Re Singh, Miller and Brush[2022] QSC 44

SUPREME COURT OF QUEENSLAND

1. [1]
   The three applicants for bail were charged with murder.  Ultimately, the bail applications were not heard as the committal proceedings were concluded and all three applicants were discharged.  By consent, the bail applications were then dismissed.
2. [2]
   Serious questions arise as to the conduct of police involved in the investigation.  On 22 March, I made the following orders in each application:

“1. The application is dismissed.

2. The matter be referred to each of:

a. The Officer in Charge, Ethical Standards Command of the Queensland Police Service;

b. The Minister for Police; and

c. The Crime and Corruption Commission Queensland.”

3. [3]
   These are my reasons for making those orders.

Background

4. [4]
   On 18 October 2019, two men, Shane Anthony Ross and Cameron James Martin, were murdered at Tallebudgera.  Both were shot.  Both are said to be associated with an Outlaw Motorcycle Gang (OMG).
5. [5]
   It was alleged that each of the three applicants were members of an OMG but not the one with which Ross and Martin were associated.
6. [6]
   The Crown case was that Singh and Miller travelled in a white BMW X5 and stalked Ross and Martin who were travelling in a Mercedes Benz.  Miller and Singh, in the BMW, pursued Ross and Martin in the Mercedes Benz and eventually shot them.
7. [7]
   Brush was not alleged by the Crown to be present at the time and place of the killings.  He is linked with the BMW (which was stolen) and is said to have lured Ross and Martin to the area where they were murdered.
8. [8]
   All three of the present applicants were arrested and charged with various offences, most significantly two counts of murder.
9. [9]
   Brush did not make a bail application until February 2022 when the current application was filed.  Singh made an application for bail which was refused by me on 1 April 2020.  Miller made an application for bail which was refused by Boddice J on 6 May 2020.
10. [10]
    The current applications came before me on 15 February 2022.  In order to pursue what, in Singh’s and Miller’s cases, were second bail applications, they had to demonstrate a material change in circumstances from the time they made their first applications.^[1]  They pointed to the fact that committal proceedings had been heard and, in the course of those proceedings, the case against them had been shown to be significantly weaker than had been alleged against them at the time of the first bail applications.  All applicants submitted before me that bail should be granted because the case against each of them was either very weak or non-existent. 
11. [11]
    Ms Gallagher, for the Director of Public Prosecutions, properly conceded that a material change in circumstances had been shown by both Singh and Miller, but she opposed the applications.
12. [12]
    It became apparent during the hearing of the applications that:

1. all evidence against Brush had been led in the committal proceedings;
2. submissions had been made that he ought not be committed for trial; and
3. judgment was likely to be given when the committal proceedings against all three of the current applicants recommenced on 11 March 2022. 

13. [13]
    It was anticipated that the committal proceedings against Singh and Miller would likely conclude on 11 March 2022.  It was anticipated that submissions would be made on behalf of each of Miller and Singh that they ought not be committed for trial.
14. [14]
    Although she was facing bail applications where a central issue was as to the strength or otherwise of the Crown case, Ms Gallagher was not armed with affidavits exhibiting the relevant evidence which was said to prove the guilt of the three applicants.  Ms Gallagher told me that she could tell me what the Crown case was and proposed to do so by referring to evidence then not before me.  That was not appropriate.
15. [15]
    I then determined to adjourn the application to 11 March 2022 giving directions, including that:

“By 4.00 pm on 22 February 2022 the respondent file and serve upon the solicitors for the applicant:

1. (a)
   a document identifying each and every material fact upon which the Crown relies to draw an inference that the applicant either shot the two deceased or was present when the co-accused Miller shot the two deceased;

2. (b)
   the document must cross-reference each material fact to the evidence upon which the Crown relies to prove that fact;

3. (c)
   an affidavit exhibiting the evidence identified in direction 1(b) above.”

16. [16]
    Upon later reflection, it appeared to me that I should not determine the bail applications until after the Magistrate had determined the committal proceedings.  The magistrate had to determine for himself, on the evidence before him, whether a case existed upon which a reasonable jury, properly directed according to law, could convict.^[2]  I thought that it may be a distraction to the magistrate for me to express my own views as to the strength of the Crown case on those bail applications before the magistrate had an opportunity to determine the committal proceedings.  The present applications were then adjourned to 25 March 2022.  It was anticipated that by that time the magistrate would have ruled on the committal proceedings.
17. [17]
    The magistrate found that there was no case against any of the current applicants warranting their committal for trial.  Brush was discharged by the magistrate on 11 March 2022 and Singh and Miller were discharged on 18 March 2022.

