Warmenhoven v The Queen[2006] QSC 64

SUPREME COURT OF QUEENSLAND

[1] The prosecutor, Mr Byrne, proposes to call Peter Donald Nesbitt at the trial of the applicant who is charged with the murder of his then girlfriend’s 10 month old daughter on or about Monday 3 February 2003.  The defence wishes to have his evidence excluded pursuant to s 130 of the Evidence Act 1977 (Qld) because it would be unfair to the applicant to admit it.   

[2] After hearing the oral evidence of Mr Ken Spinaze, who is a Crown Prosecutor, Mr Nesbitt and Sergeant Murray Crone of the Queensland Police Service and the submissions of counsel I refused the application with reasons to be delivered later.  I now provide those reasons. 

[3] At the time when the child died the applicant was in a relationship with her mother.  He was not the father of the child.  They did not live together on a continuous basis but spent weekends and some weekdays together.  On the weekend immediately preceding the child’s death she had spent part of the time with her paternal grandmother and family and part with her maternal grandmother and family.  They observed no relevant injuries on the child.  The child went with her mother and the applicant to the applicant’s residence at Holland Park where he occupied a room.  Present in the house that evening and night were a number of other people some of whom lived there, others of whom were visiting for a week or two and yet others who were present for a few hours.  Most of those who lived or were staying in the house were teenaged boys whose families knew or were related to each other. 

[4] The mother settled the child for the night on a foam mattress next to a double bed occupied, in due course, by her and the applicant. 

[5] It is unnecessary to recite the detail of the evening in these reasons.  Suffice it to say that the child was seen to be awake and well at about midnight.  The child’s mother allegedly fell asleep on the couch in the sitting room next to the applicant whilst watching television.  Some, at least, of the boys were also watching.  The mother awoke perhaps about an hour later.  The applicant was observed by her to be awake still watching the television.  Possibly one boy, perhaps two, were still in the room asleep.   

[6] The applicant and the mother went to bed noting some restlessness and moaning by the child.  The mother attended to her without switching on the light and noticed she felt “floppy”.  In the night she covered her with a light blanket since she felt cold to touch after switching off the fan. 

[7] At about 8am the next morning (Monday) the child was found by her mother, not breathing, cold and stiffening.  Post mortem examination revealed the cause of death as due to loss of blood caused by lacerations to her liver.  Numerous punctate bruises were observed over her abdomen and lower chest.  Whilst there is some difference of medical opinion there is support for the liver injuries being caused by the application of considerable force to the child. 

[8] The applicant was interviewed on three occasions by police and denied inflicting those injuries on the child.

[9] The applicant left Australia on 21 February 2003 for New Zealand on a prearranged visit.  He was extradited to Queensland, was refused bail on 2 March 2004 and remained in custody at the Arthur Gorrie Correctional Centre. 

[10] Peter Nesbitt was sentenced to a term of imprisonment of 18 months for, inter alia, a stalking offence on 30 April 2004.  He and the applicant were housed in Unit B5 at the Arthur Gorrie Correctional Centre between 18 May and 9 June 2004 and had social access to each other during that time.  Nesbitt provided a statement to police setting out two conversations with the applicant in which the applicant allegedly made admissions which could be understood by a jury as acknowledging his responsibility for the murder of a child. 

[11] Nesbitt was cross-examined extensively at committal as was Sergeant Crone, the investigating officer who had interviewed him.

[12] Nesbitt’s evidence is sought to be excluded on two bases, namely, that the public confidence in the impartiality of the administration of criminal justice would be impaired by admitting his evidence, and that the quality of the evidence which is said to be vague, unreliable, and inconsistent is such that it would be dangerous to rely on it. 

[13] The first basis arises in circumstances where Nesbitt told the authorities that one Hudson had made admissions to him, also at Arthur Gorrie, that he had unlawfully assaulted a chid.  Eventually Hudson was not prosecuted for an offence arising out of injuries to that child with which he had been charged.  The applicant contends that this decision was prompted by the conclusion that Nesbitt was an unreliable witness and therefore it would be an affront to propriety and fairness to produce him as a witness against the applicant in his trial. 

[14] Ms Vicky Loury, a Crown Prosecutor, prosecuted the sentence of Kristy Louise Taylor who had been jointly charged with Hudson over assaults to her child.  On the day of sentence, 27 October 2005, Ms Loury entered a nolle prosequi against Hudson.  In September 2005 correspondence had been received from Taylor’s solicitors indicating that she would plead guilty to the offence of assault occasioning bodily harm to the child.  She pleaded guilty on 29 September 2005.  Ms Loury was unaware of an interview between Nesbitt and police in which Nesbitt had said that Hudson had made admissions to him of having caused some or all of the injuries to the child.  Ms Loury deposes that she discontinued the prosecution against Hudson because his account of events, including his admissions, were not consistent with the mechanism of the injury while Taylor’s admissions, in her account to a psychiatrist, was.

