LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58 (27 March 2012)

LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58 (27 March 2012) - WASAT 2012 case summary — Zoe

[80]

HIS HONOUR: There is an objection being foreshadowed as to identification evidence. Ms in de Braekt?

IN DE BRAEKT, MS: Yes. Your Honour, firstly I don't understand its relevance really because of the admissions made by my client in his video record of interview; but further, since January of this year I have been attempting to obtain a colour copy of the digiboard so I can see whether it's a fair selection of photos and so forth and orders have been made by Chief Magistrate Heath, Deputy Chief Magistrate Woods and Magistrate Heaney for a colour copy of that digiboard to be provided to myself and here we are in July and I still don't have one.

I have the DVD of the identification process but I still don't have the colour digiboard, so really I just don't - I have a difficulty with that, your Honour, because obviously I can't see the hair colour or anything like that of the people on the digiboard.

HIS HONOUR: Yes.

PROSECUTOR: Sir if I may respond. I have the original here. I've spoken with the case officers. My friend is correct, there have been a number of issues with this brief, to say the least, but I am advised, Sir, that the case officers had great difficulty in meeting Ms in de Braekt to provide service.

They advised me that colour photos in fact disclosure was done again on 25 June 2009 by personally delivering an envelope to the address of 336 Albany Highway, Victoria Park. It was left in the box at 336 Victoria Park, which I understand is the box of my friend. It was also sent by registered post on the same date, Sir. I have the digiboard here before me if my friend wishes to view the original, but my friend tells me she was provided with black and whites but the officer assures me on my question that colour ones have been provided.

HIS HONOUR: Alright. Have you seen them this morning?

IN DE BRAEKT MS: No, I haven't and the only thing that I received by registered mail is this application for an adjournment of the last hearing date by the police which is a form 6. The only thing that I received in my box was another black and white copy of the trial brief and that's it. There is no colour, and that's the only things I have received. I have never received a colour copy your Honour.

(Exhibit 2, 72)

[100]

What is about that day that you remember very well? --- Ms in de Braekt hanging up on me after being quite rude on the phone. And then from there I remember where we were when we called her, and then I remember that just jogged my memory, because obviously that impacted on how things went that day.

So what impacted on how things went that day? --- I remember the phone call and just how she spoke to me, and I've never been hung up by a barrister or solicitor before, or spoken to in that tone when I was just trying to just explain that we were going to her office to serve disclosure and documents, and just that she would - just didn't appear to want to be helpful at all. And then I remember that when we got there, obviously, you know, we were knocking on the door, the lights were on. I thought there was a key in the door, I guess I was wrong. I remember I rang the office while were standing outside and it went through to Message bank. I remember reading the signs on the door, seeing the mailbox there. I remember First Class Constable Squire put the envelope containing the disclosure in the mailbox. We had to go to the chemist to photocopy one of the documents so we could I could witness it, I think it was. And I remember returning back to the station and phoning and letting her know I left a message, I think it was, that we had served the disclosure, and then I remember that First Class Constable Squire said that she was going to organise to have it registered posted to her as well.

It was suggested to you that the service of documents was a routine function that you undertook at that time. I think you disagreed with that and said it was just part of your job. Is that right? --- It's not something you do everyday. It is part of my job. It's not routine. It depends on where you work exactly. In this instance, you know, obviously I was with First Class Constable Squire because this was her case, and basically she was the one that was serving disclosure, I was just the one who happened to be with her at that time. So, you know ---

What I want to ask you is, I think you said that service of documents is just part of your job, and indeed any police officer's job. Is that right? --- Yes. Yes, it is.

How long have you been a police office for? --- Fifteen years. ...

In your time as a police officer, have you ever had an occasion such as this one when you have served documents on a legal practitioner? --- Absolutely not, and that's I think that's why I recalled this, because I've never had it made so difficult to serve documents on anybody. (T:18 20, 16.11.11)

[154]

So my grandmother had very kindly gone to the post office for me, and I also remember that because that doesn't happen very often so that also was part of my memory. I remember opening it in front of her and explaining to her my frustration that this was a third copy of the form 6. I remember it clearly. ...

This was a couple of days two or three days after the 26th [May 2009] because that was by registered post and I received that third form 6 and I remember explaining to her particularly that I could not believe this was the third copy of that same document I received. ...

I remember that because my grandma very rarely goes to the post office to collect registered mail for me, very rarely, and that's what makes it memorable. The other thing that makes 26 May memorable for me and I remember exactly what happened with Senior Constable Neas and Constable Squire, is because that is a date of significance for me. It might sound funny or whatever but that is the birthday of one of my dogs which is significant for me. Red, 26 May, and that's another reason why I remember. I also remember because of the manner in which Senior Constable Neas spoke to me over the phone and was so indignant about me needing to end our telephone conversation well, I suppose it was abruptly but I apologised for that. I said I didn't mean to be abrupt but I had to go. ...

