Police v Murphy
[2011] QMC 23
•21 September 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Murphy [2011] QMC 23
PARTIES:
POLICE
(prosecution)v
MEGAN JANE MURPHY
(applicant/defendant)
FILE NO/S:
MAG- 46297/11(3)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to cross examine witness in committal proceeding
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
21 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
13 September 2011
MAGISTRATE:
Judge Butler SC, Chief Magistrate
ORDER:
1. The application to cross-examine the witness Smith is refused
2. The application to cross-examine the witness Thiry is allowed
3. I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call STEPHEN JOHN THIRY to be made available for cross-examination on his written statement on the following issues:
(a.) the qualification of the witness as an expert
(b.) the extent to which the witness is able and willing to proffer opinions about the content of the recorded conversations
(c.) the basis of each relevant opinion provided by the witness.
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - expert opinion evidence of coded drug references
Justices Act 1886 (Qld), s83A(5AA), s 110B
COUNSEL:
T O’Gorman (sol) for the applicant
D Orr (legal officer) for the respondent
SOLICITORS:
Robertson O’Gorman Solicitors for the applicant
Director of Public Prosecutions (Qld) for the respondent
This is an application under s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that prosecution witnesses be required to attend to be cross-examined upon committal proceedings.
This application is preliminary to committal proceedings against the applicant Megan Jane Murphy on eight drug related charges.
The most serious charge is one of trafficking. That charge reads:
“That between the 5th day of July 2010 and the 16th day of March 2011 at Norman Park in the State of Queensland one Megan Jane Murphy carried on the business of unlawfully trafficking in the dangerous drug namely heroin.”
The remaining charges can be conveniently summarised as follows:
· 16 March 2011 Possession of heroin
· 16 March 2011 Possession of cannabis
· 19 October 2010 possession of a steroid
· 16 March 2011 Possession of implements
· 19 October 2010 Possess of money suspected of being proceeds of an offence
· 19 October 2010 Possession of money suspected of being proceeds of an offence
· 16 March 2011 Possession of an implement.
A document described as “phone particulars/statement of facts” was tendered by the solicitor for the applicant. I was advised it recorded information supplied to the defence by the prosecutor, Ms Orr in a telephone conversation on 9 September 2011. Ms Orr did not dispute the contents of the document but indicated that it was not intended to be binding on the prosecution in this future.
The document sets out 12 items:
1. Murphy and Castillo were in a de-facto relationship and shared a residence.
2. In October 2010 a Search Warrant was executed at an address at Kedron and as a result $1OK was found in cash in The Vault.
3. Subsequent to that police became aware of telephone taps in the period July/August 2010 and the period 28 October 2010 to 10 November 2010.
4. During the period covered by the charge both supplied regularly to 11 people.
5. The Prosecution allege that not only did trafficking occur during the period July to November as reflected in the telephone intercepts but actively continued through to 18 March 2011.
6. Drugs were located in December 2010 commercially packaged in the residence shared by both Murphy and Castillo and on that day they were in the company of someone who was supplying drugs for both namely Daniel Evers.
7. The telephone intercepts featured a discussion about price, quantity and some individuals getting a discount.
8. The customers could put items on a bill and there was discussion about people putting money downstairs before the drugs were placed downstairs.
9. The areas where the drugs were left downstairs are revealed by the telephone intercepts and consistent with the places where drugs were found on the raid in March 2011.
10. The way customers communicated in relation to drug purchases were by phone and SMS and by both media they were told where the drugs were left.
11. Murphy and Castillo were responsible for street sales where various individuals were given a phone for the day and asked to stay in particular geographical areas to make sales.
12. This activity occurred at least in the period of the phone telephone intercepts from July to November.
Consistent with that document, the prosecution advised that it is intended the Crown case will rely largely on inferences the jury will be asked to draw from recorded telephone conversations and SMS communications obtained by interception of the applicant’s mobile phone number. It seems the applicant was a party to most but not all of those conversations. The interception of the telephone conversations was limited to the periods July to August 2010 and 28 October 2010 to 10 November 2010. The prosecution also rely upon the location of drugs at the residence of the applicant on the occasion of raids in December 2010 and March 2011 and the location at another address of $10,000 in cash in October 2010. I was advised the applicant resided at the relevant time with a co-accused Ricardo Castillo.
