Crowe v DPP [2015] NSWSC 747 | Case summary

Crowe v DPP [2015] NSWSC 747 | Case summary | Zoe

It was against that background that senior counsel for the plaintiff made the following submissions to his Honour in the course of the committal: "TERRACINI: That is in relation to witnesses D, G and I. There is nothing new in the authorities that they put forward, there is nothing new in the authorities that we put forward either by the same token, but this particular type of evidence that we seek to cross-examine on falls within the standard parameters. These are, in effect, co-offenders, criminals in a criminal enterprise specifically in relation to the one that is before the Court. Thirdly, they have got various induced statements or potential indemnities, criminal records, et cetera, et cetera. … … TERRACINI: Now, in the circumstances of the type of witness, these are very, very basic matters that are always permitted and if they are going to call informers and co-offenders, and they are - and I think my friend will concede -that they don't have a case without these witnesses. They are in a percentage term probably 95 per cent of the case against my client and they all fall within the same category. They give different versions and I note that there is a lot of police in the back of the Court, and I don't want to tell them how to fix up some of their statements, but there are a number of differences in the statements which are significant. …" (10.03.2015 - T.18) "TERRACINI I mean, I don't act for them, I don't - the point is that these requests are not unusual, they are regularly provided in cases where the bulk of the Crown case comes from criminal informers that are closely related in either a relationship, or an association, or a club style atmosphere. As we go down, F - I mean that is generally disclosed in relation to all of these witnesses. As we further go down the page, the relationship with the accused, the victim, the co-offender, et cetera, again fairly standard sort of questions. What we want to be able to do, naturally enough - assume worst case scenario that they are committed for trial, and these fellows give evidence. Because we won't get a trial until 2016, there is sufficient time if we get certain differences and inconsistencies to make our own inquiries and it creates a significant procedural unfairness that if we don't get to cross-examine them until trial, we are not in a position to investigate any errors or inconsistencies that are established by questioning. Then that creates problems with the trial process, itself, where we'd almost be compelled to make an application for certain inquiries to be made, and then you're criticised by the trial Judge saying you should have done them before." (10.03.2015 - T.20) "TERRACINI: As a result - and the reason why I mention it because I checked thinking, well, occasionally there is a new case on it, but there doesn't seem to be. So we are all at ad idem as to what is the test and here it is important to go back to the basis that we are not asking for witnesses to be put forward in the special category. We only need substantial reasons. As to the fact that some of these witnesses may be intimidated and what have you, that's just nonsense. They're all allegedly members of whatever is quite allegedly a vigorous association of violent people and it is hardly suggested that they are going to be intimidated by coming to Court where the standard procedures are if there was a prospect of that then they can be provided with a screen, or you know, et cetera, et cetera and I just don't, with great respect, think that is a valid point in relation to the personnel associated in a case like this. … Very briefly, the Crown's just not in a position to say that we are not going to get any benefit out of the cross-examination. History tells us demonstrably that rollover witnesses at times are both inconsistent and self-serving. With respect to 16, the possibility of us being taken by surprise, that is the very point that I adumbrated before to your Honour. If we do establish some inconsistencies, then we can make inquiries before the trial because we know the extent, both the statement and the cross-examination, we know the extent of the information that we have to meet. Now, these witnesses are fundamental to the Crown case, and I am not putting it too high They can't get a conviction without these witnesses and there will be significant warnings given by the trial Judge because they obviously fall within 165 as being potentially unreliable, not just they are criminals generally, but they are involved allegedly in the very same criminal activity with an interest which cannot be denied, with an interest to save their own skins. So potentially unreliable. In relation to the last paragraph of that page, paragraph 17, I concede that the failure to cross-examine witnesses of this type is always prejudicial where the Crown seeks to say that, in effect, we have to demonstrate undue prejudice. Well, that case does not deal with rollovers and informers. They are in a special category and that is why warnings are given about them. My final paragraph is the claim by the Crown. We haven't demonstrated - not demonstrated any prejudice Well, our final submission is we are significantly prejudiced They are basically the only witnesses against us, they all fall within a particular category, and we need to be able to cross-examine them so that we can be in a position to meet the evidence at trial if we are committed. There is a possibility - there is a possibility that they would be so discredited that we may not even be committed for trial and I have put those details in my submissions - the law in respect of that." (10.03.2015 - T.21-22).

