Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hurley v Newton

 

[2020] QDC 49

DISTRICT COURT OF QUEENSLAND

CITATION:

Hurley v Detective Sergeant Newton [2020] QDC 49

PARTIES:

HURLEY, Christopher James
(Appellant)

v

NEWTON, Detective Sergeant Suzanne Maree
(Respondent)

FILE NO/S:

D215/2017

DIVISION:

Civil

PROCEEDING:

S 222 Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

6 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2019

JUDGE:

Devereaux SC DCJ

ORDER:

  1. Leave to adduce new evidence refused.
  2. Appeal dismissed.
  3. Any submissions on costs to be exchanged and filed by 4.30 pm 9 April 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – where the Commissioner of Police lawfully compelled an employee to give an interview for employment purposes under the Police Services Administration Act 1990 – where it is alleged that the compulsory interview was used for the purpose of a criminal investigation – where the same detective was used to investigate the criminal charges and the departmental employment investigation – where the appellant was convicted of two charges of dangerous operation of a motor vehicle – whether the criminal investigation was so unfair that there is no way to remedy the unfairness other than to allow the appeal and order a permanent stay of proceedings

CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – where it is submitted that the magistrate erred in failing to apply s 24 of the Criminal Code – where it is submitted that the magistrate made a material error of fact – where it is submitted that the magistrate erred in his application of s 616 of the Police Powers and Responsibilities Act 2000

CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal pursuant to s 222 Justices Act 1986 – powers of court on appeal to consider fresh evidence – where the appellant seeks to rely on fresh evidence pursuant to s 223 Justices Act 1986

LEGISLATION:

Justices Act 1886 (Qld), ss 222, 223

Police Powers and Responsibilities Act 2000 (Qld), s 616

Police Service Administration Act 1990 (Qld)

Police Service Administration Regulation 1990 (Qld)

Police Service (Discipline) Regulations 1990 (Qld)

 

Evidence Act 1977 (Qld)

CASES:

White v Commissioner of Police [2014] QCA 121

X7 v Australian Crime Commission 248 CLR 92

X7 v The Queen 246 A Crim R 402

Lee v The Queen 253 CLR 455

Police Service Board v Morris (1985) 156 CLR 397

NS v Scott [2017] QCA 237

Nugent v Commissioner of Police (Qld) 261 A Crim R 383

Police Service Board v Morris (1985) 156 CLR 397

R v CB; MP v R [2011] NSWCCA 264

Nudd v The Queen [2006] HCA 9

R v Wellington [2018] QDCPR 24

R v Sellar; R v McCarthy [2013] NSWCCA 42

Hammond v The Commonwealth (1982) 152 CLR 188

COUNSEL:

J. Hunter QC for the appellant

M. Nicolson for the respondent

SOLICITORS:

Gilshenan & Luton for the appellant

Queensland Police Service for the respondent

Introduction

  1. [1]
    On 17 May 2015, the appellant, then a senior sergeant of police, took part in the pursuit of a stolen vehicle of interest.  He was charged with two counts of dangerous operation of a motor vehicle arising out of the pursuit.  After a trial, he was convicted on 11 July 2017 of the two charges.  He appeals the convictions on the following grounds:

“Ground 1 [in relation to charge 1]:

The learned magistrate erred in that, having accepted that s 24 of the Criminal Code was engaged, his Honour failed to apply that section.

The learned magistrate made a material error of fact in that his Honour attributed conduct to the [appellant] that the uncontested evidence demonstrated was conduct engaged in by another person.

In light of the findings made by the learned magistrate it was not reasonably open to convict [the appellant] of charge 1 as particularised by the prosecution.

Ground 2 [in relation to charge 2]:

The learned magistrate erred in his application of s 616 of the Police Powers and Responsibilities Act by misstating the statutory test and by effectively reversing the burden of proof.

In light of the findings made by the learned magistrate it was not reasonable to convict the [appellant] of charge 2 as particularised by the prosecution.

Ground 3:

The prosecution was tainted by unfairness in the investigation because of the use made by investigators of material obtained by a coerced disciplinary process which caused the hearing of the charges to be an abuse of the court’s processes.”

