R v Faure & Goussis

[2006] VSC 166

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1440 of 2005

QUEEN

v

KEITH GEORGE FAURE

EVANGELOS GOUSSIS

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Ruling No. 1

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September, 3 and 4 October 2005
DATE OF RULING:	4 October 2005
DATE OF REASONS:	3 May 2006
CASE MAY BE CITED AS:	R v Faure & Goussis (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2006] VSC 166

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Criminal Law – Ruling – application to set aside subpoena as an abuse of process not granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Parsons S.C. with Ms R. Carlin	Office of Public Prosecutions
For the Accused Faure	Mr J. Montgomery	Robert Stary & Associates
For the Accused Goussis	Mr R. van de Wiel Q.C. with Mr A. Halphen	Slades & Parsons
For the Witness Garde-Wilson	Mr C. Heliotis Q.C. and Mr S. Shirrefs S.C.

HIS HONOUR:

1. These are my reasons for ruling as I did, on 4 October 2005, that a subpoena should not be set aside as an abuse of process.  The subpoena was one issued by the Prothonotary  on 26 September 2005.  It was directed to Zarah Garde-Wilson.  It required her to attend on 3 October 2005 to attend Court for the purpose of giving evidence at the hearing of murder charges brought against the two accused.

1. Those murder charges were brought following the finding of the body of Sean Vincent, also known as Lewis Caine (“the deceased”), at about 11 p.m. on the night of 8 May 2004.  Within twenty-four hours of the finding of the body, Homicide Squad detectives had spoken with Ms Garde-Wilson.  Ms Garde-Wilson provided substantial co-operation with the police.  What she told those detectives included such matters as: that she was a solicitor; that she had met the deceased as a client of the practice where she was employed; that she had been living with the deceased for a period in excess of two years; that, on 8 May 2004, she had been with the deceased for most of the day.  She also gave information to the police as to other matters including aspects of what she knew as to his background, his links to the accused, his financial position, his preferences as to motor vehicles, and his use of mobile phones.  A draft statement was prepared by the detectives for her to sign.  She declined to sign it.

1. The committal hearing commenced on 28 February 2005.  Nineteen witnesses were examined at the committal hearing.  Ms Garde-Wilson was not one of the nineteen. Nevertheless, a considerable proportion of the time of the committal hearing was concerned with matters linked to her.  In particular, matters were raised by Mr Lewis, counsel representing the accused Faure. At the start of the committal hearing, Mr Lewis raised questions as to Ms Garde-Wilson with the presiding magistrate. Later, Mr Lewis put questions concerning Ms Garde-Wilson to two witnesses who had been former fellow employees of Ms Garde-Wilson, and to Detectives Stamper and Robertson from the Homicide Squad.  A statement of Detective Stamper was tendered at the committal hearing.  It included an account of his having attended on Ms Garde-Wilson on 9 May.  At that time the police had searched, with her consent, the flat occupied by her and the deceased.  The questions asked by Mr Lewis at the committal hearing included some that were directed to getting Detective Stamper to elaborate on aspects of what Ms Garde-Wilson had told the police.  What Detective Stamper said included that he had spoken with Ms Garde-Wilson on 9, 10, 11 and 20 May.  On 20 May, Ms Garde-Wilson had attended on him at the St Kilda Road police complex.  There she had read alone the draft statement prepared from what she had earlier told police. After she had read the draft statement, she said that she would not sign it.  Questions asked by Mr Lewis of other witnesses included ones directed to the knowledge of witnesses as to what information the witnesses had as to what Ms Garde-Wilson knew of guns possessed by the deceased. Mr Lewis pressed the presiding magistrate to require the production to the court of transcripts subpoenaed from the Australian Crime Commission as to the examination before the Commission of Ms Garde-Wilson in June 2004.  The committal hearing  did not conclude until after the magistrate was informed by Mr Lewis that the Commission had answered the subpoena and had provided him with the relevant transcripts.

