Johnny Edward Harvey v The State of Western Australia
[2024] WADC 116
•5 FEBRUARY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: JOHNNY EDWARD HARVEY -v- THE STATE OF WESTERN AUSTRALIA [2024] WADC 116
CORAM: WAGER CJDC
HEARD: 19 DECEMBER 2024
DELIVERED : Ex tempore
PUBLISHED : 5 FEBRUARY 2025
FILE NO/S: IND KAR 16 of 2022
BETWEEN: JOHNNY EDWARD HARVEY
AND
THE STATE OF WESTERN AUSTRALIA
Catchwords:
Application for permanent stay - Public interest immunity - Ongoing obligations of the prosecution - Section 137 and s 138 Criminal Procedure Act 2004 (WA)
Legislation:
Criminal Procedure Act 2004 (WA), s 90(1), s 137, s 138, s 166(1)
Result:
Application dismissed
Representation:
Counsel:
| Accused | : | Mr S J Counsel |
| The State of Western Australia | : | Mr B B Sertorio |
Solicitors:
| Accused | : | Andrews Legal |
| The State of Western Australia | : | Director of Public Prosecutions |
Case(s) referred to in decision(s):
Carney v The State of Western Australia [2010] WASCA 90
Cesan v The Queen (2008) 236 CLR 358
Le v The Queen [2019] WADC 11
Nabil Bazzi v The State of Western Australia [2024] WADC 36
Nudd v The Queen (2006) 225 ALR 161
Ragg v Magistrates' Court of Victoria [2008] VSC 1
The State of Western Australia v Rayney [No 2] [2012] WASC 38
WAGER CJDC:
[This decision was delivered extemporaneously on 19 December 2024 and edited from the transcript.]
The accused, Mr Harvey, is charged with three counts on indictment KAR 16 of 2022.
Count 1 is that on 15 March 2022 at Karratha he sold a prohibited drug, namely methylamphetamine to another. Count 2 is that on 22 March 2022 at Karratha he was in possession of a thing capable of being stolen, namely money, that is reasonably suspected to have been unlawfully obtained. Count 3 is that on the same date and at the same place as in Count 2, he attempted to possess a prohibited drug, namely methylamphetamine with intent to sell or supply it to another.
The accused's trial was listed to proceed for a 3-day period in Karratha with a callover date and a likely commencement date, being priority 2, of 20 May 2024. These dates were vacated, and the trial was adjourned. The reason for the adjournment was because the defence had applied for two summonses to be issued in respect of the trial, both to the Commissioner of Police of Western Australia. By application dated 16 August 2023, the Commissioner of Police applied for an order pursuant to s 166(1) of the Criminal Procedure Act 2004 (WA) (CPA) to cancel both summons applications. Agreement was reached between counsel for the Commissioner of Police and the accused in relation to most of the material that was sought.
However, the Commissioner of Police submitted that the accused had not identified a legitimate forensic purpose for some parts of the summonsed material including:
1(b)Recordings, documents, electronic communications or statements relating to an unidentified female 1.
The Commissioner of Police submitted the summonses applied for was an abuse of process and the summonses be cancelled to that extent because pursuant to s 159(1)(ii) of the CPA, a witness summons can only be properly issued if it requires production of a record or thing that is relevant to the case. On 19 February 2024 I determined that, consistent with Bell J in Ragg v Magistrates' Court of Victoria[1] and The State of Western Australia v Rayney [No 2][2] given the lower threshold that applies for criminal matters, I was satisfied the accused had demonstrated a legitimate forensic purpose in relation to item 1(b) being that there was a reasonable possibility the production of the materials sought would materially assist the defence in the case.
[1] Ragg v Magistrates' Court of Victoria [2008] VSC 1 [96].
[2] The State of Western Australia v Rayney [No 2] [2012] WASC 38 [33] - [37] (Commissioner Sleight).
I noted that I had not heard from counsel for the Commissioner of Police in relation to the issues of legitimate forensic purpose and material assistance to the defence. I further noted that the Commissioner of Police may choose to raise issues relevant to public interest immunity before any final orders were made.
Ultimately, an order pursuant to s 137 of the CPA in respect of a public interest immunity claim brought by the Commissioner of Police was made on 20 March 2024.
By affidavit sworn 15 April 2024, the accused then applied to vacate the listed trial dates deposing that an application for a permanent stay of proceedings was foreshadowed and, in any event, there would be insufficient time to prepare the trial given counsel's unavailability. The 3-day listing in the May 2024 Karratha Sittings was vacated. The next trial listing hearing for this matter is presently listed on 12 February 2025.