The Act specifies certain procedural requirements that must be fulfilled when bringing an application to cross-examine under s 83A(5AA)[1].
[1] S 110B(3)
The applicant compiled with those requirements and filed in support of his application his correspondence to the prosecution advising the subject of the application, relevant issues and reasons for the order sought. The prosecution response was also filed.
The applicant’s correspondence identified Detective Chris Smith as the person sought to be cross-examined. It set out the issues and reasons as follows:
The general issues relevant making of the application: The reasons to be relied upon to justify the calling of the makers of the written statements to give oral evidence: Murphy is charged with trafficking between the period July 2010 to March 2011 where the Prosecution evidence against her is as follows:
• Telephone intercepts in the period July 2010 to August 2010;
• Approximately $20,000.00 in cash seized in October 2010;
• A small quantity of drugs found during the police execution of a search warrant at Murphy's residence in March 2011.
The cross-examination of the arresting officer may establish that there is no proper basis for Murphy to be charged with such a lengthy period of trafficking. The prosecution allege that telephone intercepts from July 2010 to August 2010 reveal that Murphy was speaking in "code". Cross-examination of the officer will disclose his interpretation of the alleged drug conversation in coded format and what, if any, evidence exists that Murphy was trafficking in this period from July to August 2010. If it was established that there is an insufficient basis to interpret the phone calls as drug related, a no case submission for trafficking should be considered
The dollar value of the drug sales Smith Murphy is said to have engaged in. There are no investigative accountant statements forming part of the police brief yet the prosecution assert that approximately $20,000, found in a vault in October 2010 is derived from drug sales. The defence seeks to establish how the prosecution can assert that the $20,000, found 3 months into an 8 month trafficking period, is said to be money from drug sales.
At the hearing the applicant enlarged his application by requesting cross-examination of a further witness, Detective Senior Sergeant Stephen John Thiry and provided the following draft order outlining the issues upon which it is sought to cross-examine:
“APPLICATION TO CROSS EXAMINE - DRAFT ORDER
I direct pursuant to the provisions of Section 83A(5AA) of the Act that I require the Prosecution to call Senior Constable Christopher Smith/Detective Senior Sergeant Stephen John Thiry to be made available for cross examination on his written statement on the following issues:
• To identify evidence and the extent to which in relation to conjoint drug sales (including the identity of persons involved in such sales) by Megan Murphy and Ricardo Castillo in the period 4 August 2010 - 29 October 2010 and in the period 11 November 2010 to 16 March 2011 including the identity of persons who were involved in such sales by being involved at the behest of Murphy and Castillo.
• The meaning and interpretation of the codes referred to in the document "Megan Murphy March 2011 Traffick Terms/Code" both as said to be used generally in the drug milieu and by, reference to the page numbers as individually outlined in that document including evidence about price, quantity and some individuals obtaining a discount (see by reference to committal hearing particular 7 dated 9 September 2011).
• The total dollar value expressed in gross terms of the drug sales engaged in by Murphy and Castillo conjointly throughout the nominated trafficking period.”
Also tendered on the hearing was a 177 page summary of calls between the applicant, Castillo and others in the periods 6 July to 3 August 2010 and 28 October to 10 November 2010 prepared by the police (Exhibit 1). Mr O’Gorman tendered a list of references to names and terms he had identified by analysis of the interpreted conversations (Exhibit 3).
The prosecutor tendered a list of references to names and conduct she had identified by analysis of the intercepted conversations (Exhibit 4).
Also tendered by the prosecutor were the witness statements of Christopher Smith and Stephen Thiry.
