R v Westbrook
[2020] VSC 472
•5 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0267
| THE QUEEN | Crown |
| v | |
| KENT WESTBROOK (a pseudonym)[1] | Accused |
[1]This judgment has been anonymised by the adoption of pseudonyms in place of the name of the accused and other persons.
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 June 2020 |
DATE OF JUDGMENT: | 5 August 2020 |
CASE MAY BE CITED AS: | R v Westbrook |
MEDIUM NEUTRAL CITATION: | [2020] VSC 472 |
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CRIME — Murder — Public interest immunity claimed by Chief Commissioner Victoria Police — [*REDACTED] — Whether potential weight of evidence of confidential information may be considered in balancing exercise — [*REDACTED] — IMM v R (2016) 257 CLR 300; [2016] HCA 14 — [*REDACTED] — Ryan v State of Victoria [2015] VSCA 353 — Evidence Act 2008 (Vic) ss 18, 130, 131A, 138.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Ellis with Ms B Goding | Ms Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr R Richter QC with Ms V Drago | Melasecca, Kelly & Zayler |
| For the Chief Commissioner of Police | Mr A Dinelli with Mr A James-Martin | Victorian Government Solicitor’s Office |
HIS HONOUR:
Background
This is a ruling upholding a public interest immunity (PII) claim by the Chief Commissioner of Victoria Police (CC) in connection with the pending trial of Kent Westbrook (KW) for murder and cultivating a commercial quantity of cannabis.
As well as written submissions[2] and various affidavits,[3] the CC provided me with four volumes of confidential materials in relation to its PII claim. In referring to those materials below, it is convenient to simply give the volume and page number.[4]
[2]CC’s non-confidential written submissions dated [*REDACTED]; CC’s confidential written submissions dated [*REDACTED]; CC’s confidential written submissions dated [*REDACTED].
[3]Confidential affidavit of JC dated [*REDACTED]; second confidential affidavit of JC dated [*REDACTED]; confidential affidavit of GR dated [*REDACTED]; confidential affidavit of GR dated [*REDACTED].
[4]For example, a footnote reference to 1.183 is a reference to Volume 1, page 183 in the four volumes of confidential materials supplied by the CC.
All section references below are to the Evidence Act 2008 (Vic), unless otherwise indicated.
Chronology of the prosecution case against KW
I will begin with a chronology regarding the prosecution case against KW.
In the early hours of [*REDACTED], XY and VW burgled a marijuana crop house in [*REDACTED]. They had with them an iron bar and secateurs.
They unwittingly set off a silent alarm which the prosecution alleges sent a message to a mobile phone used by TU who, at the time, was using telephone number “…465”[5] which in turn contacted a mobile phone used by KW who, at the time, was using telephone number “…531”[6] and was living in [*REDACTED].[7]
[5]This is not admitted by KW.
[6]This is not admitted by KW.
[7]This is not admitted by KW.
Cell tower data for KW’s mobile phone “…531” supports an inference that, having been contacted by TU, KW then travelled from [*REDACTED] to the [*REDACTED] crop house.
So too does CCTV footage of a silver coloured Toyota Prado in the vicinity of the crop house a short time prior to and after the shooting. The Prado is alleged to match one that KW had rented a week earlier.[8]
[8]In his Defence Response dated [*REDACTED], KW admits at [5] that he rented a Toyota Prado on [*REDACTED] but does not admit to being the only driver of the Prado during the lease period.
Cell tower data for TU’s mobile “…465” supports an inference that TU also travelled to [*REDACTED], in his case from [*REDACTED].[9]
[9]See Depositions, Exhibit 152.
As XY and VW were exiting the driveway of the [*REDACTED] crop house, XY was shot. He ran off after being shot but collapsed and died a short distance away.
The prosecution alleges that he was shot once in the chest by KW with a .22 calibre bullet.
There is CCTV footage of the fatal encounter between XY and the shooter at the entrance to the driveway of the [*REDACTED] crop premises.[10] The aiming and firing of a gun is not visible as the shooter has his back to the camera, which was on the opposite side of the street. XY and the shooter can be seen near the top of the driveway of the crop house. XY, in dark clothing, is leaving the property, hunched over, on or near the footpath. The shooter, in a light coloured top, is a few metres away near the kerb, upright, facing in XY’s direction. There is a momentary pause, consistent with a shot being fired, and then they both run off in opposite directions.
[10]See the prosecution CCTV compilation disk (Depositions, Exhibit 180, Event 11).
