Tsougranis v Inspector Carmody [2004] NSWIRComm 269 (8 October 2004)

Last Updated: 26 October 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Tsougranis v Inspector Carmody [2004] NSWIRComm 269

FILE NUMBER(S): IRC 5468

HEARING DATE(S): 22/03/2004, 19/05/2004, 16/08/2004, 27/08/2004

DECISION DATE: 08/10/2004

PARTIES:

APPELLANT:

Luke Tsougranis

RESPONDENT:

Inspector Martin Carmody

JUDGMENT OF: Wright J President Walton J Vice-President Staff J

LEGAL REPRESENTATIVES

APPELLANT:

Mr P Strickland of counsel

Stavropoulos Solicitors

(Mr B Stavropoulos)

RESPONDENT:

Mr S Crawshaw SC and Ms P Lowson of counsel

Moray & Agnew, Solicitors

(Mr N Correy)

CASES CITED: Drake Personnel Ltd t/as Drake Industrial v

WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432

Ex parte Currie; Re Dempsey (1968) 70 SR (NSW) 1

Gallagher v The Queen (1995) 160 CLR 392

Gilmour v Environment Protection Authority (2002) 55 NSWLR 593

Grey v The Queen (2001) 184 ALR 593

Histollo Pty Ltd v The Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661

Inspector Carmody v Luke Tsougranis (2002) 117 IR 203

Inspector Carmody v Luke Tsougranis (No 2) (2003) 123 IR 419

Inspector Carmody v Luke Tsougranis (No 3) [2003] NSWIRComm 281

Mickelberg v The Queen (1989) 167 CLR 259

R v Fordham (1997) 98 A Crim R 359

R v McLean (2001) 121 A Crim R 484

R v Shalala [2002] NSWCCA 461

R v Strong [2003] NSWCCA 123

LEGISLATION CITED: Courts Legislation Amendment Act 2000

Criminal Appeal Act 1912 s 5 s 5AA s 5AB s 6 s 12

Criminal Appeal Rules r 4

Criminal Procedure Act 1986

Evidence Act 1995 s 128

Industrial Relations Act 1996 s 196

Industrial Relations Commission Rules 1996 Part 20

Occupational Health and Safety Act 1983 s 16 s 17

Supreme Court (Summary Jurisdiction) Act 1967

Workers' Compensation Act 1987 s 25

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: WRIGHT J, President

WALTON J, Vice-President

STAFF J

Friday 8 October 2004

Matter No IRC 5468 of 2003

LUKE TSOUGRANIS v INSPECTOR MARTIN CARMODY

Application by Luke Tsougranis for an appeal against judgments of Justice Haylen given on 10 April 2003 and 4 September 2003 in Matter No IRC 4365 of 2000

JUDGMENT OF THE COURT

[2004] NSWIRComm 269

1 The appellant, Luke Tsougranis, has filed a notice of motion seeking orders in these proceedings for the issue of three summonses for the production of a large range of documents. The proceedings involve an appeal against judgments of Haylen J in which the appellant was convicted and fined in respect of an offence under s 16 of the Occupational Health and Safety Act 1983. The summonses are directed to two firms and one corporation; first, to Moray and Agnew, the solicitors for the respondent (the prosecutor at first instance), second, to the WorkCover Authority of New South Wales itself and third, to Yandell Wright Stell Lawyers, the solicitors for a Mr Michael Papaianni

2 The specific documents originally sought by the summonses for production were identical for each of the proposed recipients, and were described thus:

Correspondence, facsimile messages, electronic mail, memoranda and records of all other communications between Moray and Agnew Solicitors and respectively the WorkCover Authority of Australia, the appellant or his lawyers and Yandell Wright Stell Lawyers, relating to the institution and continuation of proceedings against Mr Papaianni, the withdrawal or termination of those proceedings and any communication of the withdrawal of the proceeding to the appellant or the appellant's lawyers.

3 Subsequently, in a document filed in Court on 12 August 2004, the appellant "narrowed" the documents sought to the following (the emphases are those of the appellant):

1. Correspondence, facsimile messages, electronic mail, memoranda and records of all other communications between Moray and Agnew Solicitors and the WorkCover Authority of Australia from 19 March 2001 relating to (a) the maintenance and continuation of proceedings against Michael Papaianni (being proceedings No 4371, 4372 and 4373 of 2000) (hereafter called "the proceedings"); (b) the withdrawal or termination of the proceedings; and (c) any communication of the withdrawal of the proceedings to the appellant or the appellant's lawyers.

2. Correspondence, facsimile messages, electronic mail, memoranda and records of all other communications between Moray and Agnew Solicitors and the appellant or his lawyers from 19 March 2001 relating to (a) the maintenance and continuation of proceedings against Michael Papaianni (being proceedings No 4371, 4372 and 4373 of 2000) (the proceedings"); (b) the withdrawal or termination of the proceedings; and (c) the communication of the withdrawal of the proceedings to the appellant or the appellant's lawyers.

3. Correspondence, facsimile messages, electronic mail, memoranda and records of all other communications between Moray and Agnew Solicitors and the Industrial Relations Commission from 19 March 2001 relating to (a) the maintenance and continuation of proceedings against Michael Papaianni (being proceedings No 4371, 4372 and 4373 of 2000) (hereafter called "the proceedings"); (b) the withdrawal or termination of the proceedings; and (c) the communication of the withdrawal of the proceedings to the appellant or the appellant's lawyers.

4. Correspondence, facsimile messages, electronic mail, memoranda and records of all other communications between Moray and Agnew Solicitors and Yandell Wright Stell Lawyers from 19 March 2001 relating to (a) the maintenance and continuation of proceedings against Michael Papaianni (being proceedings No 4371, 4372 and 4373 of 2000) (hereafter called "the proceedings"); (b) the withdrawal or termination of the proceedings; and (c) any communication of the withdrawal of the proceedings to the appellant or the appellant's lawyers.

Procedural history

4 The substantive proceedings at first instance concerned three charges against the appellant that he had breached ss 16(1), 16(2) and 17(1)(a) of the Occupational Health and Safety Act 1983. The appellant entered a plea of not guilty to all charges and the matter was heard by Haylen J. The facts, in brief, giving rise to the charges were that the appellant, who was self employed, had been engaged in 1998 as a structural engineer in relation to the building work involved in renovating a domestic dwelling in Bourke Street, Redfern. The renovations had been commenced by the owner/builder, a Mr Agapiou. Without professional advice or council approval, the owner/builder had removed much of the rear structure of the building leaving substantial freestanding wall. During the course of the building work, the freestanding wall collapsed, fatally injuring a building worker, Mr Zaronias, and seriously injuring another builder, Mr Papaianni, both of whom were engaged at the site.

