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R v Handlen

R v Handlen

Case [2012] QSC 317 31 October 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Handlen & Ors [2012] QSC 317

PARTIES:

THE QUEEN
v
HANDLEN, PADDISON & NERBAS
(applicants)

FILE NO/S:

SC No 87 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

31 October 2012

DELIVERED AT:

Brisbane

HEARING DATES:

10 September, 11 September, 28 September, 3 October 2012

JUDGE:

Dalton J

ORDERS:

1.  The application made by Handlen of 14 June 2012 is dismissed.

2.  The application made by Paddison of 3 September 2012 is dismissed.

3.  Paragraph 2 of the application made by Nerbas of 21 August 2012 is dismissed and the application is otherwise adjourned to the trial judge.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION
TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – application pursuant to s 590AA of the Criminal Code to exclude evidence of a witness at trial – where the applicants allege that evidence was obtained by the Australian Federal Police offering inducements to Reed and engaging in improper
and unlawful conduct – offering inducements to witnesses and co-accused – where the same matter was raised by way of an application under s 590AA previously on the different indictment – whether s 590AA(3) applies – issue estoppel in criminal law – whether an abuse of process for an accused person to re-litigate an issue – whether an extant verdict is a factual prerequisite to a finding of abuse of process – whether conduct of police was in breach of Crimes Act 1914 (Cth) – whether conduct of police in breach of Corrective Services Act 2006 (Qld) – exercise of Bunning v Cross discretion – whether it would be unfair for Reed’s evidence to be led against the applicants s 130 Evidence Act 1977

Corrective Services Act 2006 (Qld)
Crimes Act 1914 (Cth)
Evidence Act 1977 (Qld)

Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Castillon v P&O Ports Limited (No 2) [2008] 2 Qd R 219
DA Christie Pty Ltd v Baker [1996] 2 VR 582
Handlen v R; Paddison v R [2011] HCA 51
Moti v R [2011] HCA 50
Mraz v The Queen (No 2) (1956) 96 CLR 62
PPP v QQQ [2011] VSC 186
Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58
R v Edwards [1998] 2 VR 354
R v Falzon [1990] 2 Qd R 436
R v GK [2001] NSWCCA 413
R v Gladkowski [2000] QCA 352
R v Kim [1999] VSC 56
R v NP; ex parte A-G (Qld) [2012] QCA 116
R v Nerbas [2011] QCA 199
R v Petroulias (No. 1) [2006] NSWSC 788
R v Sheehy [2005] 1 Qd R 418
R v Steindl [2002] 2 Qd R 542
R v Storey (1978) 140 CLR 364
R v Thomas [2006] VSCA 165
R v Wilkes (1948) 77 CLR 511
Rogers v The Queen (1994) 181 CLR 251
Walton v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Handlen

Details

AGLC: R v Handlen [2012] QSC 317
Case: [2012] QSC 317
Decision Date: 31 October 2012

CaseChat Overview and Summary

In the case of R v Handlen, the applicants sought to exclude evidence provided by a witness at their trial, alleging misconduct by the Australian Federal Police (AFP). The applicants argued that the police had improperly induced witnesses, including a co-accused, and that the evidence was therefore unfairly obtained. The dispute was heard in the court, which had to determine whether to exclude the evidence under s 590AA of the Criminal Code. The applicants had previously raised similar issues in another application under s 590AA, prompting the court to consider whether this constituted an abuse of process and whether an issue estoppel was applicable in criminal law.

The court examined whether the conduct of the police breached the Crimes Act 1914 (Cth) and the Corrective Services Act 2006 (Qld), and whether it was appropriate to exercise the Bunning v Cross discretion to exclude the evidence. The court considered the nature of the inducements offered by the police and whether it would be unfair to admit the evidence against the applicants. The applicants argued that the police conduct amounted to a breach of both the Commonwealth and Queensland statutes, and that the evidence should be excluded on the basis of unfairness under s 130 of the Evidence Act 1977.

