R v Lawrence (No. 3)

[2003] NSWSC 655

CITATION:	R v Lawrence (No. 3) [2003] NSWSC 655 revised - 19/08/2004
HEARING DATE(S):	04/02/03 - 10/07/03
JUDGMENT DATE:	25 February 2003
JUDGMENT OF:	Howie J at 1
DECISION:	The application to restrain the Crown from calling the witness Van Bommel or to reject his evidence under s 138 of the Evidence Act is refused.
CATCHWORDS:	Criminal Law and Procedure - Admissibility of evidence of co-conspirators which was obtained in contravention of the provisions of the Crimes Act 1912 (Cth) or as a consequence of such a contravention.
LEGISLATION CITED:	Crimes Act 1912 (Cth) - Part 1C, sub ss 23B(4), 23B(5) Evidence Act 1995 - ss 137, 138, 165
CASES CITED:	Ho; Tran v Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37 Basha (1989) 39 A Crim R 337
PARTIES :	Regina v John Lawrence
FILE NUMBER(S):	SC 70220/02
COUNSEL:	P. Roberts SC with I. Bourke - Crown C. Waterstreet - Accused
SOLICITORS:	Commonwealth DPP - Crown King's Lawyers - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

TUESDAY 25 FEBRUARY 2003

70220/02 R v John LAWRENCE (NO. 3)

JUDGMENT

1 Howie J: During the trial of the accused the Crown intends to call in its case a witness, who, the Crown will assert, was a participant in the conspiracy with which the accused and others have been charged. Mr Waterstreet, who appears for Mr Lawrence, has submitted that the Court should restrain the Crown from calling the witness on the basis that the evidence, which it is anticipated that the witness would give, was obtained in such a manner that the Court should not allow the Crown to rely upon it at the trial of the accused. In this regard Mr Waterstreet relies upon the judgment of Ireland J in Ho; Tran v Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37. In the alternative it is submitted that the evidence was obtained either in contravention of the provisions of the Crimes Act 1912 (Cth) or as a consequence of such a contravention, and, therefore, is rendered inadmissible by reason of s 138 of the Evidence Act.

2 There is a further application that I require the attendance of the witness before he is called to give evidence in the trial for the purposes of his being cross-examined by defence counsel, see Basha (1989) 39 A Crim R 337. There has been two bases put forward to support that application: to investigate through cross-examination of the witness, firstly, whether he has previously been involved in drug offences, and, secondly, the circumstances surrounding his detention and questioning before he was charged with any offence.

3 The Crown has alleged that the accused was a party to a conspiracy to import into Australia 120 kilograms of cocaine from South America. It is the Crown case that the witness, Wouter Van Bommel, was also a party to that conspiracy and travelled to Australia in order to assist in the retrieval of the drugs once it arrived in Australian waters. It is unnecessary for the purposes of determining this application to set out the Crown’s allegations in any detail. It is sufficient to indicate that the conduct of the alleged conspirators was under surveillance of officers of the National Crime Authority (the NCA) from the time when the Crown alleges that the conspiracy commenced until the vessel, which travelled from South America, arrived and the drugs were off-loaded in a shallow part of the sea off the coast of Queensland, called Kelso Banks.

4 On 5 August 2001, Customs officers at Sydney International Airport detained the witness. By this time the NCA was aware that the drugs had been off-loaded but they were unaware of their exact location. NCA officers arrived at the airport and received Van Bommel into their custody. He was placed in an interview room and spoken to in private by Agent Everingham assisted by another member of the NCA, as an interpreter. That conversation was not recorded. However, there seems to be little dispute that Everingham was endeavouring to induce Van Bommel to assist the NCA by implicating others in the conspiracy and ultimately giving evidence on behalf of the prosecution.

5 Following this conversation, the witness was interviewed briefly by other NCA officers and was asked to assist in the retrieval of the cocaine. He supplied them with the co-ordinates for Kelso Banks and agreed to accompany the officers to that location. It is unclear from the material before me, why the officers thought that this person could assist them in recovering the drugs when he had never been to the Banks. Others who are alleged to have been involved directly in off-loading the drugs were apparently in custody, but I know nothing about their availability or willingness to assist.

