R v Dianne Barbara Lyons[2023] QDCPR 48

DISTRICT COURT OF QUEENSLAND

1. Introduction

1. [1]
   This is an application by the applicant/defendant Dianne Lyons, pursuant to Criminal Code s 590AAA, asserting that the Crown has not complied with a direction about disclosure of documents.  These proceedings have a long and torturous history, with a 14-day trial concluding on 22 August 2017 with the applicant’s conviction on eight counts of fraud. 

2. [2]
   The applicant’s appeal was successful, the guilty verdicts were set aside, and a retrial was ordered on all counts.^[1]
3. [3]
   The decision sets out in detail the prosecution case (R v Lyons [2021] QCA 136, [67] – [104]), and the appellant’s case (R v Lyons [2021] QCA 136, [105] – [113], [116]).
4. [4]
   The current hearing before me is, in effect, a rerun of applications made prior to this first trial, and the outcome of those applications has been summarised by Wilson J in the appeal decision at R v Lyons [2021] QCA 136, [49] – [52].  It is, in my view, useful to read those paragraphs into the record because they provide some background to the current proceedings.

   3. [49]
      The appellant’s reliance on “the missing”, whether it be transcripts or other documents, was a common answer she used in response to the prosecution case at the trial and in this appeal.  In addition, the appellant tended to assert that any emails or other documents that were contrary to her case had been forged or otherwise manipulated.

   3. [50]
      The appellant submitted that the prosecution failed to comply with its disclosure obligations under s. 590AB of the Criminal Code (Qld) (“Criminal Code”).  In particular, the appellant alleges that the police and prosecution destroyed or lost the “sent emails” from Leisure Freight’s computer and “box 10” of the police evidence.  The appellant also alleges that the prosecution filed an affidavit by the police electronic evidence in EEU regarding the “sent” emails on the Leisure Freight computer, knowing that it was false.

   3. [51]
      These allegations were the subject of several pre-trial hearings in the District Court.  I note, in particular, that Reid DCJ in a pre-trial hearing on 15 June 2017, after hearing from a number of witnesses, concluded that he could not be satisfied that there were further documents in the possession of the prosecution that had not been disclosed.  His Honour stressed that police officers had sworn on oath that they had provided all relevant documents.  His Honour concluded that, even if inadvertent mistakes have been made in the disclosure process, he was not persuaded that the police were malevolently hiding documents from the appellant.

   3. [52]
      The prosecution has complied with their disclosure obligations.  Nothing that the appellant has submitted, or presented, demonstrated that the prosecution had not complied with their disclosure obligations.

Current Situation

5. [5]
   The application came before Judge Rinaudo most recently on 16 September 2022,^[2] and Judge Rinaudo required the applicant to provide a list of relevant documents required within one month.^[3] 
6. [6]
   At an appearance before Judge Smith on 15 December 2022, the Crown handed over a USB stick, prepared on the basis of an attendance by the applicant with the police officers Julie Smith and Kevin Mount on 7 September 2022.^[4] 
7. [7]
   In an affidavit tendered at the proceedings today,^[5] the applicant asserts that it is her belief that there are still documents that she believes exist or existed, but have not been provided.^[6] 
8. [8]
   In particular, Ms Lyons identifies concerns that her PC and server have not been turned on since 1 August 2014, and states her belief that “the chances of them now booting up are non-existent”.^[7] 
9. [9]
   Although I understand and appreciate the applicant’s concerns, the test that this court has to apply is set out in the provisions of Criminal Code s 590AAA(1) which is in these terms:-

“If it appears to the court that a person (the “directed person”) has not complied with a direction given under section 590AA(2)(ba), the court may order the directed person to file an affidavit, or give evidence in court, explaining and justifying the failure to comply.”

10. [10]
    The statement of Kevin Mount,^[8] attests to the process he followed to locate “all documents, sound files, emails and images” with the identified search terms “McBean, ill, cross, Barbagallo, Johnson, Wallemberg, Rolle, bird, BBC, Holden and US shipping”, the copying of all such files meeting that criteria,^[9] and the provision of the hard drive to the DPP,^[10] which was then handed to the applicant on 15 December 2022.

11. [11]
    In the circumstances, it follows that I am not satisfied, pursuant to Criminal Code s 590AAA, that there has been noncompliance with a direction under Criminal Code s 590AA(2)(ba), and accordingly, I decline to make any further order pursuant to Criminal Code s 590AAA(1).

12. [12]
    In the circumstances, the application by the defendant/applicant for orders pursuant to Criminal Codes s 590AAA is refused.
13. [13]
    The defendant may well have available to her other avenues in respect of these proceedings, but that, in my view, would require a separate and specific application.
14. [14]
    Given the stage that this matter has reached, it should now be listed before the District Court mention judge on a mutually convenient date, so that a date for re-trial can be allocated.  Any issues in respect of any further applications can be raised with the mention judge on that future date.

Order

15. [15]
    I make the following order: 

3. (1)
   Application refused.