  1. [2]
    The appeal, under s 222 of the Justices Act 1886, is by way of rehearing on the record.[1]   The nature of such an appeal was described in White v Commissioner of Police [2014] QCA 121 as:

“a rehearing, in the technical sense consisting of a review of the record of the proceedings below, rather than a completely fresh hearing.  To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.”[2]

  1. [3]
    This was contrasted with an appeal to the Court of Appeal seeking to review a decision of the District Court in its appellate jurisdiction, which:

“may only be made with leave of [the Court of Appeal], and is not an appeal by way of hearing, but a strict appeal where error of law must be demonstrated.”[3]

  1. [4]
    The court may give leave to adduce fresh, additional or substituted evidence if satisfied there are special grounds for giving leave.[4]
  2. [5]
    I take the following brief and uncontroversial statement of the background to the charges, their particulars and the learned magistrate’s reasoning from the appellant’s outline.

On 17 May 2017, police pursued a stolen vehicle of interest at Surfers Paradise.  The vehicle had apparently been used in an armed robbery and attempted armed robbery the previous evening. 

That day, the appellant was the District Duty Officer for the Southern Gold Coast Region.  He became involved in the pursuit from around 8:25 pm, as the driver of a police vehicle.

At around the time the appellant joined the pursuit, ‘stingers’ or tyre deflation devices were deployed and punctured the two passenger side tyres on the vehicle of interest.  As the tyres flattened and shredded, leaving the vehicle of interest driving on its rims, the pursuit slowed from a maximum speed of approximately 80 kph to around 30 or 40 kph.

The appellant was charged with two charges of dangerous operation of a vehicle pursuant to s 328A(1) of the Criminal Code.  Initially, the Crown particularised the charges as follows:

Charge 1:

The [appellant] has driven his vehicle onto the … incorrect side of the roadway without activating emergency lights or sirens.  The [appellant] has entered the roundabout … on the incorrect side of the roadway and travelled around the roundabout in the incorrect direction.

The [appellant] has continued up the roadway on the incorrect side and on three separate occasions civilian vehicles have veered off the roadway to avoid collision.  The [appellant] has hit the rear of the stolen vehicle with the front of his police vehicle on two occasions causing it to fishtail.

Charge 2:

After radio announcements to pull back, the appellant hit the rear of the stolen vehicle with the front of his police vehicle, causing it to lose control in a circular motion toward a fence and bushland.

A number of police officers gave evidence at trial and police helicopter (“polair”) and dash-cam video footage of the pursuit was played.

On viewing that footage the magistrate found that, during the pursuit, “it was clearly identified that the [appellant] drove on the wrong side of the road without lights and sirens on a number of occasions and, in relation to the second charge, did what is colloquially called a PIT manoeuvre.”  This represented the essence of his factual findings as to the appellant’s conduct.

The particulars of the first charge initially included driving on the incorrect side of the road without activating lights and sirens.  This was deleted before trial.  That reduced the particulars of the first charge to the appellant having “continued up the roadway on the incorrect side and on three separate occasions civilian vehicles have veered off the roadway to avoid collision.  The [appellant] has hit the rear of the stolen vehicle with the front of his police vehicle on two occasions causing it to fishtail.”

  1. [6]
    With respect to the first charge, the learned magistrate expressed himself to be unable to be satisfied beyond reasonable doubt that the appellant’s vehicle came into contact with the stolen vehicle, despite describing - accurately in my respectful opinion – how the polair vision shows the stolen vehicle “swerving slightly when the defendant’s vehicle comes into close contact with it.  With the second tap, it would appear that both the vehicle of interest and the defendant’s vehicle move slightly.”[5]
  2. [7]
    The learned magistrate explained the doubt as that “[t]here may be some unexplained reason for that or it may be that all of us who have viewed the video are allowing the video to play tricks on our eyes.”[6]  In my respectful opinion, the evidence demonstrated that the appellant’s vehicle came into contact with the stolen vehicle on at least one of the two particularised occasions.   In any case, whether there was contact or not, the driving was so close as to be dangerous and both vehicles, on one occasion, swerve in apparent consequence of the proximity.
  3. [8]
    The learned magistrate went on to focus on the allegation that the appellant drove on the wrong side of the road without lights and sirens.  The appellant points out that it was no longer part of the charge that the appellant drove without lights and sirens.  Nonetheless, that was an objective fact.
  4. [9]
    The first ground of appeal is that the magistrate, having accepted that s 24 of the Criminal Code was engaged, failed to apply it.  This ground fails because the section was not engaged and the magistrate made no error.  The possibility that the appellant might have thought his lights and sirens were on when he drove on the incorrect side of the road was, as the learned magistrate correctly recorded, raised in submissions by the prosecutor.  His Honour continued:

“So in circumstances where he was on the wrong side of the road without lights and sirens I am satisfied that the defendant would have been aware that he was on the wrong side of the road, having regard to the evidence, but he may have been of the view that he had his lights and sirens on.  That – having regards to the fact that other vehicles did, and he may not have perceived that he did not have his lights and sirens on, or perhaps he considered that, having regard to the lights and sirens of other vehicles being on, it was not necessary for – to – him to have his lights and sirens on.  I do not know what may have been his belief because there was no evidence given in relation to that.”[7]

Ground One

  1. [10]
    This was not, as the appellant submitted, a “clear finding” that “the prosecution had not disproved” a relevant belief.  It was also not, as the appellant alternatively submitted, a misstatement that a defendant has to give evidence of a belief in order to raise mistake of fact. It was an accurate statement – there was no evidence raising s 24.  It was just speculation.  There was no material on which the tribunal of fact could assess whether the belief was held, and if so, whether it was honestly held, and whether there were reasonable grounds for it.
  2. [11]
    The appellant’s ultimate complaint is that the magistrate failed to make a finding on the issue of mistake of fact.  In my respectful opinion, the magistrate need have said no more.  Upon my review of the material, there was no foundation for a reasonable doubt about guilt of the first charge on the basis that the prosecution did not exclude the possibility that the appellant honestly but mistakenly believed on reasonable grounds that his car’s lights and sirens were on when he drove on the incorrect side of the road.
  3. [12]
    The second argument with respect to the first charge was that the magistrate made a material error of fact by attributing to the appellant conduct of the driver of the stolen vehicle.
  4. [13]
    A witness, Senior Constable Algie, explained why he drove on the incorrect side of the road at a certain point. He said he followed the stolen vehicle, on the incorrect side of the road, as the vehicles were “coming up to a blind hill.”  He explained that, “[w]e had the offender’s car coming up the hill and I got my lights behind him” to alert any oncoming driver.[8] When recounting this evidence, the magistrate said “[h]e was aware that the defendant, who was on the wrong side of the road, was approaching a dip…”[9]
  5. [14]
    I am not persuaded the magistrate misconstrued the evidence.  Algie was clearly not speaking of the appellant when he referred to following “the offender” in the police pursuit.  There is no reason to read the magistrate’s use of the term “defendant” as a reference to the appellant.  It is a reference to Algie’s “offender” in the stolen vehicle.  The magistrate referred to Algie’s evidence as an example of evidence that other police officers had driven on the wrong side of the road, after which his Honour repeated the evidence that the “defendant” – this time a clear reference to the appellant – did not have his lights and sirens on at any particularised point of the pursuit.
  6. [15]
    The next argument is that, “in light of the magistrate’s findings, it was not reasonably open to convict”.  In support of this ground the appellant submits the prosecution did not and cannot exclude s 24 mistake – that the appellant honestly believed his lights and sirens were on.  That would leave the only particular of dangerousness being the driving on the wrong side of the road.  And, given that other officers drove on the wrong side of the road, the verdict would be unsustainable.
  7. [16]
    As I have said, I am not satisfied the magistrate erred with respect to s 24 mistake.  The appellant has not established error.  Even if he had shown error and I were required to review the evidence, I would be satisfied of guilt of charge 1 beyond reasonable doubt.  The appellant drove his vehicle on the wrong side of the road without police lights and sirens; other drivers had to get off the road to avoid the appellant’s car – it was dangerous driving even absent conclusive evidence that the vehicles had to swerve to avoid the appellant’s car; and the appellant drove so close to the stolen vehicle that on at least one occasion the appellant’s vehicle moved dangerously close to the stolen vehicle, even if there might have been some doubt about whether it connected.
  8. [17]
    In short, the evidence supported the first charge.

