Regina v Vollert [1974] PGLawRp 363; [1974] PNGLR 84 (5 July 1974)

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CRIMINAL LAW - Procedure - Powers of trial judge - Production of statements of Crown Witnesses and other documents.

An accused person has no legal right to the production of a statement made by a witness to be called for the Crown at a criminal trial. In a particular case where the interests of justice require it, the trial judge may order the production of such a document to the defence.

Accordingly that unless it can be shown that the interests of justice require the production in criminal proceedings of some particular document, an accused applicant who has been furnished with the depositions of the committal proceedings and also with a precis of the evidence of any additional witness, is not entitled to production of original signed statements of witnesses in the possession of the Crown nor of records, files, statements, documents or any other papers containing notes of investigations of police officers in relation to earlier criminal proceedings against the accused.

This was a notice of motion on behalf of an accused/applicant seeking the following orders:

N1>1. That the Crown produce such of the material within the descriptions following as in its possession or control:

N2>(a) Original signed statements given or made by investigating Police Officers in relation to the prosecution and in particular certain specified statements.

N2>(b) All records files statements documents or any other papers of whatsoever nature containing notes of investigations of any Police Officers in relation to information laid against certain named persons.

FROST ACJ: This is a notice of motion on behalf of the applicant, Walter Vollert, seeking an order that the Crown produce for the examination of the applicant such original signed statements of certain witnesses as are in the possession of the Crown and also all records, files, statements, documents or any other papers containing notes of investigations of police officers in relation to earlier criminal proceedings against the applicant and also against two other accused persons Barry Ilett and John Thomas Johnstone.

Each of the three accused was proceeded against separately in the District Court at Lae and in the committal proceedings was committed for trial in the Supreme Court on the charge of receiving on 23rd March, 1974, a certain welding machine the property of the Government of Papua New Guinea which had lately been stolen and which the accused knew had been stolen, thereby contravening s. 433 of the Criminal Code.

The evidence called on behalf of the Crown in these proceedings was that on 23rd March, 1974, a welding machine had been stolen from the Plant and Transport Authority, that pursuant to an arrangement made between the accused, Ilett and one Ward, an employee of the Government, the machine was delivered to Ilett’s premises on that day, that Ilett had purported to sell it to Johnstone for $1,000, that Johnstone took delivery of the machine on the same day, and later that day he in turn purported to sell it for $1,200 to the accused Vollert who also took possession of it on the same day. The machine, which was new, had been bought by the Authority for $2,100. Ilett deposed that Ward had arranged that the $1,000 received from Johnstone should be equally divided between them, and that he had paid $500.00 to Ward.

In the proceedings against Vollert, Ward was not called as a witness, but in the other proceedings in which he was called he denied any participation in the transaction.

This is the second attempt by the applicant to obtain inspection of the documents I have referred to. At the committal proceedings a summons was issued to secure the production of the documents at the District Court but it was short served under the District Court Act, ss. 55 and 74, and the stipendiary magistrate upheld the Crown’s objection on that ground, and also refused to grant an adjournment to enable the documents to be produced at the hearing.

The three cases are in the list for trial this month at Lae and the Crown proposes to indict the three accused jointly. The present motion was brought on first before the trial judge who is this month to conduct the Lae Sittings, but on being informed that reference would need to be made to the depositions during the hearing of the application, he considered that he should not continue with the hearing having regard to the practice of this Court that the trial judge does not read the depositions prior to the trial.

After the hearing was concluded before me and I had reserved my decision, the case of R. v. Charlton[cii]¹ was drawn to my attention. When I invited Counsel to make submissions concerning this case neither Counsel disputed the principles of law laid down by the Full Court of the Supreme Court of Victoria in that case in relation to an application at the trial by an accused person for production by the Crown of statements made by Crown witnesses.

Having considered the earlier authorities cited by counsel which are referred to by the Full Court I am content to adopt the following statement of the law by the Full Court of Victoria. The relevant passages are as follows:

“Prior to the trial, the solicitors representing the applicant had written to the Crown Solicitor and requested production of any statements made by any witnesses whom the Crown proposed to call upon the trial. The request was refused. An application was then made, prior to the commencement of the trial, to the learned trial judge for an order that there be produced to the defence all statements made by all witnesses whom the Crown proposed to call upon the trial. After hearing arguments on behalf of the applicant and on behalf of the Crown, the learned Judge refused to make any such order ...

The first ground argued by the applicant was that the learned judge wrongly refused to order the Crown to produce all statements in its possession of all persons to be called as Crown witnesses. It was submitted in support of this ground that an accused person is, as of right, entitled upon request to production of all such statements, and that refusal of an order, in denial of such right, constitutes such a grave irregularity as to amount to the miscarriage of justice. In this case there had been a coronial inquiry, and the deposition of all witnesses called on that inquiry were of course available to the defence. The Crown had give notice of intention to call at the trial certain additional witnesses, and a precis of the evidence to be given by such witnesses had, in accordance with usual practice, been delivered to the accused or his advisers.

