Author: Rozenes, M. Date: 16/09/1994 Venue: ASC Law Council Enforcement Conference, Perth
Since 1 January 1991 the Commonwealth Director of Public Prosecutions has prosecuted, on a national basis, offences against both the Co-operative Scheme Codes and the Corporations Law. The clear recognition in the Alice Springs Heads of Agreement and the Corporations Acts of the various States and Northern Territory of the need for a truly national scheme of business regulation contains an awareness of the need for a consistent and fair system of enforcement. It is axiomatic that an essential part of an any true enforcement system involves prosecution action. The essence of my talk today will centre on the role of the DPP in both the prosecution process and in the investigative phase. The DPP's Office was established by the Director of Public Prosecutions Act 1983 with the Office beginning operations in 1984. Perhaps the most important principle underlying the creation of the Office was to separate the role of the prosecutor from that of the investigator and give the prosecutor independence from the political process. This has had the effect of injecting objectivity into the prosecution process. While the merit of a separate and independent prosecutor should not be overlooked, the severance of the investigating function from the prosecuting function can, on occasions, create tensions. In that context it should perhaps be mentioned that the relationship between the Australian Securities Commission and the DPP is not that of solicitor and client. As an independent prosecuting agency we have a statutory responsibility in relation to the matters that are brought before the criminal courts. Accordingly while there must be close cooperation and mutual understanding of the respective roles of the ASC and the DPP the ultimate decision in relation to whether a prosecution of a matter of any substance should proceed must and does remain with the DPP. It is inevitable that the pursuit of complex crime will require multiple disciplinary teams. The nature of the crime to be investigated, the following of the money trails and the sifting through large amounts of commercial documents will require the input of accountants, lawyers, police and investigators. The typical corporate fraud investigation will be document intensive and will require the application of analytical skills. It is rare to find "the smoking gun" or "the blood stained knife". It will often be a matter of reconstructing events months or even years after they have occurred and attempting to explain what happened. Further while the documents may in some cases speak for themselves often it will be the case that many documents are purposely misleading or obscure. In some instances an insider or even a perpetrator of a crime will be needed as a witness in order to enable the case to be adequately presented in a court of law. The art of investigating large corporate fraud cases will demand an expertise and competence that is not quickly acquired. From the DPP's point of view we acknowledge that the expertise to identify suspect transactions, ascertain likely offences and investigate particular conduct rests primarily with specialist investigating agencies. In the case of breaches of the Co-operative Scheme Codes and the Corporations Law that expertise rests with the corporate regulator, the ASC and, in some cases, the National Crime Authority. Both of those organisations have Australian Federal Police officers as part of their investigative structures. The role of the DPP in these cases is to assist and advise the investigators on matters relevant to the prosecution of the particular offences. It is easy enough to state the general principles. It is more difficult to say exactly how it will operate in practice. Some indication as to the way it can work can be gleaned from the ASC/DPP relationship.
The ASC and DPP
In late 1992 at the invitation of the Joint Parliamentary Committee on Corporations and Securities I made a submission in relation to differences in philosophy that had become apparent between the DPP and the ASC. The submission was made in the context of an earlier address to the Committee by the then Chairman of the ASC, Mr Tony Hartnell. The difference in views attracted a great deal of media coverage. The appearances before the Joint Parliamentary Committee brought the issues to a head. The debate was at most times fruitful and worthwhile. It was also in the public interest that these issues be ventilated. In various forms of the media it was described as an "unseemly brawl" - indeed even today it is still sometimes reported as such. Media commentators were delighted to pose the question " why are the ASC and the DPP ' brawling' instead of putting corporate crooks in gaol and why could they not argue privately?". While both the ASC and the DPP had discussed these matters privately on a number of occasions no formal resolution had been found. It is important to note that the conflict of views between the ASC and the DPP did not divert the pursuit of corporate criminals. The ultimately public debate caused both the ASC and DPP to agree to a solution that both organisations could accept. Shortly thereafter the DPP and the ASC settled a Memorandum of Understanding. Subsequent to this agreement the Attorney-General gave Directions to both the ASC and DPP. Both the Memorandum of Understanding and the Directions were incorporated into guidelines for the working arrangements between the two organisations with respect to the investigation and prosecution of corporate crime. The guidelines have shied away from the traditional approach of sending a brief to the prosecutor without the prior knowledge of or involvement of the prosecutor. It was recognised that the tension created by this traditional approach could be quite destructive and unproductive. Both the ASC and DPP recognised that a balance had to be achieved between retaining the independence of the prosecutor and ensuring that the prosecutor had appropriate input into a matter during the investigative phase.