Ground 2

  1. [18]
    As to the second charge, it was not disputed that the appellant brought his vehicle into contact with the stolen car, causing it to lose control.  The submission was, at trial and on appeal, that the prosecution did not prove that the action was not a use of “force reasonably necessary” pursuant to s 616 of the Police Powers and Responsibilities Act.  The ground of appeal is that the magistrate erred “by misstating the statutory test and by effectively reversing the burden of proof”. 
  2. [19]
    Section 616 provides:
  1. This section applies if a police officer reasonably suspects a person—
  1. has committed, is committing, or is about to commit an offence punishable by life imprisonment; or
  2. has committed an offence punishable by life imprisonment and is attempting to escape arrest or has escaped from arrest or custody.
  1. This section also applies if—
  1. a police officer reasonably suspects a person is doing, or is about to do, something likely to cause grievous bodily harm to, or the death of, another person; and
  2. the police officer reasonably suspects he or she can not prevent the grievous bodily harm or death other than in the way authorised under this section.
  1. It is lawful for the police officer to use the force reasonably necessary—
  1. to prevent the continuation or repetition of the offence or the commission of another offence punishable by life imprisonment; or
  2. to apprehend the person; or
  3. to prevent the escape of a person from arrest or custody; or
  4. to prevent the commission of an act mentioned in subsection (2).
  1. The force a police officer may use under this section includes force likely to cause grievous bodily harm to a person or the person’s death.
  2. If the police officer reasonably believes it is necessary to use force likely to cause grievous bodily harm to a person or the person’s death, the police officer must, if practicable, first call on the person to stop doing the act.
  1. [20]
    There was a foundation for the belief that the occupants of the vehicle were involved, not just in its unlawful use and dangerous operation, but also in robberies the previous evening.  The magistrate recounted the examples of force open to police according to evidence given by two officers.  These did not include the PIT manoeuvre used by the appellant but, as the magistrate commented, that did not compel a conclusion that the appellant’s operation of his vehicle was dangerous.  In the present case, the attempts of police to apprehend the occupants of the vehicle included the use of tyre deflation devices and a road block.  The circumstances included that, as a result of the deflated tyres on the stolen vehicle, the pursuit eventually proceeded slowly, at 30-40 kilometres per hour.  The action was taken on a dry, level street at night near a school and bushland.  The magistrate concluded:

“In the circumstances that the tyres on the passenger side had been delaminated, it was now a low-speed chase [indistinct] speed in question and that there had been a radio call to pull back, I do not think that it can be said that this was a reasonable use of force, and I therefore find the second charge proved.”[10]

  1. [21]
    Care must be taken in the expression of a conclusion of guilt, including the standard of proof applied, so that a convicted person may be sure the verdict was properly reached.  The magistrate’s formulation was less than copy-book but the reasons for decision make plain that the magistrate understood the onus of proof was on the prosecution.[11]  His Honour set out the terms of s 616, including that “it is lawful for the police officer to use the force reasonably necessary to … apprehend the person.”[12]  If there is a difference between a reasonable use of force and the use of force reasonably necessary, it did not, in the circumstances of this case, cause a miscarriage of justice.  Nor is there a basis for concluding the magistrate reversed the onus of proof.  Late in submissions on this point, defence counsel reminded the magistrate that it was for the prosecution to prove the force used not to have been reasonably necessary.[13] 
  2. [22]
    To collide with the stolen vehicle causing it to lose control was not the use of reasonably necessary force.  It was dangerous operation of a vehicle.  This ground of appeal must fail.

Ground Three

  1. [23]
    The appellant commences the argument in support of ground three by reference to the decision of Judge Dick SC on 11 May 2018 to permanently stay the prosecution of the police officer, Barry John Wellington, who was in the appellant’s vehicle during the events that gave rise to the appellant’s charges.[14] 
  2. [24]
    Differences between the present case and that before Judge Dick SC include that Wellington was charged on indictment with malicious act with intent alternatively threatening violence with intent, arising from his use of a firearm after the appellant had brought the stolen vehicle to a halt, and his was a pre-trial application to stay the indictment.

Application to adduce new evidence

  1. [25]
    As I have set out, there was no error in the trial.  The appellant seeks leave to adduce fresh evidence, as set out in the affidavit of Ms Smith, of his solicitors.  The respondent’s material in reply sufficiently demonstrates that the material now relied upon was available, with reasonable diligence, to the appellant’s legal representatives before the trial.  The reply material suggests they were aware, before the trial, of Wellington’s stay application: the appellant’s solicitor was present at the appellant’s disciplinary interviews and Wellington’s representatives issued a summons to the Commissioner of the Queensland Police Service to produce a ‘matrix’ relevant to the investigation of Wellington.  No reason has been presented in the appellant’s material for not taking the present point before trial.
  2. [26]
    Whether leave should be given is to be answered, in this case, according to whether the material shows there has been a miscarriage of justice.

