R v BGT
[2024] QSCPR 6
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- R v BGT[2024] QSCPR 6
- Add to List
R v BGT[2024] QSCPR 6
Reported at (2024) 17 QR 479
R v BGT[2024] QSCPR 6
Reported at (2024) 17 QR 479
SUPREME COURT OF QUEENSLAND
CITATION: | R v BGT and BA [2024] QSCPR 6 |
PARTIES: | THE KING (respondent) v BGT & BA (first and second applicant) |
FILE NO: | Indictment No 236 of 2023 |
DIVISION: | Trial Division |
PROCEEDING: | Application under s 590AA of the Criminal Code |
DELIVERED ON: | 5 February 2024, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 February 2024 |
JUDGE: | Bowskill CJ |
ORDERS: | The subpoena issued to the witness, BN, is set aside. |
CATCHWORDS: | CRIMINAL LAW – EVIDENCE – COMPETENCE AND COMPELLABILITY – where the prosecution seeks to compel a co-offender to give evidence at the separate trial of two other co-offenders – where the proposed witness has been arraigned on the charges against him, entered pleas of guilty and the allocutus has been administered, but he has not yet been sentenced – whether the witness is compellable at the trial of his co-offenders – whether the subpoena ought to be set aside on discretionary grounds Criminal Code, s 590AA Evidence Act 1977 (Qld), s 8(1) R v Pipe (1967) 51 Cr App R 17 R v Turner (1975) 61 Cr App R 67 R v Verrall [2012] QCA 310 R v Nerbas [2012] 1 Qd R 362 R v Gibb [2018] QCA 120 |
COUNSEL: | D Caruana and G M Elmore for the first applicant L Reece for the second applicant J D Finch for the respondent E Whitton for the witness |
SOLICITORS: | ACGL Lawyers for the first applicant Legal Aid Queensland for the second applicant Office of the Director of Public Prosecutions for the respondent Wallace O'Hagan Lawyers for the witness |
- [1]The defendants are charged, on indictment number 236 of 2023, with serious offences arising out of a home invasion in the early hours of 16 August 2021, including burglary by breaking in the night while armed and in company, and four counts of attempted murder, or alternatively, malicious act with intent.
- [2]There is a third young person, who I will call BN, who was also charged with offences arising out of the circumstances on this night. It is alleged BN travelled to the place where the home invasion is alleged to have occurred in a stolen car with the defendants and another person. It is said BN stayed in the car with that other person while the defendants went into the house. He was charged, by indictment presented in the Childrens Court, with burglary and stealing, unlawful use of a motor vehicle (in relation to the stealing of the car) and then a further count of burglary, with various circumstances of aggravation, and four counts of malicious act with intent (in relation to the home invasion and the offences of violence alleged to have been committed there). As to the latter offences committed in the home, BN has accepted criminal responsibility as a party.
- [3]BN was arraigned on that indictment on 23 November 2023 and pleaded guilty to each count on the indictment. The allocutus was administered. The judge did not proceed to sentence BN on that day, however. Orders were made, under section 151 of the Youth Justice Act 1992, for a pre-sentence report to be prepared and, under section 162 of that Act, referring the offence for a restorative justice process. In that regard, a restorative justice conference took place on 31 January 2024. As well as BN, it is understood a number of the complainants in respect of the offences the subject of counts 4 to 8 on the indictment (that is, the home invasion and violent offences) were present. BN’s sentence is listed for 22 February 2024.
- [4]BN was spoken to by police on two occasions shortly after the offences. The first occasion was on 18 August 2021, when he had been identified as a possible witness. After that conversation and based, it seems, on what he had said, he was then identified as a potential suspect and formally interviewed.
