Re Singh, Miller and Brush

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SUPREME COURT OF QUEENSLAND

CITATION:

Re Singh, Miller and Brush [2022] QSC 44

PARTIES:

BRODIE JEET SINGH

(applicant)

v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION

(respondent)

FILE NO:

BS No 1513 of 2022

PARTIES:

NATHAN JOHN MILLER

(applicant)

v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION

(respondent)

FILE NO:

BS No 1519 of 2022

PARTIES:

GARRY JAMES BRUSH
(applicant)

v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION

(respondent)

FILE NO:

BS No 1520 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2022, 22 March 2022

JUDGE:

Davis J

ORDER:

In each application:

1.   The application is dismissed.

2.   The matter be referred to each of:

a.   The Officer in Charge, Ethical Standards Command of the Queensland Police Service;

b.   The Minister for Police; and

c.   The Crime and Corruption Commission Queensland.

CATCHWORDS:

CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - FURTHER APPLICATIONS - where three applicants for bail were charged with offences including murder - where an investigating police officer swore an objection to bail affidavit - where the objection to bail affidavit asserted the existence of crucial evidence - where the crucial evidence did not exist - where bail applications were dismissed - where further bail applications were brought - where the Magistrate did not commit the applicants for trial for murder - applications for bail no longer necessary - applications dismissed

POLICE - INTERNAL ADMINISTRATION - DISCIPLINE - where the applicants were charged with offences including murder - where an investigating officer swore an objection to bail affidavit - where the objection to bail affidavit asserted the existence of crucial evidence - where the crucial evidence did not exist - where bail applications were refused based on the objection to bail affidavit - where the officer acknowledged in evidence at the committal proceedings that the evidence did not exist - where the police officer asserts that the affidavit was sworn in error - whether the case should be referred for disciplinary investigation

Bail Act 1980, s 7, s 15, s 16

Ex parte Edwards [1989] 1 Qd R 139, cited
Gant v Magistrate Kucks [2013] QSC 285, cited
Purcell v Venardos (No 2) [1997] 1 Qd R 317, cited
Sica v Director of Public Prosecutions (Qld) [2011] 2 Qd R 254, cited

COUNSEL:

S Holt QC for the applicant Singh
A Djemal for the applicant Miller on 15 February 2022
A Edwards for the applicant Brush
No appearance for the applicant Miller on 22 March 2022

S Gallagher for the respondent

SOLICITORS:

Dib & Associates for the applicant Singh
Grant Lawyers for the applicant Miller
Ashkan Tai Lawyers for the applicant Brush

Office of the Director of Public Prosecutions for the respondent

  1. The three applicants for bail were charged with murder.  Ultimately, the bail applications were not heard as the committal proceedings were concluded and all three applicants were discharged.  By consent, the bail applications were then…

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Details
Case
[2022] QSC 44
Decision Date

CaseChat Overview and Summary

In this case, three applicants, Singh, Miller, and Brush, sought bail from the court while they were charged with offences including murder. The court had to consider whether the case against them was strong enough to warrant their continued detention and whether there had been any material changes in circumstances since their previous bail applications. The applicants argued that the case against them was weak or non-existent, especially since the crucial evidence sworn to by the investigating police officer, DSC Libbis, did not exist. The police officer admitted that his assertion in the objection to bail affidavit was an error.

The court concluded that the Crown had not provided any admissible evidence to support their case against the applicants. The court found that the police officer had sworn an affidavit without viewing the footage and that the evidence relied upon for the bail applications was false. The court emphasised the importance of objectivity and responsibility when police officers present information before the court on a bail application. The court decided to dismiss the bail applications and referred the matter to the Ethical Standards Command of the Queensland Police Service, the Minister for Police, and the Crime and Corruption Commission for investigations.

Orders

Orders of the court

In each application:

1. The application is dismissed.

2. The matter be referred to each of:

a. The Officer in Charge, Ethical Standards Command of the Queensland Police Service;

b. The Minister for Police; and

c. The Crime and Corruption Commission Queensland.

Background

Background to the litigation

These are my reasons for making those orders. Background On 18 October 2019, two men, Shane Anthony Ross and Cameron James Martin, were murdered at Tallebudgera. Both were shot. Both are said to be associated with an Outlaw Motorcycle Gang (OMG). It was alleged that each of the three applicants were members of an OMG but not the one with which Ross and Martin were associated. The Crown case was that Singh and Miller travelled in a white BMW X5 and stalked Ross and Martin who were travelling in a Mercedes Benz. Miller and Singh, in the BMW, pursued Ross and Martin in the Mercedes Benz and eventually shot them. Brush was not alleged by the Crown to be present at the time and place of the killings. He is linked with the BMW (which was stolen) and is said to have lured Ross and Martin to the area where they were murdered. All three of the present applicants were arrested and charged with various offences, most significantly two counts of murder. Brush did not make a bail application until February 2022 when the current application was filed. Singh made an application for bail which was refused by me on 1 April 2020. Miller made an application for bail which was refused by Boddice J on 6 May 2020. The current applications came before me on 15 February 2022. In order to pursue what, in Singh’s and Miller’s cases, were second bail applications, they had to demonstrate a material change in circumstances from the time they made their first applications.[1] They pointed to the fact that committal proceedings had been heard and, in the course of those proceedings, the case against them had been shown to be significantly weaker than had been alleged against them at the time of the first bail applications. All applicants submitted before me that bail should be granted because the case against each of them was either very weak or non-existent. [1]Ex parte Edwards [1989] 1 Qd R 139; Sica v Director of Public Prosecutions (Qld) [2011] 2 Qd R 254. Ms Gallagher, for the Director of Public Prosecutions, properly conceded that a material change in circumstances had been shown by both Singh and Miller, but she opposed the applications. It became apparent during the hearing of the applications that:1.all evidence against Brush had been led in the committal proceedings;2.submissions had been made that he ought not be committed for trial; and3.judgment was likely to be given when the committal proceedings against all three of the current applicants recommenced on 11 March 2022. It was anticipated that the committal proceedings against Singh and Miller would likely conclude on 11 March 2022. It was anticipated that submissions would be made on behalf of each of Miller and Singh that they ought not be committed for trial. Although she was facing bail applications where a central issue was as to the strength or otherwise of the Crown case, Ms Gallagher was not armed with affidavits exhibiting the relevant evidence which was said to prove the guilt of the three applicants. Ms Gallagher told me that she could tell me what the Crown case was and proposed to do so by referring to evidence then not before me. That was not appropriate.

