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The Queen v Julianne Toogood & Steven Toogood[2019] QDCPR 22

The Queen v Julianne Toogood & Steven Toogood[2019] QDCPR 22

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Toogood & Toogood [2019] QDCPR 22

PARTIES:

THE QUEEN

(respondent)

v

JULIANNE TOOGOOD & STEVEN TOOGOOD  

(defendants/applicants)

FILE NO/S:

Indictment No. 500/18

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

05 June 2019

DELIVERED AT:

Cairns

HEARING DATE:

25 March 2019

JUDGE:

Morzone QC DCJ

ORDER:

1.  The Crown will make further and better disclosure to the defendants of the following things requested in items 6, 7 and 12:

  1. (a)
    Recording 1 - 14 December 2017 - Alister Pike.M4a
  2. (b)
    Recording 1 - 14 September 2017 - Alister Pike.Wma
  3. (c)
    Recording 2 - 14 September 2017 - Alister Pike.Wma
  1. (d)
    Recording 1 - 27 June 2017 - Philip Jon Westaway.M4a
  2. (e)
    Recording 2 - 16 September 2017 Philip Jon Westaway.Wma
  1. (f)
    Recording - 16 February 2018- Adam Marre And The Defendants.M4a

in accordance with the following conditions:

  1. (i)
    The recordings will only be played to the defendants (and their lawyer(s), if any) at the office of the director of public prosecutions, or other place authorised by the director, for a legitimate purpose connected with this proceeding;
  2. (ii)
    There is no notation, reporting, copying or circulation in any form of the content of the recordings except for a legitimate purpose connected with this proceeding.

2.  I will hear further submissions about any further or other orders or directions in accordance with these reasons.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE - RULING – DISCLOSURE – things already disclosed to the defendants – things not in existence – things not in the possession of the prosecution – things not disclosable – things in not disclosable in public interest – whether reasons for discontinuance of prosecution subject of disclosure – orders restricting access, reproduction and circulation of things and their content.

Legislation

Criminal Code 1899 (Qld) s 590AA, s 539E, s 539B s 590AB, s 590AC, s 590AH, s 590AQ

Criminal Practice Rules 1999, ss 43A – 43E

Local Government Act 1976 (Qld) s 359Da

Cases

Grey v R (2001) 184 ALR 593

R v BBU  [2009] QCA 385

R v Cornwell [2009] QCA 294 

R v HAU [2009] QCA 165 at [37] – [41]

R v Rollason and Jenkins Ex parte A-G (Qld) [2008] 1 Qd R 85 at [21]

R v Colagrade [2018] QCA 108

COUNSEL:

N Friedewald for the Crown

SOLICITORS:

The Office of Director of Public Prosecutions for the Crown The defendant/applicants were self represented

  1. [1]
    The defendants apply for further and better disclosure of various documents they assert are in the possession of the prosecution that would tend to help their case.
  2. [2]
    The application is opposed by the Crown.
  3. [3]
    I have gratefully received and considered extensive written outlines of argument, as well as heard further oral argument from the parties.

Background

  1. [1]
    The respondents are charged with one count of stalking. 
  2. [2]
    The offence of unlawful stalking is prescribed by s 539E with allied provisions in chapter 33A of the Criminal Code 1899 (Qld), including the definition of unlawful stalking in s 359B, which provides:

Unlawful stalking is conduct -

  1. (a)
    intentionally directed at a person (the stalked person); and
  2. (b)
    engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  3. (c)
    consisting of 1 or more acts of the following, or a similar, type -  
    1. (i)
      following, loitering near, watching or approaching a person;
    2. (ii)
      contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
    3. (iii)
      loitering near, watching, approaching or entering a place where a person lives, works or visits;
    4. (iv)
      leaving offensive material where it will be found by, given to or brought to the attention of, a person;
    5. (v)
      giving offensive material to a person, directly or indirectly;
    6. (vi)
      an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
    7. (vii)
      an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and

 (d)  That –

  1. (i)
    would cause the complainant apprehension or fear, reasonably arising in all the circumstances, of violence; to, or against property of, the complainant or another person, or
  2. (ii)
    causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.”
  1. [3]
    For this provision “detriment” includes:[1]
    1. (a)
      apprehension or fear of violence to, or against property of, the stalked person or another person;
    2. (b)
      serious mental, psychological or emotional harm;
    3. (c)
      prevention or hindrance from doing an act a person is lawfully entitled to do;  
    4. (d)
      compulsion to do an act a person is lawfully entitled to abstain from doing. Examples of paragraph (c)

A person no longer walks outside the person’s place of residence or employment.

A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places.

Example of paragraph (d) —

 A person sells a property the person would not otherwise sell.

