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R v Turner[2020] QDCPR 108

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Turner [2020] QDCPR 108

PARTIES:

THE QUEEN

v

ELIZABETH ANN TURNER

(defendant)

FILE NO/S:

83 of 2020

DIVISION:

Criminal

PROCEEDING:

Pre-Trial Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 November 2020

DELIVERED AT:

Mackay

HEARING DATE:

29 October 2020

JUDGE:

Sheridan DCJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – DISCLOSURE OBLIGATIONS – PUBLIC INTEREST IMMUNITY – where defendant charged with offences against the Crimes Act 1914 (Cth) – where application made pursuant to s 590AA Criminal Code Act 1899 (Qld) – where defendant sought pursuant to s 590AQ(3) court direction for disclosure of unredacted version of document disclosed by the Crown – where Commissioner of the Australian Federal Police submitted disclosure of redacted material would be contrary to public interest – where in support of claim an open affidavit and submissions were filed and a confidential affidavit and submissions were prepared for the court’s consideration alone – where agreed court could receive and consider confidential affidavit and submissions subject to determination of legitimacy of claim – whether claim for non-disclosure of confidential affidavit and submissions legitimately made – whether disclosure of the redacted document is contrary to the public interest 

Crimes Act 1914 (Cth), s 35, s 43

Criminal Code Act 1899 (Qld), s 590AA, s 590AQ

Alister v R (1984) 154 CLR 404, applied.

R v Benbrika [2007] VSC 283 (Ruling No. 3), applied.

R v Francis (2004) 145 A Crim R 233, applied.

COUNSEL:

No appearance for the Crown.

S C Holt QC for the defendant.

M Nicholson for the Commissioner of the Australian Federal Police.

SOLICITORS:

Bosscher Lawyers for the defendant.

Australian Government Solicitor for the Commissioner of the Australian Federal Police.

Introduction

  1. [1]
    Pursuant to an indictment presented on 27 March 2020 the defendant was charged with one count of attempting to pervert justice pursuant to s 43(1) of the Crimes Act 1914 (Cth) and three counts of giving false testimony pursuant to s 35(1) Crimes Act 1914 (Cth).  The trial of the case before a jury has been set to commence on Monday, 2 November 2020 in the Mackay District Court.
  2. [2]
    On 16 October 2020, an application was filed on behalf of the defendant seeking, pursuant to s 590AQ(3) of the Criminal Code 1899 (Qld), a direction by the court for the disclosure of the unredacted version of a document disclosed to the defendant by the prosecution as part of the prosecution’s disclosure obligations.  The document was a letter from the Australian Federal Police (AFP) to the National Bureau of Investigation (NBI), Manila, dated 12 September 2017.
  3. [3]
    The AFP was the investigation agency responsible for arresting and charging the defendant and complied the brief of evidence for the prosecution for the trial. 
  4. [4]
    The application was mentioned before me on 21 October 2020.  I made orders for the filing and service of submissions and affidavits in support and the application was listed for hearing on Thursday, 29 October 2020.
  5. [5]
    At the hearing of the application, the Commissioner of the AFP (the Commissioner) was separately represented.  Surprisingly, there was no appearance by the Commonwealth Director of Public Prosecutions (CDPP).  Following an adjournment in the course of the hearing, counsel for the Commissioner indicated that he had been advised that the CDPP would make themselves available if the court required their assistance.
  6. [6]
    At the conclusion of the hearing, I made an order refusing the application, indicating I would subsequently publish my reasons.  These are my reasons; though publication of these reasons is prohibited until after the verdict, other than to the parties.

