R v Hutson (Ruling No. 4)[2024] QDCPR 65

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant faces trial on the following charges:

   1. Dishonest use of position with intention of gaining an advantage – s. 184(2) of the Corporations Act 2001 (Cth). (Counts 1 and 3).
   2. Failure to exercise powers or discharge duties for a proper purpose – s. 184(1) of the Corporations Act 2001 (Cth). (Count 2).
   3. Fraud as a director to the value of $30,000 or more – s. 408C(1)(a) of the Criminal Code (Qld). (Count 4).
   4. Attempting to pervert the course of justice – s. 140 of the Criminal Code (Qld). (Count 14).

2. [2]
   Those offences are alleged to have occurred on various dates between 10 July 2015 and 10 April 2016. Counts 5 – 13 inclusive have been discontinued.
3. [3]
   These proceedings have had a long history. It is sufficient for present purposes to note the following, which is not an exhaustive list:

The objection to the prosecution adducing evidence-in-chief from Ms Weeks and Mr Heading at a pre-trial hearing.

4. [4]
   After hearing submissions on the power to permit, and the appropriateness of allowing, the prosecution to call Ms Weeks and Mr Heading as witnesses on the “Basha hearing” when the defendant no longer required them for cross-examination, I upheld the objection. These are my reasons for so doing.
5. [5]
   The prosecution’s decision to call Ms Weeks and Mr Heading was made before both Counsel currently briefed by the CDPP were engaged. They have not sought to alter that position, and the defendant wants the witnesses to be called at trial.
6. [6]
   The consent orders made on 18 June 2024 required that, amongst others, Ms Weeks and Mr Heading “be subpoenaed and made available for cross-examination by the legal representatives for Ms Hutson” on a stated date and in respect of certain nominated topics. In effect, they were required to attend for the purposes of a so-called “Basha hearing” in an effort to ensure there is a fair trial. There was no express authorisation within the terms of those orders for evidence-in-chief to be adduced.
7. [7]
   The defendant submits that because the prosecution have not brought an application to call the witnesses for evidence-in-chief and because the orders were for cross-examination only, the prosecutor cannot ask the witnesses any questions, other than identifying them, at a Basha hearing. Those submissions cannot be accepted.
8. [8]
   Although there is an absence of authority cited by both parties, I am not persuaded that the granting of a Basha hearing in favour of the defence precludes the prosecution from adducing evidence-in-chief on the same topics for which leave was granted, where the defendant maintains a desire to cross-examine the witness. The purpose of the hearing is to understand what evidence the witness can provide. There is no reason to limit it to what evidence the witness can provide only under cross-examination. Whether the opportunity is taken up is a matter for the prosecutor.
9. [9]
   Further, a filed application by the prosecution has not caused any injustice. The point is that the prosecution notified the defence of its intention to examine on the order already granted. The defendant was properly put on notice and the course taken has not resulted in any relevant unfairness, as evidenced by the fact that the defendant was able to fully argue the matter on its merits. This was not a notification that happened on the doorstep of Court, nor in the course of argument without notice. I cannot detect any procedural unfairness in the issue being determined as it was.
10. [10]
    At the time the defendant notified the CDPP of her election to not cross-examine Ms Weeks and Mr Heading, they had not provided written statements to investigators or the CDPP. That is still the case, and the expectation is that neither will. In short, both are not co-operating with the prosecuting authorities. Both had however been separately examined pursuant to the compulsory powers under s. 19 of the Australian Securities and Investments Commission Act 2001 (Cth) in 2016, and so there are proofs of evidence as to their respective recollections at that time.
11. [11]
    Prior to the enactment of s. 592A of the Criminal Code, later renumbered to become s. 590AA, an implied power was afforded to every judge of this Court to do anything that was necessary for the effective exercise of the Court’s express jurisdiction including a power, even before trial, to ensure that justice was properly administered in proceedings that had been commenced in it.^[3] However, subject to some specific statutory exceptions which are not applicable here, there was no general power to receive evidence prior to the commencement of the trial, that is prior to arraignment.^[4] The defendant has not been arraigned.