- [5]The trial of the defendants on the indictment before this Court was to have commenced today, 5 February, before Justice Ryan, sitting without a jury. On Friday last week, an issue arose because the Crown had flagged that it intended to call BN as a witness in the prosecution case against the defendants, relying upon the recordings of his conversation and then interview with police, under section 93A of the Evidence Act, as his evidence-in-chief. The Crown contends BN said something in that conversation and interview about overhearing one or other of the defendants saying something whilst they were still in the car about a preparedness to stab if anyone in the house woke up. I understand there are some inconsistencies, including as to which defendant he overheard saying that. In any event, the Crown submits that evidence is relevant to and probative of the issue of intent on the defendants’ trial.
- [6]A subpoena has been issued to BN requiring him to attend Court to give evidence at the trial. He is not, otherwise, willing to give evidence at the trial.
- [7]BN applies for the subpoena to be set aside on the basis that he is not a compellable witness for the prosecution or, alternatively, even if he is compellable, on the basis that the subpoena should be set aside as an abuse of process in circumstances where BN has not yet been sentenced.
- [8]The defendants apply for a ruling that the evidence of BN be excluded from the trial on the basis that he is not a compellable witness or, alternatively, on discretionary grounds.
- [9]The Crown maintains that BN is a compellable witness and submits that there is no discretionary basis on which his evidence ought properly be excluded.
- [10]The commencement of the trial has been delayed pending resolution of this issue, but it is scheduled to commence either on 6 or 7 February.
- [11]The questions that arise on this application are, first, whether BN is a competent and compellable witness for the prosecution; if so, whether the subpoena ought, nevertheless, be set aside on discretionary grounds; and if not, whether his evidence ought otherwise be excluded from the defendants’ trial.
- [12]For the following reasons, I find that BN is not a compellable witness and, even if he were, there are compelling discretionary reasons why the subpoena ought to be set aside and he not be called as a witness in the trial.
- [13]As to the first issue, although the parties referred in written submissions to section 8(1) of the Evidence Act, that has nothing to say about whether a person such as BN is a compellable witness on behalf of the prosecution. That section expressly refers to a witness on behalf of the defence, as Ms Reece of counsel pointed out during oral submissions. There is nothing else in the Evidence Act which deals with this point.
- [14]However, there is an established rule of practice, at common law, that a co-offender, against whom proceedings have been brought which have not been concluded, ought not be compelled to give evidence for the prosecution against another co-offender: see R v Pipe (1967) 51 Cr App R 17 at 21 and also R v Turner (1975) 61 Cr App R 67 at 78.
- [15]The question that this case has raised is when is a proceeding “concluded”. A proceeding may be concluded by the acquittal or discharge of the person concerned, for example, by the Crown offering no evidence or entering a nolle prosequi. It may also, however, be concluded by the conviction of the person. But the question in that context is whether the proceeding is concluded when the person enters a plea of guilty or only when they are sentenced.
- [16]There are strong indications in the authorities that, for the purposes of this rule of practice, it is only when the person is sentenced that the proceeding against them is concluded. So, where it is proposed to call a co-offender who has pleaded guilty as a witness against a co-accused, the proper course is to sentence them first. I refer, for example, to the 1855 decision in R v Jackson 6 Cox 525 (referred to in Archbold’s Pleading, Evidence & Practice in Criminal Cases, 38th edition at paragraph 402) and also to R v Payne [1951] All ER 102 at 103 and R v Pipe (1967) 51 Cr App R 17 at 21.
- [17]The policy behind this rule is clear: it is so that there should be no suspicion of the co-offender’s evidence being coloured by the fact that he hopes to get a lighter sentence because of the evidence which he gives.
- [18]There has been some criticism of Pipe, at least insofar as it might be read as laying down a rule of law, rather than practice, or applied too broadly. But as Lawton LJ said in R v Turner (1975) 61 Cr App R 67 at 78, “[t]he same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude [the co-offender’s] evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the Court and that the existence of this inducement made it desirable in the interests of justice to exclude it”. See also per Badgery-Parker J, in R v Chai (1992) 27 NSWLR 153 at 172.
- [19]Whilst I was referred to cases which have addressed the meaning of “conviction” in various contexts – including whether a person is convicted at the point at which they have entered a plea of guilty and the allocutus has been administered – I am not persuaded that these cases provide an answer to the present question.
