Guiseppe Emanuele v Allan John Dau [1995] ACTSC 23 (16 March 1995)

SUPREME COURT OF THE ACT

GUISEPPE EMANUELE v. ALLAN JOHN DAU
No. SCA10 of 1994
Number of pages - 15
Criminal Law - Evidence - Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Law - appeal against conviction for attempted bribery - entrapment.

Evidence - admissibility of evidence obtained by listening devices - credibility and weight to be given to evidence of certain witnesses.

Practice and Procedure - denial of fair trial based on entrapment - denial of fair trial based on protracted delay - setting aside of conviction - stay of proceedings.

Crimes Act 1914, s73(3)

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472
Coco v R [1994] HCA 15; (1994) 179 CLR 427
Barker and Ors v R, unreported, Federal Court of Australia; Jenkinson, Miles

and O'Loughlin JJ, 21 December 1994

R v Hsing (1991) 25 NSWLR 685
Thompson and Thompson (1991) 58 A Crim R 451
R v Managanis and Barbaro (1992) 107 FLR 250
R v Steffan (1993) 30 NSWLR 633
R v Pfennig (No. 1) (1992) 57 SASR 507
R v Ridgeway [1993] SASC 3960; (1993) 60 SASR 207
R v Wilson and Grimwade unreported, Vic CCA, 22 April 1994
Tan Hun Wah v Public Prosecutor (1994) 1 ML 382
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Barton v R [1980] HCA 48; (1980) 147 CLR 75
Emanuele v Cahill (1987) 71 ALR 302, 25 A Crim R 115
Emanuele v Cahill appeal to the Full Court - Fisher, Davies and Lockhart JJ

(1987) 30 A Crim R 164

HEARING

CANBERRA, 21 November 1994
16:3:1995

Counsel for the Appellant: Mr K V Borrick QC with Mr G B Hervey

Instructing solicitors: Black Dawson Waldron

Counsel for the Respondent: Mr P Hastings

Instructing solicitors: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld.
2. The conviction and sentence be set aside.
3. Further proceedings on the information be permanently stayed.

DECISION

HIGGINS J This is an appeal against the conviction of the appellant for an offence against a law of the Commonwealth entered by Chief Magistrate Cahill on 4 February 1994.

2. The original information alleged that on 28 November 1985, contrary to s73(3) of the Crimes Act 1914, the appellant:

...did give a Commonwealth Officer, namely Anthony Robert HEDLEY
property, namely ten thousand dollars ($10,000.00) cash monies in
order to influence or affect the said Anthony Robert HEDLEY in the
exercise of his duty as a Commonwealth Officer.

3. The proceedings were commenced on 28 November 1985 but it was not until 4 November 1993 that the offence was found proved. There was a further delay until 4 February 1994 when the learned Chief Magistrate recorded a conviction and sentenced the appellant to nine months imprisonment suspended upon entering a recognisance, in the sum of $5,000.00, to be of good behaviour for three years.

4. The primary facts accepted by his Worship were not seriously in dispute.

5. In about May 1985 the Commonwealth Government decided to sell by tender a shopping centre it owned, known as the Belconnen Mall. An interdepartmental committee was set up to arrange the sale under the chairmanship of Mr Anthony Hedley, then a First Assistant Secretary, in the Department of Territories.

6. Interested parties were invited to tender. Provided they met certain criteria, they were eligible to submit a tender.

7. Emanuele Holdings Pty Ltd, a company controlled by the appellant, was accepted as a potential tenderer.

8. The process was intended to be that prospective tenderers would be given information concerning the Mall. They would then decide how much they would bid for the Mall. That bid had to conform to specified conditions. If so, it would be a "conforming tender". It was an essential part of the process that the bids would be sealed and remain confidential until tenders closed. The bids would then be opened and the highest conforming bid would be the purchaser. Each tenderer, therefore, had an interest in bidding enough to out-bid any other tenderer but not more than was necessary for that purpose.

9. Clearly, it would give any tenderer an improper advantage if that tenderer knew who the other tenderers were. A tenderer would gain an even greater advantage if given information as to the likely amount other tenders might bid.

