Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P A NICHOLLS
File No :PE 39693 of 2006
Catchwords:
Disorderly conduct - Collaboration in preparation of witness statements - Admissibility of evidence illegally or improperly obtained - Failure to call witness - Disorderly conduct - Offensive language - Whether necessary to establish that offence caused to a person - Whether miscarriage of justice
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Heanes v Herangi [2007] WASC 175
Case
[2007] WASC 175
Decision Date
CaseChat Overview and Summary
In the case of Heanes v Herangi, the appellant contested the conviction and sentence for disorderly conduct, alleging procedural errors in the gathering and presentation of evidence. The dispute centered on the admissibility of statements made by two police officers, Constables Herangi and Paul, who had allegedly collaborated in the preparation of their witness statements. The appellant argued that such collaboration rendered the evidence inadmissible, rather than merely affecting its weight. The prosecution, on the other hand, maintained that collaboration is a factor to consider when assessing the weight of the evidence, not its admissibility. The High Court of Australia was tasked with determining whether the collaboration between the police officers influenced the admissibility of their statements and whether this collaboration led to a miscarriage of justice.
The court examined the nature of the collaboration between Constables Herangi and Paul. Both officers admitted to discussing the case, with Constable Herangi preparing his statement first and Constable Paul subsequently reading and typing over it. However, neither officer was questioned on how, if at all, this collaboration might have influenced their recollections or statements. The court noted the absence of cross-examination on the impact of their discussions on their individual testimonies. The appellant argued that this lack of inquiry constituted an abuse of process, claiming that the prosecution should not proceed with evidence that may have been contaminated by such collaboration. The appellant's counsel submitted that ensuring the independence of witness recollections is crucial to a fair trial.
The court found that the Magistrate's acceptance of the officers' evidence, despite the alleged collaboration, did not result in a miscarriage of justice. The court held that while collaboration may affect the weight of the evidence, it did not necessarily render it inadmissible. The court found no evidence to suggest that the collaboration influenced the officers' recollections or the content of their statements. Consequently, the appeal was dismissed, affirming the conviction and sentence for disorderly conduct.
Orders
Orders of the court
Appeal dismissed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The appellant alleges that the Magistrate erred in accepting and relying on the evidence of the police officers when that evidence was the product of collaboration between them. The appellant's submission is that collaboration affects the admissibility of the evidence and not simply the weight to be given to that evidence. Counsel for the prosecution submitted that collaboration is relevant only to the weight of the evidence.(i) The evidence of collaboration In cross‑examination Constable Herangi was asked about communications with Constable Paul. He said that he had discussed the case with Constable Paul. He also said that he prepared his statement first. He denied he showed his statement to her. It was put to Constable Herangi that some of the paragraphs are identical. His response was that he did not know because he had not read Constable Paul's statement. Constable Herangi was not cross-examined on the effect on his recollection of the discussion with Constable Paul. Indeed, the nature and purpose of that discussion was neither addressed nor identified and there was, therefore, no evidence upon which to base a conclusion that this conversation had any impact on his recollection of events. In cross‑examination Constable Paul said that she discussed the case with Constable Herangi after it happened and before statements were made. Similarly, the nature and purpose of that discussion and the effect, if any, on her recollection was not addressed in cross-examination. Constable Paul further stated that she read Constable Herangi's statement before she made her own. She explained that Constable Herangi would have sent her his statement to have a look at it and she typed over the top of it. In re‑examination Constable Paul further explained that she received Constable Herangi's statement on the computer. She said that her practice was to read the statement of the other officer and then type her own out or type over the top of the other officer's statement. She added that whoever is compiling the brief normally sends the statement to the other officer. As with Constable Herangi, Constable Paul was not cross-examined about the impact on her evidence of the circumstances relating to the preparation of her statement. Specifically, Constable Paul was not asked whether Constable Herangi's statement refreshed her own memory of events or provided her with information which she did not actually recall.(ii) The abuse of process application The appellant's counsel at trial made a submission of no case to answer on the basis that the way in which the statements were prepared was an abuse of process. It was submitted that, where issues of credibility arise, evidence that the witnesses have prepared their statement and "colluded or co-operated in this way" is unacceptable and it is an abuse of process to prosecute a case based on such evidence. The appellant's trial counsel added:"The care that one takes to make sure that evidence of a witness is his or her uncontaminated and independent recollection is, in my respectful submission, crucial to the presentation of a proper prosecution case."