R v Handlen[2012] QSC 317

SUPREME COURT OF QUEENSLAND

[1] All three defendants apply pursuant to s 590AA of the Criminal Code 1899 (Qld) to exclude the entirety of the evidence which the Crown proposes to call from a witness, Reed, at the trial.  The basis of the application is that the proposed evidence was obtained by the Australian Federal Police offering inducements to Reed and otherwise engaging in improper and unlawful conduct in their efforts to obtain Reed’s co-operation as a witness.  I dismiss the applications, my reasons follow.

[2] Paddison made applications for other directions, but they were abandoned after the hearing on the above point.  For that reason my formal orders are to dismiss the entire application made by Paddison.  Nerbas made applications for other directions.  After two hearing dates on which I found those applications insufficiently articulated to proceed, I adjourned those applications to the trial judge, with directions designed to facilitate their proper articulation.

Second Application

[3] All three defendants were originally indicted on indictment no. 73 of 2008.  After a trial, Handlen and Paddison were convicted.  The convictions were set aside by the High Court and a retrial was ordered.[1]  Nerbas pled guilty on day nine of the trial.  That plea was set aside by the Court of Appeal in 2011.[2]  The Crown has now presented a new indictment against all three defendants.

[4] There is a question as to whether these applications can be made before me.  Before the trial on indictment no. 73 of 2008, the same applications were heard by Byrne SJA who dismissed them on 9 May 2008. 

Section 590AA

[5] Section 590AA of the Criminal Code provides:

“Pre-trial directions and rulings

(1)If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling …

…

(3)A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling.

(4)A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.”

[6] It seems to me that the words “a direction or ruling” in both ss 590AA(3) and (4) must refer to the “direction or ruling” on the “indictment before a court against a person” at s 590AA(1) of the section.  I am asked to give directions or rulings about matters relating to a different indictment to no. 73 of 2008, so that, in terms, s 590AA(3) does not apply to the current application. 

[7] R v Steindl[3] is a case on all fours with the present in terms of principle.  A determination of law as it applied to the facts of the matter was made at a pre-trial hearing.  It was therefore a final decision as between the parties unless overturned in accordance with repealed s 592A of the Criminal Code (identical in its terms to s 590AA).  The ruling had the effect of destroying the Crown case, and a nolle prosequi was entered.  Later a second indictment was presented against the same accused.  Proceedings before the primary judge were on the basis that leave was necessary under s 592A(3) to re-open the ruling on the old indictment and, apparently, that the trial judge would need to be satisfied that there was no abuse of process before that could happen.[4]  There does not appear to have been any argument as to the correctness of this approach in the Court of Appeal. 

[8] In R v Sheehy[5] members of the Court of Appeal expressed different views on a related question which is distinct from the present point because in Sheehy there was only one indictment.

[9] The applicants submitted, by way of concession, that they needed to show special reason, in terms of s 590AA(3), to bring these applications before me.  As discussed, I reject this as a matter of construction of s 590AA(3).  In any case, the applicants’ position is illogical: if the matter were governed by s 590AA(3) it could not come before me as I am not the trial judge or the judge who heard the original pre-trial hearing.

Issue Estoppel and Abuse of Process

[10] The law opposes re-litigation of issues.  The principles of res judicata and issue estoppel are based on the idea that there must be an end to litigation.[6]  Even if an issue estoppel is not shown, it can amount to an abuse of process to re-litigate an issue disposed of by earlier proceedings.[7]  A litigant should not be vexed with the same proceeding and, from a public interest point of view, there should not be conflicting decisions, and decisions subject to collateral attack.  Further, making successive applications may give the impression that an applicant has “hawked the application from judge to judge”.[8] 

[11] After considerable indecision as to whether our criminal law recognises a principle of issue estoppel,[9] it was held by a majority in the High Court in Rogers that it does not.  Therefore the parties are not estopped from re-litigating this matter.

[12] Nonetheless, public policy considerations against re-litigation apply with at least equal force in criminal matters, as they do in civil matters:  “…to allow inconsistent findings to stand either on criminal liability for conduct or on voluntariness in the making of a confession could only engender the gravest sense of injustice in an accused person and promote the notion that a criminal trial is, in significant respects, a lottery”.[10]  These considerations were referred to in Steindl at p 542 and pp 555-6 in the context of a s 592A application.

