GJT v Director of Public Prosecutions
[2023] QCA 142
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- GJT v Director of Public Prosecutions[2023] QCA 142
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GJT v Director of Public Prosecutions[2023] QCA 142
Reported at (2023) 15 QR 357
GJT v Director of Public Prosecutions[2023] QCA 142
Reported at (2023) 15 QR 357
SUPREME COURT OF QUEENSLAND
CITATION: | GJT v Director of Public Prosecutions [2023] QCA 142 |
PARTIES: | GJT (appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (first respondent) COMMISSIONER OF QUEENSLAND POLICE (second respondent/not a party to the appeal) |
FILE NO/S: | Appeal No 15855 of 2022 SC No 14874 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QSC 253 (Davis J) |
DELIVERED ON: | 18 July 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 May 2023 |
JUDGES: | Mullins P, Bond and Flanagan JJA |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS – where appellant gave the police two statements of evidence relevant to the police investigation of a third party who was charged with murder – where statement was attached to an undertaking of the appellant given pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) (the Act) to cooperate with law enforcement agencies in any proceedings against the third party – where the prosecution proposed to provide the appellant’s statements to the lawyers for the third party and his co-accused in fulfillment of the prosecution’s disclosure obligations – where no occasion for sentencing the appellant pursuant to s 13A of the Act had yet arisen – whether s 13A of the Act modified the prosecution’s disclosure obligations under s 590AB and s 590AH of the Criminal Code (Qld) Criminal Code (Qld), s 590AB, s 590AH Penalties and Sentences Act 1992 (Qld), s 13A, s 13B, s 188 |
COUNSEL: | G J Radcliff for the appellant B M White for the first respondent |
SOLICITORS: | Senior Legal Pty Ltd for the appellant Director of Public Prosecutions (Queensland) for the first respondent |
- [1]THE COURT: Whilst a prisoner on remand, the appellant made two written statements in connection with a police investigation of another prisoner (referred to by the learned primary judge and in these reasons by the pseudonym of “Smith”) who was being held on remand on a charge of murder. Each written statement was attached to an undertaking given by the appellant pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) (the Act) to cooperate with the law enforcement agencies in any proceedings against Smith and in which the appellant acknowledged the truth of the attached statement and that the cooperation extended to attending in court and giving evidence wherever and whenever required by a prosecuting authority in proceedings in which any information set out in the statement was relevant. The appellant contests the charge against him, so that no occasion has yet arisen for his sentencing pursuant to s 13A of the Act.
- [2]The appellant’s solicitor was notified by a legal officer in the Office of the Director of Public Prosecutions (DPP) of the DPP’s intention to disclose the appellant’s statements to Smith’s lawyers and to the lawyers for Smith’s co-accused in connection with the committal hearing relating to Smith and his co-accused. The appellant objected to this course and applied for declaratory and injunctive relief on the basis that the contents of the statements and any source documents and recordings remained the sole property of the appellant, except for the use of the statements pursuant to s 13A of the Act in relation to the appellant. The primary judge dismissed the application: GJT v Director of Public Prosecutions & Anor [2022] QSC 253 (the reasons).
- [3]The grounds of appeal are:
- the primary judge erred in failing to find that the statements were not given to the respondent’s confidentially and/or conditionally;
- the primary judge erred in finding that the respondents were entitled to disclose the statements to other persons pursuant to s 590AB and s 590AH of the Criminal Code (Qld) where the statements had been given by the appellant with the intention of obtaining a benefit under s 13A of the Act;
- the primary judge failed to find that the statements:
- (i)were confidential documents which had come into the hands of the respondents for a specific purpose;
- (ii)were in the possession of the respondents solely for the purposes for which they had been provided; and
- (iii)dissemination of the documents as contemplated by the respondent would amount to a breach of confidence;
- (i)
- the primary judge erred in failing to enjoin the respondents from use of the statements beyond the purpose of s 13A of the Act.
- [4]By consent of the parties, the second respondent was excused from participation in the appeal. The first respondent will therefore in these reasons be referred to as the respondent.
The statements
- [5]Each of the statements commences with the same seven paragraphs:
- “1.I give this statement pursuant to an undertaking given under s.l3A of the Penalties and Sentences Act 1992.
- 2.This statement is a proof of the evidence which I would be prepared to give in court in relation to this matter.
