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Supreme Court 26 June 2015

R v Michael John Issakidis

[2015] NSWSC 834

Fraud & dishonesty
CRIME TRIAL CONTINUED AGAINST CO ACCUSED CROWN CASE COMPLEX ACCUSED UNABLE TO REPRESENT HIMSELF ACCUSED’S FUNDS EXHAUSTED

Citation: R v Michael John Issakidis [2015] NSWSC 834
Court: Supreme Court of New South Wales
Date: 26 June 2015
Judge: Beech-Jones J

Background

The accused was charged with two counts relating to an alleged large-scale Commonwealth tax fraud, carrying maximum penalties of 10 and 25 years imprisonment respectively. He and his co-accused were jointly tried before a jury, with the accused privately funding his own defence. The first trial ran for 55 days before the jury was discharged in November 2014, after documents held on an Australian Taxation Office database were belatedly provided to the defence during the co-accused's own evidence. The co-accused's trial continued, resulting in conviction and a sentence of 11 years imprisonment with a non-parole period of seven years.

The Commonwealth Director of Public Prosecutions (CDPP) indicated it intended to proceed to a second trial against the accused. By that point, the accused's assets had been frozen under proceeds of crime legislation and his funds from the first trial were exhausted. He applied by notice of motion for either a stay of proceedings based on his inability to obtain legal representation (the Dietrich ground), or a stay unless and until the CDPP paid the costs thrown away as a result of the aborted first trial.

The central issue was whether the accused's impecuniosity was attributable to his own fault or to a failure by the Crown, and what consequence, if any, that had for the conduct of the second trial.

  • Whether the accused was entitled to a stay of proceedings under the principles in Dietrich v The Queen (1992) 177 CLR 292, on the basis that he was indigent and unable to obtain legal representation through no fault of his own
  • Whether, independently of Dietrich, the Court had power to stay proceedings unless and until the CDPP paid the costs thrown away at the first trial, given the Crown's fault in causing the discharge
  • How responsibility for the discharge of the jury should be allocated between the parties
  • Whether the accused had adequately pursued available avenues for legal aid funding before seeking a stay

Decision

Beech-Jones J refused the Dietrich application. The Dietrich principle entitles an accused facing serious charges to a stay where they are unrepresented through no fault of their own. However, the court found the accused had not yet properly or fully pursued an application for legal aid. Until that avenue was genuinely exhausted, he could not establish that his lack of representation was not at least partly his own fault. The Dietrich ground therefore failed at this point in time.

The court accepted, however, that responsibility for the discharge of the jury at the first trial lay squarely with the prosecution. The Crown had failed to disclose an email chain and had access to documents on the ATO's searchable database that the accused did not. That failure caused the first trial to abort on its 55th day, with the accused having privately funded a complex, lengthy defence. The court found this created a relevant form of unfairness to the accused that justified relief beyond the Dietrich framework.

Drawing on the court's inherent power to prevent an abuse of process, and applying principles from cases including Jago v District Court and R v Beeby, Beech-Jones J held that a conditional stay was appropriate. The stay would not be permanent but would operate unless and until the CDPP paid the costs thrown away at the first trial. The court accepted that the accused had conducted his defence reasonably throughout the first trial and that the costs incurred were genuine.

The costs thrown away were assessed at $624,000, based on evidence from the accused's solicitor. The court noted the assessment was made on the assumption that the same senior counsel would be retained for the second trial, and indicated that variation of the order could be sought if that assumption did not hold.

Orders Made

  • The proceedings against the accused are stayed unless and until the CDPP pays him (or at his direction) the sum of $624,000
  • The notice of motion filed 19 March 2015 is otherwise dismissed
  • The directions hearing listed for 3 July 2015 is vacated
  • The proceedings are listed for mention on 24 July 2015 at 9:30 am
  • The parties have liberty to apply on one day's notice

Key Takeaways

  • A Dietrich stay requires the accused to demonstrate lack of representation through no fault of their own. An accused who has not properly pursued legal aid cannot satisfy that requirement, even where their financial position has been genuinely affected by Crown misconduct.
  • Where a Crown failure causes the discharge of a jury mid-trial, the court's inherent power to prevent abuse of process can support a conditional stay of a subsequent trial pending payment of costs thrown away, independently of the Dietrich framework.
  • The fault of the prosecution in causing a lengthy privately-funded trial to abort is a significant factor in determining whether a temporary stay is warranted, even where a permanent or Dietrich-style stay is not available.
  • Conditional stays of this kind are not permanent: the proceedings may resume once the identified unfairness (here, non-payment of wasted costs) is remedied.
  • An accused's reasonable conduct during the aborted trial, including making admissions and conducting concise cross-examination, is relevant to assessing whether costs claimed as thrown away were genuinely and reasonably incurred.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5, 135.4, 400.3
- Criminal Procedure Act 1986 (NSW), s 142
- Income Tax Assessment Act 1936 (Cth), ss 263, 264
- Judiciary Act 1903 (Cth), s 68
- Proceeds of Crime Act 2002 (Cth)

Cases:
- Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Petroulias v The Queen [2007] NSWCCA 154
- R v Beeby (1999) 104 A Crim R 142
- R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1
- R v Bui [2011] ACTSC 102
- R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068
- R v Dickson; R v Issakidis (No 2) [2014] NSWSC 1078
- R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460
- R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595
- R v Dickson (No 18) [2015] NSWSC 268
- R v Fisher [2003] NSWCCA 41; 56 NSWLR 625
- R v Mosely (1992) 28 NSWLR 735
- R v Selim [2007] NSWSC 154
- R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531