R v Waterton[2019] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   Arwa WATERTON is charged with three offences under s 135.2(1) of the Criminal Code Act 1995 (Cth) in relation to obtaining a financial advantage for herself.

2. [2]
   The matter has proceeded with evidence heard on 10 and 11 April 2017 and adjourned to hear further evidence.

3. [3]
   On 18 August the matter was relisted for hearing. During the adjourned period, an application has been brought by the defendant to exclude the evidence of Annette CROZIER in the exercise of the Court’s discretion on the grounds of unfairness and public policy.

4. [4]
   Chronologically the events are that this trial proceeded on 10 and 11 April 2017. Ms Crozier commenced giving evidence on 11 April but was stood down whilst under evidence-in-chief.

5. [5]
   On 7 June 2017, Ms Crozier provided an addendum statement which was disclosed on 14 June 2017 to defence.

6. [6]
   The trial was to resume on 18 August 2017 with a new Crown Prosecutor. On 15 August 2017 the Crown notified defence by email that a conference had been organised with Ms Crozier later that day and did defence have any objections. Further attempts were made to try to contact defence but there was no response.

7. [7]
   A conference did take place and a detailed file note of the conference was taken and disclosed to the defence.

8. [8]
   Defence, two days before the hearing was to resume, took issue with the Crown conferencing a witness during her examination-in-chief.

9. [9]
   This application was brought on 18 August 2017 where the defence made application to adjourn the proceedings because of a death in the defendant’s family. The trial was adjourned.

10. [10]
    On 18 August, directions were made by the Court for the filing and serving written submissions.

11. [11]
    The defence argue:

1. (a)
   It is unfair to allow her evidence because of the ongoing investigation of the matter and the gathering of further evidence from Crozier in the intervening adjournment whilst she is giving her evidence in chief;

2. (b)
   An impropriety by the Prosecution that the complainant arranged addendum statements and further material from Crozier and conferencing with her whilst under oath, and the obtaining of new statements from new witnesses. It is said this is outside the functions of the DPP conferred by s 6 of the Act.

Impropriety

12. [12]
    One of the complaints is that the Office of the Commonwealth Director of Public Prosecutions (CDPP) have acted with impropriety in gathering further evidence from Annette CROZIER and conferencing her whilst she is still giving her evidence-in-chief.

13. [13]
    There is no rule of law that as soon as litigation is commenced there must be a complete freeze of activity or else a contempt will be committed.

14. [14]
    For example, Young J. in Rowell v. Larter (1986) 6 NSWLR 21 at 28-9 said that no rule of law prohibits the issue and execution of a search warrant in relation to the defendant’s premises after committal proceedings had commenced concerning the charge against him or her.

15. [15]
    As to the duties of a prosecutor, they were considered by the Court of Appeal of Victoria in Cannon & Anor v Tahche [2002] VSCA 84; (2002) 5 VR 317.

16. [16]
    The Queensland Bar Associations Rules relevantly provide:

“Prosecutor’s duties

82. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

86. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.

Integrity of evidence

72. A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:

1. (a)
   the cross-examiner has consented beforehand to the barrister doing so; or

1. (b)
   the barrister –

1. (i)
   believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

1. (ii)
   has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so; and

1. (iii)
   otherwise does inform the cross-examiner as soon as possible of the barrister having done so .’

17. [17]
    A similar rule to Rule 72 (Rule 26) applies to solicitors under the Australian Solicitors Conduct Rules 2012.

18. [18]
    To constitute a breach of Bar Rule 72, the communication must be made while the cross-examination is continuing. In R v Shepherd [2001] 1 NZLR 161, [17] the prosecutor consulted with the complainant for an hour after cross-examination was adjourned was hugely irregular conduct, but did not lead to the possibility of a miscarriage of justice.

