Leigh Milner (a pseudonym)[1] v Director of Public Prosecutions (Cth)

[2020] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0069

LEIGH MILNER (a pseudonym)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 August 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 207
JUDGMENT APPEALED FROM:	DPP v[Milner] (Unreported, County Court of Victoria, Judge Carlin, 3 April 2020)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Using carriage service to transmit indecent communication – Communication with person overseas – Statement obtained from foreign law enforcement officer – Officer’s evidence critical to prosecution case – Whether evidence admissible – International assistance provided voluntarily – Whether necessary for assistance to have been requested under Mutual Assistance in Criminal Matters Act 1987 (Cth) – Whether breach of prosecution guidelines – Evidence admissible – No abuse of process – Primary judge’s ruling plainly correct – Leave to appeal refused – Mutual Assistance in Criminal Proceedings Act 1987 (Cth), ss 5, 6 and 12.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Ms S Borg	Goldsmiths Lawyers
For the Respondent	Mr J Gullaci	Director of Public Prosecutions (Cth)

MAXWELL P

BEACH JA:

1. The applicant is facing trial in the County Court on a single charge of using a carriage service to transmit an indecent communication to a person he believed to be under 16 years of age, contrary to sub-s 474.27A(1) of the Criminal Code (Cth).

1. Before the commencement of his trial, the applicant applied for a permanent stay on the ground that the charge and the proceedings against him were an abuse of process.  The primary judge refused the stay application,[2] but certified under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) that her decision refusing a stay was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.

   [2]DPP v [Milner] (Unreported, County Court of Victoria, Judge Carlin, 3 April 2020) (‘Ruling’).

1. Pursuant to s 295(2) of the CPA, the applicant seeks leave to appeal against the primary judge’s decision refusing a permanent stay. As will appear, we consider that the applicant’s submissions to the primary judge were untenable. In our respectful view, the judge’s ruling was plainly correct. It follows that this was not a question which warranted certification under s 295(3).

1. Leave to appeal will therefore be refused.  Our reasons follow.

Prosecution case and relevant background

1. In short compass, the prosecution case is that on 7 and 8 March 2019, a 13 year old female resident in the United States reported to her local police station that she had been corresponding on social media with an adult Australian male by the name of Leigh, and that he had sent her an image of his genitalia.

1. On 12 March 2019, DR, an investigator with the relevant County Sheriff’s Office (‘the CSO’), posing as the complainant, began communicating with the applicant via Snapchat and text messages using a police-issued mobile phone.  She told him that she was 14 years old.  Two days later, the applicant sent DR an image on Snapchat purporting to be of himself.  The image was of a naked adult male, showing him from the neck down, holding his hand over his penis.  It is the applicant’s sending of this image and certain messages to DR that constitutes the offending alleged in the charge. 

1. On 23 May 2019, the CSO referred the matter to the Australian Federal Police (‘the AFP’) for investigation via Interpol.  On 3 June 2019, the AFP executed a search warrant at the applicant’s residence.  They seized a mobile telephone in which the telephone number used by DR was stored in the contact list under the first name of the complainant.  The applicant was interviewed and admitted sending the complainant two revealing images of himself before he found out her age.  He was charged that day.

1. On 30 August 2019, DR signed a statement outlining her interaction with the applicant.  The statement was not in the form of an affidavit,[3] but concluded with the words:

I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.

[3]Cf CPA, s 112.

1. The AFP compiled a hand up brief which comprised photographs DR had taken of her communications with the applicant, including the image the subject of the charge, and other evidence gathered in Australia. It did not include DR’s statement because, not being in the form of an affidavit, it did not comply with s 112 of the CPA and thus could not be tendered in committal proceedings.

1. At a committal mention on 8 November 2019, the prosecutor applied for an adjournment pending the outcome of a request that was proposed to be made pursuant to the provisions of the MutualAssistance in Criminal Matters Act 1987 (Cth) (‘MACM Act’).  The adjournment application was opposed by the applicant and refused by the magistrate.  The matter then proceeded by way of straight hand up brief.  The magistrate was of the view that there was evidence of sufficient weight to commit the applicant for trial.  The applicant was thus committed to stand trial in the County Court.

1. On 21 November 2019, the indictment on which the applicant is charged was signed.  On 29 November 2019, DR’s statement was served on the applicant by way of a Notice of Additional Evidence.  On 9 December 2019, a request for assistance was made pursuant to, and in accordance with, the provisions of the MACM Act. 

The stay application

1. It was not in dispute before the primary judge (and is not in dispute in this Court) that the evidence of DR is critical to the prosecution case.  The applicant submitted to the judge that, where a crime is alleged to have been committed in a foreign country against an Australian law, the prosecution, in seeking to rely upon any evidence in the possession of the foreign country must make a request under the MACM Act.  The evidence (described by the applicant as ‘information’) obtained from DR was not obtained pursuant to any request made under that Act.  The applicant submitted that this resulted in the evidence, sought by the prosecution to be led from DR, being inadmissible. 