5 Proceedings were originally commenced by the prosecutor against the owner of the premises, Mr Agapiou; the two builders, Mr Papaianni and a Mr Hamilton, and the present appellant, Mr Tsougranis. The owner pleaded guilty to the charge laid against him and he gave evidence in the proceedings against the appellant. The charge against Mr Papaianni came before the Court at the same time as that against the appellant, but as Mr Papaianni appeared without legal representation, although having apparently obtained preliminary advice but then deciding to instruct new legal representatives, his case was stood over to be dealt with at another time when his new lawyers were available.

6 The prosecution against the appellant then proceeded, and the prosecutor called Mr Papaianni as a witness in those proceedings. As Mr Papaianni was the subject of a prosecution arising from the same incident as was the appellant, the prosecutor sought the issue of a certificate under the provisions of s 128 of the Evidence Act 1995 for Mr Papaianni. Counsel for Mr Papaianni then sought leave to appear, which leave was granted limited to the issue of the application of s 128 to Mr Papaianni's evidence and the circumstances in which a certificate under that provision might be granted. Counsel for Mr Papaianni made claims for privilege against self-incrimination in respect of questions directed to Mr Papaianni as they arose and requested a certificate to be issued for the benefit of Mr Papaianni.

7 These issues were dealt with in the interlocutory judgment of Haylen J in Inspector Carmody v Luke Tsougranis (2002) 117 IR 203, in which his Honour held that the provisions of s 128(5) and (6) were available to Mr Papaianni and he was not required to give evidence. His Honour also found at [72] and [74] of the judgment that Mr Papaianni had not waived his privilege against self-incrimination in the proceedings against the appellant.

8 On 12 December 2002, the evidence in the proceedings against the appellant concluded. On 9 February 2003, the prosecution against Mr Papaianni was dismissed by Staunton J with the consent of the prosecution.

9 On 10 April 2003, Haylen J delivered judgment finding the offence charged against the appellant under s 16(1) of the Occupational Health and Safety Act proven: Inspector Martin Carmody v Luke Tsougranis (No 2) (2003) 123 IR 419. On 4 September 2003 his Honour imposed a fine of $24,300 on the appellant: Inspector Carmody v Luke Tsougranis (No 3) [2003] NSWIRComm 281.

10 The appeal was made by the appellant pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912 and filed on 2 October 2003. The present motion seeks the Full Bench to determine, on an interlocutory basis, whether the appellant may adduce fresh evidence on the appeal and, if so, whether summonses to various persons or firms should be issued.

Submissions of the appellant

11 The appellant submitted that the issue to be determined in the notice of motion related to ground 4 of the notice of appeal, which he indicated he would initially seek leave to amend to read:

There was a miscarriage of justice by reason of the conduct of the prosecutor in that:

(a) The prosecutor called Michael Papaianni as a witness in the proceedings in circumstances where he was being prosecuted by the WorkCover Authority of New South Wales ("WorkCover") under section 15(1) of the Act; and

(b) The prosecutor failed to advise the appellant or his lawyers before judgment that the proceedings against Mr Papaianni had been withdrawn or dismissed.

During the course of his submissions, counsel for the appellant raised a number of other possible amendments to this ground of appeal.

12 The evidence that the appellant wishes the Full Bench to receive includes evidence concerning:

(a) the Compensation Court proceedings brought by the deceased worker's family against Mr Papaianni and the WorkCover Authority;

(b) the institution, continuation and withdrawal of proceedings against Mr Papaianni; and

(c) the failure of the WorkCover Authority and its solicitor to disclose to the appellant's solicitor the withdrawal of the proceedings against Mr Papaianni.

13 As to the proceedings in the Compensation Court, the appellant referred to the proceedings brought by Christine Zaronias and her two dependent children under s 25 of the Workers' Compensation Act 1987. The application sought a declaration that Mr Zaronias (the deceased) was a "worker" within the meaning of the Workers' Compensation Act 1987.

14 The appellant's submissions continued:

WorkCover was the second and fourth respondent to those proceedings because the first and third respondent, Michael Papaianni and Carl Hamilton were uninsured. WorkCover filed answers to the application in which it denied that it was liable to pay the appellant the compensation claimed upon the ground that it did not admit that the deceased was a worker or a deemed worker within the meaning of the Workers' Compensation Act. At the hearing of the application, WorkCover called evidence from a Mr Andrew Lazars the effect of which was that the deceased was only a volunteer rather than a worker when he appeared at the premises on 3 September 1998.

On 28 May 2001, Acting Judge Burke found there was no contract of service between the deceased and Mr Papaianni, and therefore, the appellant was not entitled to an award under the Workers' Compensation Act because he was a volunteer and not a worker.

15 Reference was then made to the proceedings in the Court of Appeal:

On 31 July 2002, the Court of Appeal dismissed the appeal by the appellant. In his reasons Meagher JA held that the findings of fact made by Burke AJ were entirely open to him and were unsurprising. His Honour held (at paragraph 8) that:

"Once his Honour made his primary findings of fact by believing what Mr Papaianni said, the question 'employee or volunteer' could only be answered one way, ie volunteer."

16 The appellant then referred to the proceedings in this Court under the Occupational Health and Safety Act:

In separate proceedings on 1 September 2000, WorkCover prosecuted Papaianni under section 15(1) of the Act. In the application for summons WorkCover alleged that Papaianni employed the deceased to work as a general hand/labourer at the premises between 27 July 1998 and 2 September 1998. In the supporting affidavit by Inspector Martin Carmody sworn on 31 August 2000, Mr Carmody swore that "during the period on and prior to 3 September 1998 the builders employed Jim Zaronias (the "worker") as a casual labourer to work at the premises" (paragraph 51) and "the defendant was at all material times on 3 September 1998 an employer" and that on 3 September 1998 the defendant employed Jim Zaronias to work as a general hand/labourer at the premises (paragraph 59(a) and (b)).

On 13 September 2000, Judge Hungerford ordered Papaianni to answer the offences alleged by the prosecutor.

On 30 August 2002, Papaianni sought orders that the summons against him under section 15(1) of the Act be dismissed as an abuse of process.

The definition of "employer" in the Act and the Workplace Injury Management Act 1998 (NSW) ("the WIM Act") is very similar. Under section 4 of the WIM Act, a "worker" is defined to mean "a person who has entered into or works under a contract of service with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)". Under section 4 of the Act, an "employer" means a corporation or individual who employs persons under contracts of employment. An "employee" means an individual who works under a contract of employment.

