BMS v Police
[2011] QMC 49
•2 December 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
BMS v Police [2011] QMC 49
PARTIES:
BMS
(applicant)
v
POLICE
(respondent)
FILE NO/S:
MAG-24832/11(2)
DIVISION:
Magistrates Court
PROCEEDING:
Application to cross-examine witnesses in committal proceedings
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
2 December 2011
DELIVERED AT:
Brisbane
HEARING DATE:
1 November 2011
MAGISTRATE:
Callaghan CJ
ORDER:
The application is granted.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons why in the interest of justice – statement of accomplices – possible inducements - conversations with police prior to making statements.
Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:
P Smith for the applicant
Clare (sergeant) for the respondent
SOLICITORS:
Suthers Lawyers for the applicant
Queensland Police Service for respondent
BMS, the defendant, is relevantly charged with one count of trafficking in methyl amphetamine between 31 December 2006 and 10 February 2011. A controlled operation into this alleged activity commenced on 1 June 2010 and culminated with search warrants been executed upon the premises of the defendant and other persons on 9 February 2011.
The evidence alleging that BMS carried on the business of unlawfully trafficking in methylamphetamine between those dates essentially comes from his admissions in a Record of Interview dated 11 February 2011, various telephone intercepts and the evidence of four alleged accomplices.
This is an application by the defendant pursuant to s 83A(5AA) of the Justices Act 1886 (“the Act”) for a direction that Detective Sergeants Donaldson, Fadian and Darney together with the witnesses WGA, SHJ, MDT and MDG be made available for cross-examination on the statements provided by them to the police contained within the brief of evidence.
The court must not give such a direction unless satisfied there are substantial reasons why in the interests of justice that the maker of the statement should attend and give oral evidence or be made available for cross-examination.[1]
[1] See s 110B(1) of the Act.
The onus of satisfying the court as to whether there are substantial reasons why in the interests of justice the maker of the statement should attend to give oral evidence is on the defendant.
Consent
At the commencement of the oral hearing into this application the Prosecution and Defence advised the court that an agreement had been reached in respect of some of the police witnesses’ evidence been subject to cross-examination as follows:-
“The parties agree that Officers Donaldson and Fadian may be cross-examined by the Defence (subject to any valid legal grounds on which to refuse to answer questions including under s 25A of the ACC Act[2]):
(a) The circumstances and timings of (the defendant’s) movements with police on 9, 10 and 11 February 2011;
[2]Australian Crime Commission Act 2002
(b) Conversations the defendant had with the police on 11 February 2011.”
Pursuant to s 110A(5) and s 110B(5) such agreement removes that part of the application from the court.
Further during the course of the hearing Defence counsel indicated that the Defence no longer wished to cross-examine WGA in respect of methylamphetamine allegedly found in his room during the police search of 9 February 2011 nor did the Defence with to cross-examine him or the witnesses SHJ, MDT or MDG about the extent of their own drug dealings.
The application which therefore stands to be decided is shortly put in these terms:
Cross-examination of the witnesses WGA, SH, MDT and MDG concerning the circumstances of the taking of their statements and any offers made to them or of inducement in order to give the statements either by promise of applications for immunity against prosecution or bail not being opposed in return for cooperation and cross-examination concerning the inducement of a lesser sentence pursuant to the provisions of s 13A of the Penalties and Sentences Act 1992 in return for the statement and cross-examination of the Police Officers who took those statements.
Substantial Reasons, Why, in the Interests of Justice
That phrase was placed into Queensland Legislation by the Parliament as specifically it had been used for some 20 years in New South Wales with gave rise to authority on the meaning of the phrase.
Studdert J in Hanna v Kearney and Another[3] set out some factors that may be relevant to the making of these applications but emphasised that he was not intending to state each and every factor. His Honour said:-
[3] [1998] NSW SC 1026 (28 May 1998)
” 1.Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
2. There can be no rigid or exhaustive definition of what constitutes "substantial reasons" and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute "substantial reasons". It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.
3. It would be wrong to limit "substantial reasons" to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally it would be wrong to limit "substantial reasons" to situations where cross-examination is likely to substantially undermine the credit of an important witness. "Substantial reasons" may well be found elsewhere.
4. On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive.
5. "Substantial reason" may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases.”
There was no appeal from that decision. Prior to His Honour considering that decision there had been a single Judge decision in Losurdo v Director of Public Prosecutions (10 March 1998) by Hidden J which judgment was appealed in Director Public Prosecutions v Losurdo and Another[4]. That judgment of the Court of Appeal was delivered after that of Studdert J. In Losurdo the Court of Appeal agreed the five points made by Studdert in Hanna v Kearney above but added[5] “There is nothing to suggest that the various dicta about the purposes of Committal Proceedings to which reference is being made has been overtaken by the legislation. Indeed, what the Attorney-General said in the course of his second reading speech seems to make it clear that the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of Committal Proceedings that there would rarely be more than a “paper Committal”. This is born out, not only by his general statements but by some of the examples which he gave in the course of his remarks.”
