R v Stott
[2017] ACTSC 126
•6 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stott |
Citation: | [2017] ACTSC 126 |
Hearing Dates: | 2, 5 June 2017 |
DecisionDate: | 6 June 2017 |
Before: | Penfold J |
Decision: | The application for the issue of a warrant for the arrest of Charlie Vo is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, Arrests, Search, Seizure and Incidental Powers – Witnesses – subpoena unable to be served on witness – application by Crown for arrest warrant – prosecutor provided draft warrant purporting to be in approved form – no approved form for warrant of the kind sought – no express legislative power for Supreme Court to issue warrant where subpoena not served – inherent power of court relied on – whether inherent power of court permitted issue of warrant for arrest of witness unaware of requirement to appear – whether Human Rights Act permitted reliance on inherent power to exercise warrant in absence of “procedures established by law”. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Evidence Act 1995 (NSW), s 194 Supreme Court Act 1933 (ACT) ss 20, 70A |
Cases Cited: | Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300 Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302; 6 DCLR (NSW) 122 The Queen v Kylie Anne Bullock [2013] ACTSC 274 |
Parties: | The Queen (Crown) Sharon Stott (Accused) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J Maher (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 107 of 2015 |
Background
In March 2016, Sharon Stott was tried on charges of:
(a)trafficking in a controlled drug other than cannabis, namely methylamphetamine; and
(b)unauthorised possession of a prohibited weapon.
Charlie Vo was also charged with offences arising from the same circumstances. Shortly before the trial of the two accused was due to begin, Mr Vo pleaded guilty to a new charge. He was sentenced to 12 months imprisonment, which had been reduced from 22 months by a two-month discount for his guilty plea and an eight-month discount for his undertaking to give evidence in Ms Stott’s trial (R v Vo [2016] ACTSC 157).
Mr Vo was expected to be a key witness at Ms Stott’s trial; he had been present in Ms Stott’s home, with Ms Stott and one of her children, when police executed a search warrant at the home, and seized drugs and large amounts of cash from several locations in the house. Mr Vo made comments to police that were largely exculpatory in relation to his role in relation to the drugs and the money, and in due course he was subpoenaed to give evidence at Ms Stott’s trial.
The defence case, however, was that Ms Stott knew nothing about the drugs or the larger amount of cash seized and had a legitimate explanation for the presence of the smaller amount of cash found, and that most of the drugs and the larger amount of cash belonged to Mr Vo.
I understand that Mr Vo appeared in accordance with the subpoena on the first day of the trial, but did not appear again. A warrant was issued under s 70A of the Supreme Court Act 1933 (ACT) to bring him before the Court, but he was not located. In Mr Vo’s absence, evidence was admitted in Ms Stott’s trial of:
(a)his conversations with police during the execution of the search warrant; and
(b)the statement he had made to police after he had been sentenced on his guilty plea to an offence of attempting to participate in the sale or supply of a drug of dependence (at [2] above).
Ms Stott was in due course found guilty by a jury of the two charges.
The new trial
Following Ms Stott’s successful appeal to the Court of Appeal, the verdict on the trafficking charge was set aside and a new trial ordered. It is listed to begin on 19 June this year.
Application for warrant
The prosecution, as part of its preparation for the trial, has applied for a warrant to issue for the arrest of Mr Vo, who has still not been located since the first day of Ms Stott’s first trial.
This case may be slightly unusual in that, although Mr Vo’s statement supports the Crown case, and Mr Vo, if he can be located, would be called by the prosecution, the defence may be particularly keen for him to appear and give evidence. It will presumably again be Ms Stott’s case that Mr Vo rather than Ms Stott was the source of the drugs, and much of the money, found in Ms Stott’s home during the execution of the search warrant. However, in Mr Vo’s absence, it is likely that his statements to police, which inculpate Ms Stott, would again be admitted into evidence, but again the defence would not have the opportunity to challenge his credibility in cross-examination. The challenge to Mr Vo’s credibility would be especially significant since, as mentioned, Mr Vo received a generous sentencing discount in return for his undertaking to give evidence in Ms Stott’s trial.
Counsel for Ms Stott appeared at the initial mention of the prosecutor’s application, but was excused from further mentions after he had indicated that the defence wanted Mr Vo to appear, and would support the issue of a warrant, but had no submissions to make about whether a warrant should or could be issued.