WorkCover adopted two totally conflicting positions in relation to the legal relationship between Papaianni and Zaronias. In the Compensation Court proceedings, its position was that Papaianni was not an employer and there was no contract of service between Papaianni and the deceased. In the proceedings before the Industrial Relations Commission, WorkCover took the opposite position.

17 The appellant's submissions related to three main areas: first, the conduct of the Crown's case against the appellant; second, the power to adduce additional evidence on appeal; and third, the significance of the evidence of Mr Papaianni to the appellant's case at the trial. As to the first matter, it was submitted that there was misconduct on the part of the prosecutor in calling Mr Papaianni as a witness in the proceedings against the appellant in circumstances where the prosecutor knew that there was a serious risk that Haylen J would not require him to give evidence.

18 The appellant further submitted that the prosecutor breached his duty to both the Court and the appellant in failing to disclose that the proceedings against Mr Papaianni had been dismissed. It was submitted that the prosecutor had particularly breached the obligation to ensure that a criminal trial is conducted with fairness to the defendant. Appellate courts in Australia and the United Kingdom have held that a criminal trial has miscarried because of the prosecutor's failure to fulfil its duty of fairness to the accused. An aspect of that duty is that a prosecutor must disclose to the defence all relevant material, both inculpatory and exculpatory, at every stage of the criminal proceedings: Grey v The Queen (2001) 184 ALR 593 and Rule 66 of the New South Wales Barristers Rules. The duty to disclose material also includes the duty to disclose the availability or unavailability of a material witness. The appellant submitted that disclosure of the fact that proceedings against Mr Papaianni had been withdrawn would have removed his claim for privilege against self-incrimination and given the appellant the opportunity of applying to reopen the proceedings in order to cross-examine Mr Papaianni on matters which his Honour had prevented Mr Papaianni being questioned upon.

19 The appellant also contended that:

The entire prosecution against Papaianni was ethically dubious because in the Compensation Court, WorkCover had submitted that there was no contract of service between Papaianni and the deceased whereas they were required to prove precisely the opposite in the prosecution against Papaianni. This constitutes the background to the prosecutor's conduct in the prosecution against the appellant. First, it was misconduct to call Papaianni as a witness in the appellant's hearing in circumstances where the prosecutor knew that there was a serious risk that Haylen J would not require him to give evidence. At the very least, the prosecutor's duty of fairness required that that matter should have been canvassed at the commencement of the hearing. If Haylen J ruled that Papaianni was not required to give evidence, the prosecution should have prosecuted Papaianni before it commenced its prosecution against the appellant. Secondly, the prosecutor breached its duty to both the Court and the appellant in failing to disclose that the proceedings against Papaianni had been dismissed.

20 The appellant emphasised the consideration that throughout the entire proceedings against him in this Court, including those after the judgment of the Court of Appeal of 31 July 2002 in respect of the proceedings in the Compensation Court, "there was not one word from the prosecutor to his Honour that the Court of Appeal had held that Papaianni was not an employer". In that regard reference is made to the proceedings before Haylen J on eight separate days between August and December 2003.

21 It was submitted further that it was clearly an abuse of process to prosecute Mr Papaianni and this, in turn, tainted the prosecution of the appellant because it was the prosecution of Mr Papaianni which formed the basis of Haylen J's decision under s 128 of the Evidence Act 1995. It was contended that:

There is no other reasonable explanation for withdrawing the prosecution against him other than that WorkCover had received advice that it was unethical to prosecute Papaianni in circumstances where they had taken the exact opposite position in the Compensation Court. The documents that the summons require production of should reveal:

(a) When the decision was made to withdraw the prosecution against Papaianni;

(b) What was the reason for the decision;

(c) The basis, if any upon which the prosecution justified the decision to prosecute Papaianni when it had taken the opposite stance on whether he was an employer in the Workers Compensation proceedings.

Prompt disclosure of the fact that proceedings had been withdrawn against Papaianni would have given the appellant the opportunity of applying to reopen the proceedings in order to cross-examine Papaianni on matters, which his Honour had prohibited Papaianni being questioned upon.

If the Court accepts that the Crown ought to have disclosed to the appellant that the prosecution against Papaianni had been withdrawn, the appellant should be permitted to further cross-examine Papaianni unless it is inevitable that he [that is, the appellant] would have been convicted: Grey v The Queen (2001) 184 ALR 593 at paragraph 27, 25; Wilde v Regina (1988) 164 CLR 365.

22 As to the power of the Full Bench of the Court to permit the appellant to adduce additional evidence on appeal, the appellant submitted that the ground of appeal was not governed by the fresh evidence rule but by the principle of the Crown's obligation to make full disclosure in a criminal case: Grey v The Queen. It was further submitted that the Second Reading Speech as to the Courts Legislation Amendment Bill 2000 did not support the prosecutor's contention that the Full Bench was precluded from permitting any fresh evidence on the appeal. The purpose of the amendment to s 5AA of the Criminal Appeal Act in 2000 was to provide that appeals from the Court's summary criminal jurisdiction were to be by way of an appeal in the strict sense, rather than by re-hearing. The appellant also referred to s 5AA(4) of the Criminal Appeal Act and the inherent jurisdiction of courts of criminal appeal to prevent a miscarriage of justice (Gallagher v The Queen (1995) 160 CLR 392) as sources of power to admit fresh evidence on appeal.

23 The appellant also referred to s 12(1) of the Criminal Appeal Act and, in particular, s 12(1)(a) and (b) which expressly confer power to receive fresh evidence. The appellant strongly refuted the respondent's submission that the repeal of sub-sections 5AA(3) and (3A) evidenced Parliament's intention to preclude the Court's power to receive fresh evidence and that because miscarriage of justice was not an available ground in s 5AA appeals, there was no basis for fresh evidence to be received.

24 The intention of the legislature in making amendments to s 5AA was made clear in the Second Reading Speech. The intention was to remove the anomaly that "persons convicted in the exercise of the summary jurisdiction of Supreme Court are entitled to a wider appeal by way of a rehearing" than persons convicted on indictment to which appeals under s 5(1) apply. The respondent's submission, if correct, would lead to the creation of another more significant anomaly, namely, that persons convicted in the exercise of the summary jurisdiction of Supreme Court were entitled to a narrower or more inferior system of appeal by way of a rehearing than persons convicted on indictment to which appeals under s 5(1) apply. The respondent's second submission was said to be based upon a misconception that because the words of s 5AA do not state that a miscarriage of justice constitutes a ground of appeal, no such ground of appeal is available. In fact, s 5AA(1) does not specify any ground of appeal against conviction. It could not seriously be suggested that these are not valid grounds of appeal because s 5AA does not specify that they are grounds of appeal. A miscarriage of justice is the foundation of the jurisdiction to quash the conviction. If there is no evidence to support a conviction or there has been an error of law, there has been a miscarriage of justice.

