Vella v The Queen S170/1996 [1997] HCATrans 54 (13 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S170 of 1996

B e t w e e n -

ALEX EMMANUEL VELLA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1997, AT 2.14 PM

Copyright in the High Court of Australia

MR G. NICHOLSON, QC: May it please the Court, I appear for the applicant. (instructed by Maurice May & Co)

MR R. KELEMAN, SC: If it pleases the Court, I appear for the respondent. (instructed by the Office of the Director of Public Prosecutions (New South Wales))

BRENNAN CJ: Mr Nicholson.

MR NICHOLSON: Your Honours, the first matter I need to address is the application for extension to time.

BRENNAN CJ: What do you have to say about that, Mr Keleman?

MR KELEMAN: I do not oppose it, your Honour.

MR NICHOLSON: Thank you, your Honours. This is an application in which I do not underestimate the nature of the gradient in front of me. For me to have the prospects of a successful application I would need to attract your Honours' attention and interest to the proposition, first, that strenuous over-zealous cross-examination of a principal defence witness on an erroneous basis carries with it the probable penalty of a discharge in return for that type of cross- examination. The second - - -

GAUDRON J: Even if the imputations are later withdrawn in front of the jury?

MR NICHOLSON: Certainly, and I do need to address that issue.

GAUDRON J: And what takes it from probable to certain, which is really where you have to get to, have you not?

MR NICHOLSON: I would prefer to go to certain, but I thought my chances then would be even up a steeper gradient, so I thought it would be preferable to leave flexibility in the system. May I make the second point, and then I will address that issue. The second point, your Honours, is that consistent with, I believe, what his Honour Justice Sully said at I think application book 82 - I do not need to go into the matter other than to refer to possibly line 60 where his Honour refers to the constant stream emanating concerning alleged verbal admissions from an inquiry being conducted in the State. This is the second point, that in circumstances where there has been a trial - as in this case - which ended without conclusion following an inability.....to agree, and a second trial happening where transcript is released by the prosecution to officers who have previously given inconsistent evidence and they then fix up the evidence by reference to reading the transcript and getting or regathering a level of consistency in the presentation of their evidence in the second trial, so as to eliminate that revealed on the first trial. That practice is worthy of criticism. It ought not happen as a matter of principle in this system.

The application then is founded on those two propositions. The first, to address the issue Justice Gaudron raised, is even if there is an apology. The apology - and I will come to it in terms - at application book 67 was a reference couched in legal terms in these words, line 39:

I withdraw any suggestion in this Court that you have been guilty of a breach of either of those legal requirements, those legal Acts. Either the misprision of felony or the Section 316. Do you understand?

That is the full extent of the withdrawal, a withdrawal by way of apology for suggesting a breach of legal requirement. Your Honour, the nature of the attack did involve an allegation of section 316, which did not exist as a matter of law at the time, misprision of a felony, which, in any case, the act complained of was not, but further a gross breach of ethics, being too close to his client and coming to court to try and help his client. That, from a solicitor - a witness being a solicitor - who was linked both to the accused and to the witness who was presented.

TOOHEY J: What is the principle involved here that leads to or, what you would say, to lead to the discharge of the jury in that situation?

MR NICHOLSON: That is the first point that I seek to raise. The point that I seek to raise is to interest your Honours in the proposition that when over-zealous cross-examination by a prosecutor has, in the circumstances of this case, occurred, it will carry with it the probable consequences of the jury being discharged on the application of the accused so as to preserve the integrity of the trial process.

GAUDRON J: That cannot come out of the thin blue air or sky, whatever it is. It must come, if from anywhere, from the necessity for there to be a fair trial. You must link it, must you not, to the concept of fair trial?

MR NICHOLSON: I think that is so. I think that it must be dependent upon the procedural mechanisms within a trial to receive evidence, to weigh evidence, to assess evidence, in the absence of factors which can only confuse or mislead the factual tribunal.

TOOHEY J: Is it a principle that requires attention to be given to the likelihood or probability of the miscarriage of justice or, as you seem to be putting it, it is almost like an absolute principle.

MR NICHOLSON: The miscarriage of justice consequence would have the benefit of hindsight approach. The entitlement to a fair trial would insist upon a process consistent with the assessment, the filtering of information, the reception of evidence and the assessment of evidence; the procedural requirement in a fair trial, yes. I am putting it on the basis of an entitlement in a trial to an accused person not to have his case subjected to that type of attack; not to look back afterwards and say, "Was any harm really done? Does it matter?"