Re-litigation by Accused Person

[13] Counsel for Paddison submitted that it could not be an abuse of process for an accused person (as opposed to the Crown) to re-litigate an issue.  This argument was based on dicta about the role of issue estoppel in the criminal law.  Gibbs J in Storey said:

“It can hardly be denied that it would be most unfortunate if an issue estoppel could be raised against a person accused of a serious crime.  If that were done the jury might be precluded from trying the real issue on which guilt or innocence depended, and its verdict might in fact be dictated by an earlier decision in a case which, because of the comparative triviality of the charge then preferred, was not contested with sufficient vigour or at all, or was, albeit wrongly, not given sufficiently careful consideration by the court or jury which decided it.” – p 380.

[14] Discussing a different but related point, Gibbs J said:

“The third objection to the application of [issue estoppel] in criminal cases is that the doctrine is an artificial one and may require a judgment to be given contrary to overwhelming evidence.  In civil cases this is justified by the principle that there should be finality in litigation.  In a criminal case, however, different considerations apply.  A jury may decide in favour of an accused person on a particular issue simply because a reasonable doubt has been raised, and it would not seem just that in those circumstances the issue should thereafter be treated as conclusively established in favour of the accused.

I am of the clear opinion that the doctrine of issue estoppel does not apply in favour of the Crown against an accused person …  It would be contrary to the fundamental principles of the criminal law that the members of a jury should be obliged by the decision of another tribunal to bring in a verdict against an accused person, without themselves being satisfied that issues which the accused wished to contest had been proved against him.” - pp 380-381.

[15] Brennan J discussed similar concerns in Rogers at p 267-8.  He said:

“… an issue estoppel cannot enure for the advantage of the Crown in a criminal trial. … mutuality would run counter to the basic notion that the accused is entitled to the presumption of innocence until the Crown produces evidence that satisfies the jury of his guilt beyond reasonable doubt. … It follows that issue estoppel can operate, if at all, only in favour of an accused person, not against him. …”

[16] These dicta relate to issue estoppel, not abuse of process.  Secondly, at least some of what Gibbs J identified as problematic is inapplicable to a decision on a s 590AA application, because it is relevant to attempts to extract an issue estoppel as necessarily implied in a general verdict of a jury.

[17] The reasoning of Gibbs J and Brennan J is convincing as to why an estoppel ought not run inflexibly against an accused person.  However, it does not support a rule that it can never be an abuse of process for an accused person to re‑litigate an issue.  Because a decision as to whether or not an abuse of process is occurring will be based on a consideration of all relevant facts, any potential injustice to an accused person of the type identified by Gibbs J and Brennan J would prevent a Court reaching the conclusion that re-litigation was an abuse of process. 

Nature of First Decision

[18] The decision of 9 May 2008 determined that there had been no illegality or impropriety in the conduct of the police which preceded Reed’s making a statement – t 14 l 60, t 15 ll 40-45 and t 12 l 50.  In concluding Byrne SJA said, “In short, the circumstances disclosed by the evidence do not engage the Bunning v Cross discretion.” – t 19 l 2.  Byrne SJA’s decision was thus more than a ruling about the admissibility of evidence, it was a determination of issues of fact – see Rogers at p 279 per Deane and Gaudron JJ, and cf R v Edwards.[11]  Had such a determination been made in civil proceedings it would have been sufficiently final as to found an issue estoppel, even though the application on which it was made was interlocutory in its nature:  Castillon v P&O Ports Limited (No 2).[12]  That is because it was a decision which established the facts, applied the relevant law to them, and concluded that there had been no illegality or impropriety.  It was a judicial determination which disposed of the issue as between these parties – see [73]–[74] of the judgment in Castillon.

[19] Turning to the provisions of s 590AA(3) and (4) as to conclusiveness of a pre-trial ruling, leave was never sought to re-open the 2008 ruling before or during the trial on indictment no. 73 of 2008.  There was no appeal from this determination by any defendant, although Handlen and Paddison appealed on other grounds.  The verdict of the jury against Handlen and Paddison was set aside on appeal for other reasons.  The plea by Nerbas was set aside on grounds unrelated to the 2008 decision.

