R v Wellington[2018] QDCPR 24

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a matter in which the applicant seeks a permanent stay of the proceeding.
2. [2]
   On 14 September 2017 an indictment was presented to the Southport District Court charging the accused with one count of malicious act with intent alternatively threatening violence with intent.  The matter does not yet have a trial date.

Factual Background

3. [3]
   The factual background to the alleged offences is that the applicant is a member of the Queensland Police Service and was so at the time of the alleged offence.  The offences involved an incident following a lengthy pursuit of two armed offenders in a stolen motor vehicle.  The applicant was a passenger in a police vehicle driven by another police officer. Another police vehicle was driven by Senior Sergeant Hurley. Police officers, including the applicant, exited their police vehicles.  The wanted driver then accelerated heavily backwards and forwards ramming the police vehicles. Senior Sergeant Hurley discharged his service issue firearm on two occasions and the applicant discharged his service issue firearm on two occasions.  Senior Sergeant Hurley has not been charged with any offences. The discharge of the applicant’s firearm is the conduct relied upon to support the counts on the indictment.

4. [4]
   Detective Newton from the Queensland Police Service Ethical Standards Command was assigned carriage of both the criminal investigation of the applicant and also the disciplinary investigation to be conducted on behalf of the Commissioner of Police, pursuant to Police Service Administration Act 1990 (Qld).  It is not disputed that in this role Detective Newton attempted to interview the applicant pursuant to the Police Powers and Responsibilities Act 2000 (Qld) on four occasions in respect of criminal offences and on each occasion the applicant declined to answer questions.  It is also not disputed that on each of those occasions Detective Newton then immediately utilised the provisions of the Police Service Administration Act 1990 (Qld) to compel the applicant to answer questions.
5. [5]
   The essence of the applicant’s complaint is that Detective Newton relied upon the compulsorily obtained information to identify defences or other exculpatory materials that might potentially be raised by the applicant in his defence to the criminal charges.
6. [6]
   The applicant contends that Newton has abused the powers vested in her to compel the applicant to answer questions in a disciplinary investigation by using the information so obtained to assemble evidence against him in the criminal proceedings.  The applicant says this amounts to an abuse of the courts process and that the prejudice suffered by the applicant is not able to be remedied except by a stay of proceedings.

Power of the Commissioner of Police to compel answers

7. [7]
   There does not appear to be any dispute as to the power of the Commissioner of Police to lawfully compel officers such as the applicant to answer questions under the Police Service Administration Act 1990 (Qld). The applicant argues this extraordinary and privileged power was clearly provided for employment purposes and is directly related to the Commissioner’s responsibility to ensure the efficient and proper administration and management of the police service.  The applicant argues, and it is conceded, that there is no power for the purpose of assisting or advancing criminal investigations of police officers.^[1]  The applicant argues that, due to the unique position of the Commissioner, care should be taken to ensure that “lines are not blurred” between criminal investigations and the linked departmental investigation.^[2] There does not seem to be an argument for the respondent as to this issue.  What the respondent does not accept is the proposition by the applicant that there is unambiguous evidence here that the commissioner’s employment power to require officers to answer questions under compulsion has been used for an improper purpose, that purpose being to advance or benefit the criminal investigation and prosecution of the applicant. If Detective Newton had been involved in either the investigation about the criminal offences or the employment interviews, but not both, there would have been no complaint.

The principles

8. [8]
   In X7 v Australian Crime Commission,^[3] the High Court was required to determine whether the Australian Crime Commission was permitted to compulsorily examine a person who had already been charged with three offences about issues relevant to those charges.  The majority of the court (Hayne, Kiefel and Bell JJ) agreed that the Australian Crime Commission Act 2002 (Cth) did not authorise an examiner to require a person charged with Commonwealth indictable offences to answer questions about the subject matter of the charged offence.  The applicant argues that that judgment establishes three important principles:

• That from the investigation, the laying of the charge, prosecution, at trial, and ultimately “at every stage the process of criminal justice is accusatorial”.
• That the effect of compelling an applicant to answer questions designed to establish that he is guilty of an offence with which he is charged, would prejudice him in his defence because he could no longer determine the course that he would follow at his trial according only to the strength of the case that the prosecution proposed and adduced.
• That even if questions given in the compulsory examination were kept secret and not used directly or indirectly by those responsible for investigating and prosecuting the matters, the requirement to give answers after being charged would fundamentally alter the accusatorial judicial process and would interfere with the ability of the accused person to decide the course he would adopt at trial.  To distinguish the strength of the evidence led by the prosecution, the accused person would have to decide the course to be followed in the light of that material, and in the light of any self-incriminatory answers which he had been compelled to give so that all the accused persons’ decisions as to what plea to enter, what evidence to challenge, whether to give evidence or not, would have to be decided in the context of the answers he had given at the examination. He would be, therefore, prejudiced in his defence.

Abuse of process

9. [9]
   There does not seem to be an argument that the court has an inherent power to prevent an abuse of its processes.^[4]  It is also accepted that the granting of a permanent stay should only occur in an extreme case and where there is no other way in which the unfairness or defect be remedied.^[5]

Respondents’ argument

10. [10]
    The respondent says that decision was on the basis of post-charge questioning and cited the High Court in R & Anor v Independent Broad-based Anti-corruptionCommissioner^[6] in respect of the “companion principle” (an accused cannot be force to testify). The court said in that case the “companion principle” was not engaged because the appellants had not been charged.  The respondent says that to formulate the principle in the way the appellants’ argue would be to extend its operation beyond the rationale identified in the authorities, namely the protection of the forensic balance between prosecution and accused. 

Applicants’ argument

11. [11]
    Here, Detective Newton was attempting to gain information to assist in the prosecution of a criminal matter, and on each occasion that she tried to question the applicant he claimed privilege.  The applicant argues that he now is in the position that he comes before the court forensically bound to the answers he gave under compulsion, and that he is entitled to come before the court not so bound.  He argues there are no remedial orders that can be made to protect from an unfair trial.
12. [12]
    The applicant refers to R v Wooldridge,^[7] where an investigating officer was present during a compulsory examination pursuant to the Crime and Misconduct Act 2001 (Qld).  The applicant argues that that a critical distinction was that the power was authorised for a crime function rather than employment function. Unlike here, the investigator was not the officer who compelled an interview with the accused, nor did the investigator proceed to remain active and engaged in the investigative process to the extent of being the one responsible for an assembling the brief of evidence.
13. [13]
    The applicant also refers to Stevenson v Collins & Anor,^[8] where Baulch DCJ upheld a stay in circumstances where the investigating officer of a criminal organisation offences was present during the compulsory examination pursuant to the Crime and Misconduct Act 2001 (Qld).  The investigating officer in that case attended the compulsory examination and assisted counsel with the preparation of questions to put to the applicant.  On appeal, Baulch DCJ applied the principles stated in X7 v Australian Crime Commission,^[9] and found that an impartial bystander, informed as to what had taken place, would think that each of the respondents had been disadvantaged by the way in which the “coercive hearings had been conducted”.

Preparation of brief of evidence required for prosecution in respect of criminal charges

14. [14]
    The applicant argues that as part of the brief of evidence, there were 24 witness statements and of those 24, a further addendum statement was taken in respect of five witnesses.  All of those addendum statements were taken by Newton after she had conducted compulsory examinations of the applicant. After another extensive compulsory examination conducted by her, a further 11 statements were obtained from witnesses by Detective Newton.
15. [15]
    The respondent argues that there is nothing remarkable in what is contained in the statements or the addendum statements and that what occurred was, for the most part, obtaining more detailed eye witness accounts from the police officers who were in the vicinity and it was not as if there was something that was previously unknown or a line of enquiry that was not known.
16. [16]
    Through the medium of the affidavit of Mr Gnech, the principal solicitor of the Queensland Police Union Legal Group, there has been an analysis of the statements and addendum statements.

Senior Sergeant Hayden

17. [17]
    Senior Sargent Hayden has provided a forty-six page statement which has been included in the brief of evidence for the criminal prosecution against the applicant.