The accused now applies pursuant to s 90(1) of the CPA for the court to permanently stay the prosecution of the three counts on indictment KAR 16 of 2022, asserting that it is in the interests of justice to do so.
At the listed hearing on 6 November 2024, I advised that an order had been made pursuant to s 138(5) of the CPA that it may be disclosed to the accused that an order under s 138(3)(a) of the CPA had been made in relation to the identity of Unidentified Female 1 (UF 1).
Background - Summary of the summons hearing
I adopt my summary of the evidence from the summons hearing on 19 February 2024 that included the incorporation of a supplementary witness statement dated 30 January 2024 (supporting statement) from the witness identified as UCO 430, reference to the amended statement of material facts dated 23 January 2023 and reference to edited transcript of court recordings at pages 21 - 58 of the prosecution brief between the accused and UCO 430 from 15 March 2022 (covert recording).
In the prosecution brief, the relevant facts for count 1 are:
1.On the evening of Tuesday, 15 March 2022 the accused was at his work premises situated in the Karratha light industrial area. UCO 430 arrived at the accused's workplace and engaged in a conversation. UCO 430 told the accused that he was someone who transported drugs in regional Western Australia, and he was interested in doing business with the accused. The interaction was captured via a covert recording device, the transcript now being the covert recording transcript. The covert recording transcript notes the accused saying he was 'paying too much from a mate up here' and he was 'just breaking even'. The accused expressed a desire to go to Perth himself to purchase drugs. He stated that he was a one-man type of operation as he does not trust anyone. He stated that he sells cheaper than others locally. UCO 430 and the accused discussed plans to engage with another in trading methylamphetamine. No firm plans were made. During the visit, the accused sold 3 g of methylamphetamine to UCO 430 for $500.
2.On the same date and at the same place, the accused sold UCO 430 two pills, which the accused told him were MDMA, for $100. Subsequently, testing revealed that the substance was actually methorphan, an over-the-counter medication used to stop coughing.
3.Consistent with the covert recording, on arrival at the accused's work premises on 15 March 2022 UCO 430 introduced himself to the accused. UF 1 (being the female voice recorded) does not introduce herself. A conversation about the weather in Karratha involves all three participants, being UCO 430, UF 1 and the accused. During the course of the conversation the accused says:
oh that's right. Youse are from the south hey?
4.Given the accused had just met UCO 430 that comment is consistent with an inference that UF 1 was previously known to the accused. At page 27 of the prosecution brief, UCO 430 says:
I might have a quick yarn with him anyway, quick, quick walk mate.
5.The accused answers 'yeah'.
6.UF 1 has no involvement in the discussion from this point until the very end of the covert recording. It is during this period that any discussion in relation to drugs and drug dealing and any agreement to purchase drugs occurs. This recording is consistent with the assertion by UCO 430 in his supplementary statement that UF 1 remained in the car at this time and that the conversations in relation to drug dealing, and the specific deal with the subject of count 1, occurred in UF 1's absence.
7.At page 44 of the prosecution brief, UCO 430 states in the presence of the accused, 'that she can wait until she's in bed', the inference being that the reference is to the purchase of drugs by UCO 430 from the accused. This conversation is consistent with UF 1 being known to the accused in the context of drug misuse.
8.At page 47 of the prosecution brief there is discussion between UCO 430 and the accused about where 'she' is staying. The inference is that UCO 430 and the accused are referring to UF 1. The words spoken are inconsistent with UF 1 being present at the time. There is no reference to UF 1 being present during the course of any conversation relating to drug dealing or related topics on 15 March 2022.
I do not intend to set out my full reasons for decision in relation to the summons issue nor my summary of the law, however, consistent with a more liberal approach applying when proceedings are criminal in nature, the right to fair disclosure being an overarching principle and an inseparable part of an accused's right to a fair trial, I found the test set out by Bell J in Ragg v Magistrates' Court of Victoria[3] should be applied. That test being:
... A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
[3] Ragg v Magistrates Court of Victoria [96].
At ts 76 I reached the conclusion that:
The reasons for the accused being involved in drug dealing, and agreeing to deal on 15 March 2022 are not directly relevant to the elements of the charge. The material in relation to UF 1 may, however, raises issue of credibility, or other issues that impact on the defence of the accused.
At ts 77 I found that:
Although this is a borderline case the UF 1 was present at the scene and was known to the accused, the inference being that she was known in the context of drug use/or drug dealing. Given the lower threshold that applies in criminal matters, I am satisfied that the defence have demonstrated a legitimate forensic purpose, that is, a reasonable possibility that production will materially assist the defence in this case.