1. It was then submitted that, DR’s evidence being inadmissible, there was no evidence supporting the charge the applicant is currently facing.  The prosecution was thus foredoomed to fail, and therefore an abuse of process.

1. Next, the applicant submitted that the prosecution was an abuse of process because it was instituted in contravention of the terms of the Prosecution Policy of the Commonwealth, a document prepared by the Office of the Commonwealth Director of Public Prosecutions that sets out guidelines for the making of decisions relating to the prosecution of Commonwealth offences.  Specifically, the applicant relied upon paragraphs 2.2 and 2.4, which provided:

2.2The decision whether or not to prosecute is the most important step in the prosecution process.  In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made.  A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system. 

…

2.4The initial consideration in the exercise of the discretion to prosecute or not prosecute is whether the evidence is sufficient to justify the institution or continuation of a prosecution.  A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender.

1. The applicant submitted that the prosecution of him breached cl 2.4 of the prosecution policy of the Commonwealth because DR’s evidence was not admissible and there was no other admissible evidence that he had committed the alleged offence. 

1. In the alternative to the above contentions, and in a separate argument, the applicant submitted that the prosecution should be stayed because DR’s evidence was illegally or improperly obtained because she had ‘incited’ the applicant to transmit the image the subject of the charge.  In the applicant’s written submissions to the judge, it was put that DR, ‘not having the authority to act as an investigating official under Australian law, [was] simply in the position of a citizen and in this case a co-accused who incited [the applicant] to allegedly commit the offence he is charged with’.

The judge’s ruling

1. The judge commenced her analysis by noting that it is only in exceptional circumstances that a proceeding will be stayed on the ground that it constitutes an abuse of process.[4]  The judge then rejected each of the applicant’s submissions.

   [4]Ruling [14].

1. In relation to the submissions concerning the operation of the MACM Act and the admissibility of evidence obtained outside its operation, the judge said:

The Respondent proposes to call [DR] to give evidence in accordance with her statement.  This evidence is clearly relevant and admissible regardless of the form of her statement and regardless of the fact her statement was not obtained pursuant to a request under the MACM Act.

Whether or not the MACM Act constitutes a code in respect of ‘assistance of a kind that may be provided or obtained under [the] Act’, it is clearly not a code in respect of other assistance.  The assistance so far provided by [DR], comprising her initial information via Interpol and her statement, has been provided voluntarily.  It is not manifestly assistance of a kind that may be obtained under the MACM Act.  Indeed, until the information was provided to the AFP on 23 May 2019 there was no criminal investigation, let alone proceeding, in Australia with respect to which a request for assistance could have been made. 

To the extent a request for assistance under the MACMAct may be necessary to secure the manner in which [DR] will give her evidence, this has been done.  Given the willingness of [DR] and [the CSO] to cooperate, in my view, it was reasonable for the AFP and the CDPP to have proceeded on the expectation that such a request would be granted in due course.  To do so was not contrary to the CDPP Prosecution Policy.  It is also not without significance that the Applicant’s opposition to the adjournment of the committal mention effectively ensured the request procedure could not be finalized prior to the signing of the indictment.  Further, and in any event, if [DR] were prepared to travel voluntarily to Australia to give evidence, it may be doubted that a request for assistance under the MACM Act is necessary at all.[5] 

[5]Ibid [15]–[17] (footnote omitted).

1. With respect to the applicant’s alternative submission that DR ‘incited’ the applicant to transmit an indecent communication, the judge said that she did not consider that DR induced the applicant to send the relevant image, or that she acted improperly or illegally in any other way so as to make it likely that her evidence would be excluded at trial.[6]

   [6]Ibid [18]–[19].

Consideration

1. The proposed ground of appeal contends that the judge ‘erred in the exercise of her discretion in that she refused to stay the proceedings for abuse of process and in refusing to exclude improperly obtained evidence’.  In his written summary of contentions in this Court, the applicant has confined his argument to the refusal of a permanent stay.  The second limb of the ground of appeal was abandoned.[7] 

   [7]While the applicant maintained that the judge erred in concluding that DR did not incite the applicant to send the relevant image and texts, he said that he would revisit this aspect of the ruling ‘if there is a trial, before the trial judge, if the information [the] subject of the MACM Act is ever received’.

1. The applicant identifies four findings which he submits were made by the judge and which resulted in the erroneous refusal of a permanent stay.  Specifically, the applicant takes issue with the judge’s ‘findings’ that:

·‘if DR were prepared to travel voluntarily to Australia to give evidence, it may be doubted that a request for assistance under the MACM Act is necessary at all’;[8]

·DR’s statement was ‘relevant and admissible regardless of the form of her statement and regardless of the fact her statement was not obtained pursuant to a request under the MACM Act’;[9]

·it was reasonable, and not contrary to CDPP policy, for the CDPP to have proceeded in the ‘expectation’ that such a request would be granted in due course;[10]  and

·the proceedings, in all the circumstances, were not an abuse of process.