6 Although Van Bommel was arrested on 5 August, he was not charged with any offence on that date. He was interviewed at Federal Police Headquarters in Sydney with the assistance of a Spanish interpreter. He was asked whether he wished to contact a solicitor and answered that he did but had no money to pay for one. He was told that an attempt would be made to contact a solicitor on his behalf and the interview was suspended. Later that evening the interview was recommenced but did not continue because a solicitor was not available. Van Bommel confirmed that he was still willing to assist the Authority. There was no further interview recorded until 11 August, when the witness was returned to Sydney after accompanying officers to Kelso Banks in a Custom’s vessel. Although the place where the drugs had been placed overboard in containers anchored to the Banks was located, the drugs were not found.

7 During the course of the trip to and from Kelso Banks, the witness was not interviewed about the participation of himself and others in the importation of the cocaine. One taped conversation that took place on board the vessel on the return voyage from Kelso Banks was played as evidence in this application. During that short conversation, the witness was asked to confirm the conditions of his custody on the vessel. In effect he agreed that he was being well treated and was prepared to continue assisting the police. He agreed that, during rough seas the night before, he had been struck on the head by a speaker falling from a shelf above him but he said that he did not want medical assistance.

8 On 11 August a recorded interview was recommenced between the witness and Agents Everingham and Quinn of the NCA. The witness confirmed that he had been assisting the Authority with its investigations on the understanding that that assistance would not be used in evidence against him. However, he agreed to participate in further interviews on the basis that what he said would be used in evidence and without having spoken to a solicitor. He confirmed that he was willing to provide a statement to the officers in relation to the involvement of other persons in the importation. The interview was conducted using a Spanish interpreter. It is unnecessary to detail the contents of that interview which continued into the next day, 12 August, but apparently it is this account that forms the basis of his later statements and the evidence that he would give if called by the Crown at this trial.

9 On 13 August the witness was charged with the offence of conspiracy to import a commercial quantity of cocaine. He ultimately pleaded guilty to that offence before the New South Wales District Court and was sentenced to a term of imprisonment. During the sentencing proceedings, there was tendered an undertaking by the witness to give evidence for the Crown in accordance with statements made by him in September, November and December 2001. He received a discount of his sentence on the basis of his past and future assistance to the authorities including giving evidence against the accused.

10 From 19 to 21 June 2002 the witness gave evidence at committal proceedings and was cross-examined by the solicitor for the accused. That cross-examination touched on the circumstances in which he came to make the recorded interview on 11 August 2001. Although the magistrate was of the view that some of the cross-examination of the witness was not of assistance to him, there does not appear to have been any restriction imposed upon the solicitor for the accused or any other person cross-examining the witness as to the areas of his evidence that could be investigated.

11 In particular there was cross-examination concerning what had occurred at the airport after the arrival of officers from the NCA. During the course of that questioning the witness conceded that these officers had indicated to him the nature of the evidence available that would implicate him and others in the conspiracy and that they induced him to assist the NCA by the promise of a discount of the sentence he would receive for his involvement in the offence.

12 In support of the submission that I should permit the further cross-examination of the witness in what is commonly referred to as a “Basha inquiry”, Mr Waterstreet informed the Court that he was in possession of information to the effect that the witness had told another prisoner that, during the period he was in custody of NCA officers prior to the interview of 11 August, he had been the subject of threats and physical violence by those officers which resulted in his participating in the interview even though he was unwilling to assist them. I was told that the defence had in its possession a signed statement from the prisoner concerning those conversations. Mr Waterstreet stated that he wished to cross-examine the prisoner about those matters in order to support his application that I should restrain the Crown from calling the witness.

13 I do not believe that the application for a Basha inquiry has any merit. In so far as the application is based upon a request to investigate whether the witness has any criminal record or prior involvement in drug trafficking, there is no purpose to be served by such questioning in advance of the trial. The only material presently available is that the witness has no criminal record. The Crown has undertaken to notify the defence of anything of which they are aware which is contrary to that position. In any event this was a matter that could have been investigated by cross-examination at committal proceedings but does not appear to have been pursued. I do not understand how the trial of the accused would be assisted by cross-examination on this topic in the absence of the jury. It is not sufficient to justify such an inquiry that defence counsel wishes an opportunity to run a line of questioning in advance of the trial simply to see what it produces.

