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District Court 29 October 2021

R v Rosamond

[2021] NSWDC 677

Fraud & dishonesty
CRIME FRAUD APPLICATION FOR TEMPORARY STAY VOLUMINOUS EXPERT REPORT FUNDING FOR SENIOR AND JUNIOR COUNSEL

Citation: R v Rosamond [2021] NSWDC 677
Court: District Court of New South Wales
Date: 29 October 2021
Judge(s): Judge Sutherland SC

Background

The accused was the sole director of Human Group Pty Ltd, an event management company that provided services to the National Australia Bank over approximately twelve years, during which NAB paid Human Group more than $118.6 million. The Crown alleged that over a five-to-six-year period, the accused engaged in a systematic fraud against NAB worth approximately $25 million, operating in concert with a highly placed NAB employee who held authority to approve invoices of up to $20 million per transaction.

The indictment contained 73 counts. Fifty-nine counts related to alleged payments of benefits, including luxury travel, vehicles, renovations, prepaid credit cards and boats, made to the NAB employee and her family as kickbacks or secret commissions to secure ongoing business and ensure approval of invoices. The remaining counts alleged dishonest obtaining of a financial advantage by deception through inflated or fictitious invoices, and the use of false documents.

The accused applied for a stay of proceedings by Notice of Motion dated 7 October 2021, supported by her solicitor's affidavit. The trial was fixed to commence on 25 July 2022, with a four-month estimate. The stay application was brought on the basis that the accused lacked the resources to fund a forensic accounting expert to respond to the Crown's expert report and to fund both senior and junior counsel.

  • Whether the accused's inability to obtain a forensic accounting expert report, equivalent in scope to that relied upon by the prosecution, gave rise to a risk of unfairness sufficient to warrant a stay of proceedings, either permanent or temporary.
  • Whether the accused's funding difficulties in retaining senior and junior counsel independently warranted a stay.
  • Whether the overall circumstances of the case, including the volume and complexity of the Crown's expert evidence, rendered a fair trial impossible or sufficiently unfair to justify staying the proceedings.

Decision

The Court considered the principles governing stays of criminal proceedings, drawing on the established authorities dealing with permanent and temporary stays, including the high threshold set by cases such as Jago v District Court of NSW and Walton v Gardiner. The question was whether the risk of an unfair trial had reached the level where the Court was required to intervene by halting the proceedings.

On the forensic accounting question, the Court noted significant inconsistency in the estimates provided for the cost of a defence expert report, with figures ranging from approximately $500,000 to over $1.5 million. Importantly, the Court observed that the prosecution's forensic accounting report appeared to have little or no bearing on the 59 counts relating to benefits paid to the NAB employee. For those counts where the quantum of alleged fraud was in issue, the Court considered that competent counsel could effectively cross-examine the Crown's expert without the accused necessarily requiring an equivalently wide-ranging defence report.

The Court was not persuaded that the absence of a fully funded forensic accounting expert, or the difficulties in retaining both senior and junior counsel, created a sufficient risk of unfairness to warrant either a permanent or temporary stay. The application was refused.

Orders Made

  • The application for a stay of proceedings (permanent or temporary) was refused.
  • The orders sought were declined.

Key Takeaways

  • A stay of criminal proceedings, whether permanent or temporary, requires the risk of unfairness to have reached a threshold where the court is compelled to intervene; financial hardship in funding expert evidence does not automatically satisfy that threshold.
  • The District Court distinguished between different categories of counts in assessing whether a forensic accounting report was truly necessary, finding that the Crown's expert evidence was not equally relevant across all charges in the indictment.
  • Where the quantum of alleged fraud is in issue, the court accepted that skilled cross-examination by competent counsel may adequately address the Crown's expert evidence without requiring a defence expert of equivalent scope.
  • Significant inconsistency in the estimates provided for defence expert costs was a relevant consideration in assessing the evidentiary basis for the stay application.
  • Difficulty in funding both senior and junior counsel did not, on the facts of this application, independently establish sufficient grounds for a stay.

Legislation and Cases Referenced

Cases cited:
- Dietrich v R [1992] HCA 57; 177 CLR 292
- Hamilton v DPP [2012] NSWSC 1365
- Jago v District Court of NSW (1989) 87 ALR 577
- Jago v the Queen (1989) 168 CLR 23
- Kolalich v R (1991) 57 A Crim R 237
- NAB v Human Group Pty Ltd [2019] NSWSC 1404
- National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900
- R v Edwards [2009] HCA 20
- R v George Adler (Unreported, NSWCCA, 11 June 1992)
- R v Littler [2001] NSWCCA 173
- R v Seller and McCarthy [2015] NSWCCA 76; (2015) 89 NSWLR 155
- R v Stringer [2000] NSWCCA 293
- R v Tolmie (Unreported, NSWCCA, 7 December 1994)
- R v Warwick (No 64) [2019] NSWSC 163
- R v Warwick (No 69) [2019] NSWSC 1059
- Re K [2002] NSWCCA 374
- Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
- Wong v R [2001] WASCA 32

Legislation: No specific legislation was cited in the judgment.