Crown v Accused

Supreme Court of Victoria|2022-02-17|Before: KAYE JA

CRIMINAL LAW - Evidence - Privilege against self-incrimination - Whether in interests of justice that witness give evidence - Witness involved in preparation of statements of other witnesses who gave evidence at accused's first trial - Evidence previously given in compulsory examination before Independent Broad-based Anti-corruption Commission - Evidence of witness required to ensure the accused is afforded a fair trial - Evidence Act 2008 s 128, Independent Broad-based Anti-corruption Commission Act 2011 ss 144, 182 -

1 The trial of this matter is due to commence, with the empanelment of the jury, on Monday 21 February next.

2 An important aspect of the prosecution case will be evidence, to be adduced from a number of police officers, as to dying declarations made by Senior Constable Miller when those police members attended the scene shortly after Senior Constable Miller and Sergeant Silk had been fatally shot. The prosecution will rely on that evidence as part of its case against the accused man, in order to prove that there were two persons who were present together at the scene and involved in the murder of Sergeant Silk and Senior Constable Miller.

3 In the course of the trial, the prosecution intend to call Mr George Buchhorn ('Buchhorn') as a witness. An objection has been made on behalf of Buchhorn, pursuant to s 128(1) of the Evidence Act 2008, to giving evidence on the ground that it may tend to prove that he has committed an offence arising under an Australian law.

4 At the time of the events with which this case is concerned, Buchhorn was a Detective Sergeant of police stationed at the Homicide Squad. Immediately after the murder of Sergeant Silk and Senior Constable Miller, Buchhorn was attached to the Lorimer Task Force, which was established to investigate the offences. Buchhorn's duties included the preparation of a prosecution brief which itself involved the coordination of witness statements and evidence.

5 In 2015 and subsequently, in 2019, the Independent Broad-based Anti-corruption Commission ('IBAC') conducted an investigation into the compilation of statements by the police members who gave evidence relating to the dying declarations of Senior Constable Miller, and in particular, concerning relevant alterations that had been made to those statements before they were included in the police brief. The findings made by IBAC, and the evidence that was adduced before it, constituted the basis of the accused man's second and successful appeal to the Court of Appeal against his conviction for the murders of Sergeant Silk and Senior Constable Miller.[1]

6 In concluding that there had been a substantial miscarriage of justice in the first trial, the Court identified five particular irregularities arising from the manner in which police statements, concerning the dying declarations made by Senior Constable Miller, had been produced. The third such irregularity was expressed in the following terms:

Detective Sergeant Buchhorn, some time after the murders, coordinated the production of police statements. He implemented a practice of requesting revision of initial police statements, and when those revised statements were received they were supplied as part of a hand-up brief. The original statements did not form part of the hand-up brief and were not disclosed to either the prosecution or the defence at trial.[2]

7 In reaching that conclusion, the Court placed particular focus on the production by Senior Constable Pullin of his police statement. In the statement that was part of the prosecution brief and that was served on the defence, Pullin stated that he heard Senior Constable Miller say 'They were on foot'. That statement was purported to have been made at 4:25 am on 16 August 1998, approximately four hours after the events which it described. In fact, it was revealed in the IBAC investigation that that statement was not made at that time, but some ten months later. It also was revealed that Pullin did make an initial statement on the morning of the shootings, which was also dated 4:25 am on 16 August 1998. That statement, which was not included in the police brief, and which was not disclosed to the defence or the prosecution, did not contain a number of matters that were included in the statement served on the defence. In particular, it did not contain the words 'They were on foot'.

8 Based on those matters, the Court of Appeal formed the following conclusions concerning Pullin's statement.

We are satisfied on the balance of probabilities that Pullin's destruction of his initial statement; the substitution on the police brief of a backdated statement (which incorporated important additions to the relevant declarations of Senior Constable Miller); his perjury as to the provenance of the false second statement both in the acknowledgement on the document itself and at the committal; and his failure to disclosure any of this course of conduct to the defence amounted to a gross and fundamental corruption of the trial process.[3]

9 In the course of the IBAC hearings, Buchhorn gave evidence, first, on 21 October 2015 and subsequently on 22 February and 25 February 2019. In the course of those examinations, he was questioned quite extensively about alterations which he had caused to be made to a number of police statements, and in particular the statements of police members who gave evidence about the dying declarations made by Senior Constable Miller.