12. [12]
    The legislative response to those restrictions is now found at s. 590AA. It is uncontentious that a Basha hearing may be conducted in this State. The express power can be found at s. 590AA(2)(c), which is a discretionary power that is not limited to favour the defendant only. Whether the exercise of the power in favour of the prosecution is appropriate will be fact dependent. It is not a procedure that will be available to the prosecution in the usual course of events, and there must be some feature that justifies taking that unusual course. Reference to some cases will illustrate the point.
13. [13]
    Senior Counsel for the defendant properly informed the Court of a decision of the Victorian County Court where it was held that a Basha style hearing could be conducted on the prosecution’s application. His recollection was that it turned on the legislative landscape, but that the presiding judge also considered that there was a general implied power. I am unable to locate a record of that decision, but two other authorities, one of which I am told was relied on by that Victorian judge in reaching her decision, illustrate the reasons for my conclusion.
14. [14]
    Whealy J in R v Ronen and Ors^[5] considered that the power existed in certain cases. Obviously, he was not exercising the express power at s. 590AA(2)(c) of the Criminal Code. While the defendant alluded to the possibility that his Honour was exercising an inherent power available to the Supreme Court, and therefore one not held by this Court, the point is moot given the express power at s. 590AA(2)(c). The issue is the appropriateness of the exercise of the power.
15. [15]
    In that case, each of the subject witnesses had voluntarily provided a written statement to investigators, but one declined to attend a conference with prosecutors prior to the committal hearing unless compelled to do so. The other witness was not required for the committal hearing, but subsequently declined to attend a conference unless it was “compulsory”.
16. [16]
    The first of them had received correspondence from solicitors for one of the defendants outlining what his Honour described as “a threat” of legal action should he reveal information in his testimony that was asserted to be confidential. The other witness had been a long-time employee of one of the defendants who had been involved with financial transactions concerning a number of businesses. These transactions were integral to the prosecution case. His Honour inferred that, although there was no direct evidence as to why she had refused to co-operate with the prosecuting authorities, “this is not simply a situation where a citizen with no connection with either the Crown or any of the accused is simply unwilling to assist the prosecution”.^[6]
17. [17]
    In making the necessary orders to facilitate the prosecution calling both witnesses in advance of trial to adduce evidence-in-chief, his Honour did not accept that the proposed course involved the Court becoming “a coercive instrument involved in the Crown’s investigatory tasks”.^[7] He further held that the Court had a power in appropriate circumstances to allow a preliminary hearing when the interests of justice will be met by such a course.
18. [18]
    In R v Serna,^[8] Mullins J (as her Honour then was) held that the course proposed by the prosecution in this case was open in the circumstances of that matter. Mr Serna was being sentenced for his role in a large-scale drug importation. He had given an account of events in an investigatory interview with police and the prosecution intended to call him at trial. He was called by the prosecution at a pre-trial hearing, with the consent of all defendants, to ascertain what if any evidence he would give at trial. When called, he refused to testify.
19. [19]
    The hearing before her Honour was for him to be sentenced for contempt of court, and the point was taken by Mr Serna as to whether there was a power to conduct the pre-trial hearing at which he refused to testify. Her Honour, in ex tempore reasons, concluded there was.
20. [20]
    Her Honour found that, in the circumstances, there was no impediment to the use of the pre-trial procedure for examination and cross-examination on the pre-trial hearing and for the subsidiary purpose of ascertaining if he would testify at all. Importantly, in my view, her Honour stated:

“There is no logical reason why a Basha enquiry should not be used in the circumstances where it benefits both the Crown and defendants to ascertain the ambit of the evidence that the witness is likely to give at the trial in circumstances where the prosecution has been unable to obtain a statement from the witness, but otherwise knows that the witness has information that is of relevance to the trial”. (underlining added)