It was not suggested by the applicant that any material inconsistency existed between the evidence given by any witness at the trial and any prior statement made by him, and indeed the learned Crown prosecutor assured the trial judge, that there was no such inconsistency. It should also be added that nothing occurred in the course of the trial to suggest that any such material inconsistency existed.

It was argued, however, by the applicant that he had been denied a legal right, and such denial involved a miscarriage of justice. He submitted that the Privy Council had decided that such a right existed in an accused person in Mahadeo v. R..[ciii]².

In our opinion, that decision is not authority for any such proposition. The facts in that case were exceptional.”

The Full Court then referred to the facts of that case and the statement of law by their Lordships, and continued:

“In our opinion, the decision of their Lordships amounts to no more on this aspect than that in the special circumstances disclosed the prior statement should, as a matter of practice and in the interests of justice, have been produced, and that the failure to produce it, coupled with the other defects in the trial, involved a miscarriage of justice in the circumstances of that particular case. It does not, in our view, decide that an accused person has a legal right to production of all statements made by all witnesses to be called by the Crown. We see no reason either in principle or upon authority for any such right. No doubt where it is shown in any particular case that the interests of justice require that such a statement should be produced to the defence the court may well order its production, as was done in such cases as R. v. Hall[civ]³ and R. v. Xinaris[cv]⁴ also noted to the decision in Hall’s case. Failure to produce a statement in a case where the interests of justice so require may, of course, well result in a Court of Appeal finding a miscarriage of justice, but the existence of such a “rule of practice”, as it was termed by the Privy Council in the case of Mahadeo, does not support a legal right, let alone a general right such as is claimed by the applicant in the present case. We refer to the decision of the Full Court of Queensland in R. v. Power[cvi]⁵, and Archbold’s Criminal Practice[cvii]⁶. For these reasons, in our opinion, the learned trial judge was right in refusing the order sought on behalf of the applicant, and the first ground of appeal has not been sustained.”

Turning to the present case the situation is similar as it is not suggested on behalf of the applicant that there is any material inconsistency between the evidence given by any witness at the committal proceedings and any prior statement made by him. However, the learned Crown Prosecutor is unable to give an assurance to the Court as was given in R. v. Charlton (supra) as he will be unable to examine the documents, which are at Lae, until he travels to Lae for the circuit.

The reasons advanced on behalf of the applicant in support of the order are that the material is required for the preparation of the defence of the accused and to facilitate the cross examination of witnesses, and for the defence to obtain material in support of an application that a nolle prosequi be entered. However, if it transpires that there is no inconsistency so far as the statements are concerned the first two considerations become irrelevant, and as to the third reason, the learned Crown Prosecutor stated that the Crown’s attitude was that there was ample evidence both from the circumstances of the case and from the applicant’s record of interview to support an inference of knowledge that the property was stolen, nor in my opinion does it affect the position that the Crown intends to indict jointly.

The relief sought in the notice of motion apart from that relating to inconsistent statements goes far beyond any decided case. There is no practice prevailing in the criminal procedure of this Court nor is it suggested that any such practice exists in Australia or England for general discovery to be granted to an accused person either before or at the trial. It is true that in the Criminal Practice Rules of 1900 (Queensland adopted) it is provided that in the application of the Rules of the Supreme Court to proceedings in past criminal jurisdiction, the term “cause” shall be deemed to include any prosecution or other proceeding (O.1. r. 1). The civil rules thus in certain circumstances may be applicable to criminal proceedings, but in my opinion the procedure of mutual discovery has no application to criminal proceedings. Accordingly, unless it can be shown that the interests of justice require the production of some particular document an applicant who has been furnished with the depositions of the committal proceedings and also with a precis of the evidence of any additional witnesses, is not entitled to relief of the nature sought in the present notice of motion.

The Crown’s attitude is that it will undertake to produce any statement of a witness which is found to be inconsistent with the witness’s testimony at the committal proceedings. In my opinion there are no special circumstances in this case entitling the applicant to further relief. It is also unnecessary for me to consider the question which was raised in argument whether the trial judge has a discretion at the trial to allow the accused to call for or examine any document without being obliged to tender it in evidence.

Of course if upon examination of the statements there is any doubt as to there being any material inconsistency the Crown Prosecutor will resolve it in favour of the applicant.

The order I make accordingly is as follows: Upon the learned Crown prosecutor undertaking that if upon examination of the statements made or given by the witnesses referred to in par. 1 (a) of the notice of motion, any statement by a witness is found which is materially inconsistent with the evidence of that witness as contained in his depositions upon the committal proceedings that statement will be produced to the applicant’s legal advisers, such production to take place on or before noon on the third day of the Lae Sittings that is 10th July, 1974, the motion is dismissed.

[ciii]<[1936] 2 All E.R. 813.

[civ](1958) 43 Cr. App. Rep. 29.

[cv][1955] Crim. L.R. 437.

[cvi][1940] Q.S.R. 111.

[cvii]37th ed., par. 1374.

[cviii][1854] EngR 719; (1854) 14 E.R. 247.

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Papua New Guinea Law Reports

Regina v Vollert [1974] PGLawRp 363; [1974] PNGLR 84 (5 July 1974)

Papua New Guinea Law Reports - 1974