Attempts to find Mr Vo
A subpoena to Mr Vo was issued out of the Supreme Court on 19 April this year, showing Mr Vo’s address as an address in Hinchinbrook, NSW.
The affidavit supporting the application recorded the attempts made during the earlier trial to locate Mr Vo, and also attempts made since August 2016 to serve a summons on Mr Vo in respect of an alleged breach of the good behaviour order made when he was sentenced as a co‑offender in Ms Stott’s alleged activities.
The affidavit also recorded the subsequent issue of an arrest warrant relating to the good behaviour order breach (curiously headed “Warrant – failure to answer bail”) on 25 October 2016, after Constable Jane Freeland from the Green Valley Police Station reported that she had visited the NSW address on 12 October 2016, and had been told that Mr Vo did not live there.
The application for a warrant that came before me on 2 June 2017 stated that the 19 April 2017 subpoena had not been served, but the affidavit accompanying the application did not mention any specific attempt to locate or serve Mr Vo after October 2016 (well before the issue of the subpoena).
Accordingly, I asked the prosecutor to provide further evidence of efforts made to locate and serve Mr Vo in anticipation of the forthcoming trial. As a result of that request, I received a copy of the 19 April 2017 subpoena, which had been returned to the ACT Office of the Director of Public Prosecutions (the DPP’s office) from the Green Valley Police Station on 18 May 2017, with a covering note from the Green Valley Police Local Area Command as follows:
The attached paperwork has been given to Constable Brown and Senior Constable Richardson who have attended the address of [xxxxx] Hinchinbrook stating that the Person does not reside at the address for over a year and the whereabouts are unknown.
The covering note is dated 12 May 2016, but I accept that it should probably have read 12 May 2017, and this was subsequently confirmed by the informant.
It is not clear why this was information was included in the prosecutor’s application (where it was not evidence) but had not been incorporated in the affidavit put before me in support of that application.
Further evidence in support of the application
On 5 June this year, the informant in the Stott trial, Detective Senior Constable Katz (DSC Katz), appeared to give evidence before me. He had not been able to contact the NSW police involved before appearing that morning, and nor had he been able to check Mr Vo’s driver licence details to see if there was a more recent address recorded than the Hinchinbrook address, but later that day he advised Mr Wanigaratne of the DPP’s office that he had managed to speak with a Constable Monique Brown from the Green Valley Police Station in NSW. DSC Katz had informed Mr Wanigaratne that Constable Brown had attended the Hinchinbrook address on 12 May 2017; the current residents advised her that Mr Vo no longer resided there, and they were unable to provide a new address for Mr Vo.
DSC Katz also advised that records show the Hinchinbrook address as the last address provided by Mr Vo for his driver licence, which had expired early in 2016, and had also been suspended due to unpaid fines.
In summary, the subpoena issued in April this year has not been able to be served, and the prosecutor has now sought the issue of a warrant to bring Mr Vo to court to give evidence at the trial.
Power to issue warrant
The difficulty still facing the prosecutor, even now that I seem to have reasonably complete evidence before me, is that there is no clear power in the Supreme Court to issue such a warrant, although there are explicit powers for the Magistrates Court to issue a warrant in the equivalent circumstances, and an explicit power for the Supreme Court to issue a warrant in the case where a subpoena has been served but not complied with.
Section 63 of the Magistrates Court Act 1930 (ACT) (at Appendix A) permits the issue of a warrant if a person fails to appear on subpoena (or after being advised of a requirement to attend in some other way). Section 64 of that Act (also at Appendix A) permits a warrant to be issued as the first step if, in general terms, a witness has not been able to be contacted, and issuing the warrant would be in the interests of justice.
That is, there would be power to issue a warrant in the current circumstances if this matter were a proceeding in the Magistrates Court. There are, however, as far as I am aware, and apparently as far as the prosecutor is aware, no equivalent provisions in the Supreme Court Act (or in any other Act, or in the Court Procedures Rules 2006 (ACT)) in relation to Supreme Court proceedings.
Instead, there is s 70A of the Supreme Court Act (at Appendix B). That section permits the Court to issue a warrant if a witness served with a subpoena, or bound by a recognisance, fails to turn up to give evidence as required. The warrant is for the person to be arrested and brought before the Court to give evidence in the proceeding.
Mr Vo’s failure to turn up at Ms Stott’s first trial does not on the face of it entitle me, in reliance on his failure to comply with the 2016 subpoena, to issue another warrant under s 70A to try to get him to court to give evidence in the new trial.