It is alleged by the prosecution that, soon after the shooting, TU and KW communicated on their mobiles, resulting in TU collecting KW and giving him a lift to the Prado, which was parked nearby. TU referred to this event in both his recorded police interview and signed police statement, which I will discuss in more detail in due course.[11]
[11]Confirmation of the occurrence of this event is to be found in an intercepted conversation on [*REDACTED] where TU refers to having given someone a lift to their car on the night of the shooting (Depositions, pp 2158–2205), although TU does not refer to the person’s name.
The prosecution case against KW is circumstantial. The identity of the shooter is the central issue in the trial.[12]
[12]KW’s Defence Response dated [*REDACTED] says this, relevantly:
1. The accused does not admit presence at [*REDACTED] on [*REDACTED]. at the time of the shooting. 2. The accused does not admit to being the shooter. 3. The accused does not admit to any person who fired the fatal shot having a murderous intent, including intent to kill or cause really serious injury. 4. The accused does not admit to cultivating a commercial quantity of cannabis. 5. The accused admits leasing the [*REDACTED] Toyota Prado 4x4 (Toyota Prado) from [*REDACTED] on [*REDACTED]. But he does not admit to being the only person driving the Toyota Prado during the leased period.
Crime scene examiners examined the crop house and found large copy DNA and fingerprints matching both KW and TU on many items in the crop house. KW’s fingerprints were on the silent alarm.
Investigators also discovered CCTV footage of vehicles linked to KW[13] and TU in the vicinity of the [*REDACTED] crop house on several occasions in the three weeks leading up to the shooting. Two men similar in appearance to KW and TU were also captured on CCTV footage attending the crop house during those three weeks, although the quality of the footage does not enable one to be certain they are KW and TU.
[13]Including a Toyota Prado matching the one rented by KW a week before the shooting.
Based on this evidence, the prosecution alleges that KW and TU had been cultivating the [*REDACTED] crop for some time, which gave them a motive to attend the [*REDACTED] crop house soon after the silent alarm was set off in the early hours of [*REDACTED].
On [*REDACTED], KW and TU were arrested.
KW made a ‘no comment’ interview.
TU admitted to police, in his recorded interview, that he had picked up a male near the crop house on the night of the shooting. He identified a photo of KW as the male in question, although he said his name was [*REDACTED]. TU made a signed police statement to the same effect dated [*REDACTED].
On [*REDACTED], prompted by correspondence from the CC,[14] a summons filed by TU, addressed to the CC, was issued by the Magistrates’ Court in relation to the pending contested committal hearing. The information sought from the CC was described in the summons as follows:
All of the material in the possession of the Chief Commissioner of Police that is relevant to the prosecution of [Westbrook] and [TU] that is being withheld on public interest immunity grounds.[15]
[14]The filing and issue of the summons on TU’s behalf was prompted by correspondence from the CC to his lawyers indicating that the CC was in possession of confidential information relevant to the proceedings but in respect of which the CC claimed PII.
[15]On [*REDACTED], TU’s girlfriend NO, who was a co-accused at the committal proceedings, filed a similar summons to the CC. The materials she sought were described in the summons as ‘Materials and documents regarding the investigation of NO and her alleged co-offenders: [Kent Westbrook], [TU] and [PQ].’
On [*REDACTED], his Honour Magistrate Gilligan upheld the CC’s PII claim[16] in relation to the confidential information referred to in three confidential affidavits, one sworn by the informant Detective Leading Senior Constable JAS on [*REDACTED] and the other two sworn by Detective Acting Superintendent DSJ on [*REDACTED] and [*REDACTED] respectively.
[16]See confidential affidavit of JC dated [*REDACTED].
The confidential information that was the subject of the CC’s PII claim in the Magistrates’ Court is essentially the confidential information the subject of the CC’s current PII claim in this Court.[17]
[17]Second confidential affidavit of JC dated [*REDACTED].
On [*REDACTED], KW was committed to stand trial.
On [*REDACTED], TU, having pleaded guilty, was sentenced in respect of his involvement in the cultivation of the crop at the [*REDACTED] crop house and other crop houses. TU received no informer’s discount on his sentence: he did not give an undertaking to give evidence against KW. Nonetheless, the prosecution intend to compel him to give evidence at KW’s trial.
On [*REDACTED], KW cross-examined a number of witnesses, including TU, at s 198B hearings conducted under the Criminal Procedure Act 2009 (Vic). Other witnesses included RS, whose company rented the Toyota Prado to KW on [*REDACTED], and Dr A, who conducted the autopsy on XY.
[*REDACTED].