The guidelines focus on the processes involved in investigating a matter. The guidelines recognise that it is for the ASC to primarily decide which matters it will investigate. In the ASC's case something like 8,000 - 9,000 complaints are received each year. The ASC does not have resources to investigate each of those complaints so it undertakes its own internal procedure to prioritise which matters are to be investigated. Once the ASC devotes resources to that investigation it develops an investigation plan which will be modified as the matter progresses. The investigation plan provides for assessment stages. In the first of those stages the ASC decides which direction that investigation will follow. The investigation may have civil (including disciplinary action) or criminal aspects or both. At this stage the ASC will provide the DPP with details of any investigation which the ASC considers has criminal aspects. This is provided for information. The DPP will not normally be expected to provide advice to the ASC at this stage but is available to advise the ASC, especially in large or important matters. At a point in the investigation the ASC will take an informed decision as to whether criminal or civil or both processes are to be seriously contemplated. Where the ASC is considering criminal proceedings it will at that stage consult with the DPP. It is also during this stage of the investigation that the DPP may provide advice to the ASC as to the use of search warrants and criminal investigative techniques. If the DPP considers that, having regard to the entirety of the evidence and the available material, it is unlikely it will form a view that the prosecution is in the public interest the DPP will advise the ASC in writing of that decision and its reasons. Of course, during that process the DPP will give close consideration to the ASC's views. When the ASC has decided that criminal proceedings should in its opinion be instituted and has gathered substantial evidence to enable it to support that view the ASC is required to request in writing the DPP's view as to whether the matter should be referred to the DPP for the purposes of criminal proceedings. This process is referred to as the "handover process". The DPP then certifies that the matter is appropriate for handover. It will only do so if it believes that there is sufficient evidence to enable it to form the view that there is a real prospect of the commencement of criminal proceedings. The investigation is usually substantially complete at the handover stage although there may remain some outstanding investigative tasks. From the handover date the ASC is obliged to devote the resources that it is reasonably able to provide for the purpose of finalising the matter. The guidelines of course cover far more issues than those just outlined. They deal with the need for consultation and liaison, and formalise the arrangements for regular meetings to discuss relevant issues between organisations and, in particular, expected work loads. The guidelines also address such matters as input into the choice of legal counsel and attendance at conferences with counsel etc. However, the brief outline I have given indicates the movement away from the traditional concept of delivery of a brief of evidence, indeed, the guidelines do not at any stage mention a brief. The arrangements between the ASC and DPP reflect a certain maturity and development in the traditional investigator/prosecutor role. As previously indicated there are dangers in prosecutors becoming investigators. Those most often cited include the potential for lack of objectivity, the potential for lawyers to become witnesses and, not least, the potential for friction to arise between the investigators and lawyers. However, it was felt at least in relation to the ASC/DPP relationship we could no longer afford the luxury of sitting back and waiting for a completed brief of evidence to arrive. It was important that the prosecutors be much more active in the investigation process. Both the ASC and DPP pointed to instances in the past where large investigations had been undertaken into a number of allegations and the DPP had subsequently pointed out that in respect of a lot of that investigation, prosecution should not or could not proceed. It was also the case that in respect of those matters where prosecution should proceed further substantial investigation was required. It was in order to overcome both the frustrations felt by the ASC and the waste of resources that were involved in these sorts of exercises that the guidelines addressed the question of early involvement by the prosecutor. In practice it may be that the DPP's involvement in smaller investigations is not as crucial as in the larger ones. Nevertheless there should in every case be a general awareness by the DPP of the investigations, the type of allegations and the expected referral dates.