The arguments and relevant cases

  1. [27]
    Ms Smith’s affidavit reveals that both officers were subject to disciplinary investigation conducted by Detective Newton, the respondent.  The respondent attempted to interview both officers as suspects.  Each refused to be interviewed.  The respondent then compelled each officer to answer questions in the disciplinary process. 
  2. [28]
    The respondent was the named complainant in the charges and took the witness statements. 
  3. [29]
    The appellant submits it is “overwhelmingly clear that the way in which those statements were taken [was] heavily influenced by – and directly responsive to – answers given to the respondent in the disciplinary interviews.”[15]  The investigator developed an ‘interview matrix’ that, it was submitted, was a plain attempt to discover and prepare a response to any possible defences to criminal charges.
  4. [30]
    The appellant was interviewed on 18 May 2015, 25 May 2015 and 1 – 2 July 2015.  The 25 May 2015 interview included a re-enactment of the driving and the subsequent event (a shooting incident).  On each occasion, the respondent invoked the Police Commissioner’s power to compel answers.
  5. [31]
    The legislative framework, relevant to this appeal, for the disciplinary procedure employed by the respondent – the Police Service Administration Act 1990 (Qld), the Police Service Administration Regulation 1990 (Qld) and the Police Service (Discipline) Regulations 1990 (Qld) – was set out by Morrison JA in Nugent v Commissioner of Police (Qld) 261 A Crim R 383 at [43 – 68].  His Honour also set out the direction of the commissioner relevant to the present case which was given under that scheme.[16]
  6. [32]
    Obedience to command and discipline are “essential to the State’s reliance” on the police service to protect the community.  By necessary implication, the regulatory scheme created by the Act and Regulations abrogates the privilege against self-incrimination in a disciplinary inquiry.[17]  It would impair the discipline of the police service if a police officer were to claim the privilege when ordered to give information about his activities when on duty.[18]  The order was lawfully issued by the commissioner.[19]
  7. [33]
    The appellant’s written outline does not set out how the abuse of the disciplinary process made the trial unfair.  Apart from Ms Smith’s affidavit and attachments, there is no evidence from the appellant nor his representatives at trial to demonstrate how the trial miscarried because of the respondent’s conduct.
  8. [34]
    The appellant submits, referring to Lee v The Queen 253 CLR 455, that it is not fatal to the appeal if he cannot explain how the abuse of the disciplinary regime actually worked an unfairness in the trial.  All he can do, it is submitted, is point to the fine detail in which he was questioned about every aspect of the events that gave rise to the charges and the obvious access that witnesses who gave statements or addendum statements after he was interrogated had to his answers.  Senior counsel also submitted that, having given a detailed account, the appellant might have felt constrained not to give evidence. 
  9. [35]
    As the same people who conducted the disciplinary interview conducted the criminal investigation, it is submitted the complaint is not answered by examining how the information obtained was disseminated.  The appellant referred to, among other cases, R v CB; MP v R [2011] NSWCCA 264, in which McLellan CJ said, “Only if it can be shown that either the relevant information has been, or there was a real risk that it would be communicated to the prosecution, could it be concluded that the exceptional step of granting a permanent stay should be taken.”[20]  The appellant submits, “in this case every aspect of the prosecution has been permeated with the coerced evidence.”[21]
  10. [36]
    On the other hand, the respondent submits the evidence at trial was primarily the objective material in the recordings.  Counsel for the respondent asserts, in the written outline, that “the evidence given by the appellant before the disciplinary process was not in the possession of the legal team for the prosecution.”  The respondent submits that no forensic advantage to the prosecution can be shown by the obtaining of statements or addendum statements after the compelled interviews.  Any material obtained after the interviews was open to investigators in the usual course of an investigation.  Even if this amounted to derivative use of the appellant’s compelled answers, the respondent argued, that did not necessarily produce an unfair trial.  The respondent referred to NS v Scott [2017] QCA 237 where the Court of Appeal considered whether the prospect, that answers given to the Crime and Corruption Commission might lead to the securing of derivative evidence which could be used against the appellant at his trial, grounded a reasonable excuse to refuse to answer questions under s 190 of the Crime and Corruption Act 2001 (Qld).  Holmes CJ, with whom Philippides JA and Flanagan J agreed, said:

“As was acknowledged in the joint judgment of French CJ and Crennan J in [X7 v ACC] and in Bathurst CJ’s judgment in R v Sellar, the use of derivative evidence does not necessarily prejudice a fair trial.  It will depend on the nature of the evidence, and whether it is available from other sources. Those are not matters likely to be apparent at a Commission hearing.  If there were a question of unfairness in the adducing at trial of evidence thus obtained, it would be open to the appellant to apply for its exclusion on the ground of unfairness, under s 130 of the Evidence Act 1977 (Qld).  Given the availability of that recourse, the prospective obtaining of derivative evidence and its provision to the prosecution did not amount to a reasonable excuse under s 190(1).”[22]