1. The matter first came before me on 27 September 2005 for a Final Directions Hearing.  On that morning I was provided with “Particulars for Final Directions Hearing” prepared by the prosecution. One of the items listed in those particulars was: “Basha inquiry – Zara Garde-Wilson”.  At the hearing, Mr Forrest Q.C., briefed to appear for the accused Goussis, informed me of his intention to withdraw. He spoke obliquely of “a witness who is not currently a witness on the presentment”. Given what had appeared in the committal hearing transcripts and in the Final Directions Hearing Particulars, it was clear to me that the witness was Ms Garde-Wilson.  I was informed by Mr Parsons S.C. who appeared with Ms Carlin for the prosecution that he had determined on 26 September that Ms Garde-Wilson (although he too chose not to name her) would be called as a witness.  Mr Parsons went on to say that a preliminary inquiry might be necessary depending upon whether she would or would not speak with the prosecution. Given the need for new counsel to be briefed for the accused Faure, I arranged to list the matter for mention on Friday 30 September. It transpired that the matter came before me at 9 a.m. and again later that day.

1. At the 9 a.m. mention, Mr Parsons informed me that the prosecution proposed to call Ms Garde-Wilson on a preliminary inquiry, and that the evidence to be led would be of fairly narrow compass. He adverted to the circumstance that she was the instructing solicitor in the then pending trial for murder of a Mr Williams.  Mr Montgomery for the accused Faure and Mr Van de Wiel for the accused Goussis raised concerns as to the ambit of the evidence of Ms Garde-Wilson and as to the availability of the transcripts of the Australian Crime Commission examinations. Later that day, I was informed of the desirability of a further mention. At that time, Mr Heliotis Q.C. sought, and was granted, leave to appear on behalf of Ms Garde-Wilson.  Mr Parsons indicated that the prosecution proposed to call Ms Garde-Wilson to give evidence based on the draft statement which she had declined to sign, and to address one further matter as to which he expected a claim of privilege to be made, and as to which a ruling might have to be obtained.  As to the matters in the draft statement, they included: how she had spent the day with the deceased; what she had then done; what telephone calls she had heard him receive; his financial position; and, his interest in a motor vehicle.  I was provided with a copy of the draft statement.  I was not provided, then or before I ruled on this matter, with a copy of the Australia Crime Commission transcripts.

1. Mr Heliotis expressed concern as to a number of matters, including: that as Ms Garde-Wilson was not a witness on the presentment, leave would have to be obtained to add her; that she was facing charges in relation to matters that had arisen before the Australian Crime Commission; that it could not be assumed that she would adopt matters in the draft statement; that it could not be assumed that she would answer any questions; that she would probably claim privilege; that if it was ruled that privilege did not apply, she would probably stand mute; that there was no real need to call her;  that he needed her to instruct him in the Williams trial; that she had other commitments in court;  that she was terrified for her life; and, that the position was unlikely to be improved by the limiting of examination–in-chief, since it would be hard for a court to put a brake on cross-examination.  Mr Parsons indicated that the prosecution position was that it would still be appropriate for Ms Garde-Wilson to give important narrative evidence before the jury.  At that time, I noted that I did not propose to give any preliminary direction and said the matter could be brought on for hearing before me again in a more formal way, in whatever manner counsel deemed appropriate.

1. On 3 October, Ms Garde-Wilson attended in court in answer to the subpoena. Mr Parsons applied for leave to add the name of Ms Garde-Wilson to the presentment. I suggested that there might be threshold issues. I adverted to Section 56A of the Magistrates’ Court Act 1989, and to clause 24A of Schedule 5 to that Act. I also queried whether the more appropriate next step was for an application to be made to set aside the subpoena directed to Ms Garde-Wilson. At that time, Mr Heliotis said that application was made to set aside the subpoena for abuse. He submitted that the prosecution was seeking to see if some evidence could be obtained by a coercive investigative process. He argued that any procedure whereby a witness known to take the position that the witness would not answer questions must be an abuse of process. He put to me that there was the additional relevant factor that Ms Garde-Wilson had been charged in relation to an aspect of the material in the unsigned statement. He urged that it be noted that she would be reluctant, as an officer of the court, to not answer questions, and thus potentially be in contempt of court. In the light of matters raised by Mr Heliotis as to his need to have Ms Garde-Wilson as his instructing solicitor in the Williams trial, I suggested that consideration be given to having her represented independently. The matter was stood over until the following day.