After considering the evidence and arguments, the court found that the conduct of the police did not breach the applicable statutes. The court also held that the applicants' previous application under s 590AA did not constitute an abuse of process, and that issue estoppel was not applicable in this context. The court concluded that it would not be unfair to admit the evidence against the applicants. Consequently, the court dismissed all applications to exclude the evidence and ordered the proceedings to continue.

Orders

Orders of the court

1. The application made by Handlen of 14 June 2012 is dismissed.

2. The application made by Paddison of 3 September 2012 is dismissed.

3. Paragraph 2 of the application made by Nerbas of 21 August 2012 is dismissed and the application is otherwise adjourned to the trial judge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Handlen [2012] QSC 317

Most Recent Citation

R v Handlen [2015] QCA 292

Cases Citing This Decision

R v Thompson (No 3) [2017] ACTSC 53
Citation 1 (Para 1)

…In R v Handlen [2012] QSC 317, Dalton J was asked to consider a pre-trial application where the convictions of the accused at their first trial had been set aside by the High Court and a re-trial ordered. The Crown presented a fresh indictment for the trial.…
Judgment Suppressed [2016] WADC 70
Citation 2 (Para 5)

…give rise to an abuse of process as identified by the High Court in Rogers v The Queen (1994) 181 CLR 251 and as discussed by Dalton J in R v Handlen [2012] QSC 317, [10] ‑ [21]. I do not accept that the State are precluded from making this application because of an earlier ruling.…
R v Handlen [2015] QCA 292
Citation 3 (Para 3)

…s such as to warrant the exclusion of Reed’s evidence under s 130 Evidence Act .[30] [25] R v Nerbas [2011] QCA 199. [26] R v Handlen & Ors [2012] QSC 317. [27]Above, [22]. [28]Above, [24]. [29]Above, [25] – [58]. [30]Above, [59] – [60].…

See all citing cases →

Cases Cited

R v Naylor; ex parte [2012] QCA 116
Citation 1 (Para 1)

…principle. The public policy considerations as to co-operation are set out in R v Gladkowski. [25] [24][2006] VSCA 165 and R v NP; ex parte A-G (Qld) [2012] QCA 116. [25][2000] QCA 352 [7].…
Handlen v The Queen [2011] HCA 51
Citation 2 (Para 1)

…set aside by the Court of Appeal in 2011.[2] The Crown has now presented a new indictment against all three defendants. [1] Handlen v R; Paddison v R [2011] HCA 51. [2] R v Nerbas [2011] QCA 199.…
Moti v The Queen [2011] HCA 50
Citation 3 (Para 1)

…re unable to agree - [64] and [66]. [15] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 [1]; Rogers , p 255-t6; Moti v R [2011] HCA 50.…
R v Nerbas [2011] QCA 199
Citation 4 (Para 1)

…al in 2011.[2] The Crown has now presented a new indictment against all three defendants. [1] Handlen v R; Paddison v R [2011] HCA 51. [2] R v Nerbas [2011] QCA 199.…
PPP v QQQ as the representative of the Estate of RRR (deceased) [2011] VSC 186
Citation 5 (Para 1)

…rty Services Pty Ltd v Madzoski [2008] WASCA 58, [66]; Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592, and PPP v QQQ [2011] VSC 186.…
R v Handlen & Paddison [2010] QCA 371
Citation 6 (Para 1)

…e Court of Appeal in R v Handlen & Paddison commented that Reed’s evidence was “amply supported” by other evidence.[27] [27][2010] QCA 371 [72].…
Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592
Citation 7 (Para 1)

…ed, followed in Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58, [66]; Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592, and PPP v QQQ [2011] VSC 186.…
Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58
Citation 8 (Para 1)