  1. [4]
    Section 359C provides for matters which are immaterial for unlawful stalking:

“(1) For section 359B(a), it is immaterial whether the person doing the unlawful stalking—

  1. (a)
    intends that the stalked person be aware the conduct is directed at the stalked person; or
  2. (b)
    has a mistaken belief about the identity of the person at whom the conduct is intentionally directed.
  1. (2)
    For section 359B(a) and (c), it is immaterial whether the conduct directed at the stalked person consists of conduct carried out in relation to another person or property of another person. 
  2. (3)
    For section 359B(b), it is immaterial whether the conduct throughout the occasion on which the conduct is protracted, or the conduct on each of a number of occasions, consists of the same or different acts. 
  3. (4)
    For section 359B(d), it is immaterial whether the person doing the unlawful stalking intended to cause the apprehension or fear, or the detriment, mentioned in the section. 
  4. (5)
    For section 359B(d)(i), it is immaterial whether the apprehension or fear, or the violence, mentioned in the section is actually caused.”
  1. [5]
    The Crown summarise the factual allegations in a schedule.[2]  The complainant was a councillor elected and served as deputy mayor in the Cassowary Coast Regional Council serving the local government area in which the respondent’s live.  The Crown alleges that the respondents targeted the complainant in his use of the social media platform ‘Grindr’, and his provision of photographs of male genitalia in a private communication with another adult male user.  The defendants sought to condemn the conduct as evidencing solicitation of sex and inappropriate conduct very young males on ‘Grindr’ and posting photos of his penis.  The Crown allege that the unlawful staking is characterised by a series of complaints initially made by the respondents, in a meeting with the mayor, asserting that the complainant’s private conduct was unbecoming of a serving councillor and in breach of the Council’s Code of Conduct.  Spurred by the mayor’s disclosure of their complaint to the complainant, and their perceived failure of the mayor’s to adequately address their concerns, the defendants escalated their complaint about the complainant (and also the mayor) to the council body. Again dissatisfied by the council’s attitude gleaned from the findings and their perceived failure of council’s chief executive officer to adequately address their concerns, the defendants escalated their complaint by emailing each serving individual councillor (including the complainant) and also the chief executive officer).  That material included content of the initial complaint, other private images of the complainant, and the subsequent complaint handling communication. Further dissatisfied by their perceived failure by those councillors to adequately address their concerns, the defendants further intensified their complaint by emailing the same material to three former councillors, and they also forwarded that communication to each serving individual councillor (including the complainant) and the chief executive officer.  The next day, the defendants remained dissatisfied with the complaint handling and again escalated their pursuit of the matter by emailing state members of parliament.  That email included the content of the email sent to the former counsellors.  Seven days later a number of emails were sent to the serving individual councillor (including the complainant) and the chief executive officer, seeking confirmation of matters attributed by a newspaper article, and an apology.
  1. [6]
    The defendants dispute that they engaged in stalking conduct, and even if so characterised, they foreshadow defending the proceeding in reliance on ss 359D(a), (c), (d) and (e), in particular, that the particular conduct is not unlawful stalking because: 
    • the acts were done in the execution of a law or administration of an Act or for a purpose authorised by an Act, namely complaints to pursuant to ss 176, 176B, 176C, 177, 178, 179, and 180 of the Local Government Act 1976 (Qld); (s 359D(a));
    • the acts were for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest; (s 359D(c));
    • it was reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation; (s 359D(d);
    • it was reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving; (s 359D(e)).
  2. [7]
    To that end, the defendants have made several written requests for further and better disclosure from the prosecution for things in the possession of the prosecution that would tend to help their case.  Dissatisfied by the prosecution’s response they now apply for orders to compel the prosecution to disclose.[3]

Disclosure

  1. [8]
    Section 590AB Criminal Code provides for prosecution’s overarching obligations to ensure fairness in the pursuit of truth as follows:

“(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 –

  1. (a)
    all evidence the prosecution proposes to rely on in the proceedings; and
  2. (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.”
  1. [9]
    The obligation extends well beyond the scope of the evidence intended to be adduced by the prosecution, and is not confined by the notion of relevance.  Instead, it extends to all things possessed by the prosecution that would tend to help the defendants’ case, except where disclosure would be unlawful or contrary to public interest. 
  2. [10]
    Section 590AH prescribes for mandatory disclosure in accordance with the overarching prosecutorial obligations as follows:

590 AH Disclosure that must always be made

(1) This section applies—

  1. (a)
    without limiting the prosecution's obligation mentioned in section 590AB(1); and
  2. (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—

  1. (a)
    a copy of the bench charge sheet, complaint or indictment containing the charge against the person;
  2. (b)
    a copy of the accused person’s criminal history in the possession of the prosecution;
  3. (c)
    a copy of any statement of the accused person in the possession of the prosecution;
  4. (d)
    for each proposed witness for the prosecution who is, or may be, an affected child — a written notice naming the witness and describing why the proposed witness is, or may be, an affected child;
  5. (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;