Not only is s 70A not applicable in the current context, but its presence may be read as implying that in the absence of s 70A, there would be no power to issue a warrant to bring a witness to court to give evidence in a Supreme Court trial.
Application for a “section 20” warrant
The prosecutor sought to rely on s 20 of the Supreme Court Act, and put forward, in support of that approach, a form of warrant apparently based loosely on the Magistrates Court form of warrant under s 63 of the Magistrates Court Act (Approved form 1 – Warrant to bring witness to court (AF2009-281)). It seems that this form of warrant had initially (and fairly recently) emanated from the DPP’s office, but this is not absolutely clear to me.
Section 20 of the Supreme Court Act is as follows:
Jurisdiction and powers of Supreme Court
(1)The court has the following jurisdiction:
(a)all original and appellate jurisdiction that is necessary to administer justice in the Territory;
(b)jurisdiction conferred by a Commonwealth Act or a law of the Territory.
(2)Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.
Other warrant forms
Like the Magistrates Court warrant which refers to s 63 of the Magistrates Court Act, the draft warrant prepared by the prosecutor cites a legislative source, in this case s 20 of the Supreme Court Act. That section, however, unlike s 63, does not provide any express power to issue a warrant, and nor does it define the circumstances in which the power is available. Accordingly, the person who originally drafted this form of warrant has provided his or her own definition of those relevant circumstances.
The Magistrates Court warrant form, under the heading “Reason for arrest”, recites the failure of the witness that under s 63(1) of the Act provides the basis for issuing the warrant (ie the failure to attend as required by subpoena, court order or otherwise).
In contrast, the form of Supreme Court warrant proffered by the prosecutor sets out the reason why the witness’s attendance is required (that is, to give evidence at a particular trial) rather than the reason why an arrest warrant is seen as necessary. It is implicit in this approach that the need for a witness to give evidence at a trial is seen as the, or perhaps a, sufficient basis for issuing a warrant; the inclusion of this recital perhaps reflects the fact that, unsurprisingly since s 20 does not refer to warrants, there is no specification in s 20 of the ground on which a warrant might properly be issued or the pre-conditions for such issue.
The Magistrates Court warrant form next recites that the Court is satisfied of two matters, being the matters set out in s 63(2), namely that:
(a)the party calling the person as a witness in the proceeding has taken reasonably practicable steps to contact the person; and
(b)it is in the interests of justice to issue the warrant.
The prosecutor’s warrant form
The form of Supreme Court warrant proffered by the prosecutor also identifies matters that the Court is to be satisfied of before issuing the warrant. However, none of these requirements can be found in s 20 of the Supreme Court Act, the asserted source of the power to issue the warrant.
Rather, they seem to have been adapted from parts of the provisions mentioned above, and possibly also from the definition of “unavailable” in the Dictionary to the Evidence Act 2011 (ACT), as follows:
(a)That a subpoena has been issued for the witness to appear in the Supreme Court on the date set for the trial: Magistrates Court Act s 63(1) and Supreme Court Act s 70A(1) require that the witness is aware of the requirement to attend and give evidence, by service of subpoena or otherwise. The prosecutor’s suggested pre-requisite for the Supreme Court, however, is only that a subpoena has been issued, not that it has been served. The reason for the distinction is not apparent – possibly it reflects some principle of law that has not been brought to my attention, or perhaps it simply reflects the fact that in this case a subpoena has been issued but not served.
(b)That the party calling the witness has taken reasonably practicable steps to contact and locate the witness: this requirement repeats Magistrates Court Act s 63(2)(a), with the addition of “and locate”. The reason for this addition is not clear. It might also reflect some unspecified principle of law, or it might reflect the fact that in this case it seems that the Crown’s efforts have mainly been aimed at locating rather than contacting.
(c)That the party calling the witness has not been able to serve the subpoena despite making reasonable attempts: this requirement may overlap to some extent with the previous requirement, although it is possible to imagine a case in which a witness had been contacted, and his or her general location was known, but for some reason the witness had not been able to be served despite repeated attempts. It is not clear why this requirement is set out separately from the requirement to have issued a subpoena – it might be merely a drafting peculiarity, or it might have been sourced from para (f) of the definition, in cl 4 of the Dictionary to the Evidence Act, of when a witness is unavailable (which is among other things relevant to the admission into evidence of a prior statement made by that witness). That paragraph requires that “all reasonable steps have been taken ... to find the person ..., but without success”).
