Citation: R v Issakidis [2016] NSWSC 1290
Court: Supreme Court of New South Wales
Date: 9 September 2016
Judge: Beech-Jones J
Background
The accused faced two charges under the Criminal Code Act 1995 (Cth): conspiracy to dishonestly cause a loss to the Commonwealth and conspiring to deal with property valued at $1 million or more believed to be proceeds of crime. By the time this application was heard, he had already faced three trials. The first was aborted on day 55 after the prosecution failed to disclose relevant documents. The second was aborted when a juror breached directions not to research the accused and shared findings with other jurors. The third ended with a hung jury.
Following the first trial's discharge, Beech-Jones J had previously stayed proceedings unless the Commonwealth Director of Public Prosecutions (CDPP) paid the accused $624,000, representing his reasonable costs thrown away in that aborted trial. The CDPP paid that sum, and the second and third trials proceeded. Neither the second nor the third trial abortion was attributed to any fault of the prosecution.
After the CDPP determined it would seek a fourth trial, the accused filed a notice of motion seeking a further stay. He argued the unfairness stemming from the prosecution's original non-disclosure remained ongoing, and that proceeding to a fourth trial without further redress would offend the community's sense of fair play.
Legal Issues
- Whether the unfairness arising from the prosecution's non-disclosure at the first trial had been sufficiently redressed by the earlier payment of $624,000.
- Whether the accused's inability to fund legal representation of his choice ahead of the fourth trial was a continuing consequence of the prosecution's original misconduct.
- Whether the lost opportunity to cross-examine key witnesses on the undisclosed email chain at earlier trials gave rise to a fresh or ongoing unfairness warranting a stay.
- Whether a fourth trial, in all the circumstances, would be so unfair as to warrant the court's intervention by way of stay.
Decision
The court dismissed the stay application. The central principle underlying a Mosely-type stay (drawn from R v Mosely (1992) 28 NSWLR 735) is to prevent a person being forced to trial without adequate legal representation as a direct result of prosecution misconduct at an earlier trial. That unfairness, Beech-Jones J held, had already been addressed when the CDPP paid $624,000 in costs thrown away at the first trial.
The accused argued that his current inability to afford preferred legal representation continued the original injustice. The court rejected that submission. The reason the accused could not now fund his defence was not the prosecution's wrongful conduct at the first trial but the fact that the second and third trials had not been completed, neither of which was the prosecution's fault.
On the cross-examination point, the accused contended he had been permanently deprived of the ability to test key witnesses on the undisclosed emails, which would have been available at a properly conducted first trial. The court acknowledged this as a genuine forensic disadvantage. However, Beech-Jones J noted that at the third trial, by which time co-accused Anthony Dickson had already been convicted and sentenced, the accused had in fact been able to deploy the email chain extensively in submissions arguing that Dickson, not the accused, was the architect of the fraud. Whether that position was more or less advantageous than what would have been available at the first trial was not possible to determine with confidence.
The court concluded it could not positively find that the accused faced a realistic prospect of an unfair fourth trial by reason of the inability to cross-examine certain witnesses on those emails. The Ulman-Naruniec authority was distinguished on the basis that in that case the non-disclosure had infected the costs of two trials, neither of which had been separately remedied. Here, the costs thrown away at the only trial aborted through prosecution fault had been paid in full.
Orders Made
- The accused's notice of motion filed 7 June 2016 was dismissed.
- The proceedings were stood over before Harrison J on 14 September 2016 at 9:30am.
Key Takeaways
- A Mosely-type stay operates as a remedy for the specific unfairness of forcing an accused to trial without adequate legal representation caused by prosecution misconduct. Once that unfairness is redressed by payment of costs thrown away, the basis for the stay is spent.
- Where subsequent trial abortions occur through no fault of the prosecution, any resulting financial disadvantage to the accused does not revive or extend the original unfairness attributed to earlier prosecutorial misconduct.
- The Supreme Court drew a clear distinction between ongoing injustice (as in Ulman-Naruniec, where non-disclosure infected multiple trials without any separate remedy) and a one-off injustice that has been specifically compensated.
- Lost forensic opportunities arising from prosecution non-disclosure at an earlier trial may constitute a genuine disadvantage, but such disadvantage does not automatically satisfy the threshold for a stay absent a realistic prospect of an unfair trial.
- A fourth trial is not, of itself, necessarily unfair. The question always turns on whether identifiable, unremedied unfairness would result from the court's processes being used to bring the accused to trial again.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 135.4(5), 400.3(1)
- Crimes Act 1900 (NSW)
- Proceeds of Crime Act 2002 (Cth)
Cases
- R v Mosely (1992) 28 NSWLR 735
- Dietrich v R (1992) 177 CLR 292
- R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595
- R v Michael James Issakidis [2015] NSWSC 834
- R v Anthony James Dickson (No 18) [2015] NSWSC 268
- Dickson v R [2016] NSWCCA 105
- R v Issakidis [2016] NSWSC 1102
- R v Ulman-Naruniec (2003) 143 A Crim R 531; [2003] SASC 437
- R v Selim [2007] NSWSC 154
- Petroulias v The Queen [2007] NSWCCA 154