DISTRICT COURT OF QUEENSLAND
CITATION:
R v Anastasi [2022] QDC 102
PARTIES:
R
(Respondent Crown)
v
ALEX ANASTASI
(Applicant Defendant)
FILE NO: Indictment 412 of 2021
DIVISION:
Criminal
PROCEEDING:
Application pursuant to s 590AAA of the Criminal Code 1899 (Qld)
ORIGINATING COURT:
District Court
DELIVERED ON:
4 May 2022 (ex tempore)
DELIVERED AT:
Townsville
HEARING DATE:
4 May 2022
JUDGE:
Coker DCJ
ORDER:
That the costs of the Defendant, thrown away as a result of the mistrial, fixed in the sum of $36,484.08 be paid within 60 days of today.
CATCHWORDS:
CRIMINAL LAW – S590AA OF THE CRIMINAL CODE ACT 1899 – where there is dispute as to disclosure of documents – whether full investigation has been done by the investigating police officer – whether there is a finding of non-compliance by the directed person – whether the noncompliance if found was unreasonable, unjustified or deliberate – where costs thrown away are sought.
LEGISLATION:
Criminal Code Act 1995 (Cth) s 474.17(1). Criminal Code Act 1899 (Qld) s 590 AA, 590AA(2)(ba), s 590AB(1), 590AB(2)(a), 590AB(2)(b), s 590AAA(1), 590AAA(2), 590AAA(3), 590AAA(4).
CASES:
R v His Honour Judge Kimmins; ex parte Attorney-General [1980] Qd R 524.
COUNSEL: S. Harburg for the Respondent
I. Munsie for the ApplicantSOLICITORS: Commonwealth Director of Public Prosecution for the Respondent
Russo Lawyers for the Applicant
Introduction
On the 20th of August 2021, an indictment was presented in this court naming Alex Anastasi as the defendant. He was charged pursuant to the provisions of section 474.17(1) of the Commonwealth Criminal Code with seven counts of using a carriage service to menace, harass or cause offence. The offending was said to have occurred between the 12th of August 2020 and the 5th of October 2020, a period of approximately seven weeks. The matter progressed, generally, in what I might call the normal way through various mentions in the court where, ultimately, it was listed to proceed to trial before me. However, a number of issues arose of an interlocutory or preliminary nature in relation to the conduct of the proceedings, such that there were various applications that were before the court.
They related, generally, to issues with regard to the obligation for disclosure which falls upon the prosecution. In that regard, they referred specifically to the provisions of section 590AB of the Queensland criminal Code. That particular section is headed, “Disclosure Obligation” and is in these terms.
(1) This chapter division acknowledges that it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth.
(2) Without limiting the scope of the obligation in relation to disclosure in a relevant proceeding, the obligation includes an ongoing obligation for the prosecution to give an accused person full and early disclosure of:
(a) All evidence the prosecution proposes to rely on in the proceedings; and
(b) All things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case of the accused person.
In this particular matter, one of the issues that became and remains significant in respect of the proceedings is the words contained within section 474.17 of the Commonwealth Criminal Code. It relates to the use of a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. The continued debate in relation to these proceedings related to exactly what might or might not constitute, “all of the circumstances”, I do not presume to suggest that I would be able to articulate exactly the positions taken by the prosecution and the defence in relation to those words “in all of the circumstances” other than to say that there was a very wide distinction drawn between the two sides in relation to the proceeding, as to what that constituted and, therefore, what might or might not be relevant, in relation to the proceedings.
As such, there was a constant concern expressed on the part of the defence that the information that might in all of the circumstances be relevant, or of assistance to the case for the defendant in these proceedings, was not provided to the court and, more particularly, provided to the defence.
As such, an application for a direction ruling pursuant to the provisions of section 590AB brought pursuant to the provisions of section 590AA of the Criminal Code was filed on the 21st of April 2022, and was heard by me on the 26th of April 2022. At the time, there was a difficulty experienced by the defence in relation to knowing exactly what might or might not be material that was held, in relation to the prosecution relating to, for example, other persons who had had some peripheral involvement in relation to the proceedings and, as such, the application that was filed by the defence sought disclosure of an enormously wide range of documents. I do not criticise the defence in that regard because they were operating in a situation where they were, to some degree, blind as to the information that was present.