10. Tenders were to be lodged in a secure box outside Mr Hedley's office by 2.00pm on 28 November 1985.

11. The appellant's company was well-known in Adelaide at the time as a property developer. It was in June or July 1985 that Mr Hedley first met the appellant. The latter was accompanied by an associate, Mr Tony Fabrizio. The first meeting led to the appellant inspecting the Mall in company with Mr Hedley.

12. There were further meetings. It was apparent that Mr Hedley was anxious to secure the participation of qualified tenderers, including the appellant. He met the appellant and his associates at the airport on subsequent visits to Canberra. He also made a point of showing off to the appellant his own property investments around Canberra.

13. The first event of any real significance occurred on 18 October 1985. It appears that on that evening, Mr Hedley dined with the appellant. It was not the first time they had dined together. There had, apparently, been a lunch on 13 September 1985.

14. During the course of the trial, it was suggested to Mr Hedley that on 18 October 1985 while having dinner with the accused, in gross breach of his duty, he handed to the appellant a list of those who had by then expressed interest in being tenderers. His reply was:

I don't believe so. I know that I was asked questions about it but I
don't believe I wrote them down.

15. He made it clear that he would not have indicated, as it would have been grossly improper to have done so, "who was in and who was out" of the bidding process.

16. Mr Hedley was then shown a document. It was a bankcard voucher dated 13 October 1985 in the name of Anthony R Hedley. It had written on it, in handwriting Mr Hedley acknowledged to be his, a list of names of tenderers for the Mall. There was also material on the document which could be taken as indicating some information about the tenderers. There is no credible explanation for the existence of that document, other than that provided on behalf of the appellant.

17. There had been further meetings on 12 and 13 November but it seems unlikely that the document would have been given to the appellant on the occasion of those meetings. There were also meetings on 27 and 28 November 1985 but those meetings were recorded by means of audio tapes. The document was not referred to in the transcripts of those audio tapes.

18. The conclusion was inescapable and, indeed, accepted by his Worship that, for reasons which were not explained, Mr Hedley had deliberately acted with gross impropriety in passing confidential information, not previously solicited in any way, to the appellant.

19. At the conclusion of the meeting on 13 November, Mr Hedley claimed to have had a conversation with Mr Fabrizio in the carpark at the Mall. It was his understanding from that conversation that the appellant was prepared to offer him a bribe to facilitate his (the appellant's) success in the tendering process. That conversation was not admissible against the appellant. As a result of it, however, Mr Hedley made a note recording the effect of that conversation and reported it to the Secretary of the Department.

20. That report, if accepted as implicating the appellant or his company, would have led to the appellant's company being excluded from the tender process. However, the Secretary took the matter further and reported the approach to the Australian Federal Police (AFP). As a result, advice was obtained from the Director of Public Prosecutions and an AFP investigation was launched. Mr Hedley agreed to carry a listening device at any future meetings with the appellant and his associates.

21. The appellant returned to Canberra with his associates on 27 and 28 November 1985 with a view to discussing his intention to tender for purchase of the Mall again with Mr Hedley.

22. There is no doubt that the conversations which then took place between the appellant and Mr Hedley were incriminatory of the appellant. However, it is also apparent, as his Worship found, that Mr Hedley lied outrageously to the appellant and shamelessly solicited a bribe from him leading the appellant to believe that he (Hedley) would give him (the appellant) an advantage in the tender process.

23. The process, which his Worship described as "entrapment", commenced with further confidential information being offered to the appellant by Mr Hedley. This was, again unsolicited. The information was that another prospective tenderer, whom Mr Hedley named, had been ruled ineligible, although that tenderer was not then aware of it. This was clearly designed to solicit an improper offer from the appellant.

24. The terms of the conversation were as follows:

Mr Emanuele: So Maurie Alter would be very disappointed wouldn't he?
Mr Hedley: He doesn't know anything about that though Joe - he doesn't
know that he's not eligible - and ...
Mr Emanuele: I see.
Mr Hedley: But he wants to pick it up cheaply I suppose - I suppose
everybody does but ... er ...
Mr Emanuele: Sure.
Mr Hedley: So you mustn't tell.
Mr Emanuele: No I'm different.
Mr Hedley: I'm bringing you into my confidence so you mustn't tell
Maurie that he's not eligible.
Mr Emanuele: I understand - understand.
Mr Hedley: I'm prepared to talk confidentially to you and ...
Mr Emanuele: I completely understand Tony and I respect it.
Mr Hedley: You know ...
Mr Emanuele: You can trust me.
Mr Hedley: All right and I can do a deal you know.
Mr Emanuele: I understand - that one thing you know its - I mean with
anybody - that's how I operate ... once ...
Mr Hedley: Well you know me - you've met me what four, five, six times
now - we had a lot of time together. You know me - its, er, I'm not a
bullshit artist - you know - you want to do a deal - I do a deal and
er ...
Mr Emanuele: I want to do a deal.
Mr Hedley: You want to do a deal.
Mr Emanuele: I really want to do a deal - a million percent - not a
hundred percent - a million percent.