[4] (1998) 44 NSW LR 618.
[5] At page 631.
Their Honours also said[6] that whilst the guidelines set out in the judgment of Studdert J in Hanna may be helpful, the ultimate task is to apply the section in the context of the facts and circumstances of the case at hand. Their Honours also reviewed Chid’s case[7] and Grassby’s cases[8] as to the importance and purpose of committal proceedings, which remain as important post these amendments as they were prior to the same.
This Application.
[6] At page 632.
[7]Carlin v Thawat Chid Khunthid (1985) 4 NSW LR 182.
[8] R v Grassby (1988) 15 NSW LR 109 (New South Wales Court of Criminal Appeal) and Grassby v R (1998) 168 CLR 1 (The High Court).
The Issue
The issue to be determined in this application is whether there are there substantial reasons in the interests of justice to allow cross-examination of the police officers and the four alleged accomplices concerning the taking of their statements.
On 9 February 2011 police executed search warrants on the premises occupied by persons allegedly involved in the trafficking with the defendant including these four alleged accomplices, WGA, SHJ, MDT and MDG. Apparently all were arrested on charges concerning their involvement with the defendant. It was said by the prosecution and accepted by the defence that WGA, SHJ and MDG have all been committed for sentence and that the witness MDT is awaiting committal proceedings on charges concerning this investigation.
On 16 February 2011 WGA signed a statement alleging that the defendant had engaged in drug trafficking. That statement was taken by Detective Senior Constable Darney. In it WGA states:-
“4. The purpose of this statement is to provide a proof of evidence so that I may be considered for an indemnity against prosecution or a ‘use/derivative use undertaking’. I have made this statement voluntarily and on the understanding that nothing contained in this statement will be used against me in any court proceedings other than in proceedings in respect of the falsity of any information provided by me. I understand that to be considered for an indemnity against prosecution or a ‘use/derivative use undertaking’ the content of this statement must, to best of my knowledge and belief, fully and honestly disclose all of the material facts within my knowledge.
5. I understand that whether I receive an indemnity against prosecution or a ‘use/derivative use undertaking’ is the decision of the Attorney-General of Queensland alone, and that this decision is made on the basis of pre-established guidelines for the granting of indemnities in the State of Queensland. I have not been promised an indemnity or a ‘use/derivative use undertaking’ by any person involved in the investigation of this matter.
6. Before signing this statement I have had the opportunity to seek legal advice.
7. This statement is true and correct to the best of knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything, which I know to be false or do not believe to be true.”
WGA then goes on to set out his involvement in drug supply and the involvement to his knowledge of the defendant in the supply and trafficking of drugs.
There is nothing in the statement of WGA nor in the statement of Detective Senior Constable Darney who is named as the police officer taking the statement of WGA as to what conversations took place between them which lead to WGA giving a statement to Darney the purpose of which was to provide a proof of evidence so that WGA may be considered for an indemnity against prosecution or a “use/derivative use undertaking”.
The statement of Robert Bruce Darney is a three paragraph statement, stating in the first paragraph his rank and station, in the second paragraph the mere fact that on 16 February 2011 he completed a witness statement with WGA and in the third paragraph that the completion of that statement was the extent of his involvement in the matter.
On 23 February 2011 MDG signed a statement alleging that the defendant had engaged in drug trafficking. That statement was taken by Detective Sergeant Glen Donaldson. In it MDG states:-
“3. This statement made by me accurately sets out the evidence which I will be prepared, if necessary, to give in court as a witness.
4. Before saying this statement I have had the opportunity to seek legal advice.
5. This statement is true and correct to best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything, which I know to be false or do not believe to be true.”
MDG then goes on to outline his own involvement and the involvement of the defendant and others in drug trafficking.
On 1 March 2011 SHJ signed a statement alleging that the defendant had engaged in drug trafficking. That statement was taken by Detective Sergeant Donaldson. In it SHJ states:-
“3. This statement made by me accurately sets out the evidence which I will be prepared, if necessary, to give in court as a witness.
6. Before saying this statement I have had the opportunity to seek legal advice.
7. This statement is true and correct to best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything, which I know to be false or do not believe to be true.”
In it SHJ then goes on to set out his involvement and the involvement of the defendant in drug trafficking.
Detective Sergeant Donaldson has provided a statement dated 28 March 2011. It is an extensive statement, the length of which is 39 pages. He is the principle investigating officer and case officer for operation Ice Landsman, an approved controlled operation in which evidence against the defendant and these lay witnesses was collected.
He says that he met MDG on 23 February 2011, which is the day upon which he took his statement. He does not say anything about what discussions he had with MDG in relation to the provision of the statement.
Also in his statement, Detective Sergeant Donaldson says that on 1 March 2011 he met the witness SHJ at police headquarters and subsequently obtained a witness statement from him. In it he does not say what conversation he had with the witness SHJ in the lead up to the taking of his statement.