14 Insofar as the inquiry is aimed at investigating the nature of the witness’s custody prior to 11 August and the circumstances surrounding the interview, which commenced on that date, I cannot see any warrant for it. The defence were entitled to question the witness on those topics at the committal proceedings and did so to an extent. However, Mr Waterstreet submits that the further cross-examination is necessary because of the new material that is now in the possession of the defence. Of course statements attributed to one prisoner by another are notoriously unreliable, particularly where they assist in the defence of another prisoner. But even if the witness were to accept that he made those statements and that they were true, there would be no basis for the Court to reject his evidence under s 137 of the Evidence Act, or otherwise, in light of the other material before the Court, such as the taped conversation, the recorded interview and the answers given by the witness in committal proceedings.

15 There is a significant body of apparently reliable material which indicates that the witness was voluntarily assisting the police, was well treated during his period of custody prior to 11 August and was participating in the interview on that date and the next day in order to derive a sentencing discount by assisting the authorities. Apart from that inducement, there is nothing to suggest that his later statements or the evidence that he is expected to give at the trial are so unreliable that his evidence should be excluded. Even if the witness were now to assert that he had been mistreated by police and that statements he made were involuntary, it would be a matter for a jury to assess the apparently conflicting evidence on this topic and ultimately determine whether any account he has given can be acted upon in light of the other evidence before them.

16 I refuse the application for a Basha inquiry because I do not see how it is necessary to ensure a fair trial of the accused or to enable the Court to exercise any power it may have to reject the evidence to be given by the witness.

17 On the material before me it is open to conclude that the witness was unlawfully detained when, following his arrest on 5 August, he was taken to Kelso Banks, without being charged with any offence. I am prepared to accept for the purposes of the present application that the witness was also unlawfully detained during the period in which he participated in the recorded interview on 11 and 12 August. The basis of the illegality is that the arresting officers failed to comply with the provisions of Part 1C of the Crimes Act (Cth). That Part regulates the detention of persons arrested for a Commonwealth offence and prescribes the period during which the arrested person may be detained and the circumstances of that detention. The arresting officers did not comply with those provisions when they chose to take the witness to Kelso Banks.

18 It is unnecessary for the present application to set out the relevant provisions or the scheme which Part 1C prescribes for the detention of arrested persons. Generally speaking, the provisions permit the detention of a person for no longer than a period of eight hours. As in the present case the witness was detained for a period of a week between arrest and charge, there seems to be little purpose in examining how the scheme operates and the statutory exemptions to the time limit. There was some suggestion in the evidence given by Agent Quinn at committal proceedings that the witness was taking part in a “covert investigation” over this period and, therefore, was exempted from the operation of the time limit pursuant to subs 23B(4) of the Crimes Act. Subsection 23B(5), as it was at the time of the detention of the witness, provided that the exemption under subs 23B(4) applies:

“to covert investigations conducted by the investigating official for the purpose of investigating whether a person other than the arrested person has been involved in the commission of an offence or suspected offence (whether a Commonwealth offence or not).

19 I do not believe that subs 23B(5) had any operation in the present case. The major purpose of the detention was said to be so that the witness could assist in the recovery of the drugs from Kelso Banks and, thereafter, to participate in an interview implicating himself and others so that he would obtain a sentencing discount for assisting the investigators. This does not, in my view, fall within the ambit of subs 23B(5). However, while the detention of the witness was not exempted from the provisions by subs 23B(4), there is evidence that the police believed that it was, and the existence of that provision does tend to suggest that, while the detention of the witness was in breach of Part IC, the breach was in all the circumstances not a particularly serious one. There is no significant difference between a “covert investigation” under the Part and what the police did in the present case, given that the witness was willing to go with the officers to Kelso Banks to aid in the retrieval of drugs and was willing to further assist investigators by taking part in a lengthy interview implicating himself and others.

20 But it does not follow that, simply because the witness was being detained in contravention of the provisions of Part 1C of the Crimes Act (Cth) when he participated in the interview which commenced on 11 August, I should refuse to allow him to give evidence before the jury or I should reject his evidence under s 138 of the Evidence Act. It may be the case that, had the witness pleaded not guilty and stood trial, he would have been successful in having the record of interview and any subsequent statements made by him rejected from the Crown case against him. The circumstances of his arrest and detention and the inducements made to him to implicate himself, might have been sufficient to require the trial judge to reject the admissions under one or more of the provisions of the Evidence Act because of the potential unreliability of the admissions or because it would have been unfair to use them against him.

21 However, this application is concerned not with the admission of the witness’s statements against him, but with evidence that it is expected the witness will give against the accused. I can only reject the evidence under s 138, if I am satisfied that the evidence he would give was obtained improperly or in contravention of an Australian law or as a consequence of an impropriety or such a contravention. Further, I must reject the evidence under s 137 if its reception would unfairly prejudice the accused.

