R v Hutson (Ruling No. 4)[1] - [2024] QDCPR 65

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Hutson (Ruling No. 4)[1] [2024] QDCPR 65

PARTIES:
THE KING

v

JENNIFER JOAN HUTSON

(defendant)

FILE NO:

156 of 2021

DIVISION:

Criminal

PROCEEDING:

Pre-trial hearing pursuant to s 590AA of the Criminal Code.

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

23 October 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

23 September 2024

JUDGE:

Byrne KC DCJ

ORDERS:

1.   The objection to the prosecution calling and adducing evidence-in-chief from Rachel Weeks and James Harding at a pre-trial hearing is upheld.

2.   The application to set aside the subpoena issued in this Court on 12 September 2024 and addressed to the Australian Securities and Investments Commission is granted.

3.   There is no order as to costs on the application to set aside the subpoena.

4.   That the prosecution disclose the document titled R v Jennifer Joan Hutson Witness List + ASIC Contact Log 2024.docx

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF JUDGE – GENERALLY - where a consent order was made requiring two witnesses be made available for cross-examination pre-trial by the defendant – where the defendant no longer requires the witnesses for cross-examination at a pre-trial hearing - where the prosecution intends to adduce evidence-in-chief from them at a pre-trial hearing anyway – where the defendant objects - whether the Court has the power to permit the prosecution to adduce evidence from the witnesses – whether it is appropriate for the Court to exercise its power to allow the prosecution to adduce evidence from the witnesses.

CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS - where the defendant filed an application for a disclosure direction order in respect of emails – where ASIC and the CDPP claimed legal professional privilege over redacted portions of the emails – where the defendant issued subpoenas requiring ASIC to produce the unredacted emails – where ASIC filed an application to set aside or narrow the subpoenas – whether the redacted portions of the emails were the subject of a proper claim of legal professional privilege – where the Court inspected unredacted copies of the emails – whether the subpoena should be set aside or narrowed.

CRIMINAL LAW – PROCEDURE – COSTS – where ASIC successfully applied to have the defendant’s subpoena requiring the production of unredacted emails set aside – where ASIC seeks costs on a standard basis under the UCPR – where the defendant opposes a costs order – whether costs should be awarded.

CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS - where the defendant filed an application for a disclosure direction order in respect of all notes and records of communication with prosecution witnesses, including a witness contact log – where the prosecution submits that the witness contact log is not disclosable and that the information contained within it has been disclosed in a different format –whether the prosecution is obliged to disclose the witness contact log.

LEGISLATION:

Australian Securities and Investments Commission Act 2001 (Cth) s. 19.

Criminal Code Act 1899 (Qld)…

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.

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Details

Case: [2024] QDCPR 65
Decision Date: 23 October 2024

CaseChat Overview and Summary

In the case of R v Hutson, the court was tasked with addressing several significant issues related to the pre-trial procedures in a criminal case. The defendant, Jennifer Joan Hutson, had previously agreed to a consent order that required two witnesses, Rachel Weeks and James Harding, to be available for cross-examination. However, the defendant later decided not to cross-examine these witnesses at a pre-trial hearing, but objected when the prosecution sought to call them to give evidence-in-chief. The court had to determine whether it had the authority to allow the prosecution to present evidence from the witnesses under these circumstances and whether it was appropriate to do so.

The court examined the power of the judge to control the adducing of evidence at pre-trial hearings and concluded that it did have the discretion to permit the prosecution to present evidence-in-chief from witnesses who were required to be made available for cross-examination under a consent order, even if the defendant no longer intended to cross-examine them. However, the court decided that it was not appropriate to exercise this power in the present case, given the defendant's previous agreement to the witnesses' availability and the potential prejudice that could arise from the prosecution presenting evidence-in-chief without the opportunity for cross-examination.