- 3.I understand that this statement will be presented to the Judge who sentences me in relation to the charges that I am facing. I have given an undertaking that I will give evidence consistently with the content of this statement.
- 4.I have agreed to give this evidence on the understanding that I will receive a lesser sentence for the offence for which I am being sentenced than I would without the benefit of that undertaking.
- 5.I am aware that, should the evidence that I give differ materially from that contained in my statement or if I do not give evidence at all, I am liable to have the sentence I receive in consideration of my undertaking to give this evidence, re-opened.
- 6.Should that be the case, then I am liable to have imposed upon me, a sentence which does not afford me the benefit of the cooperation I have undertaken to give law enforcement authorities.
- 7.I understand that this statement has three purposes. 1. To provide a summary of the evidence that I am prepared to give in relation to these proceedings against others who were involved. 2. To give the Judge who sentences me the ability to assess the extent and degree of the cooperation I have given to law enforcement agencies. 3. To provide a basis for assessing whether my evidence conforms to my undertaking to cooperate.”
- [6]The affidavit that was filed in support of the appellant’s application was sworn by his solicitor. The solicitor set out his instructions from the appellant that he was in fear of his life if his name, identity and the contents of the statements were published to persons other than for the purpose of the appellant’s being sentenced pursuant to s 13A of the Act. There is no evidence from the appellant which seeks either to dispute or to qualify the content of paragraphs 1 to 7 of each statement or the express terms of the undertakings. The application before the primary judge proceeded (at [7] of the reasons) on the basis that these statements were made voluntarily by the appellant and were otherwise not made in circumstances which adversely affected their reliability. Mr Radcliff of counsel for the appellant conceded at the hearing of the appeal that the appellant understood the documents (both the undertakings and the statements) which he signed.
The reasons
- [7]The appellant argued before the primary judge that he expected that the statements would be used beneficially for him in connection with his sentencing pursuant to s 13A of the Act and that they would not be disclosed except for the s 13A process. The respondent argued that the statements formed part of the prosecution brief of evidence against Smith (as the prosecution proposed to call the appellant as a witness against Smith) and are subject to mandatory disclosure pursuant to s 590AB(2)(a) of the Code in the proceedings against Smith and his co-accused in the Magistrates Court, s 590AH directs that the prosecution discloses the statements of a witness in the possession of the prosecution, and the prohibitions in s 590AO and s 590AQ are not engaged.
- [8]Amongst the relevant statutory provisions noted by the primary judge (at [15] of the reasons) was s 188(2) of the Act that provides for a court to reopen a criminal proceeding where a sentence was imposed where the court reduced a sentence because the offender had undertaken in a written declaration to cooperate with law enforcement agencies in a proceeding about an offence and the offender, without reasonable excuse, did not cooperate under the undertaking.
- [9]The primary judge noted (at [19] of the reasons) that the appellant’s arguments raised questions as to the proper construction of provisions of the Code and the Act. The primary judge stated (at [27]) that it was clear from s 13A(1), (3) and (4) and s 188 of the Act that s 13A “presupposes that an offender who has provided a statement will give evidence at the trial of an accused”. By way of contrast, the primary judge noted (at [28]) that s 13B of the Act operates differently to s 13A, as it is not contemplated that the person taking advantage of s 13B will give evidence in an accused’s trial, as the cooperation by the person is in the past. After observing (at [29]) that s 13A(8) and (9) of the Act grant discretionary powers, the primary judge stated:
“The sentencing court may, or may not, take steps to preserve the anonymity of the proposed witness. Those powers are discretionary because, depending on whether the sentencing of the witness occurs before or after the trial of the accused about whom the s 13A statement is made, it may not be necessary to maintain the anonymity of the witness. There is nothing in the Penalties and Sentences Act to suggest that a witness who has given a statement pursuant to s 13A may not be sentenced after the trial of the accused.”
- [10]After having referred to the obligation of the prosecution at common law to disclose all relevant evidence to an accused (at [23] of the reasons), the purpose of s 590AB and s 590AH of the Code (at [22]-[23]) and the legislative history of s 13A and s 13B of the Act (at [24]-[28]), the primary judge stated (at [33]) that there was nothing in any of the relevant statutory provisions which restricted the use by the prosecution of the appellant’s statements or allowed their disclosure to the defence to be delayed. The primary judge also found (at [34]) that the alleged duty of confidentiality asserted by the appellant was not supported factually by virtue of paragraphs 2, 4 and 7 of each of the appellant’s statements. The primary judge concluded (at [35]-[36]):
“While the statements have been given with the intention to obtain the benefit under s 13A, it is obvious that the statements have been given in contemplation of the applicant giving evidence. Consistently with that purpose, the Crown should disclose the statements to the defence.
