Director of Public Prosecutions (Cth) v EF[1]

[2014] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0070

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
v
EF[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the respondent.

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JUDGES:	MAXWELL P, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2014
DATE OF ORDER:	1 December 2014
DATE OF JUDGMENT:	5 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 320
JUDGMENT APPEALED FROM:	Not applicable

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Undertaking to give evidence – Sentence discount because of undertaking – Whether undertaking breached – Respondent failed to answer summons to give evidence – Respondent arranged to attend on following day – Prosecution decision not to call respondent – No breach – Appeal dismissed – Crimes Act 1914 (Cth) s 21E.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Gurvich	Commonwealth Director of Public Prosecutions
For the Respondent	Mr N Papas QC with Ms M Tait	Pro bono

MAXWELL P
REDLICH JA
PRIEST JA:

1. The respondent (‘EF’) signed an undertaking of future cooperation pursuant to s 21E of the Crimes Act 1914 (Cth). He subsequently pleaded guilty to a serious offence and was sentenced to a term of imprisonment. The sentencing judge said that, had it not been for the undertaking of future cooperation, EF would have received a much longer sentence of imprisonment.

1. The Commonwealth Director of Public Prosecutions appealed against the sentence on the ground that EF had failed to cooperate in accordance with his undertaking.  At the conclusion of argument, we announced that the appeal would be dismissed, as we were not satisfied that the Director had established any failure to cooperate.  We said that we would publish our reasons subsequently.  These are those reasons.

The undertaking to cooperate

1. In relevant part, the written undertaking signed by EF was an undertaking

to co-operate with law enforcement agencies, pursuant to s 21E of the Crimes Act 1914, and in particular to do the following things:

(a)To give full and frank evidence for the Crown in accordance with my statement … in any proceedings, including, confiscation proceedings, relating to any offence.

…

1. The subsequent events were described in affidavits sworn, respectively, by one of the informants in the relevant criminal proceedings (‘the informant’) and by EF himself.  There was no cross-examination of either deponent. 

1. The following facts were not in dispute:

·EF gave evidence, and was cross-examined, at the committal of offender A;

·the informant subsequently wrote to EF, advising him that he was required to give evidence at the committal hearing for offender B.  Attached to the letter was a summons for EF to attend and give evidence on a specified date (‘the specified date’);

·a fortnight later, the informant met with EF and confirmed that he was required to give evidence on the specified date, which was a Thursday;

·the day before the specified date, the informant received a phone call from EF’s solicitor, who advised that EF was ‘out of the jurisdiction and would not be back until Monday’;

·on the specified date, the Thursday, EF was called to answer his summons but failed to appear, and the magistrate issued a warrant for his arrest;

·later that day, a police officer spoke by telephone to EF and told him he was required at court;

·later again on the Thursday, the informant spoke to EF’s solicitor, who asked if the committal would still be sitting the following Tuesday.  According to his affidavit, the informant then advised the solicitor that the committal would conclude on the Friday (the following day) and that EF should arrange to attend court on that day;

·on the Friday, EF made arrangements to attend court but, as he was about to set off, he was informed — as was the fact — that the committal had concluded.

Was there a breach?

1. The Director’s submission relied solely on the failure of EF to attend and give evidence on the specified date.  No evidence was filed on behalf of the Director, however, to explain:

(a)               why the prosecutor at the committal hearing had not applied to have the hearing extended on the Friday, or adjourned to the Monday, so as to enable EF to give evidence;  or

(b)               why the failure of EF to give evidence at the committal had prevented the prosecution from calling him at the trial, with provision being made if necessary for a Basha[2] hearing.

[2]R v Basha (1989) 39 A Crim R 337.

1. Counsel appearing for the Director properly conceded that it would have been open to the prosecution to seek to have the committal hearing extended, or adjourned, to enable EF to give evidence.  He also conceded that it would have been open to the prosecution to call EF at the trial, notwithstanding his failure to give evidence at the committal.

1. In response to a question from the bench, counsel also conceded that as things stood in the middle of the Friday, EF was ready and willing to give evidence.  That is, if the prosecution had wished to have him called to give the evidence, either on the Friday or on an adjourned date, EF would (on the evidence before the Court) have done so.  That opportunity remained open to the prosecution, counsel accepted. 

1. In short, the reason EF did not give evidence at the committal was that the prosecutor decided not to call him, notwithstanding his availability.  In counsel’s words, the prosecutor decided ‘not to bother with’ EF any longer.

1. Counsel maintained, nevertheless, that EF’s failure to attend when required on the specified date (the Thursday) was a serious breach of his undertaking.  The Court should infer that his failure to attend on that day had contributed significantly to the decision of the prosecutor not to call him as a witness.  It was relevant, counsel submitted, that EF had a history of failing to cooperate.

Conclusion

1. We were not persuaded by that submission.  First, there was no material before the Court which would have enabled us to discern what matters the prosecutor took into account in deciding, on the Friday, not to require EF to attend and give evidence.  It would seem likely that the decision was informed by an assessment of the quality of the evidence which EF had given at the committal of offender A.  But, as we have said, we can make no judgment about that matter.

1. Secondly, and in any event, the critical point is that EF was ready and willing to perform his undertaking, that is, to give evidence in the committal proceeding.  While it is undoubtedly correct that he did not attend on the day he had been required to, it is clear from the evidence of the informant that the administrative arrangement for his attendance was varied, so that he would attend on the Friday.  On the evidence before the Court, EF could and would have given evidence at the committal but for the prosecutor’s decision not to call him. 

1. For these reasons, we concluded that no breach of the undertaking had been established and that the appeal therefore had to be dismissed.

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