Background to the Charges

  1. [7]
    The particulars of count 1 are that the defendant attempted to pervert justice by assisting Markis Turner, her son, to flee Australia prior to his trial in the Supreme Court of Queensland relating to the importation and planned trafficking of not less than 71.6 kilograms of cocaine.  By way of summary, the defendant is alleged to have assisted her son by purchasing an ocean sailing yacht the “Shangri La” (the Yacht), arranging storage of the Yacht, insuring the Yacht, signing an application for the voluntary closure of registration of the Yacht, falsely stating that the Yacht had been “broken up”, arranging the launching of the Yacht, withdrawing cash which was provided to her son or used to aid him fleeing Australia and to remain at large thereafter and travelling with her son’s wife and children to Poland to remove them from the jurisdiction.
  2. [8]
    The particulars of counts 2 to 4 relate to the defendant having given sworn testimony in the Supreme Court at Brisbane in proceedings seeking the forfeiture of the surety given by the defendant.  It is alleged that the defendant on 21 April 2016 gave sworn evidence that the contents of her affidavit sworn 14 October 2015 was true and correct, she believed Markis Turner had committed suicide and she did not possess a mobile telephone during a road trip she undertook in Western Australia commencing on 19 or 20 August 2015.  It is alleged that all those statements were false.
  3. [9]
    The defendant intends to make admissions in the trial that Markis Turner is her son, the defendant had entered into a surety undertaking for the Supreme Court bail of her son, her son was committed to stand trial on 30 April 2013, Markis Turner and the defendant purchased the Yacht on 17 July 2013 with the defendant signing the declaration of transfer as buyer in her role as director of Rural Trade Services Pty Ltd, the indictment against her son was presented to the Supreme Court on 18 September 2013, on 20 April 2015 the trial of her son was listed to commence on 29 September 2015, the Yacht departed Keppel Bay Marina on 13 August 2015, on 21 August 2015 Markis Turner failed to report to the Mackay Police Station and a warrant was issued for his arrest, between 14 August and 27 November 2015 Markis Turner and his brother–in–law Piotr Wiacek departed Australia on board the Yacht, the Yacht berthed in the Philippines on 27 November 2015, Markis Turner was arrested in the Philippines on 15 September 2017, on 18 February 2016 the defendant and her husband reported to police Markis Turner as missing and on 21 November 2016 the defendant cancelled the Yacht’s insurance policy on the grounds that the vessel had been sold.

The Document

  1. [10]
    The document the subject of the application was a letter from the AFP to the NBI, Manila dated 12 September 2017.  The unreacted parts of the letter contained a request from the AFP to the NBI, Manila, to conduct covert enquiries including surveillance to identify Markis Turner’s current whereabouts and residence in order to facilitate the planned extradition and arrest of Markis Turner.  The letter explained that Markis Turner was the principal target of AFP Operation “Chance” which resulted in the arrest of Markis Turner and three Colombian nationals in Australia for their involvement in the importation and planned trafficking of not less than 71.6 kilograms of cocaine.  It also noted that Markis Turner had been granted bail whilst awaiting trial and had subsequently fled Australia, approximately six weeks before his trial.  It was stated that “Turner is believed to have fled Australia aboard a vessel identified as the Shangri La, AMSA registration 859210.”
  2. [11]
    In making disclosure, the prosecution (on instructions from the Commissioner) had redacted parts of the letter on the grounds that it considered the disclosure would be contrary to the public interest.  Written notice was given to the defendant of the claim.
  3. [12]
    The parts redacted were certain text within the body of the letter and the final two pages of what appeared to be attachments to the letter.

