AFP v Cochrane

[2008] QMC 1

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

AFP & Anor v Cochrane [2008] QMC 1

PARTIES:

AUSTRALIAN FEDERAL POLICE

(applicant/ prosecution)

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(applicant)

v

JUSTIN WADE COCHRANE

(respondent/ defendant)

FILE NO/S:

MAG164449/07(6)

DIVISION:

Magistrates Court

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

14 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2008

MAGISTRATE:

Previtera T

ORDER:

Decline to order production by the Commonwealth Director of Public Prosecutions of the documents.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PRODUCTION OF SUMMONED DOCUMENTS – does legal professional privilege apply to the Commonwealth Director of Public Prosecutions

COUNSEL:

Power appeared for the applicant/ prosecution

J M Horton appeared for the applicant

Cuthbert appeared for the respondent/ defendant

SOLICITORS:

Australian Government Solicitor for applicant

The applicant appeared on their own behalf

Cavanagh Lawyers for defendant

[1]      In this matter, the Commonwealth Director of Public Prosecutions (CDPP) seeks to resist the production of certain documents in its possession, sought pursuant to a summons issued at the direction of the defendant’s solicitors on the 18^th February 2008.

[2]      Production of the documents is resisted by the CDPP on the grounds of;-

1.          lack of relevance;

2.          lack of any legitimate forensic purpose to be served from them; and

3.          legal professional privilege.

[3]      The background to the matter is as follows:-

[4]      1. The defendant is contesting a charge that on or about the 18^th of August, 2007 at Brisbane he entered an air-side area of a security controlled airport contrary to Regulation 3.17(2) of the Aviation Transport Security Regulations 2005.

[5]      2. The prosecuting legal officer Ms. Tkackzyk confirmed to defence Counsel Ms. Cuthbert on 13^th February 2008 that all Crown material had been disclosed. A summary hearing commenced on the 14^th of February 2008.

[6]      3. During cross examination of the first Crown witness Ian Rossall (a Customs Officer at Brisbane International Airport in Air-Border Security) it was revealed that a supplementary statement of Mr. Rossall, dated 18^th January 2008 and signed during a conference on 13^th February 2008, had not been disclosed. (The CDPP had indicated to the defence on 16^th January 2008 that a second statement of Mr. Rossall providing further details in relation to the precise location of the defendant at the time of the offence, would be provided; but was not).

[7]      4. This second statement did indeed contain a specific indication by Mr. Rossall, in metres, of the defendant’s location relative to the main fence of the airside security zone; in comparison to the vague description in the earlier disclosed statement dated 18^th August 2007.

[8]      5. The live issue in the hearing is the location of “the actual perimeters of the security area”[1] of the Brisbane Airport, “there being a number of fences at different points and angles on the bridge over Boggy Creek, the banks of the creek and the land adjacent to the banks.”[2]

[9]      6. A licensed surveyor, Mr.…