Goncalves v The Queen P7/1998 [1999] HCATrans 252 (6 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P7 of 1998

B e t w e e n -

ORLANDO FARRAJTOE GONCALVES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 12.46 PM

Copyright in the High Court of Australia

MR S.A. SHIRREFS: If it please the Court, I appear on behalf of the applicant. (instructed by Kuscevich & Associates)

MR R.E. COCK, QC: If the Court pleases, I appear with my learned friend, MR J.W.M. FOULSHAM, on behalf of the respondent in Perth. (instructed by the Director of Public Prosecutions (Western Australia))

GAUDRON J: Yes, thank you, Mr Shirrefs.

MR SHIRREFS: Your Honours, it is submitted that in this case a substantial miscarriage has occurred as a result - I should say, which has been caused by want of procedural fairness - - -

GAUDRON J: Where?

MR SHIRREFS: - - - by the Court of Criminal Appeal.

GAUDRON J: Why was it under any obligation to hold its decision?

MR SHIRREFS: Because it was on that basis upon which the appeal was heard and argued - - -

GAUDRON J: Particularly in circumstances where no application had ever been made to the trial judge to exercise the discretion which is now in issue.

MR SHIRREFS: That is certainly the case. However, at the commencement of the appeal back on, we think, 14 August 1997, it was brought to the court's attention that the specific ground to be argued in ground 2 was presently reserved as a decision of this Court - - -

GAUDRON J: But how could it have been?

MR SHIRREFS: The principle involved, your Honour, concerning the covert taping of admissions by people acting as agents of the police - - -

GAUDRON J: The question in those cases concerned the existence of a discretion.

MR SHIRREFS: Yes.

GAUDRON J: Very well.

MR SHIRREFS: It also went beyond the existence, it went to the question of the nature of the discretion in circumstances where there were at that time within Australia conflicting decisions as to the breadth of that discretion and its application.

GAUDRON J: Yes, but was not in the least bit concerned with a situation in which nobody had sought to exclude the evidence.

HAYNE J: Your fundamental point is that the trial judge should, unasked, have excluded evidence.

MR SHIRREFS: My fundamental point, this matter having not been raised before the trial judge and raised for the first time as a ground of appeal, that it should have been excluded. As a result of the failure to exclude it, inherent unfairness has accrued to the applicant and he has not received a trial according to law.

GAUDRON J: We are not concerned here, are we, with an error of law in the trial process. You cannot say whether there would have been an error made or not. You are concerned here with the exercise of a discretion. Let it be assumed there existed a discretion. Well, that does not have to be assumed. Let it be assumed that you had asked the trial judge to exercise the discretion in your favour and it had been held that it would not be so exercised, that would not necessarily get you here.

MR SHIRREFS: What gets us here, in my respectful submission, is that in so far as the application of principle to be applied to this issue, at the time of the appeal the court was informed of the pending decision in Swaffield and Pavic and the appeal was conducted before the intermediate appellate court on the basis that it would reserve its decision pending the handing down of judgment by this Court in relation to those two cases in circumstances where Swaffield and Pavic was concerned with the variance that existed at that time in so far as breadth of the unfairness discretion was concerned in the particular type of case that the Court there was dealing with. The appeal was then heard upon that understanding.

HAYNE J: But the premise, the unstated premise, Mr Shirrefs, must be, must it not, that informed by the result of Swaffield and Pavic, it would have been open to the Court of Criminal Appeal then to say that evidence which it was not sought at trial to have excluded should have been excluded and not having been excluded, the trial miscarried.

MR SHIRREFS: Yes.

HAYNE J: It is a fairly large series of steps.

MR SHIRREFS: Undertaking.

GAUDRON J: It is not evidence it was inadmissible.

HAYNE J: No.

MR SHIRREFS: No, it is not evidence it was inadmissible. It is - - -

GAUDRON J: It is admissible evidence.

MR SHIRREFS: It sought to be excluded and it was being put before the intermediate court that the fact that it was there, although there had been no application sought to exclude it, has resulted in a miscarriage of the trial because of the inherent unfairness to the accused.

HAYNE J: So the leading of admissible evidence of the accused's involvement in crime was nevertheless unfair, he not having asked for it to be excluded.

MR SHIRREFS: When put in that way, it really skirts around the issue, because the issue here is whether or not the admissible evidence was obtained in the circumstances as it was here unfairly and contrary to his protected rights. Now, evidence may be prima facie admissible, but its reception, although admissible, may in fact give rise to a fundamental miscarriage because of the way in which the evidence was obtained as was the case that exists here, existed in Swaffield and existed in a number of other cases which were at that time pending the decision of this Court to be handed down.

