Calder v The Queen M129/1993 [1994] HCATrans 139 (6 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M129 of 1993

B e t w e e n -

KERRY LEANNE CALDER

Applicant

and

THE QUEEN

Respondent

Second Respondent

Application for special leave to

appeal

MASON CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 12.13 PM

Copyright in the High Court of Australia

MR D.F. HORE-LACY: May it please the Court, I appear for the applicant. (instructed by Galbally & O'Bryan)

MR P.A. COGHLAN: If the Court please, I appear for the respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ: Yes, Mr Hore-Lacy?

MR HORE-LACY: Your Honours, it is submitted that the Full Court erred in two ways: first of all, in finding that very little of the prejudicial nature emerged beyond what happened in the orthodox presentation of the prosecution case and that the decision of the learned trial judge to refuse the various applications for separate trials and a discharge of the jury was plainly within the proper exercise of his discretion. Second, that the directions of the learned trial judge were sufficient to secure a fair trial in the joint trial setting.

It is conceded at the outset that ordinarily people charged with jointly committing an offence, or indeed in the alternate, should be tried together. That has been described as a prima facie rule. But it is submitted that on occasions there comes a point when the prejudicial material adduced by one co-accused against another accused means that the one complaining has not received or is not receiving a fair trial.

If I could just briefly refer to the principles. I do not believe that there is any High Court authority dealing with this matter, but perhaps the case of Lowery and King, the Privy Council case - - -

TOOHEY J: When you say "with this matter", which particular matter?

MR HORE-LACY: With the question as to how a trial judge should deal with the trial where prejudicial material is led by one accused against another accused.

TOOHEY J: I am not sure what you - are you touching now upon the question of whether separate trials should be ordered, or how the trial judge should deal with the evidence if there is a joint trial?

MR HORE-LACY: Really with both of those matters. The only point I am making in relation to that, there are three Victorian cases - Demirok, Jones and Waghorn, and Gibb and McKenzie - that set out principles relating to the approach that a trial judge should take, and also the approach that the appellate court should take when this sort of material is led. The only point I am making - - -

TOOHEY J: I am sorry, you seem to me to be running the two questions together. The trial judge, faced with an application for a separate trial, makes a decision. If he or she makes a decision in favour of joint trials, questions arise as to how the material is to be handled, but they are not precisely the same question, are they?

MR HORE-LACY: No, with respect. I agree with Your Honour. They are allied but, of course, not the same.

TOOHEY J: But are you attacking the decision to order a joint trial, or the way in which the joint trial was handled by the trial judge and in particular the directions he gave, or failed to give, to the jury?

MR HORE-LACY: It is partly the directions which were given to the jury, but really it is an attack on the basis that the jury was not discharged in relation to the applicant, which is the same thing as saying that separate trials should have been ordered. Not necessarily at the outset - - -

TOOHEY J: It is not, really, is it? Are you saying that even if a joint trial was warranted at the outset that something occurred during the trial to justify the discharge of the jury?

MR HORE-LACY: Yes, that is exactly what I am saying.

DAWSON J: That is what Demirok's case said, is it not?

MR HORE-LACY: Yes. Although what happened was foreshadowed at the outset of the trial, it would appear that what actually happened exceeded, indeed, what was indicated and there was a plethora of material that mounted against the applicant which would not have otherwise been admissible evidence against it. At the end of the day, the complaint really is that at that stage, at least at the end of the Crown case when the final submission was made that the jury should be discharged in relation to Calder, that His Honour erred in not doing it.

The short point of the error, really, is that it could not be said that the additional material did not elevate what was already a body of prejudicial material, but did not elevate it into a different class, in a different category and aggravate what was already a difficult position for her to a new dimension.

DAWSON J: Why is it any different from, for instance, Lowery and King? There, evidence was adduced, which was prejudicial to the character of the co-accused, and yet it was held that that was admissible and that the joint trial resulted in no miscarriage.

MR HORE-LACY: As I understand it, the Privy Council was of the view that the co-accused was entitled to do that in that particular case. The Court was of a view that the prejudice was not such to deprive the applicant of a fair trial. All I can say is that every case, really, is different.

DAWSON J: There is not much difference here. In both cases the evidence was as to the personality characteristics of the co-accused, which was relevant.

MR HORE-LACY: In my submission, Your Honour, it goes much further than that, in this case. In my submission the worst single piece of evidence adduced against her was that her own brother was scared of her to the extent that he went into hiding because he thought she was going to kill him.

DAWSON J: The evidence, from memory, tended to suggest that she was schizophrenic, did it not?

MR HORE-LACY: Yes, as well. But that was not - - -

TOOHEY J: That evidence came through the Crown, did it not?