[20] There is discussion in the cases as to the effect on the finality of a voir dire ruling when a verdict is set aside on appeal, based on the notion that unless a verdict is delivered, and stands, there is no finality to a ruling on the voir dire.[13]  I am not sure that cases which deal with the finality of a voir dire ruling at common law are necessarily applicable where s 590AA makes provision for the conclusiveness or otherwise of a s 590AA ruling before and after verdict. 

[21] Even if they are applicable, there cannot be an inflexible rule that in every case of this kind, before an abuse of process can be shown, the ruling sought to be re‑litigated must be final in the sense that it is supported by an extant verdict of a jury.  Finality is a prerequisite to an issue estoppel in civil law.  It is discussed in Rogers, eg., at 278-9 in this context.  Rogers was a case where, on the facts, there was a determination on a voir dire followed by jury verdict.  It was held to be an abuse of process for the same parties to act inconsistently with the determination on the voir dire.  I do not read Rogers as mandating an extant verdict as a factual prerequisite to a finding of abuse of process.[14]  There are many statements to the effect that the categories of abuse of process cannot be exhaustively defined, including in Rogers itself.[15]  The power of the Court to protect against abuse of process must be as flexible as is necessary to achieve its ends. 

Findings

[22] I have concluded that the bringing of these applications is an abuse of process.  They seek determination of points which have been determined before in proceedings involving the same parties.  The prior determinations were determinations of fact.  Their correctness has never been challenged in a way allowed for by s 590AA (or its predecessor).  I reject the submission that the applicants identify error in the 2008 decision, see below.  My view is that it is correct.[16]  The points raised before me are identical with those raised before Byrne SJA, except in immaterial respects – see below.  Many of the points raised (on both applications) were, in my view, so lacking in merit as to be barely arguable, or indeed not properly arguable.  I see nothing in the wider circumstances advanced to justify re-litigation of the matters raised in 2008. 

[23] It has been necessary for me to consider the matters advanced by the applicants as distinguishing this matter from that heard in 2008; showing that the 2008 decision was erroneous, and showing more broadly that re-litigation was justified.  I deal with these matters in that part of my judgment which follows. 

[24] Because the matters raised in these categories have been so many, I have in substance reconsidered the matters dealt with in 2008.   I record that had I not formed the view that the bringing of these applications was an abuse of process, and instead reheard them, I would have dismissed them for the reasons given by Byrne SJA in 2008 and for the reasons given below.  I find that there was no impropriety or illegality on the part of the investigating officers in dealing with Reed.  Further, had there been, I would have exercised my discretion to admit the evidence Reed will give, having regard to the serious nature of the charges against the applicants; the importance of Reed’s evidence to the Crown case; the factors discussed below as to the seeming reliability of Reed’s evidence; the fact that Reed had the benefit of legal advice in a timely way before making his statements, and (assuming I am wrong about the existence of illegality or impropriety) the relatively minor nature of the various infractions alleged against the police.

Reasons Advanced to Support Re-litigation

[25] In train of a submission that special reason within the meaning of s 590AA(3) could be shown in the present case, counsel on behalf of Handlen submitted:

“Mr Handlen now applies for reconsideration of the exclusion of the evidence of Mr Reed on the basis that the ruling of Justice Byrne:

(a)was before there was a successful appeal against conviction

(b)at that time Mr Handlen was indicted on a different criminal basis

(c)did not include legal argument of the consideration of the overall unfairness of the police conduct

(d)was made prior to the High Court decision of R v Moti

(e)involved Mr Handlen having different legal representation.”

[26] The other two applicants adopted this submission.  As explained, I see no occasion for the application of the s 590AA special reason test.  However, the submission is a useful starting point for analysing whether or not there is any difference between this application and that heard in 2008, and whether or not there is any wider circumstance which bears on why the applicants should be allowed bring this application again.  I deal with each of the above five points in the order they were made.