Submissions in application

  1. [13]
    In the written submissions filed on behalf of the Commissioner, the claim for public interest immunity (PII) was confirmed over the majority of the redacted material except in one respect.  In the material filed in response to the application, one additional part of the text of the letter was disclosed.  The additional part of the letter which was unredacted disclosed the terms of the request by the AFP to the NBI. 
  2. [14]
    In support of the Commissioner’s position, both an open affidavit and a confidential affidavit of Commander Andrew Donoghoe was sworn.  The open affidavit was served on the parties.  The confidential affidavit and submissions were prepared for the court alone, and not served on the parties and not provided to the court prior to the hearing.  Public interest immunity was also claimed over the confidential affidavit and submissions and their return was sought at the conclusion of the hearing.
  3. [15]
    In his open affidavit, Andrew Donoghoe swore that the AFP were unable to particularise the nature of the PII claim in the open affidavit.  It was stated, “To do so would defeat this very claim of public interest immunity and cause prejudice to the public interest which the claim seeks to avoid.”  Mr Donoghoe swore that he had been a member of the AFP for 25 years, he currently held the rank of Commander of Investigations, Northern Command within the AFP and he had experience in the making of PII claims on behalf of the Commissioner.  Mr Donoghoe swore that he considered the disclosure of the document subject to the PII claim would be “extremely damaging and prejudicial to the public interest, for the reasons which he set out in his confidential affidavit”.
  4. [16]
    Mr Donoghoe attached to his open affidavit, email correspondence between the solicitors for the Commissioner and the solicitors for the defendant in which the solicitors for the defendant were requested to outline the relevance of the material to the defendant’s case.  As appears from the email attached to his open affidavit, the solicitors for the defendant responded to say, amongst other things: “It is our position that any information surrounding the flight of Markis Turner and/or his movements is obviously relevant to these proceedings.”
  5. [17]
    In written submissions filed on behalf of the defendant, it was submitted that if the letter contained details of the trip, the Yacht, the planning and the participants, they would be matters centrally relevant to the issues in the trial.  It was submitted that if the two final redacted pages, which it was submitted would appear likely to be photographs given that the first of those three pages were photographs, were photographs of others involved in any aspect of the planning or execution of the trip, then those pages would be a very significant matter of relevance to the defence in the conduct of the trial.
  6. [18]
    In the written submissions, it was submitted that the defendant did not consent to the application proceeding on a secret basis, noting that the Commissioner had sought to proceed without even identifying the head of PII upon which he relied.  Objection was taken to the court receiving the confidential affidavit and submissions.
  7. [19]
    In oral submissions, a request was maintained for the Commissioner to identify the head of PII but it was accepted that in order for the court to determine the application, it was appropriate for the court to receive the confidential affidavit and submissions which material included the unredacted version of the letter.  In doing so, however, it was submitted that the court must determine the legitimacy of the claim for non-disclosure of the affidavit and submissions.
  8. [20]
    The matter proceeded with the confidential affidavit and submissions being received by the court.  The court was adjourned to enable the consideration of that material by myself in chambers.
  9. [21]
    At the conclusion of that consideration it was agreed that the confidential affidavit and submissions be placed in an envelope marked, “Not to be opened without an order of a Judge of the District Court or the Court of Appeal” and that my signature be placed across the seal of the back of the envelope.  The envelope was agreed to be returned to the Australian Government Solicitor for safe keeping.

Consideration

  1. [22]
    The principles guiding the exercise of the court’s approach to an application for the production of documents the subject of a PII claim were not in dispute.
  2. [23]
    Section 590AQ of the Criminal Code Act 1899 (Qld) provides that:
  1. “(1)
    The prosecution is not, for a relevant proceeding, required under this chapter division to disclose to the accused person a thing other than is 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
  2. (ii)
    is not required to disclose the thing to the accused person other than is 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. prejudice the security, defence or international relations of Australia; or
    2. damage relations between the Commonwealth and a State or between 2 or more States; or
    3. facilitate the commission of another offence; or
    4. prejudice the prevention, investigation or prosecution of an offence; or
    5. prejudice the usefulness of surveillance or other detection methods; or
    6. 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. cause unlawful or dishonest interference with potential witnesses; or
    8. 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.
  1. (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.
  1. (5)
    In deciding whether to make a direction, the court may inform itself in any way it considers appropriate.
  1. (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;
  1. (b)
    the nature of the offence;
  1. (c)
    the likely effect of disclosing the thing and how publication of the thing may be limited;
  1. (d)
    whether the substance of the thing has already been published.
  1. (7)
    In this section—
    "State" includes a Territory.”
  1. [24]
    In Alister v The Queen,[1] Gibbs CJ expressed the test to be applied, when determining whether a claim for public interest immunity should succeed, in the following passage:

Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates.  The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration –i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence.  The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”[2] 

  1. [25]
    Gibbs CJ referred to a different approach depending on whether the proceedings were civil or criminal, commenting:

“Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial p(see Sankey v. Whit/am (20)), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings.”[3]