1. On 4 October, Mr. Shirrefs S.C. appeared for Ms Garde-Wilson to argue that the subpoena be set aside. In short, he submitted that the Prosecution was fishing, was acting inquisitorially, was acting inconsistently, and was acting too tardily. He put to me that, given, prior to the committal hearing, the prosecution had been aware that Ms Garde-Wilson had provided information, but no statement, it was then and not now that an application should have been made under Section 56A of the Magistrates’ Court Act 1989. Since the time when the election not to so apply had been made, there had been no material change in circumstances. Now, he argued, the prosecution, was fishing for additional evidence. Even though it was unaware of what she will say, the prosecution wanted to have Ms Garde-Wilson examined to see what she will say that might help the prosecution. The prosecution was thus seeking to obtain evidence in an inquisitorial manner, and that was improper and an abuse of process. Further, argued Mr. Shirrefs, given that Ms Garde-Wilson was being prosecuted under the Australian Crime Commission Act as to charges alleging that she gave false and misleading evidence to the Commission, there was an inconsistency in the prosecution seeking to have a person give evidence whom the prosecution could not hold out as a witness of truth.

1. Mr. Shirrefs cited no authority to me.  He sought no adjournment to have evidence by way of affidavit or otherwise placed before me.  He did not raise with me a number of matters that had been raised by Mr. Heliotis, as to the position of Ms Garde-Wilson as to why she did not want to give evidence or what course she would follow if required to do so.  The matters that he did raise fell very much short of satisfying me that I should take the exceptional course of setting aside the subpoena. I could not accept that the prosecution was engaged in a fishing exercise.  I had before me the draft statement and the transcript from the committal hearing.  From those sources, I had available to me a more than adequate basis for concluding that she was a relevant witness, and one whom the prosecution would be expected to call in accordance with the principles set out in cases such as R v Apostilides (1984) 154 CLR 563. I could not accept that the circumstance that the prosecution had chosen not to make application under Section 56A is a matter of great significance. Prosecutorial assessments as to the potential probative value of evidence coming from a reluctant witness can differ. The call made prior to a committal could readily be seen later to be inappropriate. I was not prepared to treat a choice as requiring total closure. There was no evidence of any bad faith on the part of the prosecution.

1. I could not accept that the circumstance that Ms Garde-Wilson was the subject of outstanding charges, including of giving false and misleading evidence, must lead to, or make any substantial contribution to, a conclusion that she should not be treated like every other witness.  There is no acceptable categorising for all circumstances of people as those who are “witnesses of truth” and  those who are not.  Because it accords with commonsense, juries are routinely told that they can accept or reject all or part of the evidence of any witness.  I do accept that the circumstance of the outstanding charges would be likely to mean that a preliminary examination would be attended with a particular concern as to matters such as the protection of the privilege against self-incrimination.  A need to be attentive as to how the examination proceeds is quite a different thing from precluding the examination from being held.  I can seen no substance in the claim of coercive or inquisitorial examination.  There are long established principles designed to ensure that each accused should know the case against him or her.  That means that the accused should know what a witness can be expected to give by way of relevant and probative evidence.  It is not trial by ambush.  The principles requiring very full disclosure on the part of the prosecution are very much more a shield in place to protect the accused, than a sword to be used to permit an unwilling witness to opt out.  No-one could look forward to giving evidence at a murder or any other criminal trial.  But as the object of such a trial is to acquit the innocent and convict the guilty, only those who have compelling reasons should be able to avoid doing so.  Here I found the reasons far from compelling.