Hurley v Detective Sergeant Newton

Case [2020] QDC 49


DISTRICT COURT OF QUEENSLAND

CITATION:

Hurley v Detective Sergeant Newton [2020] QDC 49

PARTIES:

HURLEY, Christopher James
(Appellant)

v

NEWTON, Detective Sergeant Suzanne Maree
(Respondent)

FILE NO/S:

D215/2017

DIVISION:

Civil

PROCEEDING:

S 222 Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

6 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2019

JUDGE:

Devereaux SC DCJ

ORDER:

1.   Leave to adduce new evidence refused.

2.   Appeal dismissed.

3.   By agreement, no order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – where the Commissioner of Police lawfully compelled an employee to give an interview for employment purposes under the Police Services Administration Act 1990 – where it is alleged that the compulsory interview was used for the purpose of a criminal investigation – where the same detective was used to investigate the criminal charges and the departmental employment investigation – where the appellant was convicted of two charges of dangerous operation of a motor vehicle – whether the criminal investigation was so unfair that there is no way to remedy the unfairness other than to allow the appeal and order a permanent stay of proceedings

CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – where it is submitted that the magistrate erred in failing to apply s 24 of the Criminal Code – where it is submitted that the magistrate made a material error of fact – where it is submitted that the magistrate erred in his application of s 616 of the Police Powers and Responsibilities Act 2000

CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – powers of court on appeal to consider fresh evidence – where the appellant seeks to rely on fresh evidence pursuant to s 223 Justices Act 1986

LEGISLATION:

Justices Act 1886 (Qld), ss 222, 223

Police Powers and Responsibilities Act 2000 (Qld), s 616

Police Service Administration Act 1990 (Qld)

Police Service Administration Regulation 1990 (Qld)

Police Service (Discipline) Regulations 1990 (Qld)

Evidence Act 1977 (Qld)

CASES:

White v Commissioner of Police [2014] QCA 121

X7 v Australian Crime Commission 248 CLR 92

X7 v The Queen 246 A Crim R 402

Lee v The Queen 253 CLR 455

Police Service Board vMorris (1985) 156 CLR 397

NS v Scott [2017] QCA 237

Nugent v Commissioner of Police (Qld) 261 A Crim R 383

Police Service Board vMorris (1985) 156 CLR 397

R v CB; MP v R [2011] NSWCCA 264

Nudd v The Queen [2006] HCA 9

R v Wellington [2018] QDCPR 24

R v Sellar; R v McCarthy [2013] NSWCCA 42

Hammond v The Commonwealth (1982) 152 CLR 188

COUNSEL:

J. Hunter QC for the appellant

M. Nicolson for the respondent

SOLICITORS:

Gilshenan & Luton for the appellant

Queensland Police Service for the respondent

Introduction

  1. On 17 May 2015, the appellant, then a senior sergeant of police, took part in…

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AGLC
Hurley v Detective Sergeant Newton [2020] QDC 49
Case
[2020] QDC 49
Decision Date

CaseChat Overview and Summary

In Hurley v Detective Sergeant Newton, the appellant, Hurley, appealed against his conviction for two charges of dangerous operation of a motor vehicle. The appeal raised issues concerning the fairness of the criminal investigation and whether it was so unfair that it warranted a stay of proceedings. The case involved allegations that the compulsory interview, which was conducted for employment purposes, was used for the purpose of a criminal investigation, and that the same detective was used to investigate both the criminal charges and the departmental employment investigation.

The legal issues the court had to decide included whether the criminal investigation was so unfair that there was no way to remedy the unfairness other than to allow the appeal and order a permanent stay of proceedings. Additionally, the court had to consider whether the magistrate erred in failing to apply s 24 of the Criminal Code, whether the magistrate made a material error of fact, and whether the magistrate erred in his application of s 616 of the Police Powers and Responsibilities Act 2000. The appellant also sought leave to adduce fresh evidence pursuant to s 223 Justices Act 1986.

The court found that the compulsory questioning was lawful, but the use of the answers to the questions had irredeemably undermined the criminal justice process. The court held that there was no miscarriage of justice, and the appeal was dismissed. The court refused leave to adduce new evidence as the material relied upon was available with reasonable diligence to the appellant’s legal representatives before the trial. The court concluded that no reason had been presented for not taking the point before trial. Therefore, the appeal was dismissed, and no order was made as to costs by agreement.

