CDPP v Leach [2019] QDCPR 60

DISTRICT COURT OF QUEENSLAND CITATION: CDPP v Leach [2019] QDCPR 60 PARTIES: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) v PHILIP LEACH (Applicant) FILE NO/S: 1479/2013 DIVISION: Criminal PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 13 November 2019 DELIVERED AT: Beenleigh HEARING DATE: 25 October 2019 and on the papers JUDGE: Smith DCJA ORDER: I direct the CDPP provide a complete copy of all documents within the CDPP’s possession in relation to the charges against Mr Leach electronically on a USB memory stick. CATCHWORDS: CRIMINAL LAW – DISCLOSURE – whether prosecution should provide electronic copy of documents Criminal Code 1899 (Qld) s 590AA Taxation Administration Act 1953 (Cth) ss 353, 355 R v Leach [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131 COUNSEL: Mr P Dunning QC with Mr B Blond for the defendant Mr L Crowley QC with Ms A Freeman for the CDPP SOLICITORS: Pharmacis Canning Lawyers for the defendant Commonwealth Director of Public Prosecutions for the respondent -- 1 of 5 -- 2 Introduction [1] The defence has applied pursuant to s 590AA of the Criminal Code for a direction that the CDPP provide four complete copies of all documents in the CDPP’s possession on a USB memory stick. [2] The request is opposed by the DPP on the basis that the documents are accessible on the court’s eTrial website. Background [3] The defendant has been charged with 43 Commonwealth offences and one State offence. The defendant was tried before the District Court from 24 April 2017 and was convicted on 15 May 2017. [4] The prosecution case included the use of a compulsory examination conducted under ss 353 and 355 of the Taxation Administration Act (Cth) 1953. Mr Leach successfully appealed his conviction to the Court of Appeal. 1 . [5] The basis of the decision was that the s 355 examination should not have been used at the trial. [6] On 23 April 2019 the defendant filed a writ in the High Court seeking a declaration that he cannot receive a fair trial and a declaration the trial breaches Chapter 3 of the Commonwealth Constitution. [7] The matter was remitted to the District Court by Gaegler J and is to be heard in the week commencing 16 December 2019. Defence submissions [8] The defence submits it is necessary for the documents to be provided as requested so that the defence can meaningfully conduct its application that the indictment should be quashed or permanently stayed. It is submitted that such an order will aid in the efficient running of the trial. The DPP’s own correspondence demonstrates that the stated premise to resisting such a direction is inaccurate and in the event of an appeal it would be unsatisfactory for there not to be a permanent record of proceedings below. [9] The defence submits that the contents of the defendant’s s 353 compulsory examination was disseminated to numerous offices within the CDPP. Mr Leach alleges in the statement of claim that the full extent of the dissemination is unable to be identified. The CDPP in its written submissions to the High Court made the submission that to properly determine the issues raised by the defendant the court would require evidence identifying what has been done by whom and on what basis and how such derivative use has led to material that now forms any part of the prosecution case and whether any such material if adduced would impermissibly alter the accusatorial nature of the trial. [10] Consent orders were made on 28 June 2019 before Judge Dick SC. The first consent order was “the Crown confirmed by correspondence stating when it has delivered a complete list of witnesses and their witness statements, any further 1 R v Leach [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131. -- 2 of 5 -- 3 disclosure and a list of all documents disclosed to be relied upon in the trial by 12 July 2019.” [11] It is submitted the CDPP did not comply with that order and indeed subsequent correspondence reveals that disclosure was not complete at the time of Mr Leach’s first trial, the hearing in the Court of Appeal, or the making of the order by Judge Dick. [12] After Judge Dick’s order, the defendant’s solicitors wrote to the CDPP asking why there had been non-compliance with Judge Dick’s order. [13] On 13 August 2019 the CDPP responded rejecting that there had been non- compliance with the disclosure obligation. [14] In a letter dated 21 August 2019 the CDPP wrote again attaching documents noting “entries which are shaded orange are those items that have not been loaded onto the e-trial site but have otherwise been disclosed prior or subsequent to the uploading of material to the e-trial site.” The defence submits this is inconsistent with the basis on which the CDPP resists the order. It is clear there are other documents which have not been uploaded to the eTrial site. [15] On 9 September 2019 the defendant’s solicitors wrote two letters to the CDPP requesting provision of documents substantially in the form of the order now sought. This request was declined by the CDPP on 19 September 2019. Again, that letter makes it clear there are documents the CDPP has which will not be available on the eTrial site. [16] On 10 October 2019 the defendant’s solicitors wrote to the CDPP setting out the inadequacy of the CDPP disclosure. No response was received by 18 October 2019. [17] On 24 October 2019 (the day before a mention) the CDPP made further significant disclosure of new material. In the same letter there was reference to making further enquiries of investigators central in this case. [18] It is submitted that central to the defendant’s argument is that there has been a derivative use of the compulsory interview such that he has been deprived of his constitutional entitlement to a trial accusatorial in nature. It is not possible to meaningfully prosecute that argument without having a stable and certain format of all the documents the DPP has in its possession so that the defendant can demonstrate the use to which his compulsory interview was put. [19] A submission will be made to the court that it should infer that the CDPP cannot in fact identify the full extent of the dissemination which is why it is unwilling and unable to provide in a