What they were aware of at all times, however, was that there was a difficulty in the interaction and relationship between the defendant and police prosecutions, giving rise to the various emails and one telephone message that was left, which give rise to the seven counts that are contained within the indictment.
I do not mean to be disparaging or in any way rude in relation to Mr Anastasi, but I gain the distinct impression that he was determined to gain the information that might have been appropriately available to him, in relation to an assessment of what constituted all of the circumstances, in relation to the offending, and that he was, perhaps, a grain of sand in the eye of prosecution generally, in that he continued to press for and seek such information, as did his legal representatives, upon his instructions.
In any event, I determined on the 26th of April 2022 that certain disclosure should occur – particularly in line with that which was conceded by the Crown as being out of an abundance of caution perhaps – documentation that might properly be disclosed. As a result of that, there were further records to be disclosed in relation to a number of matters, including those relating to Crown witnesses or Mark Fenlon or in relation to other persons involved in the proceedings.
Most particularly, however, there were orders made in relation to what I might call (j) and (k) of the application that was before the court, with regard to the disclosure of any records regarding identifying Mr John W. Todd and I assume Todd’s involvement in the current investigation against Mr Anastasi and/or historical allegations against Mr Anastasi. There were also directions made with regard to disclosure of any records of disciplinary action investigated or taken out against any of the Crown witnesses and/or Mr John W. Todd, in relation to their involvement in any prosecution of Mr Anastasi.
Particularly, there was a concern held by the Defendant with regard to the involvement, in whatever respect it may have arisen, of Senior Sergeant John Todd. Senior Sergeant Todd is the husband of Rachel Todd, one of the complainants in relation to these proceedings, and that gave rise, understandably, one would think, to a concern as to his involvement, at all, in relation to the proceedings. It was therefore incumbent upon the investigating officer, Detective Senior Constable Hilton, to ascertain the involvement and the nature of any involvement of Senior Sergeant Todd, in relation to the proceedings.
Disclosed very late in relation to the proceedings was correspondence from Senior Sergeant Todd to Detective Senior Constable Hilton in relation to the inquiries that were conducted by Detective Senior Constable Hilton. That email of the 21st of April 2022 is noted as the subject, R v Anastasi, Further Inquiries To Be Made Re Disclosure. It is in these terms:
Des, please find my response to the disclosure.
It is then headed:
Paragraph (5)
Any records regarding identifying Mr John W. Todd involvement in:
a. the current investigation against Mr Anastasi.
b. the historical allegations against Mr Anastasi.
The response apparently is:
I have had no involvement in the investigation.
Paragraph (6)
If it is the case that Mr John W. Todd was involved in any way whatsoever into the current allegations against Mr Anastasi, any records of whether Mr Todd has declared a conflict of interest, given, it would appear, his wife is the complainant.
The answer is:
I have had no involvement in the investigation.
However, cryptically, it includes:
I commenced inquiries into emails that had been sent to Sergeant Rachel Todd as part of the normal business as a police officer, which led to the investigation commencing.
It would seem, unfortunately, that Senior Sergeant Todd drew a distinction between the term “investigation” and the term “inquiry”. To be frank, it seems to me to be a distinction without a difference. There was some involvement by Senior Sergeant Todd, at least in relation to, as he described it:
... commencing inquiries into emails that had been sent to Sergeant Rachel Todd as part of normal business as a police officer.
Interestingly and tellingly, however, there is no response, there, to the actual query that was directed to Senior Sergeant Todd, which was to the effect of whether he had declared a conflict of interest, given, it would appear, his wife is the complainant. From what I have heard and seen so far, that is still unclear in relation to these proceedings, and it would, I would have expected in a reasonable investigator or inquirer, have opened further questions and inquiries that would have appropriately have been made, in relation to exactly what was intimated by that statement by Senior Sergeant Todd.
