The Queen v Simpson[2007] QDC 174

DISTRICT COURT OF QUEENSLAND

The Application

1. [1]
   The accused (“the applicant”) applied for trial directions pursuant to s 590AA(2)(ba) of the Criminal Code (Qld) and for an order pursuant to s 13A(7) of the Penalties and Sentences Act 1992.

2. [2]
   During the hearing a number of the trial directions that were sought by the applicant were agreed by the applicant and the Director of Public Prosecutions (for “the respondent”) and they are the subject of separate Orders to be made by me.

3. [3]
   There remained three matters reserved for determination by me:

1. (a)
   Item 1.6: a direction that copies of QP9 police briefs and/or police CRISP Reports relating to any matters that one Stephen Alan Simpson has been charged with since 24 May 2003 (“the QP9/CRISP Reports”);

2. (b)
   Item 2: a direction that a written statement be prepared (and supplied) by the respondent in respect of the proposed prosecution witness, one Paul Millsom (“a Millsom statement”); and

3. (c)
   Item 3: an order that the sealed envelope placed on District Court criminal file (Indictment No. CNS85/2004) in respect of one Stephen Alan Simpson by Judge Shanahan on 9 August 2004 in the District Court at Brisbane be opened and its contents be made available for inspection by the lawyers for the applicant for the purpose of her trial (“Section 13A sealed material”).

The Charge Against the Applicant

4. [4]
   The applicant is charged with entering premises and committing an indictable offence (stealing property from the premises). She is charged as an aider/procurer.

5. [5]
   The premises were a guesthouse and the property, including money, was in a safe. The allegation is that she, as an employee of the guesthouse proprietors, supplied keys and information to her son (Stephen Alan Simpson) who committed the offence on 24 May 2003. The value of the stolen property was between $70,000 and $100,000. Paul Millsom subsequently received some of the proceeds.

6. [6]
   The applicant is implicated in the offence by her son, Stephen Alan Simpson, in a record-of-interview that he gave to police. He is said to have an extensive criminal history, mainly drug offences.

7. [7]
   It is clear that the credit of both Stephen Alan Simpson and Paul Millsom will be a major issue at the trial of the applicant.

The QP9/CRISP Reports

8. [8]
   The applicant’s counsel clarified the extent of the directions sought at the hearing (T14). He submitted that the applicant should have those documents in respect of the matters that are in Stephen Alan Simpson’s criminal history record, since 24 May 2003 (including the subject offence) and those relating to any further offences with which he may have been charged but that have not yet been determined.

9. [9]
   Mr Honchin relied on the disclosure obligation provisions in the Criminal Code (Section 590AB). For example, Section 590AJ(2)(c) provides for disclosure by the prosecution of “a copy or notice of anything in the possession of the prosecution that may be reasonably be considered to be adverse to the reliability or credibility of a proposed witness for the prosecution.”

10. [10]
    The respondent submitted that provision of the criminal history record was sufficient disclosure and that any other related document or information about mere charges was not intended, in effect, to be caught by this section.

11. [11]
    In R v Spizzeri [2001] 2 QdR 686, an accused’s access to and use on trial of material contained in subpoenaed documents, which were in the possession of the Court, was considered and the relevant authorities reviewed.  Suffice to say that the scope of disclosure by the prosecution in criminal matters is now, compared to several years ago, quite extensive.  (See the remarks of the Chief Justice at paragraph 12).

12. [12]
    The Chief Justice, (at paragraph 14), remarked:

“Consistently with this more open approach, it would be oddly regressive if, in the contemporary criminal court, a trial Judge were to deny the defence access to material which may well help erode or destroy an important Crown witness’s credit; or to say (although this was not said here) ‘you have enough already: I will not let you equip yourselves to take any further step along this route’ ”;

and (at paragraph 7) referred to whether admissibility of the potential evidence was a pre-requisite to access to the content of documents, in the following terms:

“… it did not matter that the contents of the files raising those things may not have been, in form, themselves admissible as evidence.  It would have been sufficient had they armed the defence with information it might fairly have pursued with the complainant towards that potentially significant forensic goal, the erosion of his credit.”

13. [13]
    Pincus JA stated what he referred to as “The Rule”, in the following terms, (at paragraph 24):

“It appears to me to emerge from the authorities that inspection of subpoenaed documents by the defence should be permitted, where that is required for some legitimate forensic purpose, which purpose must be sufficiently disclosed.  The purpose may be or include the obtaining of information, in particular for use in cross-examination as to credit.  Further, courts should be careful not to deprive the defence of documents which could be of assistance to the accused.”

