The Queen v McRoberts (No 1) - [2018] NTSC 41

CITATION:The Queen v McRoberts (No 1) [2018] NTSC 41
PARTIES:THE QUEEN
v

McROBERTS, JOHN RINGLAND

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21616999
DELIVERED:  25 June 2018
HEARING DATE:  18 May 2018
JUDGMENT OF:  Mildren AJ
CATCHWORDS:

CRIMINAL LAW – Evidence – late application for leave to obtain expert evidence – whether document in custody of court can be released for forensic examination – evidence relevant only on question of credit – leave refused.
Mickelberg v The Queen(No.3) (1992) 8 WAR 236, referred to
Evidence (National Uniform Legislation) Act, ss 102, 106(1)(b)
REPRESENTATION:
Counsel:
Crown:M McHugh SC and M Chalmers
Accused:A Elliott and S Ramdhas
Solicitors:
Crown:Director of Public Prosecutions
Accused:Ramdhas Poli
Judgment category classification:    B
Judgment ID Number:  MIL18549
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v McRoberts (No 1) [2018] NTSC 41

No. 21616999
BETWEEN:

THE QUEEN

AND:

JOHN RINGLAND MCROBERTS

CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 25 June 2018)
Introduction

The accused is charged with one count of attempting to pervert the course of justice. The Crown alleges that the accused, in his capacity as Commissioner of Police, engaged in a course of conduct intended to deflect or frustrate a criminal investigation that was imminent into the conduct of Xana Kamitsis, a travel agent, who was suspected of misappropriating funds in relation to a pensioner travel concession scheme managed by the Department of Health (NT). One of the matters the Crown is relying upon, according to its case outline, was that the accused took control of operational SUBUTAI, the police investigation into a number of travel agents suspected of rorting the scheme, and proposed an inter-agency task force at a meeting held on 25 June 2014 which was attended by the accused, acting Deputy Commissioner Payne (“Payne”), Acting Deputy Commissioner Chalker (“Chalker”), Commander Fuller (“Fuller”) and Sergeant Blake (“Blake”). It was alleged that the accused indicated to those present at the meeting that he had come up with an idea of an inter-agency task force to progress the investigation and that he was intending to talk to the Chief Minister who was also the Minister for Police and the Health Minister about forming such a task force. The Crown case is that the accused and Ms Kamitsis were at all times personal friends, and previously had been in a sexual relationship. It is contended that the accused engaged in the conduct in order to protect himself and Ms Kamitsis.
The evidence given at the meeting by the witnesses Payne, Fuller and Blake did not specifically confirm that the accused suggested the formation of an inter-agency task force. Those witnesses agreed that a number of options were put before the meeting by the accused. None of them specifically recalled that he was the person who suggested the referral of the matter to an inter-agency task force.
There was evidence that in May 2014, Blake had obtained a search warrant in respect of Ms Kamitsis’ travel agency, but that at a meeting of senior police, including the accused, held on 4 June 2014 the accused said that the fraud squad was not ready to search her premises, thereby frustrating or deflecting, so the Crown alleges, an investigation into her business records.
The witness, Clinton Sims, who at the time was an acting Superintendent in the Crime Division (“Sims”), in his evidence-in-chief said that one of the matters which the accused said at that meeting was that he had come up with the idea of forming an inter-agency task force in relation to the investigation and he suggested he was going to speak with the Minister for Health and Minister for Police about it. Other matters which the witness gave evidence-in-chief related to the following:
(a)that the accused had told the meeting that he had a social relationship with Ms Kamitsis, that he knew her but that he was not in conflict;
(b)he called for a list of other travel agents that were subject of the investigation;
(c)that the accused stated it was his preference to do the search warrants on all of the agents simultaneously;
(d)that the primary goal of the Northern Territory Government was to recover Territory funds;
(e)that in the context of civil remedies, if particular travel agents did not cooperate with the Department of Health then police would look at criminal remedies.
The significance of this is that the police officers concerned with the investigation, including Blake, Sims and others had previously been of the view that it was not practical to execute search warrants on the business premises of all travel agents simultaneously because of the relatively small size of the computer crime unit that police had, and of the significant impact to the business community if search warrants on all travel agents were executed simultaneously because this would cause all their computers to be removed pending what was likely to be a fairly lengthy investigation.