  1. [26]
    In R v Francis,[4] the New South Wales Court of Appeal on an appeal against a ruling upholding the claim for privilege, considered that it was open to the court to inspect the documents and consider confidential submissions in order to make the necessary evaluation.  In dismissing the appeal, the court observed that the production of documents will not be required, although relevant and admissible, if it would be injurious to the public interest to disclose them.
  2. [27]
    In Francis, a confidential affidavit and submissions had been permitted to be filed and as a result, as the court noted, the applicant was in an obviously awkward position and it was difficult for the court to evaluate the importance to the applicant’s case of the material which it had before it.  Nevertheless, the court observed that it was not readily apparent that the documents had any significance or importance that would assist in the resolution of the issues at the trial, as far as those issues had been explained and gave no indication, on their face, that they would afford any assistance to the applicant.  The court found the contents of the confidential affidavit persuasive and concluded that more harm would be done to the public interest by disclosure than would be done by its being withheld.
  3. [28]
    In R v Benbrika,[5] Bongiorno J in considering such a claim observed, “The competing public interest in this case are the interests in a fair trial for the accused on the serious charges facilitated by their having access to all relevant material …” In considering the application, Bongiorno J had received and considered a confidential affidavit.
  4. [29]
    Based on the contents of the confidential affidavit and submissions placed before me, and with the benefit of having reviewed the unredacted document, I consider that the claim for confidentiality is legitimately made and the balancing exercise as required by the application of the authorities to which I have referred is heavily in favour of maintaining the confidentiality sought by the Commissioner.
  5. [30]
    A relevant factor is the absence of any obvious usefulness of the material to the defendant in her defence of the charges given that the letter was sent in September 2017, in the vicinity of two years after it is admitted that Markis Turner fled from Australia, and the subject matter of the letter was a request to assist in finding Markis Turner.
  6. [31]
    If, during the course of the trial it should be demonstrated otherwise, then I retain a power under s 590AA(3) to reopen this ruling.

Postscript

  1. [32]
    Following the giving of the ruling, counsel for the defendant placed on record that if the letter contained any photographs revealing the identity of a third person, other than Markis Turner or Piotr Wiacek, aboard the Yacht then that would be a matter highly relevant to the defendant.  Following a further adjournment and a closed court session with counsel for the Commissioner to discuss the further submissions made by counsel for the defendant, on instructions from the AFP, I communicated to counsel that I could comment that the redacted material does not relate to the concerns he had raised in his final submissions.

Footnotes

[1](1984) 154 CLR 404 (Alister).

[2]Alister, 412.

[3]Alister, 414.

[4](2004) 145 A Crim R 233 (Francis).

[5][2007] VSC 283 (Ruling No. 3).

Close

Editorial Notes

  • Published Case Name:

    R v Turner

  • Shortened Case Name:

    R v Turner

  • MNC:

    [2020] QDCPR 108

  • Court:

    QDCPR

  • Judge(s):

    Sheridan DCJ

  • Date:

    04 Nov 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QDCPR 10804 Nov 2020Pre-trial application seeking disclosure of material subject of claim of public interest immunity; claim for confidentiality legitimately made and balancing exercise heavily in favour of maintaining confidentiality; application refused: Sheridan DCJ.
Primary Judgment[2020] QDC 28110 Nov 2020No-case submission on count of attempting to pervert course of justice; contended that Crown's particulars do not rise above merely preparatory conduct; application refused: Sheridan DCJ.
Primary JudgmentDC83/20 (No citation)12 Nov 2020Date of conviction after trial (Sheridan DCJ and jury) of attempting to pervert course of justice and three counts of giving false testimony; Crown case that accused helped son flee jurisdiction and lied in proceedings to recover surety for bail; accused gave evidence and real issue at trial was her credit; trial judge excluded evidence from witness that accused had told her that she believed that her son was dead.
Appeal Determined (QCA)CA282/20 (No citation)15 Sep 2021Appeal allowed, convictions quashed, retrial ordered, reasons to be published at later date: Sofronoff P, Bowskill SJA, Freeburn J.
Appeal Determined (QCA)[2021] QCA 27007 Dec 2021Reasons for orders made on 15 Sep 2021; evidence admissible to prove accused’s state of mind; proviso cannot be applied, accused’s evidence not so glaringly improbable that court can reject it out of hand and weight of excluded evidence a matter for jury: Sofronoff P (Bowskill SJA and Freeburn J agreeing).

Appeal Status

Appeal Determined (QCA)

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