Chief Justice attacks DPP’s hidden evidence

Seventeen-year-old Steven John Rowe died from a single blow to his head with a wooden stake in a night of teenage rampaging which led to a murder trial late last year that lifted an edge on the ugly scab of gang violence in the Woodvale area.

Two weeks ago, the events of that night in October 2008 were raked over again when the Director of Public Prosecutions’ appeal against the two-year suspended jail sentence for the lesser charge of unlawful assault causing death was dismissed.

Some of the individuals involved — including Steven — don’t come out of the Court of Appeal’s judgment well. The others are lucky they are only referred to by their initials because they were juveniles at the time.

But the DPP’s office comes out of it very badly too.

Chief Justice Wayne Martin heaped criticism on prosecutor Gary Huggins for a “patently unjustifiable” breach of his statutory obligation to disclose all evidence relevant to the charge.

Given the DPP’s failings in the Andrew Mallard case, this excoriation by the Chief Justice should be causing much concern within the Barnett Government, particularly because he hints at continuing problems within the office.

Chief Justice Martin focuses on one violent 17-year-old, RC, who had been hanging out with Steven that evening.

Both were thrown out of the local Hungry Jack’s for drinking from bottles of beer. RC told the court he had drunk 10 or 11 bottles that night.

The accused boy, JWRL, and a mate were confronted by Steven and RC about 10pm after he walked his girlfriend home, taking a route he thought avoided several milling gangs. On his way back, JWRL found the stake beside a pathway and picked it up for protection.

Chief Justice Martin said the DPP’s appeal disputed the trial judge’s findings about patterns of antisocial behaviour and bullying in Woodvale, saying they were wrongly used to justify JWRL’s actions.

The Chief Justice said not only was there evidence to support that finding, but JWRL and the boy Steven had been about to strike when he was hit by the stake had every reason to believe they were at risk of physical harm that night, particularly from RC.

JWRL’s lawyers provided the appeal court with fresh evidence — a police statement taken from another teenager, RM, in November 2008 which was later the basis of a DPP interview in the presence of Mr Huggins.

RM had been assaulted by RC earlier on the night of the killing. In fact, Steven and RC were looking for him again when they came across JWRL and his mate.

RM told the DPP officers RC headbutted him without warning in a shopping centre in September 2008 and of another incident a week later.

“While he was waiting for a bus, RC walked past him and while doing so, made the symbol of a gun with his hands and made a gunshot noise like ‘pow’,” the appeal judgment said. “He then looked at RM and said: ‘If there weren’t cameras here, I would f…ing kill you’.

“RM responded asking why, given that he had done nothing wrong. RC responded, ‘I’m going to f…ing stab you’.”

At no time did Mr Huggins ask RM if he had told JWRL about the incidents, which, importantly, he had. JWRL’s lawyers did not learn of the evidence until after RM testified at the original trial.

“This conspicuous departure from appropriate prosecutorial conduct becomes more egregious when the course of the trial is considered,” Justice Martin said.

The Chief Justice isolated comments made by Mr Huggins to the jury after two witnesses had mentioned RC’s violent nature.

Remember, that evidence was important because it was being used to argue JWRL acted in self-defence, fearing both RC and Steven.

“Let’s throw as much mud as we possibly can at (RC),” Mr Huggins told the jury. “Let’s divert the jury’s attention away from what really happened that night. Let’s make out (RC) to be this nasty person and that’s why the accused is acting as he was.”

Later, Mr Huggins even stood up for his witness’ character:

“Where’s the actual evidence of (RC) being some sort of thug who goes around bashing people for no reason whatsoever on a regular basis? There isn’t.”

The second comment brought a blistering attack from the Chief Justice:

“That assertion was made to the jury less than three weeks after the prosecutor had been told by RM of the unprovoked violent attack by RC upon him and the subsequent threat made to him by RC,” Chief Justice Martin said. “Putting the case to the jury in the way in which the prosecutor did, with that undisclosed knowledge, was a serious departure from appropriate prosecutorial and professional standards.

“During the course of this appeal, the State denied that there had been any breach of the obligation of disclosure. In the circumstances which I have related, that assertion is utterly indefensible.

“The State’s failure to concede that there had been a breach of the obligation of disclosure, and a serious breach at that, suggests that there is a continuing misconception within the Office of the Director of Public Prosecutions as to the ambit and significance of that obligation.

“If there is such a misconception, it should be remedied immediately.

On the issue of self-defence, Chief Justice Martin said the DPP’s contentions “should be rejected not only because of its own misconduct, but also because they are without factual foundation”.

Hardly a vote of confidence in the DPP.