(d)That it is in the interests of justice to issue the warrant: this reflects the terms of s 63(2)(b) of the Magistrates Court Act.
In effect, the prosecutor has submitted that a warrant may be issued for the arrest of a witness who has not been served with a subpoena, or otherwise notified of a requirement to attend court, if:
(a)the subpoena has been issued;
(b)the party calling the witness has taken reasonably practicable steps to contact and locate the witness;
(c)the party calling the witness has not been able to serve the subpoena despite making reasonable attempts; and
(d)it is in the interests of justice to issue the warrant.
The only thing missing is the legislative provision to the effect that, when those requirements are satisfied, a warrant may be issued for the arrest of a person who has not been notified of his or her obligation to attend court. The prosecutor should perhaps be commended for his ingenuity, but prosecutorial ingenuity is not a substitute for a proper source of jurisdiction.
Consideration
For obvious reasons given the way this matter developed, I have not received any considered submissions proposing a basis for inferring from s 20 of the Supreme Court Act a power to issue a warrant in the circumstances of this case, and for making that inference despite the existence of explicit powers (ss 63 and 64 of the Magistrates Court Act and s 70A of the Supreme Court Act) to issue warrants in other circumstances that would seem to provide at least as good a basis to infer such a power without any need for legislation.
I mention in passing that I have also not found any judicial consideration of s 70A of the Supreme Court Act, or of its significance in circumstances not described in that section, by this Court (except my published reasons for making an order under s 70A(2) in the matter of The Queen v Kylie Anne Bullock [2013] ACTSC 274). I have found two judgments given in NSW in civil matters where warrants were sought under s 194 of the Evidence Act 1995 (NSW), a section generally equivalent to s 70A; in both cases the Court declined to issue a warrant, because the material before the Court did not establish the matters required to be shown before the warrant could be issued (Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302; 6 DCLR (NSW) 122 at [18]-[19]; Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300 at [10]). None of this material is helpful in the task of considering whether the existence of s 70A has implications for other cases where warrants might be sought.
Next I mention the possible impact of the Human Rights Act 2004 (ACT) in this context, which was also not mentioned during the hearing of the application. Sections 18 and 30 of that Act are as follows:
18Right to liberty and security of person
(1)Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2)No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
(3)Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.
(4)Anyone who is arrested or detained on a criminal charge—
(a)must be promptly brought before a judge or magistrate; and
(b)has the right to be tried within a reasonable time or released.
(5)Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.
(6)Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.
(7)Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
(8)No-one may be imprisoned only because of the inability to carry out a contractual obligation.
30Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
In the context of express but confined powers in both the Magistrates Court and the Supreme Court to issue a warrant for the arrest of a potential witness who has been subpoenaed or bound over to appear at trial, it would in my view be dangerous to infer an inherent and relatively unconfined power in the Court to issue a warrant to a potential witness who has not been subpoenaed or bound over to appear at trial, and who may in fact be entirely unaware of the trial.
Such an interpretation of s 20 of the Supreme Court Act, that it provides an implicit power to authorise the arrest of a witness who may have no idea that his or her presence at a trial is required, seems to me unlikely to be an interpretation compatible with the human rights set out in s 18 of the Human Rights Act. In particular, ss 18(1) and (2), the latter of which refers to “procedures” for the deprivation of liberty that are “established by law”, do not obviously countenance arrests on the basis of inferred procedures whose details appear to have been devised within the prosecuting agency.
In the absence of any relevant submissions from the parties, and despite the tentative views I have expressed, I refrain from expressing any concluded view that the power asserted by the prosecutor does not exist; however I have concluded that this is not a case in which a warrant should be issued.
Other matters
Utility of warrant in this case
In declining to issue the warrant sought in this case, I note the following relevant aspects of this particular matter:
(a)That as noted, there is already a current warrant for Mr Vo’s arrest arising from an alleged breach of the good behaviour order made when he was sentenced for offences related to the matters arising in Ms Stott’s trial – if he can be arrested on that warrant before the trial, it may be that he can be called as a witness in the trial on the basis of a short service subpoena, despite the failure to serve the original subpoena within the normal deadlines.
(b)That it seems unlikely that the issue of the warrant sought from me would be any more effective than the existing warrant has been in facilitating the location and arrest of Mr Vo.