On 23 February 2011 MDT signed a statement alleging that the defendant had been engaged in drug trafficking. That statement was taken by Detective Sergeant Fadian. In it MDT states:-
“3. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness.
4. Before saying this statement I have had the opportunity to seek legal advice.
5. This statement is true and correct to best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.”
Detective Sergeant Fadian simply says in his statement that on 23 February 2011 he obtained a statement from the witness MDT. He does not talk of any conversations which occurred prior to the giving of that statement.
Search Warrants for the addresses of each of the witnesses WGA, SHJ, MDT and MDG among others were obtained by Sergeant Donaldson. On Wednesday 9 February he says he handed those warrants to investigating officers and conducted a briefing in relation to the investigation and that he is aware that the warrants were all executed at approximately 6 am on 9 February 2011. In those circumstances I draw the inference that each of those accused were arrested for questioning in relation to their own drug trafficking activities.
Some weeks then elapsed before they first start to give statements with the witness WGA giving his statement on 16 February 2011, the witnesses MDT and MDG giving their statements on 23 February and witness SHJ giving his statement on 1 March 2011.
WGA, in paragraph 132 of his statement states that on 9 February 2011, when interviewed, he offered no comment in relation to a number of questions asked of him about his involvement and did not fully state his involvement in the matter on that day. It is reasonable to draw the inference that something has changed between 9 February 2011 when he did not fully state his involvement and the 16 February 2011 when he provided this lengthy and detailed statement.
The witness MDT does not say in his statement as to what he said to the police as to the extent of his involvement on 9 February when initially he would have been interviewed.
The witness MDG does not say in his statement as to what went on with him on 9 February 2011 when the warrant was executed. He does say that when he “was raided” on the Wednesday morning he still had seven and a half ounces of speed which he flushed down the toilet after the police left. From this I draw the inference that he did not advise the police as to the totality of his involvement in drug trafficking on that day, because, had he done so, he would have been arrested and taken away to be charged.
The witness SHJ does not state in his statement as to what he said to the police as to the extent of his involvement on 9 February 2011 except to say that he was pulled over by the police after leaving another’s house sometime after 2 am. He says that he was taken to the watchouse and eventually released the following day. He does not state what he said to the police on 9 or 10 February 2011. From these circumstances though, I draw the inference that he did not detail the extent of his involvement.
The prosecution argues that as all state that they were cautioned as to their right to remain silent and that they state they had an opportunity to seek legal advice, these two factors sufficiently answer the submissions by the defence that there are substantial reasons why in the interests of justice the witnesses ought to attend to be cross-examined.
In my view they do not sufficiently answer that.
The mere opportunity of a potential witness to get legal advice does not address the potential for offers of inducement to provide statements against co-accused. Such inducements could have been in the nature of reduced number or severity of charges, of not objecting to defence bail applications on lesser conditions then what would normally be expected, of providing “letters of comfort” to the court for the purposes of sentencing. Having the mere opportunity of seeking legal advice does not necessarily mean the witnesses sought and obtained legal advice.
It is plainly obvious that the witness WGA had discussions with a police officer or a number of police officers concerning an approach which was to be made to the Attorney-General of Queensland in order to seek an indemnity against prosecution on behalf of the witness WGA. It is reasonable to infer that an inducement may have been held out to WGA to provide his lengthy statement which was the first of the statements obtained from these alleged accomplices. His position from not providing his involvement to the full extent on 9 February 2011 to providing this lengthy and detailed statement on 16 February 2011 fundamentally changed.
It is reasonable to infer that the positions of each of the other witnesses also fundamentally changed from when they were first approached by the police on 9 or 10 February 2011 to when they gave their statements on 23 February 2011 in two of their cases and in the case of SHJ on 1 March 2011.
For the defendant to understand the full case against him he must be armed with the knowledge of what transpired to induce these fundamental changes. It may well have been something as simple as an opinion of a police officer as to what benefit on sentence one or all of the defendants might get pursuant to s 13A of the Penalties and Sentences Act 1992. A jury would be entitled to know these things to assess the credibility of the witness should their evidence be admitted. Prior to that, the Trial Judge would need to be possessed of this knowledge in order to determine whether or not the statement had been contaminated by inducements.
These are substantial reasons why in the interests of justice both the officers taking the statements and the witnesses themselves should be cross-examined at the committal proceedings as to the conversations which took place between them and police officers (and not necessarily the precise police officer taking the statement) prior to the giving of each of their statements.
Order
The Application is granted.
I direct that the prosecution call:
1. Detective Sergeant Donaldson;
2. Detective Sergeant Fadian;
3. Detective Senior Constable Darney;
4. Lay witness WGA;
5. Lay witness MDT;
6. Lay witness MDG;
7. Lay witness SHJ;
At the committal proceedings in this matter to be made available to be cross-examined on their written statements restricted to the conversations each of the lay witnesses had with police officers prior to the making of the lay witnesses statements.
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