His Honour delivered judgment in the following terms: "HIS HONOUR: Yes, sure. Okay, well it's a difficult task in terms of assessing whether there are substantial reasons for requiring witnesses for cross-examination. It requires the assessment of each brief, each witness and each submission for each defendant in situations where they are markedly different. Let me assure you that I have read the briefs and the submissions and the replies to those submissions at least twice. The test is set out in s 91 in relation to substantial reasons and in Hanna and Kearney which says that, "The section has as its primary aim the limitation of the time occupied in committal proceedings". But it also says in Studdert's judgment: "The application to cross-examine requires identification and consideration of the objective of the cross examiner and the framework of the prosecution case. To require a witness for cross- examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute "substantial reasons". It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks. … In a number of cases including the reading speeches allusion is made or reference is made to what constitute substantial reasons. That is where cross-examination may result in the discharge of the defendant, where it might undermine the credit of an important witness. Where it may narrow the areas in dispute between the prosecution and defence. Where it might clarify and marshal evidence which is vague and illusory. Where it allows the defendant a proper understanding of the nature of the Crown case or an opinion held by a witness. Where cross-examination may ground a no bill application. To explore an area which slightly to be made an application would be made by the defence for exclusion of evidence. To clarify conflicting or inconsistent stories. To assist in bringing relevant issues into focus. To narrow areas in dispute. To avoid surprise at trial and to gain a precise knowledge of a case against a defendant." Let me state generally at the outset, the evidence relied by the Crown is from either co-accused or persons said to be members of the Brothers for Life gang. The majority of those statements are induced and disclosure made by the prosecution. One or two have not been the subject of disclosure but that must be done by the prosecution before trial. There is nothing in my view to demand same at committal level nor should that fact alone justify application to cross-examine. The applicant must clearly define the purpose of cross- examination sought. The whole purpose of s 91 is to limit cross-examination to legitimate and defined areas assessed against the strength of the prosecution case having regard to the administrative functions the Court is performing in committal proceedings and acknowledge the restrictions imposed by 270 of the Criminal Procedure Act in relation to the power to exclude admissions and matters arising under pt 3.11 of the Evidence Act. Both of which are factors in play in relation to these matters. It also must be recognised that s 165 of the Evidence Act has restricted operation at committal but is a legitimate assessment task at trial. Any request must be focused to the task and delineated clearly. It cannot be so broad as to defeat examination or the aim for cross-examination. I note further in relation to the testing of witnesses at trial the majority will be examined separately by a number of defendants and their evidence tested over and over. I intend to examine the alleged offences in the manner they have been grouped." (16.03.2015 - T.3.47 - 5.6) In relation to the Hamzy murder an application has been made on behalf of Amanda Crowe. Sought in relation to that matter the calling of "L" and Fazil Bari. The areas of cross-examination are set out in that submission. They are the same for both witnesses and identical. The proposed grounds of cross-examination are membership and or involvement in the group known as Brothers for Life. His precise involvement in the offence, his credibility and history, criminal antecedents, his own criminal activity, inducements, indemnity benefits, any significant inconsistencies between his various statements provided to police. As to the inconsistencies between his evidence and the evidence of other Crown witnesses as to the precise and detailed nature of all alleged conversations with the accused and any co-accused, plus his relationship with the accused, as to his relationship with the victim, as to his relationship with either co-accused, as to his identification of alleged motor vehicles used in the offence. As to his capacity to recall events considering the delay in providing a statement. The areas of proposed cross-examination are very wide, non-specific, non-exhaustive and it is not my role to sift through and choose those that may be of relevance. The generic nature of the application in relation to both witnesses is noted. In relation to witnesses, aside from "L" and Bari, but included in the statements of "L" and Bari, is evidence of planning and meetings and conversation, the sourcing of vehicles, the assembly of resources, the arming of shooters, the travel of those shooters, who they were and direct observation of meetings, dispersion of parties and admissions. It is said while "L" is an induced witness "L" is said to be the shooter with Jamil also present and Zarshoy also present. The areas said to warrant cross-examination in such broad terms are also set out in the application. That is the prospect of discharge, the testing of the reliability of protected witnesses, the testing of credibility of witnesses to clarify issues, to clarify vague assumptions