  1. (f)
    if the prosecution intends to adduce evidence of a representation under the Evidence Act 1977, section 93B, a written notice stating that intention and the matters mentioned in section 590C(2)(b) to (d);
  2. (g)
    a copy of any report of any test or forensic procedure relevant to the proceeding in the possession of the prosecution;

   Examples of a forensic procedure –

   DNA, fingerprint or another scientific identification procedure

  1. (h)
    a written notice describing any test or forensic procedure, including a test or forensic procedure that is not yet completed, on which the prosecution intends to rely at the proceeding;
  2. (i)
    a written notice describing any original evidence on which the prosecution intends to rely at the proceeding;
  1. (j)
    a copy of anything else on which the prosecution intends to rely at the proceeding;
  2. (k)
    a written notice or copy of anything else in possession of the prosecution prescribed under a regulation.”
  1. [11]
    Section 590AJ prescribes for disclosure upon request as follows: 

590 AJ Disclosure that must be made on request

(1) This section applies –

  1. (a)
    without limiting the prosecution’s obligation mentioned in section 590AB(1) and
  2. (b)
    subject to section 590AC(1)(a) and chapter subdivision D.

(2) For a relevant proceeding, the prosecution must, on request, give the accused person –

  1. (a)
    particulars if a proposed witness for the prosecution is, or may be, an affected child; and
  2. (b)
    a copy of the criminal history of a proposed witness for the prosecution in the possession of the prosecution; and
  3. (c)
    a copy or notice of any thing in the possession of the prosecution that may reasonably be considered to be adverse to the reliability or credibility of a proposed witness for the prosecution; and
  4. (d)
    notice of any thing in the possession of the prosecution that may tend to raise an issue about the competence of a proposed witness for the prosecution to give evidence in the proceeding; and
  5. (e)
    a copy of any statement of any person relevant to the proceeding and in the possession of the prosecution but on which the prosecution does not intend to rely at the proceeding; and
  6. (f)
    a copy or notice of any other thing in the possession of the prosecution that is relevant to the proceeding but on which the prosecution does not intend to rely at the proceeding.

(3) If the prosecution gives notice of a thing under subsection (2) that is not original evidence, the prosecution must advise the accused person that the thing may be viewed on request by the accused person at a stated place.”

  1. [12]
    As to whether a thing is in the “possession of the prosecution”, as that phrase is used in the above provisions, its meaning is confined by the definition in 590AE, as follows: 

“590 AE Meaning of possession of the prosecution

  1. (1)
    For a relevant proceeding, a thing is in the possession of the prosecution only if the thing is in the possession of the prosecution under subsection (2) or (3).
  2. (2)
    A thing is in the possession of the prosecution if it is in the possession of the arresting officer or a person appearing for the prosecution.
  3. (3)
    A thing is also in the possession of the prosecution if—

(a) the thing is in the possession of—

  1. (i)
    for a prosecution conducted by the director of public prosecutions — the director; or
  2. (ii)
    for a prosecution conducted by the police service — the police service; and

(b) the arresting officer or a person appearing for the prosecution—

  1. (i)
    is aware of the existence of the thing; and
  2. (ii)
    is, or would be, able to locate the thing without unreasonable effort.”
  1. [13]
    Having regard to the legislative parameters of the Prosecution’s duty of disclosure, set out above, its scope is not at large.  By s 590AE, the duty as expressly confined to:
    1. Things actually in the possession of the arresting officer; or
    2. Things actually in the possession of the person appearing for the prosecution; or
    3. Things actually in the possession of the director, and the arresting officer or a person appearing for the prosecution:
      1. (a)
        is aware of the existence of the thing; and
      2. (b)
        is, or would be, able to locate the thing without unreasonable effort.
  2. [14]
    The Criminal Practice Rules 1999 (Qld) prescribes the prerequisites to making an application for disclosure pursuant to s 590AB(1), applicable procedures, disposal and relevant directions.[4]  The defendants have gone some way to either knowingly or unknowingly complying with the procedure required before filing an application under rule 43C, however, they predominantly rely upon extensive submissions constituting their application for disclosure.  The prosecution have provided the defendants’ disclosure requests, the responses by the prosecution, other communication exchanged between the parties as required by rule 43D.  I have had the benefit of the parties’ extensive written and oral submissions.  I therefore, allowed the application to be heard despite the non-compliance with the procedural requirements. 
  3. [15]
    The scope of the prosecutions disclosure obligation must be considered in light of the overarching duty stated in s 590AB(1), that is, to ensure the proceeding is conducted fairly with the single aim of determining and establishing truth.  

Issues

  1. [16]
    The defendants have taken a wide view of the prosecution’s disclosure obligations as extending to all or any documents of which the arresting officer or prosecution ought be aware, can be located without reasonable effort, and are helpful in their case.
  2. [17]
    The respondent contends that it has discharged its disclosure obligations because the documents requested have already been disclosed or do not exist, or are not in the possession of the prosecution, or are not otherwise disclosable, or are subject to further advisement.