Legal basis for application to cross-examine
The Act provides that a magistrate has overall supervisory responsibility for a committal proceeding coming before the Magistrates Court.[2]
[2] S 130B Justice Act 1886
Committal proceedings may be conducted by the examination, in the presence and hearing of the defendant, of all evidence to be offered on the part of the prosecution.[3] However, the Act makes provision for use of tendered statements in lieu of oral testimony and where a written statement of a witness is tendered by the prosecution, the magistrate:
“(a) must, subject to the provisions of this section being satisfied,
admit the statement as evidence; and
(b) must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A(5AA).” [4]
[3] S 104
[4] S 110A(3)
In the case of a legally represented defendant the Act provides:
“(5) Subsection (3)(b) does not stop the prosecution and the defence
agreeing that the witness will be present to be cross-examined.(6) If a witness is cross-examined because of an agreement under subsection (5) or because of a direction given under section 3A(5AA), the justice must consider both the witness’s written statement and the oral evidence given by the witness.”[5]
[5] S 110A(5) and (6)
It follows that the Court may not require a witness to appear and be examined unless either a direction has been given under section 83A(5AA) or the prosecution and defence both agree to that course
Section 83A permits a party to a proceeding for an offence to apply to the Court for a direction hearing. Subsection (5AA) empowers the magistrate to give a direction requiring the prosecution to call the maker of a written statement to be tendered under s 110B(3) to attend to give oral evidence or be cross-examined on the written statement. Subsection (5AA) applies subject to s 110B.
Section 110B(1) provides as follows:
“A magistrate at a direction hearing must not give a direction under section 83A(5AA) in relation to the maker of a written statement unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement.”
The magistrate must not require a witness to appear unless a direction is given under s 83A(5AA). Such a direction must not be given unless, on application by the defendant, the magistrate is satisfied to the necessary standard. In my view this legislative scheme places upon the applicant the burden of satisfying the magistrate. Support for this view is to be found in the New South Wales cases and has been adopted in this Court. [6]
[6] See Sim v Magistrate Corbett [2006] NSWSC 665 at [20]; followed in BJG v Police [2011] QMC 1 at [50] per Deputy Chief Magistrate Hine.
Substantial reasons in the interests of justice
The law changed in 2010 upon the passage of the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.
Prior to that the defence had a general right to cross-examine all prosecution witnesses at committal.
The amendments now forbid a magistrate to require a witness to appear and to submit to cross-examination unless a direction is made under s 83A(5AA). Such a direction must not be made unless the magistrate:
“is satisfied there are substantial reasons why, in the interests of justice, the maker [of a written statement] should attend.”[7]
[7] S 110B(1) Justice Act 1886 and s14A(1) Acts Interpretation Act 1954
The meaning of the phrase “substantial reasons why, in the interests of justice” is to be determined by having regard to the purpose of the legislation.
In my view, the legislative scheme seeks generally to limit the receipt of evidence in committal hearings to written statements and real exhibits. Oral examination is not available on request, and may only be ordered where “substantial reasons” are demonstrated. Accordingly, the mere loss of an opportunity to cross-examine without more could not amount to a ‘substantial reason’.[8]
[8] See Goldsmith v Newman & The State of South Australia (1992) 59 SASR 404 per King CJ
Extrinsic material may be considered in aid of interpretation to remove ambiguity or confirm an interpretation.[9]
[9] S 14B Acts Interpretation Act 1954
The Attorney-General in the second reading speech for the Bill, delivered on 13 April 2010, said:
“New South Wales legislation has been used as a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for twenty years, considered by the New South Wales Courts and is generally regarded as working satisfactorily…” [10]
[10] Hansard p1255
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 also refer to the New South Wales test and the cases on it in the following passage:
“Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.
The provisions restricting cross-examination in the Bill are based on section 91 of the Criminal Procedure Act 1988 (NSW). Mr Moynihan was of the view that the Criminal Procedure Act 1988 NSW (the Act) provides a suitable model. It has been in place for a number of years, has been tested by judicial considerations and is generally regarded as working satisfactory. It was also noted that the principles that apply to section 91 applications in New South Wales are clearly articulated and, as a consequence, there are now few applications to review the magistrate’s decision.
The relevant principles applying in New South Wales to the operation of section 91 of the Criminal Procedure Act 1988 (NSW) and the meaning of “substantial reasons, in the interests of justice”, were summarised in Sim v Magistrate Corbett & Anor by Whealy J as follows:
‘1.The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.
2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.
3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.
4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.
5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.
6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.
7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.
8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.’ ”
It follows that in interpreting the term “substantial reasons” considerable assistance may be obtained by reference to the New South Wales authorities. The meaning of that term was considered by the New South Wales Court of Appeal in Director of Public Prosecutions v Losurdo and another[11] where the Court indicated its agreement with the following observations by Studdart J in Hanna v Kearney and another[12]:
“1. Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
2. There can be no rigid or exhaustive definition of what constitutes "substantial reasons" and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute "substantial reasons". It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.