21. [21]
    Her Honour’s observation was given in the context of the agreement by all parties to the trial that Mr Serna be called pre-trial. While it is possible that calling the witnesses in this matter at a pre-trial hearing will benefit both parties, the election by the defendant to no longer require their attendance for cross-examination must be assumed to be on legal advice and reflects a conclusion either that it will not be for her benefit or that she no longer wishes to take advantage of any benefit it may offer.
22. [22]
    In any criminal prosecution there are three fundamental and interrelated considerations. First, the decision as to which witnesses are to be called rests solely with the prosecution, albeit in light of the responsibility of ensuring that the prosecution case is presented fairly.^[9] Second, the decision as to what charges are laid rests solely with the prosecution.^[10] Thirdly, the prosecuting authority cannot commence a prosecution unless satisfied that there are reasonable prospects of conviction on the available evidence.
23. [23]
    There is no evidence to suggest that, prior to commencing the prosecution, the issue of whether either or both of Ms Weeks and Mr Heading would be called as witnesses was unresolved. It can therefore be assumed that a conclusion had been reached that there were reasonable prospects of proving the guilt of the defendant without their evidence. If it be thought that the assumption is on shaky ground, it is a strong inference by the time the indictment was presented, and inevitable by the time the prosecution sought a trial listing over the resistance of the defendant.
24. [24]
    In those circumstances, the prosecution must be taken to have accepted the risk that these two witnesses might not provide a recent proof of evidence before being called, but yet decided they would be called. The two witnesses can relevantly contribute, but are apparently not crucial to the prosecution case.
25. [25]
    Mr Heading is referred to in some material as the ex-husband of the defendant. On the prosecution case, they were at least on speaking terms at the time of the offending, but there is no evidence as to when that separation occurred and the nature of the relations between them at the present time so as to explain his reluctance to co-operate with the prosecuting authorities. Similarly, Ms Weeks was clearly known to the defendant on the prosecution case, but there is no evidence of any recent relationship that may explain her reluctance to co-operate. To adopt and contrast the terminology in Ronen, they both should be considered to be citizens with no recognizable connection to the parties who are unwilling to assist the prosecution.
26. [26]
    The present circumstances differ markedly from those in Ronen, and the objection by the defendant to the examination is a relevant point of distinction from Serna. It is not an appropriate use of this power to allow the prosecution to compulsorily obtain a proof of evidence from each in those circumstances.
27. [27]
    I accept that, at a practical level, this ruling may make it difficult, if not impossible, to know what each of those witness’ present recollection is of events the best part of nine years ago but, again, that is a risk that must be taken to have been accepted by the decision to call them in the absence of any recent proofs of evidence from them. Ultimately, it is a decision for the prosecution whether any evidence is to be adduced from either of them at trial, other than having them identify themselves.

The application for a disclosure direction order and the associated application to set aside or narrow a subpoena.

28. [28]
    The defendant has applied for orders requiring disclosure of:

1. An unredacted copy of the email dated 19 May 2017 and barcoded GEM.003.0023.0170 (“GEM 0170”);
2. A copy of the email dated 12 October 2017 and barcoded GEM.0003.0023.0007 (“GEM 0007”);
3. All draft witness statements (in exact native form); and
4. All notes (including diary entries) and records of communication with prosecution witnesses, including but not limited to the document titled R v Jennifer Joan Hutson Witness List + ASIC Contact Log 2024.docx.

