R v Lawrence (No. 3) [2003] NSWSC 655

New South Wales Supreme Court

CITATION : R v Lawrence (No. 3) [2003] NSWSC 655 revised - 19/08/2004 HEARING DATE(S) : 04/02/03 - 10/07/03 JUDGMENT DATE : 25 February 2003

JUDGMENT OF : Howie J at 1 DECISION : The application to restrain the Crown from calling the witness Van Bommel or to reject his evidence under s 138 of the Evidence Act is refused.

CATCHWORDS : Criminal Law and Procedure - Admissibility of evidence of co-conspirators which was obtained in contravention of the provisions of the Crimes Act 1912 (Cth) or as a consequence of such a contravention. LEGISLATION CITED : Crimes Act 1912 (Cth) - Part 1C, sub ss 23B(4), 23B(5) Evidence Act 1995 - ss 137, 138, 165 CASES CITED : Ho; Tran v Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37 Basha (1989) 39 A Crim R 337 PARTIES : Regina v John Lawrence FILE NUMBER(S) : SC 70220/02 COUNSEL : P. Roberts SC with I. Bourke - Crown C. Waterstreet - Accused SOLICITORS : Commonwealth DPP - Crown King's Lawyers - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HOWIE J

TUESDAY 25 FEBRUARY 2003

70220/02 R v John LAWRENCE (NO. 3)