25 As to the third area of the appellant's submissions, the relevance of the additional evidence, including the documents sought by the proposed summonses, was argued in the context of the appellant's case at trial and the significance of Mr Papaianni's evidence. As to the former matter it was submitted, for example, that:

(1) the respondent had failed to establish that any risk to persons not in his employment arose from the conduct of the appellant's undertaking. To the extent that those persons were exposed to a risk, that risk arose from the conduct of others. The respondent had failed to prove the causal link between the conduct of the appellant's undertaking and the relevant risks.

(2) the only change in the floor levels indicated on the architectural plans given to the appellant was the raising of the front room of the house, where no structural detail was required. The architectural plans showed that the initial floor levels at the back of the house were to be retained. The architect's plans specified the floor levels. The appellant designed the slab and floor levels. There was no physical evidence that there was to be a reduction from an original to a lower floor level.

(3) the risk arose from the conduct of the builders (Papaianni, Hamilton and the deceased) lowering the floor level for the extension or, in other words, excavating a trench under the wall. In short, the appellant alleged the risk arose as a consequence of the intervening conduct of the builders. That conduct was done without consulting the appellant.

26 The respondent at the trial had called Mr Papaianni as a relevant witness and argued that it was in the interests of justice that he be given a certificate under s 128 of the Evidence Act. The records of interview between the WorkCover inspector and Mr Papaianni give some indication of what his evidence would have been. The records of interview refer to the extent of the evaluation that was made (or was not made) as to the stability of the brick wall, the consultations between Mr Papaianni and the appellant as the structural engineer consulted prior to excavations at the site and the fact that Mr Papaianni did not see the appellant on the site during the building work.

27 It was submitted that at the trial Mr Papaianni could have given the following evidence:

(a) there was no discussion whatsoever between the appellant and Papaianni or Hamilton concerning whether there was to be any excavation alongside an existing wall. Papaianni did not contemplate that because he thought that the wall was supported.

(b) at some point in time, unbeknownst to the appellant, Papaianni decided to commence excavation along the wall.

(c) in commencing the excavation of footing trench alongside a section of the unsupported wall, Papaianni and Hamilton were extremely careless and were in breach of Australian Standards AS2601 and in breach of regulation 95(3) of the Construction Safety Act 1912.

28 The consequence of the ruling of Haylen J was that the appellant, through his counsel was prevented from exploring these issues:

(a) when did Mr Papaianni decide to dig a trench;

(b) why was that decision made;

(c) who, if anyone instructed him to do that;

(d) why was the decision made to lower the floor levels;

(e) when was that decision made;

(f) were these decisions ever communicated to the appellant.

29 The appellant placed substantial reliance on the continued denial by the respondent that he as prosecutor had breached any of the duties of a prosecutor; or that he had a duty to inform the appellant, or his lawyers, as to the cessation of the proceedings against Mr Papaianni and the respondent's reliance on the supposed failure of the appellant's lawyer to raise the issue subsequently. In that context, it was submitted that whether the prosecution engaged in misconduct and the extent of that misconduct was a very live issue in this appeal and that one of the important issues was when the prosecution decided to withdraw the proceedings against Mr Papaianni and upon what basis. The chronology of events was said to be important to understand the breach of the prosecutor's duties.

Submissions for the respondent

30 The respondent submitted that as an application pursuant to Part 20 of the Industrial Relations Commission Rules 1996 to amend ground 4 of the Notice of Appeal had not been made, the appellant's submissions on that point should be disregarded.

31 The respondent made three primary submissions: first, the Court did not have power to receive fresh evidence; second, the power to issue summonses required consideration of the interests of justice; and third, even if the Court had the power to receive fresh evidence, it should not exercise its discretion to do so. As to the first issue, the respondent submitted that not only was there no statutory provision to permit the adducing of fresh evidence but the legislature had made amendments to s 5AA of the Criminal Appeal Act so as to preclude the adducing of fresh evidence on appeal and in such circumstances, it would be contrary to express legislative intent to find inherent jurisdiction in the Court to receive fresh evidence. Further, the concept of miscarriage of justice is found in s 6 of the Criminal Appeal Act which, in terms, does not apply to appeals under s 5AA: Gilmour v Environment Protection Authority (2002) 55 NSWLR 593 and Histollo Pty Ltd v The Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661.

32 In response to the appellant's submissions on the inherent power of the Court to receive fresh evidence, the respondent submitted that the power to receive fresh evidence is linked to the nature of the appeal and, specifically, the requirement for an appellant to establish a miscarriage of justice, which it was submitted, is not available as a ground of appeal in appeals brought pursuant to s 5AA. The respondent accordingly submitted that, appeals under s 5AA being limited to appeals in the strict sense without the Court having power to receive fresh evidence, there was no purpose served in the issuing of the summonses sought by the appellant.

33 The further submission of the respondent was that if s 12 of the Criminal Appeal Act was the source of the Court's power to issue summonses, the exercise of the Court's discretion is subject to the statutory limitation set out in that section; that is, the Court must first be satisfied that it is "necessary or expedient in the interests of justice" for the summons to be issued. The respondent submitted that the appellant had not demonstrated what the documents sought under summons could demonstrate by way of evidence, how the documents could add any material evidence to any of the grounds of appeal and how the documents were relevant to or expected to be relevant to evidence that could have been given by Mr Papaianni. The circumstances of the proceedings against Mr Papaianni did not add any material evidence to any ground of appeal.

34 In the event that the Court is satisfied that miscarriage of justice is available as a ground of appeal pursuant to s 5AA, the respondent submitted that the appellant has failed to make out how the proposed documents could lead to evidence to support such a ground: Gallagher v The Queen (1985) 160 CLR 392. This militates against the Court exercising power to issue the summonses pursuant to s 12(1) of the Criminal Appeal Act.

