R v Gary Shane Austin
[2010] ACTSC 47
•26 MAY 2010
HUMAN RIGHTS ACT
R v GARY SHANE AUSTIN
[2010] ACTSC 47 (26 MAY 2010)
CRIMINAL LAW AND PROCEDURE – Application in proceedings – proceedings against accused be stayed or dismissed – rule 4750, Court Procedures Rules 2006 (ACT)
CRIMINAL LAW AND PROCEDURE – Obligations of Justice of the Peace (ACT) – Manner and form of affidavit – incorrect format of affidavit.
CRIMINAL LAW AND PROCEDURE – Grounds for proceedings to be stayed or dismissed – Contravention of ss 32 and 33 of Evidence Act 1995 (Cth) - manner of execution of search warrants – release of prejudicial information to the media – unrecorded conversation during execution of search warrant – prosecution was malicious – forensic evidence unavailable at the time of committal.
CRIMINAL LAW AND PROCEDURE – Accused complaints of impropriety by the Australian Federal Police – Lack of ACT Supreme Court jurisdiction to consider the complaints – Ombudsman office better placed to deal with complaints of accused.
CRIMINAL LAW – Self represented litigants.
Criminal Code 2002 (ACT), s 603(5)
Court Procedures Rules 2006 (ACT), rr 4750, 6712(4), 6719
Evidence Act 1995 (Cth), ss 8(4)(b), 32, 33, 138
Magistrates Court Act 1930 (ACT), ss 90, 90AA, 90AB
Human Rights Act 2004 (ACT), s 7
Crimes Act 1914 (Cth), ss 23N, 23V
Guidance Notes for Justices of the Peace of the Australian Capital Territory (Canberra: 1993), especially pp 8-10, 14-22 and 31-33).
Choo, A L-T, Abuse of Process and Judicial Stays of Criminal Proceedings (Clarendon Press: Oxford, 1993) p 107
Chesterman M, Chan J, Hampton S, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (2001).
R v Singh (1977) 15 SASR 591
R v Van Beelen (1973) 64 SASR 353
Semayne v Gresham (1604) 5 Co Rep 91a; 77 ER 194
Lippl v Haines (1989) 18 NSWLR 620
Eccles v Bourque (1974) 19 CCC (2d) 129
Dillon v O’Brien & Davies (1887) 16 Cox CC 245
Troubadour v Commonwealth of Australia (1992) 110 FLR 123
Bunning v Cross (1977) 141 CLR 54
Jago v District Court of New South Wales (1989) 168 CLR 23
Rowell v Larter (1986) 6 NSWLR 21
R v Glennon (1992) 173 CLR 592
Murphy v The Queen (1989) 167 CLR 94
A v New South Wales (2007) 230 CLR 500
Kite (1992) 60 A Crim R 226
Re Van Beelen (1974) 9 SASR 163
Fermia v Hand (1984) 53 ALR 731
R v Basha (1989) 39 A Crim R 337
EX TEMPORE JUDGMENT
No. SCC 297 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 26 May 2010
IN THE SUPREME COURT OF THE )
) No. SCC 297 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
GARY SHANE AUSTIN
ORDER
Judge: Refshauge J
Date: 10 May 2010
Place: Canberra
THE COURT ORDERS THAT:
The application is dismissed.
The proceedings be listed for further directions at 9:30, 11 August 2010.
On 6 August 2009, the accused, Gary Shane Austin, was committed by the ACT Magistrates Court for trial in this Court on a count that he trafficked in a traffickable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT).
Mr Austin has now applied to me by Application in Proceedings dated 7 April 2010 for an order under r 4750 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) that the proceedings against him be set aside.
He has filed two affidavits in support of that application. One is said, on its face, to be made (probably affirmed, though “Say on oath” as an alternative was not deleted) on 22 September 2009, though the Justice of the Peace who signed it added under her signature the date 4 April 2010.
It appears that Mr Austin, who appears for himself, prepared the affidavit, possibly from some precedent or other already made affidavit and, omitted to correct the date and form to comply with what he was then doing.