10 In the present case, Buchhorn has objected, pursuant to s 128(1) of Evidence Act, to giving evidence in relation to nine specific topics. He has also objected to giving evidence, in respect of those matters, under cover of a certificate under s 128(5) of the Act.

11 At the conclusion of argument, I ruled that Buchhorn was entitled to object to giving evidence on those topics. I further ruled that it is in the interests of justice that Buchhorn be required to give that evidence, and accordingly that a certificate be given to Buchhorn in respect of such evidence pursuant to s 128(5). The following are my reasons for that decision.

12 The nine topics each, either directly or indirectly, relate to Buchhorn's involvement in the taking and compilation of statements of witnesses, and his discussions with those witnesses. In particular, objection is taken to questions which might be asked concerning Buchhorn's communications with, and involvement in, taking statements or revised statements from ten nominated police officers, namely, Colin Clarke, Helen Poke, Glenn Pullin, Graham Thwaites, Francis Olle, Francis Adams, Lou Gerardi, Ian Gray, Peter Morris and Paul Edwards. Six of those police members - Clarke, Poke, Pullin, Thwaites, Adams and Gerardi - gave evidence concerning the dying declarations. Gray, Edwards, Morris and Olle each attended the scene after the event. There is no suggestion that those four police members were witness to anything said by Senior Constable Miller. In the course of the IBAC hearings, questions were asked of Buchhorn relating to changes that he requested that each of those four police members made to their statements.

The privilege against self-incrimination - Evidence Act 2008 s 128

13 Section 128(1) of the Evidence Act entitles a witness to object to giving 'particular evidence' or 'evidence on a particular matter' on the ground that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law or the law of a foreign country. Where such objection is taken, sub-s (2) provides that the court must determine whether there are 'reasonable grounds' for the objection. If the court determines that there are such reasonable grounds for the objection, sub-s (4)(b) provides that the court may require the witness to give evidence if the court is satisfied (entirely) that 'the interests of justice require that the witness give the evidence'. Section 128(5) provides that if the witness either willingly gives evidence without being required to do so, or gives evidence after being required to do so under sub-s (4), the court must cause a witness to be given a certificate in respect of that evidence. Section 128(7) states that in any proceeding in a Victorian court, evidence given by a person in respect of which such a certificate has been given, and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given that evidence, cannot be used against the person, except in respect of a criminal proceeding in respect of the falsity of that evidence.

14 As mentioned, the objection in this case relates to nine particular matters, namely:

Mr Buchhorn makes the objection with respect to the following matters and/or areas:

(a) any knowledge as to the representations made by Rodney Miller to any police officer as to the number of offenders involved or the description of the offenders during Operation Lorimer;

(b) any knowledge or belief as to the number of offenders involved or the description of the offenders during Operation Lorimer;

(c) his assessment of the significance of the dying declarations by Rodney Miller in the investigation;

(d) his assessment of the significance of the identity of the offenders in the investigation;

(e) possession or access to any documents during Operation Lorimer containing reference to:

representations made by Rodney Miller to and police officer as to the number of offenders involved or the description of the offenders during Operation Lorimer;

the number of offenders involved or the description of the offenders during

(f) Mr Buchhorn's involvement in:

the taking of statements in Operation Lorimer including but not limited to statements of police officers Colin Clarke, Helen Poke, Glenn Pullin, Graham Thwaites, Francis Olle, Francis Adams, Lou Gerardi, Ian Gray, Peter Morris, Paul Edwards;

the taking of supplementary and/or revised statements, or the amending of statements in Operation Lorimer including but not limited to statements of police officers Colin Clarke, Helen Poke, Glenn Pullin, Graham Thwaites, Francis Olle, Francis Adams, Lou Gerardi, Ian Gray, Peter Morris, Paul Edwards;