Material already disclosed to the defendants?

  1. [18]
    The Crowns assert that the following material has been disclosed to the defendants:
    1. Item 2 - all QPRIME Occurrence Reports and all information including all things in the possession of QPS relating to that recorded phone conversation AND the discussions between CEO Gott, Mayor Kremastos, Councillor Kimberley and QPS 24th and 29th May 2017. 
    2. Item 17 - all QPRIME Occurrences concerning the defendants including but not limited to: (a) QP1701638432 Investigative Warrant (search warrant); (b) QP1701600602 Breach of Privacy Toogood; (c) QP1700931258 Occurrence report without the deletions; (d) Any QPRIME Occurrence reports specifically relating to record/distribute prohibited images; and (e) QP1801359350.
    3. Item 20 - described as “a copy of the email referred to in QPRIME Occurrence QP1700931529 allegedly sent by the defendants demanding a sum of $350K cash in exchange for dropping complaint of misconduct against Ricky Taylor.”
  2. [19]
    The defendants dispute that these items have been provided.  
  3. [20]
    As to item 2 the defendants response is that: “Qprime Occurrence QP1801359350 has not been provided. Section 590AB (2)(b) of the Criminal Code.”  It is not clear to me what that means, since the provision relates to compulsory disclosure of an accused’s criminal history. Its not made clearer by their response in relation to item 17, which is: “same as Item 2 Qprime Occurrence QP1801359350 has not been provided.”  I have no reasons to doubt the Crown’s assertion of complete disclosure of material in its possession captured by items 2 and 17.
  1. [21]
    The controversy about the email is Item 20, relates to the description of its content.  The Crown maintains that the email was disclosed on 16 November 2018 and that it merely used upon the description attributed by the defendants.  I am satisfied that the email as disclosed (however its contents may be described) has exhausted the prosecution’s obligations for this item.

Material not in existence?

  1. [22]
    The Crown asserts that the material in relation to Items 4, 5, 8 – 11, 13, 15, 16, 19, 21, 22, 33 – 36 and 55 do not, to the best of the arresting officer’s knowledge, exist and therefore cannot be disclosed.
  1. [23]
    This class of material can be described as follows: 
    1. Item 4 - Diary notes documents, records, QPS recordings for 24 May 2017 regarding the complaint made to QPS by CEO Gott and Mayor Kremastos on or about 24 May 2017;
    2. Item 5 - Diary notes, documents, records, recordings for 29 May 2017 attendance at Innisfail Police Station by CEO Gott, Mayor Kremastos and Councillor Kimberley;
    3. Item 8 - Diary notes, documents, records, recordings from 1 January 2017 – current of Tracey Taylor from or to QPS in relation to Ricky Taylor and/or the defendants;
    4. Item 9 - Diary notes, documents, records, recordings from 1 January 2017 – current of Mayor John Kremastos from or to QPS in relation to Ricky Taylor and/or the defendants;
    5. Item 10 - Diary notes, documents, records, recordings from 1 January 2017 – current of James Gott from or to QPS in relation to Ricky Taylor and/or the defendants;
    6. Item 11 - Diary notes, documents, records, recordings from 1 January 2017 – current of Wayne Kimberley from or to QPS in relation to Ricky Taylor and/or the defendants;
    7. Item 13 - List of questions and notes prepared by Councillor Wayne Kimberley for the purpose of the alleged pre-text call conducted 29 May 2017;
    8. Item 15 - Notes provided to Councillor Wayne Kimberley and written by DS Bauer during the alleged pre-text call 29 May 2017;
    9. Item 16 - Notes taken by Councillor Wayne Kimberley during the court of the alleged pre-text call 29 May 2017;
    10. Item 19 - Recording of a phone call between DS Bauer and Toogood on or about 2.28pm 13 December 2017;
  1. Item 21 - A copy of the “Information Package” provided by Council to the QPS;
  2. Item 22 - 06.06.2016 – Email referred to by Nolan, Heath, Baines ad Raleigh as being sent by the defendants in the QPS statement;
  3. Item 33 – 36 - email referred to by Raleigh as being sent by the defendants in the QPS statements; 12.08.2017 three emails referred to by Nolan, Heath, Baines and Raleigh as being sent by the defendants in the QPS statements;
  4. Item 55 - A copy of the recorded audio and/or video of the complainant’s interview with QPS on 14 June 2017 when making the initial complaint;
  1. [24]
    The arresting officer has disposed to having no knowledge of the existence, nor having possession, of items 4, 5, 8, 9, 10, 11, 13, 15, 16, 19, 21, 22, 33-36, and 55.[5]  I expect that the arresting officer and the prosecutor conducting the case have exhausted their efforts to make inquiries, diligently search and try locating all things subject of the defendant’s request.  I have no reason to doubt the veracity of the officer or go behind his depositions subject of the speculation and inferences urged by the defendants.  Therefore, I accept that none of the documents are actually in the possession of the arresting officer or the person appearing for the prosecution, and therefore, the documents (even if they exist) are not caught by s 590AE(2).
  2. [25]
    As to s 590AE(3), since this prosecution is being conducted by the director of public prosecutions, the obligation of disclosure is triggered if these three elements are present:
    1. (a)
      The thing is in the possession of the director, and
    2. (b)
      The arresting officer or a person appearing for the prosecution is aware of the existence of the thing; and 
    3. (c)
      The arresting officer or a person appearing for the prosecution is, or would be, able to locate the thing without unreasonable effort.
  3. [26]
    In this way the prosecution’s duty to disclose such documents is properly confined and governed, and the prosecution cannot be compelled to disclose beyond those legislative parameters.  It may well be that some (or more) of the documents sought by the defendants would tend to help their case; and they are known to things exist and can located them without reasonable effort.  However, these become immaterial unless it can be first shown that the thing is in the possession the director of public prosecutions.  It seems to me that the defendant’s argument falls at this first hurdle since there is no evidence that any such documents are in the possession of the director.  The application for this part is doomed to fail. 
  4. [27]
    The defendants have also requested statements from Ms Tracey Taylor (Item 42), Mr Alister Pike (Item 43), Mr Josh Cooke (Item 44) and an addendum statement from Ms Kylie Farinelli (Item 45).  These individuals have declined providing statements to police, and they cannot be compelled to do so.  Consequently, the defendant’s request for such disclosure inevitably fails.
  5. [28]
    At this juncture, I am satisfied that none of these documents (if they exist) sought by the defendants are subject to mandatory disclosure obligations whether without request or upon request as prescribed by ss 590AH and 590AJ.  Accordingly, the Crown has exhausted the disclosure obligations within the bounds of the legislation.
  6. [29]
    The defendants may look beyond the prosecution, if they wish to pursue the documents for trial.  
  7. [30]
    It is a matter for a defendant to utilise any lawful alternative avenues to discover material sought to be relied upon in a court proceeding.  A defendant has recourse to other methods of obtaining things not in the possession of the prosecution that might tend to help the case for the accused person, for example: things voluntarily produced by others; things in the public domain or available by a common search of public records; documents provided pursuant to an application pursuant to the Right to Information Act 2009, and any other relevant material compellable under a subpoena issued under the Criminal Practice Rules 1999 (Qld).  