[27] I cannot see any force in the first two points.  On the first indictment the defendants were charged with importing as part of a joint criminal enterprise, together with Reed.  They are now charged as accessories to Reed’s importing.  Perhaps there is some evidence which was admitted at the first trial (including some evidence from Reed) which will be irrelevant on the second trial because, although it bore on the question of joint criminal enterprise, it does not prove eg., an actual aiding or abetting, and is not otherwise relevant, say to the intention of the defendants.[17]  Evidence said to be in that category is sought to be excluded by Mr Nerbas as part of the applications which I have adjourned to the trial judge.  However, the application which I determine is not concerned to make any such analysis, it asks for all the relevant evidence Reed could give to be excluded on the basis of what is said to be improper conduct by the police.  That the convictions (and plea) have been overturned, and the fact that that the Crown now proceeds on an accessorial basis, cannot be a meaningful point of distinction between this application and that which was determined in 2008.

[28] As to the third point, Byrne SJA set out in considerable detail the conduct said to amount to misconduct of the investigating officers.  He described the nature of the application before him:

“The procuring of the statement is said to enliven a judicial discretion to exclude the evidence on high public policy grounds: cf Bunning v Cross (1978) 141 CLR 54, at 74 and R v Falzon [1990] 2 Qd R 436, at 439.” – t 2.

“… that inducements offered to Reed to supply information concerning his activities and those of the applicants were substantial and that, considering them globally in the context of the investigatory methods adopted, they engaged the high public policy considerations that account for the Bunning v Cross discretion.” – t 4.

“On the applicants’ case, what was said by the police is a series of promises, serious implied threats and inducements which continued to operate on Reed’s mind until the statement was eventually supplied on 22 November.” – t 9.

[29] It seems to me quite clear that Byrne SJA appreciated that the applicants relied upon the effect of the police conduct overall as being unfair, and decided the application before him on this basis.  That is how Byrne SJA summarised the applicants’ case to the prosecutor in argument – t 66 l 45.  It is clear that it was, and was understood to be, the argument advanced by the applicants before him – eg tt 12 l 58, 19 ll 50-60, 45 ll 40-50, 60 l 30.  It is difficult to see how this argument could properly have been advanced before me.

[30] As to the fourth point, Moti v R[18] does not establish any new principle of law.  It involved the High Court applying well-established case law as to the circumstances in which criminal proceedings should be stayed where the accused had been moved to the jurisdiction without compliance with extradition procedures – [59], and see [64].  The High Court stated that the categories of abuse of process are not closed – [60] – but, again, that is no new principle.[19]  The High Court in Moti restated what it called, “two fundamental policy considerations [which] affect abuse of process in criminal proceedings”.  First, that the public interest in the administration of justice requires Courts to ensure that their processes are fairly used by State and citizens alike, and second, that unless the Courts protect their ability to function in that way, there will be an erosion of public confidence in the administration of justice because a concern will be raised that the Courts’ processes are being used as instruments of oppression and injustice – [57]. 

[31] Moti’s case was an abuse of process case where the factual circumstances were removal of Mr Moti to Australia other than by extradition.  This is a case said to involve evidence having been obtained by improper conduct on the part of law enforcement officers.  As shown from the extracts above, Byrne SJA referred to the “high public policy” considerations outlined by the High Court in Bunning v Cross.  He referred particularly to p 74 of that judgment where the following appears:

“What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”

[32] There is an obvious similarity of fundamental principle in the above extracts from Moti’s case and from Bunning v Cross.  I cannot see that the decision of the High Court in Moti gives any reason to revisit the law applied by Byrne SJA.

[33] The fifth point relied upon – that Mr Handlen now has different lawyers – is irrelevant unless something substantial was said to flow from it; nothing was.

Adele Frost

[34] In addition to the above five points, the applicants relied on a CMC report entitled “Dangerous Liaisons” produced in July 2009 as a circumstance calling for re‑examination of the issues raised in the 2008 application involving Reed’s girlfriend, Adele Frost. 