In addressing the issue of the involvement of the DPP in investigations some reference must be made to the decision of Grofam Pty Ltd and Others v ANZ Banking Group Ltd and Others (1993) 117 ALR 669. In this case the applicants had a primary action against the respondents claiming that the issue of a particular search warrant was unlawful. In the course of this primary action the applicants sought an order to compel disclosure by the AFP of certain documents discovered by them and which they claimed were protected by legal professional privilege. For the applicants it was argued that the DPP had no power to give legal advice to the Australian Tax Office and that therefore the documents could not be covered by legal professional privilege. The Full Federal Court held that having regard to the functions of the DPP it would be usual and expected for legal advice to be given in aid of those functions to an authority of the Commonwealth notwithstanding that the authority was not a party to proceedings in circumstances specified in s9(11) of the DPP Act. Certain dicta of the Full Court indicated that the DPP does not have power to give such legal advice unless proceedings have been instituted. In other words the Full Court doubted the statutory ability of the DPP to provide legal advice to investigators if there were no legal proceedings on foot. The Court did not however express a final view in relation to that matter. Notwithstanding that the comments were only dicta, the DPP has obtained the advice of senior counsel to the effect that the Full Court has misconstrued the operation of s9(11) of the DPP Act. Accordingly we continue to operate on the basis that there is power to give legal advice during the course of investigations and indeed that such advice would be expected. The Attorney-General's Directions clearly contemplate such involvement by the DPP in the investigative process.
The DPP's experience in relation to many of the corporate investigations arising out of the so-called "excesses of the '80's is that there are large number of documents which disclose many possible offences. In some cases the ASC, as corporate regulator will wish to pursue certain offences because it perceives a need to send a message to the market by prosecuting perpetrators for particular activities. However in these large investigations there can be a tendency to refer multiple offences to the DPP. It is vital that the DPP considers the strategy for prosecuting those offences at an early stage. While the AFP, ASC or NCA are the specialist investigators, the DPP is the specialist prosecutor. The DPP operates under a set of published guidelines known as the Prosecution Policy of the Commonwealth. In very basic terms the prosecution policy requires that there be a reasonable prospect of conviction and that the public interest requires a prosecution in the circumstances of the case. If the DPP is to be the ultimate decision maker as to whether a prosecution proceeds it is common sense to involve the DPP in the investigation process if only to ensure that the investigator is not on the completely wrong tack. However the DPP should be able to do more than that and assist in focusing investigations. At an early stage in the investigation the DPP is available to assist the ASC to identify those matters that are unlikely to result in prosecution and those where the ASC should concentrate their investigation. It will not be a one way process. The investigators will be able to indicate why they believe certain aspects ought to be prosecuted. Hopefully there will be agreement as to the particular focus on the matter. Also manageable chunks of the investigation will be identified for prosecution. Specific instances of alleged criminality can be particularised and an investigation plan centred around those particular allegations. Early consultation will help avoid unfocused investigations which result in either wasted effort or further substantial effort after the investigators believe they have concluded their work. The idea of focusing the investigation is of course not new. It is done by investigators anyway. The real benefit of the DPP's involvement in this process will be assisting investigators to ascertain what is likely to be provable in court. The dangers in not focussing a case and conducting a manageable prosecution are all too obvious. R v Wilson and Grimwade (CCA, Victoria, 22 April 1994) is a stark account of a trial that became "unmanageable". Of course even before that decision committees, royal commissions and the courts had noted the strain put upon the judicial system by large and lengthy trials. Thus in 1986 in his Fraud Trials Committee Report Lord Roskill painted a gloomy picture of the ability of the legal system to bring the perpetrators of serious frauds expeditiously and effectively to book. I have spoken about the procedures for the prosecution of complex crime elsewhere (see 28th Australian Legal Convention Sept 1993) and I will not repeat those observations here. Suffice it to say that as prosecutors we must recognise the need for focussed and manageable prosecutions, limited indictments, timely disclosure and the need to identify the issues. R v Wilson and Grimwade was a retrial, the first trial having been aborted after 33 weeks when it was almost concluded. Wilson and Grimwade were charged with 19 counts of fraudulently inducing the investment of moneys contrary to s.191 of the Crimes Act 1958 (Vic). The conduct complained of occurred in 1981. The trial commenced in January 1991 and the jury returned its verdict on 17 December 1992. The Crown case occupied the whole of 1991. This included reading 2.780 pages of transcript from the first trial which itself took 31 days over a 10 week period. The jury were excused between 3 December and 14 January. The trial had became "deplorably fragmented". During the 52 week period from 12 August 1991 to 7 August 1992, the court sat on 85 and one half scattered days (the equivalent of only 17 five day weeks). Between January and July 1992 the jury only heard 36 days of evidence and 11 days of part of the Crown's closing address. Six and half months had elapsed from the close of all the evidence until the jury retired to consider its verdict. 