Material not in the possession of the prosecution?

  1. [31]
    The Crown assert that the following documents are not in the possession of the prosecution within the meaning of ss 590AE(2) or (3):[6]
    1. Item 1a - Councillor Kimberley’s council iPad or a certified copy of the recording and statement as to the complete particulars and circumstances of the pretext recording on 29 May 2017;
    2. Item 40 - Letters, emails, diary notes, communications including audio recordings, mobile phone texts, Messenger messages, Facebook messages and any other instant chat application messages and any documents in possession of Tracey Taylor sent to any person relating to or mentioning the defendants from 19 December 2016 – current; 
    3. Item 41 - Letters, emails, diary notes, communications including audio recordings, mobile phone texts, Messenger messages, Facebook messages and any other instant chat application messages and any documents in possession of Tracey Taylor sent or received from Phillip Westaway from 19 December 2016 – current;
    4. Item 48 - Email from Mr Gott ‘enclosing offer from Toogoods to settle the Magistrates Court proceeding’ to Connolly Suthers which Connolly Suthers perused on 3 May 2017;
    5. Item 49 - Email from Nancy Gassin ‘discussing offer from Toogoods’ which Connolly Suthers perused on 3 May 2017;
    6. Item 54 - Resignation letter provided by the complainant to THE COUNCIL in June 2017;
    7. Item 58 - Documents relating to THE COUNCIL Resolution Number 0252 and 0253; 
    8. Disclosure request (1) on 28 February 2019 - electronic file of documents sent by the Council to the Office of the Information Commissioner on 7 April 2017 and 5 May 2017; and 
    9. Disclosure request (2) on 28 February 2019 (“Policy 1.30 Use of Audio Recording Devices in the Workplace” Cassowary Coast Regional Council Draft Policy).
  2. [32]
    Again, I expect that the arresting officer and the prosecutor conducting the case have exhausted their efforts to make inquiries, diligently search and try locating all things subject of the defendant’s request.  I accept the evidence of the arresting officer that he is not in possession of the documents,[7] and there is no evidence to suggest that this class of documents sought by the defendants are actually in the possession of the person appearing for the prosecution.  Therefore, the documents (even if they exist) are not caught by s 590AE(2).
  3. [33]
    The documents attributed to this class (again even if they exist) also fall at the first hurdle of s 590AE(3) since there is no evidence that any such documents are in the possession of the director.  It is, therefore, immaterial whether the arresting officer or prosecutor knows of the document’s existence, or whether they can be located without reasonable effort.
  4. [34]
    I am satisfied that none of these documents sought by the defendants (should they exist) are subject of the Crown’s disclosure obligations whether without request or upon request as prescribed by ss 590AH and 590AJ.  Accordingly, the Crown has exhausted its disclosure obligations within the bounds of the legislation.
  5. [35]
    The defendants must look to alternative measures, beyond the prosecution, if they wish to use the documents for trial.