The Court of Criminal Appeal did not deal with the matter in the way in which your Honours have postulated. They did not raise the issue as to whether or not this, in fact, had been raised before the trial judge, but sought to deal with it on the basis that, indeed, there had not been a fundamental miscarriage by virtue of the way in which - - -

GAUDRON J: It may be that that is the way they dealt with it, but when you appear in this Court on a special leave application you look not only backwards but forwards.

MR SHIRREFS: I understand that.

GAUDRON J: The forward view requires you to establish that there was a miscarriage of justice by reason of the acceptance - - -

MR SHIRREFS: The admission into evidence.

GAUDRON J: - - - the admission into evidence of admissible evidence which nobody asked to exclude.

MR SHIRREFS: I understand that, your Honour, but it also arises as a result of the understanding upon which the appeal was conducted in the lower court that the Court would reserve its decision.

Now, it is put on two levels. Firstly, there has been procedural unfairness in the way in which the appeal was conducted and the court unilaterally deciding to hand down a decision which is in conflict with the decision of this Court in Swaffield and Pavic by the adoption of a narrow and restrictive approach to the unfairness discretion. Secondly, it is submitted there is a miscarriage - unfairness, I should say, to the applicant because although this was not raised as a basis of exclusion at the trial, although it is prima facie admissible, its admission in the circumstances in which it was obtained in this case has produced an inherent unfairness to the accused. It was that unfairness which was sought to be corrected pursuant to the ground argued before the Court of Criminal Appeal, and in seeking to argue that ground before the Court of Criminal Appeal, the same arguments, in essence, that were advanced before this Court in Swaffield and Pavic and reference to important cases on point, being Swaffield in Queensland, Pavic in Victoria, O'Neill, Davidson and Moyle were specifically referred to in the course of argument but were not addressed and were not dealt with by the Court of Criminal Appeal in its judgment. In fact, in the judgment of Justice Wheeler, says she found no reason or any requirement to refer to it in any detail.

The Court of Criminal Appeal returned a decision dealing with the unfairness discretion which, as I have submitted, cannot sit with the decision of this Court. It adopted a restrictive approach and looked at unfairness only in so far as it concerns reliability and compulsion being relevant to questions of voluntariness, and did not deal with the specific points which were raised in argument and were then subsequently a month later, when Swaffield and Pavic were handed down, acknowledged by this Court as being the broadening of the unfairness discretion - not that it was necessarily broadened beyond that which it had already been in some jurisdictions conceded to exist, that it clarified for Australia the way in which a court should approach this specific issue in relation to the specific facts of this case, where a person acting as an agent of the State has gone and interrogated a suspect to obtain a confession, which are the facts that exist here.

Now, I understand the difficulties Mr Goncalves had, he had those difficulties at first instance - I should say, at the intermediate appellate court in arguing on a ground of appeal a matter which goes to the exclusion of otherwise prima facie admissible material. But it was argued upon the understanding that the court would wait for the decision of this Court. The court gave that assurance. It was not in its judgment commenting upon the fact that this was not something raised at first instance. They dismissed the ground based upon application of what they said were the appropriate principles. Those appropriate principles, as subsequently were pointed by this Court, were not the correct approach.

Beyond putting the matter in those terms I cannot advance it much further, save to rely upon the written submissions that have been presented with the application book, to submit that in so far as this particular case was concerned, the facts of the case as they existed demonstrated that at the time the former friend of the applicant, Mr Frayzer, arranged the meeting with Mr Goncalves, that was set up at the behest of the police by use of deceit and subterfuge and that he was instructed to specifically interrogate the applicant to extract the confession, the admission, which is in fact exactly what took place, in circumstances where Mr Goncalves' rights to be able to choose whether to speak or not to speak are being clearly infringed.

That gives rise to the inherent unfairness in relation to the use of the material in the trial that took place. Albeit prima facie admissible, notwithstanding its admissibility, the trial judge has the overriding discretion to ensure that a fair trial is conducted. That includes fairness to the applicant and fairness to the community but, in my respectful submission, notwithstanding that this was an exercise of discretion, unfairness accrued to the applicant by virtue of the failure of the trial judge to exclude that evidence. I cannot advance the argument any further than I have tried.

GAUDRON J: Yes, thank you. We need not trouble you, Mr Cock.

The trial judge was not required to consider the exercise of a discretion to exclude evidence when no application was made in that regard. That being so, it cannot be contended that the applicant's conviction involves a miscarriage of justice. Accordingly, special leave is refused.

AT 12.59 PM THE MATTER WAS CONCLUDED