25. It is unnecessary to set out more of the conversation. It did culminate in the appellant handing over $10,000.00. The conversation, if admitted into evidence and accepted as accurate, would clearly make out a prima facie case of an attempt to bribe Mr Hedley by the appellant.

26. The defence submitted that the evidence of the conversations should have been excluded on the grounds that the appellant had been "entrapped" by Mr Hedley. It was also suggested that the tape-recording had been "illegal", notwithstanding the warrant obtained for the use of the listening devices which recorded it.

27. It was necessary for that submission to succeed if the appellant was to be acquitted. There is no doubt that the payment was made and the conclusion is well-nigh inescapable that it was made in order to influence Mr Hedley in his duty as a Commonwealth Officer.

28. His Worship was satisfied that, on 18 October 1985, Mr Hedley gave to the appellant a list of other likely tenderers. That was unsolicited and, it may be inferred, sent a clear message to the appellant that Mr Hedley was a person who was available to be corrupted. He held himself out generally as profiting from property deals notwithstanding his apparently conflicting position in the government service. That sent a message to the appellant that Mr Hedley had no sense of ethics.

29. In his evidence on the voir dire, the appellant claimed that he did not believe he was doing anything wrong in offering money to Mr Hedley. He said that he went along with Mr Hedley's suggestions to do "a deal" just to be compliant. That suggestion is inherently improbable. His Worship was entitled to reject it. He was correct, in my view, in so doing.

30. His Worship's conclusion that the appellant was, in fact, entrapped by Mr Hedley was, also, in my view, correct.

31. His Worship also expressly found that the appellant had not engaged in conduct such as that charged against him previously. He had not been predisposed to commit the offence. He would not have done so but for the actions of Mr Hedley.

32. It was recognised by his Worship that if the evidence tendered by the prosecution was tainted by reason of it being the result of entrapment, it could be excluded in the exercise of discretion or proceedings could be permanently stayed as an abuse of process. His Worship considered that the latter was a more appropriate course.

33. After an extensive review of the authorities on the subject, his Worship deduced the following principles:

(i) Subjective test in R v Sloane is to be applied.
(ii) The defendant bears the onus on the balance of probabilities on
sworn evidence to satisfy me that entrapment applies.
(iii) What must be shown by the defendant is that he would not have
committed, or have been likely to have committed an offence of such a
general nature as the one charged had he not been so induced by the
conduct of the AFP or Hedley to do so.
(iv) The police are entitled to provide opportunities for the
commission of offences where they have reasonable suspicion to believe
that the defendant in question is already engaged in criminal conduct.
It will often be the situation where the specific of the offence with
which the defendant is charged, is committed by him in answer to a
request made by a police officer to commit the offence. In this case,
this principle applies to the conduct of Hedley.
(v) The defendant usually must establish both the absence of any
previous position on his part to commit the offence and conduct by the
police or their agents which go beyond the mere provision of an
opportunity to commit that offence and also that conduct did in fact
induce the commission of the offence.
(vi) It is now (im)merging that the more appropriate remedy for
entrapment is a stay of proceedings rather than discretionary
exclusion of evidence.

34. I would respectfully agree with his Worship's opinion as to the principles to be applied.

35. There was also an argument that the evidence in question had been unlawfully obtained. That relied on a proposition that listening devices had been installed by trespassory means. However, the issue was, to my mind, misconceived. The primary source of evidence of the incriminatory conversation was Mr Hedley. The co-extensive and other recordings were really quite otiose although some of them were also highly incriminatory.