Material not disclosable?

  1. [36]
    The Crown assert that items 6, 7 and 12 have no material relevance to the proceedings and therefore such disclosure falls outside the ambit of the prosecution’s disclosure obligations.
  2. [37]
    The material are described as:
    1. Item 6 (Diary notes, documents, records, recordings from 1 January 2017 – current of former Councillor Alister Pike from or to QPS in relation to Ricky Taylor and/or the defendants admitted by DS Bauer as being in his possession but refused to disclose to the defendants); 
    2. Item 7 (Diary notes, documents, records, recordings from 14 June 2017 – current of Phillip Westaway (Mission Beach business person and the complainant’s neighbour and close friend and confidant of the complainant’s wife) from or to the QPS in relation to Ricky Taylor and/or the defendants admitted by DS Bauer as being in his possession but refused to disclose to the defendants); and 
    3. Item 12 (Recording of 16 February 2018 telephone conversation between defendants and prosecutor Adam Marre).
  3. [38]
    As to Item 6, Mr Pike has not provided a statement to police.  However, the prosecution has three audio recordings between Officer Padget and Alister Pike, but it asserts that none contain any direct evidence of any fact in issue.  There is a further short recording between Officer Mauer and Mr Pike.  It is argued that all the recordings contain hearsay statements and do not have no material relevance to the proceedings.[8] 
  4. [39]
    As to Item 7, Mr Westaway has also not provided a statement to police.  The respondent has two audio recordings between Officer Padget and Phillip Westaway and four audio recordings between Officer Bauer and Mr Westaway.  None of these contain any direct evidence of any fact in issue.  Further, the Crown assert that the recordings contain hearsay statements and have no material relevance to the proceedings.[9] 
  5. [40]
    As to Item 12, the respondent asserts that the recording does not relate to a material fact in issue, falls outside the outside the ambit of the prosecution’s disclosure obligations, and therefore is not disclosable.[10]
  6. [41]
    The respondent argue that each of Items 6, 7 and 12 are disclosable pursuant to ss 590AB (2)(b), 590AH(2)(e) and 590AJ(2)(e) and (f), and are relevant to the Stalking Defence 359D (a) (c) and (e) of the Criminal Code 1899.
  7. [42]
    As to the nature of the disclosable documents it is widely cast by the legislature to capture “things in the possession of the prosecution ... that would tend to help the case for the accused person”, rather than more narrowly, and technically, of “things that would tend, either to disprove the prosecution case, or to establish a defence” or “have no material relevance to the proceedings”.  It is not unusual for a “case for the accused person", to consist partly, if not entirely, of a challenge to the credibility the prosecution witnesses and admissibility of their testimony.[11]  In this context, it is enough that the documents or information contained are capable of being used for the legitimate forensic purpose of attempting to discredit a Crown witness.[12]  This means that, at a practical level, the test is whether the statement is something “that would tend to help the case for the accused person”, or is otherwise required in the interests of fairness and establishing the truth.  It is for the prosecution to make an assessment in this regard in the first instance, and for the court to determine any dispute that may arise in that regard.[13]
  1. [43]
    I called for production of the relevant recording subject of this part of the application.  It seems to me that the following audio files do satisfy the broad criteria of helpfulness albeit private and sensitive:

Item 6 - Pike

  1. Recording 1 - 14 December 2017 - Alister PIKE.m4a
  2. Recording 1 - 14 September 2017 - Alister PIKE.WMA
  3. Recording 2 - 14 September 2017 - Alister PIKE.WMA

