Peters ANOR v The Queen S174/1996 [1997] HCATrans 127 (10 April 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S174 of 1996

B e t w e e n -

BRENT RICHARD PETERS

First Applicant

SHAYNE KEITH BRYANT HEFFERNAN

Second Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 10.33 AM

Copyright in the High Court of Australia

MR G.D. WOODS, QC: May it please the Court, I appear for the applicants, and with me MR J.W. FLIECE. (instructed by Galloways)

MR G.S. HOSKING, SC: May it please your Honours, I appear for the respondent with my learned friend, MR M.C. MARIEN. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

MR WOODS: Your Honours, I indicated that we would rely substantially on the written material. Might I have the indulgence of just making one point orally. This is that the centrepiece of our submission is that the two prosecutions, the first prosecution for heroin and the second prosecution for marihuana and tobacco, or cigarette dealing, basically have to be seen as one process.

GAUDRON J: Why?

MR WOODS: Because, your Honours, the doctrine is a doctrine of abuse of process.

GAUDRON J: For the success of your argument, then, they to be seen as one process but - - -

MR WOODS: Your Honour, that is true.

GAUDRON J: But in real terms, why do they have to be seen as one process?

MR WOODS: Your Honours, at page 42 of the application book there is a reference to some observations by Judge Nash when he made the costs order in 1993. He said in relation to the first trial, this is at line 31:

"At the latest, by the conclusion of the cross-examination of the first witness in the trial, it must have been obvious that the applicants intended to base their defence, as they did, upon their assertions that the commodities in which they were dealing were stolen cigarettes and cannabis leaf, and not heroin. ..."

Our submission would be that what has happened, ultimately, is that the prosecution having taken the view that it would ignore that at that stage, it, of course from the viewpoint of the Crown prosecutor unwittingly, relied upon perjured police evidence. Our clients, confronting the second trial, are confronting material arising from the same matrix of circumstances. It is the same tape-recorded material which - - -

GAUDRON J: That does not make it the same process, does it, the same legal process? There were different charges, different indictments, different proceedings.

MR WOODS: That is true, your Honour.

GAUDRON J: And the evidence may or may not overlap. We can assume it will to a significant extent.

MR WOODS: That is so, your Honour, but what we say is that it is wrong in principle to identify a trial itself as something within the four squares of which the doctrine of abuse of process applies only. We say that, very commonly, you can have a trial - four trials going on at the same time and judges often tell juries, "Please be aware that there are three trials going on." Counts can be severed off. There can be two trials. In reality it is dealing with substantially the same material, it is the same process. Although you can have two trials sequentially, you can have two trials in different courts at the same time. They can be part of, we say, the same process.

BRENNAN CJ: I do not understand that. The process starts with the presentation of an indictment and finishes with a verdict.

MR WOODS: Your Honour, our submission is that - - -

BRENNAN CJ: What is there abusive in the conduct of a process thus defined?

MR WOODS: Our submission is that the second indictment here is so tied up with the impropriety, not of the Crown prosecutor but of the police associated with it, that for the purposes of the law of abuse of process, with its flexible notion of doing justice, that your Honours would not define process for that purpose in the narrow technical fashion which confines process to simply the beginning of the indictment, the arraignment, ending in verdict or judgment.

BRENNAN CJ: Just take it step by step. In the first trial there was perjured evidence given by the police.

MR WOODS: Yes.

BRENNAN CJ: In that trial, the accused were acquitted.

MR WOODS: That is so.

BRENNAN CJ: So no problems there. We then come to the second proceeding or the second indictment and then there is an allegation of a different offence against the accused. This is to an offence to which, if one takes their evidence in the first trial literally, they have no choice but to plead guilty and that is the course that is followed. Where is the abuse of process?

MR WOODS: We say that if one views the sequence of events from the beginning - - -

BRENNAN CJ: Is there anything in it apart from the fact that the police in the first case gave perjured evidence?

MR WOODS: Your Honour, there is.

BRENNAN CJ: What is it?