  1. [37]
    In X7 v Australian Crime Commission 248 CLR 92 (“X7 v ACC”), the High Court, by majority, answered ‘no’ to the question whether the Australian Crime Commission Act 2002 (Cth) empowered the commission to conduct an examination of a person already charged with a Commonwealth offence on the subject matter of the charge because to do so would depart from the accusatorial nature of the process of criminal justice and thus the general law.  The effect would be caused even if the answers were kept secret.  The accused person could no longer approach the trial “according only to the strength of the prosecution’s case as revealed by” the prosecution before trial.[23] The terms of the Act were not sufficiently express to permit the examination.
  2. [38]
    Kiefel J, at [159], said:

“Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her, but also a fundamental principle of the common law.  The fundamental principle – that the onus of proof rests upon the prosecution – is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, as is its companion rule – that an accused person cannot be required to testify to the commission of the offence charged.  The prosecution, in the discharge of its onus, cannot compel the accused to assist it.”

  1. [39]
    As Bathurst CJ noticed in X7 v The Queen 246 A Crim R 402 at [25] (“X7 v The Queen”), Hayne and Bell JJ saw the relevant question not as whether the accused would have a fair trial but whether there would be a trial according to law.  The appellant’s submission is that, although he has had a trial, it was not one conducted according to law.
  2. [40]
    French CJ and Crennan J, in dissent on the answer to the question asked, said that compulsory examination by a member of the executive might produce an unfair trial.  Even a use immunity might not place an accused in the position he or she might have been in if able to rely on the privilege against self-incrimination.  The prosecution might gain an unfair advantage from derivative use of statements made under compulsion.  Absent “independent sourcing of evidence it is not possible to reconcile a fair trial with reliance on evidence against a person at trial which derives from compulsorily obtained material establishing that person’s guilt.”[24]
  3. [41]
    In Lee v The Queen, the focus of the appeals was on the publication by the NSW Crime Commission of transcripts of hearings to the police and the DPP.  There was a demonstrated advantage to the prosecution in having the transcripts.[25]  The legal representatives were aware before the trial the prosecution had the transcripts and the legal representative for one of the appellants later said the publication foreclosed the possibility of that appellant giving evidence at trial.[26]  In joint reasons, the court concluded the purpose of the relevant legislation was to protect the fair trial of the accused and in this case that purpose was not met.[27]  The question reduced not to whether the publication was unlawful but whether, as a result of the publication, there had been a miscarriage of justice.[28]  This question, in turn, was not:

“to be decided by reference to whether there can be shown some “practical unfairness” in the conduct of the appellants’ defence affecting the result of the trial.  This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice.  The appellants’ trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the commission in its possession.”[29]

  1. [42]
    In the result, a new trial was ordered.  The court adverted to the possibility that ‘the trial judge could have ordered a temporary stay while another prosecutor and other DPP staff, not privy to the evidence, were engaged.’[30]
  2. [43]
    In X7 v The Queen (2014) 246 A Crim R 402, Bathurst CJ, with whom the 4 other members of the NSW Court of Criminal Appeal agreed, after surveying the above cases and others, concluded that neither X7 v ACC nor Lee v The Queen compelled:

“the conclusion that the fact of an unauthorised examination, on its own, requires an order that there be a permanent stay of criminal proceedings relating to the matters the subject of the examination.  To grant a stay in such a case would be to grant one without regard to the nature and extent of the unfairness which results. It would also fail to take into account the interests of the community in the prosecution of serious criminal offences.  If in fact the examination was productive of actual unfairness, it seems to me the person affected would be able to establish that fact without suffering further unfairness or injustice.[31]

  1. [44]
    In the circumstances of that case, where the court was not aware of the extent or nature of the questions asked or answers given in the compulsory process, the court could not determine whether a judge would be able to relieve against the unfair consequences of the compulsory process.[32]
  2. [45]
    The present case is not so neat.  There is material demonstrating the way the compelled answers are likely to have informed the investigation thereafter.  And it is not easy to define and isolate “derivative use” material.