Dr A was asked questions seemingly exploring the possibility that the shooter acted in self-defence, even though that issue was not raised in KW’s Defence Response.[18] KW asked Dr A about the trajectory of the bullet through XY’s body, Dr A agreeing that the trajectory was consistent with XY being ‘in a bent position, going forward’[19] at the time he was shot. However, the CCTV footage of the fatal encounter between the shooter and XY does not, in my view, support the suggestion that XY was lunging at the shooter just before the fatal shot.
[18]KW’s Defence Response dated [*REDACTED] says this, relevantly:
1. The accused does not admit presence at [*REDACTED] on [*REDACTED] at the time of the shooting. 2. The accused does not admit to being the shooter. 3. The accused does not admit to any person who fired the fatal shot having a murderous intent, including intent to kill or cause really serious injury. 4. The accused does not admit to cultivating a commercial quantity of cannabis. 5. The accused admits leasing the [*REDACTED] Toyota Prado 4x4 (Toyota Prado) from [*REDACTED]. [*REDACTED] ... But he does not admit to being the only person driving the Toyota Prado during the leased period.
[19]Transcript of Proceedings, [*REDACTED], 31.
Focusing now on TU’s s 198B testimony, it will be recalled that in his recorded police interview and signed police statement, TU effectively said that he picked up KW (whom he referred to as [*REDACTED]) in [*REDACTED] on the night of shooting and gave him a lift to his car.
During examination in chief, he acknowledged that his signature appeared on the statement but he denied that the statement was true and correct.[20] This resulted in a successful, unopposed s 38 application by the prosecutor to cross-examine TU. Under s 38 cross-examination, the gist of most of TU’s testimony was ‘I don’t remember.’
[20]Ibid 41. He agreed that an interpreter read his statement to him just prior to him giving evidence.
As well as being asked further questions about his signed police statement, the relevant part of his recorded police interview was played to TU by the prosecutor. He agreed that, on [*REDACTED] at the police station, he picked out a photo on a police photo-board but he said that he did so simply because it was somebody he knew, although he alleged that the police were wanting him to say, falsely, that the person in the photograph was a person he picked up in [*REDACTED] on the night of the shooting.[21]
[21]Ibid 58.
Under cross-examination by KW, TU said his police statement was not read to him by an interpreter before he signed it.[22] He also said a police officer told him to say the person he picked out from the photo-board was [*REDACTED].[23]
[22]Ibid 62.
[23]Ibid 64.
[*REDACTED].
Despite TU resiling from his statement at the s 198B hearing, it is likely that TU will still be called by the prosecution at the trial and, with leave, be cross-examined under s 38, by which means the prosecution will be able to adduce evidence of his previous representations which are favourable to the prosecution, in particular that he picked up KW in [*REDACTED] on the night of the shooting.
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Submissions
On [*REDACTED], there was a PII hearing in this Court in which KW and the prosecution participated only briefly. Neither were informed of the precise head of the CC’s PII claim or the evidence in support of the claim.[24] After KW agreed that the CC had correctly set out the law on PII in its non-confidential written submissions dated [*REDACTED], neither KW nor the prosecution took any further part in the hearing and, before hearing submissions from the CC, I made an order closing the court.
[24]See DPP v Westbrook (Ruling No 1) [2020] VSC 290.
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Analysis
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[*REDACTED], this Court must ensure that KW receives a fair trial. He is charged with murder, which carries a maximum penalty of life imprisonment. The stakes are high for him.
Whether the CC’s PII claim is considered under the common law or the Evidence Act 2008 (Vic) (ss 130, 131A), the law is effectively the same.[25] I must weigh the competing interests [*REDACTED].
[25]Ryan v State of Victoria [2015] VSCA 353, [58].
In addressing that test, I am aware that I must have regard to the potential of the confidential information to suggest lines of inquiry to KW as well as its potential to be admitted wholly or partly into evidence at KW’s trial.
[*REDACTED].
[*REDACTED].
To put it another way, a realistic approach [*REDACTED] involves consideration of the reliability of the confidential information/evidence which might be relied upon by an accused. But is it permissible to have regard to the reliability of the confidential information/evidence in determining a PII claim? Or does the High Court’s decision in IMM v R[26] prohibit this?
[26]IMM v R (2016) 257 CLR 300; [2016] HCA 14.
At first blush, that might seem to be the import of IMM. The plurality said this at [54]:
The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by s 65(2)(c) and (d) and s 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165.
