R v Tracey (No 2)
[2005] SASC 356
•22 September 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v TRACEY & ORS (NO 2)
Reasons for Ruling of The Honourable Justice Nyland
22 September 2005
CRIMINAL LAW - EVIDENCE
Subpoena to the Commissioner of Police - whether production oppressive for police - whether failure to produce would result in unfair trial for accused - whether legitimate forensic purpose for production of documents - various claims for public interest immunity.
CRIMINAL LAW - EVIDENCE
Subpoena by accused John Tracey to Director of Public Prosecutions for production of proofing notes - duty of disclosure by prosecution - Director's claim for legal professional privilege with respect to proofing notes upheld - claim of legal professional privilege with respect to a memo from police seeking advice from DPP and internal memo - prosecution's duty of disclosure met by letter to accused's solicitor outlining content of documents.
R v Bunting & Ors (2002) 84 SASR 378, applied.
R v TRACEY & ORS (NO 2)
[2005] SASC 356Voir Dire Ruling as to Subpoenas issued by John Tracey delivered on 30 March 2005:
On 30 March 2005 I gave an ex tempore ruling with respect to documents sought on subpoena by John Tracey but I reserved my right to edit or amend the reasons at a later date. I now publish the edited reasons.
Subpoena to the Commissioner of Police (Exhibit VDJT001):
In a subpoena dated 11 February 2005, John Tracey sought the production of a number of documents from the Commissioner of Police. Mr Peek QC appeared for Tracey and the Solicitor General, Mr Kourakis QC, appeared on behalf of the Commissioner. Mr Kourakis produced a number of documents to the Court in response to the subpoena but objected to their disclosure to the defence on the grounds of public interest immunity. As a result of that claim I examined the relevant documents and ruled upon them as hereinafter appears.
The first item sought by the defence was the notes of interviews and meetings between SAPOL employees and potential witnesses in relation to the Watson investigation. This appeared to have been resolved, subject to the production of original documents in court. The closed affidavit of Richard Perry sworn on 1 March 2005 (Exhibit VDJT013) claimed public interest immunity with respect to documents annexed to that affidavit and marked RP1, RP2 and RP3. I subsequently read those documents and that claim was upheld.
The second item sought was all documents referring to discussions between SAPOL employees and potential witnesses in relation to the circumstances under which they will speak, give statements or give evidence including but not limited to the extent to which such persons will or will not be prosecuted, the extent to which existing charges will or will not be withdrawn and any other immunity, benefit, detriment, assistance or consequence in any way involving such persons. One document was produced with respect to this item, being an extract from the Major Crime journal dated 23 January 2003. A claim for public interest immunity with respect to that document was upheld.
That brings me to the third group of documents sought by the defence, that is all documents referring to discussions between SAPOL employees and potential witnesses (or their representatives) in relation to assistance, prosecution or non-prosecution, immunity or other benefit or consequence. One document was produced pursuant to this request, namely the Major Crime journal extract dated 20 August 2002. A claim for public interest immunity with respect to that document was upheld.
The fourth group of documents sought by the defence were all documents referring to:
(1) Any discussion, recommendation, direction or report as to the laying or withdrawal of charges against Troy Murray or Rebecca Considine in connection with the Watson Investigation
(2) Any discussion, recommendation direction or report as to the extradition of Troy Murray or Rebecca Considine from Queensland in connection with the Watson Investigation
(3) The extradition file referred to in the affidavit of Peter Brian Woite sworn on 11.3.05
Objection was initially taken to the width of this request and an application was made by Mr Kourakis to strike it out as an abuse of process. Counsel for John Tracey subsequently amended this request on 16 March 2005, following which no further objection was taken to the terms of it. That resulted in the production to the court of the file which related to the extradition of Troy Murray and Rebecca Considine from Queensland in January 2003.