14. [14]
    His Honour also referred to the proper approach to this issue, in the following terms (at paragraph 33):

“Use of documents or information contained in them in an attempt to discredit the principal Crown witness is a legitimate forensic purpose”;

and further (at paragraph 34):

“In my opinion the proper practice would have been first to determine whether there was a legitimate forensic purpose in requiring inspection and then, if there was such a purpose, to let them be inspected by counsel.”

15. [15]
    It seems to me that the QP9/CRISP Report for the subject offence is or are clearly documents that the applicant is entitled to have access to for inspection and copying, if necessary. From my forensic experience, these documents generally contain information relevant to the commission of the offence or a description of how it has been committed and also contains information as to the course and extent of the police investigation. Such documents generally contain information which can potentially have a legitimate forensic relevance and it seems to me that it or they, in the circumstance of this case, should be disclosed.

16. [16]
    Similarly, these documents in respect of any subsequent matters in the criminal history record are in the same category and should also be disclosed.

17. [17]
    In my view, “The Rule” as stated in Spizzeri, together with the observations made about the scope of disclosure, support disclosure of those documents in this case.

18. [18]
    In the course of the hearing, however, I inquired of Mr Honchin whether his solicitor had asked the respondent if Stephen Alan Simpson had been charged with other matters since 24 May 2003. It seems that he had not made such inquiry and the applicant did not know if Simpson had in fact been charged at all. The respondent did not know this either (T20-21).

19. [19]
    It is not open to me to order disclosure of documents, if that was considered to be appropriate, that may not exist and I will not do so (see my observation during submissions at T20).

20. [20]
    The same class of document in respect of matters charged but not dealt with, if there are in fact any such charges or documents, may fall into the same category, albeit there may be issues of admissibility about those. However, the latter is not a relevant consideration for me on this application. The prosecution should make the inquiry that I have referred to and provide the documents to the applicant if there have been subsequent charges.

21. [21]
    Whilst this class of document may be a marginal source of information, it seems to me that there could be, as Mr Honchin put it (at T19), “some relationships identified which provide for further lines of inquiry or cross-examination, not only of this witness but others potentially.”

22. [22]
    The same class of document in respect of Paul Millsom, arising out of the 24 May 2003 incident and his subsequent involvement, should also be disclosed for the same reasons.

23. [23]
    I should add this observation. This class of document is customarily requested and tendered on committal proceedings, in my experience. It is used, often effectively, in cross-examination in such proceedings. I cannot understand why the prosecution, if it is the case, should be reluctant to produce it on trial. In my view, there should be no issue about this in most trials.

24. [24]
    This part of the application is granted (subject to formal orders) to the extent and in the terms expressed above.

A Millsom Statement

25. [25]
    Paul Millsom is to be a prosecution witness. His credit will be in issue. Whilst I do not know what the scope of his proposed evidence will be, he participated in a record-of-interview with police and has, as I understand, been dealt with by the court for his involvement in this matter.

26. [26]
    The applicant has a copy of the transcript of the interview. She now, as a consequence of the other Orders agreed at the hearing, is also entitled to a copy of the video/audio tape of the interview.

27. [27]
    The respondent does not have a statement from Millsom. It intends to rely on the record-of-interview as his proof of evidence on trial. Millsom has been conferenced and no necessity has apparently arisen that requires the content of the interview to be supplemented by a statement.

28. [28]
    Ms Farnden for the respondent opposed the application. She expressed what I consider to be a proper understanding of the prosecution’s duty if anything relevant arose out of a further pre-trial conference: that is, an addendum statement would be taken at that time and, inferentially, a copy provided to the applicant (T37).

29. [29]
    It seems to me that this is not an unusual or inappropriate practice. The applicant will not be disadvantaged in any way by the prosecution’s adherence to it.

30. [30]
    There will be a Basha inquiry conducted at the trial in respect of the witness Millsom (R v Basha [1989] 39 A Crim R 337), subject to the trial Judge’s exercise of discretion of course.  At least the parties apparently are in agreement about this procedure.  Hence the applicant will have an opportunity to test Millsom’s evidence on oath or affirmation, in the absence of the jury.

31. [31]
    In my view the prosecution is, in the circumstances of this case, not required to obtain a statement of evidence from Millsom. It is not possible or indeed desirable, however, to state this in terms of a general rule that might apply in other cases and I do not do so.

32. [32]
    This part of the application is therefore refused.

Section 13A Sealed Material

33. [33]
    Stephen Alan Simpson was sentenced pursuant to Section 13A of the Penalties and Sentences Act 1992.  The relevant “in camera” material and the statement by the sentencing Judge of the sentence which would otherwise have been imposed on Simpson are contained in a sealed envelope in accordance with the requirements of the section and Practice Direction number 5 of 1999.

34. [34]
    The applicant submitted that this information is relevant to the credit of Simpson on the trial of the applicant. The respondent submitted that nothing further would be gained by opening the sealed material than is already contained in the brief of evidence (in the applicant’s case).

