Director of Public Prosecutions v Roberts (Ruling No 10)

[2022] VSC 96

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0324

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
JASON JOSEPH ROBERTS	Accused

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2022
DATE OF RULING:	28 February 2022
CASE MAY BE CITED AS:	DPP v Roberts (Ruling No 10)
MEDIUM NEUTRAL CITATION:	[2022] VSC 96

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CRIMINAL LAW – Evidence – Privilege against self-incrimination – Whether witness should be excused from giving evidence on basis of mental ill health – Whether witness can be found to be ‘unavailable’ for purposes of s 65 of the Evidence Act 2008 – Evidence relevant to central issues in the trial – Witness not excused from giving evidence – Evidence Act 2008 ss 12, 13, 65.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Ihle QC with Mr G Hayward and Ms S Lenthall	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr D Hallowes SC with Mr M McGrath	Stary Norton Halphen
For the witness Graham Thwaites	Mr J Gullaci	Tony Hargreaves & Partners Lawyers

HIS HONOUR:

1. In this matter the prosecution has subpoenaed Graham Thwaites to give evidence in the upcoming trial which is due to commence next Monday.  Application has been made on his behalf that Mr Thwaites be excused on the basis of his current mental ill health.

1. The evidence of Mr Thwaites is plainly relevant to the trial and important to the issues that will be raised during the trial.  He, with then Senior Constable Poke, attended the dying Senior Constable Miller shortly after they arrived at the scene.

1. They spoke with him and comforted him.  The evidence of Mr Thwaites and Senior Constable Poke will be of central relevance in relation to the issue as to what, if anything, Senior Constable Miller said, and in particular what dying declarations he made.

1. That topic, and that item of evidence, was of central significance in the first trial, and it was on the basis of a number of irregularities in the development and compilation of that evidence that has since emerged that the Court of Appeal granted a retrial to the accused man, Mr Roberts.

1. Thus the evidence of Mr Thwaites, while I would anticipate it would be of relatively short compass, will be particularly relevant.  Mr Thwaites has been subpoenaed and on the basis of that subpoena he is compellable to give evidence unless under some basis he can be excused from doing so.

1. There are in my view two bases on which he could be excused. Firstly, if he were not competent to give evidence under s 13 of the Evidence Act 2008. If he is competent then under s 12(b) of the Evidence Act he is compellable.  There is also a residual category of cases in which it has been held that a subpoena can be set aside if it is an abuse of the process of the Court.

1. However, it is not put in this case nor could it be that in this case the subpoena would be an abuse.  I have had the opportunity to read the evidence of Mr Gus Carfi, the psychologist, who over the years has attended Mr Thwaites, and read the report of Dr Lester Walton, consultant psychiatrist, who provided a report dated 23 February and who gave very helpful evidence today.

1. It is sufficient to say that while those reports and the evidence of Dr Walton raise concerns about Mr Thwaites’ ill health which was the result of Mr Thwaites attending a very tragic and traumatic set of circumstances, attending a dying fellow police officer, nevertheless that evidence does not establish that he is not competent to give evidence as defined under s 13.

1. Mr Gullaci, who has appeared on behalf of Mr Thwaites, and who has provided very helpful submissions to this Court, has submitted that Mr Thwaites should be found to be unavailable for the purposes of s 65 of the Evidence Act, unavailability being defined in clause 4 of the dictionary to the Evidence Act.

1. I must say that I have some doubts as to whether, based on the evidence I have heard, he would in fact be held to be unavailable under cl 4(1)(b), or more particularly (c). That I think is at best a moot point.

1. However, Mr Gullaci has submitted that if I were to find that the witness were unavailable then in some way I could declare that he should be excluded from being subpoenaed.

1. In my view there is no authority that supports such a submission and it is I consider against the scheme of the whole of the Evidence Act. As I said, s 12 describes which categories of witnesses are compellable to give evidence.

1. Mr Thwaites falls within that category and one could not by proper statutory construction define some form of implicit power to excuse a witness who is compellable on the basis that he is unavailable.

1. In reaching the conclusion, that Mr Thwaites is compellable, I have particular sympathy for his position and the distress he is suffering and has suffered over the last 24 years.  That distress is understandable and is a matter of concern.

1. There are steps which we will take to endeavour to alleviate that distress.  First as discussed it is my intention that Mr Thwaites give evidence this week by audio visual link that will be pre-recorded without the presence of a jury.

1. According to Dr Walton, that should help to alleviate the anxiolytic part of Mr Thwaites’ condition by reducing the period of expectation, and I would anticipate that giving the evidence by audio visual link and without the presence of the jury would assist him.

1. I should also state that I would anticipate that the evidence he would give, whilst very important, should not be prolonged.  Counsel on both sides have already demonstrated to me that they are very adept at focussing on the central issues in the case, and I am quite sure that they will do so in that examination.

1. The pre-recording of the evidence will also I think assist should Mr Thwaites become too distressed to continue to give evidence and it will then enable issues relating to his evidence to be properly determined before we proceed to trial.

1. In those circumstances I reject the submission made on behalf of Mr Thwaites to be excused from giving evidence.

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