Evidence

Evidence Before The Court

This interpretation of the objection to bail affidavit was confirmed by DSC Libbis in his evidence at the committal proceedings. DSC Libbis was cross-examined on the contents of the objection to bail affidavit as follows:“Thank you. It’s that last ‘Singh and Miller are red and green’ that I want to ask you some questions, about, okay?---Yes.Particularly Singh being red, obviously enough because I act for him. So can I ask you, then, on the objection to bail affidavit, to go, please, to page 5 of 11. Do you see that page?---Yes.Now, the second-to-last paragraph, you say this:‘A review of the red and green Ciphr phone telecommunications data (FccR cell locations) cross-referenced to the location data of personal phones, known travel movements and CCTV footage has placed the users of the Ciphr phones as Miller (green) and Singh (red) from the period of relevant activation of the handsets to the murders of Ross and Martin.’Have I read that correctly?---Yes.And then it goes on:‘Up until two and a-half hours before the murders, evidence -’you say -‘depicts Miller and Singh in possession of the handsets.’?---Yes.Right. Just let’s deal with the last bit first. What evidence depicts Miller and Singh in possession of the handsets, just so I can focus on that later?---That is the Banora Point Corolla.The Banora Point - - -?---The Corolla fuelling up at Banora Point.So the - so you’re talking about the Corolla that fuels up at Banora Point at some point in the evening?---Yes.Yes. And there are - there’s footage - CCTV footage that shows very clearly Mr Singh and Miller in that vehicle at that time?---Miller, and we suspect Singh was driving.Right. In any event, let’s assume for present purposes that it shows them both in there?---Yep.I take it, then, from where you’ve put it depicts Miller and Singh in possession of the handsets, I take it you can see the handsets, can you?---No.No. You can’t see the handsets?---No, you can’t.Why did you say it depicts Miller and Singh in possession of the handsets?---That was an error.It was an error?---Yes.” (emphasis added) The alleged evidence sworn to by DSC Libbis placing Singh and Miller in possession of the red and green handsets at the Caltex service station at Banora Point at 6.49 pm on 18 October 2019 is the critical evidence in the Crown case. It links the red and green handsets to Singh and Miller shortly before the killings. That evidence just does not exist. The footage does not depict what DSC Libbis swore on oath it depicted. The objection to bail affidavit was relied upon by the Crown to defeat the previous applications for bail made by Singh and Miller. It was common ground on the applications before me on 15 February 2022 that the assertion by DSC Libbis that Singh and Miller are seen with the telephones is false. The obvious inference is that DSC Libbis has sworn the affidavit without viewing the footage. Conclusions Section 15 of the Bail Act provides that, upon a bail application, a court may “receive and take into account evidence of any kind that it considers credible or trustworthy”.[6][6]Bail Act 1980, s 15(1)(e).

Decision

Reasons for decision

It was common ground on the applications before me on 15 February 2022 that the assertion by DSC Libbis that Singh and Miller are seen with the telephones is false. The obvious inference is that DSC Libbis has sworn the affidavit without viewing the footage. Conclusions Section 15 of the Bail Act provides that, upon a bail application, a court may “receive and take into account evidence of any kind that it considers credible or trustworthy”.[6][6]Bail Act 1980, s 15(1)(e). Bail applications are often brought soon after the arrest of a person. It is often not practicable for police officers to present evidence in strictly admissible form. That is no doubt the policy behind s 15 enabling a court to act on what information it considers it ought. However, if police officers are being entrusted to place information other than strictly admissible evidence before a court on a bail application, it is imperative that those offices act objectively and responsibly. This is especially so when police regularly rely on affidavits where the police swear to their opinion as to the presence or otherwise of the various risks which the court must, by statute, consider. Experience is that objection to bail affidavits are often not models of objectivity.[7][7]See, for example, Re Bruce John Preston, unreported, 31 January 2020, Supreme Court, Brisbane, Davis J. Here, Singh has been in custody for almost two years after making a bail application which was defended on assertions put before the court which were plainly objectively false. That is an outrage and the circumstances of the present case ought to be investigated. I direct that the matter be referred to the Ethical Standards Command of the Queensland Police Service, to the Minister for Police and to the Crime and Corruption Commission for investigations.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.