and conflicting and inconsistent statements regarding their exact roles, records, conversations and address the problems related to delay. It is said this will allow the accused to know with precision the case against her and test the evidence of the witnesses. It is said to be crucial for a number of reasons, that is the nature and seriousness of the allegations, the penalty if proven, the assistance in identifying issues that will be in dispute at trial and to promote the efficient conduct of the matter in the Supreme Court following committal. It seems to me that is a one size fits all submission. The cross-examination is too broad and almost amounts to an unlimitable examination. The evidence available to the accused contained in the brief is clear. Clearly set out as to her involvement at each step and there cannot be any surprise in relation to the matters identified. They have been identified with precision. It is a strong Crown case. It is corroborative and it is corroborated by other accounts and surveillance. In my view the request fails to make out substantial reasons to require the calling of a witness for cross-examination and that failure is in both respects. IN RELATION TO THAT MATTER THE APPLICATION IS DECLINED. In relation to the Chikolatta Bankstown shootings of 7 November 2013 Ms Crowe's representatives seek witnesses D, G and I. That submission in terms of the areas of proposed cross-examination and reasons are identical in every respect with that made already in relation to the persons required for cross-examination in relation to the murder of Hamzy. Again this is not a one size fits all jurisdiction. I rely on the same reasons for dealing with that application to decline the application in this matter. Again it seems to me it lacks specificity, analysis of evidence in the brief and the nature of the test in these proceedings. The case is strong and supported by intercepts. THAT REQUEST FAILS A similar application is made in relation to Jamil Qaumi. That application seeks witnesses C and D as to event planning, possession of firearms, the shooting, the events afterwards, credit. The reasons set out for that request is that it will undermine their credit or result in discharge. On the Crown case that is already referred to, that cannot be the case. In this matter C is said to be present when the vehicle was hired so any evidence he gives is quite restricted. I have made observations already in relation to witness D whose evidence covers a number of allegations. The precise grounds said to fit substantial reasons are not stated. It is rather a shopping list is supplied which lacks direction and focus. Nor is there a clear connection between what is sought and the general list of matters sought to be examined. IT IS TOO GENERAL AND UNRELATED TO THE PROPOSED CROSS-EXAMINATION TO BE SATISFACTORY AND IN RELATION TO THAT MATTER THE APPLICATION IS DECLINED." (16.3.2015 - T.7.7 - 8.32)

In circumstances where an indictment has been found, the statement of principle in Sergi v Director of Public Prosecutions (Court of Appeal, unreported, 10 September 1991) (Kirby P, Meagher and Handley JJA) remains applicable. "1 Courts of high authority have repeatedly stressed the great circumspection which should be exercised in the provision of relief which would have the effect of disturbing the conduct of a criminal trial. There is no doubt that this Court, as a supervisory court, has a wide jurisdiction to grant such relief where justice requires it. See Barton v R (1980) 147 CLR 75, 96. However, it is a jurisdiction to be sparingly exercised. Lamb v Moss (1983) 49 ALR 533, 545; Bacon v Rose (1972) 2 NSWLR 793, 797; Cain v Glass (No 2) (1985) 3 NSWLR 230, CA. In part this restraint arises out of an historical respect for the jury which takes charge of the accused once the trial commences. In part, it derives from a recognition by appellate courts of the difficulties attending the conduct of complex criminal trials. In part it follows from the large provisions to challenge a conviction on appeal if at the end of a trial the accused is convicted and still complains about an interlocutory ruling. In part it is based upon a recognition of the dangers of the "fragmentation in the criminal process". This last consideration was mentioned most recently by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 328 and 329. It is essential that more than lip service be paid to these injunctions of restraint. They apply in this case. 2 Courts have also taken pains of late to stress the authority of the DPP to find a bill of indictment and the discretion which is there involved separate from the (usually anterior) exercise of discretion to commit an accused person for trial. See Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520, 527 (CCA). In the present case, the DPP has now found a bill. The order of the magistrate although historically anterior was a necessary pre-condition or a legal foundation for the DPP's actions - see R v Leslie Robert Butler, CCA, unreported, 16 August 1991 (per Gleeson CJ, p 4). That action stands on its own footing. The decision of the magistrate committing the claimant for trial has, thus, now been overtaken by the DPP's decision. Any order directed to the magistrate to re-open the committal proceedings could not of itself affect the DPP's exercise of discretion to find a bill. To the contrary, the magistrate would be entitled unless the DPP elected to withdraw and revoke the bill so found, to regard the re-opened committal as entirely futile. A later finding by the magistrate on a reconsideration of s 6 properly construed that there was no evidence to warrant committing the claimant for trial would leave the DPP's bill of indictment completely unaffected. The DPP has made it clear to this Court that he intends to present and prosecute his bill when the trial opens. Courts will not usually review the decision of a prosecutor to find a bill, at least in circumstances such as the present. See Grassby v R; R v Woolcott Forbes (1944) 44 SR(NSW) 333, 338 (FC). Therefore the relief sought by the claimant in this Court would not provide a useful basis for any order having the practical effect which the claimant seeks, namely the delay of the commencement of his trial."