3. It would be wrong to limit "substantial reasons" to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally it would be wrong to limit "substantial reasons" to situations where cross-examination is likely to substantially undermine the credit of an important witness. "Substantial reasons" may well be found elsewhere.
4. On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive.
5. "Substantial reason" may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (supra) at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases. “
[11] [1998] 44 NSWLR 618 at 627
[12] 28 May 1998, NSWSC unreported
The objective of facilitating a fair trial is a fundamental consideration in determining whether cross-examination should be allowed. The High Court in Burton v The Queen[13] explained the importance of committal proceedings in the protection which the criminal process gives to an accused person.
[13] [1980] 147 CLR 75; see also Grassby v The Queen (1989) 168 CLR 1
The explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 explained that the restriction on cross-examination is not inconsistent with achieving the principal purposes of a committal proceeding:
“According to the High Court (Grassby v The Queen (1988) 168 CLR 1 and Barton v The Queen (1980) 147 CLR 75), the principal purposes of a committal hearing are to:
·ensure the defendant is not put on trial on indictment without sufficient cause;
·allow the defendant to learn the case against him or her; and
·marshal the evidence into deposition (written) form.
Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.”
The explanatory notes reflect the views expressed by Dawson J in Grassby v The Queen[14] when he said:
“The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued.”
However, there are limitations upon the extent to which committal proceedings can be utilized for the purpose of a defendant obtaining “proper understanding of the nature of the prosecution case”. The proceedings are conducted in accordance with the rules of evidence which necessarily limit the permissible scope of questioning.
[14] (1998) 168 CLR1 at 15
The Prosecution’s disclosure obligations
The prosecution bear a statutory obligation to make full disclosure of their case to the defence.[15] This includes an obligation to give the accused full and early disclosure of:
“(a) all evidence the prosecution proposes to rely on in the proceeding; and
(b) all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.”[16]
[15] Criminal Code s 590AB
[16] S 590AB(2)
Chapter 62, chapter division 3 of the Criminal Code, provides a process specifying when and how the prosecution must comply with its disclosure obligations. The prosecution complies under the Chapter by supplying written material or copies of things. Mandatory disclosure of the statements of all prosecution witnesses must be made at least 14 days before the listed date of hearing of the committal.[17] Section 83A(5)(aa) of the Act allows the defendant to apply to the magistrate for a direction if there has been non compliance with disclosure obligations. Under s 83B the court is given power to deal with non-compliance with such a direction.
[17] S 590AI(2)(a)
The prosecutor advised me that full disclosure has been made by the Office of the Director of Public Prosecutions of all evidence they intend to adduce at committal and trial.
The application before me is brought under s 83A(5AA) to cross-examine on committal. It is not an application under s 83A(5)(aa) for disclosure under the Criminal Code provisions.
Avoidance of a Basha inquiry
This Court must also be alert to not creating a situation which will necessitate the holding of a preliminary examination of witnesses (a Basha inquiry) by the higher court. As observed by Rothman J in Abdel-Hady v Magistrate Freund:
“The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice.”[18]
[18](2007) 177 A Crim R 517
The history and scope of Basha inquiries was considered by his Honour, Judge Durward in R v B (No.2)[19] where he quoted from the decision of Hunt CJ at CL in R v Sandford[20]:
“I maintain my belief in the obvious value of such a procedure – by whatever name it may be called – provided (and these are important provisos) that the accused has demonstrated – in advance – the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No.2) (1990) 48 A Crim R 49 at 59 – 60.
The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Barron v Attorney-General for New South Wales[21] (at 219, 233); R v Basha[22] (at 539).”
[19][2010] QDC 417
[20](1994) 33 NSWLR 172 at 180 - 181
[21](1987) 10 NSWLR 215 at 233
[22](1989) 39 A Crim R 337 at 339
Ultimately, whether on an application for a Basha inquiry or on an application to cross-examine at committal, the relevant court must have regard to the need to facilitate a fair trial.
Submissions on behalf of the applicant
Oral submissions on behalf of the applicant elaborated on the issues identified in the correspondence and in the proposed draft order. The applicant’s submissions identified three issues corresponding to the 3 dot points in the draft order.