Whilst, of course, a Justice of the Peace or other qualified witness cannot know whether the contents of an affidavit, of which the making by a deponent they are asked to witness, they should be able to ensure that formal matters, such as the manner of making (i.e. oath or affirmation) and the date are correct. For example, they would ordinarily ensure that annexures and exhibits are properly marked. This was another absence in this case where the annexures were not marked or signed by the Justice of the Peace as required by r 6712(4) of the Court Procedures Rules.
In broad terms, these obligations are usefully set out in the publication of the ACT Attorney-General’s Department Guidance Notes for Justices of the Peace of the Australian Capital Territory (Canberra: 1993), especially pp 8-10, 14-22 and 31-33). The publication is somewhat out-of-date as the format of affidavits has since been changed. When and if revised, it should more specifically address the issue of dates and annexures or exhibits consistently with the Court Procedures Rules.
The other affidavit of Mr Austin was made on 6 May 2010 and consists of two annexures (properly witnessed and marked) which appear to be more in the form of submissions than evidence.
As Mr Austin is representing himself and as there appeared to be no particular, or remediable, prejudice in receiving these affidavits, I gave Mr Austin leave to rely on them under r 6719 of the Court Procedures Rules.
The Respondent to the Application, being the prosecution in the proceedings, was represented by Mr M Thomas and relied on one affidavit of Mr Anthony Williamson made on 4 May 2010.
Neither party sought to cross-examine the deponent on any of the admitted affidavits.
Mr Austin also tendered 10 search warrants that had been issued in respect of his residences and certain cars and his person. To these were added the search warrants in this case.
Mr Austin’s Application was for a stay or dismissal of the proceedings and he identified some grounds which separately, or together were, he submitted, sufficient to justify the order. The grounds were not entirely clear but seemed to be that:
(1) the statements made by police officers and used in the committal proceedings did not comply with relevant provisions of the Evidence Act 1995 (Cth), (Evidence Act), especially ss 32 and 33;
(2) the manner of execution of a search warrant on Mr Austin’s premises was so inappropriate that the evidence should be excluded;
(3) the notice had released prejudicial information to the media which meant that he could not get a fair trial;
(4) there was conversation during the execution of the search warrant which was not part of the transcript prepared and part of the brief of evidence provided by the prosecution in accordance with the disclosure obligations;
(5) the prosecution was malicious since a previous charge for possession of cannabis had been terminated when the Director of Public Prosecutions had filed a Notice Declining to Proceed; and
(6) certain forensic evidence was not available at the time of the committal.
The application was opposed.
I shall deal with each ground of the application in turn.
Breach of the Evidence Act(1)
Mr Austin asserts that the statements of the police officers who executed the search warrant on his premises on 23 April 2009 did not make statements about those events until much later. An annexure to Mr Williamson’s affidavit shows that police statements (and I cannot tell which were the officers involved in the execution of the search warrant) were made between 26 May 2009 and 18 June 2009, all well after the date of which the search warrant was executed.
Mr Austin referred to ss 32 and 33 of the Evidence Act. Section 32 relates to attempts to revive memory in court. It is only relevant to any attempt at the trial by a police officer to refer to the statement in court, for which a court must give leave. Whether a court gives leave does depend on, inter alia, whether the statement “was written or made by the witness when the events recorded in it were fresh in his or her memory”. That is a matter of fact to be determined by the court only if an application is made for that purpose. When the statement is made would clearly be relevant, although some authorities have accepted that events may be fresh in a witnesses’ memory even weeks after the event. See R v Singh (1977) 15 SASR 591 and R v Van Beelen (1973) 4 SASR 353.
Ordinarily, of course, a witness will give evidence orally and may not rely on the statement at all or need to use it to revive his or her memory. If, when it comes to the trial, the witness cannot remember the events and give evidence of them and the court refuses leave for the witness to revive his or her memory from the statement, this may prejudice or completely undermine the prosecution.
It is not appropriate, however, to determine that issue now. No application has been made for leave to use the statements in this way and may never be made. Such an application would ordinarily be made to the trial judge at the trial and I see no reason why it should be determined before then.