Background - s 138 - Criminal Procedure Act 2004 disclosure
Section 138(3)(a) of the CPA sets out that:
A court may, in respect of a disclosure requirement, make an order -
(a)that dispenses with all or part of the requirement, if it is satisfied -
(i)there is a good reason to do so; and
(ii)no miscarriage of justice will result;
The fact that an order pursuant to s 138(5) of the CPA had been given or disclosed to the accused in this case was disclosed to the accused in the following terms:
It may be disclosed to the accused that an order under s 138(3)(a) CPA had been made by this court in relation to the identity of UF 1.
That order was made after consideration of the factors set out in s 138(3)(a) of the CPA.
The concept of miscarriage of justice is wider than the potential for error. Not all miscarriages involve error. Justice means justice according to law. An unjust conviction is one form of miscarriage. Another is the failure of process which departs from the essential requirements of a fair trial.[4]
[4] Nudd v The Queen (2006) 225 ALR 161 [5] (Gleeson CJ); Cesan v The Queen (2008) 236 CLR 358 [66] (French CJ); Carney v The State of Western Australia [2010] WASCA 90 [41].
Grounds for the permanent stay application
Counsel for the accused argues his application on three grounds:
1.The accused cannot receive a fair trial given the order of public interest immunity relating to the witness UF 1.
2.The court should order a permanent stay to maintain public confidence in the criminal jurisdiction of the court.
3.In light of the selective manner in which the prosecution will be forced to present its case, the matter has become unjustifiably vexatious and oppressive.
Counsel for the accused submits that the combination of all three grounds means that the accused cannot receive a fair trial because he is precluded from properly preparing his defence before trial as he cannot identify and investigate UF 1. The defence submit that UF 1 plays a pivotal role in the prosecution and without her, no offence would have occurred.
However, this assertion is not supported by the evidence on the prosecution brief, nor by my findings in relation to the summons matter. There is no evidence that UF 1 was physically present when count 1 allegedly occurred, given the inferences to be drawn from the conversation recorded on the covert recording between UF 1 and the accused are inconsistent with UF 1 being present.
It is trite law that there is no burden on the accused to forego his right to silence in relation to this application, however, consistent with my reasons in respect of the summons matter, the defence have not identified any evidence that would support that the material was 'on the cards' relevant to any issue other than credibility. The defence assert the offence would not have occurred but for UF 1. The bases of my finding in relation to the summons issue are inconsistent with the suggestion that it is 'on the cards' that there is any material that would support the defence's assertion of the pivotal role of UF 1.
The defence also submit that a trial could not proceed because the quality of the covert recording is poor and as such the transcript incorporated into the prosecution brief is not likely to be accurate. The defence assert that what can be heard is that the applicant makes reference to an earlier meeting where he met UF 1 when she was introduced to him by a male referred to as 'Greeny'. The State do not accept that the word 'Greeny' is spoken. There is no evidence that there is a male who is referred to as 'Greeny' nor was 'Greeny' raised as part of the 'on the cards' matters raised by the defence at the hearing of the summons issue. Reference to 'Greeny' and any relevance to that reference (if I was to accept it as a possible transcription) is speculation only.
Counsel for the accused further submits the accused is deprived of the following information as a result of the s 137 CPA order:
(a)was there an agreement between UF 1 and police;
(b)when did that agreement commence;
(c)what was UF 1's role in that agreement;
(d)what, if any, incentives or inducements were provided to UF 1 or any other person in this investigation;
(e)what was UF 1's role in the investigation;
(f)what does she say happened during the earlier conversation;
(g)who else was present at that earlier conversation;
(h)what do they say was said and happened; and
(i)was UF 1 an agent of the State.
I accept that by the making of the public interest immunity order pursuant to s 137A(d) of the CPA and the non‑disclosure order pursuant to s 138 of the CPA, the State are in a position to access some material that may relate to UF 1 that will not be provided to the defence. This needs to be considered, however, in the context of the significant obligations on the court when making a s 138 CPA order.
The order made in relation to the identity of UF 1 could only be made for good reason and, if no miscarriage of justice will result. A s 138 CPA order is not made lightly. The disclosed order does not particularise the matters raised with the court prior to the making of the order. However, the order would not have been made without a determination that the making of the order would not lead to a departure from the essential elements of a fair trial.
Legal principles - Permanent stay application pursuant to s 90(1) of the Criminal Procedure Act 2004
Section 90(1) of the CPA provides:
A superior court to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
In Le v The Queen,[5] Sleight CJDC noted that, additionally to s 90(1), an inherent jurisdiction to order a permanent stay is recognised at common law and said at [42] and [43]:
[5] Le v The Queen [2019] WADC 11.