The decision of the Court of Appeal in V v McDonald and Ors [1995] NSWCA 487 (Mahoney, Handley and Powell JJA) is important because it integrates the effect of current legislation with a statement of principle to the same effect as that in Sergi. "In Barton v The Queen 147 CLR 75, the High Court referred to the advantages which committal proceedings provided for an accused person and views were expressed as to the prejudice apt to flow from proceedings commenced by an ex officio indictment or otherwise without appropriate committal proceedings. In Barron: at 222-224; I referred to what had there been said. Samuels JA and Hunt AJA: at 216, 233; and I: at 222-224; considered the weight to be given to the absence of committal proceedings or proper committal proceedings in determining the fairness of the accused's trial. It was the view of all members of the Court that the absence of committal proceedings was a matter to be taken into account but it did not of itself establish that the trial of the accused would be unacceptably unfair. In that case, criminal proceedings based upon an ex officio indictment were not stayed. In recent times there have been at least two changes affecting criminal proceedings relevant for present purposes. Committals are now ordinarily paper committals: the evidence to be adduced at the trial is reduced to writing, the writing is tendered to the magistrate, cross-examination is allowed only in the circumstances permitted by the magistrate and/or in accordance with the existing legislation, and the magistrate determines whether a case has been made out for committal for trial upon the material which, in the result, is before her. The result of this is that, in some cases, the opportunity to explore the evidence of potential witnesses does not exist: the accused loses both the legitimate opportunity to explore the evidence and its potential ambiguities prior to the trial and he is deprived of the (perhaps less legitimate) opportunity to involve those witnesses in ambiguities, errors or inconsistencies which may be turned to account at the trial. In addition, the occasions for the exercise of this Court's supervisory jurisdiction have in practice been restricted. As indicated in Jago and in other cases, the assessment of the injustice apt to affect the trial of an accused is to be made generally upon the assumption that the trial judge will do what he can and should do in order to remove or mitigate the suggested injustice at the trial. Provision is now made for the trial court to deal in advance with such of these matters as may appropriately be so dealt with. Directions may be given and steps taken at the pre-trial stage for the purpose of removing or mitigating prejudice affecting the fairness of the trial and, during the course of the trial, special procedures may be adopted for that purpose, eg, by affording an opportunity for cross-examination of a witness in the absence of the jury: see, eg, the case of Joseph Anthony Basha (1989) 39 A Crim R 337. The power of this Court to intervene in the exercise of its supervisory jurisdiction so as to ensure that the trial of an accused is not unacceptably unfair remains to be exercised in appropriate cases. However, as has been pointed out on many occasions, it is not every prejudice suffered by an accused which will render a trial unacceptably unfair so as to warrant the intervention of this Court: see Barron at 226-227. Stated broadly, it is necessary to consider whether, there is in a particular case prejudice such that, notwithstanding what may be expected to be done at the trial or otherwise, the trial will be unacceptably unfair. In my opinion this is not such a case. Mr Andersen QC, for Mr V, relied essentially upon the absence of (as he claimed it to be) proper committal proceedings. He did not, in his oral argument, press that the absence of the right to cross-examine the child should weigh heavily: it was, I think, seen as unlikely that such an opportunity would exist in proper committal proceedings. Mr Andersen stressed in particular the failure (as he asserted it to be) of the magistrate properly to consider the competence of the child to give evidence and whether the child's evidence should have been excluded from consideration in the committal proceedings. He submitted that in this context there was a case for intervention by this Court. The mere absence of committal proceedings does not in itself establish that this Court should intervene. As I have indicated, that was referred to in Barron. In the present case an indictment has been found and, as Mr Andersen rightly concedes, that indictment cannot be set aside in the present case. The Court has the assurance of Mr Johnson for the Director that the Director proposes to proceed to trial upon that indictment. In Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, unreported) the circumstances were different but the principle applied by the Court illustrates that matters of this kind are not such as to warrant intervention."