In cross-examination Sims was asked about his police diary. The only entries in the police diary relating to this meeting are as follows:
Attend NAB meeting with C.O.P regarding op SUBATAI. C.O.P advised nil conflict – will progress IAT
The line of cross-examination which followed in relation to the diary entry suggested that the words ‘C.O.P advised nil conflict – will progress IAT’, which refer to an inter-agency task force, were added to the diary entry at a later time. The witness said that this was a note which he made during the course of the meeting.
The next note in the diary is a note “16:50 Off duty”.
Counsel for the accused made an application to the Court for orders enabling the witness’ original diary to be forensically examined by a document examiner, John Alexander McGinn. The proposal was that the Court permit the diary, which was tendered as an exhibit in the voir dire, to be removed from the Court on the day of the application, which was Friday 18 May 2018. The examiner indicated that he expected he would be able to provide an opinion by the following Monday. The opinion being sought was whether or not the relevant entries were created contemporaneously. A number of techniques were proposed to be used, including destructive and non-destructive techniques.
The evidence is that on the following Monday there was to be a conference in Canberra at which Mr McGinn, who is located in Perth, would attend and that it was expected that most of the recognised experts in this field would be attending the same conference. The conference was expected to last for a week.
Sims was the last Crown witness in this trial which had now run for almost four weeks.
The forensic purpose for trying to establish whether or not the words in question had been added at a later time was for the purpose of showing that Sims has lied about when that entry was made so as to persuade the jury not to accept his evidence on other matters which he had given evidence of, and upon which the Crown relied.
The Crown opposed the application and indicated that it, too, would need to obtain expert evidence if in fact the application were successful, and the expert report when it was received provided a basis for suggesting that the words in question were added later.
A copy of the relevant diary entry was provided by the Crown to the defence on 7 March 2017. The copy provided was heavily redacted and produced only those entries that are relevant to this particular case.
Counsel for the accused did not see the actual diary until 16 or 17 May 2018.
It was only after seeing the original diary that Mr Elliott thought that the subject words had been added at a later time. It was put that the writing of the subject words has been compressed in order for them to fit into the line, and appeared to be written with a different pen. It was explained that until he actually saw the original document and was able to compare the witness’ handwriting on the whole page, it was not apparent that this may be so.
During the course of cross-examining the witnesses who attended the meeting held on 26 June 2014 between the Chief Minister/Police Minister Giles, the Minister for Health, Mrs Robin Lambley, and the Chief Executive Officer of Department of Health, Dr Len Notaras, it was suggested by counsel for the accused that the accused put four options to the people at that meeting, one of which was the formation of a joint inter-departmental task force.
It was not going to be suggested that the idea of a joint inter-departmental task force did not originally come from the Commissioner but rather that Sims had added these words to his diary at a later time in order to bolster his evidence relating to some of the other matters of which he gave evidence and which were not recorded in his diary. It was put that if it could be shown that Sims had made that entry at a later time this would affect his credibility generally and therefore undermine his credibility on other matters which were damaging to the accused.
The differences in the writing to which counsel referred, are obvious on an examination of the redacted copy which was provided in March 2017. The fact that the accused is said to have told the meeting about his personal relationship with Ms Kamitsis and was not conflicted is not inconsistent with other evidence in the trial. The evidence is that he had said similar things on other occasions prior to this meeting to other police officers at which Sims was not present.
It does not seem to be contested that the accused told the meeting on 25 June that he intended to propose an inter-agency task force when he met with the Ministers and Dr Notaras the following day. The significance is what the witness said in cross-examination about the accused’s demeanour at this meeting:
So, are you saying that the one entry that you wrote was written at difference times?---I’m saying I don’t recall when I entered the first one.