Item 7 - Westaway

  1. Recording 1 - 27 June 2017 - Philip Jon WESTAWAY.m4a
  2. Recording 2 - 16 September 2017 Philip Jon WESTAWAY.WMA
  1. [44]
    Section 590AO limits disclosure of sensitive evidence.  In that regard, the prosecution is not, for a relevant proceeding, required to give the defendants a copy of a thing the prosecution reasonably considers to be sensitive evidence other than as required under this section. It is not clear whether the things are caught by the section and were subject of any notice required by s 590AO(2).  However, it is tolerably clear that the content of the recordings in items 6 and 7 contain information that is private, or personally or commercially sensitive.  I am satisfied that disclosure ought be restricted to viewing by the defendants (or their lawyer, if any) for the purposes of this case, in a way that will ensure no unauthorised reproduction or circulation.  I will so direct accordingly pursuant s 590AV of the Code.
  2. [45]
    As for the recording between the defendants and Officer Marre, being item 12 – the recording file named “16 February 2018 - Adam MARRE and the defendants.m4a”, the recording is one-sided.  The officer’s voice is clear and distinct, but is difficult to discern the remarks made by the defendants.  The gist of the conversation involves post charge conversation about the police’s adequacy of disclosure and apparent disputation of the scope of disclosure and their relevance.  Pursuant to s 590AN the prosecution is not, for a relevant proceeding, required under this chapter division to give the accused person anything the accused person or a lawyer acting for the accused person already possesses or has already been given by the prosecution.  It seems to me that delivery of the recoding seems benign, but may be helpful to the case regarding the scope of inquiry and disclosure.
  3. [46]
    The following recordings fall well short of the legislative pre-requisites and the prosecution are not obliged to disclose them:
    1. Recording 2 - 12 December 2017 - Philip Jon WESTAWAY.m4a;
    2. Recording 3 - 13 December 2017 - Philip Jon WESTAWAY.m4a;
    3. Recording 4 - 13 December 2017 - Philip Jon WESTAWAY.m4a;
    4. Recording 1 - 16 September 2017 - Philip Jon WESTAWAY.WMA; and
    5. Recording 3 - 16 September 2017 - Alister PIKE.WMA.
  1. [47]
    The content of these files included unconnected calls, and where a connection was established, the recorded conversation was about mundane procedural arrangements and contained no matter directly or indirectly, or even remotely, helpful to the defendants in this case.

Material not disclosable in public interest? 

  1. [48]
    The arresting officer has possession of the following requested items but the Crown sought further time for the Legal Unit of the Queensland Police Service to advise whether disclosure may be contrary to the public interest: 
    1. Item 18 - A list of QPS Member Numbers who have accessed the QPRIME of the defendants and dates on which that access has occurred;
    2. Item 52 - QPRIME file for Julieanne Toogood;
    3. Item 53 -QPRIME file for Stephen Toogood; and 
    4. Request for Queensland Police Service Pretext Call manual and procedures.
  2. [49]
    Even if the prosecution is in possession of a thing that would tend to help the defendants’ case, disclosure is not permitted if it would be unlawful or contrary to public interest. 
  3. [50]
    The Queensland Police Service Pretext Call manual and procedures have now been disclosed.  However, the prosecution continue to resist the request to disclose the QPrime things in items 18, 52 and 53 in the public interest.
  4. [51]
    Section 590AQ limits disclosure if considered contrary to the public interest, as follows:

590 AQ Limit on disclosure contrary to the public interest

(1) The prosecution is not, for a relevant proceeding, required under this chapter division to disclose to the accused person a thing, other than as required under this section, if the prosecution—

  1. (a)
    considers the disclosure would be contrary to the public interest; and
  2. (b)
    gives the accused person a written notice stating that the prosecution—
    1. (i)
      considers the disclosure would be contrary to the public interest; and
  1. (ii)
    is not required to disclose the thing to the accused person other than as required under this section.
  1. (2)
    Without limiting subsection(1)(a), the prosecution is not required to disclose the thing to the accused person if—
    1. (a)
      there are reasonable grounds for considering disclosure of the thing would—
      1. (i)
        prejudice the security, defence or international relations of Australia; or
      2. (ii)
        damage relations between the Commonwealth and a State or between 2 or more States; or
      3. (iii)
        facilitate the commission of another offence; or
      4. (iv)
        prejudice the prevention, investigation or prosecution of an offence; or
      5. (v)
        prejudice the usefulness of surveillance or other detection methods; or
      6. (vi)
        disclose, or enable a person to find out, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
      7. (vii)
        cause unlawful or dishonest interference with potential witnesses; or
      8. (viii)
        prejudice the proper functioning of the government of the Commonwealth or a State; or
    2. (b)
      disclosure of the thing to the accused person is prohibited by law.

Example for paragraph (b) disclosure of an informer’s identity under the Drugs Misuse Act 1986, section 119