- [20]In R v Nerbas [2012] 1 Qd R 362, for example, McMurdo J, whilst not needing to finally determine the point, referred to authority for the proposition that a plea of guilty of itself does not constitute a conviction and that there must be some act constituting a determination of guilt. Even where, as in that case, the allocutus had been administered, there was authority to support the proposition that the conviction was essentially a provisional one. That was also the view expressed by Henry J, following Nerbas, in Dunlop v Department of Justice and Attorney-General [2020] 4 Qd R 572 at [36], where his Honour said: “A conviction on a plea of guilty occurs when there is some act constituting a determination of guilt. This occurs provisionally when a plea of guilty is accepted by a court and conclusively when the Court thereafter imposes sentence”.
- [21]The reason why a conviction in those circumstances may be regarded as “provisional” is self-evidently because it remains susceptible to being set aside, on application or should the court not accept it: see, for example, R v GV [2006] QCA 394 at [38].
- [22]On the other hand, in R v Verrall [2012] QCA 310, Holmes CJ expressed the view that sections 648, 649 and 650 of the Criminal Code support the view that conviction occurs, at the latest, when the defendant is called on, as section 648 prescribes – that is, when the allocutus is administered.
- [23]However, the reasons why I do not consider these cases provide the answer is because it is important to keep in mind the context in which the question is being considered. As a number of the judges made clear in the High Court’s decision in Maxwell v R [1996] 184 CLR 501, the question of what amounts to a conviction admits of no single answer, and depends on the context (see, for example, per Dawson and McHugh JJ at 507 and at 520 per Toohey J). In Verrall, for example, the context was the timing of the appeal.
- [24]In the more recent case of R v Gibb [2018] QCA 120 at 70, whilst Holmes CJ referred to it as “arguable” that, having pleaded guilty and having been administered the allocutus, the relevant person was no longer a “person charged” for the purposes of section 8 of the Evidence Act, her Honour also alluded to the rule of practice that it was in the accused person’s interests that such a person not be compelled to give evidence until they had been sentenced – so that they could give evidence “without fear or hope that anything he might say could affect the prosecution’s approach to him on sentence or the sentence imposed on him”.
- [25]The context matters. Here, having regard to the policy behind the rule of practice, it is appropriate to proceed on the basis that the proceeding against a co-offender is not concluded – such as to make it appropriate for them to be called by the prosecution to give evidence against a co-accused – until they have not only been convicted by their pleas of guilty but they have been sentenced as well.
- [26]I do not consider that the statutory context of the Youth Justice Act, for example section 151 and/or section 162, alters this conclusion. Even if a pre-sentence report is ordered to be provided, or a referral for a restorative justice process is made, it remains the fact that until the young person has been sentenced, the proceeding has not been concluded. Circumstances could still change – whether that is in relation to the plea itself or the factual circumstances relied upon as the basis for the plea or the sentence – such that the potential for a perception that the evidence of the young person may be coloured by the hope of a better outcome remains.
- [27]For those reasons, since he has not yet been sentenced, I find that BN is not compellable as a witness in the prosecution case or, alternatively, even if compellable as a matter of law, that it is appropriate as a matter of discretion to set aside the subpoena issued to him.
- [28]That conclusion renders it unnecessary to consider the further arguments relied upon by the defendants for the discretionary exclusion of BN’s evidence in any event. One of those arguments arises from the fact of the restorative justice conference having taken place on 31 January 2024, involving some or all of the complainants in relation to the home invasion and violence offences. It has not been necessary for me to address the issues raised by the defendants in relation to this, including the fact that were BN to be called as a prosecution witness, that would occur after he had engaged in a discussion with other Crown witnesses, the content of which has not yet been and may not be disclosed to the defendants’ legal representatives, which is unideal to say the least. It would, in any event, have been difficult to properly address this argument, because the issue of what can be disclosed about this has not yet been resolved.
- [29]For those reasons, I propose to order that the subpoena issued to the witness, BN, be set aside.