42At common law a permanent stay based upon an abuse of process will occur only in exceptional circumstances. The rationale for this is the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime. Although such an order to stay a prosecution is exceptional, the circumstances in which such an order may arise are extremely varied and not limited to fixed categories. Likewise it would be wrong to confine the concepts of when an abuse of process occurs to situations previously considered by the courts.35 The same approach should be taken on applications under s 90(1). The Courts should still view a permanent stay order as exceptional. In Salmat McKechnie J stated at [42] - [43]:
In deciding whether the interests of justice require a stay of an indictment a Judge should be careful not to stray beyond a proper judicial role. The institution and continuation of judicial proceedings is a wholly executive function. The Director of Public Prosecutions Act 1983 (Cth) authorises that function to be carried out by the Director. The distinction is made plain in Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 514.
The other members of the majority (Gaudron and Gummow JJ) at 534 considered that there are certain decisions involved in the prosecution process that are, by their nature, insusceptible of judicial review. They added two qualifications, the second being that, of necessity, a court always retains power to prevent abuse of its process, including its criminal process (at 535). Although I have reached the conclusion that the concept of interests of justice under s 90 is wider than the concept of abuse of process as understood in the common law, nevertheless it seems wise to acknowledge and carefully segregate the limited nature of the jurisdiction I am called upon, or a Judge is called upon, to exercise. A Judge is not a Director of Public Prosecutions. It is not enough for a Judge to conclude that were he or she to exercise the prosecutorial discretion, in accordance with published prosecutorial guidelines, an indictment would not be presented or would be discontinued. A Judge can only exercise the power if satisfied that the processes of the Court, having been invoked, cannot continue in the interests of justice.
43McKechnie J went on to state at [112] that it was not a part of the exercise of the power to stay under s 90 of the CPA that an indictment be stayed in order to punish or discipline the prosecution or the investigators.
(FN35: Rogers v The Queen (1994) 181 CLR 251 (255) (Mason CJ))
Findings
I do not accept that the accused needs to disclose his case in order to raise matters relating to the role of UF 1 and the questions posed at (a) ‑ (i) at trial. There is no requirement for the accused to give evidence, nor for the accused to disclose his instructions as part of this application.
The State submit in their written submissions that it is open to counsel for the accused to cross‑examine the investigating officer and UCO 430, both of whom will be called as a witness during the course of the trial. As in all criminal trials, notice of matters to be raised in cross-examination or in examination‑in‑chief by the defence is only required where legislatively identified, for example, alibi. Otherwise, it is open to the accused to cross‑examine on instruction and to properly test the State's case as counsel see fit.
There may be material in relation to UF 1 that is known to the State. If this is the case, the State has a continuing obligation, consistent with the order made in relation to the identification of UF 1, to ensure the position in respect of the judicial obligation under s 138(3) of the CPA is complied with throughout the trial process, and prior to the appeal period's expiration, there continues to be good reason for the orders to have been made and no miscarriage of justice will result.
That obligation is on the State because there is no amicus curiae role in Western Australia in relation to s 138 CPA applications. An overseer role exists in other jurisdictions, most notably in Queensland. The Queensland position by which open justice is qualified includes a procedure whereby a Criminal Organisation Public Interest Monitor (COPIM) has a role in the nature of amicus curiae.[6]
[6] Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38 [67] - [73].
In Nabil Bazzi v The State of Western Australia[7] when considering the additional obligation placed on the Office of Director of Public Prosecutions (WA) because the legislation does not permit for a role similar to that of the COPIM, I said:
Returning to the CPA, although s 138 does not enable a special advocate to be appointed, nor for a role similar to that of the COPIM, s 138 relies on the Office of the Director of Public Prosecutions (WA), given its obligations to the court34 and the Director's continuing obligations as an officer of the State to ensure s 138 applications are only brought when the sort of dangers identified in the Explanatory Memorandum to s 138(4)(a) arise. Once identified by the State the court must exercise its discretion pursuant to s 138(3) to dispense with all or part of the disclosure requirements only after being satisfied there is a good reason to do so, and no miscarriage of justice will result.
(FN34: Director of Public Prosecutions for Western Australia - Statement of Prosecution Policy and Guidelines 2022)
[7] Nabil Bazzi v The State of Western Australia [2024] WADC 36 [73].
For these reasons I do not consider it is in the interest of justice to make an order pursuant to s 90(1) of the CPA in this case.
Accordingly, I dismiss the accused's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ST
Legal Research Officer to Chief Judge Wager
4 FEBRUARY 2025
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