…354, 356. [12][2008] 2 Qd R 219, per Holmes JA with whom Wilson J agreed, followed in Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58, [66]; Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592, and PPP v QQQ [2011] VSC 186.…
R v Thomas [2006] VSCA 165
Citation 9 (Para 1)

…therein. In my view this argument is wrong in principle. The public policy considerations as to co-operation are set out in R v Gladkowski. [25] [24][2006] VSCA 165 and R v NP; ex parte A-G (Qld) [2012] QCA 116. [25][2000] QCA 352 [7].…
R v Petroulias (No. 1) [2006] NSWSC 788
Citation 10 (Para 1)

…verdict. [13]See eg., Rogers at [22] and [19] and Edwards 356 and 362 and see R v GK [2001] NSWCCA 413, and the discussion in R v Petroulias (No. 1) [2006] NSWSC 788, see also R v Kim [1999] VSC 56, particularly [12].…
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Citation 11 (Para 1)

…ugh, note, the jury in the first trial in GK were unable to agree - [64] and [66]. [15] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 [1]; Rogers , p 255-t6; Moti v R [2011] HCA 50.…
R v GK [2001] NSWCCA 413
Citation 12 (Para 1)

…conclusiveness or otherwise of a s 590AA ruling before and after verdict. [13]See eg., Rogers at [22] and [19] and Edwards 356 and 362 and see R v GK [2001] NSWCCA 413, and the discussion in R v Petroulias (No. 1) [2006] NSWSC 788, see also R v Kim [1999] VSC 56, particularly [12].…
R v Gladkowski [2000] QCA 352
Citation 13 (Para 1)

…c policy considerations as to co-operation are set out in R v Gladkowski. [25] [24][2006] VSCA 165 and R v NP; ex parte A-G (Qld) [2012] QCA 116. [25][2000] QCA 352 [7].…
R v Kim [1999] VSC 56
Citation 14 (Para 1)

…2] and [19] and Edwards 356 and 362 and see R v GK [2001] NSWCCA 413, and the discussion in R v Petroulias (No. 1) [2006] NSWSC 788, see also R v Kim [1999] VSC 56, particularly [12].…
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Citation 15 (Para 1)

…pplications may give the impression that an applicant has “hawked the application from judge to judge”.[8] [6] DA Christie Pty Ltd v Baker [1996] 2 VR 582. See the discussion as to this in Rogers v The Queen (1994) 181 CLR 251, p 265, per Brennan J. [7] Walton v Gardiner (1993) 177 CLR 378, 393, Rogers (abo…
Rogers v The Queen [1994] HCA 42
Citation 16 (Para 1)

…ked the application from judge to judge”.[8] [6] DA Christie Pty Ltd v Baker [1996] 2 VR 582. See the discussion as to this in Rogers v The Queen (1994) 181 CLR 251, p 265, per Brennan J. [7] Walton v Gardiner (1993) 177 CLR 378, 393, Rogers (above); DA Christie (above). [8] DA Christie (above), per Hayne JA, p 602.…
Walton v Gardiner [1993] HCA 77
Citation 17 (Para 1)

…6] DA Christie Pty Ltd v Baker [1996] 2 VR 582. See the discussion as to this in Rogers v The Queen (1994) 181 CLR 251, p 265, per Brennan J. [7] Walton v Gardiner (1993) 177 CLR 378, 393, Rogers (above); DA Christie (above). [8] DA Christie (above), per Hayne JA, p 602.…
R v Storey [1978] HCA 39
Citation 18 (Para 1)

…77 CLR 511, 518-9, and the decision of the High Court in Mraz v The Queen (No 2) (1956) 96 CLR 62 was in favour of such a principle. In R v Storey (1978) 140 CLR 364 the High Court divided on the issue.…
Bunning v Cross [1978] HCA 22
Citation 19

