Alavija v The Queen A32/1998 [1999] HCATrans 274 (12 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A32 of 1998

B e t w e e n -

MIHO CHRISTIAN ALAVIJA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 4.08 PM

Copyright in the High Court of Australia

MR K.V. BORICK: If the Court pleases, I appear for the applicant. (instructed by Eaton & Associates)

MR P.J.L. ROFE, QC: If the Court pleases, I appear with my learned friend, MS L.J. CHAPMAN, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

MR BORICK: Your Honours, I do not have a great deal to add to what is already in the outline of argument, but I have referred in that outline to the fact that there has been confusion shown in the judgment, itself, of the Court of Criminal Appeal to the various ways in which the final test as to whether fresh evidence can affect a verdict has been expressed.

So, I would like to refer to, first of all, at page 24 of the book, page 16 of the judgment, where their Honours refer to the case of Reci, and there refer to Ratten, and in line 12 referred to the fact that:

`In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial -

and, that, in my respectful submission, is consistent with the approach of Justice Dawson in Gallagher.

When the Court of Criminal Appeal finally came to conclude the matter at page 26 of the book, page 18 of the judgment, they referred to what I will call the Mickelberg test, and said that in their view the fresh evidence would not create a significant possibility that:

the jury acting reasonably would have acquitted the appellant had the fresh evidence been fore it at the trial."

With respect, the evidence, in this case, the fresh evidence, was, in my submission, clearly relevant. It was also possible that a juror could have accepted that evidence. The real question is, would, in those circumstances, if it was relevant, and you answer "yes" to the question that a juror could have accepted it, then could that have made a difference to the result, either in terms of, in one sense, a different verdict, or alternatively, a verdict which was not unanimous on a trial of murder.

At page 26 the Court of Criminal Appeal, in my submission, confused the two tests, and it can be demonstrated by - if you start at the top of that page, they referred to the fresh evidence, that is the evidence of Dr Raeside, and said that:

does not support the thesis that Batzalis was the real killer.

That, with respect, was never the situation. It was never the defence case that Batzalis was the real killer. The argument being put that because of the mental illness which he had had since 1990, and had been developing and had continued to develop, that there was a real issue as to his reliability, and also an issue, or evidence that supported a proposition that he could have persuaded the other man, Zelenko, to go along with him. The Court of Criminal Appeal, in the very next line, said as much because it said:

The most it could do -

that is the fresh evidence -

would be to support the argument that he had threatened the others so that they lied to cover up for him.

There is the first acceptance by the court that this evidence could make a difference. Then, further down at line 10 they referred to Dr Raeside's opinion:

that Batzalis suffers from a condition that affects his reliability but does not make him completely unreliable.

It was never suggested at any time that a witness has to be completely unreliable. The issue that was raised in the Court of Criminal Appeal was that because of the mental illness that his reliability was affected. Leading to the third point, which again the court accepts, at line 15:

If Dr Raeside's evidence had been available at the time of the trial the judge would have been obliged to give some emphasis to that evidence in the warning given to the jury relating to Batzalis.

Then added that he gave a strong warning anyway. But again, that does not alter the fact that this evidence was relevant; it was cogent; plausible - whatever word you want to use. It clearly went to the issues that the Court of Criminal Appeal accepted and understood, and if they had been applying what I will call the "Justice Dawson" test, then they would have had to come to a different conclusion. But by applying the significant possibility test, the court was then able to make up its own mind, it became the judge of the facts, rather than a jury.

The probative value of the fresh evidence has to be looked at in the context of the trial. It can be quite clearly seen in some cases where there is fresh evidence that there is an argument that sufficient other facts have been found by a jury on which the verdict could stand, and that the fresh evidence has to be looked at in the light of what the jury found.

Not in this case. The critical evidence against Alavija was the alleged confession to Batzalis and Zelenko, but in particular, Batzalis. It was that evidence which the jury accepted, but it was that evidence which the fresh evidence was directly related to, and critical to. So, looking at the probative value of the fresh evidence here, in the context of this trial, it had to be looked at in the light of the fact that the critical evidence for the prosecution was that which was under attack.

The third point that I would make, and it is made in the outline, is that the Court of Criminal Appeal approached this case on the basis that you looked at the situation at the time of trial. With great respect, that must be wrong. You have to look at the evidence of Batzalis as a whole, because his condition was not static. It started with the accident in 1990. You saw elements of violence beginning to emerge around about the time of the death of Miss Neumann, and then it continued on. If there were to be a retrial, then the evidence of Batzalis' mental illness and the deterioration, going back to his capacity for violence, and his capacity to distort reality, as Dr Raeside said, would be relevant. For those reasons, in my respectful submission, this Court should give special leave to hear this case.

GLEESON CJ: We do not need to hear you, Mr Rofe.

The Court is of the view that this is a case in which the decision of the Court of Criminal Appeal turned upon the application of well-established principles to the facts and circumstances of the particular case, and there are insufficient prospects of success of an appeal to warrant a grant of special leave. For those reasons, the application is refused.

AT 4.18 PM THE MATTER WAS CONCLUDED