MR HORE-LACY: That came through Bannon's counsel. Indeed, there was objection to a number of witnesses being called. The Crown called the witnesses, it would seem, partly at least - and I am not suggesting that there is anything wrong with this because it saw as its duty to give counsel for Bannon the opportunity of cross-examining the witnesses.

DAWSON J: If it was relevant and admissible evidence, where does the miscarriage lie?

MR HORE-LACY: It is relevant and admissible as far as the co-accused is concerned, according to the Privy Council case of Lowery and King, which makes it quite clear that the Crown cannot call propensity evidence.

DAWSON J: But that was what they said in Lowery and King, the evidence was not, it was not propensity evidence. It was evidence as to the personality characteristics of the person which was relevant.

MR HORE-LACY: Yes, it was relevant to the defence of the other accused.

DAWSON J: No, relevant evidence in the case.

MR HORE-LACY: In this case it was put to the jury specifically by the learned trial judge that it was relevant, and it was relevant to the case of Bannon.

DAWSON J: It was relevant to show that he did not do it and she was more likely to have done it. If that is what you are saying when you say it was relevant to Bannon then I can understand that, but it is merely relevant evidence.

MR HORE-LACY: It may be relevant, Your Honour, but the policy has been, and the authority supports it, that the Crown cannot introduce propensity evidence.

DAWSON J: But that is the point, it is not propensity evidence. It was propensity evidence it would not be admissible anyway, unless it came within the exceptions.

MR HORE-LACY: In that case perhaps it should not have been admitted, but in my submission it was - - -

DAWSON J: I can understand that if you say it was propensity evidence and that is why it should not have been admitted I can understand that. But if it was admitted on the basis of Lowery and King, on the basis of not propensity evidence but evidence as to a mental characteristic which is in the same category as evidence as to physical characteristic.

MR HORE-LACY: Yes, I am grateful to Your Honour but the submission is that it was propensity evidence and whether it was permitted to be there or not, it was extremely prejudicial as far as the applicant's trial was concerned. Indeed, the Full Court set out quite fairly the large body of evidence which was called which it was suggested by the Full Court would have been otherwise inadmissible.

If I could just take the Court to the part of the judgment which deals with that evidence. As I submitted before, it is evidence which, in my submission, deprived the applicant of a fair trial, and the second aspect of the appeal to this Court is that the directions, contrary to the findings of the Full Court, of the learned trial judge were not sufficient to secure the fair trial. What the Court said about that appears at page 207.

TOOHEY J: Could I just ask you this, Mr Hore-Lacy, apart from any objection to the admissibility of evidence on the part of the applicant's counsel, was any request made for a redirection in any relevant respect?

MR HORE-LACY: No. I do not believe there was, Your Honour. With respect, it is understandable because regardless of what can be said - indeed it is almost inherent in the meaning of the word "prejudice", that regardless of what the learned trial judge says, prejudice, if it goes to the extent of this at least, cannot be eradicated. It is all very well to instruct a jury that they are supposed to put ideas of prejudice out of their mind but, in my submission, in this particular case it would be impossible. The Full Court at page 207 said:

At an early stage of the relevant cross-examination by Bannon's counsel the judge said to the jury "it is vital that you are aware that there are two trials taking place at the same time and you have to keep separate the evidence that is admissible against one from the evidence that is admissible only against the other". His Honour added a warning that he wanted the jury to understand "the way in which the trial is developing now in the sense that the two accused have separate defences to present and as appears to be the case up to now, one accused may wish to attack the other". Later in his charge the judge said "it is vital that the jury considers separately the case against each accused and the defence referable to each accused" and "yesterday, I spoke to you about the need, which is an absolutely need, to keep the two trials which are being heard jointly separate in your deliberations". His Honour added "nor may you use Bannon's unsworn evidence which implicates Calder against her" and a little later "what one accused said about the part played by the other is not evidence against the other accused and must be put out of your minds as you consider the case against each accused separately".

And then the court went on to deal with the charge. If I could just go to line 27 of that judgment:

Evidence led by Mr Langslow for Bannon showing that Calder was an aggressive female and had a personality disorder and given to mood swings, etc., may also show that she had a disposition to commit crimes of violence. The evidence was admitted because at the same time it may make it less probable that Bannon, who led the evidence, committed the crimes.

It is submitted that if it is less probable that Bannon committed the crimes it follows that it is more probable that Calder committed the crimes.

That is really the underlying purpose of this evidence which is unusual in a criminal trial. It is legitimate to allow such evidence to be given for the purpose of assisting one accused person to be acquitted.