35 The respondent also submitted that even if there were power to admit fresh evidence on appeal, the Court should not, as a matter of discretion, admit any of the documents sought by the appellant and in such a case, there would be no purpose in issuing the summonses. The appellant submitted that the Court should take into account the following discretionary matters:

(a) the conduct of the prosecutor in Mr Papaianni's proceedings is irrelevant to the appeal;

(b) the restrictions on Mr Papaianni in giving evidence in the proceedings below were dealt with in accordance with established law; to the extent any issues arise in relation to those matters they are covered by the appellant's third ground of appeal, which alleges relevant error by Haylen J;

(c) the appellant did not identify what evidence he was deprived of as a consequence of the restriction on Mr Papaianni giving evidence, nor does the appellant identify how being deprived of such evidence gives rise to a ground of appeal;

(d) the appellant has not established how that evidence would be relevant to the question of the correctness of the decision at first instance;

(e) if the appellant now intends to put forward new reasons as to why Mr Papaianni should have been required to give evidence, leave to appeal is required under Rule 4 of the Criminal Appeal Rules;

(f) the appellant has not identified how the availability of Mr Papaianni to give evidence without restriction would have led to a different result below.

36 The respondent referred to the defence's conduct of the proceedings below. In particular that although there were opportunities to make further applications under s 128 of the Evidence Act and to explore any issues with other witnesses such as Mr Hamilton or Mr Agapiou, albeit by way of recalling them to give further evidence, the defence chose not to do so.

37 The respondent submitted that the appellant failed to identify the evidence which it is claimed, had Mr Papaianni been available for cross-examination without restriction, would have been exculpatory of the appellant or would have diminished the capacity of the appellant to run his case at first instance, and in the absence of such identification, it is not possible for the appellant to establish any miscarriage of justice.

38 In reply to the matters raised by the appellant as to discretion, the respondent submitted that the contention of prosecutorial misconduct is misplaced and in any event, the appellant does not establish why the circumstances of Mr Papaianni's prosecution are relevant to the alleged misconduct and breach of duty of disclosure. As to the latter point, even if the respondent has breached the duties alleged by the appellant, the appellant has not demonstrated that the failure to advise of the discontinuation of proceedings against Mr Papaianni gave rise to a miscarriage of justice nor how the appellant was affected by being deprived of Mr Papaianni's evidence.

39 The respondent also observed that without having collated the documents sought, it appeared likely that most if not all of the documents the subject of the summonses would be subject to legal professional privilege.

40 Senior counsel for the respondent did, however, during the course of the hearing before the Full Bench make a number of concessions as to matters of fact which could be tendered if, contrary to his submissions, the Court held that there was power to receive further evidence on appeal. These matters included, for example, that the prosecutor at the trial had called Mr Papaianni in the proceedings although he was then himself the subject of proceedings for a breach of s 15 of the Occupational Health and Safety Act and the prosecutor failed to advise the appellant or his lawyer before the judgment of Haylen J that the proceedings against Mr Papaianni had been withdrawn or dismissed. Senior counsel had submitted that since those matters had been conceded it was neither necessary or appropriate for the summonses to be issued.

41 As to the amended summonses filed in Court by the appellant on 12 August 2004, the respondent provided written submissions in which it was assumed that the amended documents arose from discussions during the hearing before the Full Bench about the possibility of narrowing the scope of summonses and not pressing the summons against Yandell Stell Wright. The respondent submitted that the new summonses to produce did not meet either of those suggestions because they sought documents from 19 March 2001 "relating to" the "maintenance and continuation of proceedings" and the summons against Yandell Stell Wright was still pressed.

42 The respondent's submissions concluded:

In any event, we repeat our submissions that the suggested changes do not meet the fundamental objection that have been raised by the respondent to the issue of the summonses.

Further as was submitted on 19 May 2004 the respondent maintains its objection to the further amendment to the grounds of appeal as being so broad as to not put the respondent and the court on proper notice as to what will be argued. No doubt that can be remedied in time for the appeal proper by the requirement that the appellant file written submission to which the Court can then confine him. However, in the unusual circumstance of this case, where the appellant has sought broad ranging summonses to be issued prior to the hearing of the appeal proper, the failure to be specific in the grounds of appeal as to the abuse of process means there is no touchstone by which the Court can assess whether the summonses should issue. As the appellant's submissions on 19 May 2004 demonstrate, this absence of specificity has resulted in the appellant's attempt to state a basis for the issuing of the summonses becoming a moveable feast.

Consideration and conclusions

43 The issues requiring determination first involve consideration of the powers of the Court to admit fresh evidence on appeal. That, in turn, involves reference to the relevant statutory provisions and, in that context, to the way in which s 5AA of the Criminal Appeal Act was amended in 2000.

44 Prior to the 2000 amendment s 5AA was relevantly in the following terms:

5AA. Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction

(1) A person:

(a) convicted of an offence, or

(b) against whom an order to pay any costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

(2) ...

(3) Any such appeal is to be by way of rehearing on the evidence (the original evidence), if any, given in the proceedings before the Supreme Court in its summary jurisdiction.

(3A) The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are special grounds for doing so. If the court does give leave, the appeal is to be by way of rehearing on the original evidence and on any fresh, additional or substituted evidence so adduced.

(4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.

...

45 The amendment which occurred at the time removed subsections (3) and (3A) from s 5AA. The original provisions (that is, those removed) had made clear that the appeal court was obliged to deal with the appeal by way of rehearing on the original evidence. Limited power was also given to grant leave to adduce "fresh, additional or substituted evidence". However, if such evidence was admitted, the appeal court was still required to determine the appeal by rehearing, albeit of the original and also the further evidence.

46 Section 12 of the Criminal Appeal Act is also important. It relevantly provides:

12 Supplemental powers of the court

(1) The court may, if it thinks it necessary or expedient in the interests of justice:

(a) order the production of any document, exhibit, or other thing connected with the proceedings, and

(b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order any such persons to be examined before any judge of the court or before any officer of the court or other person appointed by the court for the purpose, and admit any deposition so taken as evidence, and

(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable witness, and

(d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot, in the opinion of the court, be conveniently conducted before the court, the court or any judge thereof may refer the question for inquiry and report to a commissioner appointed by the court, and act upon the report of any such commissioner so far as the court thinks fit, and

(e) appoint any person with special expert knowledge to act as assessor to the court in any case in which it appears to the court that such special knowledge is required for the determination of the case,

and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial.

...

47 The construction issue raised by the motion may be considered in either of two ways. First, whether the amendment of s 5AA of the Criminal Appeal Act in 2000 to delete subsections (3) and (3A) evinced an intention to deprive the Court of the power to admit fresh or additional evidence on the appeal, if it was "necessary or expedient in the interests of justice" (to cite the words in s 12 of the Criminal Appeal Act) to do so. Second, whether the words or the phrase in s 5AA(4), "make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal" (emphasis supplied) is indicative of the power in the Court to admit fresh evidence on appeal, or assumes the existence of that power.