A claim for public interest immunity was, however, made by Peter Woite in paras 16 and 17 of his affidavit sworn on 10 March 2005, (Exhibit VDJT016) with respect to the documents set out in paras.17.1 to 17.3 and 17.6. The claim was made on the ground that the production of the documents would divulge police methodology in the extradition process. As far as the documents set out in paras.17.4 were concerned, public interest immunity was claimed on the ground that the production of the documents would divulge SAPOL intelligence holdings.
A further affidavit of Peter Woite sworn on 29 March 2005 (Exhibit VDJT033) indicated that he had reviewed a copy of the extradition file and now made the claim for public interest immunity only to certain parts thereof. At that stage I had not had the opportunity to consider the matters contained therein and therefore deferred this for further argument if required.
Fifthly, the defence sought all documents referring to the circumstance in which charges were not laid against the various friends and associates of Stuart Watson who were present at the time of the shooting or immediately prior thereto or earlier in the day. This was, however, resolved and it was unnecessary for me to rule upon it.
Sixthly, the defence sought all documents setting out each of their charges laid against all persons in the course of the Watson Investigation and their respective dispositions. This request was the subject of ongoing discussion between counsel. I was informed that in the event of this not being resolved, that a further application by counsel for Tracey was contemplated but for the time being was able to be adjourned.
The next group of documents sought by the defence consisted of:
(a) All correspondence between SAPOL and Dr Rose, (including her report), in relation to the clarity of recorded material in relation to the Watson Investigation.
(b) All transcripts that have been prepared of all Listening Device material referable to all warrants in relation to the Watson Investigation.
(c) All warrants issued pursuant to Listening Devices Act 1972 and Listening and Surveillance Devices Act 1972 in relation to the Watson Investigation, including but not limited to warrants numbered L 0309, 0310, 0311 and 0312.
(d) All Telephone Interception warrants issued in relation to the Watson investigation, including but not limited to warrants numbered F 0323/0 and F 0323/1.
(e) All notes or transcripts that have been made of the content of Telephone Interception material in respect of the Watson investigation.
All of these matters were, however, resolved and it was unnecessary to rule upon them.
That brings me to what was described as a request for the complete and unexpurgated Elizabeth CIB Journals and Major Crime Journals in relation to the Watson investigation. The defence sought the complete and unexpurgated Elizabeth CIB journals and Major Crime journals in relation to the Watson investigation. This was the subject of lengthy argument and was probably the most contentious of the matters requiring my decision.
As I understood the matter, the Elizabeth CIB journals for the period 31 July 2002-12 June 2003, and the Major Crime journal for the period 31 July 2002-20 June 2003 and then from 24 September 2004-15 February 2005, had been produced. There was, however, an approximate 15 month gap arising out of the Major Crime journal, and also a gap with respect to the Elizabeth CIB journals. The work involved in producing that information and the further difficulties of producing the extra journal entries for the 15 month gap, were referred to in the affidavit of Steven Kinsman sworn on 3 March 2005, (Exhibit VDJT014).
Mr Kourakis submitted that the request for the production of further journal entries was oppressive, particularly as there was no more than a remote possibility of any entries in the Elizabeth CIB journal after 12 June 2003, nor after 20 June 2003 in the Major Crime journal, and he referred to the large undertaking to produce documents for the periods thereafter.
Mr Peek sought to demonstrate the need for the production of the journal entries for those periods by reference to a chronology extracted from the journal entries so far provided and inquiries which had resulted therefrom. That chronology is contained in Exhibit VDJT021.
Detective Kinsman subsequently gave evidence on oath as to these matters, as did Detective Rowney. Detective Rowney was, in fact, the person who carried out the process of extracting the earlier journal entries. He estimated the task took about 120 hours. During the evidence-in-chief and cross-examination of Detective Kinsman and Detective Rowney, both Mr Peek and Mr Kourakis sought to establish the magnitude of the task ahead, or the lack thereof, were I to order production as sought by the defence.