Further still, ss 590AB and 590AH(2)(e) place a legal obligation upon the prosecution to disclose the statements. The relief sought by the applicant, if given, would place the prosecution in breach of those statutory obligations. The relief therefore cannot be given in the absence of some statutory exception to the obligations of disclosure of which there are none.”
The real issue on the appeal
- [11]The appellant’s written submissions suggested that the appeal requires resolution of “the tension between two opposing legal rights” which are identified as the implied obligation of confidence which arises from information provided for the purpose of obtaining the benefit under s 13A of the Act and the public interest in the administration of criminal justice embodied in s 590AB and s 590AH of the Code. The appellant does not challenge that each statement was provided by him to the police in connection with their investigation of Smith, each statement sets out the evidence which the appellant would be prepared to give in court in relation to the statements made to him in prison by Smith that are relevant to the offence with which Smith is charged and that he had acknowledged that he will receive a lesser sentence for the offence for which he may be sentenced than he would without the benefit of the undertaking that he has given in connection with each statement. The appellant focuses on the aspect that each statement was provided for the purpose of his obtaining the benefit of s 13A of the Act but not the reason why the statements would attract the benefit of s 13A.
- [12]On the unchallenged basis on which the statements recite they were given by the appellant and on the terms of the undertakings given by the appellant, the assertion of confidentiality in the content of the statements for the appellant’s benefit pursuant to s 13A of the Act is misconceived. To the extent the first and third grounds of appeal are based on the confidentiality of the statements, there is no error in the primary judge’s rejection of confidentiality of the statements by reference to the content of the statements themselves and the associated undertakings and these grounds must fail. Ground 4 has no independent operation, as it is directed to the exercise of the discretion to grant an injunction and is therefore dependent on the success of the applicant in establishing one of the other grounds.
- [13]The only real issue on the appeal is the second ground of appeal which is whether, as a matter of construction of s 13A of the Act and s 590AB and s 590AH of the Code, the respondent is obliged to disclose the statements to the lawyers for Smith and any other co-accused in respect of whose trials the appellant is proposed to be called as a witness pursuant to the undertakings given by him to the respondents before any sentencing takes place of the appellant pursuant to s 13A of the Act. The express terms of s 590AB and s 590AH are clear as to the nature and breadth of the prosecution’s obligation of disclosure in a criminal proceeding. The second ground of appeal therefore depends on showing that the prosecution’s disclosure obligation of a statement of proposed witness for the prosecution is modified where s 13A of the Act applies to the sentencing of the proposed witness.
The relevant legislation
- [14]For the purpose of dealing with the submissions on the appeal, it is only necessary to refer to s 13A of the Act and s 590AB and s 590AH of the Code.
- [15]Section 13A of the Act provides:
- “13ACooperation with law enforcement authorities to be taken into account—undertaking to cooperate
- (1)This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.
- (2)Before the sentencing proceeding starts, a party to the proceeding—
- (a)must advise the relevant officer—
- (i)that the offender has undertaken to cooperate with law enforcement agencies; and
- (ii)that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and
- (b)may give to the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii).
- (3)After the offender is invited to address the court—
- (a)the offender’s written undertaking to cooperate with law enforcement agencies must be handed up to the court; and
- (b)any party may hand up to the court written submissions relevant to the reduction of sentence.
- (4)The undertaking must be in an unsealed envelope addressed to the sentencing judge or magistrate.
- (5)If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.
- (6)The penalty imposed on the offender must be stated in open court.
- (7)After the imposition of the penalty, the sentencing judge or magistrate must—
- (a)close the court; and
- (b)state in closed court—
- (i)that the sentence is being reduced under this section; and
- (ii)the sentence it would otherwise have imposed; and
- (c)cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2)—
- (i)the written undertaking;
- (ii)a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b).
- (8)The sentencing judge or magistrate may make an order prohibiting publication of all or part of the proceeding or the name and address of any witness on his or her own initiative or on application.