39% of the time lost by the jury was attributable to matters personal to them. It was hardly surprising that the Court of Criminal Appeal allowed the appeal. In the appeal the Victorian Crown was greatly critical of what was said to be a campaign by Wilson and his counsel designed to prolong the trial with a view to forestalling a verdict. The Court of Criminal Appeal indicated that it regarded some of the conduct of Wilson's defence to be irresponsible. The court also indicated that there was no doubt that that it unreasonably consumed time which all too often was evidently regarded as of no object. The court regarded the Crown's argument as tantamount to an allegation of criminal conduct on the part of Wilson and his counsel. The court noted that: ill advised and unjustifiable though much of conduct of counsel for Wilson was, we are not prepared to conclude that it amounted to a deliberate attempt to sabotage the retrial. A high burden of proof rests on the Crown in order to make good such a claim and we are of the opinion that it has not been discharged. In overturning the convictions in Grimwade and Wilson the Court of Criminal Appeal held that the course that the -trial took did not fit an essential purpose for which a criminal trial is by definition designed: that is to enable it safely to be seen that the jury has given a true verdict reached upon a proper consideration of the evidence. The considerations that led to the overturning of the convictions in the Grimwade and Wilson case must be conceded to be exceptional. However it is clear that if the prosecution case is conducted in a manner that fails to meet the essential purpose of a criminal trial then conduct of defence counsel will not prevent a court from overturning a subsequent conviction. It is arguable that some defence counsel have stretched their ethical obligations to the limit in assisting defendants who perceive it as in their best interests to delay and obfuscate the case against them. Given the high standard imposed upon the Crown to demonstrate a deliberate attempt to sabotage a trial it is unlikely that such an allegation will ever be proved to the court's satisfaction. In such cases it is inconceivable that a court will condone such action. But the possibility remains that delay and obfuscation will produce a result that the trial does not fit the essential purpose for which it is designed. In such a case a court will no alternative but to overturn any conviction resulting from the trial. While a re-trial may be ordered that will not account for the loss of resources and effort that has occurred. The Court concluded in these terms: Before parting with the case we wish to say that our decision is in no respect to be understood as providing a passport to those who would seek to benefit from a wayward criminal trial. This is case is in our experience unique. We hope and expect that no other will approach it in its abnormal characteristics... A firm and resolute management of the trial, and a strong co-operative effort by judge and counsel, were imperative if it was to continue as a proper trial. .....Counsel in future, faced with a long and complex trial, criminal or civil, will co-operate with their utmost exertion to avoid a mockery of the system of justice. If not, they must expect to receive, with the sanction of this court, appropriate regimentation by the judge - perhaps of a kind not hitherto experienced - designed to avoid the unhappy result that befell this trial. I should mention in this regard the case of R v Higgins (CCA, Victoria, 2 March 1994). That case also involved a lengthy trial and indeed was the second longest trial in Victorian history, exceeded only by the trial of Grimwade and Wilson. The whole of the evidence called at the trial occupied 166 days. Had the trial proceeded without the countless interruptions, it would only have occupied 88 days. 99 days (five months) were lost to illness, birth, death and holidays. There was a three month gap between the close of the evidence and the retirement of the jury. The trial extended over 17 months and final addresses and the judge's summing up occupied over three months. One ground of appeal from conviction related to the length of the trial and it was put that the trial was so long that, notwithstanding that the jury's recollection of the evidence given by individual witnesses might be adequately refreshed by their own notes, the final addresses and the summing up, it was not possible for the jury to retain in their own minds for the very long periods in question the impression which individual witnesses had made upon them and so was not possible to assess the credibility of those witnesses. The defendant also pointed to the long gaps in the trial, the late production of documents, the overall length of the trial, the great volume of evidence and the multiplicity of minor questions of fact which arose throughout the trial in support of the argument that there was a real danger the jury had failed to perform its task. The Court of Criminal Appeal rejected this argument. However it was important that the court felt the issues involved were not so intrinsically complex so as to warrant the assumption that they were beyond the capabilities of the jury. The court noted that the Trial Judge had referred to the jury as impressive, intelligent, conscientious, enthusiastic and attentive. Further there was only one accused and the distillation of the relevant issues was considered to be straightforward, not involving concepts requiring special knowledge or expertise. The decision is scathing in relation to the conduct of the matter. The court noted that there were 10,000 pages of transcript of argument relating to the period between when the trial began and the calling of the first witness. One witnesses' cross examination generated 3,700 pages of transcript. However rather than recite the "melancholy" statistics of the trial it is important to note the affirmation by the court of the necessity of a strong trial judge and the commitment of a court of appeal to supporting rulings that control the proceedings. The court said: The powers which trial judges have always had, independently of statute, of intervening so as to prevent the waste of time have been too sparingly exercised in the past. Judges may expect the full support of this Court when they exercise these powers, or the new powers conferred by the [Crimes (Criminal Trials) Act 1993].