In another aspect of the case, the defendant had sought disclosure of certain emails from the Australian Securities and Investments Commission (ASIC), which ASIC and the Commonwealth Director of Public Prosecutions (CDPP) claimed were subject to legal professional privilege. The court inspected the unredacted emails and found that ASIC's claim of legal professional privilege was not substantiated for the redacted portions. Consequently, the court granted ASIC's application to set aside the subpoena requiring ASIC to produce the unredacted emails. ASIC also sought costs under the Uniform Civil Procedure Rules for the unsuccessful subpoena, but the defendant opposed this. The court decided not to make an order as to costs on the application to set aside the subpoena.

Finally, the defendant had applied for a disclosure direction order in respect of all notes and records of communication with prosecution witnesses, including a witness contact log. The prosecution argued that the witness contact log was not disclosable because the information it contained had already been disclosed in a different format. The court found that the prosecution was obliged to disclose the witness contact log as part of the defendant's application for a disclosure direction order.

Orders

Orders of the court

1. The objection to the prosecution calling and adducing evidence-in-chief from Rachel Weeks and James Harding at a pre-trial hearing is upheld.

2. The application to set aside the subpoena issued in this Court on 12 September 2024 and addressed to the Australian Securities and Investments Commission is granted.

3. There is no order as to costs on the application to set aside the subpoena.

4. That the prosecution disclose the document titled R v Jennifer Joan Hutson Witness List + ASIC Contact Log 2024.docx

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hutson (Ruling No. 4)[1] [2024] QDCPR 65
PARTIES:	THE KING v JENNIFER JOAN HUTSON (defendant)
FILE NO:	156 of 2021
DIVISION:	Criminal
PROCEEDING:	Pre-trial hearing pursuant to s 590AA of the Criminal Code.
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	23 October 2024
DELIVERED AT:	Maroochydore
HEARING DATE:	23 September 2024
JUDGE:	Byrne KC DCJ
ORDERS:	1. The objection to the prosecution calling and adducing evidence-in-chief from Rachel Weeks and James Harding at a pre-trial hearing is upheld. 2. The application to set aside the subpoena issued in this Court on 12 September 2024 and addressed to the Australian Securities and Investments Commission is granted. 3. There is no order as to costs on the application to set aside the subpoena. 4. That the prosecution disclose the document titled R v Jennifer Joan Hutson Witness List + ASIC Contact Log 2024.docx
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF JUDGE – GENERALLY - where a consent order was made requiring two witnesses be made available for cross-examination pre-trial by the defendant – where the defendant no longer requires the witnesses for cross-examination at a pre-trial hearing - where the prosecution intends to adduce evidence-in-chief from them at a pre-trial hearing anyway – where the defendant objects - whether the Court has the power to permit the prosecution to adduce evidence from the witnesses – whether it is appropriate for the Court to exercise its power to allow the prosecution to adduce evidence from the witnesses. CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS - where the defendant filed an application for a disclosure direction order in respect of emails – where ASIC and the CDPP claimed legal professional privilege over redacted portions of the emails – where the defendant issued subpoenas requiring ASIC to produce the unredacted emails – where ASIC filed an application to set aside or narrow the subpoenas – whether the redacted portions of the emails were the subject of a proper claim of legal professional privilege – where the Court inspected unredacted copies of the emails – whether the subpoena should be set aside or narrowed. CRIMINAL LAW – PROCEDURE – COSTS – where ASIC successfully applied to have the defendant’s subpoena requiring the production of unredacted emails set aside – where ASIC seeks costs on a standard basis under the UCPR – where the defendant opposes a costs order – whether costs should be awarded. CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS - where the defendant filed an application for a disclosure direction order in respect of all notes and records of communication with prosecution witnesses, including a witness contact log – where the prosecution submits that the witness contact log is not disclosable and that the information contained within it has been disclosed in a different format –whether the prosecution is obliged to disclose the witness contact log.
LEGISLATION:	Australian Securities and Investments Commission Act 2001 (Cth) s. 19. Criminal Code Act 1899 (Qld)…