19. [19]
    In Potier v R [2015] NSWCCA 130, a similar issue arose where the accused complained that the Crown on 15 September 2006 tendered a statement from Ms Conway who had commenced giving evidence some days earlier. Ms Conway’s evidence in chief was disrupted by illness. Before her cross-examination was due to commence, the Crown Prosecutor had asked for a short adjournment. This was granted. When the trial resumed on 21 August 2006, Ms Conway was ill. Other witnesses were interposed. On 15 September 2006, before her cross-examination had commenced, the Court recalled Ms Conway who then gave evidence that, since giving her earlier evidence, she had contacted the Crown prosecutor and his instructing solicitor to alert them to some further information she wished to give evidence about. She had then given a fresh statement to Detective Sipos. The new evidence related to her recollection where certain money she said she had received from Mr Potier had been changed from English to Australian currency. Mr Potier complained that the Crown had spoken with Ms Conway before her cross-examination. At [582] the Court held:

“The New South Wales Bar Rule at the relevant time refer to speaking to the witness while the witness is in under cross-examination. This had not occurred by the relevant stage. Mr Potier’s complaint has no substance.”

20. [20]
    In Potier (supra) reference was made and submissions from the Crown indicate the Queensland Bar Council made an ethical ruling on 4 February 1975 as follows:

“Counsel may speak to a witness whose examination-in-chief has not been completed, but, as a general rule, he should not speak to him in relation to matters about which he has already given evidence except to seek explanation or amplification of such evidence.”^[1]

21. [21]
    In England and Wales, the rule is a little more extensive in its formulation by the editors of Cordery on Solicitors (10^th ed, 2000) at para 743:

“A solicitor may interview and take a statement from any witness or prospective witness at any stage in the proceedings whether or not the witness has been called as a witness by another party. The solicitor must not tamper with the evidence of a witness nor try to persuade the witness, by the promise of a payment of money or otherwise, to withdraw or alter his evidence. The solicitor should not discuss the case with a witness while the witness is in the court of giving evidence.”

The Code of Conduct for the Bar of England and Wales (Annex F, r 6.1.5) also is wider in its prohibition than the Queensland rule as it extends to the whole of the time a witness is giving evidence.

22. [22]
    In general terms the rule is designed to prevent the coaching or coaxing of a witness or the appearance of such.

23. [23]
    That is not the case here.

24. [24]
    Nor can I see how s .6 of the Director of Public Prosecutions Act 1983 has been breached. The applicant does not specify which subsection/s have been breached, but makes an ambit claim.

25. [25]
    The CDPP is an independent prosecution service established under the Director of Public Prosecutions Act 1983 to prosecute alleged offences against Commonwealth law. They aim to provide an effective, ethical, high quality and independent criminal prosecution service in accordance a number of internal policies and guidelines. If they are breached then the Director may take action against a Prosecutor.

26. [26]
    The relevant duties, Bar and ASC Rules and Prosecution Policies and Guidelines have been made with the object of ensuring that crown prosecutors conduct themselves in a manner which will ensure the integrity of the criminal justice system. A breach of them may diminish public confidence in that system. In an exceptional case it may be necessary for the courts to intervene to ensure that public confidence is maintained. See MG v R [2007] NSWCCA 57.

27. [27]
    This is not such a case and the following comments also apply here where applicable.

Unfairness

28. [28]
    Statements of the High Court of Australia emphasise the contemporary and continuing obligation of a prosecutor to present a case fairly and completely: Subramaniam v R [2004] HCA 51; (2004) 79 ALJR 116 at 127-128; [2004] HCA 51 at [54]. In that case, the High Court referred to the well-known propositions that prosecutors “are to regard themselves as ministers of justice and not struggle for a conviction” and that although “the duty of a prosecutor is to prosecute and not to defend, nevertheless it has long been established that a prosecution must be conducted with fairness towards the accused and with the singly view to determining and establishing the truth”.

29. [29]
    This is part of prosecutor’s function ultimately to assist in the attainment of justice between the Crown and the accused.^[2]

30. [30]
    In Whitehorn v R (1983) 152 CLR 657; (1983) 49 ALR 448; (1983) 57 ALJR 809; (1983) 9 A Crim R 107; [1983] HCA 42 exposed the independent nature of the prosecutor’s function in a trial under the adversary system. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial.

31. [31]
    As was stated in MG v R [2007] NSWCCA 57, the court has a duty and is obliged to try an accused person on an indictment presented against that person. It is for the crown to adduce evidence in any trial of an accused person upon which a jury, properly directed, can find whether the crown has proved the case against an accused person beyond reasonable doubt. It is for the trial judge to ensure that an accused person has a fair trial.