[15] Mr Ken Spinaze had carriage of the Taylor/Hudson matter for the committal hearing and for the trial if a trial eventuated.  The prosecution elected not to call Nesbitt at the committal hearing because although he had been interviewed by police on 24 June 2004 at Arthur Gorrie and that interview had been tape-recorded Nesbitt declined subsequently to supply a signed statement to police.  According to Mr Spinaze, Nesbitt declined to be interviewed by Mr Spinaze and indicated to police that anything he had to say he would only say in court.  In Mr Spinaze’s opinion Nesbitt’s evidence was similar to admissions already made by Hudson which were not consistent with the mechanism of injury as indicated by the medical evidence.  Mr Spinaze further explained that whilst Nesbitt was being held in the court precincts during the committal hearing, Spinaze was made aware that Nesbitt was concerned whilst still in prison about being known as a “dog”.

[16] On this application Mr Spinaze said he did not propose to rely on Nesbitt to prove a prima facie case against Hudson at committal since, in his opinion, there was sufficient other evidence.  Mr Spinaze postponed his decision as to whether he would rely on Nesbitt’s evidence at the trial against Hudson. 

[17] The submission received by the prosecution from Taylor’s lawyers included the mechanism of the injuries.  That material provided by the defence was sent to Dr Crawford, a paediatric specialist.  She had been the primary medical practitioner in the matter.  Her opinion was that the explanation provided by Taylor was consistent with the mechanism of the injury.  At committal Dr Crawford, having been shown a video of Hudson’s admissions during a walk around the residence, said that his admissions were completely inconsistent with the mechanism of the injuries.  However, during cross-examination on this application, Mr Shepherd, for the applicant, elicited from Mr Spinaze that there was some consistency between the injuries as described by Dr Crawford and the account which Nesbitt said Hudson had given to him.  Hudson had given a number of inconsistent accounts to police. 

[18] Nesbitt said he refused to provide a statement to police about Hudson because he did not want to be involved because he was concerned for his safety.  He said police did not contact him again to provide a statement. 

[19] Whilst Nesbitt was in Arthur Gorrie from 18 May to 9 June he said many prisoners discussed their cases with him including making admissions.  It was not suggested to him that he had approached anyone in authority about any alleged admissions.  Nesbitt said he spoke to only one other person – another prisoner, one Sean McGill.  He told McGill at least what Hudson had told him about his offence and what the applicant had told him.  It became apparent to Nesbitt that McGill must have told the intelligence officers working in the correctional centre because on 28 July 2004 at Wolston Correctional Centre, where he had been transferred from Arthur Gorrie, Sergeant Crone spoke to him about the applicant.

[20] Nesbitt told Sergeant Crone that he was not prepared to help.  He did tell police what the applicant had allegedly told him.  He said in cross-examination that he was “carrying a bit of a conscience about it” but definitely was not going to get involved.  Mr Sheperd asked him

“Well, did you not hear throughout your time in prison of prisoners – or people obtaining potential benefits – or obtaining benefits at least by assisting authorities?”

Nesbitt responded

“There was – stories about that used to go around all the time, but I never met anyone who had actually received anything or – and the general consensus was that you were usually used up and you got nothing out of it.”  t/s 18, 20 March 2006.

[21] Nesbitt was not happy about being spoken to by police whilst he was in prison.  He told Sergeant Crone that he was 50/50 confident about the success of his impending appeal to the Court of Appeal to be heard in September 2004.  Nesbitt’s solicitor subsequently mentioned “s 13A assistance” by police which could be used in his appeal.  Nesbitt did not avail himself of this offer.  His appeal was unsuccessful and his application dismissed on 17 September 2004. 

[22] Sergeant Crone contacted Nesbitt on 20 October 2004.  He told Crone that he felt threatened by another prisoner friendly with the applicant.  Nesbitt was then in protective custody.  Nesbitt gave a statement that day but it was unsigned.  He had by then been approved to go to a prison farm.   

[23] After Nesbitt had given his statement to police he was concerned that it had become general knowledge in the prison.  A corrections officer from sentence management told him possibly at Sergeant Crone’s instigation, about release on parole for exceptional circumstances and gave him the appropriate paperwork to fill out which was lodged a day or two later.  Those circumstances were the ill-health of a close family member (since died) and cooperation with police and consequent fear for his safety.  A senior police officer provided an affidavit to be given to the parole board attesting to Nesbitt’s assistance.  On 28 October 2004 Sergeant Crone returned and Nesbitt signed his statement.   Nesbitt’s parole application was refused in November 2004.  