meetings with Colin Clarke, Helen Poke, Glenn Pullin, Graham Thwaites, Francis Olle, Francis Adams, Lou Gerardi, Ian Gray, Peter Morris, Paul Edwards;

discussions with Colin Clarke, Helen Poke, Glenn Pullin, Graham Thwaites, Francis Olle, Francis Adams, Lou Gerardi, Ian Gray, Peter Morris, Paul Edwards as to their observations and/or information contained in their statements;

discussions with Colin Clarke, Helen Poke, Glenn Pullin, Graham Thwaites, Francis Olle, Francis Adams, Lou Gerardi, Ian Gray, Peter Morris, Paul Edwards as to Intergraph transcripts;

discussions with Colin Clark and Glen Pullin in relation to the amendment of their statements;

the witnessing of statements taken in Operation Lorimer;

the shredding of statements in relation to Operation Lorimer;

the collection, preparation and review of statements taken in relation to Operation Lorimer;

the preparation and review of the brief of evidence in relation to Operation Lorimer;

conversations with Graeme Collins in relation to the preparation of the brief including the review of statements;

tasking of Mr Buchhorn by Graeme Collins in relation to the clarification of statements of police officers who were witnesses to the dying declarations;

conversations with police officers with respect to questions that may be asked at committal in relation to the existence of statements.

(g) Mr Buchhorn's obligations of disclosure in his role at Operation Lorimer including in relation to previous statements not provided on the hand up brief.

(h) the method adopted by Mr Buchhorn generally in relation to:

i. the taking of statements;

ii. the witnessing of statements;

ii. the recording of descriptions of offenders;

iii. the destruction of original statements;

iv. the taking of supplementary or revised statements;

the recording of the process of taking of statements including by diary entry;

the preparation of police officers for the giving of evidence at committal or trial.

(i) answers given under compulsion in examination conducted by IBAC on the 21st October 2015, 22nd and 25th February 2019.

15 The first question, then is, whether there are reasonable grounds for the objection that evidence given by Buchhorn, in relation to any of those nine matters, might tend to prove that he has committed an offence under Australian law. Evidence by a witness will be considered to have that tendency, if it might either directly or indirectly (derivatively) tend to incriminate the witness by providing a 'lead' to incriminating evidence.[4]

16 It is indisputable that, in the circumstances, evidence, given by Buchhorn in answer to questions directed to topics (f), (h) and (i) in the objection, might tend to directly incriminate him of the offences of attempting to pervert the course of justice and misconduct in public office. Further, it is apparent that evidence given by Buchhorn in answer to a number of the other topics specified in the objection - in particular (a), (b), (c) and (e) - might tend indirectly to incriminate Buchhorn of those offences. In assessing whether there are reasonable grounds for an objection, the courts maintain that significant latitude should be accorded to a claimant of the privilege, since the claimant is in a better position than the court to assess where a particular line of inquiry might lead it.[5] Applying that approach, I accept that evidence given by Buchhorn in respect of questions addressed to the topics specified in sub-paras (d), (g) and (i) might also tend to incriminate him.

17 The question, then, is whether, under s 128(4), it is in the interests of justice to require that Buchhorn give evidence relating to those matters, in which case, Buchhorn would be given a certificate under sub-s (5).

18 The requirement, that the court must be satisfied that it is in the interests of justice that the witness must give that evidence, is a relatively high standard, which reflects the fact that the provisions of s 128 of the Act, to a significant extent, impinge a basic and long-standing common law right.[6] The significance of the evidence in the case is an important factor in determining whether the interests of justice require that the witness give that evidence.[7] Plainly, the seriousness of the charges against the accused are also a significant consideration in determining that issue.[8] In addition, it is relevant to take into account the question whether the witness in question is subject to criminal proceedings.[9]

Whether it is in the interests of justice to require Mr Buchhorn to give evidence on matters objected to - Submissions

19 On behalf of Buchhorn, it was submitted that the interests of justice do not require that he give evidence under s 128(4) of the Evidence Act in relation to the matters to which objection is taken.