The appellant’s material

  1. [46]
    The interviews between investigators and the appellant were long and detailed.  The investigators showed the appellant video of the event and called for explanations of his conduct, including whether he heard certain police communications.  Where he asserted his acts were not unlawful, he was asked for his reasons for so saying. 
  2. [47]
    The appellant refers to the lengthy statement of Senior Sergeant Hayden.  He was the officer in charge of the Operational Skills Section.  It is clear, as the appellant submits, that Hayden’s statement demonstrates reference to the compulsorily conducted interviews.  It is equally clear that Hayden’s report concerned the firing of weapons, which was not relevant to the appellant’s trial.  It was, of course, relevant to Wellington’s indictment.
  3. [48]
    Senior Sergeant McGrath was the northern Gold Coast District Duty Officer.  His statement dated 23 June 2015 included an account of his involvement in attempting to stop the vehicle of interest.  He authorised the use of stingers and a road block.  At 9.21 pm he advised crews not to pursue the vehicle.  Then he approved two vehicles following the vehicle, with a view to the suspects fleeing on foot.  In a second statement dated 17 December 2015, he added the following: at 9.28pm he made a call to all crew, other than two primary units, to pull back; at 9.33pm he advised all crews to abandon all action relating to intercepting or stopping the vehicle.
  4. [49]
    Constable Angus gave a second statement on 9 December 2015.  Her additional statement included the line: “I could not see what the police officer’s [sic] vehicles in front were doing. I do not know how the stolen vehicle ended up on the grass verge.”  The appellant suggests that this part of her statement was the result of further questioning by the investigators after the appellant had given his compelled answers.  Angus’ second statement also addressed the police radio activity at the time, the officer stating she did not hear certain radio directions.
  5. [50]
    Similarly, Constable Forrest, in a second statement dated 15 December 2015, stated she did not hear a police radio call to terminate the pursuit.  This was not in her first statement.  Neither was her observation of seeing lights on other police vehicles.
  6. [51]
    Algie gave a second statement on 31 January 2016.  It contained more detailed observations of the vehicle the appellant was driving.
  7. [52]
    The additions by McGrath, Angus, Forrest and Algie might have been prompted by the appellant’s compelled answers but are all matters one might expect to be elicited by an advocate conferring with witnesses before a trial. 
  8. [53]
    The appellant’s material includes a lengthy and detailed QPS Investigation Report and a document called ‘Interview Matrix’.  These include an analysis of the appellant’s answers as part of the whole evidence and an examination of possible defences.
  9. [54]
    Finally, Ms Smith asserts that the respondent was the officer who attended the scene, had carriage of the disciplinary and criminal investigations, conducted the compulsory interviews, obtained or organised the witness statements, and issued the Notice to Appear.

Consideration

  1. [55]
    The compulsory examination of a person charged with an offence about the charge “is very likely to prejudice him in his defence”[33]and may amount to “an improper interference with the due administration of justice”.[34]
  2. [56]
    Once it is understood that the compulsory questioning was lawful, the question must become whether the use of the answers to the questions has irredeemably undermined the criminal justice process.
  3. [57]
    The appellant’s conduct might have been a serious breach of proper policing which appalled and affronted his superiors.  But the wholesale appropriation of the disciplinary process to conduct the criminal investigation is designed to abuse the process of justice.  As senior counsel for the appellant submitted at the hearing, the police commissioner having the power both to investigate disciplinary offences and charge employees with criminal offences, great care must be taken to avoid cross-contamination between the two processes.  It falls to the commissioner to have in place a process which avoids the risk.
  4. [58]
    Had an application to stay the proceeding been made it might well have been granted.  Alternatively, a temporary stay might have been granted subject to the prosecution presenting a case untainted by the breach I have just described, although the appellant submits that in this case ‘the egg cannot be unscrambled’. 
  5. [59]
    There was no application.  The trial proceeded.  Senior Counsel for the appellant submitted at the hearing of the appeal that there was no identifiable forensic purpose in not seeking the stay.  But it would not have been unreasonable for the appellant’s trial counsel to have considered a stay application unlikely to succeed, or to result in a trial just like that which occurred.  Expecting the evidence that was ultimately presented at trial, it would have been reasonable for trial counsel to consider that the evidence beyond the objective video evidence was the kind of evidence the prosecution would have obtained and presented without the compelled interviews.  In any case, the focus of inquiry is whether what occurred at trial was a miscarriage of justice.[35]
  6. [60]
    It was not a complex trial.  The charges called for a judgment as to whether the appellant operated the vehicle dangerously in all of the circumstances.  Video of the driving, from several angles, was in evidence.  This was supplemented by police officers who were also engaged in the pursuit at various stages speaking of what they saw and heard, e.g., whether they did or did not hear police radio directions.   Much of this was peripheral, if not irrelevant.  Unsurprisingly, the learned magistrate’s reasons referred primarily to the video evidence.  His Honour referred also to the opinion evidence as to sanctioned degrees of force but, as I have already noted, was careful to comment that whether the manoeuvre was unorthodox or outside police training did not determine the question of dangerousness.
  7. [61]
    Although the process conducted by the respondent carried the grave risk of corrupting the accusatorial criminal justice process, there having been a trial, the question is whether the process led to an unfair trial.  It would be so if the risks articulated in X7 v ACC and Lee v The Queen eventuated, or perhaps even if, because of a corrupt process, it is unclear whether the risks have eventuated.  Indeed, it might be said in either case that there was not a trial according to law.  On the materials before the court the appellant has not demonstrated the prosecution obtained an unfair advantage in the trial, such as by tendering “derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the compulsorily obtained evidence”.[36] 
  8. [62]
    I am not satisfied the convictions, reached after this trial where no application for a stay was made and no objection was made to evidence on the basis of inadmissibility nor any application made for the discretionary exclusion of evidence improperly or unlawfully obtained, should be quashed on the ground that the trial was an abuse of the court’s process because the investigating officer so acted that the criminal justice process was undermined and the result cannot be allowed to stand.  The appellant has not demonstrated there has been a miscarriage of justice.
  9. [63]
    To so conclude is not to ignore authoritative statements that the accusatorial system of criminal justice includes pre-trial inquiries and investigations, but it is to allow that the appellant had a fair trial according to law despite what went on in the investigative phase.