(c)That the test for the unavailability of Mr Vo, for the purpose of Evidence Act provisions that would permit Mr Vo’s statement to be admitted if Mr Vo does not appear to give evidence (s 65 and cl 4 of the Dictionary to the Evidence Act), does not require a warrant to be issued, but requires all reasonable steps to be taken to find the person (or secure his or her attendance) – if in fact there is no legal basis for issuing a warrant in a particular case, then clearly obtaining such a warrant would not be a reasonable step that the prosecution was required to take.
Warrants for arrest of witnesses
Finally, it seems appropriate to emphasise that the current case involves a request for a warrant to bring a witness to court. The fact that the particular witness was a co‑offender in the matter, possibly the main offender, should not be allowed to blind the Court to the significance of a power to issue warrants for the arrest of witnesses; witnesses, after all, may have been innocent bystanders entirely unconcerned in the alleged offences and may, for good reason, have no idea that they are required in court to give evidence at any particular time. If difficulties in finding witnesses so that subpoenas can be served is a serious problem for the administration of justice in the ACT, then the preferable way to deal with it, in my view, would be to impose an enforceable requirement on potential witnesses, once identified, to keep police informed of their contact details until matters are finalised.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 11 July 2017 |
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Amendments
11 July 2017 Replace “warrant from which refers to s 63” with “warrant which refers to s 63”
Paragraphs: [29]
Replace “does not obviously countenance arrests” with “do not obviously countenance arrests”
Paragraphs: [41]
Appendix A – Magistrates Court Act
63Warrant to bring witness to court
(1)The court may issue a warrant for the arrest of a person who is a witness in a hearing if the person—
(a)was informed of the time and place of the hearing; and
(b)was required to attend to give evidence at the hearing in accordance with—
(i) a subpoena served on the person; or
(ii) an order of the court; or
(iii) an undertaking given to the court by the person; and
(c)failed to attend the hearing as required; and
(d)did not provide the court with a reasonable explanation for not attending.
(2)A warrant must not be issued under subsection (1) unless—
(a)the court is satisfied that the party calling the person as a witness in the proceeding has taken reasonably practicable steps to contact the person; and
(b)it is in the interests of justice to issue the warrant.
(3)In deciding whether it is in the interests of justice to issue a warrant, the court must consider the following:
(a)the importance of the evidence the person is expected to give;
(b)whether the evidence could be obtained by other means;
(c)the nature of the matter being heard;
(d)the degree of urgency to resolve the matter;
(e)the likelihood that the issue of a warrant would secure the person’s attendance at the hearing;
(f)if the court has been contacted by the person, or the party calling the person as a witness in the proceeding has contacted the person—
(i) the reason (if any) given by the person for not attending as required; and
(ii) the impact of using a warrant for the arrest of the person.
64First instance warrant
(1)The court may, instead of issuing a subpoena for the attendance of a witness in a hearing, issue a warrant in the first instance for the arrest of the person if it is—
(a)unlikely that the person will attend the hearing to give evidence unless the person is compelled to do so; and
(b)in the interests of justice to do so.
(2)In deciding whether it is in the interests of justice to issue a warrant, the court must consider the following:
(a)the importance of the evidence the person is expected to give;
(b)whether the evidence could be obtained by other means;
(c)the nature of the matter being heard;
(d)the degree of urgency to resolve the matter;
(e)the likelihood that the issue of a warrant would secure the person’s attendance at the hearing;
(f)the impact of using a warrant for the arrest of the person.
Appendix B – Supreme Court Act
70AFailure to attend Supreme Court as required
(1)If a person duly bound by recognisance or served with a subpoena to attend as a witness in a proceeding before the Supreme Court fails to attend, or remain in attendance, before the Supreme Court as required by the recognisance or the subpoena, the court may issue its warrant directing that the person be arrested and brought before the court to give evidence in the proceeding.
(2)If a person duly bound by a recognisance or served with a subpoena to attend as a witness in a proceeding before the Supreme Court appears or is brought before the Supreme Court, after having failed to attend or remain in attendance before the Supreme Court as required by the recognisance or the subpoena, the court may, if satisfied that the failure to attend was without just cause or reasonable excuse—
(a)order the person to pay a fine not exceeding $5 000; or
(b)order that the person be imprisoned for not longer than 6 months; or
(c)make orders under both paragraph (a) and (b).
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