Section 33 nevertheless permits a police officer to give evidence by reading or being led through statements previously made. There are pre-conditions to that procedure, namely that “the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers” and that he or she signed it.
It seems to me that the temporal difference here is unlikely to permit the public officers to read the Statements as they were made weeks after the events to which they related.
That, however, does not necessarily render the prosecution hopeless, unfair or unlikely to succeed. As noted above, the police would ordinarily be required to give their evidence orally without reading their statements. This, of course, also applies to civilian witnesses, though there do not appear to be any civilian witnesses in this case.
There is no substance in either ground.
There was in the Respondent’s submissions a suggestion that the statements were compiled from contemporaneous notes made by the relevant police officers. Apart from the fact that there was no evidence of this to found that suggestion, it does not seem to me to affect the status of the statements so far as ss 32 and 33 are concerned, though I did not hear much by way of argument on the issue.
I pause to note that the committal in these proceedings may have been what is commonly referred to as a “paper committal”, that is a committal based on the written statements of witnesses and other documents comprised in the prosecution case without any oral evidence being adduced at all.
It might have been suggested that the challenged statements were inadmissible because of these, and other provisions, of the Evidence Act.
That, however, is not so. The provision for paper committals is expressly provided for in ss 90, 90AA and 90AB of the Magistrates Court Act 1930 (ACT). That would be a provision that overrides the provisions of the Evidence Act as is provided for in s 8(4)(b) of that Act.
The manner of execution of the search warrant(2)
Mr Austin alleged that the manner of execution of the search warrant was so improper that the proceedings should be set aside.
His complaints were that:
(a) the police “did not knock on [his] door nor advise they were AFP” until after forced entry;
(b) the forced entry was unnecessary as the door was unlocked and the forced entry caused $1500 damage; and
(c) his disabled, deaf daughter was not provided with a carer who could use sign language even when he had to be separated from her.
The law does provide that a police officer must demand admission and “signify the cause of his coming”: Semayne v Gresham (1604) 5 Co Rep 91a; 77 ER 194 (at 195); Lippl v Haines (1989) 18 NSWLR 620. Before entry by force, the police must be refused entry: Eccles v Bourque (1974) 19 CCC (2d) 129. The force used must be reasonable: Dillon v O’Brien & Davies (1887) 16 Cox CC 245 (at 251); Troubadour v Commonwealth of Australia (1992) 110 FLR 123. Of course, exigent circumstances may justify departure from some of these requirements: Eccles v Bourque (at 134).
As to the complaints concerning his daughter, Mr Austin did not identify any right under the Human Rights Act 2004 (ACT) which he says was infringed. That, of course, is not to say that a right of hers has not been infringed. The Act is not exhaustive of her rights as s 7 of the Act provides.
It is correct that, were Mr Austin’s daughter to have been a suspect or to have been interviewed by police, then they would have been obliged to obtain an interpreter: s 23N of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act). That, however, was not the position here.
There was little particularity of the allegations and the prosecution adduced no evidence about the executing of the search warrant.
It may be that the evidence obtained through execution of the search warrant should be excluded because of impropriety. Section 138 of the Evidence Act so provides, where the court finds that the improperly obtained evidence should not be admitted, having regard to the matters in the section.
Ordinarily, that is the consequence of illegality or impropriety. See Bunning v Cross (1977) 141 CLR 54.
So far, however, the courts have not proceeded on the basis that, as a corollary of this discretion, there should be a discretion to stay proceedings. See Choo, A L-T, Abuse of Process and Judicial Stays of Criminal Proceedings (Clarendon Press: Oxford, 1993) p 107.
In any event, a stay will ordinarily be granted where there is no other remedy available to overcome any unfairness to an accused: Jago v District Court of New South Wales (1989) 168 CLR 23 (at 24). It does not seem to me that this is the position here. While the breaches, if such they are, are serious, they are not so serious that the proceedings should be terminated. It has, for example, been held that a search without a warrant at all, even during a committal proceeding, is not a contempt of court: Rowell v Larter (1986) 6 NSWLR 21.