36. As to entrapment, his Worship was not satisfied that Mr Hedley had an ulterior motive in passing on information to the appellant on 18 October 1985. Nor in reporting to the Secretary of his department the alleged approach by Mr Fabrizio, nor in enthusiastically soliciting the appellant to make a corrupt offer to him on 27 November 1985. I have to say that I would not have regarded those events as capable of such an innocent explanation but his Worship saw and heard the witnesses and I do not think it is open to me to quarrel with his conclusion. In any event, it does not detract from a conclusion that Mr Hedley, for whatever reason, entrapped the appellant. He plainly set out deliberately to do so even before the alleged conversation with Mr Fabrizio. He may or may not have expected that there would be such a result but his conduct was clearly directed towards producing such a result.

37. The appellant gave evidence, however, that he regarded himself as not having acted improperly. In effect, he was denying that he had committed any offence or had the intention of causing Mr Hedley to act in breach of his duty.

38. His Worship concluded from that evidence:

I cannot be satisfied that Emanuele was induced to commit the crime
that he otherwise would not have committed or would have been unlikely
to commit as a result of the wrongful importunities (sic) of Hedley in
this case. The sworn evidence of this defendant is that he was not
induced to commit a crime at all. Accordingly, the matter of
entrapment is not in this case established so as to give rise to the
remedy of a stay of proceedings on the basis of abuse of process.

39. It was clear that once they became involved, police and prosecutors warned Mr Hedley against acting as an agent provocateur. Notwithstanding that warning, he did so. Indeed, he was expressly warned, it seems (annexure N - AB 2916) that to so act would render evidence so obtained inadmissible. Mr Hedley was a qualified lawyer. I have noted that his actions indicate that he intended knowingly to entrap the appellant. It gives rise to the suspicion that he deliberately created a situation in which the prosecution would be at risk of failure.

40. His reasons for doing so remain unknown. It may have been reckless over-enthusiasm for the role he was playing.

41. I now turn to the specific grounds of appeal.

Ground 1 - Finding unsafe and unsatisfactory
42. If the evidence of taped conversations was admitted, there could have been little doubt that the appellant had committed the offence charged. It is true that if the finding as to the appellant's guilt had depended in any way on the credit of Mr Hedley, that finding could not have been safely made. However, it was not so dependent.

43. Insofar as the finding of guilt required the rejection of the appellant's assertion in evidence that he believed he was acting innocently, then His Worship was entitled to reject his evidence. Not only was the assertion at variance with the taped conversations, it was inherently improbable. In any event, his Worship saw and heard the witnesses and I cannot see that he in any way incorrectly availed himself of that advantage: see Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472.

44. Indeed, counsel for the appellant virtually conceded that it is only by exclusion of evidence on grounds of entrapment, illegality or unfairness or as a result of a stay for abuse of process, that a finding of guilt could be avoided.

Grounds 2 and 6 - Admission of the evidence obtained by listening devices.
45. This relied on two bases. It was suggested, first, that it was unlawfully obtained evidence. In my view, entrapment aside, there was nothing illegal or unfair in the process adopted to obtain evidence as to the offence in question. It is true that, in Coco v R [1994] HCA 15; (1994) 179 CLR 427, the High Court held that authority to use listening devices did not, unless the statute in question expressly authorised it, include authority to trespass upon premises.

46. There is nothing to suggest in this case, however, that listening devices installed in the relevant hotel rooms were placed by police as trespassers. The rooms were not occupied by guests when they were installed. Hotel management was consulted and consented. The device used by Mr Hedley was worn by him with his consent. The fact that he intended a purpose for his presence which would not have been consented to by the appellant had he known of it does not make him a trespasser: see, for example, Barker and Ors v R, unreported, Federal Court of Australia; Jenkinson, Miles and O'Loughlin JJ, 21 December 1994.

47. I reject these grounds accordingly.

Ground 3 - Admission of evidence of conversation between Mr Fabrizio and Mr Hedley on 13 November 1985
48. This ground proceeds, in my view, upon a false premise. The conversation was admitted on the voir dire. Whilst his Worship did not rule that it was inadmissible, he did not conclude that it afforded any evidence that the appellant knew of or authorised the approach allegedly made to Mr Hedley. Indeed, having regard to his findings on the entrapment issue, it is apparent that his Worship was positively persuaded that the appellant did not know of or authorise Mr Fabrizio to approach Mr Hedley.

