Land and Environment Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v John David Chia (No 13) [2018] NSWLEC 185 Hearing dates: 13 November 2018 Date of orders: 13 November 2018 Decision date: 14 November 2018 Jurisdiction: Class 5 Before: Robson J Decision: See [23] Catchwords: PRACTICE AND PROCEDURE – criminal trial – interlocutory judgment – defence objection to the calling of a prosecution witness EVIDENCE – whether defendant prejudiced by the calling of prosecution witness – prosecutor's duty to call all material witnesses – whether witness contaminated – witness called Legislation Cited: Evidence Act 1995 (NSW) ss 135, 137, 192 Cases Cited: Majinski v Western Australia (2013) 226 A Crim R 552; [2013] WASCA 10 R v Momodou [2005] 2 All ER 571 Category: Procedural and other rulings Parties: Ku-ring-gai Council (Prosecutor) John David Chia (Defendant) Representation: Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant) Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant) File Number(s): 2016/00293131 Judgment 1. Yesterday, in the afternoon of the 22nd day of hearing of these Class 5 proceedings, the prosecutor sought to call Grant Dahtler to give evidence. Mr Steirn, senior counsel for the defendant, objected to the Court receiving Mr Dahtler's evidence, a position the defendant had earlier foreshadowed. Having heard detailed submissions from Mr Steirn and Mr Howard, senior counsel for the prosecutor, and having considered the transcript references and authorities relied upon by the parties, I allowed Mr Dahtler to be called and indicated that I would later provide reasons this morning. My reasons follow. 2. Mr Steirn's primary position was that the calling of Mr Dahtler on the last day of the prosecution's case was unfair and prejudicial. His reasons for objection may be shortly stated. 3. First, he submitted that the only reason Mr Dahtler was now being called was to avoid criticism of the fact that he had not been called earlier in the proceedings in circumstances where Mr Steirn had submitted he should have been called. 4. Second, the defendant has been denied procedural fairness because no affidavit or statement of Mr Dahtler had been provided contrary to the rules of this Court in Class 5 proceedings. Mr Steirn submitted that the only material provided was a "cryptic conference note" which had been only recently provided. 5. Third, Mr Dahtler's evidence was "irrevocably contaminated" as a result of his presence during a record of interview undertaken by Mr Phillip Myles, a private investigator retained by the prosecutor, with Mr James McKenzie (a witness who has given evidence in the prosecution's case). 6. In these circumstances, Mr Steirn submits that there is no probative value in any evidence to be given by Mr Dahtler and that in accordance with s 137 of the Evidence Act 1995 (NSW) ('Evidence Act'), the Court would refuse to receive Mr Dahtler's evidence because its probative value is insignificantly outweighed by the danger of unfair prejudice to the defendant. 7. Mr Steirn indicated that the defendant's position would be different if Mr Dahtler had been interviewed separately by Mr Myles. 8. In support of the submission that Mr Dahtler's evidence was (and would be seen to be) contaminated, Mr Steirn took the Court to certain evidence already before the Court including: 1. Evidence that Mr Myles was an experienced professional investigator having been a detective for 13 years, and that Mr Myles in his evidence had accepted that it was good practice to keep witnesses separate (Tcpt, 29 October 2018, p 760(43-49)); 2. Mr Myles' acceptance of the fact that interviewing witnesses together raised a real chance of contamination and, further, if witnesses are interviewed together, there is a chance that a witness with a stronger personality would overbear the witness with a less strong personality (Tcpt, 29 October 2018, p 761(1-6)); 3. Mr Myles' acceptance that it was good practice when taking statements to separate witnesses by putting them in separate rooms so that they cannot talk to one another (Tcpt, 29 October 2018, p 761(25-30) and p 762(34)) and to keep witnesses apart until separate interviews and/or statements have been taken; 4. Mr Myles' acceptance that in a formal interview, if an investigator became aware that a person present could be a witness, he would separate them from any other witness (Tcpt, 30 October 2018, p 810(36) and p 811(1)); 5. That Mr Dahtler was a partner in both a professional and personal sense with Mr McKenzie; 6. Mr McKenzie gave evidence that there were occasions during the interview conducted by Mr Myles (where Mr Dahtler was present) that, when Mr McKenzie could not recall some matters, Mr Dahtler would indicate what his position was and that sometimes Mr McKenzie would change his view (Tcpt, 24 October 2018, p 461(1-9) and p 461(22-27)); and 7. Mr McKenzie gave evidence that the interview took place one and a half years after the relevant incident and, to a point, he had forgotten or could not recall detail and had the assistance of his partner (Tcpt, 24 October 2018, p 491(12-24)). 1. Mr Steirn provided a number of further transcript references to evidence where Mr McKenzie gave evidence that Mr Dahtler had "reminded" Mr McKenzie of certain matters during the interview (Tcpt, 25 October 2018, p 532(32-50), p 533(1-31) and p 536(1-7)). 2. Mr Steirn also referred to evidence given by Mr Myles relating to his conduct of the interview with Mr McKenzie and Mr Dahtler (Tcpt, 30 October 2018, p 839(7-13)); that he could have prevented Mr Dahtler from being present in the room (Tcpt, 30 October 2018, p 838(35-40)); that Mr Dahtler at the time of the interview had told Mr Myles that he was a "work colleague" of Mr McKenzie (Tcpt, 30 October 2018, p 839(20)); that he did not consider having Mr Dahtler removed from the interview (Tcpt, 30 October 2018, p 849(16)); and that there was a possibility that Mr McKenzie would have drawn comfort from having Mr Dahtler beside him (Tcpt, 30 October 2018, p 851(35-45)). 