Yes?---The line in relation to the conflict was most certainly recorded at the time when I was in the conference room. I felt very uncomfortable about writing it and that’s why I can actually recall it.
Okay?---Mr McRoberts was quite heated and he was actually walking around. Everyone else was seated.
He was heated, is that what you say?---Yes.
What, when he was telling you that he had no conflict, is that right?---He had stated that at the beginning of the meeting, and then he went on to discuss other things.
I see. So, he wasn’t being heated when he wrote about---when he spoke about not having a conflict of interest?---When I say heated, what I’m referring to is that he was quite irritated. He was standing up talking to us. He was walking around the room. When I was notating what he’s earlier said, he was pretty well standing next to me at the table.
That’s not in your diary, is it?---No.
You never said it in your evidence-in-chief?---I don’t believe so, no.
You’ve never articulated it to anyone before, have you?---No.
In connection with this case. So you’re saying that the Commissioner was heated and he was standing up and he was right near you and you’ve never recorded that anywhere before?---I recorded his comment in relation to the conflict.
I didn’t ask you about that, sir. I asked you about this notion that the Commissioner was heated and he was walking around the room. You’ve never said that anywhere, have you?---I don’t believe so, no.
I did not hold it against counsel for the accused that he did not realise the potential significance of the change in the style of the handwriting until 16 or 17 May 2018. I accept that, as the diary is in the custody of the Court, I have power to order that it be made available for inspection for examination and testing, so long as there are appropriate safeguards in place which will ensure that the diary remains in the custody of the Court, and the integrity of the diary is preserved. It would have been necessary for the diary to be removed from the Court and sent to Perth for examination by Mr McGinn, and then returned to this Court. An officer of the Court would need to be satisfied regarding the security and integrity of the diary whilst in Mr McGinn’s temporary custody. Then, if the Crown wished to have the diary examined by its expert, similar arrangements would need to be put in place: see Mickelberg v The Queen(No.3).[1]
The question which I had to consider is whether or not it is in the interests of justice to enable the diary to be examined and tested for the purpose indicated. At the conclusion of submissions by the parties, I dismissed the application and said that I would provide my reasons later. These are my reasons.
If I had granted the application, and assuming that proper arrangements could be put in place to preserve the integrity of the diary, and if the expert evidence did not favour the accused, it is true that only one day of the trial would be lost. On the other hand, if the expert evidence suggested that the entry was made at a later time, this would cause very significant disruption to the trial because of the need for the Crown to seek another opinion. This could not be done easily in the week following for the reason that all of the experts who might be able to be called upon were likely to be attending this conference. It is difficult to know for how long the trial might have to be adjourned before the trial could recommence. It is likely to have taken at least two or three weeks. The trial was at the stage where the Crown was soon expected to close its case. The potential value of the evidence, was that it only went to a question of credit and would in any event be subject to the credit rule set out in s 102 of the Evidence (National Uniform Legislation) Act. The admissibility of the evidence would require leave under s 106(1)(b) of the Act. It was by no means clear to me that leave would be granted.
So far as the diary entry itself is concerned the entry in the original diary and in the redacted copy is apparent on its face. It does appear that the writing is more compacted and it is perfectly open to suggest that it was added at a later time. It was not known what the response of Sims would be when cross-examined on that point. So far he had not been so cross-examined. He may say, for all I know, that he had some reason for writing it in the manner in which he did.
Even if expert evidence were to become available to the effect that the entry was made at a later time, this does no more than prove that Sims’ recollection is wrong. It does not necessarily prove that he was deliberately lying. Nevertheless it might affect his credibility on this, as well as other matters of which he gave evidence. However, the evidence of Sims, to the extent that it is being challenged, is really very peripheral to the issues in this trial. Taking into account all of these matters, I did not consider that it was necessary in order to secure a fair trial for the accused to accede to the application.
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[1](1992) 8 WAR 236 at 252 – 253 per Malcolm CJ.