22 I am not satisfied that any evidence that the witness might give falls within s 138 of the Evidence Act. Even giving the words of that section their widest import having regard to the policy behind the section, I am completely unpersuaded that the evidence of the witness was obtained unlawfully or improperly or as a consequence of an illegality or an impropriety. It is expected that the witness will give evidence in accordance with the undertaking that he gave and which was tendered during the sentencing proceedings in the District Court. That undertaking states that he will give evidence in accordance with three statements made after the witness had been charged with the offence of conspiracy. There is nothing to suggest that s 138 would apply to any of those statements. Clearly the evidence, which the witness would give in this Court, was obtained as a result of the undertaking to give evidence against the accused and the consequential discount he was given by the sentencing judge. There can be little doubt that he will give evidence before the jury because of his undertaking to do so and because, if he does not give the evidence, he risks having his sentence increased on a Crown appeal.

23 I am willing to accept that the statements mentioned in the undertaking are at least consistent with what he told police in the recorded interview which commenced on 11 August. But it does not follow that those statements were obtained as a consequence of that interview or his illegal detention at the time. I know nothing about the circumstances surrounding the taking of those statements. But in any event, the evidence before me leads overwhelmingly to the conclusion that the witness’s participation in the interview taken on 11 August had nothing to do with the fact that he was illegally detained but because of the inducements held out to him to assist the authorities after his arrest on 5 August, during his detention and at the outset of the interview.

24 While such inducements might lead to the rejection of his admissions at a trial of the witness that is not because they were either improper or unlawful. The evidence would be rejected because the resultant admissions might be unreliable or because the use of the admissions made in such circumstances would be unfair to the witness.

25 In my view s 138 is not engaged in the present case. I am far from satisfied that in the circumstances of this case, particularly having regard to the nature of the detention, that the illegality of the detention had any impact upon the decision of the witness to participate in the interview on 11 August. He took that course in order to obtain a benefit for himself. That attitude continued through the making of his subsequent statements and in providing the undertaking to give evidence against the accused. Presumably it will continue when he gives evidence before the jury in accordance with his undertaking and in order to retain the discount he obtained. Whether or not the doctrine of “the fruit of the poisoned tree” has any application under the Evidence Act, it has no application in this case. “The tree” upon which his interview grew was not poisoned by the illegality of his detention. But even if, in some way, it could be said that the evidence that the witness would give before the jury can be traced to its source in the recorded interview of 11 and 12 August, and thus was obtained as a consequence of the illegality of his detention, I would still admit the evidence. A consideration of the matters set out in the s 138(2) would require that the evidence be admitted, given the relatively minor nature and extent of the illegality in the peculiar circumstances of this case and the importance of the evidence to the Crown case on such a serious charge.

26 Nor is there any basis to reject the evidence under s 137 of the Act. Although the witness’s evidence might be unreliable, both because he is an alleged co-conspirator and because of the benefit he received by implicating others, the jury will be warned under s 165 of the Act as to those matters. This is not a case where, in light of those warnings, there is any real prospect that the jury will not properly evaluate the evidence and give it what weight it deserves having regard to the balance of the Crown’s case.

27 The circumstances in which the Crown is intending to call the witness bears no similarity to the situation that was considered by Mr Justice Ireland in Ho, above. His Honour had before him proceedings for an injunction brought by a witness who was to be called by the prosecution in breach of an undertaking made by the prosecution with the witness that he would be called to give evidence only against certain persons and not others. Those were proceedings taken by the witness, not the accused against whom the prosecution intended to call the witness in breach of the undertaking. I see nothing in the facts of that case or the principles applied by his Honour that has any application to the present case.

28 Mr Waterstreet has raised a number of what he views as “concerns” surrounding the detention of the witness and submits that the whole process whereby the witness came to participate in the recorded interview was so tainted with illegality and impropriety that the Court should not countenance the conduct of the investigating officers and should show its disapproval by refusing to permit the Crown to call the evidence despite the apparent willingness of the witness to give evidence at the trial. I need not consider whether a trial court could ever take such a step on the application of an accused person, because I am not satisfied that the material before the Court discloses facts and circumstances that could possibly justify such an exceptional course being taken.

29 The application to restrain the Crown from calling the witness Van Bommel or to reject his evidence under s 138 of the Evidence Act is refused.

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Last Modified: 12/24/2004