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Supreme Court 25 February 2003

R v Lawrence (No. 3)

[2003] NSWSC 655

Drugs
CRIMINAL LAW AND PROCEDURE ADMISSIBILITY OF EVIDENCE OF CO

Citation: R v Lawrence (No. 3) [2003] NSWSC 655 revised - 19/08/2004
Court: NSW Supreme Court
Date: 25 February 2003
Judge(s): Howie J

Background

The accused, John Lawrence, faced trial on charges of conspiracy to import a commercial quantity of cocaine into Australia from South America. The Crown alleged that 120 kilograms of cocaine had been transported by vessel from South America and off-loaded at a location known as Kelso Banks, off the Queensland coast.

The Crown intended to call Wouter Van Bommel as a witness. Van Bommel was himself alleged to have been a participant in the conspiracy, and had subsequently pleaded guilty to conspiracy to import cocaine and been sentenced in the NSW District Court. He received a sentencing discount in exchange for his assistance to authorities and his undertaking to give evidence against the accused.

The defence applied to prevent the Crown from calling Van Bommel at trial, arguing that the circumstances in which he came to co-operate with investigators were tainted by illegality and impropriety. Specifically, the defence pointed to events following Van Bommel's detention at Sydney International Airport in August 2001, including questioning before he was charged and without a solicitor being available.

  • Whether the Crown should be restrained from calling the co-conspirator witness on the basis that his evidence was obtained through improper or illegal conduct by investigators.
  • Whether the evidence fell within section 138 of the Evidence Act 1995 (NSW), which provides for exclusion of evidence obtained unlawfully or improperly, having regard to the balancing factors in section 138(2).
  • Whether the evidence should be excluded under section 137 of the Evidence Act 1995 as evidence whose probative value is outweighed by its prejudicial effect.
  • Whether a further pre-trial hearing (a so-called Basha inquiry) was warranted to allow defence counsel to cross-examine the witness before trial on his prior drug involvement and the circumstances of his detention.

Decision

Howie J refused both the application to restrain the Crown from calling Van Bommel and the application to exclude his evidence under section 138. His Honour accepted that there may have been some non-compliance with the interrogation provisions of Part 1C of the Crimes Act 1912 (Cth), particularly sections 23B(4) and 23B(5), relating to the right to contact a solicitor before being questioned. However, by the time Van Bommel gave his substantive recorded interview on 11 August 2001, he had been clearly informed of his rights and agreed to participate without having spoken to a solicitor.

Applying the section 138(2) balancing exercise, Howie J found that even if there had been an established contravention, the relatively minor nature of the procedural irregularity, combined with the significance of the evidence to a serious criminal charge, meant the evidence should be admitted. The public interest in the prosecution of a large-scale cocaine importation outweighed the desirability of discouraging the conduct in question.

His Honour also rejected the section 137 application. Acknowledging that Van Bommel's evidence could be viewed as unreliable, given his status as an alleged co-conspirator and the benefit he received from implicating others, Howie J concluded that those matters were properly addressed through a jury warning under section 165 of the Evidence Act. There was no real prospect the jury would fail to evaluate the evidence appropriately.

On the Ho argument, His Honour distinguished the facts entirely. The Ho case involved injunction proceedings brought by a witness to restrain a prosecution from calling him in breach of an undertaking given to that witness. That situation bore no resemblance to the present application, which was brought by the accused.

Orders Made

  • The application to restrain the Crown from calling Van Bommel as a witness was refused.
  • The application to exclude Van Bommel's evidence under section 138 of the Evidence Act 1995 was refused.

Key Takeaways

  • Under section 138 of the Evidence Act 1995, evidence obtained in contravention of, or as a consequence of a contravention of, a statutory provision is not automatically excluded. The court must weigh the seriousness of the unlawful or improper conduct against other factors, including the importance of the evidence to the proceeding.
  • Where a witness who was allegedly improperly questioned ultimately consented to be interviewed after being informed of his rights, the degree of illegality may be characterised as minor, reducing the weight accorded to the exclusionary considerations under section 138(2).
  • Reliability concerns about a co-conspirator witness who received a sentencing benefit for giving evidence against an accused are generally addressed through a jury warning under section 165 of the Evidence Act, rather than through exclusion under section 137.
  • The principle in Ho; Tran v DPP (Cth) concerning restraint of a prosecution from calling a witness applies in circumstances where the witness themselves seeks an injunction to enforce an undertaking. It does not extend to applications brought by an accused person on different grounds.
  • A Basha inquiry (pre-trial cross-examination of a Crown witness) is not automatically available simply because a defendant has concerns about a witness's background or the circumstances of their detention; a sufficient factual basis must be established to warrant that step.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1912 (Cth), Part 1C, ss 23B(4) and 23B(5)
- Evidence Act 1995 (NSW), ss 137, 138, 165

Cases:
- Ho; Tran v Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37
- Basha (1989) 39 A Crim R 337