[35] The CMC report was on practices in the Queensland Police Force, mainly (but not exclusively) the Armed Robbery Unit, including providing prisoners with benefits in exchange for co‑operation with police.  The conduct by police was various; some of it involved removing prisoners from custody and allowing them access to their wives, girlfriends or families.  This is said to be relevant because on four or five occasions when Reed was taken from remand custody to the Australian Federal Police headquarters for interview, he was allowed to see his girlfriend.  He was allowed physical contact with her, sometimes unsupervised.  She was allowed to bring him sandwiches for lunch.

[36] The CMC report details various types of misconduct by various officers at a level of generality appropriate to the CMC’s aim of “exposing and correcting any improper conduct rather than … prosecuting individual offenders” – pp 3-4 of that report (exhibit 1).  Again at a level of generality, the report admonishes misconduct and ignoring legislative requirements.  The report concerns a discrete number of officers in a different police force during a different time period.  Some of a great variety of conduct described in the report bears some similarity to some of the conduct relied upon in this application.  In this case there are specific allegations made against the officers concerned and specific arguments directed to the impropriety of that conduct.  The CMC report is not relevant to my considerations of that specific conduct which are as follows.

[37] The applicants say it was against the provisions of the Corrective Services Act 2006 (Qld) for the Federal officers to have allowed contact between Reed and Frost.  I do not see this.  By s 7(4) of the Corrective Services Act Reed was in the custody of the Chief Executive of the State Department except when he was lawfully in another person’s custody.  Section 70(4) of the same Act provides that when a prisoner is absent from a Corrective Services facility the prisoner is in the custody of the Chief Executive of the law enforcement agency which has him in its custody.  Schedule 4 of the Corrective Services Act defines the Australian Federal Police as a law enforcement agency.  Thus, while Reed was at the Federal Police headquarters he was in the custody of the Chief Executive of the Federal agency.  Both before me, and before Byrne SJA,[20] the evidence of Officer Matejic at the committal (day 7, t 19 l 30) was relied upon by the Crown to the effect that the Federal Police guidelines allowed the visits by Frost to Reed.  The guideline is:

“Untried detainees shall be allowed to inform as soon as practicable their family of their detention and shall be given all reasonable facilities for communicating with their family or a friend and for receiving visits from them subject to only such restrictions and supervisions as are necessary in the interests of the administration of justice and the security and good order of the custodial facility.”

[38] It was not argued before me that if Reed was in the custody of the Chief Executive of the Federal Police the guidelines were inapplicable, or did not authorise the visits.  The visits were not illegal.

[39] The secondary proposition put forward on behalf of the applicants is that, if not illegal, the visits were improper.  This argument was made before, and rejected by, Byrne SJA.  No authority was cited for the proposition that the visits were improper.  It is difficult to see how they were improper if they were comprehended by a police guideline.  I find that they were not.  That they operated as an inducement to Reed to co-operate might be assumed, but that does not, in itself, mean they were improper, see the discussion at, “Inducement”, below.

[40] The applicants said that the Federal Police were involved in unscrupulous dealings with Reed as to telephone calls and letters to Frost.  The argument was that the police somehow encouraged or allowed improper contact via these methods between Reed and Frost using Reed’s solicitors’ office as a subterfuge.  There is no suggestion that there was in fact any such improper contact.

[41] In the interview of 11 October 2006, at questions 6 to 16 (phone calls), and then at questions 20 to 23 (letters), Reed expresses frustration with the fact that his communications with Frost are intercepted by her father.  Reed says that given the amount he is paying for lawyers he should be able to send letters to Frost via the lawyers and make telephone calls to Frost whilst she is at the lawyers’ premises.  He says he does not think this would be breaking any rules.  The Federal agents agree with Reed in a general way and tell him to raise the matters with his solicitors.

[42] Contact as proposed by Reed would be contrary to ss 45 and 50 of the Corrective Services Act.  It cannot be said however that the police officers become involved in any such thing or offer their assistance as to any such thing.  They assent to views expressed by Reed as part of a series of complaints about his adjustment to prison life which are preliminary to the main business of the interview.  In my view there is no illegality or impropriety as to these matters.