The bail proceedings

18. [18]
    On Singh’s application for bail, rejected by me on 1 April 2020, the Crown relied upon an “objection to bail affidavit” sworn by Detective Senior Constable Julian Libbis.  This affidavit followed a printed form which is in common use.  Objection to bail affidavits are sworn by police officers investigating the offences for which the applicant for bail has been charged.  Often the deponent of the affidavit is the arresting officer.
19. [19]
    The preliminary part of an objection to bail affidavit records the charges.  Then there is “PART 1 - Bail Act 1980 s 16(3) ‘Show Cause’”.  There, the deponent nominates whether the person charged is in a show cause situation for the purposes of s 16 of the Bail Act and if so, why.
20. [20]
    The proforma of Part 2 is a series of five boxes which can be crossed by the deponent to the affidavit.  Part 2 in the proforma appears as follows:

“PART 2 - Bail Act 1980 s 16(1) and (2) ‘Unacceptable risk of released on bail’

☐ In my opinion there is an unacceptable risk that if released the defendant would fail to appear and surrender into custody.

☐ In my opinion there is an unacceptable risk that if released the defendant would commit an offence.

☐ In my opinion there is an unacceptable risk that if released the defendant would endanger the safety and welfare of a person.

☐ In my opinion there is an unacceptable risk that if released the defendant would interfere with witnesses or otherwise obstruct the course of justice in relation to himself/herself or another person.

☐ In my opinion the defendant should remain in custody for his or here own protection or welfare.

Provide facts to substantiate marked boxes, including details of the following relevant particulars in accordance with Bail Act 1980 s 16(2):

1. (i)
   the nature and seriousness of the offence(s);

2. (ii)
   the character, antecedents, associations, home environment, employment, background and place of residence of the defendant;

3. (iii)
   the history of previous grants of bail to the defendant;

4. (iv)
   strength of the evidence against the defendant;

5. (v)
   if the defendant is charged with a domestic violence offence or an offence against the Domestic and Family Violence Protection Act 2012 s 177(2) - risk of further domestic violence or associates domestic violence under Domestic and family Violence Protection Act 2012 being committed by the defendant;

6. (vi)
   (if applicable) evidence additional to the court brief implicating the defendant.”

21. [21]
    Section 16(1) of the Bail Act prescribes the five proposed considerations for the court^[3] on an application for bail.
22. [22]
    Four of those considerations are as to nominated risks.^[4]  The fifth is consideration of danger to the alleged offender if released on bail.^[5]
23. [23]
    Part 2 invites opinion evidence from the deponent as to the existence or otherwise of the various risks considered when determining the risks prescribed by s 16(1) of the Bail Act. 
24. [24]
    DSC Libbis, in the objection to bail affidavit in the case against the present applicants, crossed all five boxes.
25. [25]
    Part 3 of the objection to bail affidavit is headed “PART 3 - Summary of Facts relevant to Bail Act 1980 s 16(1) and (2)”.  In this part of the affidavit, the facts of the offending are described as they are relevant to the risks prescribed by s 16 of the Bail Act and identified in Part 2 of the affidavit.
26. [26]
    Central to the case against Singh and Miller were two mobile telephones which, during the investigation, were called the “red handset” and the “green handset”.  Within the BMW’s electronic systems was data that could be tracked.  On the Crown case, electronic evidence effectively placed both the red and green handsets in the BMW at relevant times.  The BMW could also be placed at the murder scene at relevant times.
27. [27]
    Evidence that the red and green handsets were in the BMW was not sufficient to raise a case against either Singh or Miller.  What was necessary was to prove that Singh and Miller were in the BMW at the time of the killing.  The inference then would be that Singh and Miller murdered Ross and Martin. 
28. [28]
    Therefore, the challenge was to link Singh and Miller to the red and green handsets.  There was evidence that those telephones were active in general areas where Singh and Miller were at times well before the killing.  That did not take the case far.  The critical statement in the objection to bail affidavit was this:

“A review of the ‘RED’ and ‘GREEN’ Ciphr phone telecommunication data (FCCR cell locations), cross referenced to location data of personal phones, known travel movements, and CCTV footage, has placed the users of the Ciphr phones as MILLER (‘GREEN’) and SINGH (‘RED’) from the period of relevant activation of the handsets to the murders of ROSS and MARTIN. Up until two and a half hours before the murders, evidence depicts MILLER and SINGH in possession of the handsets.” (emphasis added)

And later:

“Of note, MILLER and SINGH are observed on CCTV at Caltex, intersection of Darlington Drive and Leisure Drive, Banora Point NSW (‘Caltex’) at 6:49pm on the evening of 18 October 2019, the night of the murders. At this time both persons are observed in a white Toyota Corolla Ascent, bearing NSW registration CV31GV (‘the Toyota’) with MILLER depicted as driver and SINGH as front passenger. The Toyota is registered to a family member of SINGH’s partner whom resides at Banora Point. The Toyota is then depicted to travel northeast along Leisure Drive towards the M1 Highway, the opposite direction from which it travelled from.

The Toyota is then depicted returning at approximately 10:59pm on 18 October 2019 on Caltex CCTV returning from the direction of the M1 Highway and driving back in the direction to the family members home address in Banora Point NSW.

