R v BGT and BA

This matter principally concerned the question of whether a subpoena should be set aside. In a trial for co-offenders for BN, the Crown had sought to issue a subpoena to compel BN to give evidence after he had entered a plea of guilty to the offences but before he had been sentenced. In determining whether the subpoena should be set aside the Court was required to consider first whether BN was a competent and compellable witness for the prosecution; and, if so, whether the subpoena ought, nevertheless, be set aside on discretionary grounds. In her judgment, the Chief Justice found that BN was not a compellable witness and, even if he were, there were compelling discretionary reasons why the subpoena ought to be set aside and he not be called as a witness in the trial.

Bowskill CJ

5 February 2024 (ex tempore)

The defendants were charged, 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 acts with intent. [1]. There was a third young person, BN, charged with offences arising out of the circumstances on the night. BN was alleged to have travelled to the place where the home invasion took place 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. BN accepted criminal responsibility as a party. [2].

BN was arraigned on 23 November 2023 and pleaded guilty to each count on the indictment. The allocutus was administered. The sentence was adjourned for a pre-sentence report to be prepared pursuant to s 151 of the Youth Justice Act 1992 and, referring the offences for a restorative justice process. At the time of hearing the application to set aside the subpoena the sentence had not yet occurred but the restorative justice process had. It is understood that a number of complainants in respect of home invasion and violent offences were present during the restorative justice conference. [3]. The trial against the defendants was scheduled to have commenced on 5 February 2024 but 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 1977, as his evidence-in-chief. [5].

Compellability as a witness

The Crown contends that a comment made by BN in his interview, that he overheard one of the defendants say something about a preparedness to stab if anyone in the house woke up, was relevant to and probative of the issue of intent on the defendants’ trial. [5]. The Crown sought to compel BN to give evidence against the co-offenders at their trial. BN applied for the subpoena to be set aside on the basis that he was not a compellable witness or alternatively as an abuse of process in circumstances where BN has not yet been sentenced, the defendants applied for a similar ruling. [7], [8]. The Crown maintained that BN was a compellable witness and submitted that there was no discretionary basis on which his evidence ought properly be excluded. [9].

Although the parties both referred to section 8(1) of the Evidence Act in their written submissions, her Honour found that the section had no application to the present case because the section expressly referred to a witness on behalf of the defence, not the prosecution. Her Honour found that there was nothing else in the Evidence Act which deals with the point at hand. [13]. In the absence of legislation on the point, the common law principle that a co-offender, against whom proceedings have been brought which have not yet been concluded, ought not be compelled to give evidence for the prosecution against another co-offender was applied. [14]. The question then arose as to when is a proceeding “concluded” for the purpose of the principle and more specifically, whether a proceeding is concluded when the person enters a plea of guilty or only when they are sentenced. [15].

Her Honour found that the authorities support the conclusion that a proceeding is only concluded when the person is sentenced. Noting the policy behind the rule being to ensure that there is no suspicion of the co-offenders evidence being coloured by the fact that he hopes to get a lighter sentence because of the evidence which he gives. [17]. In considering whether a person is convicted at the point in which they have entered a plea of guilty and the allocutus administered, her Honour found that the authorities did not definitively answer the question because what amounts to a conviction depends on the context. [23]. Having regard to the policy behind the rule of practice, her Honour found that it was appropriate to proceed on the basis that the proceeding against a co-offender was 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. [25]. The fact that a pre-sentence report had been ordered and restorative justice conference held did not alter this conclusion. The fact remains that until a person is sentenced, even after a plea of guilty is entered, the factual circumstances relied upon as the basis for the plea may be coloured in the hope of a better outcome. [26]. For that reason her Honour found BN was not compellable as a witness in the prosecution case nor compellable as a matter of law. [27].

The conclusion in relation to compellability rendered it strictly unnecessary for her Honour to consider the further argument in relation to the discretionary exclusion of BN’s evidence. However, her Honour did note the difficulty of BN being called as a witness after the restorative justice conference had taken place which involved some or all of the complainants in relation to the home invasion and violence offences. Noting it was difficult to address the argument, her Honour characterised the situation as unideal, to say the least. [28].

Disposition

In the result, the subpoena was set aside. [29].

K Mythen of Counsel