[43] It was conceded before me that there was no argument made to Byrne SJA that the visits of Frost were contrary to the provisions of the Corrective Services Act.  To that extent the argument advanced by the applicants on this hearing might be slightly different to that advanced before Byrne SJA, where it was contended that the visits of Frost were improper.[21]  Perhaps the visits of Frost were not contended to be contrary to the Corrective Services Act before Byrne SJA because that Act is inapplicable to the visits.  I am not dissuaded from my view that this is the same application as was brought before Byrne SJA by this small difference in legal characterisation of this factual matter.  The position is the same in relation to the argument addressed to me as to letters and telephone calls to Frost.

Crimes Act 1914 (Cth)

[44] Another point of distinction between this application and that heard in 2008 was said by the applicants to be that there had been breaches of the Crimes Act 1914 (Cth) which were not, in the end, agitated in 2008.

[45] Initially, before Byrne SJA it was contended that the conduct of the Federal agents contravened various provisions of the Crimes Act.  That argument was abandoned by the applicants appearing before Byrne SJA; it was conceded to be untenable.  The argument was renewed before me.  First it is said that on 20 September 2006, after a tape-recorded record of interview (under caution) was conducted, a further (unrecorded) conversation took place between the Federal officers and Reed.  This was accepted by the Crown.  It was accepted that the gist of the conversation was that police told Reed that he had been lying in the interview; he should consider his position; there was a window of opportunity to assist them, and he could come back and talk to them at a later stage.  It was said that this conversation not being tape‑recorded contravened the provisions of s 23V of the Crimes Act.  The failure to tape-record the conversation does not breach that section.  The conversation was not one in which Reed was questioned as a suspect – see the introductory words to s 23V(1).  In any case Reed did not make a confession or admission during the conversation, and it is not sought to admit any such confession or admission in evidence.

[46] Next it is said that after Reed contacted the Federal officers and asked to explore the possibilities of giving them information, conversations were had with him where he was not cautioned and not informed of his rights to communicate with a friend, relative or lawyer – ss 23F and 23G of the Crimes Act.  Neither section applies to the conversations had.

[47] First, Reed was not “under arrest”, as is required by the introductory words to both sections.  Section 23(1) states that part 1C of the Crimes Act imposes obligations on investigating officials in relation to, relevantly,[22] people arrested for Commonwealth offences.  Section 23B(1) provides that a person is “arrested” only if his arrest has not ceased under s 23B(3) or (4).  Reed was remanded at all relevant times and s 23B(3) provides that a person ceases to be arrested if the person is remanded.  This analysis, advanced by the Crown before Byrne SJA, was accepted by counsel for the applicants before Byrne SJA as being correct.  It plainly is correct.  No argument was advanced before me as to why it was not correct. 

[48] Furthermore, having regard to the terms of the caution at s 23F(1), it must be implied that the section does not apply to someone who is being questioned as a witness, or someone who is speaking to Federal officers about the possibility of giving them a statement as a witness.  Here Reed was expressly told that he was not being cautioned and that nothing he said would be used in evidence – he was told everything was off the record.  This was made very clear, expressly, at the beginning of the discussions Reed had with police.  These discussions were tape‑recorded, and it is evident that the police were concerned to both record what they were doing and make the basis of it very clear to Reed – see where the relevant parts of the recording are set out by Byrne SJA at t 6 and t 17.  The caution suggested by the applicants was completely inapplicable to the circumstances.  Further, as is set out in the reasons of Byrne SJA, Reed was asked as to whether he wanted a lawyer present, or encouraged to see a lawyer – t 6, tt 10-13.

[49] There has been no breach of the Crimes Act.  The applicants’ insistence on this point, in contrast to the applicants’ abandonment of the point before Byrne SJA, does not in all the circumstances distinguish this application from that brought before Byrne SJA.

Misleading by Federal Officers

[50] The application before Byrne SJA was conducted on the basis that none of the representations made to Reed by Federal officers were misleading.[23]  On the application before me it was said that Reed was told falsities by police: that he could be sent to a prison farm under protection; only serve five years imprisonment, and that his co-accused were not acting in his interests.

[51] Having regard to questions 57 to 60 of the interview of 22 September 2006, I cannot see that the police tell Reed that he will go to a prison farm or get a sentence of five years.  The relevant passage is set out at t 8 of Byrne SJA’s judgment.  There is a long discussion as to another case in which it was said that an offender who co‑operated received a sentence of five years and was separated from other prisoners.  There is a discussion as to how Reed could expect a reduced sentence if he co‑operated and that during his time in prison his security classification will be changed and that there are advantages in being in a low security prison.  It is said that those issues are determined by the Attorney-General but the police make a recommendation on them.