TOOHEY J: Would it extend to hectoring or bullying cross- examination, if that were permitted?

MR NICHOLSON: No, I do not think so. I do not put it that highly. I think that is within the province of the trial judge to control. There is, however, a different basis put when the alleged criminality of the solicitor is raised and just mistaken, the problem being that because of his central role between the accused, the preparation of the defence and the witness, and on that central issue of alleged oral admission, it is all demeaned at the time of the attack. A simple withdrawal of a suggestion of breaching certain legal requirement does not rectify the damage when done.

GAUDRON J: One can understand that with respect to the solicitor, but how do you take it that further step to show that it deprived the accused of a chance of acquittal that was fairly open?

MR NICHOLSON: To do that I must take into account the effect of the association between the solicitor and the other witness. It was suggested by this attack that the solicitor and the witness had effectively concocted a story, that is the clear inference, and that the solicitor was too close to his client, thereby putting a threesome into combination. The solicitor was attacked on those grounds. It shows a combination between the three of them on the defence side, quite impermissibly, to put their heads together to concoct something and, further, to do so in order to attack the fabrication allegation of the admission.

The second issue goes straight to the practice of allowing police to fix up evidence. It may be helpful - - -

BRENNAN CJ: Whose practice is that?

MR NICHOLSON: In this case it has been demonstrated that it is not unknown, in the course of this State, for policemen to request their transcripts, to go back over what they have been asked before, to see what they have said before, and then to prepare for attack or to iron out any inconsistencies.

BRENNAN CJ: And that is known, I suppose, to counsel who cross-examine them?

MR NICHOLSON: It certainly is. The impact of that in the hands of a professional witness, of course, is another matter. What you say is undoubtedly so. It is, of course, known. It is the practice which requires attention. If I can put it this way, because it is relevant to this case, the first trial occurred in August 1994. Would your Honours prefer I used letter of the alphabet to names?

BRENNAN CJ: Is there some reason to?

MR NICHOLSON: I do not think so. Officer Dein, who is the person alleged to have had the conversation at which admissions were made, gave evidence that at the time of the alleged admission bags were in a recess and that a particular bag, being a child's suitcase, was still closed. Inside the child's suitcase were some scales. Part of the alleged admission was a reference to the scales which were not, on his evidence, in view, and therefore became an impossibility. Other policemen came in, anticipating that Mr Dein had given evidence in accordance with a statement which was word perfect with theirs. They came in and gave supportive and similar evidence to that which they anticipated Mr Dein would say. He did not. They were left supporting that which did not occur.

TOOHEY J: That would give the cross-examiner a field day, would it not?

MR NICHOLSON: It certainly did, and the jury would not convict, did not convict. It was a hung jury. The second trial occurred. During the early days of the second trial the prosecutor provided to the police, upon their request, the transcript of their evidence in the first trial. It passed through the hands of at least three police, the police principally involved, including Mr Cooper and Mr Dein, and Mr Dein changed his evidence from black to white, to say that, "No, the bags were out of the receptacle, the suitcase was open, you could see the scales", and then, of course, the other policemen came through and gave supportive evidence of that. They had sorted out the problem, fixed up their evidence and that is what the jury saw in the second trial. Yes, there was, of course, an attack upon it.

However, the process by which that situation arose is what I seek to agitate: where the prosecution, aware of that inconsistency - and it is a major issue - on alleged oral admission, in someone's home, the absence of any but policemen, then provide the transcript containing the very evidence, the police fix up - and the words I am using "fix up" is out of my recollection of the transcript on that issue from Mr Dein - and change their evidence in that way. There was, of course, in the second trial a sustained attack - - -

BRENNAN CJ: You mean it was admitted by Mr Dein that the evidence was fixed up?

MR NICHOLSON: Fixed up, but honest, yes.

BRENNAN CJ: Fixed up, but honest, all right.

MR NICHOLSON: There was a sustained attack on the police over this issue, as you might imagine. In the context of the second trial there was that issue which was based on undoubtedly what had happened. There was a very vigorous attack by the prosecutor upon the solicitor, at least equally vigorous, to put it neutrally. The unfortunate thing was that the base of the attack on the solicitor, suggesting criminality and tainting the accused and the accused's witness, apart from the solicitor, was ill-founded. It was wrong. Not only wrong at law, but misconceived. It was extremely vigorous and it had the clear implication of criminality.