Issue 1
Firstly, it was identified that while the period of the alleged trafficking was from July 2010 to March 2011, there were passages of time between those dates in respect of which the prosecution evidence is silent: 4 August to 29 October 2010 and 11 November 2010 to 16 March 2011. It is sought to cross-examine Smith on whether he is aware of any evidence as to the conduct of the applicant in those passages of time.
Issue 2
The applicant submits that leave should be given to allow Smith and Thiry to be cross-examined as to the meaning and interpretation of the coded references the prosecution alleges were in the intercepted conversations. It was submitted that interpretation of the coded references is relevant to whether the Crown can prove the type and quantity of any drugs involved.
Furthermore, it is sought to cross-examine as to what involvement persons named in the intercepted conversations (by given or nick names) and referred to in Exhibit 3, had with the applicant or her co-accused.
It was submitted that Smith should be cross-examined about references to telephones in the intercepted conversations.
Specific reference was made in oral submissions to the statement of Thiry where opinion evidence is given as to the meaning of terms used in the intercepted conversations.
Issue 3
The applicant seeks to cross-examine Smith and Thiry as to the dollar value of the alleged drug sales.
Discussion
The applicant must satisfy the court there are substantial reasons why, in the interests of justice, the maker of a written statement should attend to give oral evidence or be made available for cross-examination on the written statement.[23] At issue in this application is whether witnesses may be cross-examined on their written statements.
[23]Justices Act 1886, s 110B
It is necessary to carefully identify the nature and character of what it is sought to cross-examine the witnesses about in order to determine whether admissible answers are being sought and whether substantial reasons are established.
Issue 1
The proposed cross-examination in respect of this issue seems more in the nature of a disclosure process rather than a testing of the evidence of a particular witness. It is sought to explore with Smith whether there is evidence (including the identity of purchasers) of drug related conduct of the applicant and Castillo in the periods outside those periods when telephone intercepts were in place.
Smith says in his statement that he was made aware that telephone intercepts of the defendant’s mobile phone had occurred in relation to another investigation. He sought and was granted permission to view the telephone intercept material. This must have happened after 10 November 2010 following the last period of interception. As a result of viewing the material he obtained a search warrant for the defendant’s address which he executed on 16 March 2011. The remainder of Smith’s statement deals with the search on 16 March 2011. There is nothing in the statement to suggest that Smith is able from his own knowledge to give admissible evidence about the conduct of the applicant or Castillo prior to 16 March 2011.
The prosecutor advised the court that full disclosure has been made of all the evidence the prosecution intends to lead. The prosecution submits that this is a circumstantial case replying heavily on the jury drawing inferences from the telephone conversations.
When queried why it was sought to cross-examine Smith on matters about which it seems he has no personal knowledge, Mr O’Gorman responded that there was a need to cross-examine someone on those matters and Smith was the only available witness to ask.
The applicant’s expectations in this regard are perhaps understandable. It has been the practice in Queensland prior to the recent amendments, at a time when there was an unfettered right to cross-examine all witnesses at committal, for defence legal representatives to question the investigating officer about what evidence he or she thought the prosecution case contained to prove the elements of the charge. In my experience this questioning was not usually objected to. It often was a convenient process for both prosecution and defence. Police prosecutors often had little opportunity to read and understand the brief and therefore could not take a meaningful role in communicating the prosecution case. The process allowed defence representative to quickly understand from the only available person with any real knowledge of the case the basis upon which the charges were being brought.
As convenient as this process was, it is doubtful that it constituted, as a matter of law, a proper use of the committal process in the majority of cases. In this case the Office of the Director of Public Prosecutions has been seized of the matter for some time. Where a case is of some complexity, such as in a circumstantial case, it will be for the prosecutor to identify the evidence relevant to proof of the charges and to make all necessary disclosures. The opinion of the investigating officer on these matters will, with few exceptions, be inadmissible and possibly misleading.
