Bugg, Damian --- "A remarkable year for the DPP" [2001] AUFPPlatypus 9; (2001) 70 Platypus: Journal of the Australian Federal Police, Article 9

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A remarkable year for the DPP

In the Commonwealth Director of Public Prosecutions (CDPP) Annual Report 1999 — 2000, Director Damian Bugg QC reflects on a remarkable year. Several important decisions were made in the courts, new laws were made, and the CDPP expanded its operations to meet new challenges. Reproduced here is Mr Bugg's Director's Overview, and a significant case which was included in the Annual Report.

This is my first Annual Report as Commonwealth Director of Public Prosecutions. I commenced duties on August 2, 1999 part way through the reporting period. Peter Walshe, whose substantive position is First Deputy Director, acted as Director for the first part of the year. The Office is indeed fortunate to have a person of Peter's experience and ability available to act as Director and my thanks go to him for his work during that time and the remainder of the year.

Before coming to the Commonwealth, I was the DPP for Tasmania for 13 years. The duties of the Commonwealth position are similar, although on a larger and geographically wider scale. I am now responsible for the work of over 400 lawyers and support staff across eight major offices and two sub-offices.

The range of Commonwealth prosecution work is wider than is sometimes thought. The mainstay of the work involves drug, fraud and corporate prosecutions but, as will be seen elsewhere in this Report, the remainder of the cases cover a range of topics which defy classification. There is also the criminal assets work, the extradition and mutual assistance work and the support and assistance which we provide to the investigative agencies. The work is always challenging. I have yet to find any of it dull.

The Office had, at the time of my arrival, been established and operating successfully for 15 years. I am pleased to say my impressions of the Office, obtained through my contact with it as a State Director, were that it appeared to be operated efficiently by capable and dedicated officers. Those impressions have been confirmed over the past months and I have not found any need to make major changes to the structure or operating arrangements of the Office.

The DPP, like any government agency, has to operate within a budget and that can sometimes cause stress. However, I am satisfied that the Office is working well within the applicable parameters and that we provide a high quality prosecution service that gives value to the Australian community.

On the legal front, the main development last year was undoubtedly the series of High Court decisions which cast doubt on the validity of parts of the Corporations Law and on the DPP's capacity to fully prosecute offences against it. Those developments are dealt with in detail elsewhere in this Report. The uncertainty created by those decisions has made a complex area of our practice even more difficult to manage. Unfortunately the uncertainties have not all been resolved and there are some issues which have still not been litigated. I am hopeful that the position will be clearer by this time next year because of agreements for proposed reforms which were announced at the time of finalising this Overview. Corporate prosecutions are an essential part of the regulatory process and they also form an important part of the DPP's practice and there really needs to be greater certainty about the law and about the DPP's powers in this area.

On the administrative front, after a six month trial we decided to keep a permanent office in Cairns. The trial showed that the DPP needs a full-time presence in Cairns, as well as Townsville, to properly meet work demands in north Queensland. The offices in Townsville and in Cairns both operate as part of the Brisbane establishment. The intention in setting them up was to save the cost, and wasted time, involved in sending lawyers from Brisbane to run cases in north Queensland. The experiment has proved successful, although we do not have any plans at this stage to open sub-offices elsewhere.

The Darwin Office was formally opened as a separate DPP Office in early December. The Darwin and Perth Offices have had to cope with a significant increase in work due to the sharp rise in people smuggling offences in those areas.

The DPP has also expanded the tax prosecutions branches in Sydney and Melbourne and has set up tax prosecution units in Brisbane, Adelaide, Perth and Head Office to cope with the cases that are expected to flow from the introduction of the new tax system and the GST.

In the last months of the year a great deal of work was put into the negotiations leading to the development of the next DPP Certified Agreement. The Agreement will run for the next two years and it is important to get the best outcome we can to benefit both the organisation and our staff. At the time of writing the Agreement has not been finalised, but we are approaching the final stages. My thanks go to everyone who participated in the process, on both sides of the negotiating table. It has been a long process to get to the present stage and it has not always been easy for those involved.

The challenges that lie ahead for the DPP include coming to terms with the new tax laws and with the provisions of Part 2 of the Commonwealth Criminal Code which sets out general principles of criminal responsibility. Part 2 of the Code will eventually apply to all offences under Commonwealth law. Under the current timetable, Part 2 will come into general operation in December 2001. Between now and then the DPP will have to commit time and resources to training our officers on the requirements of Part 2 and to developing the material which officers are going to need to provide advice to investigators and assistance to the magistrates and judges who are going to have to apply the Code to Commonwealth prosecutions brought in their courts. I have submitted a proposal to the Council of the Australian Institute of Judicial Administration suggesting the preparation of manuals and aids to assist judicial officers.