The absence of evidence from the prosecution about the execution of the search warrant leaves the state of the evidence on the application as being that Mr Austin’s evidence has not been contradicted. The nature of the application, however, is for a stay of the proceedings, not merely to exclude the evidence obtained through the improper execution of the search warrant. The latter application may be made before trial, but needs to be made expressly so that the prosecution knows what is alleged and can be ready with appropriate evidence, if any, in reply.
The release of prejudicial evidence to the media(3)
Mr Austin also submitted that his name had been released to the media by the police and that his name was “deliberately linked” to “cocaine and guns found in National Day of Action”. He annexed two newspaper articles and an internet copy of part of one of those articles.
Those articles referred to police operations in South Australia, Western Australia and Queensland as well as the ACT said to be targeting the members of a certain motor cycle club, the Rebels Motorcycle Club.
Mr Austin’s name was mentioned, but that is common and legitimate after, as had happened, he had appeared in court. So far as I could tell, the report was fair and accurate.
There was no reference to any charges laid in those States, though there was a reference to a total of $300,000 cash being seized and of drugs including amphetamines, ecstasy and heroin, as well as the cannabis which was allegedly seized from Mr Austin’s residence.
The tenor of the articles, however, was that Mr Austin was a member of the Rebels Motorcycle Club and that the police were involved in multi-jurisdictional operations against these members.
Prejudicial publicity can be a ground for the staying of criminal proceedings. There are cases where a permanent stay will be granted where prejudicial publicity has meant that a fair trial cannot be held: R v Glennon (1992) 173 CLR 592 (at 623-4). This, however, must be an extreme case where there has been “a sustained media campaign of vilification and pre-judgment” or similar.
Ordinarily, the courts meet such problems with other remedies. In Murphy v The Queen (1989) 167 CLR 94, Mason CJ and Toohey J noted (at 99):
The courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of others, express directions to the jury to exclude from their minds anything that they may have heard outside the courtroom and the machinery of challenge for cause.
In this case, I could not describe the publicity in the necessary terms to warrant a permanent stay. I note that the trial will not be held until 2011. Thus, there is plenty of time for the effect of the publicity to be diluted.
In any event, strong directions are given to juries in this jurisdiction that they do not take account of any publicity and the research strongly suggests that juries do obey such directions: Chesterman M, Chan J, Hampton S, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (2001).
There is no substance in this ground.
Some of the conversation with Mr Austin has not been transcribed(4)
Mr Austin stated that there were “several conversations with [him] that were not recorded regarding alleged Rebel-like associations and methamphetamines use and traffic.”
The police are not obliged to record every conversation they have with persons, even suspects. Should they wish to rely on such conversations, the position is different, of course. Then, the conversations will ordinarily need to be recorded: s 23V of the Commonwealth Crimes Act.
Indeed, some parts of conversations with police would never be admissible. This could include information about other offences not charged, the suspect’s prior criminal record, and the like. It seems to me that the conversations to which Mr Austin refers fall into this category.
Of course, if he sees some forensic advantage in referring to the conversations at trial, he may do so, if the conversations are relevant and admissible. The absence of recording would not affect its admissibility in this context. As to accuracy, the absence of recording may make this more problematic, but that applies to much evidence.
In the Case Statement, however, there was an allegation that Mr Austin did say “Why are you arresting the dope dealers; why don’t you go and arrest the heroin and ice dealers?” It appears that this statement is one which Mr Austin will challenge.
Mr Thomas, who appeared for the prosecution, fairly and properly conceded that this statement was not recorded and that, if it were to be an admissible admission, he would have to show that the provisions of s 23V of the Commonwealth Crimes Act would permit it to be admitted.
Thus, there is not only a challenge to the truth of the allegation but also to its admissibility. Neither render the proceedings either unfair or such that it should be summarily terminated.
There is no substance in this ground.
The prosecution was malicious(5)
As Mr Thomas submitted, the test for malicious prosecution is a high one. In order to be malicious, the prosecution must be shown to have no reasonable or probable cause for success and must be instituted for a sole or dominant purpose “other than the proper invocation of the criminal law – an ‘illegitimate or oblique motive: A v New South Wales (2007) 230 CLR 500 (at 531).