The redacted emails - generally

29. [29]
    As a result of being informed that ASIC claimed legal professional privilege (“LPP”) over redacted portions of GEM 0170 and GEM 0007, as did the CDPP in respect of the redacted portion of GEM 0007, the defendant issued a subpoena requiring ASIC to produce unredacted copies of both, so that the issues could be dealt with at the same hearing, and without causing any delay to the listed trial.
30. [30]
    The service of the subpoena has been met with an application by ASIC to set it aside or to narrow its scope,^[11] as well as costs.^[12] Although ASIC’s claim is strictly a partial LPP claim concerning parts of each whole email, given that the defendant has been provided with a redacted copy of each, and for ease of reference, I will refer to them as LPP claims over the respective documents. In respect of GEM 0007, the CDPP did not supplement ASIC’s submissions and can be taken to have adopted a passive position, thereby allowing ASIC to make the argument with respect to this document.
31. [31]
    All three parties are agreed that the respective documents cannot be disclosed in fully unredacted form if the corresponding LPP claim is upheld.^[13] It is therefore convenient to consider that issue first, in respect of each document.
32. [32]
    The principles concerning LPP were accurately summarised by Williamson QC DCJ in R v Hutson.^[14] I adopt that summary, without repeating it. Ultimately the defendant’s submissions were, in effect, that the redactions meant that it could not be known whether the claim had been made properly, and the Court was invited to read the unredacted versions to satisfy itself that they were.^[15] That was not opposed.

The redacted email - GEM 0170.

33. [33]
    LPP is claimed over this document on the basis that the email is a communication of confidential legal advice that had been received by ASIC from the CDPP. It is submitted that it was provided for the dominant purposes of providing legal advice prior to charging and for an anticipated criminal prosecution.
34. [34]
    A communication of legal advice between the CDPP and ASIC is capable of founding a LPP claim, where it is made for the dominant purpose of giving or receiving legal advice.^[16] The defendant did not contend otherwise, but the circumstances under which it is given will obviously be an important consideration. Further, it was not contended that any privilege that attaches to the original communication to ASIC does not apply to a subsequent communication of, or perhaps part of, the original communication by officers within ASIC. The defendant was right not to take such a point in this case, however it will again be dependent on the whole of the circumstances attending to the subsequent communication.
35. [35]
    As is apparent in its redacted form, this email was authored by Mr Bastianon and sent to Mr Paleologos, each of whom are lawyers and are involved in ASIC’s investigation in the present matter. From the unredacted portions alone, the email is concerned with steps thought desirable to be taken in the furtherance of correspondence with the CDPP in relation to the “G8/Hutson matter” and concerning the witness Ms Weeks.
36. [36]
    On reading the unredacted version of this email, I am satisfied that the redacted portion was created for the dominant purpose of communicating legal advice received from the CDPP. Given the timing and content of the advice, I accept that it was provided for the purposes of anticipated litigation. From the balance of the evidence, I am also satisfied that the advice was received in the context of a legal advisor and client relationship. Privilege has been properly claimed in respect of this document and an order setting aside or narrowing the subpoena is needed. The nature of that order depends on the consideration of GEM 0007.

The redacted email - GEM 0007.