A further analysis of the relevant principles was undertaken in Director of Public Prosecutions v PM [2006] NSWCCA 297; 67 NSWLR 46. The background to this matter was that the Director of Public Prosecutions appealed pursuant to s 5F of the Criminal Appeal Act 1912 against an order by the District Court "remitting an indictment containing one count of aggravated sexual assault (s 61J(2)(d) of the Crimes Act 1900) to the Children's Court". The Notice of Appeal sought an order vacating the order made by the District Court. The appeal by the DPP succeeded. In the course of reaching that conclusion, Latham J (with whom Whealy J agreed) said: "82 it is clear that the Director of Public Prosecutions (the DPP) has power to present an indictment regardless of the fact that there may have been some defect in the committal proceedings and the finding of an ex officio indictment in those circumstances will not produce an abuse of process, unless it would result in unfairness to the accused at trial: s 8(1) of the Criminal Procedure Act; s 7 of the Director of Public Prosecutions Act 1986 and see generally R v Sepulveda [2003] NSWCCA 131; R v Janceski; Grassby v The Queen (1989) 168 CLR 1; Barton v The Queen (1980) 147 CLR 75. Moreover, the Court cannot go behind the issue of an ex officio indictment: Barton v The Queen. 83 Even assuming that the magistrate in the Children's Court found that there was no evidence to justify a finding of guilt on a "serious children's indictable offence", any ex officio indictment issued by the DPP would remain completely unaffected: Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, unreported). 84 By the operation of r 10D of Pt 53 of the District Court Rules 1973 and s 127 of the Criminal Procedure Act, that indictment was presented in the District Court when it was filed in the Registry. Section 130(2) of the Criminal Procedure Act vests the District Court with jurisdiction with respect to the conduct of proceedings on an indictment, as soon as the indictment is presented and the accused is arraigned. This Court was informed by senior counsel for the respondent that he did not plead to that indictment on arraignment, but again, that is of no consequence given that a plea of "not guilty" will be deemed to have been entered where the accused stands mute: s 155 of the Criminal Procedure Act. 85 Thus, the District Court had jurisdiction to try the respondent on the indictment filed in the Registry. I do not understand the respondent's counsel to have argued to the contrary. Had the Crown presented that indictment at trial, the submissions by the respondent's counsel below and in this Court suggest that no objection would have been taken. The submissions to McGuire DCJ proceeded on the basis that the respondent had been deprived of the committal procedures mandated by the Children (Criminal Proceedings) Act in respect of the charge of sexual intercourse without consent in circumstances of aggravation, being the fact that the complainant was under the age of 16 years. … 102 I am driven to the conclusion that the ex officio indictment presented at the respondent's trial was procedurally valid. I can see no other basis for distinguishing between committal proceedings conducted in the Children's Court and committal proceedings generally, for the purposes of determining the availability and validity of an ex officio indictment. The special procedures thought appropriate to an essentially protective jurisdiction such as the Children's Court jurisdiction cannot, in my view, displace the undoubted power of the DPP to ensure that a person accused of an indictable offence is brought to trial, in circumstances where that accused has been discharged at committal."

Crowe v DPP

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