The task of Mr Austin is not easy for he must prove that there was not a reasonable, or probable cause to institute and prosecute the proceedings. The proof of a negative can be a challenge.
That previous proceedings have been discontinued is irrelevant unless the previous proceedings arise out of the same facts or is based on the same evidence. See, for example, Kite (1992) 60 A Crim R 226.
Here, the previous proceedings related to events prior to 15 March 2007. The current proceedings relate to events which are said to have occurred on 23 April 2009. There is no immediate issue about same facts or some evidence.
Mr Austin could produce none.
As noted above, Mr Austin also tendered other search warrants which had been executed on his premises, himself and cars on various dates since July 2001. The warrants were all apparently executed so far as annotations on them were concerned.
Many of them referred to amphetamines but all, except the most recent referred to cannabis and a number to hydroponic equipment and other indicia of cannabis trafficking.
Mr Austin submitted that nothing had been found on execution of the warrants, but I had no evidence of this. I also did not have his prior criminal record.
Even were those facts accepted, it did not seem to me that the prior execution of such warrants were such as to undermine a prosecution based on the alleged discovery of cannabis following the execution of the most recent warrants.
There is no substance in this ground.
Unavailable forensic evidence(6)
Mr Thomas fairly admitted that the results of DNA analysis of material on some of the cannabis allegedly found hidden on Mr Austin’s premises had not been received and thus had not been available at committal.
It is clear that the prosecution is not limited to producing at trial only that evidence which was adduced and available at committal. On the one hand, the prosecution is not required to call every piece of evidence that has been unearthed during the investigation of an offence: Re Van Beelen (1974) 9 SASR 163 (at 241-8). The prosecution may close its case whenever it sees fit: Fermia v Hand (1984) 53 ALR 731 (at 735). The magistrate’s duty is to decide whether on the evidence before him or her the matter should be committed for trial applying the relevant test.
On the other hand, disclosure obligations mean that the prosecution should not adduce merely the minimum necessary to show that the case should be committed, but also the other relevant evidence likely to be adduced at trial.
In the event that there is additional evidence that comes to the notice of the prosecution, it can, subject to fairness, be adduced at trial. There is, of course, the opportunity under the procedure enunciated in R v Basha (1989) 39 A Crim R 337 for the accused to have the opportunity to cross-examine a witness on voir dire. This preserves fairness. There may, of course, be certain occasions when such late delivery of evidence may be so unfair as to require other court intervention. Mostly, an adjournment would be sufficient. The late service of any DNA evidence in this case does not justify the termination of this prosecution.
There may, of course, be certain occasions when such late delivery of evidence may be so unfair as to require other court intervention. On most occasions, an adjournment would be sufficient. The late service of DNA evidence in this case does not justify the termination of this prosecution.
General
Even taking all the grounds above together, in my view it is not sufficient to show that the continuation of this prosecution would be an abuse of process or so unfair to Mr Austin that it should be terminated.
Many of Mr Austin’s complaints were of procedure and impropriety by the Australian Federal Police. These are matters ordinarily to be dealt with either by exclusion of evidence or by complaint to the Ombudsman. Mr Austin says that he has complained to the Ombudsman. He appears dissatisfied with the results of those complaints. That is not a matter over which I have any control, nor do I have any jurisdiction in this application to deal with such matters.
As to the possibility of exclusion of evidence, many of Mr Austin’s complaints amounted, really, to that issue and a suggestion that that should be done. It does appear that some of these matters need to be considered prior to the trial, at least desirably. I am told that the DNA evidence will be available in July.
Accordingly, I will set a directions hearing in August so as to allow for a proper application to be made thereafter for the agitation of any evidentiary issues that can conveniently be dealt with prior to the trial.
Accordingly, the application is dismissed and the proceeding should be listed for further directions at 9:30am on 11 August 2010. If that is not a suitable date, the matter can be listed on notice to the other party at a certain time.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 26 May 2010
Counsel for the prosecution: Mr M Thomas
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
Counsel for the defendant: Self represented
Solicitor for the defendant: Self represented
Date of hearing: 10 May 2010
Date of judgment: 26 May 2010
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