37. [37]
    As revealed in ASIC’s written submissions, LPP is claimed over this document on two bases because it in fact involves two emails in the one email trail. The redaction is so extensive that that is not apparent at face value.
38. [38]
    The email earlier in time is said to be a communication of confidential legal advice provided by the CDPP to ASIC, for the dominant purpose of giving legal advice concerning then pending litigation. It is submitted that it attracts advice privilege.
39. [39]
    The later email is said to be a confidential communication between CDPP and ASIC employees involved in the conduct of the prosecution of the defendant. It is submitted that it can be seen from its content that it was for the dominant purpose of the ongoing prosecution and in the context of the lawyer client relationship between the CDPP and ASIC. It is submitted that it attracts litigation privilege.
40. [40]
    The entirety of the first email in time has been redacted, so nothing of any assistance can be gleaned from it in that form. However, reading the unredacted version reveals that, in its body, it is clearly advice provided by a lawyer acting on behalf of the CDPP to its client, ASIC, in respect of then pending litigation.
41. [41]
    However, the redaction is too extensive. The redaction includes the identity of the sender and the numerous recipients as well as the date and time of sending. These pieces of information will, I expect, rarely be the subject of a valid LPP claim and, if revealed, can provide important context to determine if an argument is necessary at all. Usually, the fact of communication is not privileged; it is usually the contents of the communication which is privileged. I accept that the contents of the subject line of the email may, or may not, be the subject of a valid LPP claim, depending on its contents. These are not claims based on public interest immunity and the complete redaction of an entire email can only arouse suspicion and is susceptible to causing needless litigation about the merits of the claim.
42. [42]
    The names of the senders and recipients of the email, the date and time of its issue and the subject matter should not have been redacted in this case. As much is apparent from the willingness of ASIC to reveal those details (apart from the time of its issue) in the openly available affidavit of Mr Caridi filed on this hearing.^[17] Had I considered that those portions of the email were the subject of a valid LPP claim, I would have held that the claim was waived by filing Mr Caridi’s affidavit.
43. [43]
    Further, the redaction of the signature block and the templated footers at the end of the email cannot be the subject of a valid LPP claim in this case, although nothing turns on it.
44. [44]
    As for the later email in time, I have read the unredacted version and I accept that it is the subject of a valid LPP claim on the basis of litigation privilege. It is a communication between a lawyer in the CDPP with a person in their client organisation, ASIC, who is involved in the conduct of the litigation and the communication is concerned with matters pertaining to the conduct of that litigation. The claim of LPP in respect of that email is properly made.
45. [45]
    It can again be noted that the redaction of the signature block and the templated footers at the end of the email cannot be the subject of a valid LPP claim in this case, although again nothing turns on it.
46. [46]
    Strictly, it is open to me to order the production under the subpoena of this document with the redactions amended to accord with the above observations; that is, to narrow the subpoena. However, where all of that information is otherwise known to the defendant, the appropriate course is to accede to the application to set it aside in full.

The redacted emails – costs.

47. [47]
    In that event, ASIC seeks its costs of the hearing on the standard basis using the UCPR scale. Ordinarily, costs follow the event, but a discretion remains to be exercised.
48. [48]
    The defendant opposed a costs order, with arguments made in advance of my reasons. It was essentially argued that, if the documents were ruled to not be disclosable, then the subpoena would not have been issued in the ordinary course. If they were disclosable, but were prevented from being disclosed because of LPP, then the subpoena would not have been issued. It is argued that the subpoena was only issued at this stage in order to ensure there was sufficient time for the issue to be resolved before trial.
49. [49]
    Both documents were disclosable. As much is apparent from the fact that they were each disclosed in redacted form.
50. [50]
    Had matters taken the more usual course, I expect that ASIC would have appeared to claim LPP over the redacted portions, but without an application to set aside or narrow a subpoena. In that event, an order for costs was very unlikely. Accepting that the different course was taken to ensure a lack of interference with the trial listing, it is appropriate to maintain that position and not order costs, even though ASIC has succeeded on the application.

The draft witness statements.

51. [51]
    All draft statements of witnesses, which had been shown to the respective witness, have been disclosed to the defendant. What is sought are other iterations of those statements which had been produced but not shown to the respective witnesses.
52. [52]
    The application was initially opposed by the prosecution. However, after oral submissions had taken their course, Senior Counsel for the prosecution informed me that he had received instructions that, given the matters raised in argument, he was instructed to disclose all of the documents the subject of the application, subject to any claim of LPP being made by ASIC. I subsequently ordered that any such claim must be notified by way of filing and serving an application for a ruling on or before 4 November 2024.
53. [53]
    Accordingly, there is now no dispute on this topic that requires a ruling.

All notes and records of communications with witnesses, including the witness list and contact log.