48 Dealing with the issue in terms of the first formulation above, it is relevant that when s 5AA included subsection (3A), there was explicit power in the Court to grant leave to adduce "fresh, additional or substituted evidence" subject to there being special grounds for doing so. The issue then becomes, to cite paragraph 18 of the respondent's submission, "for the appellant's submissions to succeed the Court would have to be satisfied that miscarriage of justice grounds an appeal brought pursuant to section 5AA". The respondent's primary submission, was that:

[I]n circumstances where there is not only no statutory provision to permit the adducing of fresh evidence but where the legislature has made amendments to s 5AA so as to preclude the adducing of fresh evidence on appeal, it would be contrary to express legislative intent to find inherent jurisdiction in the Commission to receive fresh evidence.

49 We conclude that the respondent's submissions on this point should be rejected since it is unlikely that the legislature intended, by the amendments made in 2000, to deprive the defendant in criminal proceedings that might have been brought in this jurisdiction previously pursuant to the Supreme Court (Summary Jurisdiction) Act 1967 but now may be brought pursuant to the Criminal Procedure Act 1986, or otherwise, of a right of appeal on the basis of miscarriage of justice. Merely to state the consequences of the respondent's submissions, is to demonstrate the unlikelihood of the legislature having such an intention since it would evince an intention on the legislature's part to create actual or potential injustice. That is, the injustice of depriving defendants in criminal proceedings of the right of challenging their convictions on appeal on the basis of miscarriage of justice.

50 As was observed by the Court of Criminal Appeal in R v Fordham (1997) 98 A Crim R 359 at 377 - 378 as to the purpose and scope of the power to receive fresh or new evidence (albeit in the context of sentencing proceedings):

Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: R v Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: R v McKenna (unreported, Court of Criminal Appeal, NSW, No 60705 of 1991, 16 October 1992). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: R v Goodwin (1990) 51 A Crim R 328, compare R v De Marco (unreported, Court of Criminal Appeal, NSW, No 60024 of 1993, 20 November 1995). There is also a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54.

51 Although, as the respondent correctly points out, the power to receive fresh evidence is almost invariably expressly conferred (see, for example, Ex parte Currie; Re Dempsey (1968) 70 SR (NSW) 1 at 10 and Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 439), we do not consider that express conferral of the power is essential particularly where, as here, there is a particular statutory provision (s 5AA(4)) which plainly assumes the existence of the power. In any event, reference to the Second Reading Speech for the Courts Legislation Amendment Bill 2000 and Histollo Pty Ltd v The Director General of National Parks and Wildlife Service, the judgment referred to in the speech, makes plain that the intention of the legislature was merely to alter the previous appellate regime, which involved a complete rehearing, into a more limited right of appeal. Any doubt as to that issue is mitigated by the terms of s 12 of the Criminal Appeal Act which has been earlier set out.

52 Although we have held that express conferral of the power to receive fresh evidence is not essential in all circumstances, consideration of s 12 shows that there is an express conferral of the power. The section gives clear power to both order the production of evidence (documentary and oral) and to receive such evidence. The section also gives the appeal court the powers available to the Supreme Court "on appeals or applications in civil matters" and, for such purposes, to issue any process necessary for enforcing its orders and sentences. The exercise of these powers is relevantly conditioned by one consideration: that is, the appeal court forming the opinion that it is necessary or expedient in the interests of justice to do so.

53 Although, as senior counsel for the respondent observed, s 12 applies not only to appeals from summary trials but also to appeals from convictions or indictments, nevertheless there appears to be no basis in s 12 or otherwise in the Criminal Appeal Act to conclude that the legislature intended some general limitation as to the applicability of s 12 in appeals such as the present.

54 Section 12 also has another relevance. The respondent argues that if the Court found there was a power to admit fresh evidence in appeals made under s 5AA, that would be tantamount to finding there was an unconstrained power (that is not constrained by any express criteria) and that in effect would give a convicted defendant virtually an absolute right to have new or fresh evidence admitted on appeal. The exercise of power under s 12 is conditioned on it being "necessary or expedient in the interests of justice". That condition provides a sure guide to the exercise of the Court's discretion (assuming one exists) to admit new evidence. In any event, there are many authorities of relevant appellate courts which lay down the relevant principles. See, for example, the references in R v Fordham (at 377 to 378) to "miscarriage of justice" or "where the interest of justice require [the] course". Sometimes the phrases used in the relevant appellate judgments have their genesis in the statutory provisions; often they do not and the relevant and longstanding phrases have resulted from judicial consideration and elaboration.

55 Section 12 of the Criminal Appeal Act also permits the Court of Criminal Appeal to order, where it is necessary and expedient in the interests of justice, a person to give evidence at the hearing of the appeal (see R v Shalala [2002] NSWCCA 461) and to remit matters to a "court of trial" for re-sentencing, where it has not been put in possession of all necessary material (see R v McLean (2001) 121 A Crim R 484 and R v Strong [2003] NSWCCA 123)

56 We consider that there is no warrant to conclude that the legislature intended to, by the amendments in 2000 to the Criminal Appeal Act, deprive convicted defendants of their right to have their convictions examined on the basis of an alleged miscarriage of justice or to deprive them of the right to have, subject to showing a proper case in that regard, fresh evidence admitted on the appeal for that purpose.

57 Our examination of the Criminal Appeal Act convinces us that this Court sitting on appeal has power to authorise the issue of the summonses sought by the appellant and, in appropriate circumstances, admit further evidence on appeal. Although the 2000 amendment may be said to have occurred in circumstances where the "drafter" of the amendment may not have given complete attention to that matter of detail, we doubt that is so. Rather, we consider the reason why the legislation is in its present form is relatively clear. The intention was to bring the appeal regime under s 5AA into greater conformity with the appeal regimes elsewhere in the Act. That was achieved simply by eliminating s 5AA(3) and (3A) and allowing s 12 to have full operation in respect of s 5AA appeals. The resulting situation is to be contrasted with that existing prior to 2000 when, presumably because the view then taken of the particular nature of proceedings from which appeals were brought under s 5AA, being proceedings before a Supreme Court judge sitting alone without a jury, further evidence would only be available on appeal in the very restricted circumstances set out in the former s 5AA(3A).