JUDGMENT 1 Howie J: During the trial of the accused the Crown intends to call in its case a witness, who, the Crown will assert, was a participant in the conspiracy with which the accused and others have been charged. Mr Waterstreet, who appears for Mr Lawrence, has submitted that the Court should restrain the Crown from calling the witness on the basis that the evidence, which it is anticipated that the witness would give, was obtained in such a manner that the Court should not allow the Crown to rely upon it at the trial of the accused. In this regard Mr Waterstreet relies upon the judgment of Ireland J in Ho; Tran v Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37. In the alternative it is submitted that the evidence was obtained either in contravention of the provisions of the Crimes Act 1912 (Cth) or as a consequence of such a contravention, and, therefore, is rendered inadmissible by reason of s 138 of the Evidence Act. 2 There is a further application that I require the attendance of the witness before he is called to give evidence in the trial for the purposes of his being cross-examined by defence counsel, see Basha (1989) 39 A Crim R 337. There has been two bases put forward to support that application: to investigate through cross-examination of the witness, firstly, whether he has previously been involved in drug offences, and, secondly, the circumstances surrounding his detention and questioning before he was charged with any offence. 3 The Crown has alleged that the accused was a party to a conspiracy to import into Australia 120 kilograms of cocaine from South America. It is the Crown case that the witness, Wouter Van Bommel, was also a party to that conspiracy and travelled to Australia in order to assist in the retrieval of the drugs once it arrived in Australian waters. It is unnecessary for the purposes of determining this application to set out the Crown's allegations in any detail. It is sufficient to indicate that the conduct of the alleged conspirators was under surveillance of officers of the National Crime Authority (the NCA) from the time when the Crown alleges that the conspiracy commenced until the vessel, which travelled from South America, arrived and the drugs were off-loaded in a shallow part of the sea off the coast of Queensland, called Kelso Banks. 4 On 5 August 2001, Customs officers at Sydney International Airport detained the witness. By this time the NCA was aware that the drugs had been off-loaded but they were unaware of their exact location. NCA officers arrived at the airport and received Van Bommel into their custody. He was placed in an interview room and spoken to in private by Agent Everingham assisted by another member of the NCA, as an interpreter. That conversation was not recorded. However, there seems to be little dispute that Everingham was endeavouring to induce Van Bommel to assist the NCA by implicating others in the conspiracy and ultimately giving evidence on behalf of the prosecution. 5 Following this conversation, the witness was interviewed briefly by other NCA officers and was asked to assist in the retrieval of the cocaine. He supplied them with the co-ordinates for Kelso Banks and agreed to accompany the officers to that location. It is unclear from the material before me, why the officers thought that this person could assist them in recovering the drugs when he had never been to the Banks. Others who are alleged to have been involved directly in off-loading the drugs were apparently in custody, but I know nothing about their availability or willingness to assist. 6 Although Van Bommel was arrested on 5 August, he was not charged with any offence on that date. He was interviewed at Federal Police Headquarters in Sydney with the assistance of a Spanish interpreter. He was asked whether he wished to contact a solicitor and answered that he did but had no money to pay for one. He was told that an attempt would be made to contact a solicitor on his behalf and the interview was suspended. Later that evening the interview was recommenced but did not continue because a solicitor was not available. Van Bommel confirmed that he was still willing to assist the Authority. There was no further interview recorded until 11 August, when the witness was returned to Sydney after accompanying officers to Kelso Banks in a Custom's vessel. Although the place where the drugs had been placed overboard in containers anchored to the Banks was located, the drugs were not found. 7 During the course of the trip to and from Kelso Banks, the witness was not interviewed about the participation of himself and others in the importation of the cocaine. One taped conversation that took place on board the vessel on the return voyage from Kelso Banks was played as evidence in this application. During that short conversation, the witness was asked to confirm the conditions of his custody on the vessel. In effect he agreed that he was being well treated and was prepared to continue assisting the police. He agreed that, during rough seas the night before, he had been struck on the head by a speaker falling from a shelf above him but he said that he did not want medical assistance. 8 On 11 August a recorded interview was recommenced between the witness and Agents Everingham and Quinn of the NCA. The witness confirmed that he had been assisting the Authority with its investigations on the understanding that that assistance would not be used in evidence against him. However, he agreed to participate in further interviews on the basis that what he said would be used in evidence and without having spoken to a solicitor. He confirmed that he was willing to provide a statement to the officers in relation to the involvement of other persons in the importation. The interview was conducted using a Spanish interpreter. It is unnecessary to detail the contents of that interview which continued into the next day, 12 August, but apparently it is this account that forms the basis of his later statements and the evidence that he would give if called by the Crown at this trial. 9 On 13 August the witness was charged with the offence of conspiracy to import a commercial quantity of cocaine. He ultimately pleaded guilty to that offence before the New South Wales District Court and was sentenced to a term of imprisonment. During the sentencing proceedings, there was tendered an undertaking by the witness to give evidence for the Crown in accordance with statements made by him in September, November and December 2001. He received a discount of his sentence on the basis of his past and future assistance to the authorities including giving evidence against the accused. 10 From 19 to 21 June 2002 the witness gave evidence at committal proceedings and was cross-examined by the solicitor for the accused. That cross-examination touched on the circumstances in which he came to make the recorded interview on 11 August 2001. Although the magistrate was of the view that some of the cross-examination of the witness was not of assistance to him, there does not appear to have been any restriction imposed upon the solicitor for the accused or any other person cross-examining the witness as to the areas of his evidence that could be investigated. 11 In particular there was cross-examination concerning what had occurred at the airport after the arrival of officers from the NCA. During the course of that questioning the witness conceded that these officers had indicated to him the nature of the evidence available that would implicate him and others in the conspiracy and that they induced him to assist the NCA by the promise of a discount of the sentence he would receive for his involvement in the offence. 12 In support of the submission that I should permit the further cross-examination of the witness in what is commonly referred to as a "Basha inquiry", Mr Waterstreet informed the Court that he was in possession of information to the effect that the witness had told another prisoner that, during the period he was in custody of NCA officers prior to the interview of 11 August, he had been the subject of threats and physical violence by those officers which resulted in his participating in the interview even though he was unwilling to assist them. I was told that the defence had in its possession a signed statement from the prisoner concerning those conversations. Mr Waterstreet stated that he wished to cross-examine the prisoner about those matters in order to support his application that I should restrain the Crown from calling the witness. 13 I do not believe that the application for a Basha inquiry has any merit. In so far as the application is based upon a request to investigate whether the witness has any criminal record or prior involvement in drug trafficking, there is no purpose to be served by such questioning in advance of the trial. The only material presently available is that the witness has no criminal record. The Crown has undertaken to notify the defence of anything of which they are aware which is contrary to that position. In any event this was a matter that could have been investigated by cross-examination at committal proceedings but does not appear to have been pursued. I do not understand how the trial of the accused would be assisted by cross-examination on this topic in the absence of the jury. It is not sufficient to justify such an inquiry that defence counsel wishes an opportunity to run a line of questioning in advance of the trial simply to see what it produces. 14 Insofar as the inquiry is aimed at investigating the nature of the witness's custody prior to 11 August and the circumstances surrounding the interview, which commenced on that date, I cannot see any warrant for it. The defence were entitled to question the witness on those topics at the committal proceedings and did so to an extent. However, Mr Waterstreet submits that the further cross-examination is necessary because of the new material that is now in the possession of the defence. Of course statements attributed to one prisoner by another are notoriously unreliable, particularly where they assist in the defence of another prisoner. But even if the witness were to accept that he made those statements and that they were true, there would be no basis for the Court to reject his evidence under s 137 of the Evidence Act, or otherwise, in light of the other material before the Court, such as the taped conversation, the recorded interview and the answers given by the witness in committal proceedings. 15 There is a significant body of apparently reliable material which indicates that the witness was voluntarily assisting the police, was well treated during his period of custody prior to 11 August and was participating in the interview on that date and the next day in order to derive a sentencing discount by assisting the authorities. Apart from that inducement, there is nothing to suggest that his later statements or the evidence that he is expected to give at the trial are so unreliable that his evidence should be excluded. Even if the witness were now to assert that he had been mistreated by police and that statements he made were involuntary, it would be a matter for a jury to assess the apparently conflicting evidence on this topic and ultimately determine whether any account he has given can be acted upon in light of the other evidence before them. 16 I refuse the application for a Basha inquiry because I do not see how it is necessary to ensure a fair trial of the accused or to enable the Court to exercise any power it may have to reject the evidence to be given by the witness. 17 On the material before me it is open to conclude that the witness was unlawfully detained when, following his arrest on 5 August, he was taken to Kelso Banks, without being charged with any offence. I am prepared to accept for the purposes of the present application that the witness was also unlawfully detained during the period in which he participated in the recorded interview on 11 and 12 August. The basis of the illegality is that the arresting officers failed to comply with the provisions of Part 1C of the Crimes Act (Cth). That Part regulates the detention of persons arrested for a Commonwealth offence and prescribes the period during which the arrested person may be detained and the circumstances of that detention. The arresting officers did not comply with those provisions when they chose to take the witness to Kelso Banks. 18 It is unnecessary for the present application to set out the relevant provisions or the scheme which Part 1C prescribes for the detention of arrested persons. Generally speaking, the provisions permit the detention of a person for no longer than a period of eight hours. As in the present case the witness was detained for a period of a week between arrest and charge, there seems to be little purpose in examining how the scheme operates and the statutory exemptions to the time limit. There was some suggestion in the evidence given by Agent Quinn at committal proceedings that the witness was taking part in a "covert investigation" over this period and, therefore, was exempted from the operation of the time limit pursuant to subs 23B(4) of the Crimes Act. Subsection 23B(5), as it was at the time of the detention of the witness, provided that the exemption under subs 23B(4) applies: