.
  • The accused was directed to serve on the CDPP, by 28 January 2013, a schedule of up to 400 items of missing Dutch electronic material for which he required transcripts from the NPA's BVO system, identifying each item by warrant ID, record ID, MSN ID, and telephone number where possible.
  • The CDPP was directed to apply by 4 February 2013 to the Attorney-General (Cth) for an urgent mutual assistance request to the Netherlands for the scheduled material and for transcripts of Von Hohenberg phone calls intercepted by Austrian and German authorities.
  • The accused's trial was temporarily stayed until provision of the requested material or further order of the court.
  • Any further requests by the accused for AFP audio recordings of his intercepted calls were to be made to the CDPP by 8 February 2013, precisely identifying each call; those recordings were to be provided to the accused by 27 February 2013.
  • The proceedings were listed before Latham J on 1 February 2013 for mention.

Key Takeaways

  • A temporary stay of criminal proceedings may be warranted where it is "on the cards" that missing third-party intercept material could assist the accused, even where the Crown does not possess that material and its availability is uncertain.
  • The "on the cards" standard does not require the accused to demonstrate that the missing material would definitively assist the defence; a realistic, non-fanciful possibility is sufficient to engage the court's concern for trial fairness.
  • Competing interests in timely proceedings, including the risk of witness memory loss, witness unavailability, cost, and public confidence, are relevant considerations but did not override the accused's fair trial rights in the circumstances of this case.
  • Where an accused has had access to a searchable summary database of intercept material for several years and has made limited requests from it, that history is a relevant factor weighing against a stay based on alleged non-disclosure of that material.
  • The court ordered the mutual assistance process under the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the relevant Netherlands regulations to be invoked urgently, reflecting that the temporary stay was designed to be a targeted and time-limited remedy rather than an indefinite halt to proceedings.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) 1995, ss 307.11(1) and 11.5(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2) and 27
- Mutual Assistance in Criminal Matters Act 1987 (Cth)
- Mutual Assistance in Criminal Matters (Kingdom of the Netherlands) Regulations
- Telecommunications (Interception and Access) Act 1979 (Cth)

Cases:
- Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302
- R v Watt [2012] NSWSC 1574
- Re K [2002] NSWCCA 374