The problem with that attack is that in the minds of a jury you have now got the overwhelming suspicious of consciousness of guilt on an accused person trying to rig a defence flowing from a solicitor, held in high esteem normally, but - I do not mean a particular solicitor, I mean the office of solicitor - and then reduced in cross-examination to the status of criminal in the eyes of the jury. That has the effect of also distracting the jury from the first issue and colouring the way a jury receives the evidence in the trial.

TOOHEY J: I am not clear, Mr Nicholson, whether you are saying that the second matter of concern to you stands on its own or it is to be coupled with what had taken place in regard to the cross- examination of the solicitor. You seem to be running the two together at the moment.

MR NICHOLSON: That is so. The process stands alone. The enormity of the consequence of the process is brought into sharp relief in the context of this trial because of the undoubted virtuous attack - I withdraw that - the undoubted, well-based attack on the prosecution case. It is the consequence of the second to which I was referring.

BRENNAN CJ: Mr Nicholson, these are all jury matters. What is it that takes it into the High Court?

MR NICHOLSON: The only thing is where I started. I accept what your Honour says about that issue. I do not seek to address your Honours on the factual issue. I seek to interest your Honours in the two propositions which were, one, that over-zealous prosecution cross- examination of a defence witness should be seen to carry with it a consequence of discharge because it soils the trial process. It takes away the fair trial procedures. The second, that there is a - - -

BRENNAN CJ: Just pausing there for a moment. Justice Gaudron put to you it has got to be put on the footing of whether there was denial of a fair trial. Here there was the withdrawal, publicly, and the trial judge allowed the trial to continue. Now, what do you anticipate that an appeal court might say; that the trial judge exercised his discretion wrongly?

MR NICHOLSON: I can deal with that issue. I have to deal with that issue, I think, in view of my friend's response. The answer to the question is a simple yes, but there is a point of principle involved and that is the two principles I attempted to interest your Honours in when I opened. I am not suggesting a review on the factual bases by itself.

TOOHEY J: The draft grounds of appeal come fairly close to it, do they not, because they really, at least in the second ground, formulate it in terms of unsafe and unsatisfactory verdict.

MR NICHOLSON: That is so and, on reflection, it is probably better put as miscarriage, rather than unsafe and unsatisfactory. Miscarriage by virtue of the procedures taken by the prosecution outside the court room during the trial and because of the, I would submit, failure to exercise the discretion to discharge correctly. That second proposition must turn upon interesting your Honours in the consequences of over-zealous cross-examination for which I have contended.

Your Honours, I do not think I can put it more clearly than that. There are issues raised in the application book but I think in truth I must interest your Honours in the two principles to have a prospect.

GAUDRON J: You must elevate them to matters of principle. I do not think you even state them as such, do you? You really do no more in your first proposition that assert what you think should be a rule of practice.

MR NICHOLSON: In the first proposition - perhaps if I deal with it on the basis of the first proposition being the discharge point. A factor to be considered in the exercise of discretion, if accepted, would be the factor for which I contend. That is a point of principle, with respect. In the second, yes, I have to concede that in reviewing unsafe, unsatisfactory-type arguments in order to address what happened outside the court, it does go into matters of evidence. I would not think that the second could stand alone here. I think together, in the context of the attack, they can be taken together.

I do not wish to travel into the authorities but I do recall - my first comment is that it is not a matter for a jury consideration when I am trying to isolate a factor relevant to the exercise of discretion in very serious circumstances where the machinery of the trial has miscarried. I have a feeling that in M there was a reference to Davies and Cody on that issue.

BRENNAN CJ: I think your time has expired, Mr Nicholson.

MR NICHOLSON: Certainly.

BRENNAN CJ: We need not trouble you, Mr Keleman.

The course to be followed to ensure a fair trial if a Crown Prosecutor misbehaves in some respect in the course of the trial is essentially a matter for the trial judge dependent on the circumstances of the particular case. There is no reason to grant special leave in this case to review the course taken by the trial judge.

The applicant also attacks the verdict on the ground that the evidence was of doubtful cogency. That is not a ground for the grant of special leave. For these reasons special leave will be refused.

AT 2.35 PM THE MATTER WAS CONCLUDED