…“The procuring of the statement is said to enliven a judicial discretion to exclude the evidence on high public policy grounds: cf Bunning v Cross (1978) 141 CLR 54, at 74 and R v Falzon [1990] 2 Qd R 436, at 439.” – t 2. “… that inducements offered to Reed to supply information concerning his activities and those o…
Mraz v The Queen (No 2) [1956] HCA 54
Citation 20 (Para 1)

…ng this matter. [9]Dixon J thought that it did – R v Wilkes (1948) 77 CLR 511, 518-9, and the decision of the High Court in Mraz v The Queen (No 2) (1956) 96 CLR 62 was in favour of such a principle. In R v Storey (1978) 140 CLR 364 the High Court divided on the issue.…
R v Wilkes [1948] HCA 22
Citation 21 (Para 1)

…ourt in Rogers that it does not. Therefore the parties are not estopped from re-litigating this matter. [9]Dixon J thought that it did – R v Wilkes (1948) 77 CLR 511, 518-9, and the decision of the High Court in Mraz v The Queen (No 2) (1956) 96 CLR 62 was in favour of such a principle. In R v Storey (1978) 140 CLR…

Legislation Cited

Corrective Services Act 2006 (Qld)
1 mention (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Evidence Act 1977 (Qld)
1 mention (from Para 1)

CITATION:	R v Handlen & Ors [2012] QSC 317
PARTIES:	THE QUEEN v HANDLEN, PADDISON & NERBAS (applicants)
FILE NO/S:	SC No 87 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	31 October 2012
DELIVERED AT:	Brisbane
HEARING DATES:	10 September, 11 September, 28 September, 3 October 2012
JUDGE:	Dalton J
ORDERS:	1. The application made by Handlen of 14 June 2012 is dismissed. 2. The application made by Paddison of 3 September 2012 is dismissed. 3. Paragraph 2 of the application made by Nerbas of 21 August 2012 is dismissed and the application is otherwise adjourned to the trial judge.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – application pursuant to s 590AA of the Criminal Code to exclude evidence of a witness at trial – where the applicants allege that evidence was obtained by the Australian Federal Police offering inducements to Reed and engaging in improper and unlawful conduct – offering inducements to witnesses and co-accused – where the same matter was raised by way of an application under s 590AA previously on the different indictment – whether s 590AA(3) applies – issue estoppel in criminal law – whether an abuse of process for an accused person to re-litigate an issue – whether an extant verdict is a factual prerequisite to a finding of abuse of process – whether conduct of police was in breach of Crimes Act 1914 (Cth) – whether conduct of police in breach of Corrective Services Act 2006 (Qld) – exercise of Bunning v Cross discretion – whether it would be unfair for Reed’s evidence to be led against the applicants s 130 Evidence Act 1977 Corrective Services Act 2006 (Qld) Crimes Act 1914 (Cth) Evidence Act 1977 (Qld) Armacel Pty Ltd v Smurfit Stone Container Corp [2008] FCA 592 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Castillon v P&O Ports Limited (No 2) [2008] 2 Qd R 219 DA Christie Pty Ltd v Baker [1996] 2 VR 582 Handlen v R; Paddison v R [2011] HCA 51 Moti v R [2011] HCA 50 Mraz v The Queen (No 2) (1956) 96 CLR 62 PPP v QQQ [2011] VSC 186 Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 R v Edwards [1998] 2 VR 354 R v Falzon [1990] 2 Qd R 436 R v GK [2001] NSWCCA 413 R v Gladkowski [2000] QCA 352 R v Kim [1999] VSC 56 R v NP; ex parte A-G (Qld) [2012] QCA 116 R v Nerbas [2011] QCA 199 R v Petroulias (No. 1) [2006] NSWSC 788 R v Sheehy [2005] 1 Qd R 418 R v Steindl [2002] 2 Qd R 542 R v Storey (1978) 140 CLR 364 R v Thomas [2006] VSCA 165 R v Wilkes (1948) 77 CLR 511 Rogers v The Queen (1994) 181 CLR 251 Walton v…