Most of the large white collar cases prosecuted by the DPP are "document" cases. Sometimes the company's documents are genuine and reveal the truth of what occurred. Sometimes the documents are false, misleading or purposely cryptic to give a false impression of what actually happened. In many large cases often the only way to truly tell the story is to have an insider speak. This is particularly true of large corporate fraud cases. Sometimes the paper trail does not tell the entire story and it requires an insider to give the full flavour of what has happened. When this happens the results are usually spectacular. Corporate crooks may gain a degree of satisfaction if they believe that all the prosecution has are documents. The same person will not be as sanguine if he or she knows that a co-offender has indicated their willingness to assist the prosecution. The DPP has statutory power to indemnify witnesses and accepts that inevitably certain cases will require people to be indemnified. However, as a matter of principle we do not believe investigators should commence with the view that the preferred or only way to get the evidence will be through an indemnified witness. Often that is not the case and in the past cases have been presented to us where the investigation strategy has revolved almost solely around an indemnified witness. In effect we have been presented with a fait accompli in circumstances where other means could have been used to secure conviction of the principal offender. From the DPP's point of view this is not a desirable outcome. The general policy of the DPP is to use indemnity as a tool of last resort and that in those cases where an indemnified person is to be used it is preferable to have them first plead and to be sentenced in respect to a charge which represents their criminality. The issue is particularly vexed in the corporate prosecution area where without the indemnified witness it will be difficult to present the case in an understandable manner. However, that witness may be a right hand person and intimately involved in the alleged offence. The difficulty in weighing the competing public interests in these cases should not be underestimated. Further because the decision to indemnify is final from our point of view we must be sure we have a true appreciation of the witness' role in the corporate wrongdoing. The DPP has not and will not renege on an indemnity. The qualification I put on this however is that if the indemnified witness does not give truthful evidence then prosecution for perjury will follow.
You will be aware that the ASC and DPP have progressed some way down the track in using computers to aid presentation of our cases in court. This is an expensive process both in terms of the hardware and software required to present the cases and also in the amount of work needed to be done to get material into an acceptable format. In respect of large cases it is necessary to have computer aided registries of documents, extensive cross referencing and collating of documents and extensive analysis of the documents. This requires a compatibility between the systems of the investigators and the prosecutors. Generally these issues are being considered at a national level between Commonwealth agencies. There are clear advantages in being able to use new technologies in presenting large complex fraud cases. These have been discussed in the Greenleaf and Mowbray report (Information Technology in Complex Criminal Trials, Graham Greenleaf and Andrew Mowbray, 1993) and include aiding the understanding of the jury, the judge and even the defence. They also have the potential to save both investigation time and preparation time in court. Generally the reception of these technological aids has been positive. On most occasions where they have been utilised the feedback from the court and our own assessment has been positive. In some cases the benefit of using the system and imaged documents has been obvious to all and the defence have accepted and welcomed the innovations. However, it would be an overstatement to suggest that this has been the reaction of all defence counsel. Because such aids have the potential to assist understanding and promote comprehension of complex and difficult issues they have not always been received with open arms by the defence. Indeed the limitations and restrictions attempted to be imposed by some counsel would deny the system any worthwhile use. Ultimately the court system will have to come to grips with these technologies and devices for presenting cases and the reception to date has, on the whole been encouraging. We intend to persist in developing such systems for use in court and to press for their adoption as a tool in the litigation of large and complex cases.