[8]Ruling [17].

[9]Ibid [15].

[10]Ibid [17].

1. The applicant’s contentions are premised on the proposition that DR’s evidence is inadmissible unless it has been obtained pursuant to a request made in accordance with the provisions of the MACM Act.  That premise is not correct.  The MACM Act does not purport to provide the only mechanism whereby evidence can be obtained from a person resident in a foreign country.  Indeed, the Act is not concerned with evidence-gathering as such. Its concern, rather, is with the procedures by which Australia obtains, and provides, ‘international assistance in criminal matters’ (s 5).  In relation to the obtaining of such assistance, the Act is expressly facilitative, permitting requests to be made of, and complied with by, the appropriate authorities in a foreign country. 

1. Relevantly, s 12(1)(a)(i) of the Act authorises Australia ‘to request the appropriate authority of a foreign country to arrange for evidence to be taken in the foreign country’.  There is nothing in the Act to suggest that this is the only procedure by which arrangements can be made for a witness resident in a foreign country to give evidence in an Australian criminal proceeding.  Nor that foreign assistance for this purpose must be obtained pursuant to a request under s 12.[11]

   [11]See MACM Act s 6.

1. On the contrary, as Hiley J pointed out in R v Hunt,[12] the request procedure need only be invoked when the assistance being sought ‘requires the exercise of coercive powers’.  Where that is not required, other available channels for obtaining international assistance may be used.[13]  That is precisely what has occurred in the present case.  As her Honour noted, the assistance provided to the AFP by DR and the CSO has been entirely voluntary.

   [12](2014) 286 FLR 59, 71 [57]–[58].

   [13]See also Rush v Commissioner of Police (2006) 229 ALR 383, 394 [37], [39].

1. In any case, the obtaining of a statement from a potential witness, as occurred here, is separate from and prior to the ‘taking’ or ‘giving’ of evidence to which s 12 refers.  As her Honour noted, the CDPP ‘proposes to call [DR] to give evidence in accordance with her statement’.  Her Honour was clearly correct when she said that the evidence which DR would give would be relevant and admissible ‘regardless of the fact that her statement was not obtained pursuant to a request under the MACM Act.’ 

1. No provision of that Act (or failure to utilise a provision of the Act) would render DR’s evidence inadmissible. We see no error in the judge’s refusal to permanently stay the proceedings in circumstances where DR might either travel to Australia to give evidence or give evidence via an audio visual link.  Contrary to the applicant’s submissions, there is simply no basis for contending that DR will be unable to give evidence at trial, or that her evidence will be excluded. 

1. Likewise, we do not see the circumstances of the present case as involving any breach by the prosecution of the CDPP’s guidelines for the making of decisions relating to the prosecution of Commonwealth offences.  To the contrary, it seems to us to have been well open to the CDPP on the material gathered by the AFP to commence the prosecution of the applicant.  More precisely, the judge was entirely correct when she concluded that there was no basis for her to permanently stay the current prosecution based upon the published guidelines of the CDPP.

1. In the course of the applicant’s submissions, there were references to what were said to be concessions by the prosecutor in the course of the hearing before the judge.  Specifically, in answer to a question by the judge as to why it was necessary to utilise the provisions of the MACM Act, the prosecutor said:

It’s a very good question.  Your Honour, my submission is that I accept that I in fact agree with what your Honour has observed … .  The Mutual Assistance Act is not the only way. 

The difficulty practically is that the law enforcement agencies of countries of which I understand America is one of them often say, regardless of what the attitude might be of the individual police officer, [we’ll] not make her available without a proper grant under this Act and a mutual assistance request being approved. 

1. At another point in the argument, the prosecutor said:

[I]f today was day one of the trial and we were under pressure to empanel a jury, the likelihood [is] I’d be making an application for an adjournment because of this mutual assistance request that is still pending but on the basis that we reasonably expect that it will ultimately be approved and be complied with.

1. In truth, the statements made by the prosecutor to the judge involved no relevant concession about any difficulty with the prosecution case or the evidence that the prosecution proposed to call.  The fact that the prosecuting authorities had chosen to utilise the provisions of the MACM Act, and would then await the result of a request made before proceeding with the applicant’s trial, does not make the commencement of proceedings an abuse of process in circumstances where there was no reason to conclude that DR would not be able to give evidence in accordance with her statement.

1. On the material before the judge, therefore, there was no basis upon which she could find that DR’s evidence would be either unavailable or inadmissible at trial.  It follows that her Honour was correct, for the reasons she gave, to refuse the stay application.  The application for certification should similarly have been rejected by the judge because there was no basis to doubt the correctness of her decision on the stay application.

Conclusion

1. Leave to appeal must be refused.

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