58 The reference in subsection (4) of s 5AA, as it now stands, to "the evidence heard on appeal" is a reference to the evidence heard before the trial judge and the further evidence (if any) admitted on appeal pursuant to the wide powers under s 12 of the Criminal Appeal Act, which powers are as wide as the powers available to the Supreme Court when hearing appeals or applications in civil matters.

59 Finally on this aspect, we reject the respondent's contention that "miscarriage of justice" is not an available ground of appeal in an appeal under s 5AA of the Criminal Appeal Act because that ground is available only because of the reference to that expression contained in s 6(1) of the Criminal Appeal Act which in terms only applies to appeals pursuant to s 5(1) of the Act. The terms of s 6(1) are set out subsequently in para [65] in the extract from the judgment in Grey v The Queen. It will be noted that, as the respondent contends, that provision applies in terms only to appeals from convictions on indictment pursuant to s 5(1). In such appeals the legislature seems to have been concerned to limit the scope of appeals from jury verdicts for reasons that may be thought to be obvious. In that context the concept of "miscarriage of justice" has relevance at two levels. First, it is one of the specific range of grounds upon which the conviction might be set aside. Second, there is an important general proviso in the last part of s 6(1) which provides the appeal court with the discretion to dismiss the appeal, even if one or more of the points raised on appeal might be decided in favour of the appellant, on the basis that it is concluded that "no substantial miscarriage of justice has occurred".

60 When s 6(1) is considered in this way as providing a limited range of appeal grounds and a proviso in respect of appeals generally under s 5(1), it could not be said that s 6(1) provides a basis to read down or limit the grounds in which an appeal under s 5AA might be brought or upheld. Miscarriage of justice is therefore an available ground of appeal in an appeal under s 5AA of the Criminal Appeal Act and s 196 of the Industrial Relations Act.

61 We are fortified in our conclusion in this regard by the reasoning and conclusions of the Court of Criminal Appeal in Gilmour v Environment Protection Authority (2002) 55 NSWLR 593. In that case, the court (Santow JA, Hidden and Adams JJ concurring) held that an appeal under s 5AA may be dismissed, notwithstanding appealable error at trial has been established, if the court is satisfied that no substantial miscarriage of justice had occurred. In other words, the content of the proviso in s 6(1) was available even though there was no specific provision to that effect in the relevant provision (s 5AA(4)) which provided a broad and general discretion whether to uphold or to dismiss the appeal.

62 Turning then to the balance of the issues, the conclusion that the Court should reach on the motion is not without some difficulty because of the gulf between the approaches of the parties and, perhaps to an extent, because of the failure of the parties to recognise some of the flaws in their respective positions. We will therefore attempt to state the principles applicable to the issues to be determined and, in doing so, identify the limited nature of any determination the Court may make at this stage having regard to the lack of the precise identification of the evidence which the appellant says he is entitled to have adduced before the Full Bench.

63 A conviction may be set aside by a court of criminal appeal on the grounds of fresh evidence. The underlying rationale for that principle is that the absence of that evidence was, in effect, a miscarriage of justice. However the principle has some significant limitations: for example, there will be no miscarriage in the failure to call the evidence if the evidence was at the relevant time available or, with reasonable diligence, could have been available. Although there is no precise formulation of the quality of the fresh evidence before it will ground a successful appeal it has been said variously that the evidence must be "credible", "cogent", "relevant", "plausible". One formulation that has been suggested is where the jury, or tribunal of fact, is likely to have entertained reasonable doubt had all the evidence been before it; in that context it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true (it is not necessary that a reasonable jury would believe it); see generally Mickelberg v The Queen (1989) 167 CLR 259 at 301 - 302 per Toohey and Gaudron JJ.

64 Although the fresh evidence rule (Mickelberg v The Queen at 301) is potentially relevant to any application on appeal to adduce evidence not before the trial court, there are cases of miscarriage of justice to which the fresh evidence rule does not apply: Grey v The Queen (2001) 184 ALR 593 at [23]. In that case, the miscarriage of justice identified in the major judgment (that of Gleeson CJ, Gummow and Callinan JJ) was not one to which the fresh evidence rule applied because:

[23] ... It is one thing to say that the defence knew or could have found out about various aspects of unsavoury behaviour on the part of Mr Reynolds but an altogether different thing to say that it knew of the special relationship between Mr Reynolds and the police. And although it might also be possible to say that a lucky (if extremely risky) question of him might have elicited an answer which revealed the existence of the letter of comfort and perhaps even its contents, there was no reason why the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled. Nor can we accept, in any event, as the Court of Criminal Appeal held, that reasonable diligence before or during the trial would have unearthed the letter.

65 The significance of their Honours' finding has to be seen in the context of the key issue in the case which was whether the appeal should be dismissed because no substantial miscarriage of justice had occurred. The significance of the expression no substantial "miscarriage of justice" for the present case has been referred to earlier. Their Honours said as to the broader issue:

[24] The outcome of the appeal depends upon the application of s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides as follows:

"Determination of appeals in ordinary cases

(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The only question is whether, as the respondent submits, the appeal should be dismissed because no substantial miscarriage of justice has actually occurred.

[25] The language of s 6(1) is similar to the language of s 4(1) of the Criminal Appeal Act 1907 (UK), which established the Court of Criminal Appeal in England. It has analogues, or virtual analogues, enacted between 1912 and 1924 in the other Australian States. Its history after its original enactment is traced in the judgment of Brooking JA in R v Gallagher [1998] 2 VR 671 in which his Honour remarks on the difficulty of drawing a distinction between a (mere) miscarriage of justice, and a "substantial" miscarriage of justice, being the two expressions which appear in the sub-section, a difficulty upon which many judges before him have commented. In Wilde v The Queen (1988) 164 CLR 365, Brennan, Dawson and Toohey JJ however stated the effect of the authorities to be (at 371 - 372):

"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517 at 524; Reg v Storey (1978) 140 CLR 364 at 376; Gallagher v The Queen (1986) 160 CLR 392 at 412 - 413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (1955) 93 CLR 493 at 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case. In this case the Court of Criminal Appeal answered it adversely to the applicant, and there is nothing to show that the answer was wrong."

66 The Court referred to certain improbabilities in the appellant's version of events said to be a powerful point in favour of the Crown's approach. Nevertheless, the appeal was upheld (see paras [26] and [27]) as the appellant had lost "a fair chance of acquittal" because the Crown was "bound to facilitate fair process by providing to the appellant all materials to which he was entitled to have access. This did not happen."

67 We do not consider that, at this stage of the appeal proceedings, we could conclude with confidence that the trial of the appellant was not affected by the matters relied on by him which we accept may be available to be tendered on appeal.