49. It may be said that, given Mr Hedley's shattered credibility, his Worship ought not to have been satisfied that any such conversation occurred. However, a finding one way or the other about the conversation could make no difference as to the ultimate result, given the use his Worship made of it.

50. I reject this ground of appeal.

Ground 4 - Failure to analyse the evidence
51. This ground was not pressed. Indeed, perusal of his Worship's reasons for decision both on admission of evidence (17 December 1993) and on sentence (4 February 1994), demonstrate a careful and learned appraisal both of the evidence and of the applicable principles of law.

52. I reject this ground of appeal.

Ground 5 - Denial of a fair trial
53. This ground raises two issues not entirely independent of each other, although counsel submits either ground to be sufficient. The first is entrapment. The second, the protracted and disjointed conduct of the proceedings.

(i) Entrapment
54. There was no real controversy between the parties as to what constitutes entrapment. I would respectfully adopt the analysis of the concept in R v Hsing (1991) 25 NSWLR 685. It involves a finding that an accused person has been induced to commit an offence he or she would not otherwise have committed but for the importuning conduct complained of. Samuels JA, in Hsing (supra) adopted the following formulation, at 691:

Hence there is entrapment when, (a) the authorities provide a person
with an opportunity to commit an offence without acting on a
reasonable suspicion that this person is already engaged in criminal
activity, or pursuant to a bona fide inquiry; (b) although having
such a reasonable suspicion or acting in the course of a bona fide
inquiry, they go beyond providing an opportunity and induce the
commission of an offence. To determine whether the activity impugned
bears this character it is necessary to inquire whether it would have
induced an ordinary person in the position of the accused to commit
the offence.

55. In his Honour's view, the culpability of the offender is not the focus of the enquiry. Entrapment is not a defence going to the issue of guilt or innocence. To quote his Honour further,

... entrapment ... is not dependent upon culpability, the focus should
not be on the effect of the police conduct on the accused's state of
mind but on the nature of that conduct itself. Culpability is not an
ingredient of entrapment, principally for two reasons. First, the
essential elements of the offence (leaving aside the discretionary
rejection of evidence) will have been established. Secondly, if
entrapment, although not a defence in Australia, is to be regarded as
mitigating or excusing guilt rather than condemning improper conduct
by police, there would be no sufficient basis for distinguishing
"official entrapment" (which attracts a remedy) from "private
entrapment", which may well occur, but which does not. The
predisposition or the past suspected criminal activity of the accused
is relevant to the objective approach only as part of the
determination of whether the provision of an opportunity by the
authorities to the accused to commit the offence was justifiable.

56. If entrapment so defined is found, a discretion to exclude evidence so obtained or to stay proceedings is enlivened. In his Honour's view, the latter course, if the entrapment is such as to demand a remedy, is preferable. Hunt J expressly concurred with Samuels JA. Gleeson CJ did not find it necessary to concur with the reasons Samuels JA gave for the orders proposed but concurred with the making of those orders.

57. In Thompson and Thompson (1991) 58 A Crim R 451, the New South Wales Court of Criminal Appeal (Hunt CJ at Ch, Enderby and Allen JJ) endorsed the views expressed by Samuels JA in Hsing. However, entrapment was not found to have been established. This was not because of any claim on the part of the accused to have lacked criminal intent but because the conduct of the police undercover officer was not objectively improper. Entrapment was not made out by the accused.

58. Similarly, in R v Managanis and Barbaro (1992) 107 FLR 250 Gallop J also adopted the test for entrapment proposed by Samuels JA but found that the accused had failed to satisfy him that entrapment so defined had occurred.

59. In R v Steffan (1993) 30 NSWLR 633, the NSW CCA (Hunt CJ at CL, Grove and Sharpe JJ) again supported the view expressed by Samuels JA in Hsing. Their Honours observed at 643:

What must be shown by the accused is that he would not have committed,
or have been likely to commit, an offence of such a general nature had
he not been induced by the conduct of the police officer to do so ...
What the accused must therefore usually establish is both the absence
of any predisposition on his own part to commit the offence and
conduct by the police which went beyond the mere provision of an
opportunity to commit that offence and which did in fact induce it...

