R v Stoten

[2010] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stoten [2010] QSC 136

PARTIES:

R
v
DANIEL ARAN STOTEN
(applicant)

FILE NO/S:

Indictment No 13 of 2010

DIVISION:

Trial

PROCEEDING:

Criminal Application

COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 January 2010

JUDGE:

Fryberg J

ORDER:

CATCHWORDS:

Criminal Law – Evidence – Miscellaneous matters – Application to exclude evidence – Desirability of pre-trial application – Impropriety of ambush

Criminal Code Act 1899 (Qld), s 590AA

COUNSEL:

J Hunter SC for the applicant
A MacSporran SC with C Toweel for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

HIS HONOUR:  Application has now been made to me in the course

of the trial for the defence to lead evidence by way of

cross-examination of a police officer of the transcripts of a

number of telephone intercepts.

In this case, the Crown has led a number of other telephone

intercepts involving conversations between the accused Stoten

and various people.  It was known well before the trial that

this evidence would be led by the Crown.

Over 16,000 telephone intercepts were made, although I do not

know how many of these involve the accused Stoten.  Presumably

many thousands did so.  The defence wishes to lead evidence of

seven of them which have not been led by the Crown.  It

submits that it should be able to do so on the basis that

although containing hearsay, they are relevant hearsay and

ought to be admitted out of fairness to the accused.

No reason has been advanced to me as to why this matter could

not have been made the subject of an application under

s 590AA before the trial commenced. Senior Counsel for

the defence has quite candidly admitted that the intention to

tender these intercepts was deliberately withheld from the

Crown on the principal ground that to have disclosed it would

have only encouraged the Crown to go searching for other

intercepts which it had not otherwise intended to tender by

way of some sort of tit for tat principle. Section 590AA has

been inserted in the Code to prevent this kind of situation

arising.

The application made before me will require some considerable

argument.  I have been furnished with an outline of

submissions on behalf of Mr Stoten, as well as a number of

cases by both sides.  In consequence, I have sent the jury

away until after lunch today and it remains to be seen whether

the matter will be concluded by then.

Section 590AA was, as I have said, intended to prevent this sort of situation developing. It is incumbent on the parties to litigation, including criminal litigation, to do their best to make that litigation run smoothly and to minimise the disruption to the jury.

In my judgment, it is not proper for defence to withhold

material from the prosecution which it is intended to put to

witnesses and which it is known will be controversial in the

sense that its admissibility will be arguable.  The days of

trial by ambush are over.  A fair trial for the accused does

not involve the notion that matters of admissibility, which

are matters of law, can be kept up one's sleeve.  They must be

resolved in accordance with the purpose for which s 590AA

of the Criminal Code was enacted.

There is nothing I can do about the fact that no pre-trial

application was made.  However, I wish to make it quite clear

that by undertaking the ruling now, which I feel I must do, I

do not give any approbation to the course which has been

followed.

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