  1. (3)
    However, unless disclosure to the accused person of the thing is prohibited by law, the court may direct that the thing be disclosed to the accused person.
  2. (4)
    The court may make a direction only if the court is satisfied, on balance, that disclosing the thing to the accused person is not contrary to the public interest.
  3. (5)
    In deciding whether to make a direction, the court may inform itself in any way it considers appropriate.
  4. (6)
    Without limiting the matters the court may take into account in deciding whether to make a direction, the court must take into account the following matters—
    1. (a)
      the importance of the thing in the relevant proceeding, including, for example, whether the thing is an exculpatory thing;
    2. (b)
      the nature of the offence;
    3. (c)
      the likely effect of disclosing the thing and how publication of the thing may be limited;
    4. (d)
      whether the substance of the thing has already been published.”
  1. [52]
    It is not clear whether the prosecution relies upon the provision and whether disclosure of items 18, 52 and 52 were subject of any notice required by s 590AQ(2).  However, it is tolerably clear that maintaining the integrity of the working content in the Qprime records is a matter of public interest.  Such content will include identification of accessing police investigators, informers, witnesses and any details, disclosure of which will likely prejudice the any investigation or prosecution of an offence, and/or the usefulness any active detection methods; or improperly disclose, or enable a person to find out, the existence or identity of a confidential source of information.  These are matters of public interest.
  2. [53]
    Having regard to the nature of the things sought in items 18, 52 and 53, the nature of the offence of stalking, the irrelevance to any exculpatory thing or defence, it could not be sensibly suggested that the things sought will be in the slightest helpful to the defendants’ case.  And they have not demonstrated how it could help their case.  I decline the request for disclosure of items 18, 52 and 63.

Miscellaneous 

  1. [54]
    The defendants have also requested “documents relating to reasons DPP dropped 227B charges” (Item 56).  All conduct under that charge is merged in the current charges.
  2. [55]
    Guideline 23 of the Director’s Guidelines[14], issued pursuant to the Director of Public Prosecutions Act 1984 states that reasons for decisions made in the course of prosecutions may be disclosed by the Director to persons outside the directorate.  Reasons will only be given when the inquirer has a legitimate interest in the matter and it is otherwise appropriate to do so.  When a position has been made not to prosecute prior to any public proceeding, reasons may be given by the Director.
  3. [56]
    It seems to me that the decision made by the Director to discontinue proceedings pursuant to s.227B Criminal Code, was one, which properly enabled reliance upon the same conduct in the prosecution of the current proceeding.  Reasons may be given, but I reject that such reasons are a proper matter of disclosure or compellable by the court.

Conclusion

  1. [57]
    For those reasons I will allow the application and make the following orders:
  1. The Crown will make further and better disclosure to the defendants of the following things requested in Items 6 and 7:
  1. (i)
    Recording 1 - 14 December 2017 - Alister PIKE.m4a
  2. (ii)
    Recording 1 - 14 September 2017 - Alister PIKE.WMA
  3. (iii)
    Recording 2 - 14 September 2017 - Alister PIKE.WMA
  4. (iv)
    Recording 1 - 27 June 2017 - Philip Jon WESTAWAY.m4a
  5. (v)
    Recording 2 - 16 September 2017 Philip Jon WESTAWAY.WMA
  6. (vi)
    Recording - 16 February 2018 - Adam MARRE and the defendants.m4a

in accordance with the following conditions:

  1. (a)
    The recordings will only be played to the defendants (and their lawyer(s), if any) at the office of the director of public prosecutions, or other place authorised by the director, for a legitimate purpose connected with this proceeding;
  2. (b)
    There is no notation, reporting, copying or circulation in any form of the content of the recordings except for a legitimate purpose connected with this proceeding.
  1. [58]
    I will hear further submissions about any further or other orders or directions in accordance with these reasons.

Footnotes

[1] Criminal Code, 359A.

[2] Annexure A – Outline of Submissions on behalf of the Respondent.

[3] The application and outline of argument was served on 16 February 2019, and on 12 March 2019 made further requests for disclosure.

[4] Criminal Practice Rules 1999, ss 43A – 43E.

[5] Affidavit of Detective Sergeant Bauer, sworn 15 March 2019.

[6] Affidavit of Detective Sergeant Bauer, sworn 15 March 2019, para 1a, 40, 41, 48, 49, 54, 58 and Page 3.

[7] Affidavit of Detective Sergeant Bauer, sworn 15 March 2019.

[8] Annexure ‘D’ – Outline of Submissions on behalf of the Respondent.

[9] Annexure ‘D’ – Outline of Submissions on behalf of the Respondent.

[10] Annexure ‘D’ – Outline of Submissions on behalf of the Respondent.

[11] R v Rollason and Jenkins; Ex parte A-G (Qld) [2008] 1 Qd R 85 at [16].

[12] R v HAU [2009] QCA 165 at [37] – [41]. See also R v Cornwell [2009] QCA 294; R v BBU [2009] QCA 385; Grey v R (2001) 184 ALR 593; R v Colagrade [2018] QCA 108.

[13] R v Rollason and Jenkins; Ex parte A-G (Qld) [2008] 1 Qd R 85 at [21].

[14] Annexure ‘H’ – Outline of Submissions on behalf of the Respondent.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Julianne Toogood & Steven Toogood

  • Shortened Case Name:

    The Queen v Julianne Toogood & Steven Toogood

  • MNC:

    [2019] QDCPR 22

  • Court:

    QDCPR

  • Judge(s):

    Morzone QC DCJ

  • Date:

    05 Jun 2019

Appeal Status

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

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