60. In the latter case, the accused failed to establish lack of predisposition nor did he establish that he was induced to commit the offence by the conduct of the person who was to be bribed. The case does make it plain that a person such as Mr Hedley could be an instrument of entrapment, though not a police officer or official investigator. That would follow, in any event, from the observations of Cox J in R v Pfennig (No. 1) (1992) 57 SASR 507, 514-515.

61. R v Ridgeway [1993] SASC 3960; (1993) 60 SASR 207 involved two police officers importing drugs illegally into Australia, with official police sanction. Persons, including the accused, who purchased the drugs were arrested and charged. The majority, Matheson and Duggan JJ, rejected the proposition that entrapment had occurred. Nor did they consider that the admitted illegality required a discretionary rejection of the evidence of the police officers. Legoe J dissented, holding that the issue had not been properly considered by the trial judge. He would have allowed the appeal.

62. Although Hsing was referred to with approval, the latter case turned on the nature and extent of illegal conduct engaged in by police and customs officers rather than entrapment.

63. None of these authorities address the question as to whether entrapment is excluded where an accused falsely claims that, despite being improperly induced to engage in the conduct in question, he had no criminal intent. It seems to me that such a consideration cannot be relevant. If the accused person, having no predisposition to offend in fact does so merely because of the improper inducements of a police agent, it does not seem to me to matter that he falsely claims an innocent mind.

64. The correct approach is, I think, to ask whether the conduct alleged to be entrapment has been shown, on the Hsing test, to bear that character and then whether it has been shown to have, in fact, induced the criminal conduct in question.

65. Those conditions were satisfied here. It follows that his Worship fell into error in assuming that the appellant's false claim to have had an innocent mind when engaging in the criminal conduct in question excluded the exercise of a discretion to stay the proceedings before him or to exclude the evidence so obtained.

66. For that reason alone, the appeal must be upheld.

(ii) Delay
67. It is clear from the decision of R v Wilson and Grimwade unreported, Vic CCA, Phillips CJ, Crockett and Tadgell JJ, 22 April 1994, that a protracted trial process may itself be so unfair as to require a conclusion that an accused person has not had a fair trial.

68. In any event, exceptional discontinuity apart from itself being a travesty of justice, may lead to a conclusion favouring the exercise of a discretion to stay such proceedings.

69. The length and complexity of the trial in Grimwade (supra) was certainly contributed to by the accused. They put the Crown to proof of numerous facts and transactions. The trial lasted 22 months. There were several gaps of a week or more in the hearing process, apart from other discontinuities for unavoidable reasons. Counsel for Wilson had, so the CCA found, contributed by his conduct to the length of the trial. Nevertheless, the trial process had failed to satisfy minimum standards of fairness as a consequence. The appeals were upheld. No re-trial was ordered.

70. A similar case, involving greater delay, was Tan Hun Wah v Public Prosecutor (1994) 1 ML 382. The appellants were arrested on charges of drug trafficking on 8 February 1984. It was not until 30 October 1988 that they were found guilty. Their trial had been spread over nine months and six days with numerous adjournments. Reasons for the decision were not supplied until February 1992.

71. Mohamed Azmi SCJ followed Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 and Barton v R [1980] HCA 48; (1980) 147 CLR 75 stating, for the court, at 389:

In our view, the principle of fair trial laid down in Barton and Jago
is well-founded, and should be applied even more vigorously where the
excessive delay is caused not by the prosecution but by the trial
court itself.

72. I respectfully agree.

73. The court found that the "shocking delay" in the disposition of the matter was not attributable to any complexity in the case. Prejudice and injustice flowed not only from the delay of the trial judge in supplying reasons for judgment but also in the conduct of the trial "by instalments over a long period". It made "an utter farce" of the proper and expeditious administration of justice. The court set aside the capital convictions and substituted convictions for mere possession.

74. Of course, Grimwade was a trial involving a jury. The instant case was not, although it might have been. It commenced as a committal.