32. [32]
    A fair trial according to law does not mean a perfect trial free from possible detriment or disadvantage of any kind or degree to the accused: Jago v. District Court of NSW (1989) 168 CLR 23 at 49-50; R v Glennen (1992) 173 CLR 592 at 614-7; Dietrich v. R (1992) 177 CLR 292 at 325.

33. [33]
    There is more than one interest involved in the trial of a person accused of committing a crime. The Crown has an interest in prosecuting an alleged breach of the law, the accused has an interest in being tried according to law. In Jago v District Court (NSW) (1989) 168 CLR 23, Mason CJ said (at 33):-

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial. At the same time it should not be overlooked that the community expects trials to be fair and to take place within a reasonable times after a person has been charged.”

34. [34]
    I agree with many points made in Mr Noud’s submissions.

35. [35]
    It is not uncommon that during a trial further evidence is discovered by the Prosecution that may either prove innocence or guilt of a defendant which is disclosed to the defence.

36. [36]
    Further, in those situations the Court may adjourn proceedings for one or both parties to consider the further evidence and take instructions or give directions on how the trial is to proceed.

37. [37]
    In Owens & Anor, r. v [2006] EWCA Crim 2206, the Crown had regularly been supplying notices of additional evidence. The defence legitimately complained of this ‘drip feeding’. Eventually the Judge made orders that anything not served within 21 days would not be admitted. Approximately two weeks later before the trial, the prosecution served 18 pages of witness statements and 100 pages of exhibits which subsequently led to the further disclosure of thousands of pages of unused material. Not surprisingly the defence objected and wanted the evidence excluded. The Judge refused. Rix LJ at [52]:

“The judge was entitled, having satisfied himself that there was ultimately no unfairness and no undue prejudice in the service of this material, to conclude that, his own order of 5 November 2004 notwithstanding, it would be in the interests of justice to permit the material encompassed by the 16^th NAE to go forward for consideration as to its admissibility or exclusion on its own merits. We accept the Crown’s submission, as the judge did, that in any event the November order was not intended to provide a definitive bar to any new areas of enquiry that might come to light.”

38. [38]
    Nor are the circumstances similar to Dunkerton v Queensland Police Service [2018] QDC 71 where there was a failure to disclose the victim impact statement prior to the close of the prosecution case. The statement was not provided to the defence until after the Magistrate had convicted the appellant and was hearing submissions on sentence.

39. [39]
    It was held by Fantin DCJ in those circumstances at [25] to [28]:

“Non-disclosure of relevant documents in the prosecution’s possession adversely affects an accused’s right and ability to receive a fair trial. Non-compliance by the prosecution with its obligations of disclosure is ‘such a serious breach of the presuppositions of the trial as to deny the application of the … proviso’, at least where the material not disclosed ‘might well have influenced the result of the trial’. [26] Where documents are not disclosed in breach of this obligation, the appeal court cannot ignore even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure. It is enough that the opportunity which the defence was denied ‘could have made a difference to the verdict’. The question is whether the non-disclosure resulted in a miscarriage of justice and the test in this context is an undemanding one: namely whether the material withheld could have made a difference to the verdict. [28] The use of documents (or of information contained in them) in an attempt to discredit the principal Crown witness is a legitimate forensic purpose.” (Citations omitted).

40. [40]
    It seems fairly clear in this case so far as any failure of the prosecution to adhere to timeliness for disclosure or impropriety, the only test that matters is whether the defendant can point to some specific prejudice to him or her occasioned by the failure which has adversely affected their right to a fair trial.

41. [41]
    There is no affidavit filed on behalf of the applicant/defendant which set out any grounds, for example:

1. (a)
   how the proceedings are ‘unfair’ on her;

2. (b)
   how proceedings impact upon her or steps positively impede the presentation of a defence (e.g. Witness no longer available);

3. (c)
   how, because of the delay or other fault on the part of the prosecution, an innocent person will be convicted.

42. [42]
    This is not an occasion for a court to impede or interfere in the exercise of the prosecutorial function unless and until court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.^[3]

43. [43]
    There has not been a manipulation of the prosecution of the proceedings which imposes some exceptional burden additional to the burden necessarily imposed on the defendant.

Conclusion

44. [44]
    The application is dismissed.