MR WOODS: The fact that they have had to go through the first trial and otherwise would not have. Now, it is not a case of double jeopardy in the technical sense, but it is a case in which the vices and faults of double jeopardy has an impact. These people are now facing what they could have faced in the first trial and, indeed, they could have had the opportunity of pleading guilty in the first trial if there had been an amendment of the indictment such that, as Judge Nash said, at the end of the prosecution of the first witness, if there had been perhaps a new jury struck - the trial took 10 months - the other charges were put there, they might well have pleaded guilty.

BRENNAN CJ: You mean amending the indictment after the accused have given their evidence? That is a fanciful suggestion, is it not?

MR WOODS: No, no, with respect, at the beginning of the prosecution case.

BRENNAN CJ: Before they had admitted anything.

MR WOODS: Before they had admitted anything, but they had cross-examined the first prosecution witness. As his Honour Judge Nash says, at that point their position is quite clear. It is not heroin, it is marihuana and tobacco.

BRENNAN CJ: So at the end of the prosecution case there would have been an application for a direction to the jury in relation to that count?

MR WOODS: There would have been, your Honour - the sequence of events would probably have been that at any early stage that jury would have been discharged and there would have been a new trial with the heroin charge, the marihuana charge and, in all probability, the accused would have pleaded not guilty to the heroin counts and guilty to the marihuana counts - - -

BRENNAN CJ: They would have pleaded guilty to a count in which there was no evidence being tendered against them.

MR WOODS: They were aware that the position the Crown was taking from the very beginning was - and obviously perjuriously - this was a heroin case.

McHUGH J: At the close of the Crown case they would have been able to ask for an acquittal on the marihuana count because there would not be a shred of evidence against them.

MR WOODS: But, your Honour, there were tape-recordings which are referred to in my friend's written submissions. There were tape- recordings which were capable, the Crown now says, supplemented by the admissions, of proving a case as is now prosecuted.

BRENNAN CJ: Do you suggest that the Crown would have been justified in dropping the heroin charge and accepting a plea to the cannabis charge, when they had no evidence of the cannabis and evidence of the heroin?

MR WOODS: If I can respond to that question by saying that because the police were lying, not only to the Court but also, obviously, to the Crown prosecutor, that is a difficult question to answer.

BRENNAN CJ: It admits of only one answer, I would have thought.

MR WOODS: Even if it does admit of only one answer, your Honour, in my submission, when one looks at the matrix of circumstances, the two trials, the first one clearly polluted, the one which is now anticipated, our submission is that it is an artificial notion to confine the concept of abuse of process and stay such that no remedy would be granted to - - -

GAUDRON J: I am not too sure about that. Why do you say, in any event, that stay is the appropriate remedy? What is it that - I mean I would have thought really, as was held below, it is a question of the exclusion of evidence only. That is a question that has been twice considered and twice held against you. Certainly, if that question were decided in your favour, then a further question might arise of a stay, but why do you go straight to the stay?

MR WOODS: Your Honour, for this reason, that the application was made under section 5F of the Criminal Appeal Act. As we understood it at the time of putting these matters before the Court of Criminal Appeal, the law as stated in New South Wales was that a mere question of evidence, admission or otherwise, was not a section 5F point. Edelsten's Case had said that, Mr Justice Lee, and then it had been dealt with in Steffan, so we were before the - - -

GAUDRON J: Yes, I can understand the history, but as of now, what is it that leads you to the view that the remedy, if any remedy is appropriate, is one of stay?

MR WOODS: We would be content with either approach being taken.

GAUDRON J: Now, the question of the admission of evidence has been twice - or the rejection of evidence - has it not, has been twice considered?

MR WOODS: No, your Honour, it has not. It was not, indeed, argued in front of the Court of Criminal Appeal on the last occasion. We were taken by surprise by the comments of Mr Justice Sheller, at the end of his judgment, that it would have been preferable - more appropriate to deal with it on the basis that it was a matter of evidence. So that although we had argued that before the learned trial judge, we were in some difficulties with contending that in the Court of Criminal Appeal. His Honour took a position which we understand to be contrary to the previous authorities in New South Wales in saying that, in any event, I reject the notion that it would be rejected as evidence. So that we are in the position that if Mr Justice Sheller is correct - we have not really argued that point in front of him. I concede, though, that - - -

GAUDRON J: If you have not argued that point, you have not argued that point and it is still open to you.