Having indicated those things that the DPP is prepared to do I should say something about the things we do not want to do. We do not believe that the DPP should be the primary interviewing officer for major witnesses. This is true for at least those important witnesses in the first instance. While the DPP is prepared to advise the investigators as to the areas to be covered or even questions to be asked we regard this primarily as an investigator's function rather than a prosecutor's function. Of course in some cases it will be necessary for the DPP to proof the witnesses or speak to them personally before the case. This is, however, a very different exercise from primary contact with the witness. Also traditionally the DPP does not become involved in the execution of search warrants although we are often involved in settling the information for and the form of the warrants. On some occasions there has been DPP involvement in relation to the execution of search warrants on solicitors' premises or where it is clear that issues of legal professional privilege will result in challenges to the seizure of documents. Normally, however, such tasks are for the investigators with appropriate advice from the DPP beforehand. While I believe it appropriate that the DPP give advice in large matters and that early contact between the investigator and DPP is advisable we have not yet moved to the US style District Attorney type role. We do not rush to scenes of crime to give directions to investigators as to what they should consider or what avenues they should pursue. The decision to investigate is still primarily a matter for the investigative agency. Further the decision to progress an investigation is a matter for the investigative agency. At some point in that process, however, it may be come clear that there is an offence and that prosecution is warranted. In those circumstances the DPP should be involved.
It is appropriate that I address the issue of disclosure in large corporate crime cases. At the outset I should observe that this issue is being considered within my Office and a policy is being formulated. There are however a number of points and general propositions that can be usefully discussed. The criminal system has no equivalent to the civil system's mutual affidavits of discovery and the subsequent processes of production and inspection before trial (Clarkson v DPP  VR 745, Sobh v Victorian Police Commissioner (1993) 65 A Crim R 466). One starts from the general proposition that the Crown is immune from general discovery. Indeed normally such applications for general discovery will be regarded as fishing expeditions and treated accordingly. In R v Higgins the Victorian Court of Criminal Appeal recently confirmed that the filing of wide subpoenas seeking what is in effect discovery of Crown documents is to be deplored. There may however be situations where subpoena's for the prosecutor's brief will be upheld if there is a "legitimate forensic purpose" (Maddison v Goldrick (1976) 1 NSWLR 651) and the courts may on occasions be more lenient in their approach to whether there is such a purpose. The High Court's decisions in Lawless (1979) 142 CLR 659 and Apostilides (1984) 154 CLR 563 have been said to impose ethical rather than legal duties of disclosure, are fairly minimalist in extent and leave the critical decisions to the Crown. The obligation to make disclosure is but part of the fundamental duty of the prosecution to ensure the Crown case is presented with fairness to the accused for the purpose of establishing the truth. Of course the obligation may be modified by agreement between the accused and the Crown providing that such agreement is freely entered into on an informed basis (Whitehorn v R (1983) 152 CLR 657 at page 665 per Deane J). English authority has tended to develop stricter requirements of the prosecutor than Australian authority. Perhaps the present leading case is that of R v Ward (1993) 96 Cr App R 1 where the court commented extensively on the prosecution's duty of disclosure. In the UK the Attorney-General's Guidelines 74 Cr App R 302 set out guidelines on the disclosure of information to the defence in cases to be tried on indictment. In Ward the court indicated that the law had moved beyond those guidelines and adopted the words of Laughton LJ in Hennessy (1979) 68 Cr App R 419, 426 where he said that the courts must: Keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution. The court went on to say that: We would emphasise that 'all relevant evidence of help to the accused' is not limited to evidence which will obviously advance the accused's case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led. We believe that in practice the importance of disclosing unused material has been much more clearly recognised by prosecutors since the publication of the Attorney-General's Guidelines. (emphasis added). In Ward the issue related to the disclosure of scientific evidence rather than a complex documentary case. However, the decision has been followed in Australia. In R v Lun, 4 December 1992 (unreported) the New South Wales Court of Criminal Appeal treated the exposition of the prosecution's duties in Ward as given. Badgery Parker J in the lower court had applied those principles. In Higgins the Court of Criminal Appeal referred to the decision in Ward but failed to follow the wide implications contained therein. The court noted the application of the duty of fairness imposes a heavy responsibility upon prosecutors and one which requires of them a considerable degree of objectivity. The duty imposed is both a lonely one and a heavy one. The court also noted that while in an appropriate case the trial judge may exercise certain powers with respect to the production of documents the decision