[52] There was nothing but assertion on the part of the applicants that there was falsity involved in these statements.  There is nothing before me which would lead me to conclude anything false was said.  The same can be said of the statement that Reed’s co-accused were not acting in his interests.

Error

[53] It was submitted on behalf of the applicants (belatedly, in supplementary written submissions) that in no less than 14 respects Byrne SJA erred in the decision of 9 May 2008.  It was said that there was error in not finding a contravention of either the Crimes Act or the Corrective Services Act.  It was submitted that there was error in not finding that allowing Frost to visit was improper.  Those arguments have been dealt with.  It was said that there was error in not applying the law relating to providing inducements to suspects (rather than witnesses).  I disagree for the reasons below.  It was said that Byrne SJA preferred a public policy encouraging criminals to inform on offenders than a public policy discouraging impropriety on the part of the police.  His Honour neither expressed nor implied such a preference.  It was said that Byrne SJA misunderstood the evidence as to Reed being isolated from his lawyers.  I cannot see any error in this regard.  Byrne SJA considered the evidence carefully and formed a conclusion with which I agree.  It was submitted that Byrne SJA wrongly found there was no reason to doubt the reliability of Reed’s version.  There is no error demonstrated there, to the contrary, see below. 

[54] I do not find any error in the 2008 decision.

Inducement

[55] Otherwise the submissions of the applicants relied on the fact that Federal officers offered Reed inducements to co-operate with them.  Reliance was placed on cases in which inducements were offered to a suspect rather than a witness, for example R v Thomas.[24]It was contended that the decision of Byrne SJA was in error because it did not apply principles such as those enunciated in R v Thomas and the cases referred to therein.  In my view this argument is wrong in principle.  The public policy considerations as to co-operation are set out in R v Gladkowski.[25]

[56] The applicants relied on R v Falzon.[26]  There, evidence of an indemnified witness was excluded.  Investigating officers obtained statements from the witness by, “threats, promises and intimidation of a gross character” – p 438.  The trial judge found that the Bunning v Cross discretion was not limited to evidence “emanating from an accused and fairness to the accused is not the only criterion”.  The Court ought not let itself be seen as “sanctioning or at least overlooking such methods of questioning” – p 439.

[57] The facts of this matter are not comparable to those in Falzon.  Falzon is no authority for the proposition that inducements cannot properly be offered to a person in Reed’s position.  No such authority was cited.  I reject the submissions of the applicants to the effect that there was impropriety on the part of the Federal officers in offering Reed inducements.

Reliability of Reed’s Evidence

[58] Byrne SJA noted that other prosecution evidence, including documentary evidence, telephone intercepts and physical surveillance logs confirm important aspects of Reed’s statement – t 3.  He noted that Reed’s statement was apparently reliable – t 19 – and that counsel acting for the applicants before him did not challenge the reliability of Reed’s statement – t 14.  The same evidence as to telephone intercepts, travel records, physical surveillance evidence, documentary evidence and fingerprint evidence before me showed that Reed’s statement was substantially corroborated by other Crown evidence.  In addition, the jury’s finding at the first trial would be difficult, if not impossible to explain, had they not substantially accepted Reed’s evidence.  The Court of Appeal in R v Handlen & Paddison commented that Reed’s evidence was “amply supported” by other evidence.[27]

Section 130 Evidence Act

[59] Before me the applicants relied upon s 130 of the Evidence Act 1977 (Qld) on the basis that it would be unfair to admit the evidence against the applicants.  Reliance was placed on the matters already discussed.  For the reasons already given, I reject the contention that it would be unfair for Reed’s evidence to be led against the applicants. 

[60] While the applicants before Byrne SJA may not have characterised their arguments as a basis for the exercise of discretion under s 130 of the Evidence Act, I do not see the applicants’ advancing this legal characterisation before me as in any real way differentiating this application from that made before Byrne SJA.