MR WOODS: Your Honour, he has now said - and the court has now said that, contrary to the other decisions, the early decisions of Steffan and Edelsten, that matters of evidence might be a 5F or is a 5F point. The previous approach which has been taken is that matters of evidence are matters that are not sufficiently final in their form to be an interlocutory order or finding. A judge can always alter his position on a ruling of evidence and therefore it is not appropriate to be dealt with on 5F. But, your Honours, if Mr Justice Sheller be correct and the earlier decisions of Edelsten et cetera be wrong, our position would be that it ought to be excluded in the exercise of discretion.

BRENNAN CJ: That is not what the present application relates to.

MR WOODS: It is not, your Honour, but we say that it is difficult to distinguish the two areas, but our point is that in terms of a stay, that a very important consideration is public perception. Now, it is true that the Court of Criminal Appeal has said, "Here are people who have come forward in the witness box and sworn that they were selling marihuana and stolen cigarettes. Therefore they ought to be dealt with in due course." Our submission is, in short, on the stay point, you cannot isolate the second prosecution. You have to look at the general sequence of events. It is, first of all, grossly unfair to them and unreasonable that they should, having gone through the whole first trial on the basis of fake police evidence and being put to the expense, time and difficulty of that, which was a charade, that they should now face these charges again.

And secondly, our submission is that the public, in my submission, rather than regarding it as inappropriate that my clients should not now be tried, that public perception of it would be that here are the police misbehaving, being caught out by the Royal Commission and exposed, and yet the material - - -

GAUDRON J: But how does that - where is the abuse, on your argument?

MR WOODS: We say the abuse now is - in futuro the abuse is the reliance by the prosecution on material generated out of a polluted and perverted first trial. That is the abuse. In itself, if one starts off today, your Honour the Chief Justice is quite right - - -

GAUDRON J: And is that not really a question whether the evidence should be admitted?

MR WOODS: Your Honour, it is both. It is both a question of whether the evidence should be admitted, but it is also a question, we say, of stay. It is not necessary that the two things should be completely separated; they may well overlap, and we say that they.

McHUGH J: It seems to me that you would have to invent a new head. Not abuse of process, because this is plainly not an abuse of process, but abuse of the administration of justice in a general way. Just as in contempt you can have contempt of the administration of justice in a general way, for example, by sacking a juror after a trial is over, or you could have contempt because it infringes on the administration of justice in a particular case. But that seems to me the only basis upon which you could argue this case, that there is some theory that if somebody abuses the administration of justice in a general way, that gives them a right to stay proceedings that in some way arise or are involved in the administration of justice. There is no basis for that in the books, is there?

MR WOODS: Your Honour, the answer to that is, as such, no, but all the cases on stays say that it is exceptional, it has to be only in exceptional circumstances that the court will grant a stay. Justice Gaudron has, in an earlier case, talked about the flexibility of stays, that it does not have to be a permanent stay, it can be a temporary stay. Now, one of the remedies we have sought here, whether it be called a stay on the basis of abuse of process or stay on some other ground, is that it now being apparent, at least to the point of prima facie case, that there has been perversion of the course of justice, we would submit that there could be a stay in terms of the - - -

BRENNAN CJ: There was no perversion of the course of justice. The course of justice followed truly by the acquittal. There was an attempt to pervert the course of justice by the giving of perjured evidence.

MR WOODS: We say the perversion was this, your Honour, that while the ultimate outcome was satisfactory, my clients were held up as heroin dealers when they were not, and moreover, they were compelled, not at the point of a gun obviously, but they were compelled in forensic reality to do that which they otherwise might not have done, to come forward and say what they had been doing. We say that is an abuse.

BRENNAN CJ: Yes, we understand that point, I think.

MR WOODS: Your Honours, those are my submissions.

BRENNAN CJ: The decision of the Court of Criminal Appeal is not attended with sufficient doubt to warrant the grant of special leave in this case. Accordingly special leave is refused.

AT 10.51 AM THE MATTER WAS CONCLUDED