Regrettably, at the end of their submissions, I was still not left with any clear picture as to just how much time would be involved in undertaking this task. I was satisfied, however, that it was a reasonably substantial task, and indicated it was not one that I would lightly order to be undertaken. This case does involve, however, three accused who are charged with murder. I considered it regrettable that the previous system operating within the police force made the recovery of these journal entries such an arduous task, but I did not consider that was a matter which should prejudice the fair trial of the accused. I therefore directed the Commissioner to produce copies of the Major Crime journal for the period from 20 June 2003 to 24 September 2004.
I did not make any order with respect to the Elizabeth CIB journal, however, as I considered that could await the production of the Major Crime journal entries which might well render the production of the Elizabeth CIB journal entries unnecessary.
Public interest immunity was, however, claimed with respect to certain journal entries which had been produced to date. The basis upon which that immunity was sought was the subject of a closed affidavit of Detective Kinsman sworn on 16 March 2005, (Exhibit VDJT022). That document elaborated on the reasons given for the claim for immunity with particular reference to Exhibit VDJT023 which listed 51 specific items.
I should mention that Item 21 for the date 30 October 2002 was also the subject of clarification in the closed affidavit of Michael Treglown sworn on 11 March 2005, Exhibit VDJT018, as was Item 22 on 30 October 2002 and Item 20 on 19 November 2002.
A matter raised by me in court with respect to Item 21 on 22 December 2002 was the subject of a further closed affidavit from Detective Kinsman sworn on 17 March 2005, (Exhibit VDJT029).
I examined the non-redacted copies of all the journal entries set out in Exhibit VDJT023. Having done so I upheld the claim for public interest immunity with respect to each of the items which appeared therein.
The 14th item sought by the defence was the handwritten running sheets of all SAPOL employees who performed any function in relation to the Watson investigation, but as I understood the matter, this item was resolved by production of Exhibit VDJT024 which are handwritten running sheets.
The 15th item related to firearms. The defence sought all documents which referred to the topic of the searching for, and collection and ammunition of, all of the various firearms and ammunition in relation to the Watson investigation. This item appeared to have been resolved by production of Exhibit VDJT025 which relates to documents provided by the DPP. I understood the documents were available for immediate inspection.
The next group of requests also related to firearms, namely:
(a) All documents which refer to the possession of or ownership of .22 Rimfire calibre firearms (pistols and rifles) as at 31.7.02 by all persons giving as their address those suburbs which fall or partly fall within that circle whose centre is No 3 Filsoll Street Elizabeth Downs and which has a radius of 10 kilometres.
(b) All documents which refer to the holding of firearms licences as at 31.7.02 by all persons giving as their address those suburbs which fall or partly fall within that circle whose centre is No 3 Filsoll Street Elizabeth Downs and which has a radius of 10 kilometres.
(c) All documents which refer to the theft or finding of .22 Rimfire calibre firearms (pistols and rifles) in South Australia for the whole of the years 2002 and 2003.
(d) All documents which refer to the possession or ownership of .22 Rimfire calibre firearms )pistols and rifles) as at 31.7.02 by all of the following persons (all of whom have given statements to SAPOL employees and whose details you have) or any of their known associates:
[17 persons listed]
I understood, however, that each of these items was the subject of further discussion and these matters were therefore stood over for further argument, if required.
Finally, the defence sought all documents which refer to the information available to SAPOL employees as at 10 August 2002 indicating that Tracey may have been involved in the shooting of Watson. Such material would include, but not be limited to, Listening Device material, Telephone Intercept material, Statements of witnesses, Information given by informants and SAPOL briefing notes and internal memoranda. Two documents were produced in response to this request, namely the non-redacted copy of the tactical operation order (Exhibit VDJT026,) and a redacted copy of it (Exhibit VDJT027). This also was the subject of further discussion and was stood over.
Subpoena to the Director of Public Prosecutions (Exhibit VDJT002):
This subpoena was dated 11 February 2005 (Exhibit VDJT002). My understanding of this subpoena was that there were two matters which remained outstanding, namely Item 1, which related to proofing notes, and Item 4 which related to the circumstances in which charges were laid against Troy Murray and Rebecca Considine, their extradition from Queensland and the subject of the withdrawal of charges against them.