I ask you, however, to be careful with such evidence. Don't allow it to prejudice your minds in any way against Calder. Remain objective and evaluate the evidence carefully for its true worth when you are determining the case against Bannon and then later the case against Calder."

The point that I make with respect about those observations and that part of the charge - and perhaps, quite rightly, the jury were not instructed that the evidence adduced by Bannon's counsel in relation to problems that Calder had had was not admissible as far as Calder was concerned. The learned trial judge went to lengths to explain how it happened and that the co-accused - - -

DAWSON J: I do not understand that, Mr Hore-Lacy. If it was admissible, it was admissible and the mere fact that it was called by one co-accused and happened to prejudice the other co-accused is not to the point. It has been pointed out that counsel has a duty to call such evidence, notwithstanding that it may prejudice the other co-accused. It is relevant as going to the issues at the trial.

MR HORE-LACY: Yes. With the greatest of respect, I do not disagree with that, Your Honour, but - - -

DAWSON J: So you simply cannot say it was inadmissible as against one co-accused and admissible as against another.

MR HORE-LACY: Yes, that is correct and I make no complaint of that because the authorities quite clearly suggest that it is admissible and if it is admissible in relation to one then it is hard to argue that it is not in relation to the other. That is really the main point of the complaint as far as this application is concerned, that all that body of evidence was adduced by Bannon's counsel that could not ordinarily, according to the authorities, up until such time, with respect, as this Court might decree otherwise.

DAWSON J: When you say "could not ordinarily", what do you mean? I mean obviously if Calder was being tried alone then, unless the Crown adduced the evidence no one else would. But she was not being tried alone, the issue was who had committed these murders and it was relevant to that issue.

MR HORE-LACY: It is relevant to that issue as far as the co-accused is concerned, but with respect - - -

DAWSON J: Why do you say "so far as the co-accused is concerned"?

MR HORE-LACY: All right. If it is relevant as far as both is concerned, it is evidence that the Crown is not ordinarily able to lead.

DAWSON J: If it is propensity. No one can lead it if it is propensity. So your case must be, well, this was inadmissible because it was propensity evidence, not evidence as to mental characteristics which was relevant for other reasons. That must be your case.

TOOHEY J: I thought your case was somewhat different. I thought your case was, assuming the admissibility of the evidence, nevertheless its prejudicial effect was so great that at a certain point in the trial the judge should have appreciated that directions were not going to cure the prejudice and he should have discharged the jury.

MR HORE-LACY: That is how the matter was argued in the Full Court and that is - - -

TOOHEY J: Is that how it is being argued here?

MR HORE-LACY: Yes, that is correct. That is how it was argued in the outline of argument. But if the Court is of the view that propensity evidence can be called, but this was not propensity evidence then, with respect, a miscarriage has none the less taken place, regardless of whether or not it was admissible. I just refer very briefly to Lowery and King, citing Makin v Attorney-General for New South Wales, where it was said:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered in the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried."

And a little later:

"It is, however, established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged;..."

and further:

"It is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person."

With respect, Lowery v The Queen appears to be drawing a line by saying the prosecution cannot adduce propensity evidence but a co-accused can if it goes - - -

DAWSON J: That is not what it was saying. What it was saying was that where the evidence is evidence of mental characteristics akin to physical characteristics, then that evidence is relevant and may be called. That is not propensity evidence. Behavioural characteristics established on a scientific basis in that case are simply not propensity. That is what they are saying.

MR HORE-LACY: I appreciate that, Your Honour. In my simple submission the evidence went much further than that. It was evidence, as I said, from her own mother and her brother. It is evidence that she had been in institutions, had been a drug taker for many years, and I know a number of these things to a much lesser degree were mentioned in the record of interview.

There was evidence that she had been, as I said, in institutions, in Mont Park, had been in trouble for stealing, had problems at school - went across the whole range of the life - and it is difficult, with the greatest of respect, to imagine more prejudicial evidence other than, I suppose, evidence of prior convictions in relation to violence. But even then, there was evidence of other criminal acts. One witness gave evidence that she held the pistol to his head, and this was in the context of a whole lot of other evidence. With respect, that goes further than just evidence of mental capacity.

DAWSON J: So what you say is that it was really propensity evidence and should not have been admitted at all, and even if it was not just propensity evidence, its prejudicial effect so outweighed its probative value that the trial judge ought to have excluded it in his discretion.

MR HORE-LACY: I am grateful for that, Your Honour. I will cease at that point, may it please the Court.

MASON CJ: The Court need not trouble you, Mr Coghlan.

The Court is not persuaded, having regard to the way in which the trial was conducted, that there was any miscarriage of justice. The application for special leave to appeal will therefore be refused.

AT 12.36 PM THE MATTER WAS ADJOURNED SINE DIE