I couldn't continue speaking because I had to go back to court and if I continued speaking I would be late. So I asked her to call me back later. If she had something to deliver to me she could leave it in my letterbox or, alternatively, she could send it by fax. She didn't need to hand it to me personally because that's usually why Police call me to arrange for provision or disclosure of materials. That's nearly always why I get telephone calls from Police. I couldn't speak with her further about that and I remember she got sorry. I just keep getting myself tangled here. She got very angry and aggressive with me and said, 'Now, listen here.' It seemed to me that she didn't take kindly to me saying I couldn't continue to speak with her, I had to go. I had to cut her off. I said, 'I'm sorry, I don't mean to interrupt but I have to go. I have to leave for court.['] Then I had to hang up but she didn't want me to hang up. She didn't want to finish the conversation but I had to go because if I keep talking to people then when I put the phone down there will be another call, somebody else will want to speak to me. I can keep doing that for ages and then I'll never get to court or I'll be late and I can't have that so I've learned my lesson previously with those sorts of things and I just have to apologise for being abrupt and I have to go. So I remember that happening on that occasion. I also remember very specifically, although I have hundreds of communications with Police every year, I remember it also specifically because the second after I put down the phone I got a very bad blood nose and I also remember that and I still had to try and manage that while racing to the car and driving to court because I didn't want to be late. So that's what makes it memorable for me, plus it being Red's birthday. That's why I can distinguish that from many other incidences of receiving documents from Police and having telephone conversations with Police and so forth. Some are more memorable than others. That one was memorable for me. I was taken aback by Senior Constable Neas' aggression and found it very hard to stomach to listen to the description provided by Senior Constable Neas obviously (T:18.820.3, 17.11.11).

[161]

Well, let's start again. You made an application to dismiss the prosecution for want of prosecution, amongst other things, on the basis of a failure to disclose? --- That's right.

The alleged failure to disclose was the failure to disclose the digiboard material? --- That's right.

Now, was that the reason why you maintained that you had not received the digiboard material? --- So are you asking me whether or not I maintained I hadn't received the digiboard material deliberately so as to strengthen or create a position whereby the charges against my client would be dismissed for want of prosecution? Is that what you're asking me?

That's what I'm asking you. Is that what you were doing? --- Absolutely not and it is very offensive. I understand you're just doing your job, Mr Vandongen, but gosh. No point, really, in being a lawyer if I was of that mind I can tell you.

Because you knew you'd been successful previously, hadn't you, in getting matters dismissed for want of prosecution on the basis of nondisclosure? - Well, I can at the moment I can only recall one. I can't recall any more. There might have been another one - I can only recall one and I'm sorry, the name of that client at the moment escapes me, but I certainly could check my records at my office to establish that name.

You knew there was a basis upon which a prosecution could be dismissed without there being a hearing, didn't you? --- Well, of course. Any competent defence counsel would know that.

You took advantage of that, didn't you? --- What do you mean by did I take advantage of it?

Well, you told the court that you had not received the digiboard material didn't you? --- Yes, because that was the truth.

I suggest to you that it wasn't the truth, that you had in fact received it on a number of occasions? --- I would never, ever say to the court that I hadn't received something if I had. There is just no way. No way. I've never done it, and I never will.

So you say, do you, that you were making a point about the nondisclosure of the digiboards, and in particular colour digiboards because it was an important part of the case against your client that you wished to challenge? --- Those were my instructions at the time, that's right. My client was not willing to concede that he had been at that location.

Your client gave a video record of interview didn't he? --- Yes, he did.

Did he make admissions in the video record of interview? --- He made some admissions.

When you appeared before Magistrate Calder on 6 July 2009, at page 72, Magistrate Calder asked you directly for the first time, I'd suggest to you, that anyone did, asked you directly about whether there was going to be an objection or challenge to the identification evidence, didn't he? --- That's correct.

You told him on page 72, 'Why yes, your Honour. Firstly, I don't understand its relevance, really, because of the admissions made by my client in his video record of interview,' didn't you? --- That's right.

So what you're telling his Honour was that the digiboard material you failed to see the relevance of in the case against [APC], didn't you? --- That's because my client had changed his instructions to me because he was becoming increasingly agitated about his incarceration period being delayed because of these outstanding charges.

You're telling the magistrates that the digiboards, the identification procedure was irrelevant because your client had made admissions in his video record of interview, didn't you? --- That was also because my client had changed his instructions to me.

Regardless of your client's instructions, you told the Magistrate that it was not relevant not relevant because of the admissions made by your client in his video record of interview, didn't you? --- That was in the context of my client having changed his instructions to me, Mr Vandongen.

On page 72, at the bottom of that interchange you were offered the opportunity to look at the digiboard over lunchtime and you said, 'I have to look over it at lunchtime, but given that my client admits that he was present at the scene, it's just he disputes what occurred so I don't even think it's necessary to tender that evidence'. ...

Your client admitted it in the video record of interview. What difference could your client's instructions have made? --- Because I had previously got instructions from my client as to his state of stupefaction at the time of that video interview or that he wasn't in a fit state for various reasons. So I had anticipated making application to exclude the video record of interview, but that changed as my client's instructions ---

You never made an application to exclude the video, did you? --- Because my client's instructions changed.

Despite the matter going on for a number of months, you never made that application or even hinted at making the application? --- Because the hearings didn't proceed. The first one got adjourned in [sic] 19 February because of lack of full disclosure. The second hearing didn't proceed because, again it wasn't again lack of disclosure, it was the [victim]'s issue and his medical unfitness. So the opportunity had not yet arisen. They don't have voir dires in the Magistrates Court to decide these admissibility issues before hearing. It's done at the hearing.

You were required under the Criminal Procedure Act to give the prosecution at that stage 14 days notice of any objections to evidence, weren't you? --- That's never done.

You were required as a matter of law to give 14 days notice weren't you? ... Yes, I probably was.

And you did not, did you? --- No, I did not.

Because there was never going to be any objection? --- No that's not true. The instructions I had from my client changed, as instructions from clients frequently do. They advise you that they didn't know what they were talking about in the interview and so forth, and then later on they concede that they did know what they were talking about. (T:60.563.3, 17.11.11)

[171]

94 While it is unnecessary for the Tribunal to come to a finding in relation to Ms in de Braekt's motivation for misleading the court on 4 June 2009 and 6 July 2009, it appears that she did so on 4 June 2009 in order to support an application for the proceeding against APC to be dismissed on the basis of the failure of the police to provide disclosure of the digiboards. Although the proceeding in relation to APC was listed for hearing on 4 June 2009, and although Ms in de Braekt was required as a matter of law to give 14 days' notice of any objections to evidence, she did not provide notice prior to the hearing on 4 June 2009 of any objection to the video record of interview in which APC made admissions that he was present at the scene. As Ms in de Braekt conceded at the hearing on 6 July 2009, the digiboard identifications were not in issue, because of the admissions made in the video record of interview (to which no objection was foreshadowed or taken). Ms in de Braekt's failure to give notice prior to the hearing on 4 June 2009 of an objection to the video record of interview shows that she did not intend to dispute that her client was present at the scene. She therefore did not require the colour digiboards for any legitimate forensic purpose. Thus, it appears that she misled the court on 4 June 2009 that she had not received disclosure of the colour digiboards in order to enable her to make a technical argument for the dismissal of the proceeding on the basis of nondisclosure. The Tribunal did not find Ms in de Braekt's evidence that her client's instructions changed (between 4 June 2009 and 6 July 2009) convincing, because Ms in de Braekt had not given notice of an objection to the video record of interview prior to the hearing scheduled for 4 June 2009. It is unclear why Ms in de Braekt misled the court on 6 July 2009 that she had not received disclosure of the colour digiboards, other than perhaps for consistency. However, as noted earlier, it is unnecessary for the Tribunal to come to a finding as to Ms in de Braekt's motivation for misleading the court on either 4 June 2009 or 6 July 2009, and we do not do so.

[262]

In relation to my remark that, 'I look forward to cross-examining you in the future,' that email response that I sent, I was interrupted in replying, I started replying to that and that was La Spina who had sent it to me. But then I got interrupted and I didn't go back until later to finish it. In the meantime I had become distracted and when I was finishing that email and I wrote that line I had in my mind that I was writing back to Detective Broadley. Now, I know that might sound silly or whatever, but that is the truth and that is what I was thinking that I was replying to but it was actually replying to La Spina. Anyway, I had Broadley in mind because these communications emanated from communications with Broadley, that was the subject matter. I did say that, 'I look forward to cross-examining you in the future in a trial' but that wasn't in any way threatening because I do look forward to cross-examining in the future in a trial and the reason is because Detective Broadley was very obstructive and he didn't seem to have much regard for the law and he seemed to think that whatever the police said was law and it seemed to me to be a complete disregard and disrespect for the law. That in my usual experience matches police officers who are evasive when they are asked questions and so forth and that they are not then the kingpin of the law when they come to a court but the judge is and the court is and they have to do what they're told and they have to submit to the law and they are not mini unofficial parliaments then, they have to submit to the law and I do like to see police officers like that subjected to that sort of thing because then they understand what the real effect of the law is and they are then not above the law or the law kingpins but the court is and that's how it should be and they need to remember that in their duties because Detective Broadley's approach was not facilitative of justice or the court procedure, it was just he was just being obstructive and difficult. So that's why I look forward to crossexamining him. Now, how that is threatening I don't understand. I don't understand. I have asked the LPCC a number of times to explain what it is I was threatening. (T:32.8-33.5, 17.11.11)

[280]

161 Ms Wood was cross-examined by Ms in de Braekt in relation to a complaint that Ms in de Braekt had made concerning Ms Wood to the Chief Magistrate. Ms Wood immediately acknowledged the complaint and recognised that it was in relation to a comment which was 'inappropriate' and for which she gave an apology (T:95.4, 20.2.12). In reexamination, Ms Wood said that the complaint by Ms in de Braekt was made considerably later than when Ms Wood gave her first statement in relation to this matter two months after the incident, which was different in some respects from her witness statement in this proceeding, but which included the recollection of her hearing Ms in de Braekt refer to Mr Kanapathy as a 'Singaporean prick'. Ms Wood was also crossexamined to the effect that she had told a security officer, Mr David Cox, that the only reason she was giving evidence against Ms in de Braekt is that she does not like Ms in de Braekt, which she rejected, saying that 'I did not say that to Mr Cox' (T:95.9, 20.2.12). Ms Wood was also cross-examined in relation to the physical configuration of the foyer area and her capacity to hear the statements about which she gave evidence. Ms Wood agreed that the reception booth in which she was seated comprises a solid concrete portion and 10 millimetre thick glass surrounds, with no gaps between the concrete and the glass, up to about 200 millimetres from the ceiling. She gave evidence that the only opening to the booth, other than the 200 millimetre gap at the top, is a 600 millimetre by 900 millimetre opening at the front. Ms Wood agreed that the floor of the foyer at the relevant time was a hard floor, with nothing to absorb sound, and that it could be 'pretty noisy' (T:98.2, 20.2.12). It appears from Ms in de Braekt's measurements of the foyer area, which were not disputed, that the reception booth was located approximately 7 metres to 9 metres from the tables near the front door at which security personnel undertook security checks of bags. Ms Wood gave evidence that, notwithstanding these factors, 'you could hear very well in [the reception booth]' (T:100.2, 20.2.12). Ms Wood gave the following evidence under crossexamination:

[320]

Well, you said a minute ago that you did recall it. You said, 'that's right,' that you'd asked to clear my handbag. Isn't that what you just said? --- I said to you, we've got to look through into your handbag, and then we asked you to clear whatever is in there.

I asked you --- ? --- You asked us to do ---

I asked you, Mr Kanapathy that you required me, or attempted to require me, to tip my handbag into a pink tray, correct? --- We would have asked you to clear, but I don't remember that.

Yes, and then you said, 'yes, we asked you to clear your handbag,' didn't you?

LESLIE, MS: Sorry, what does that expression mean?

in de BRAEKT, MS: That's what I'm just trying to --- ? --- I just can't recall. What I remember is, Ma'am, we went through the bag. When she shows her bag, we went through with a pen and all that, and then the lady officer was looking through. That's it, I was ---

LESLIE, MS: But what do you mean by that? Do you mean that the bag is open and you're sort of moving things about --- ? --- Yes.

--- Or do you mean that you've tipped it up and gone through? --- No (indistinct) no. I didn't touch anything, I was just standing beside the lady officer. The lady officer has given reports too. So they should look at that report.

in de BRAEKT, MS: Well, I asked if you recall requiring me to tip my handbag upside down and tip out the entire contents of it into a pink tray, and you said, 'yes, we asked you to clear your handbag'? --- I don't think we looked through this bag. I don't remember.

I suggest to you, Mr Kanapathy, this is exactly the same bag that I had with me on that day? --- I don't remember.

I suggest to you, that as full as it is now, that's exactly how it was on that day? --- I don't remember. Like I said, the only thing I remember is when we asked you to open your bag, you refused. You asked us to go through - the female officer opened and then we just used a pen to go through, that's it.

I suggest to you that you put the pink tray across the table --- ? --- I don't ---

--- and rested it against my thigh on the edge of the table, and you demanded that I tip out the entire content of my handbag? --- You can suggest anything you want, I don't remember.

So you agree that could have occurred, but you just can't remember? --- As far as I can remember, we went with a pen to go through your bags, that's it. (T:68.3-69.3, 22.2.12)

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LEGAL PROFESSION COMPLAINTS COMMITTEE and in de BRAEKT [2012] WASAT 58 (27 March 2012)

Legislation Cited (5)

Cases Cited (11)