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Supreme Court 15 February 2007

R (Cth) v Petroulias (No. 9)

[2007] NSWSC 84

Public order & justice offences
CRIMINAL LAW NO IMPROPRIETY ESTABLISHED APPLICATION REFUSED

Citation: R (Cth) v Petroulias (No. 9) [2007] NSWSC 84
Court: Supreme Court of New South Wales
Date: 15 February 2007
Judge(s): Johnson J

Background

The accused faced criminal charges brought by the Commonwealth, and the Crown intended to call a witness who had given an induced statement to Australian Federal Police (AFP) investigators. The witness had also received a use and derivative use undertaking under s.9(6) of the Director of Public Prosecutions Act 1983 (Cth), a mechanism that protects a person from having their own statement used against them in exchange for cooperating with investigators.

The accused applied to exclude the entirety of that witness's evidence, arguing it had been improperly obtained within the meaning of s.138 of the Evidence Act 1995. This was the second time such an objection had been raised: a similar application had been heard and decided by Sully J in March 2005 before an earlier trial.

Johnson J conducted a fresh voir dire (a preliminary hearing to determine admissibility), receiving the transcript of the 2005 voir dire proceedings as well as further documentary and oral evidence. His Honour made clear he was not bound by Sully J's earlier ruling, but would take it into account in forming his own independent assessment.

  • Whether the evidence of the Crown witness was "improperly obtained" under s.138(1) of the Evidence Act 1995, such that it should be excluded
  • Whether AFP investigators acted improperly in the process of obtaining the witness's induced statement, including by using leading questions and conducting conversations during breaks in the recorded interview
  • Whether the fact that the witness received a use and derivative use undertaking under s.9(6) of the Director of Public Prosecutions Act 1983 (Cth) gave rise to any impropriety on the part of investigators

Decision

Johnson J began by identifying the applicable legal standard. The accused bore the onus of establishing impropriety. The concept of "impropriety" under s.138 is informed by the principles in Ridgeway v The Queen (1995) 184 CLR 19, as collected and applied in Robinson v Woolworths Limited (2005) 64 NSWLR 612. Conduct must be clearly or quite inconsistent with the minimum standards a society should expect of those entrusted with law enforcement powers. Mere doubts about the desirability of particular conduct, where there is no unlawfulness, are not sufficient.

On the substance of the objection, Johnson J found no impropriety in the AFP investigators' conduct. The process of taking an induced statement for consideration by the relevant prosecuting authority was described as not uncommon. Critically, the decision whether to grant an undertaking under s.9 of the DPP Act rests with the Commonwealth Director of Public Prosecutions, not with police, and that distinction was preserved in the present case.

His Honour addressed the specific complaints in turn. The use of some leading questions during the 6 April 2000 interview was noted as generally undesirable when dealing with a potential witness rather than a suspect, but it did not rise to the level of impropriety. Conversations that occurred during breaks between recorded tapes were adequately addressed by investigators placing the substance of those conversations back on the record when taping resumed. The subsequent disposal of notes used by the witness during the interview also did not found a finding of impropriety.

Johnson J concluded that the evidence fell far short of establishing impropriety by AFP investigators, and refused the application to exclude the witness's evidence.

Orders Made

  • The application to exclude the evidence of the Crown witness under s.138 of the Evidence Act 1995 is refused.

Key Takeaways

  • Under s.138 of the Evidence Act 1995, the accused bears the onus of establishing that evidence was improperly obtained; doubts about the desirability of investigator conduct, without more, are insufficient to satisfy that test.
  • The standard for "impropriety" requires conduct that is clearly or quite inconsistent with the minimum standards expected of law enforcement, drawing on the principles articulated in Ridgeway v The Queen and developed in Robinson v Woolworths Limited.
  • Where a witness provides an induced statement and receives a use and derivative use undertaking under s.9(6) of the Director of Public Prosecutions Act 1983 (Cth), no impropriety arises merely from that process, provided the decision to grant the undertaking is made by the Commonwealth Director of Public Prosecutions rather than by police investigators.
  • The use of leading questions when interviewing a potential witness was identified as generally undesirable practice, but it did not, in the circumstances of this case, constitute impropriety sufficient to enliven s.138.
  • A second court conducting a voir dire on admissibility is not bound by an earlier ruling on the same objection from a prior trial; it must form its own independent assessment, though it may take the earlier decision into account.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s.138
- Director of Public Prosecutions Act 1983 (Cth), s.9(6)

Cases
- R v Petroulias (No. 1) [2006] NSWSC 788
- R v Petroulias (No. 6) [2006] NSWSC 1422
- R v Petroulias (No. 8) [2007] NSWSC 82
- Robinson v Woolworths Limited (2005) 64 NSWLR 612
- Ridgeway v The Queen (1995) 184 CLR 19
- Director of Public Prosecutions (Cth) v Ho (1998) 102 A Crim R 37
- Rozenes v Beljajev [1995] 1 VR 53
- Rozenes v His Honour Judge Kelly [1996] 1 VR 320
- Ganin v NSW Crime Commission (1993) 32 NSWLR 423
- Registrar, Court of Appeal v Craven (1994) 77 A Crim R 410
- Rogan v Hyde (1995) 84 A Crim R 519
- Bunning v Cross (1979) 141 CLR 54