He is the senior most expert in regard to the use of force training in the Queensland Police Service.  His statement contains numerous references to matters contained in the compulsory interviews.  The prosecution have conceded that to the extent Mr Hayden’s evidence is based on the version given by the applicant it would be inadmissible but argue that that evidence could be readily excised from any evidence he was to give at the trial.  Such concession, however, may not be the end of the matter if the fact that detective Newton took such information from Mr Hayden based on the compulsorily obtained answers, it may be an indicator that her knowledge of the compulsory interviews was directing and informing her investigation.  

Prosecution

18. [18]
    The second concession made by the respondent is the question of whether the applicant is prejudiced by being effectively “locked in” in the conduct of his defence at trial.  The prosecution say this can be overcome by ensuring that anyone involved in the prosecution of the trial not be privy of the version given by the applicant at interview, submitting that:  “in those circumstances there would be no resulting unfairness to the applicant at the trial.”^[10]  Such a submission is troubling.  Detective Newton was the person who framed the original charges and who will be instructing the prosecution.  Indeed, she was the original prosecutor of the matter.  If it is conceded that the prosecution of the trial by the Director of Public Prosecutions should ensure that no one involved in the prosecution know of the answers in the compulsory interviews, it is difficult to understand how this can lie with the fact that the prosecuting police officer does know.

Senior Sergeant McGrath

19. [19]
    The statement of Senior Sergeant Craig McGrath provided his first statement on 23 June 2015, the original statement is three pages long and it is argued that within this statement there was little focus upon communications to the police communications centre.  This is relevant because the applicant informed in a compelled interview on 3 July 2015, that he did not hear the pursuit being terminated over the radio.  In McGrath’s second statement on 25 January 2016, the statement focussed significantly on those broadcasts.

Statement of Julia Angus

20. [20]
    Constable Angus provided her statement on 8 June 2015.  Once again the statement was just over three pages long and within that statement there was no comment at all in regards to the radio communications with police communications centre on the night.  She provided a second statement on 9 December 2015 and in that statement, specifics of radio communications were outlined and the witness was asked to draw a diagram of the location of the police officer discharging his firearm.  It is argued that paragraphs 9 through 14 are a non-exhaustive list of examples where the use of compelled evidence from the applicant has infiltrated the criminal investigation report.

Interview Matrix

21. [21]
    As a part of the investigation, Detective Newton prepared what is described as an “interview matrix” which is contained within Exhibit CG1 of the affidavit of Gnech.

22. [22]
    Mr Gnech says that matrix reveals a deliberate analysis of the compelled evidence provided by the applicant in the series of directed interviews, but related to the defences of the criminal charges and allegations.

Investigation Report

23. [23]
    Reference is also made to a copy of the investigation report authored by Detective Newton. In it Detective Newton identifies possible defences that could be fairly raised and it is argued that in regards to the applicant, a summary of that part of the report reveals an analysis of all the evidence including the compelled evidence with the identification of possible criminal charges and defences to those charges.  It also refers to the expert statement of Senior Sergeant Hayden.  The report considers a charge pursuant to s 58(2) of the Weapons Act 1990 (Qld) detailing all the elements of the offence and relying on the evidence of Senior Sergeant Hayden.
24. [24]
    Finally, Mr Gnech’s affidavit argues that Detective Newton was the officer who:

    1. attended the scene;
    2. had carriage of all aspects of this investigation, criminal and departmental;
    3. contacted all compulsory interviews with the applicant;
    4. obtained all the addendum statements personally;
    5. issued the applicant with the first notice to appear for a Weapons Act 1990 (Qld) offence;
    6. issued the applicant with the second notice to appear, for the offences of acts intended to cause GBH and dangerous operation of a motor vehicle; 7.              was the author of the investigation report; and
    7. was the author of the investigation report; and
    8. was the author of the interview matrix.

25. [25]
    Those factors, the applicant says, demonstrate that her investigation of the criminal matter was informed and directed by the answers obtained compulsorily.  The applicant says that in those circumstances, there is no way to remedy the situation. He argues there was no reason why an independent investigator could not have been assigned by the Commissioner of Police and that it would be easy to do so.  In those circumstances, the applicant says that, despite accepting that the granting of a permanent stay should only occur in an extreme case and where there is no other way to remedy the unfairness or defect, that is the situation that pertains here.
26. [26]
    I accept this argument for the reasons advanced by the applicant and I order that the proceedings on this indictment be stayed.