This 4 hour ten minute period that the Toyota is away from Banora Point, coincides with the activation of the BMW, travel of same and Ciphr phones to, and from, Tallebudgera, and the deactivations of the BMW and Ciphr phones. Investigators believe that the Caltex CCTV footage depicts MILLER and SINGH enroute to collect the BMW to carry out the murder of ROSS and, by proxy, MARTIN, before returning the vehicle.”

29. [29]
    It can be seen then that DSC Libbis asserts that there is closed circuit television (CCTV) footage depicting Singh and Miller as the users of the red and green handsets. 
30. [30]
    The murders occurred at about 9.15 pm on 18 October 2019.  The reference to “two and a half hours before the murders” is therefore approximately 6.45 pm.  The CCTV footage referred to having been taken at the Caltex service station at Banora Point was taken at 6.49 pm on 18 October 2019.
31. [31]
    What DSC Libbis is conveying in the objection to bail affidavit is that the CCTV footage of the Caltex at Banora Point depicts Singh and Miller with the red and green handsets.
32. [32]
    This interpretation of the objection to bail affidavit was confirmed by DSC Libbis in his evidence at the committal proceedings.  DSC Libbis was cross-examined on the contents of the objection to bail affidavit as follows:

“Thank you. It’s that last ‘Singh and Miller are red and green’ that I want to ask you some questions, about, okay?---Yes.

Particularly Singh being red, obviously enough because I act for him. So can I ask you, then, on the objection to bail affidavit, to go, please, to page 5 of 11. Do you see that page?---Yes.

Now, the second-to-last paragraph, you say this:

‘A review of the red and green Ciphr phone telecommunications data (FccR cell locations) cross-referenced to the location data of personal phones, known travel movements and CCTV footage has placed the users of the Ciphr phones as Miller (green) and Singh (red) from the period of relevant activation of the handsets to the murders of Ross and Martin.’

Have I read that correctly?---Yes.

And then it goes on:

‘Up until two and a-half hours before the murders, evidence -’

you say -

‘depicts Miller and Singh in possession of the handsets.’

?---Yes.

Right. Just let’s deal with the last bit first. What evidence depicts Miller and Singh in possession of the handsets, just so I can focus on that later?---That is the Banora Point Corolla.

The Banora Point - - -?---The Corolla fuelling up at Banora Point.

So the - so you’re talking about the Corolla that fuels up at Banora Point at some point in the evening?---Yes.

Yes. And there are - there’s footage - CCTV footage that shows very clearly Mr Singh and Miller in that vehicle at that time?---Miller, and we suspect Singh was driving.

Right. In any event, let’s assume for present purposes that it shows them both in there?---Yep.

I take it, then, from where you’ve put it depicts Miller and Singh in possession of the handsets, I take it you can see the handsets, can you?---No.

No. You can’t see the handsets?---No, you can’t.

Why did you say it depicts Miller and Singh in possession of the handsets?---That was an error.

It was an error?---Yes.” (emphasis added)

33. [33]
    The alleged evidence sworn to by DSC Libbis placing Singh and Miller in possession of the red and green handsets at the Caltex service station at Banora Point at 6.49 pm on 18 October 2019 is the critical evidence in the Crown case.  It links the red and green handsets to Singh and Miller shortly before the killings.  That evidence just does not exist.  The footage does not depict what DSC Libbis swore on oath it depicted. 
34. [34]
    The objection to bail affidavit was relied upon by the Crown to defeat the previous applications for bail made by Singh and Miller.
35. [35]
    It was common ground on the applications before me on 15 February 2022 that the assertion by DSC Libbis that Singh and Miller are seen with the telephones is false.  The obvious inference is that DSC Libbis has sworn the affidavit without viewing the footage. 

Conclusions

36. [36]
    Section 15 of the Bail Act provides that, upon a bail application, a court may “receive and take into account evidence of any kind that it considers credible or trustworthy”.^[6]
37. [37]
    Bail applications are often brought soon after the arrest of a person.  It is often not practicable for police officers to present evidence in strictly admissible form.  That is no doubt the policy behind s 15 enabling a court to act on what information it considers it ought.  However, if police officers are being entrusted to place information other than strictly admissible evidence before a court on a bail application, it is imperative that those offices act objectively and responsibly.  This is especially so when police regularly rely on affidavits where the police swear to their opinion as to the presence or otherwise of the various risks which the court must, by statute, consider.  Experience is that objection to bail affidavits are often not models of objectivity.^[7]
38. [38]
    Here, Singh has been in custody for almost two years after making a bail application which was defended on assertions put before the court which were plainly objectively false.  That is an outrage and the circumstances of the present case ought to be investigated.
39. [39]
    I direct that the matter be referred to the Ethical Standards Command of the Queensland Police Service, to the Minister for Police and to the Crime and Corruption Commission for investigations.