R v Booth (No 1)[2020] QSCPR 11

SUPREME COURT OF QUEENSLAND

1. [1]
   Jesse Owen Booth is charged on indictment as follows:

   1. Count 1:  possessing a dangerous drug in excess of two grams;
   2. Count 2:  possessing a dangerous drug; and
   3. Count 3:  possessing a thing for use in connection with possessing a dangerous drug. 
2. [2]
   Mr Booth brings an application under s 590AA of the Criminal Code Act 1899 (Qld) to exclude evidence obtained by police officers, Leading Senior Constable Bethel and Constable Hamblin, after they conducted a search of the car he was driving and located some of the drugs (count 1 on the indictment) and scales (count 3 on the indictment).  
3. [3]
   It is unnecessary at this point to detail the matters in issue on this application.  Broadly, the police say they were authorised to conduct a search of the vehicle because Mr Booth consented to them doing so.  Mr Booth says he did not consent to the search.  The two police officers who were involved in the search have both been called and have given evidence before me.  Mr Braithwaite of counsel for Mr Booth has cross-examined them and has obviously been careful not to raise imputations on the character of the Crown witnesses:  see s 15(2)(c) of the Evidence Act 1977.  As to imputations upon character, see Phillips v The Queen,^[1] R v SCA^[2] and R v Hyatt.^[3]
4. [4]
   Mr Booth has given evidence before me and is presently being cross-examined.  The Crown prosecutor, Mr Needham, wishes to cross-examine Mr Booth on prior convictions.  Mr Braithwaite submits that such a procedure is prohibited by s 15(2) of the Evidence Act unless Mr Needham obtains leave.  Leave can only be granted here as a matter of discretion if Mr Braithwaite has cross-examined the Crown witnesses in such a way as to impugn their character or, if in giving evidence, Mr Booth has impugned the character of the two Crown witnesses. 
5. [5]
   Mr Needham, in reliance upon Fryberg J’s decision in R v Nguyen,^[4] submits that no leave is necessary as s 15 of the Evidence Act does not apply to the current application as it is not a “criminal proceeding” for the purposes of that section. 

6. [6]
   Section 15 is in these terms:

“15  Questioning a person charged in a criminal proceeding

1.  Where in a criminal proceeding a person charged gives evidence, the person shall not be entitled to refuse to answer a question or produce a document or thing on the ground that to do so would tend to prove the commission by the person of the offence with which the person is there charged.

2.  Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless—

1.  the question is directed to showing a matter of which the proof is admissible evidence to show that the person is guilty of the offence with which the person is there charged;

2.  the question is directed to showing a matter of which the proof is admissible evidence to show that any other person charged in that criminal proceeding is not guilty of the offence with which that other person is there charged;

3.  the person has personally or by counsel asked questions of any witness with a view to establishing the person’s own good character, or has given evidence of the person’s good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding;

4.  the person has given evidence against any other person charged in that criminal proceeding.

3.  A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission.

4.  If the proceeding is a trial by jury, an application for the court’s permission under subsection (3) must be made in the absence of the jury.”

7. [7]
   The term “criminal proceeding” is defined for the purpose of the Evidence Act as follows:

“Criminal proceeding includes a proceeding wherein a person is charged with a simple offence and an examination of witnesses in relation to an indictable offence.”

8. [8]
   While the definition does not specifically answer the present question, it can be seen that s 15 operates beyond trial by jury and not only on summary trials, but also on an examination of witnesses.  Therefore, it is difficult to see the legislative intent behind s 15 operating on trials and examinations of witnesses but not the accused’s evidence on an application under s 590AA.  This is especially so when it is well-recognised that evidence given on a voir dire by an accused may in some circumstances be admissible against an accused in a trial. 
9. [9]
   Fryberg J held that an application to exclude evidence was not a criminal proceeding for the purposes of s 15.  His Honour thought there were indications both in s 15(2)(a) and s 15(3) to indicate that is the case.  Section 15(2)(a) refers to evidence tending to show the person is guilty of the offence for which the person is there charged.  Guilt or otherwise is determined at a trial, his Honour reasoned.  Section 15(3) refers to an application under s 15(2)(c) to be applied for in a trial by jury in the absence of a jury.  His Honour thought this assumed that a jury is present;  that is, a trial.  His Honour also took some comfort in cases which considered the relevance of claims of privilege against self-incrimination at trial and during a voir dire examination.  Justice Fryberg was sitting, like me, alone at first instance, and therefore, I ought to follow the decision of Nguyen unless there is some good reason not to.  See cases such as Farah Constructions Pty Ltd v Say-Dee Pty Ltd.^[5]
10. [10]
    However, I do not consider, with respect, that the arguments about the context of s 15(2)(a) or (3) support the Crown’s position.   Evidence led on a voir dire may tend to show the person is guilty of the offence charged, just as evidence led at a trial might do so.   Section 15(3) does not assume that the criminal proceeding is a trial by jury.  Section 15(3) read in context, in my view, provides that:

    1. Leave under s 15(2)(c) must be obtained before the question is asked; and
    2. Where there is a trial by jury, leave must be sought in the absence of the jury. 
11. [11]
    The issue here is whether the application before me is a criminal proceeding.  The definition in the Evidence Act is inclusory, non-exhaustive, and therefore, not determinative.
12. [12]
    Section 590AA of the Criminal Code is in these terms:

“590AA  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, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.

2.  Without limiting subsection (1) a direction or ruling may be given in relation to—

1.  the quashing or staying of the indictment; or

2.  the joinder of accused or joinder of charges; or

1. (ba)
   disclosure under chapter division 3 or 4; or

3.  the provision of a statement, report, proof of evidence or other information; or

4.  noting of admissions and issues the parties agree are relevant to the trial or sentence; or

1. (da)
   an application for trial by a judge sitting without a jury; or

5.  deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted; or

6.  ascertaining whether a defence of insanity or diminished responsibility or any other question of a psychiatric nature is to be raised; or

7.  the psychiatric or other medical examination of the accused; or

8.  the exchange of medical, psychiatric and other expert reports; or

9.  the reference of the accused to the Mental Health Court; or

10.  the date of trial and directing that a date for trial is not to be fixed until it is known whether the accused proposes to rely on a defence of insanity or diminished responsibility or any other question of a psychiatric nature; or

11.  the return of subpoenas; or

1. (ka)
   matters relating to protected counselling communications under the Evidence Act 1977, part 2, division 2A: or

12.  the Evidence Act 1977, part 2, division 4A or 6; or

13.  encouraging the parties to narrow the issues and any other administrative arrangement to assist the speedy disposition of the trial.

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.”

13. [13]
    There is certainly a “criminal proceeding” before the Court.  An indictment has been presented.  An application can only be made under s 590AA “… if the Crown has presented an indictment”. 
14. [14]
    The application under s 590AA is, in effect, an application of an interlocutory nature brought in the “criminal proceeding” commenced by the presentation of the indictment. 
15. [15]
    There is nothing, in my view, in either s 590AA of the Criminal Code or s 15 of the Evidence Act to suggest that the application before me is not a criminal proceeding.  It is part of the proceeding on the indictment.
16. [16]
    Therefore, s 15 applies here when the accused gives evidence on the application.  To cross-examine Mr Booth on prior criminal convictions, the Crown must show that there has been a relevant imputation against Crown witnesses and must seek leave. 
17. [17]
    I rule that s 15 of the Evidence Act 1977 applies to evidence of an accused given in an application under s 590AA of the Criminal Code Act 1899.