[24] Nesbitt wrote to Sergeant Crone in January 2005 mentioning methods of early release from prison.  He mentioned that his health was poor – he was due for a CAT scan – and was not keen on appearing at the applicant’s committal.  He continued to be concerned for his safety whilst he was in custody particularly as he had been returned from Palan Creek Farm to Wolston for purposes of protection.  Nesbitt gave evidence at the applicant’s committal on 25 January 2005.  He was released from custody on 12 October 2005 after serving almost his full sentence. 

[25] The discretion to exclude evidence otherwise admissible on the ground that to receive it would be unfair to an accused person in the sense that the trial would be unfair is well recognised, Doney v R (1990) 171 CLR 207;  Pollitt v R (1991) 174 CLR 557;  R v McLean and Funk ex parte Attorney-General [1991] 1 Qd R 231; Rozenes v Beljajev [1995] 1 VR 533;  R v Lobban (2000) 112 A Crim R 357. 

[26] The evidence of prison informers is regularly admitted in criminal trials and juries are routinely warned of the dangers of such evidence. 

[27] The decision not to call Nesbitt as a witness in the prosecution of Hudson at his committal seems to have been made for appropriate forensic reasons particularly because police did not have a signed statement.  Police had not offered Nesbitt any inducement to provide a signed statement.  On the evidence before the court there can be no criticism of police conduct towards Nesbitt.  He did not initially approach them and they did not subsequently pursue him over Hudson.  The decision not to proceed against Hudson was a proper exercise of the prosecutorial discretion and apparently related to the quality of Hudson’s evidence and what had emerged at committal rather than based on any doubt about the reliability of Nesbitt.  There are no features of that decision which would suggest an abuse of the integrity of the court’s processes if Nesbitt were to be produced as a witness in the applicant’s trial. 

[28] The applicant has referred to R v Falzon [1990] 2 Qd R 436.  That was a case where the conduct of the police was an affront to proper methods of investigation on any view.  There was so great a risk that the statements sought to be excluded were untruthful that no warning to a jury could exclude it.   

[29] There is nothing here of the kind which concerned the court in Falzon either in relation to Hudson or this applicant.  Nesbitt is not an accomplice to the crime.  He did not approach either the prison authorities or the police with his evidence.  He was approached by them.  Nesbitt testified at the committal hearing on 27 January 2005 well after his parole application was unsuccessful.  He was not released from prison until early October 2005 and had served almost the whole of his 18 month sentence.  He has cooperated with investigators since his release.  He now lives in Sydney and willingly returned to Brisbane for this s 590AA hearing and indicated that he proposed to give evidence at the trial.  There is no feature identified on this application which would suggest that the exclusion of Nesbitt’s evidence on the first basis is necessary to prevent an unfair trial as understood by the authorities, R v McLean and Funk;  Rozenes v Beljajev and Lobban. 

[30] Neither is there a basis for excluding Nesbitt’s evidence on the ground that it is unreliable.  The Victorian Court of Appeal in Rozenes v Beljajev discussed the exclusion of evidence based on a submission about its unreliability and, therefore, unfairness.  Their Honours (Brooking, McDonald and Hansen JJ) said at 533

“As we have said, we do not think that one can dispute the proposition that, quite apart from the other circumstances which have been authoritatively accepted as giving rise to the discretion to exclude admissible evidence in a criminal trial, the discretion arises whenever it is shown that the reception of certain evidence will be unfair to the accused.  But, as we have said, once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether reception of the evidence will make the trial unfair, it becomes difficult to think of  a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and its prejudicial effect.  In particular, as Carter J observed at 255 in McLean and Funk, it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury.  His Honour went on to conclude at 260 that there was no discretion to exclude evidence which was based wholly or primarily upon the trial judge’s conclusion that the evidence was unreliable:  the exercise of such a discretion interfered with one of the most integral of the jury’s functions, a function which there was no reason to believe any properly instructed jury to be incapable of properly performing.”

[31] These observations and others of a similar nature were expressly approved by the South Australian Court of Criminal Appeal (Doyle CJ, Bleby and Martin JJ) in Lobban.  There is nothing vague, uncertain or ambiguous in the evidence which Nesbitt will give about the applicant’s admissions.  The circumstances pertaining to police obtaining the evidence do not excite concern.  The applicant (through his counsel) simply denies that the admissions were made.  This is pre-eminently a jury question.  There are no exceptional circumstances demonstrated.  Accordingly the evidence may be given at the trial and, as I ruled on 20 March, the application is refused.