Orders:

  1. [64]
    Leave to adduce new evidence refused.
  2. [65]
    Appeal dismissed.
  3. [66]
    Any submissions on costs to be exchanged and filed by 4.30 pm 9 April 2020.

Footnotes

[1] Justices Act 1886, s 223.

[2]  At [8] per Morrison JA with whom Muir JA and Atkinson J agreed.

[3]  Ibid. 

[4] Justices Act 1886, subs. 223(2).

[5] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 4.20 – 4.25.

[6] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 4.29 – 4.30.

[7] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 4.42 – 5.3.

[8] Transcript, Magistrates Court, Southport, 10 July 2017 at 1-92.

[9] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 5.13.

[10] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 7.10 – 7.13.

[11] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 2.23.

[12] Reasons for decision, Magistrates Court, Southport, 11 July 2017 at 6.13 – 6.16.

[13] Transcript, Magistrates Court, Southport, 11 July 2017 at 2-57.20.

[14] R v Wellington [2018] QDCPR 24.

[15] Appellant’s supplementary outline at [7].

[16] As Mullins J pointed out in Nugent v Commissioner of Police (Qld) at [129], the direction itself cannot be used to construe the legislative scheme.

[17] Nugent v Commissioner of Police (Qld) per McMurdo P at [21] and Morrison JA at [80].  McMurdo P at [24] and Morrison JA at [90] noted it was common ground that the compelled answers would be inadmissible in criminal proceedings as the product of inducement or threat.

[18] Brennan J in Police Service Board v Morris (1985) 156 CLR 397 at 411, referred to by Morrison JA at [97].

[19] Nugent v Commissioner of Police (Qld) per Morrison JA at [75].

[20] R v CB; MP v R [2011] NSWCCA 264 at [128]; and see R v Sellar; R v McCarthy [2013] NSWCCA 42 per Bathurst CJ at [106] and McLellan at [120].

[21] Appellant’s supplementary outline of submissions at [27].

[22] At [39].

[23] At [124].

[24] X7 v ACC at [54].

[25] At [10].

[26] At [12].

[27] At [34].

[28] At [39].

[29] At [42].

[30] At [44].

[31] At [109] – [110].

[32] Beazley P at [115].

[33] Hammond v The Commonwealth (1982) 152 CLR 188 per Gibbs CJ at 198.

[34] Hammond v The Commonwealth per Deane J at 206.

[35] Nudd v The Queen [2006] HCA 9.

[36] As formulated by French CJ and Crennan J in X7 v ACC at 53.

Close

Editorial Notes

  • Published Case Name:

    Christopher James Hurley v Detective Sergeant Suzanne Maree Newton

  • Shortened Case Name:

    Hurley v Newton

  • MNC:

    [2020] QDC 49

  • Court:

    QDC

  • Judge(s):

    Devereaux SC DCJ

  • Date:

    06 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.