35. [35]
    This issue has recently been the subject of consideration by the Court of Appeal in R v Evan & Others [2006] QCA 527.  The judgment, delivered on 8 December 2006, has not been published, as I understand, out of concern to ensure that there is no prejudice created in respect of any retrials of the three accused in that case.

36. [36]
    The judgment considered a broad range of the evidence in that trial quite extensively. Perhaps that is the reason for the current non-publication of the appeal judgment. However, the s 13A issue can, in my view, be discussed here without creating any prejudice. The principles are “generic” rather than “case specific” and nothing referred to in this judgment will be of concern in the retrial of the cited case.

37. [37]
    An accused who agrees to cooperate with the prosecution by giving evidence against a co-accused and receives the benefit of a more lenient sentence in respect of his own conduct, may well be motivated to minimise his role and maximise that of another. Hence his or her credibility is a very real issue that must be tested before the jury in the trial of that other accused.

38. [38]
    Accordingly, the question in this case is whether there is good reason, in all the circumstances, for granting leave to the applicant to access the s 13A materials. No one case is the same as another. In every case it remains a matter for the exercise of a discretion by the judge.

39. [39]
    In Evan & Others (supra), Keane JA referred to the relevant considerations upon which the discretion might properly be exercised, in the following terms:

“The relevance for counsel was that the witness’ sentence might be reopened under s 188 of the Act on the application of the prosecution if the prosecution were of a view that the witness had failed to provide the promised cooperation.

…

Each of (the benefited witnesses) had a real ongoing incentive ‘to minimise his (or her) own criminality and maximise that of others, including the appellants’; in making this point to the jury to undermine the credibility of (them) was ‘a most obvious forensic way to lead the jury to a reasonable doubt’ as to the reliability of the evidence of (both of them) against the appellants.  The learned trial judge’s refusal of access to the 13A materials ‘withheld from (the appellants) what may have proved to be a very effective foothold for cross-examination to this end.’

The decision which the learned trial judge made was one which involved the exercise of a judicial discretion.  The considerations which bear upon the exercise of such discretion may point in different directions.  It may be that, in some cases, there will be considerations, such as the safety of witnesses or other persons, which militate against allowing access.  No such competing considerations were present in this case.  There was good reason to allow access to the s 13A materials, and no good reason to deny it.  Accordingly, I conclude that his Honour erred in refusing access to these materials.”

40. [40]
    The High Court authority of Grey v R (2001) 184 ALR 593 at 600 and 612 and Wakeley v The Queen (1990) 64 ALJR 321 at 325, were referred to in support of the judgment in Evans’ case.

41. [41]
    There is in this case good reason to grant the leave sought. The evidence of Stephen Alan Simpson appears to be crucial to the prosecution case. He committed the offence. He implicated the applicant as his procurer and as the person who supplied the keys and relevant information to enable the offence to be carried out successfully. In the CRISP Report relating to the applicant, as late as October 2003, the police apparently had reported that there was no evidence “that would lead officers to suggest that (the applicant) should be considered in any way a suspect for this offence.” The evidence of Stephen Alan Simpson may now account for the fact that the applicant has been charged.

42. [42]
    The applicant is entitled to the forensic advantage that access to the s 13A materials may provide. I do not think that in this case there are other competing considerations – such as the safety of witnesses or other persons or issues of personal privacy – that would militate against such access.

43. [43]
    Accordingly, I grant this part of the application and the leave sought is given.

Orders

44. [44]
    I make further orders as follows:

1. That the respondent provide to the applicant copies of QP9 police briefs and/or police CRISP Reports relating to any matters that Stephen Alan Simpson has recorded on his criminal history record from and including the offence of entering premises with intent to commit an indictable offence committed on 24 May 2003.
2. That the respondent make necessary inquiry and inform the applicant whether Stephen Alan Simpson has been charged with any offences that have not to date been determined or otherwise dealt with, in addition to those matters which might appear on his criminal history record, and provide to the applicant copies of QP9 police briefs and/or police CRISP Reports relating to such matters.
3. That the respondent provide to the applicant copies of any QP9 police briefs and/or police CRISP Reports relating to Paul Millsom in respect of any offence arising out of the relevant incident on 24 May 2003.
4. That the sealed envelope placed on District Court criminal file (Indictment No CNS 85/2004) in respect of Stephen Alan Simpson by Judge Shanahan on 9 August 2004 in the District Court at Brisbane, pursuant to Section 13A of the Penalties and Sentences Act 1992, be opened and its contents made available for inspection by the lawyers for the applicant and the lawyers for the respondent for the purpose of the applicant’s trial on the charge of entering with intent to commit an indictable offence.