75. The present case followed the following course:

1985 (28/11/85-31/12/85) Arrest remand to 9/12/85.
Further remand on that date to 21/2/86.
Correspondence between parties relating to discovery - reference to
accused being seriously prejudiced by delay
1986 On 21/2/86 remanded to 12/5/86
Prosecution brief not ready due to difficulty in transcribing tapes.
On 12/5/86 remanded to 10/10/86. Court advised prosecution brief
would be ready on 13/5/86. On 15/7/86 and hearing date fixed for
3/11/86 - "matter may take two weeks"
Further correspondence between the parties and further reference to
the accused being prejudiced.
On 4/9/86 application by defence to the Magistrate for stay of
proceedings based on abuse of process (not on grounds of entrapment).
On 24/9/86 stay proceedings commenced.
On 28/10/86 application dismissed and hearing date vacated.
On 5/12/86 Federal Court review set for 4/2/87
1987 On 13/1/87 committed hearing fixed for 23/4/87.
On 25/2/87 Federal Court dismisses review.
On 9/3/87 notice of appeal to Full Federal Court.
On 10/3/87 committal set for 24/8/87 with three weeks set aside.
On 13/11/87 Special leave refused.
1988 On 14/3/88 committal now to commence on 11/4/88, three weeks set
aside but if matter not completed Magistrate would sit extra four days
Further correspondence between parties.
On 11/4/88 hearing commenced. From then until 29/4/88 legal argument
and on that date case remanded to 5/12/88-15/12/88 then 6/2/89 for few
weeks plus.
On 26/9/88 those dates confirmed with case to proceed "until
finality".
On 5/12/88 December Hearing vacated.
Case adjourned to 6/2/89-3/3/89.
1989 On 6/2/89 the case starts
First witness is Allan John Dau - the informant
On 3/3/89 case adjourned to 14/8/89
On 15/5/89 Magistrate assigned to another case and August dates
vacated.
On 14/6/89 Mr Fabrizio complains of delay causing prejudice.
On 15/8/89 Magistrate writes advising of dates in December 1989 and
February to May 1990.
On 25/10/89 December dates vacated, Magistrate on another case.
On 20/12/89 case adjourned to 26/2/90.
1990 On 26/2/90 hearing resumes.
On 14/3/90 Magistrate gives ruling on voir dire procedure.
On 28/3/90 charges against Mr Fabrizio dropped.
Case adjourned to 4/4/90.

On 4/4/90 case continues to 12/4/90.
Magistrate and counsel have other commitments.
On 16/10/90 case resumes.
On 17/10/90 hearing adjourned to 5/11/90.
On 6/11/90 hearing resumes. Defence apply for a summary trial.
On 8/11/90 hearing adjourned because of problems with Hedley.
On 12/11/90 Defence forward letter of protest at delays.
On 14/11/90 hearing resumes, Mr Hedley giving evidence.
On 16/11/90 case further adjourned.
1991 On 19/3/91 case resumes
On 28/3/91 case adjourned to 15/4/91
On 15/4/91 case resumes
On 19/4/91 case adjourned to a date to be fixed.
Between that date and 16/10/91 there were a series of conferences and
correspondence relating to delays and the reasons for them.
On 16/10/91 the case resumes.
On 21/10/91 the Magistrate decided to hold a summary trial.
On 23/10/91 defence evidence starts and there was an adjournment to
11/11/91.
On 11/11/91 and 12/11/91 legal submissions on entrapment.
On 24/12/91 decision on entrapment.
1992 On 24/2/92 case resumes. Mr Distasio called to give evidence by
prosecution.
On 25/2/92 the appellant formally pleads not guilty.
On 17/3/92 and 18/3/92 the appellant gives evidence and case adjourned
until 23/3/92.
On 23/3/92 character evidence called.
On 26/6/92 further legal argument; judgment reserved.
On 26/8/92 Magistrate advised he would give his decision on 16/9/92.
1993 On 4/11/93 judgment given.
(NB This was 17 months after the hearing finished during which time
there were 11 occasions when the Magistrate altered the date for
judgment).

76. It is now over nine years since these proceedings were commenced. That very fact is in itself cause for considerable alarm. This was not a factually complex case. There was much legal argument but, nevertheless, it would be a matter for serious concern if such a case could not be concluded within a much less time than this. Indeed, I was informed by counsel for the appellant that this trial, which commenced before his Worship on 11 April 1988 and concluded with sentence being imposed on 4 November 1993 was the longest trial ever recorded with the exception of the trial of St Paul in Rome and the impeachment of Warren Hastings over his conduct as Viceroy of India. The latter process however lasted only eight years from start to finish. Most of St Paul's time was spent in custody awaiting Caesar's pleasure.

