GJT v Director of Public Prosecutions & Anor

This case was about the prosecution’s obligation to disclose induced statements to an accused. It was argued on behalf of a witness who gave two induced statements that the prosecution should be restrained from disclosure on the basis that a duty of confidentiality arose in equity. Justice Davis carefully considered the text and context of s 13A Penalties and Sentences Act 1992 and Criminal Code ss 590AB(2)(a) and 590AH(2)(e), which have competing rationales that both serve the public interest: the protection of witnesses who give induced statements; and the need to ensure an accused knows the case they have to meet by requiring disclosure of prosecution witness statements, induced or otherwise. Justice Davis held that in the absence of clear words or necessary intendment, s 13A Penalties and Sentences Act 1992 could not be construed so as to impair the right of an accused to a fair trial. It followed that the prosecution must disclose the induced statements. The originating application was dismissed.

Davis J

18 November 2022

Background

A prisoner “S” was on remand in relation to the murder of “J”. [2]. The applicant “G” was also on remand. [2]. G and S were held at the same correctional facility [2]. G gave two induced statements to police upon an undertaking to cooperate with law enforcement under s 13A Penalties and Sentences Act 1992 (the “induced statements”). [2], [8]–[9]. The prosecutor decided to call G as a witness, as such, the prosecution was required to disclose the induced statements to S under Criminal Code Act 1899 Sch 1 Criminal Code (the “Criminal Code”) ss 590AB(2)(a) and 590AH(2)(e). [10]. Prior to disclosure of the induced statements, G received an envelope which contained the words “Tick Tock Times Up!” with a bullet enclosed. [11]. The sender could not be identified, however, an investigation revealed that the threat was unrelated to the prosecution of S. [11]. In any event, G sought equitable relief to, inter alia, restrain the Commissioner of Police and the Director of Public Prosecutions (the “prosecution”) from disclosing the induced statements to S. [12]–[13].

Whether the prosecution was required to disclose the induced statements

It was argued on behalf of G that the induced statements were given to the prosecution on the condition that they could only be used for “proceedings” under s 13A Penalties and Sentences Act 1992. [18]. The disclosure of the induced statements, it was said, would “extinguish” the discretion of a sentencing judge to make non-publication orders having regard to the “safety of any person” under subsections 13A(8) and (9) Penalties and Sentences Act 1992. [18]. Justice Davis considered the text and context of s 13A Penalties Sentences Act 1992 which contains measures designed to protect the anonymity of induced witnesses where necessary, and ss 590AB(2)(a) and 590AH(2)(e) Criminal Code which are designed to ensure an accused receives a fair trial by requiring disclosure of a statement given by a witness for the prosecution. [16], [19]–[30], [36].

Justice Davis held that, in absence of clear words or necessary intendment, s 13A cannot be construed so as to comprise the right of an accused to a fair trial. [31]–[36]. Further a duty of confidentiality in equity did not arise in circumstances where G undertook to give evidence should he be called on to do so by the prosecution. [34].

Disposition

In the result, the originating application was dismissed. [37]–[38].

D Kerr