68 Many of the cases in this area contain an important element which is not present, or not yet present, in this case. That is, a precise and reasonably clear account of the fresh evidence which the appellant seeks to rely on. For example, in Gallager v The Queen, there was new evidence available in the form of a written statement by another prisoner (also named Gallagher) who maintained that he, and not the appellant, had killed the deceased whose killing had led to the appellant's conviction for murder. Although the witness Gallagher had given evidence in the proceedings before the New South Wales Court of Criminal Appeal he had earlier given a written statement in an interview with an agent for the appellant's solicitors. Similarly, in Grey v The Queen the relevant fresh evidence was a copy of a letter of comfort given by an investigating police officer to a person who was a key prosecution witness against the accused at the trial.

69 In the present case although quantitatively the bulk of material the appellant seeks to rely on is in documentary form (for example, that relating to the proceedings in the Compensation Court and the Court of Appeal) and thus available both to the appellant and this Court, the important material, in a qualitative sense is not completely available. This is because it is not known with clarity the precise evidence Mr Papaianni would give to this Court or would have given before Haylen J. Although the appellant has referred to and supplied two records of interview with Mr Papaianni and indicated the nature of the evidence he would seek to adduce from the witness by cross-examination, there remains a degree of speculation as to what his relevant evidence would be.

70 Although it might be thought that the conclusion in Grey v The Queen leads to the situation that where any broadly relevant material was not, for some reason connected with the prosecution, available to the accused at trial (no matter how lacking in credibility or remote to the accused's guilt the material might be) a new trial must be ordered, we do not consider, on our present view of that judgment, that is correct. Certainly, we do not intend to approach the matter in that way at this interlocutory stage. We consider, at this stage of our deliberation, that it may be open to the respondent to test the quality (to use a relatively neutral term) of the material that is proposed to be led from Mr Papaianni prior to the determination of the appeal. Although the appellant has stated the substance of the evidence he expects to obtain from Mr Papaianni, and the significance of that likely evidence to the outcome of the appeal, steps may need to be taken to put his evidence in a suitable form for its reception before the Full Bench, presumably subject to its testing in an appropriate way. There is also the consideration whether Mr Papaianni, or his legal representative, should be heard on the matter. These are matters which will require the Court's directions in due course. Subject to those considerations, the Court may receive fresh evidence as later discussed in this judgment.

71 We now turn to the issue as to the summonses to produce which the appellant seeks leave to issue. We should return to the material the appellant wishes to rely on. Broadly, the material seems to fall into two categories, even if regard is given to material he seeks to obtain by summons. The first category includes the material relating to the proceedings in the Compensation Court and the Court of Appeal between the late Mr Zaronias' widow and children, WorkCover and Mr Papaianni (we interpose here that the appellant's submissions treat the WorkCover Authority, the party in those proceedings as identical to the respondent (the prosecutor before Haylen J) who is a WorkCover inspector; although in some cases that simplification is understandable and immaterial, we are not convinced at the present stage of our consideration that treating those two parties as identical is appropriate in these proceedings). The second category relates to the fact that prior to the finding of guilt of the appellant and prior to his subsequent conviction, the charges against Mr Papaianni were dismissed without any notice of that circumstance being given to the appellant with the consequent opportunity to further cross-examine Mr Papaianni in respect of the charges he (the appellant) was facing. There is, however, a further sub-category of the second category which relates to the quality of, and perhaps the motivation for, the conduct of the prosecution in respect of the withdrawal of the charges against Mr Papaianni. For completeness, it is to be observed that this sub-category conceptually overlaps with the first category since the appellant also seeks to raise issues as to the intentions and bona fides of the prosecution in taking the prosecutions, and continuing them, in light of the proceedings in the other jurisdictions.

72 When the material the appellant seeks to rely on is analysed in this way, it leads to a fairly obvious question: what is the relevance of the material in the sub-category of category two, or its connection to the matters the appellant needs to succeed in his reliance on the principle in Grey v The Queen? Plainly, but subject to the clarification of the evidence of Mr Papaianni, the factual matters within the first and second categories are matters of chronology, record, concession or easily proved by uncontroversial documentation. If they bear the complexion intended for by appellant, then he may be able to bring himself within the approach of the High Court in Grey v The Queen, subject of course to the appropriate evaluation of the evidence of Mr Papaianni. If they do not bear that complexion, then the approach in Grey v The Queen is not likely to be available.

73 These considerations raise substantial doubts as to the relevance of the material we have referred to as the sub-category of the second category. It may be that the appellant seeks such materials, and the issue of summonses therefor, because of an abundance of caution, an excess of zeal or for some other reason. Whatever be the appellant's motivation, we consider that the purpose could not be said to be a legitimate forensic purpose in terms of the issues in the appeal. Further, to permit the appellant to embark on the kind of inquiry contemplated by the range of documents he seeks has a significant potential to distract the proceedings from the issues required to be determined. This situation is compounded by the "moveable feast" approach taken by the appellant with his succession of applications to amend his notice of appeal and the inevitable privilege issues that will require attention should leave be granted to issue the summonses in the wide terms in which they have been framed and reframed.

74 Having regard to the concessions made by the respondent and the foregoing discussion, we consider that the leave the appellant seeks to issue the summonses should be refused. That conclusion should not, however, be taken as determining the appellant's motion. It is clear that the appellant will be entitled to place some further evidence before the Full Bench on appeal. We consider that the material we have referred to satisfies the criteria referred to in the opening words of s 12(1) of the Criminal Appeal Act. We have already adverted to the nature of the material that might be available and also to the need for directions to be made as to certain machinery aspects of that matter. Directions may also be necessary for at least two other purposes; first, to ensure that any further hearing before the Full Bench, which could include the taking of oral evidence, is conducted in a fully efficient way; second, and this aspect in part derives from the first matter, to ensure that any responsive evidence filed by the respondent is filed in a timely way.

75 We make these observations because we apprehend that the material we have determined could be available to be tendered by the appellant raises circumstances which the respondent might appropriately consider require answer because, in the absence of an adequate answer to it, certain conclusions adverse to the prosecution's conduct at trial may follow.

76 We therefore order that these proceedings stand adjourned until 4 pm on Tuesday 26 October 2004 when directions will be given for the conclusion of these proceedings. We assume that both parties will be represented by counsel. The parties are also directed to file and serve, no less than seven days before the directions hearing, short minutes of any orders or directions they seek in the light of this judgment. The short minutes shall be accompanied by outline submissions.

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LAST UPDATED: 08/10/2004