I turn first to the question of the proofing notes. Counsel for the defence sought production of the notes of interviews and meetings between employees of the DPP and potential witnesses in relation to the Watson investigation, including but not limited to what are sometimes referred to as “proofing notes”.
Ms Chapman produced a schedule of those notes which referred to pre-committal notes taken by Ms Geyer, pre-trial notes taken by herself and pre-trial notes taken by Ms Geyer. That schedule is set out in Exhibit VDP009. That document showed that some of those proofing sessions had resulted in a number of further statements being provided to the defence.
Ms Chapman said in court[1] that the Director was well aware of the duty of disclosure. She said she had read the proofing notes of both herself and Ms Geyer and assured me that there was nothing which came within the duty of disclosure which had not been disclosed, with the exception of the proofing of Matthew Smith. She said, however, that a further statement of Smith would be provided to comply with her duty of disclosure.
[1] At Tr 56
The issue of the proofing notes is not an easy matter to resolve. Martin J in R v Bunting & Ors[2] dealt with a similar problem and said (at 401-402):
The fourth category of documents comprised notes made by DPP practitioners of communications with prosecution witnesses during proofing sessions. In my view those communications occurred in privileged circumstances: Trade Practices Commission v Sterling (at 246). Bearing in mind the undertaking given by the Director that in respect of information received in those privileged communications the Director has complied and will continue to comply with the duty of disclosure by waiving privilege, I decline to inspect the notes and uphold the Director’s claim.
Consistent with those remarks, and in the light of the assurance given in court by Ms Chapman, I declined to order that the documents to be produced for inspection either to me or to defence counsel.
[2] (2002) 84 SASR 378
That brings me to para 4 of this subpoena. That seeks all documents referring to the circumstance in which changes were laid against Troy Murray and Rebecca Considine in South Australia in relation to the Watson investigation, their extradition from Queensland and the subsequent withdrawal of the charges against them.
Ms Chapman indicated that she had two documents in her possession which related to the withdrawal of charges. They comprised a memo from the police seeking advice from the Director, and an internal memo from a practitioner employed at the office of the Director of Public Prosecution to the Director himself for instructions. Ms Chapman indicated that she objected to the production of those documents on the ground of privilege.
She also indicated there was a third document in existence for which she understood that the police claimed privilege. Ms Chapman said however that on 11 February 2005 a letter was sent from the office of the Director of Public Prosecution to Mr Mancini, solicitor for Tracey (Exhibit VDP010) which inter alia contained the following statement:
Please find enclosed the relevant Informations and Apprehension Reports concerning the charges laid against Troy Murray and Rebecca Considine.
The Office is in possession of only [two] further documents which relate to whether charges against Troy Murray and Rebecca Considine should proceed. Those documents are an Internal Memorandum and a Memorandum from the police to this Office.
On 25 February 2003, the police informed the DPP that Troy Murray and Rebecca Considine had been extradited from Queensland on 12 January 2003. The police indicated what both had subsequently assisted the police in the Watson investigation and recommended that the more serious charges be withdrawn and that both accused be given the opportunity to enter a plea to assault. The police indicated that this was with a view to using both Troy Murray and Rebecca Considine as witnesses for the prosecution.
On 10 March 2003, Mr Rofe QC agreed to the withdrawal of the impede investigation charges and stated it was premature to charge assault.
No further consideration has ever been requested or made in regard to any charges of assault.
The office was not in possession of any other documents described under these headings.
Ms Chapman informed me that she believed, by disclosing the information as set out in the letter, the Director had complied with his duty of disclosure.
Ms Chapman indicated, however, that although she maintained the claim as to privilege, she had no objection to me perusing the documents which were the subject of her objection. I then perused the relevant documents and was satisfied that everything that was required to be disclosed from them had been set out in the letter to Mr Mancini. I therefore upheld the Director’s claim as to privilege with respect to the documents themselves.
I did not deal with the third document referred to by Ms Chapman which appeared to be part of the extradition file and which was the subject of ongoing discussions.
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