The applicant wishes to explore whether the officer has knowledge of any evidence not revealed in the prosecution brief that might implicate the applicant. What that evidence might be is not identified. Mr O’Gorman said he would not know that until he had the opportunity to question the witness. The thrust of the argument was that Smith’s statement does not contain specific sworn denials he was aware of other evidence and therefore it is necessary to ask him about that possibility. It is submitted that this line of cross-examination is necessary for a proper understanding of the nature of the prosecution case[24] and to avoid being taken by surprise at the trial.[25]
[24]Hamer v Kearney[1998] 44 NSWLR 618
[25]DPP v Losurdo (1988) 44 NSWLR 618-620
In addition, Mr O’Gorman indicated he was unwilling to accept the prosecutor’s advice that here had been full disclosure of the prosecution evidence as he did not trust the particular police officer to frankly instruct the prosecutor. This lack of trust relates to an application brought before the Sandgate magistrate in which it is alleged the officer failed to disclose the existence of an earlier order by another magistrate as to disposal of property. Although this allegation was advanced from the bar table, it was indicated there was no intention to seek to prove it by admissible means. Indeed it seems the matter is currently being litigated before the Sandgate magistrate. Certainly the prosecution have had no opportunity to test the allegation. This unproven and untested allegation cannot be the foundation of a substantial reason to order cross-examination. Furthermore, no application was made to this court to cross-examine the officer as to credit.
There is nothing in Smith’s statement or other material before the court suggesting that he may give admissible evidence as to the acts of the applicant and her co-accursed in those periods when her phone was not subject to telephone interception or as to the identity of persons they may have had dealings with in those periods. The prosecution claim to have disclosed all their evidence. If that assertion is challenged that can be pursued by way of an application activating the process for dealing with non disclosure.
The applicant has failed to satisfy me that there are substantial reasons in the interests of justice to allow cross-examination on this basis.
Issue 2
It is sought to cross-examine Smith and Thiry about the content of the recordings of intercepted conversations.
Smith
As outlined above, there is no evidence or suggestion on the material that Smith was involved in any way in the investigation that gathered the recordings. Nor is there in his statement any attempt to establish Smith as an expert witness. It is true that in two places in the statement Smith offers an opinion on the telephone intercepts. At paragraphs 12 and 14 he states:
“(This location was consistent with the telephone intercepts indicting that drug deals would be left outside for persons to collect when the defendant’s were not home.)”
These passages are placed in brackets and italics in the statement indicating that the officer considered they were inadmissible.
In her written submissions the prosecutor said:
“Officer Smith does not posses any qualifications in relation to the interpretation of drug related, coded conversations. Cross-examination of Officer Smith’s interpretation would amount to opinion evidence only and therefore would be inadmissible.”
The authorities established that expert testimony may be admitted from a suitably qualified witness as to the meaning of terms used in drug dealing.[26]
[26]
To be admissible as expert opinion, the evidence must be in a field of specialised knowledge, the witness must have specialised knowledge in that field based upon his training, study and experience and the opinion offered must be wholly or substantially based on the witness’s expert knowledge.[27] The evidence of the witness must sufficiently identify the basis for the opinion.[28]
[27] Cross on Evidence (7th Edition) at [29045]; Makitu Pty Ltd v Spowles (2001) 52 NSWLR 705 at [85]
[28]Ibid.
Unless properly qualified Smith could not testify as to the meaning of terms or interpret passages in the recorded conversations. He does not claim such expertise. The prosecutor specifically disavows that he has such expertise or that he will be produced as an expert witness. Any questions that the applicant might ask Smith about interpretation of the conversations would be inviting opinion testimony from an unqualified witness.
I decline to order cross-examination of Smith on the meaning or interpretation of the contents of the intercepted conversations.
It was sought to question Smith on the nature of the involvement of persons referred to in the transcripts. The applicant’s submission in this regard is in the nature of a request for further particulars from the prosecution as what it is relying on in proof of its case.
Examples given in argument did not focus on who the persons were, but rather asked the question whether persons named in the transcript were sellers or buyers and queried what passages the prosecution relies on to allege (as appears in the list of particulars) that the applicant was involved in providing a phone to persons to make street sales.
These are questions are more properly answered by way of disclosure of information or provision of particulars.
It is not necessary on this application to examine the entitlement of a defendant to request and the power of the court to order particulars at committal proceedings.[29] It is enough to observe that particulars are provided by a legal representative not a witness. There can be no doubt that the court has power to ensure that the person charged has sufficient information to prepare for trial either by way of disclosure of evidence or provision of information, including in the nature of particulars, to allow the defendant to understand the case he or she has to meet. Under the new procedures the process for making an application for a direction hearing under s 83A of the Act is available for either of these purposes.