Additionally, there was the final inclusion in the email from Senior Sergeant Todd to Detective Senior Constable Hilton, headed Paragraph 7, which related to any records of disciplinary action investigated or taken out against any of the Crown witnesses (and/or Mr John W. Todd) in relation to their involvement in any prosecution of Mr Anastasi. I can perhaps deal specifically with that issue now, noting that Senior Sergeant Todd responded:
There is no disclosure in relation to disciplinary action in relation to this matter.
No doubt, that related to him, and as best I understand the situation now, there has been no inquiry, nor has there been any investigation in relation to any action that might have been involving Senior Sergeant Todd, at least until this time. What is clear, however, is that there were other witnesses, all of whom have been made clear in relation to the proceedings, and that included the investigating officer.
It appears that the investigating officer was not aware, he says, of a complaint made in relation to him, and there could, perhaps, be some explanation and clarification in that regard because the complaint that was made in relation to detective Senior Constable Hilton related to a complaint made by Mr Anastasi’s wife and not by him, though, clearly, it related to the actions involving Mr Anastasi. It does also appear that there was communication by the Ethical Standards Command to Detective Senior Constable Hilton in relation to their inquiry, though the police officer indicated that he had not been contacted in relation to the matter.
But, in any event, I am certainly satisfied that inquiries were made, and through some omission that occurred outside the ambit of what might have included further inquiry by Detective Senior Constable Hilton, the information relating to a complaint in respect of that officer was not communicated. In any event, it has been clarified, and I certainly would not consider that the position was unreasonable in relation to the inquiries to be made in relation to this matter.
However, in my assessment, that is not the case in relation to the investigations, particularly with regard to the involvement of Senior Sergeant Todd in these proceedings, in any way. What is clear is that Senior Sergeant Todd has had some involvement. If nothing else, he is the partner of one of the complainants in relation to the matter, and, of course, it was Detective Senior Constable Hilton who provided, as part of his investigation and through disclosure, communications between Rachel Todd and her husband which encompassed various documents and emails that had been exchanged in relation to the prosecution of the defendant, Mr Anastasi.
It was unfortunately troubling that Detective Senior Constable Hilton apparently had no recollection of that particular document, though his indications in evidence, as I recall, were to the effect that he had obviously read the documents that had been the subject of disclosure. But it was clear that it opened, perhaps to use the vernacular, a can of worms in relation to this matter, and Detective Senior Constable Hilton should have been, as the investigator in relation to this matter, alert to the need to particularly inquire into the involvement of Senior Sergeant Todd, in any way, in relation to the investigation or inquiries that might have been made by him in light of, as I say, the testy nature of the interactions between the defendant and police prosecutions.
That does not appear to have occurred but, rather, seems simply to have been a situation where an inquiry was made of Senior Sergeant Todd, a response was received, and though it was dripping with various other concerns as to what might or might not have occurred, no such inquiry or further inquiry was made by Detective Senior Constable Hilton. What then ensued was an exchange throughout the trial in relation to the various witnesses and there were only three who gave any evidence in relation to this matter, as well as, then, the calling of Detective Senior Constable Hilton in relation to the inquiry that arises pursuant to the provisions of section 590AAA of the Criminal Code.
Section 590AAA of the Criminal Code relates to the concern that is sometimes unfortunately held with regard to non-compliance with direction about disclosure. I have already referred to the provisions of section 590AB and of the requirement, clearly, that exists with regard to disclosure of information or evidence in relation to proceedings which would tend to help the case of the accused person. Such information is wide ranging, particularly in an instance such as this where the wording of the section under which the charge is made refers to “all the circumstances”. There are many circumstances that were required to be investigated, however, there has not been, in my view, full compliance with the directions about disclosure, let alone full compliance in relation to the obligation that obviously arises pursuant to the provisions of section 590AB of the criminal Code.