The DPP also has a responsibility to continue to press for reform to criminal procedure to simplify and streamline the conduct of large criminal cases. In the course of the year I had the honour to participate on a body called the Working Group on Criminal Trial Procedure which was set up by the Commonwealth Attorney-General in May 1999. The Working Group presented a report to government in September 1999. The Group made a number of recommendations which I hope will be accepted. If so, they should go some way to reducing the burden imposed on the courts and the community by complex criminal cases.

In the course of the year, DPP officers also participated in a Criminal Trial Reform Conference held under the aegis of the Australian Institute of Judicial Administration and the Standing Committees of Attorneys-General. The Conference also made a number of recommendations to government on this topic. This is an important issue for the Australian community and it is important that the DPP's work in this area continues.

The DPP does not work in a vacuum. We depend on the investigative agencies to investigate cases and refer them for prosecution and asset recovery action. It is very important for the DPP to work closely with the investigative agencies. We are, and must remain, independent of the investigators, but that does not mean that we cannot provide advice and support to them when they need it. As society and the transactions between its members become more complex, the cases being investigated are becoming more complicated. The early involvement of an experienced prosecutor can help focus an investigation and make the best use of finite resources.

I am pleased to report that the DPP has excellent operating arrangements with all Commonwealth investigative agencies, particularly the Australian Federal Police, the National Crime Authority and Australian Securities and Investments Commission, and with the other agencies we deal with on a regular basis, including the Attorney-General's Department, Centrelink and the Insolvency Trustee Service Australia. Our liaison arrangements are built upon a strong foundation of cooperation and trust.

I am also pleased to report that the DPP has continued to receive solid support from the Attorney-General, the Honourable Daryl Williams AM QC MP, and the Minister for Justice and Customs, Senator the Honourable Amanda Vanstone. Both Ministers have shown an interest in the DPP and a commitment to its continued operation as an independent prosecuting agency.

While the Office is national the bulk of my time is spent working with the staff of Head Office who have, throughout the year, provided me with invaluable assistance and support. The Head Office team is a close knit one which has established strong bonds over the time of the DPP. Tragically, during the year, Maree Ayers, a very popular and respected officer in the ACT Prosecutions Section of the Office was fatally injured in a motor vehicle accident.

The sudden and tragic loss of such a talented lawyer, popular staff member and young mother of two was a low point in the year for Head Office. My sympathy and that of all the Office goes to Maree's family. She is and will be fondly remembered by the Office.

Finally, it remains to thank all employees of the DPP, in all our offices, for their good work over the past year. At the end of the day, the person in charge of any national organisation can only be as good as their staff allow them to be. I look forward to the next four years with some optimism.

Damian Bugg QC

Director of Public Prosecutions

Wong and Leung - a case study

These defendants were each charged with being knowingly concerned in importing not less than a commercial quantity of heroin. The case involved five crates which were air shipped from Bangkok to Adelaide in 1997. The crates contained marble pedestals within which was hidden 13.4 kg of heroin. The shipment was intercepted by the AFP in Adelaide and the heroin replaced with a substituted material. The crates were delivered to the nominated addressee in Adelaide and were later tracked by the AFP to Sydney.

The crates eventually passed into the custody of a person called Law. Law transferred the pedestals to garage premises at Cherrybrook in Sydney. On November 8, 1997 the defendants travelled to the garage and helped Law break up the marble pedestals and remove the substitute material. Wong, Leung and Law were arrested upon completion of the extraction process.

Wong and Leung pleaded not guilty but were found guilty by the jury. They were each initially sentenced to 12 years imprisonment with a non-parole period of seven years. On appeal, the NSW Court of Criminal Appeal increased the sentences to 14 years imprisonment with a non-parole period of nine years.

The Court of Criminal Appeal took the opportunity to formulate non-binding guidelines for sentences in drug importation cases. The Court, following its own approach in other recent guideline cases, specified a recommended range for persons at the low end of an importing organisation. The court stated that people higher in the organisation should receive a higher penalty. The decision of the Court of Criminal Appeal has been reported at Wong (1999)108ACrimR531.

Wong and Leung have applied for special leave to appeal to the High Court to argue that the NSW Court of Criminal Appeal does not have power to formulate sentencing guidelines in respect of federal offences.