- (9)In deciding whether to make an order under subsection (8), the judge or magistrate may have regard to—
- (a)the safety of any person; and
- (b)the extent to which the detection of offences of a similar nature may be affected; and
- (c)the need to guarantee the confidentiality of information given by an informer.
- (10)A person who contravenes an order made under subsection (8) commits an offence.
Maximum penalty—
- (a)for an order made by a judge—5 years imprisonment; or
- (b)for an order made by a magistrate—3 years imprisonment.
- (11)In this section—
relevant officer means—
- (a)for a proceeding before the Supreme or District Court—the sentencing judge’s associate; or
- (b)for a proceeding before a Magistrates Court—the relevant clerk of the court.”
- [16]Section 590AB and s 590AH relevantly provide:
“590ABDisclosure obligation
- (1)This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth.
- (2)Without limiting the scope of the obligation, in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of—
- (a)all evidence the prosecution proposes to rely on in the proceeding; and
- (b)all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.
…
590AHDisclosure that must always be made
- (1)This section applies—
- (a)without limiting the prosecution’s obligation mentioned in section 590AB(1); and
- (b)subject to section 590AC(1)(a) and chapter subdivision D.
- (2)For a relevant proceeding, the prosecution must give the accused person each of the following—
- (a)…
- (e)for each proposed witness for the prosecution other than a proposed witness mentioned in paragraph (d)—
- (i)a copy of any statement of the witness in the possession of the prosecution; or
Example—
a statement made by a proposed witness for the prosecution in an audio recording of an interview
- (ii)if there is no statement of the witness in the possession of the prosecution—a written notice naming the witness; …”
Does s 13A preclude disclosure of witness statements until they are used for sentencing under s 13A?
- [17]The appellant submits that, as a matter of construction of s 13A of the Act, any statements provided by a person for the purpose of obtaining a benefit on sentence under s 13A cannot be used by the prosecution as evidence in any proceeding until the person who provided the statements has been sentenced pursuant to s 13A of the Act and the primary judge was in error by rejecting that construction.
- [18]The appellant argues that the statements were given by him to the police conditionally and that, unless he is sentenced under, and obtains the benefit of, s 13A of the Act, and the sentencing judge determines the appellant’s statements can be used by the respondent in the proceedings against Smith and his co-accused, the respondent is precluded from using the statements as evidence in the matter of Smith and his co-accused. The appellant argues that the statements do not fall within s 590AB(2)(a) of the Code as evidence the prosecution proposes to rely on in the proceeding against Smith and his co-accused until the condition that the appellant has been sentenced under s 13A of the Act has been satisfied. In support of that argument that the respondent has conditional possession of the statements, the appellant relies on the terms of s 13A(8) and (9) of the Act and submits that it is for the sentencing judge to decide at the conclusion of the sentencing what is to be done with the statements.
- [19]It is a critical aspect of the appellant’s argument that the respondent has possession of his statements in the first place for the purpose of the sentencing of the appellant (and that purpose must come to fruition before the statements can be used for any other purpose). The inference to be drawn from the undertakings and the statements themselves is that the statements were prepared by the police in connection with the investigation of Smith (and his co-accused) in respect of the subject murder and the statements reflect the evidence that the applicant can give in relation to that charge against Smith which may also affect the prosecution case against the co-accused. The inference is also open from the email correspondence between the respondent and the appellant’s solicitor that, as a matter of fact, the respondent was in possession of the statements in connection with its file for the proceeding for murder against Smith and the co-accused.
- [20]It is apparent from the terms of s 13A of the Act that it is concerned with the procedure on the sentencing of an offender who has otherwise undertaken to cooperate with law enforcement agencies in a proceeding about an offence to facilitate the conferral of the benefit to the offender being sentenced for that future cooperation and to provide for the quantification of that benefit and the ancillary orders that may be required in connection with the sentencing because of that anticipated cooperation. An integral part of the sentencing under s 13A is that, under s 13A(4), the sentencing judge is provided with the offender’s written undertaking to cooperate with law enforcement agencies. As the form of the undertaking refers to the statement given by the offender which is attached to the undertaking, the sentencing judge is usually provided with that statement of evidence that enables the sentencing judge to form a view of the extent of the future cooperation for the purpose of assessing the reduction in the sentence that is appropriate due to that anticipated cooperation.