54. [54]
    The submissions in this aspect were limited to the disclosure of the document entitled R v Jennifer Joan Hutson Witness List + ASIC Contact Log 2024.docx (“the witness contact log”), as the prosecution has stated that all other material has been disclosed. The prosecution contends that it is not disclosable “because the document is logistical in nature and therefore does not meet the disclosure test”.^[18] It is also submitted that it is not required as the same information has been disclosed, albeit in different formats.
55. [55]
    There is no dispute that disclosure of the witness contact log has been sought by the defendant. It is also not in contest that the conduct of the investigation by ASIC officers, including their contact with some witnesses, will be a focus of the defence case at trial.
56. [56]
    The defendant frames her submissions in terms of both the prosecution’s statutory disclosure obligations in the Criminal Code,^[19] and its common law disclosure obligations. There is an issue whether the statutory scheme applies where the investigation and the commencement of the prosecution has been undertaken other than by a police officer. I consider it does for the reasons that follow, and therefore it is unnecessary to consider the obligation under the common law.
57. [57]
    The fundamental statutory disclosure obligation is found at s. 590AB, which refers in part to things “in the possession of the prosecution”. The meaning of that phrase is defined at s. 590AE and, broadly, refers to things physically in the possession of the prosecutor or things the “arresting officer” can obtain. Such a person is, by the definition at s. 590AD, a police officer. Here, the investigation and charging was undertaken by ASIC investigators, not police officers, and the witness contact log is not in the physical possession of the prosecutor.
58. [58]
    However, the Commonwealth Director considers that no distinction should be drawn between things in the possession of the investigating agency and those the CDPP holds.^[20] In those circumstances, the CDPP should be taken to be in possession of the witness contact log, and hence the disclosure obligation applies if the log is disclosable under the legislative scheme.
59. [59]
    The disclosure request was, in effect, made under s. 590AJ(2)(f). The defendant submits that the log might reasonably be expected to assist the defendant in her defence as it will reveal the extent and timing of contact between the various witnesses and investigators. That must be seen in light of the attack on the propriety of the conduct of the investigation generally, and the evidence pointing to possible changes in certain witness accounts.
60. [60]
    The obligation arising from a request under s. 590AJ(2)(f) was considered in detail in R v Rollason and Jenkins; ex parte Attorney-General.^[21] To be disclosable, the thing need only be relevant to the proceeding, not relevant to the issues in the proceeding, and a narrow view should be avoided of what “would tend to help the case for the accused person”. Further,

“…material, which may serve no purpose other than to provide an accused with as full an appreciation of the provenance of the charge which he or she is required to meet as is consistent with the public interest, must be disclosed upon request by the accused.”^[22]

61. [61]
    The witness contact log meets that description, and so is disclosable. That the prosecution may consider it to be logistical in nature does not change the legitimacy of the requested disclosure. But is the prosecution relieved of that obligation because the same information has been earlier disclosed in a different format?
62. [62]
    Section 590AN relieves the prosecution of the obligation to disclose “anything the accused person … already possesses or has already been given”. The issue is whether “anything” for the purposes of that section, and in the present circumstances, refers to the witness contact log itself, or the information contained within that log.
63. [63]
    While I accept there are credible arguments to the contrary, I consider that the obligation is to disclose a copy of the witness contact log itself. Broadly speaking, the scheme of Chapter 62, Chapter Division 3 requires the disclosure of a thing, a copy of a thing or a notice of a thing. While the term “thing” is not defined for these purposes, and it potentially has a wide range of meanings in everyday parlance, its more natural meaning in context is that it is the physical thing, rather than the information contained within a physical thing.
64. [64]
    Experience shows that while many defendants, upon being informed that the requested item contains the same information as that which has already been disclosed, will not press the request, they are entitled to press it. That is what this defendant has done. It undoubtedly creates some burden on the prosecution and the investigating agency, but that is a burden the legislature has decided to impose on those bodies.^[23]
65. [65]
    The defendant is entitled to a copy of the witness contact log. That part of her application succeeds.

Individual objections to the admissibility of evidence.

66. [66]
    There was expected to be objections taken to the admissibility of certain aspects of the evidence intended to be adduced at trial. At one point, those objections numbered 643. None were argued. I am informed that the parties have reached agreement as to the vast majority, leaving, as I understand it, well less than 100 to be resolved. They could not be argued as further material was required. That balance of objections will be argued at the resumed hearing on 16 December 2024.
67. [67]
    Accordingly, there are no individual objections upon which a ruling is presently required, or which can presently be determined.