of the prosecutor cannot be passed to the judge nor is it capable of judicial review. The consequences of this is that prosecutors may often exercise judgement in a case in which they are advocates. Further the relevance of particular material may only become relevant at a late stage or during the course of the hearing. In any given case therefore, as the court noted, the trial depends very much on the prosecutor's sense of fairness, a confidence that underpins the law's continuing rejection of any duty of discovery on the part of the Crown. In the event the prosecution fails to comply with the duties imposed upon it the defendant's remedy is either to seek a stay of those proceedings either temporary or permanent, or if there has been a conviction to apply to quash that conviction on the grounds of fairness. In my experience the courts have been receptive to applications to stay proceedings on the application of a defendant on the basis he has not had access to material that may assist his or her case. However, it is not inconceivable that the law will move to the position advocated in Ward. What then the position? For the purposes of our discussion the material gathered during an investigation may be divided into two parts. The first part will consist of material gathered during the course of an investigation which is either relied upon by the prosecution or obviously material to the case and which should be expressly disclosed in accordance with the above principles set out in the decisions of the High Court. Thus clearly the prosecution is obliged to disclose to the defence any prior statements made by a witness where such statement is in material conflict with any evidence given during the court proceedings or any later statements (compare R v Berry  2 AC 364). The second part relates to that material which is obtained during the course of an ASC investigation and does not fall within that category. Of course it may well be difficult for the prosecution to determine into which category certain material may fall simply because the prosecution does not know which line the defence will run nor what the defence regards as material. I have referred above to the duties of the prosecution. Clearly these duties do fall upon the DPP as the body responsible for prosecuting Commonwealth criminal offences. However, if the decision in Ward as to the extent of disclosure is followed, a court is unlikely to draw a distinction between different Commonwealth organisations involved in the prosecution when considering the obligation to make disclosure. In both Ward and Lun the courts treated both the investigative body and the prosecuting body as the "prosecution" for the purpose of making adequate disclosure. It would follow that in this context the courts will treat the ASC and the DPP as the "prosecution" for the purposes of complying with these doctrines. In large investigations the prosecution may have spent months or even years in sifting through mountains of documents received in the course of an investigation. If Ward is followed it will be necessary to allow the defence the opportunity to view all those documents for the purpose of presenting the defence case. In the very large cases this will possibly involve teams of lawyers and great expense. Only the very wealthy defendant will be able to afford such a process and it is likely to take time. There is the potential to delay the hearing of the matter while the inspection takes place and in the extreme case a potential to abuse the system. On a practical level in the majority of the cases in which such inspection has been allowed it has been our experience that where the prosecution has indicated that it is willing to "open the doors" to the defence there has been a disinclination by the defendant and his representatives in most cases to spend time rifling through investigation documents. The reasoning appears to be that if the prosecution is willing to allow access then there is likely to be little of benefit to the accused. It may also be possible to utilise the benefits of improvements in technology to assist in the practicalities of the discovery process. Entire investigations may be imaged onto compact disks and made available to defence counsel. This also has the advantage of allowing searches of the material that would not be possible if access were only given to hard copy material. It must be conceded that imaging large amounts of paper obtained during the course of an investigation is expensive, however, it is an option that the ASC and the DPP are actively considering and the task of imaging an entire investigation has been undertaken in a number of large matters.
Criminal prosecution is still the most effective deterrent against certain types of conduct. The threat of imprisonment and/or the loss of any illegal gains together with pecuniary penalties or other such orders is the most effective weapon we have against major corporate fraud. However, because such investigations and prosecutions are both expensive and resource intensive there is no doubt that we must become smarter and more efficient in our operations. That involves not only considering new ways to present these cases but also ensuring that the investigation process is as efficient and productive as possible. It involves making sure that we identify manageable and compact allegations and present them in concise, clear fashions. It means that some criminality may not be prosecuted providing that an adequate representative number of counts can be laid and successfully prosecuted in order that an appropriate sentence can be imposed. Recent press reports indicate that white-collar fraud costs the Australian economy approximately $14 billion per annum. There is no doubt that the challenge is there before us.