- [21]Section 13A(7) of the Act requires the sentencing judge after the sentence has been imposed in open court to close the court and inform the offender that the sentence was reduced under s 13A of the Act and advise of the sentence that would otherwise have been imposed but for that undertaking to cooperate. In accordance with s 13A(7)(c), an order must then be made by the sentencing judge for the undertaking (including the attachments) and the record of evidence or submissions made on the sentencing relevant to the reduction of the sentence and the sentencing remarks made in closed court pursuant to s 13A(7)(b) to be sealed and placed on the court file with an order that the envelope may be opened only by the order of the Court, including on an application to reopen the sentencing proceedings under s 188(2) of the Act. The undertaking and the copy of the statement that was attached to the undertaking is therefore among the documents sealed in the envelope pursuant to the order made under s 13A(7). The order provided for under s 13A(7) does not regulate or in any way affect the use made by the respondent of the statement of evidence which the offender has undertaken to give in evidence in the proceeding against the person to whom the statement relates. Section 13A(7) is concerned with preserving the evidence that was relevant on the sentencing of the offender who has undertaken to cooperate with law enforcement agencies, so there is a record of the undertaking to cooperate and the benefit that was given to the offender to reflect the recognition placed by the sentencing judge on the value of that undertaking to cooperate.
- [22]Section 13A(8) of the Act is concerned with any orders that the sentencing judge in the exercise of his or her discretion may make in relation to prohibiting publication of all or part of the sentencing proceeding that was in open court. Section 13A(9) lists factors that are relevant to the exercise of the discretion under s 13A(8). One of those factors is the need to guarantee the confidentiality of information given by an informer. That factor may be relevant in certain circumstances where the informer’s identity remains confidential at the stage at which the sentencing takes place but it does not on its own terms displace or modify the disclosure obligations imposed on the respondent under s 590AB and s 590AH of the Code of a statement of evidence by a witness who has provided the statement for purposes which include the giving of evidence in the proceeding against the person in respect of whom the statement is part of the prosecution case.
- [23]In conclusion, s 13A of the Act is a provision that regulates the procedure for sentencing an offender who has undertaken to cooperate with law enforcement agencies and does not modify the disclosure obligations on the prosecution under s 590AB and s 590AH of the Code.
- [24]The possibility of a sentence proceeding under s 13A of the Act in respect of the appellant arises only because the appellant gave the statements of evidence and associated undertakings to the police. Irrespective of the undertakings, the appellant became a proposed witness in the proceeding against Smith and his co-accused because he provided statements of evidence relevant to that proceeding to the police. That makes him a compellable witness in that proceeding. The appellant fails in establishing the critical aspect of his argument that the respondent has possession of the appellant’s statements in the first place for the purpose of sentencing the appellant under s 13A of the Act.
- [25]Mr Radcliff of counsel on behalf of the appellant did concede during the hearing of the appeal that the appellant was a compellable witness in the proceeding against Smith and the co-accused. Subsequent to the hearing of the appeal, Mr Radcliff resiled from this concession and submitted that the proposition that the appellant was a compellable witness was conditional on whether the respondent was entitled to possession of the statements for all purposes. As the above analysis shows, the condition that the appellant seeks to impose on the possession of the statement by the respondent is inconsistent with the proper construction of s 590AB(2)(a) and s 590AH(2)(e) of the Code and s 13A of the Act and the application of those provisions to the circumstances in which the appellant has provided the statements of evidence and his associated undertakings to the police. The appellant became a compellable witness in the proceeding against Smith and the co-accused from the time he provided the statements of evidence to the police.
- [26]The appellant has failed to show that s 13A of the Act modifies the disclosure obligation under s 590AB and s 590AH of the Code. The second ground of appeal fails.
Order
- [27]The order which should be made to dispose of the appeal is: Appeal dismissed.
- [28]The primary judge ordered that the application, all material filed in the application, all written outlines of argument and the transcript of the proceedings be sealed in an envelope marked “Not to be opened except by order of the Court” and placed on the file and the envelope is not to be opened except by order of the Court. That order remains operative. Like orders should be made in relation to the appeal file in this Court. An additional order should therefore be made: The outlines of submissions and appeal books for this appeal must be sealed in an envelope marked “Not to be opened except by order of the Court” and placed on the file and the envelope is not to be opened except by order of the Court.