Orders

Orders of the court

1. Leave to adduce new evidence refused.

2. Appeal dismissed.

3. By agreement, no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Differences between the present case and that before Judge Dick SC include that Wellington was charged on indictment with malicious act with intent alternatively threatening violence with intent, arising from his use of a firearm after the appellant had brought the stolen vehicle to a halt, and his was a pre-trial application to stay the indictment. Application to adduce new evidence As I have set out, there was no error in the trial. The appellant seeks leave to adduce fresh evidence, as set out in the affidavit of Ms Smith, of his solicitors. The respondent’s material in reply sufficiently demonstrates that the material now relied upon was available, with reasonable diligence, to the appellant’s legal representatives before the trial. The reply material suggests they were aware, before the trial, of Wellington’s stay application: the appellant’s solicitor was present at the appellant’s disciplinary interviews and Wellington’s representatives issued a summons to the Commissioner of the Queensland Police Service to produce a ‘matrix’ relevant to the investigation of Wellington. No reason has been presented in the appellant’s material for not taking the present point before trial. Whether leave should be given is to be answered, in this case, according to whether the material shows there has been a miscarriage of justice.The arguments and relevant cases Ms Smith’s affidavit reveals that both officers were subject to disciplinary investigation conducted by Detective Newton, the respondent. The respondent attempted to interview both officers as suspects. Each refused to be interviewed. The respondent then compelled each officer to answer questions in the disciplinary process. The respondent was the named complainant in the charges and took the witness statements. The appellant submits it is “overwhelmingly clear that the way in which those statements were taken [was] heavily influenced by – and directly responsive to – answers given to the respondent in the disciplinary interviews.”[15] The investigator developed an ‘interview matrix’ that, it was submitted, was a plain attempt to discover and prepare a response to any possible defences to criminal charges.[15] Appellant’s supplementary outline at [7]. The appellant was interviewed on 18 May 2015, 25 May 2015 and 1 – 2 July 2015. The 25 May 2015 interview included a re-enactment of the driving and the subsequent event (a shooting incident). On each occasion, the respondent invoked the Police Commissioner’s power to compel answers. The legislative framework, relevant to this appeal, for the disciplinary procedure employed by the respondent – the Police Service Administration Act 1990 (Qld), the Police Service Administration Regulation 1990 (Qld) and the Police Service (Discipline) Regulations 1990 (Qld) – was set out by Morrison JA in Nugent v Commissioner of Police (Qld) 261 A Crim R 383 at [43 – 68]. His Honour also set out the direction of the commissioner relevant to the present case which was given under that scheme.[16] [16] As Mullins J pointed out in Nugent v Commissioner of Police (Qld) at [129], the direction itself cannot be used to construe the legislative scheme.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, Ms Smith asserts that the respondent was the officer who attended the scene, had carriage of the disciplinary and criminal investigations, conducted the compulsory interviews, obtained or organised the witness statements, and issued the Notice to Appear.Consideration The compulsory examination of a person charged with an offence about the charge “is very likely to prejudice him in his defence”[33] and may amount to “an improper interference with the due administration of justice”.[34] [33]Hammond v The Commonwealth (1982) 152 CLR 188 per Gibbs CJ at 198.[34]Hammond v The Commonwealth per Deane J at 206. Once it is understood that the compulsory questioning was lawful, the question must become whether the use of the answers to the questions has irredeemably undermined the criminal justice process. The appellant’s conduct might have been a serious breach of proper policing which appalled and affronted his superiors. But the wholesale appropriation of the disciplinary process to conduct the criminal investigation is designed to abuse the process of justice. As senior counsel for the appellant submitted at the hearing, the police commissioner having the power both to investigate disciplinary offences and charge employees with criminal offences, great care must be taken to avoid cross-contamination between the two processes. It falls to the commissioner to have in place a process which avoids the risk. Had an application to stay the proceeding been made it might well have been granted. Alternatively, a temporary stay might have been granted subject to the prosecution presenting a case untainted by the breach I have just described, although the appellant submits that in this case ‘the egg cannot be unscrambled’. There was no application. The trial proceeded. Senior Counsel for the appellant submitted at the hearing of the appeal that there was no identifiable forensic purpose in not seeking the stay. But it would not have been unreasonable for the appellant’s trial counsel to have considered a stay application unlikely to succeed, or to result in a trial just like that which occurred. Expecting the evidence that was ultimately presented at trial, it would have been reasonable for trial counsel to consider that the evidence beyond the objective video evidence was the kind of evidence the prosecution would have obtained and presented without the compelled interviews. In any case, the focus of inquiry is whether what occurred at trial was a miscarriage of justice.[35][35]Nudd v The Queen [2006] HCA 9. It was not a complex trial. The charges called for a judgment as to whether the appellant operated the vehicle dangerously in all of the circumstances. Video of the driving, from several angles, was in evidence. This was supplemented by police officers who were also engaged in the pursuit at various stages speaking of what they saw and heard, e.g., whether they did or did not hear police radio directions. Much of this was peripheral, if not irrelevant. Unsurprisingly, the learned magistrate’s reasons referred primarily to the video evidence. His Honour referred also to the opinion evidence as to sanctioned degrees of force but, as I have already noted, was careful to comment that whether the manoeuvre was unorthodox or outside police training did not determine the question of dangerousness.