[29] See Moss v Brown (1979) 1NSWLR 114 at 128-131
Once again, to cross-examine Smith on these matters would be to invite inadmissible testimony on issues more properly the province of a disclosure application.
Thiry
An application is also made to examine Thiry on the meaning and interpretation of what are said to be coded conversations.
Detective Senior Sergeant Thiry is advanced by the prosecution as an expert witness. His statement lays a basis for expertise in knowledge of matters relating to the drug trade. There is nothing in Thiry’s statement to suggest he had any part in the investigations of the applicant or Castillo; rather he says he was requested by Smith to “view material that relates to an investigation being conducted”. In his statement he proceeds to give the meaning of terms which in his experience are used to refer to drugs and their weights or quantities. He refers to material, which I take to be transcripts of the recorded interceptions, and expresses the view that certain passages in the conversations are illogical.
Unlike Smith, Thiry purports to be a qualified expert witness. His statement directs itself to the necessary prerequisites for establishing the witness as a qualified expert.
The applicant seeks to cross-examine the witness on issues of price, quantity and type of drugs referred to in the conversations. The applicant wishes to identify the basis upon which the prosecution alleges trafficking in heroin. To my mind, this is a legitimate question. It is true that both heroin and cannabis were found in the residence on 16 March 2011. However, Thiry makes no reference to common terms for heroin and does not appear to identify any terms in the conversations as being consistent with being references to heroin. The extent to which this Crown expert is able to testify to aid interpretation of the recorded conversations may be of high significance to proof of the prosecution allegations on trial or in any sentence hearing.
The statement of Thiry purports to comment on passages in the conversations, characterising them as being illogical. This form of reasoning is similar to that found to be permissible in Chen v R.[30] However, the law of evidence requires that the basis of Thiry’s expert opinion be adequately identified.[31] The sufficiency of his reasoning is relevant to whether that obligation is satisfied.
[30] [2011] NSWCCA 15
[31] Ibid at [75]; Dasreef Pty Ltd v Nawaf Hawchow[2011] HCA 2, per Heydon J at [64] and [91]
In my view, the statement of Thiry does not detail the reasoning process of the expert to an extent necessary to adequately inform the applicant of the case he must meet.
In Hanna v Kearney it was observed by Studdert J that “requiring a witness for cross-examination …. for an understanding of the basis of a relevant opinion held by a witness” may amount to “substantial reasons”.[32]
[32] 28 May 1998, NSWSC unreported; followed Poliakiv v Magistrate George [2009] NSWSC 1133 at [36]
Having regard to the significance of the proposed expert testimony to the establishment of the Crown case and the inadequacy of the statement of Thiry in regard to analysis of the conversations, I am satisfied there are substantial reasons in the interests of justice for permitting cross-examination of this witness.
Consistent with my reasoning above, the questioning of Thiry will be limited to the following issues:
- the qualification of the witness as an expert
- the extent to which the witness is able and willing to proffer opinions about the content of the recorded conversations
- the basis of each relevant opinion provided by the witness
Issue 3
The applicant seeks to cross-examine the witnesses on:
“The total dollar value expressed is gross terms of the drug sales engaged in by Murphy and Castillo conjointly throughout the nominated trafficking period.”
This is in the nature of a request for particulars. There is no suggestion on the material before me that either witness could provide this value without a process of interpreting the telephone conversations and making inferences from the evidence generally. That is the task of the jury.
No substantial reason justifying cross-examination on this issue is established.
ORDERS
The orders of the court will be:
1. The application to cross-examine the witness Smith is refused
2. The application to cross-examine the witness Thiry is allowed
3. I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call STEPHEN JOHN THIRY to be made available for cross-examination on his written statement on the following issues:
a. the qualification of the witness as an expert
b. the extent to which the witness is able and willing to proffer opinions about the content of the recorded conversations
c. the basis of each relevant opinion provided by the witness.
Onea (1994) 74 A Crim R 395 at 400-402 (CCA Qld); R v Parker [2006] QSC 109 at [11] – [14];
Chen v R
[2011] NSWCCA 145
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