No doubt, if there is not full disclosure made to the satisfaction of defence, then one would anticipate that at the fresh hearing of this matter, further cross-examination will ensue and I suspect, unfortunately, that other evidence will give rise to other documents. But that is a question for another time. What I deal with here is the provision of section 590AAA, non-compliance with direction about disclosure. Section 590AAA(1), (2), (3) and (4) is in these terms:
(1) If it appears to the court that a person (the directed person) has not complied with a direction given under section 590AA(2)(ba), the court may order the directed person to file an affidavit, or give evidence in court, explaining and justifying the failure to comply.
(2) If the court requires the directed person to file an affidavit, a copy of the affidavit must be served on the person for whose benefit the direction was given (the affected person).
(3) An order under subsection (1) may be made—
(a) on the court’s own initiative; or
(b) on the application of the affected person.
(4) If the court is not satisfied the directed person’s affidavit or evidence satisfactorily explains and justifies the noncompliance, the court may—
(a) adjourn the proceeding to allow enough time for—
(i)the directed person to comply with the direction; and
(ii)the affected person to consider anything disclosed under the direction and take any necessary further action; and
(b)if the court is satisfied that the noncompliance was unjustified, unreasonable or deliberate—make, in relation to the adjournment, an award in favour of the affected person of an amount of costs the court considers just and reasonable; and
(c)if an award of costs is made under paragraph (b)—fix a time for the amount to be paid.
It relates, therefore, to a concern that might arise for a court as to whether a person, the directed person, and in this instance that is Detective Senior Constable Hilton, has complied with a direction given pursuant to the provisions of section 590AA(2)(ba), with the court ordering or directing that person to conduct the inquiries necessary and to disclose documents that are relevant and which should have been revealed.
The application that was made by defence in relation to this matter yesterday afternoon constituted an application for a mistrial which was not opposed by the Crown, and an application for costs. The application for a mistrial has been dealt with, the trial has been aborted, and the jury discharged, but the issue of costs remains live. It is that which now is required to be determined in relation to this particular matter regarding the issues with regard to whether or not there has been disclosure and compliance with the directions by Detective Senior Constable Hilton.
Helpfully, I have received an outline from the Crown in relation to this matter in response to the nature of the application brought by defence, and it, quite properly, breaks down the findings that need to be made by the court in relation to whether or not it is appropriate that an order should be made pursuant to the provisions of section 590AAA of the Criminal Code. I could perhaps now effectively deal with one of the arguments in relation to this matter, which relates to the question of costs. In the outline that has been provided by the Crown, at paragraph 4, the following is said:
As was confirmed in R v His Honour Judge Kimmins ex parte the Attorney-General, the general rule in criminal cases is that the Crown neither pays nor receives costs.
I perhaps need say little more than the case involving his Honour Judge Kimmins is reported in 1980 Queensland Reports 524, and that the provisions of section 590AAA of the criminal Code were inserted into the Act by way of amendment which became operational on the 1st of November 2010. In other words, 30 years after the decision in relation to the matter with regard to his Honour Judge Kimmins and, of course, circumstances have changed. The provisions now require disclosure. They require wide disclosure and there are ramifications for a failure to do so, noting as I do that section 590AAA(4) specifically indicates that the court may make an order for an amount of costs. So there is no difficulty, in my assessment, with regard to the consideration of the application, notwithstanding the general position which still remains, that the Crown does not seek nor obtain costs in relation to criminal proceedings.
So as I say, the first of the questions is whether there has been non-compliance. In light of what I have said in relation to this matter, there has not been the full disclosure noting, as I do, that only late yesterday afternoon were some records relating to the inquiries made by Senior Sergeant Todd made available in relation to this matter. What more might or might not be able to be found with further inquiry in relation to this matter, or whether there is anything further is unclear, but what is clear is that the inquiry which could and should have been made pursuant to the provisions of section 590AB and, certainly, pursuant to the orders of the 26th of April 2022, were not fully complied with.
What that leads to, then, is the second of the considerations, which was whether or not the non-compliance was unreasonable, unjustified or deliberate. Submissions were made by defence in that regard that there was a basis upon which it could be considered that the non-disclosure or non-inquiry which might have led to disclosure was deliberate. I am not satisfied that that is the case, though I would record, specifically, the concern that I have, generally, in relation to this matter, but more particularly with regard to the investigating officer, Detective Senior Constable Hilton, in relation to his attitude to the proceedings. Whether or not the defendant is an irritant; whether or not there are police officers who are the complainants in relation to the matter, and, therefore, they would be automatically, by another police officer, believed as full, frank and honest, does not abrogate the responsibilities in relation to inquiries that properly should be made.
An extreme and rather ridiculous example, but one that perhaps shows the need for further inquiry, would simply be if it were the case that a police officer were charged with a murder and was asked, “Did you do it”, and replied “No”, would the investigation and further inquiry cease at such a stage? Of course it would not. And whilst it is a very different example and one extreme in the obvious nature of it, what is clear is that the fact that some answer was given, particularly as was given by Senior Sergeant Todd in a cryptic manner, does, in fact, require that there should be further inquiry made and investigation on the part of the investigating officer.
It was unjustified, in my view, to simply accept that answer therefore as the basis upon which no further inquiry would be made, particularly in circumstances where, as is obvious from what I have already said, documentation did exist and has now been made available to the defence. And similarly, I would note that it was, in my assessment, unreasonable that such inquiry would not be made. Whether it related to the general manner or attention that was given the matter by Detective Senior Constable Hilton, or whether it arose as a result, as I say, of the complainants being police officers, is unclear, but it was unreasonable to simply cease any manner of inquiry that might arise in relation to these proceedings.
Perhaps it is unnecessary, but I think appropriate that I should also note that there was a general concern that I would express in relation to Detective Senior Constable Hilton. The distinct impression I gained from him in the witness box when the 590AA inquiry was underway, was that he found the whole procedure an irritant. And, he acknowledged that outside the court, just before coming in he had apparently said, in the presence of Senior Sergeant Moran, one of the witnesses, in these proceedings and a witness who was still the subject of cross-examination, that the whole thing was a game. This reflected, perhaps, more upon him than upon anyone else, including defence, in relation to the attitude taken, and I have some concern that that may have directly affected the nature of the inquiry made, in relation to this matter.
As such, I find that, certainly, the second of the elements to be considered – whether or not the noncompliance was unreasonable or unjustified – to be satisfied in relation to these proceedings.
Which leads, then, to the third of the questions, of whether or not the amount sought in relation to the costs in these proceedings should be ordered in their entirety, or whether, as the legislation provides, the order should reflect more a situation of what is reasonable in the circumstances.
I am satisfied, without a shadow of a doubt, that the costs that have been incurred by the defendant in relation to the defence in the proceedings, and the difficulties that have given rise, ultimately, to there being a mistrial, have come about directly as a result of the issues with regard to disclosure, and, tragically, I would think, the attitude that has been shown, certainly by Detective Senior Constable Hilton, but perhaps others in relation to the prosecution of this matter.
As I say, whether or not the defendant is an irritant; whether or not the defendant spoke harshly, perhaps offensively, to the police officers and, therefore, gave rise to these proceedings, needed to be considered in all of the circumstances, and those circumstances are, in my view, wide-ranging.
The position in relation to this matter is that the costs that are claimed, totalling $36,484.08, arise as a direct result, and are thrown away as a direct result of the findings that I have already made in relation to this matter. Accordingly, I intend to make an order for the costs of the defendant to be paid in the sum of $36,484.08, and that such payment should be made as directed by the legal representatives for the defendant, within 60 days of today.
Additionally, I intend to direct, as I indicated yesterday, that this matter is to be listed as trial number 1 commencing in the sittings of the 5th of September 2022 before Judge Administrator Smith of this court, and would also indicate that any applications which might otherwise arise in relation to the matter should, in my assessment, appropriately be brought before Judge Smith for the purposes of ensuring that there is that consistency which arises with regard to the one judge involved in relation to all such applications. I will direct that my reasons in this matter be published.