20 In support of that submission, counsel noted that although Buchhorn has not been charged with any offence relating to the matters I have discussed, nevertheless there is a real possibility that he may be charged with perjury, or with an offence under s 182 of the Independent Broad-based Anti-corruption Commission Act 2011 ('the IBAC Act') in respect of evidence that he gave at the first examination on 21 October 2015. In that examination, Buchhorn gave evidence that if, subsequent to a witness making a statement, there needed to be an amendment or addition to or deletion from that statement, his practice was to have the witness make a supplementary statement rather than to amend the original statement. That evidence, given before IBAC, was inconsistent with the admission that he subsequently made at the examination on 22 February 2019, that in those circumstances, his practice had been to replace the initial statement with the statement which contained the relevant amendment, addition or deletion.

21 Accordingly, it was submitted, if Buchhorn was compelled to give evidence in the trial, he would be prejudiced in the following ways:

(a) IBAC might use the evidence given by Buchhorn in the trial by holding a further compulsory examination, and asking questions of him tailored from evidence that he gives in the forthcoming trial.

(b) IBAC might use the evidence given by Buchhorn in the trial, especially any evidence that is inconsistent with evidence that he has given at IBAC, to determine whether particular answers given by him to IBAC were untrue, unlawful and misleading.

(c) IBAC might bring proceedings against Buchhorn for perjury in relation to answers that he gives at the trial on the basis that those answers do not accord with statements that he made to IBAC which, therefore, (it is contended) would be admissible under s 144(2) of the IBAC Act.

(d) IBAC or another prosecutorial agency might use answers given in the trial to determine whether it is appropriate to proceed against Buchhorn with respect to possible offences canvassed in the IBAC inquiry, notwithstanding that the evidence given by Buchhorn in the trial might not be admissible.

(e) Answers given by Buchhorn in the trial might be used by IBAC or another investigatory or prosecutorial authority to open up further avenues of inquiry with respect to possible charges.

(f) If Buchhorn was required to give evidence in the trial, he would thus have been compelled to give evidence on three separate occasions about the same subject matter, thus exposing him to a charge of perjury if, in the trial, he gave evidence inconsistent with one or other of his accounts.

(g) Although Buchhorn has not been charged with criminal offences, nevertheless answers that Buchhorn might give in the trial, might lead prosecutorial authorities to the conclusion that it is appropriate that he be charged.

(h) While a suppression order might ameliorate some of the prejudice to Buchhorn if he were compelled to give evidence, there is no guarantee such an order would be made.

22 In response, senior counsel for the prosecution submitted that a number of the matters, relied on by counsel for Buchhorn, are based on a false premise. Counsel noted that s 128(7)(b) of the Evidence Act would specifically prohibit the use, against Buchhorn, of any 'information, document or thing', that would be obtained as a result of Buchhorn giving evidence in the trial. Accordingly, it was submitted, s 128(7)(b) would preclude IBAC, or any other agency, from using evidence given by Buchhorn in the trial, that is covered by a certificate under sub-s (5), to fashion further questioning of Buchhorn, or as a basis for concluding whether or not Buchhorn should be charged with other criminal offences. Further, counsel noted, nearly three years have passed since Buchhorn appeared before IBAC and no charges have been laid against him in respect of the evidence given by him in that investigation. On the other hand, it was submitted, the offences with which the accused man is charged are extremely serious. The question whether there were two offenders involved in the murder of Sergeant Silk and Senior Constable Miller is a central issue in the trial. The dying declaration evidence is an important aspect of the prosecution case in respect to that issue. In those circumstances, it was submitted, the interests of justice plainly require that Buchhorn give evidence under certificate.

23 The submissions made by senior counsel for the prosecution were, in effect, supported by senior counsel for the accused man. Counsel noted that Buchhorn will be a central witness in respect of the evidence relating to Senior Constable Miller's dying declarations which, themselves, are an important aspect of the prosecution case. It was submitted that if the defence were precluded from cross-examining Buchhorn in relation to the compilation and production of witness statements in respect of that topic, the accused would not be afforded a fair trial of the very serious charges against him.

Whether in the interests of justice to require Buchhorn to give evidence - analysis and conclusion

24 The critical question, then, is whether it is in the interests of justice to require Buchhorn to give evidence on the nine matters to which objection has been taken, and which objection I have upheld.

25 In essence, based on the principles to which I have referred, the answer to that question lies in a balance between, on the one hand, the potential importance of the evidence to be given by Buchhorn in the trial and the gravity of the charges against the accused, and, on the other hand, the potential prejudice to Buchhorn should he be required to give evidence on those matters subject to a certificate provided to him under s 128(4) of the Evidence Act.

26 In considering the latter matter, it may first be observed that the third point raised on behalf of Buchhorn - that IBAC may potentially bring proceedings for perjury in relation to answers given by Buchhorn at trial - is, I consider, misconceived. IBAC does not have power to bring proceedings for perjury in respect of the evidence which might be given by Buchhorn at trial. Further, s 128(7) of the Evidence Act would preclude the admissibility of any evidence given by Buchhorn at trial in any proceeding against Buchhorn for perjury in respect of evidence given by him in the compulsory IBAC investigations. The exception to that preclusion, in s 128(7)(b), only permits the use of evidence, given by Buchhorn at trial, in a criminal proceeding against him in respect of the falsity of that evidence, that is, the evidence that he gives at trial. That exception does not permit the use of evidence given by Buchhorn at trial, in any proceeding against him in respect of the falsity of evidence which he might have given in the IBAC investigation.

27 In effect counsel for Buchhorn relied on two principal arguments. The first point is that IBAC may use the evidence given by Buchhorn in a further compulsory examination by asking questions tailored from the trial transcript. The second point basically concerns the capacity of IBAC, or other prosecutorial agencies, to use evidence, given by Buchhorn in the trial, to determine whether answers given by him to IBAC were untrue or wilfully misleading, or whether he has committed any other criminal offence. In other words, while the answers given by him may not be admissible in any further proceeding against him, nevertheless they may arm IBAC or other prosecutorial authorities with information which may assist them to determine whether to further interrogate him or to institute criminal charges against him.

28 In respect of those matters, as senior counsel for the prosecution noted, s 128(7)(b) of the Evidence Act would preclude IBAC, or any other agency, using evidence given by Buchhorn in the trial in such a manner. Counsel for Buchhorn submitted that, nevertheless, public knowledge of the evidence could, in reality, affect the decision of IBAC or any other agency in that respect. Accordingly, he submitted that if Buchhorn were obliged to give evidence, I should make a suppression order preventing publication of any of it.

29 In response to that latter point, I made it plain to counsel that I would refuse to make such a suppression order. There is a recognised public interest in proceedings in this Court, and in particular trials relating to serious criminal offences, being open to members of the public. In the present case, the evidence given by Buchhorn in relation to the compilation and production of witness statements relating to Senior Constable Miller's dying declarations will be of particular significance in the trial.

30 Assuming that the concerns raised by counsel for Buchhorn have some reality, they are, nevertheless, quite hypothetical. The question whether evidence given by Buchhorn in the present trial might prompt IBAC or any other agency to revisit its decision whether or not to prosecution Buchhorn, in relation to evidence given before IBAC, or to pursue further investigation, must depend on a variety of factors, including the nature of the evidence given by Buchhorn in the trial. Assuming that, an agency might, contrary to s 128(7)(b) of the Evidence Act, use evidence, given by Buchhorn in the trial, in the manner apprehended by counsel for Buchhorn, any such prejudice is at best speculative.

31 In that respect, it is important to bear in mind that Buchhorn has not been charged with any criminal offence relating to the production and compilation of the dying declaration evidence, or in relation to the evidence that he has given before IBAC.

32 Counsel for Buchhorn also submitted that if Buchhorn was charged in the future, he would be forensically disadvantaged in the conduct of his defence in respect of those charges if he were compelled to give evidence in the present case. For, it was submitted, Buchhorn would, by giving evidence, been forced down a 'forensic path' which might bind him in a subsequent criminal case, which is an aspect of prejudice recognised by the High Court in X7 v Australian Crime Commission.[10] However, as senior counsel for the prosecution has pointed out, Buchhorn has already been the subject of two compulsory examinations before IBAC. On each occasion, he was cross-examined in relation to the issues to which he now raises objection. In those circumstances, any prospective forensic disadvantage, arising from being compelled to give evidence about those matters, has already been incurred.

33 In those circumstances, any prejudice, occasioned to Buchhorn by reason of being compelled to give evidence in this case, is, I consider, quite limited and somewhat speculative.

34 On the other hand, there are a number of important considerations which weigh heavily in favour of the proposition that the interests of justice require that Buchhorn give evidence.

35 The starting point is that the offences charged against the accused are, by their nature, very serious. The murder of two police officers, performing their public functions, is a most serious example of that offence. The potential consequences to the accused man, if he were convicted of those charges, are, of necessity, extremely grave.

36 The two principal questions in the trial will be, first, whether the accused man was present at the scene of the murders, and, secondly, whether he was criminally involved in them. A central issue, in relation to the first question, is whether there was more than one offender present. As the Court of Appeal noted, the prosecution, in the first trial, placed particular emphasis on the evidence of Senior Constable Miller's dying declarations in respect of that issue.[11] The court held that there had been a substantial miscarriage of justice, because, at the trial, the accused man had been deprived of the opportunity to ask questions about, and challenge, the compilation and production of statements by police relating to the dying declarations made by Senior Constable Miller.[12]

37 Thus, the circumstances attending the compilation and production of those statements, which were ultimately revealed on investigation by IBAC, formed the basis of the conclusion by the Court of Appeal that the accused man had been deprived of his right to a fair trial. It is clear, from an examination of the transcripts of evidence given by him before IBAC, that Buchhorn was a central figure in the compilation and production of those statements. In particular he was questioned extensively concerning the production and compilation of the statements of Pullin, Poke, Clarke and Thwaites. The IBAC investigation has revealed that serious questions have arisen concerning the development and production of those statements, and the disclosure of the original versions of them to the prosecution and defence at the time of the first trial.

38 In those circumstances, if, in the present case, counsel for the accused were precluded from questioning Buchhorn in relation to the matters, which are the subject of objection, the accused man would not be afforded a fair trial.

39 Accordingly, the conclusion is inescapable that the interests of justice require that Buchhorn give evidence concerning each of those matters.

40 For the foregoing reasons I reached the following conclusions:

1. I uphold the objection by Mr Buchhorn to giving evidence in relation to the nine matters specified in paragraph 14 of these reasons.

2. It is in the interests of justice that Buchhorn give evidence concerning each of those matters. Accordingly, I direct that Buchhorn be required to give evidence in relation to those matters, and I shall cause Buchhorn to be given a certificate under s 128 of the Evidence Act in respect of that evidence.

[1] Roberts v The Queen [2020] VSCA 277.

[2] Ibid [263] (T Forrest and Osborn JJA and Taylor AJA).

[4] Sorby v The Commonwealth [1983] HCA 10; (1993) 152 CLR 281, 310 (Mason, Wilson and Dawson JJ).

[5] R v Boyes [1861] EngR 626; [1861] 121 ER 730; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, 628-9 (Viscount Dilhorne).

[6] Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275, 323-4 [286] (Bathurst CJ).

[7] R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328, 338 [41] (Whealy J).

[9] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, 127 [71], 142-3 [124] (Hayne and Bell JJ).

[11] Roberts v The Queen [2020] VSCA 277 [97], [170] (T Forrest and Osborn JJA and Taylor AJA).

Broad-based Anti-corruption Commission Act 2011

At a glance

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Judgment (68 paragraphs)

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Cases Cited (4)