3. In the above circumstances, Mr Steirn submitted that there was overwhelming evidence of contamination of Mr Dahtler. 4. The fact that there was no reference to Mr Dahtler being a material witness in the prosecution's opening address, should militate against the prosecutor being permitted to call Mr Dahtler. 5. Mr Howard's submissions may be summarised as follows: 1. The defendant's position was unorthodox in that contamination would not ordinarily prevent a witness from being called; 2. When the prosecutor opened its case in April 2018, it was clear that Mr Dahtler was not considered by the prosecutor to be a material witness and even when the hearing resumed in October 2018, the prosecutor maintained that position; 3. The defendant's recently adopted position (opposing the calling of Mr Dahtler) is unfair as it was Mr Steirn who indicated (Tcpt, 22 October 2018, p 280(6)) that Mr Dahtler was a material witness on the basis that Mr Dahtler should not have been permitted to be part of the interview. Mr Howard referred to his own comments on day 8 of the hearing (Tcpt, 22 October 2018, p 283(22-33)) where he stated: Never, until this morning, has there been any suggestion put to the prosecutor that Mr Dahtler is a material witness. So it now seems to be the position that the defendant says, well, he's a material witness, and therefore if you don't call him, then we'll ask the Court to have an inference drawn that he cannot assist the prosecution case. And then on the other hand say, but you can't call him. So the defendant would seek impermissibly to put the prosecutor between a rock and hard place. I can tell the Court now, that having been apprised for the first time of an assertion that Mr Dahtler is a material witness, I will take steps today to attempt to have him called as a witness, and to have some précis of his evidence provided, before the end of the prosecution case, assuming we can fit it in. 1. The prosecutor issued a subpoena for Mr Dahtler to attend because the defendant maintained that he was a material witness and in circumstances it is unfair for the defendant to now submit that he should not be called. 1. Mr Howard also gave details of the evidence he apprehended Mr Dahtler may give. 2. In reply, Mr Steirn referred to R v Momodou [2005] 2 All ER 571 at [61] and Majinski v Western Australia (2013) 226 A Crim R 552; [2013] WASCA 10 ('Majinski') at [32] and submits that the defendant had made forensic decisions based upon the prosecution's (delivered) brief and that in the circumstances where there is clear evidence of contamination, because of Mr Dahtler's presence at Mr Myles' interview with Mr McKenzie, the defence was entitled to assume that the prosecutor would have regarded Mr Dahtler's evidence as "worthless". 3. Mr Steirn submits, for the reasons summarised above, in particular because of s 135 of the Evidence Act, that the defendant is unfairly prejudiced and the prosecutor should not have "leave" to call Mr Dahtler. Mr Steirn submits that leave is required pursuant to s 192 of the Evidence Act and as such, the matters required to be considered pursuant to s 192(2) would militate against Mr Dahtler being called including the fact that it would extend the length of the hearing; that it would be unfair; that the evidence would be "worthless"; and, given the fact that the nature of this hearing is that of a criminal proceeding, a defendant is entitled to know the case it is meant to meet. 4. In all the circumstances and having closely considered the detailed submissions and the references to all the evidence, I do not accept the defendant's objection to the calling of Mr Dahtler. My reasons can be briefly stated. 5. First, Mr Dahtler was only issued with a subpoena on the basis of the defence's position that he was a material witness. In those circumstances, and having regard to the prosecutor's duty to call any material witnesses, I consider that the prosecutor acted properly in calling Mr Dahtler. 6. Secondly, I do not consider that the contamination of Mr Dahtler alleged by the defendant is a proper ground upon which to prevent him from giving evidence. In Majinski, Martin CJ, with whom Buss and Mazza JJA agreed, said at [32]: Questioning of a witness moves beyond "proofing" to impermissible "coaching" when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness: HKSAR v Tse Tat-Fung; R v Momodou. A solicitor or counsel should not advise a witness as to how to answer a question: Re Equiticorp Finance Ltd; Ex parte Brock. By way of example, in Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 the defendant's solicitors prepared an extensive document for the defendant outlining "possible areas of questioning, (to be passed on to the respective witnesses)" and included suggestions as to appropriate responses which would be in line with the defendant's case [22]. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and "tainted" the defendant's case [182]. 1. I do not consider that the alleged contamination of Mr Dahtler crossed the line into "coaching" such that the calling of Mr Dahtler is inappropriate. 2. Thirdly, I consider that the defendant is not prejudiced by the calling of Mr Dahtler as the impropriety of the alleged contamination of Mr Dahtler's and Mr McKenzie's evidence can be made, and indeed made more coherently, with Mr Dahtler being called as a witness. 3. Fourthly, I do not accept that the Court's leave is required, but even if it were, having regard to the s 192 factors I would have granted leave having regard to the fact it would not unduly lengthen the hearing, that it would not be unfair to any party, that Mr Dahtler may give evidence of some materiality to the case, and accepting that the present hearing is a criminal trial. 4. For those reasons, I determined to allow Mr Dahtler to be called as a witness. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2018