straightforward way a complete list of all documents in its possession. [20] It is further submitted it will be easier for the court to conduct a hearing if the cross- examination is conducted by reference to a certain suite of documents rather than being invited to track documents on the eTrial site. Ultimately it is submitted the CDPP has at least twice in writing indicated there are documents other than those to be found on the eTrial site. Also if there was an appeal it would be unsatisfactory for the appellate court to not have a complete list of documents. -- 3 of 5 -- 4 [21] It is submitted there is good reason for making the order sought. The CDPP has conceded that the task is not a significant one. CDPP submissions [22] The CDPP submits that it has already complied with its obligations of disclosure and the brief is already available electronically and therefore the direction sought ought not be made. [23] It is submitted that an indictment in the matter was first presented in 2013. Prior to this, a brief of evidence containing copies of witness statements, exhibits and an index was disclosed to the defendant’s then solicitors on 22 May 2012. [24] The brief of evidence in a spreadsheet itemising those materials was uploaded to the eTrial site on 4 March 2014 and also provided to the defendant’s then legal representatives. [25] A pre-trial hearing occurred in 2014 whereby the defendant sought a permanent stay of the indictment based on the prosecution’s use of the interview and a ruling that the interview was inadmissible as evidence in the trial. His Honour Judge Shanahan refused the application and the trial proceeded on 27 April 2017 and ran for 13 days. Part of the prosecution’s case conducted in 2017 was reliant on statements made by the defendant during the compulsory interview in order to establish the defendant’s state of mind upon proof of what were considered to be lies told in response to questions asked. It is submitted no complaints of disclosure were made as part of these proceedings. It was pointed out the convictions were quashed on appeal on 22 June 2018. [26] Since the decision, the interview has been excluded from the brief of evidence and a new trial team has been assembled to conduct the re-trial separate from the team who are briefed to conduct the pre-trial proceedings. The trial is yet to be listed. The new trial team has recently compiled an updated list of witness statements and exhibits upon which the prosecution intends to rely at the trial. These updated lists were provided to the defendant on 21 August 2019. The list contained material already disclosed to the defendant on multiple occasions. The prosecution has also provided the defendant with a list of unused materials upon which the prosecution does not intend to rely upon. [27] The prosecution points out the relevant provisions of the Criminal Code at paragraphs 20-24 of its submissions. [28] The prosecution submits that further disclosure is not necessary as: (a) The prosecution has already complied with its disclosure obligations; (b) It is not required to provide the defendant with multiple copies of the material already in its possession; (c) It is not necessary for further disclosure to occur so the defendant can meaningfully conduct its case; (d) The defendant has already been given all of the evidence to be relied upon which is available electronically on the eTrial site; (e) There is nothing to the defence submission that there needs to be a complete record for an appeal; (f) It is not for the prosecution to organise the materials for the defendant’s application nor it is appropriate to provide a defendant -- 4 of 5 -- 5 with four further copies of material he already has because it is more convenient for the defence; and (g) The prosecution is only obliged to provide copies of documents in its possession that are relevant to a relevant proceeding. [29] In the circumstances the application should be refused. The prosecution also refutes a number of the allegations made in the defence outline. Disposition [30] This matter is a very unusual case. The court of appeal in R v Leach2 ruled that the prosecution could not rely upon the compulsory interview. In those circumstances a re-trial was ordered. [31] In this particular case the defence is seeking a stay of the prosecution on the basis that inadmissible material has been disseminated to various offices of the Commonwealth DPP and as such it is impossible for him to receive a fair trial. Further, a declaration is sought that there has been a breach of his constitutional rights contained in Chapter 3 of the Constitution. [32] It will be crucial to determine the extent or otherwise of the dissemination of the material at the hearing on the stay application. [33] Ultimately I accept the defence submissions here. I consider it is highly relevant that in more recent times there has been further disclosure despite the fact this matter has now been before the courts for some time. It is clear there are other documents not on the eTrial site. [34] I consider this is a case where it is necessary for the prosecution to provide a full copy of the material in the prosecution’s possession on a USB memory stick so that there is no debate about what documents exist and what documents have been disclosed. [35] In this regard I take into account Ms Freeman’s submissions that it would take about a week for this USB stick to be prepared. [36] I also consider it will aid in the efficient running of the 590AA hearing in December and it will be very useful in the case of an appeal against any stay decision. [37] I note that the CDPP did not dispute the contentions made by the defence in paragraphs 16-23 that further disclosure has occurred. [38] Having said this, I do not consider it is for the DPP to provide four copies of the documents. I propose to direct that one copy of the documents be provided on a USB memory stick. [39] In the circumstances I make the following order: 1. I direct the CDPP provide a complete copy of all documents within the CDPP’s possession in relation to the charges against Mr Leach electronically on a USB memory stick. 2 [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131. -- 5 of 5 --