Now, s 130 is a rule regarding the admissibility of evidence (although it is given a wider operation by s 131A) but, in IMM, it did not make the plurality’s brief list of admissibility provisions which permit a judge to have regard to reliability issues. So, is that the end of the matter?
There are several points to be made about IMM in general and [54] in particular.
First, the law of public interest immunity did not arise for consideration in IMM.
Second, the issues to be decided in IMM — principally, the correct methodology for assessing probative value — did not require the plurality to draw up a definitive list of provisions permitting a judge to have regard to reliability issues. The list in [54] of IMM is obiter dicta.
Third, with respect, the list wrongly omitted s 18, for one. Although included in Chapter 2 of the Evidence Act 2008, s 18 is also a rule regarding the admissibility of evidence.[27] Section 18 obliges a judge to excuse a witness who is the spouse, de facto, parent or child of an accused from giving evidence for the prosecution if the witness objects to giving the evidence and the judge finds that the harm that might be caused to the witness, and/or the relationship, from giving the evidence outweighs the desirability of the witness giving the evidence. One of the considerations which must inform the balancing exercise is ‘the weight that is likely to be attached to the evidence’ (s 18(7)(b)).
[27]It is sometimes said that Chapter 2 of the Evidence Act 2008, which is headed ‘Adducing Evidence’, sets out the procedure by which one adduces evidence the admissibility of which is determined by Chapter 3, which is headed ‘Admissibility of Evidence’. Whilst this is a useful distinction, it is not entirely accurate: Chapter 2 also bears upon the admissibility of evidence.
Might not s 130, like s 18, permit a judge to have regard to the potential ‘weight’ of evidence? And if so, would that not permit consideration of reliability, unlike the assessment of probative value which was the focus of IMM? ‘Weight’ and ‘probative value’ are distinct (albeit overlapping) concepts. The weight of evidence may be defined simply as ‘the extent to which the evidence helps (the jury) to determine the relevant issues’.[28] The determination of the weight of a particular piece of evidence necessarily requires the jury to have regard to the credibility and reliability of the evidence and to assess its cogency in the context of all the evidence, including evidence led in rebuttal. Assessment by a judge of the potential weight of evidence would necessarily require consideration by the judge of all these matters too, notwithstanding the practical difficulties of a judge doing so pre-trial. ‘Probative value’, on the other hand, is defined as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[29] The assessment of probative value is not a prediction of the weight that a jury will actually attach, or is even likely to attach to the evidence. Accordingly, in assessing probative value, one assumes the credibility and reliability of the evidence, unless no reasonable jury could accept it.[30] And, in assessing probative value, one does not have regard to evidence that may be led in rebuttal.
[28]See Criminal Trials Bench Book, Judicial College of Victoria, Chapter 1.6.1.
[29]Evidence Act 2008 (Vic), Dictionary.
[30]IMM v R (2016) 257 CLR 300, 312 [39]; [2016] HCA 14, [39].
The use of the word ‘weight’ in s 18, as opposed to ‘probative value’, permits, indeed requires a judge to have regard to reliability issues, notwithstanding it did not make the plurality’s list in [54] of IMM.
It is worthwhile giving further consideration to s 18 in comparison with s 130. Section 18 expressly mentions ‘weight’ whereas s 130 does not. Does this difference preclude ‘weight’ being a consideration when applying s 130?
The first point is that s 130 provides an inclusive rather an exhaustive list of considerations.
[*REDACTED].
The third point is that neither ss 18 nor 130 refer to the ‘probative value’ of the evidence. Of course, it would make little sense to include probative value as a consideration in s 18 when the likely weight of the evidence is expressly included: there would be no point in the court assuming the credibility and reliability of the evidence one moment and assessing its actual credibility and reliability the next. The non-inclusion of ‘probative value’ in the s 130 list of considerations militates in favour of the potential weight of the evidence being a permissible consideration in the application of s 130.
A useful contrast may be made with s 138 which requires a court to weigh the interest in receiving evidence illegally or improperly obtained against the interest in not receiving evidence obtained in that way. The probative value of the impugned evidence is one of the mandatory considerations in performing that exercise (s 138(3)(a)). While s 138(3) is an inclusive list of considerations, the express reference to probative value in s 138(3)(a) means that the potential weight of the evidence is not a permissible consideration, but there is no such obstacle to considering the potential weight of evidence when applying s 130.
It might be said that the practical difficulties in assessing the potential weight of evidence tell against it being considered when applying s 130. All that needs be said in reply is that if those practical difficulties can (indeed must) be overcome when applying s 18, they are hardly insurmountable when applying s 130.
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I consequently direct that the confidential information not be disclosed.
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