77. The summary hearing in this case seems to have therefore achieved an unenviable uniqueness.

78. Certainly some of the delay was caused by the appellant. On 4 September 1986, the appellant commenced proceedings for a stay.

79. That application was heard by his Worship and dismissed on 28 October 1986. An application for an order of review was made to and heard by Neaves J on 5 and 6 February 1987. Judgment was given on 26 February 1987. The basis for the application and the decision dismissing it can be found in Emanuele v Cahill (1987) 71 ALR 302, 25 A Crim R 115. It related to a failure by the prosecution to provide relevant material. It was found that there had been unwarranted "delay and indecision" on the part of the prosecution but that it did not warrant the drastic step of a permanent stay of proceedings. Entrapment was not then raised. Indeed, it would have been premature to have done so.

80. On 15 July 1987, an appeal to a Full Federal Court was heard by Fisher, Davies and Lockhart JJ (1987) 30 A Crim R 164. The appeal was dismissed on 15 July 1987. Reasons were delivered on 28 August 1987.

81. An application for special leave to appeal was made to the High Court. It was dismissed on 13 November 1987.

82. The way was then clear for the committal to commence. It was, no doubt, the right of the appellant to seek the redress he did but it does not lie in his mouth to complain of the delay so occasioned as creating unfairness to him.

83. Nevertheless, whilst delay to the end of 1987 can be so excused, the reason for the remaining inordinate delay is not so simply explained.

84. The first substantive date was 11 April 1988. There was "legal argument" until 29 April 1988. The hearing did not resume until 26 September 1988. The respondent concedes that responsibility for the delays thereafter cannot be placed at the feet of the appellant. Nevertheless, there was lengthy cross-examination, a voir dire hearing and substantial arguments on the admissibility of evidence. Submissions were also lengthy. However, it cannot be concluded that such matters explain why the hearing did not proceed in a less fragmented manner.

85. Notwithstanding the matters referred to, the number of days occupied in court was 59. Had the case not been heard on the instalment plan it might have been completed by the end of July 1988. Even if, after the first estimate of time had been exceeded, the expressed intention of the presiding Magistrate on 26 September 1988 that the case proceed "until finality", had been honoured, the hearing would have finished by the end of April 1989.

86. As it happened, the hearing continued in spurts until 26 June 1992. The prosecution case finished on 21 October 1991, when the learned Chief Magistrate decided, with the consent of the parties, to proceed summarily.

87. Evidence for the defence was called. Legal submissions were made as to entrapment. The decision thereon was given on 24 December 1991. However, full reasons were not delivered until 17 December 1993.

88. The hearing concluded on 26 June 1992. A final decision on the question of guilt or innocence was not delivered until 4 November 1993, some 17 months later. There is no doubt that much of this delay was attributable to the disjointed hearing the matter had received over the preceding five years. The very obvious difficulty experienced by the learned Chief Magistrate in arriving at a decision bespeaks the vice of the delay. That was notwithstanding that, having rejected a defence submission to stay proceedings for entrapment on 24 December 1991, the only remaining issue was whether the appellant had the relevant criminal intent when he handed the $10,000.00 in question to Mr Hedley.

89. The manner in which the hearing was conducted can only be regarded as giving rise to a substantial miscarriage of justice. It is not a miscarriage in the sense that the learned Chief Magistrate "lost the plot". Nor, in my view, did he wrongly find any factual issue contrary to the evidence or the weight of the evidence. However, the delay in finalising the matter was oppressive. That justice delayed is justice denied is not answered by saying that the conclusion reached was correct and in accordance with law on the evidence before the court.

90. Oppressive proceedings may be stayed as an abuse of process.

Conclusion
91. Because there was entrapment, a discretion to set aside the conviction and stay proceedings arose. Even if that discretion might not have been exercised favourably to the appellant if the proceedings had been promptly heard and concluded it would, in my view, be grossly unjust to permit the conviction and sentence to stand in the light of the oppressive manner in which the proceedings have been conducted.

92. I would, however, have concluded that the entrapment, as found by the learned Magistrate to exist, was so serious as to warrant a stay of proceedings by itself.

93. I order that the appeal be upheld. The conviction and sentence is set aside.

94. It is not appropriate to order an acquittal. Instead, I order that further proceedings on the information be permanently stayed.

95. I will hear the parties as to costs.