Pantoja v The Queen S190/1998 [1999] HCATrans 599 (30 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S190 of 1998

B e t w e e n -

MAXIMO PANTOJA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 2.20 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, I appear with my learned friend, MR J.S. STRATTON, in this matter. (instructed by Andrews Solicitors)

MR A.M. BLACKMORE: May it please the Court, I appear with my learned friend, MR R.D. ELLIS, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Thank you, your Honours. This application raises two issues of which it is contended are of importance in the administration of the criminal law. The first concerns a question of the interpretation of the Evidence Act 1935 of New South Wales, and in particular the application of section 38 of that Act. The second matter concerns the proof of motive in criminal cases.

In relation to the first issue. This is, perhaps, another of a series of cases where the application of section 38 has caused concern. The particular matter which arises for consideration in this case is whether it is permissible to rely on the provisions of section 38 to allow the Crown to further cross-examine a witness after that witness has been cross-examined by the Crown's opponent. The question perhaps might be put another way: whether section 38 of the Evidence Act can be legitimately used as a device to effectively nullify the effect of a cross-examination which is favourable to an accused person in a criminal trial.

GLEESON CJ: But is this a question of the construction of section 38?

MR BYRNE: Not so much, perhaps, its construction, but its application to the circumstances of this case which, it is submitted, are not circumstances which are necessarily particularly unusual.

GLEESON CJ: So, the submission is that the trial judge erred in his discretion to permit cross-examination or admit questioning as though the party were cross-examining the witness.

MR BYRNE: It is our submission that that is not so much a question of discretion. The submission that is put on behalf of the applicant is that the provisions of section 38 should not be permitted to be resorted to, to enable the Crown to further cross-examine a witness after that witness's cross-examination has been completed, particularly in circumstances where it has been completed favourably to the accused person.

GLEESON CJ: This is not some limitation on the words of section 38 or on the power granted by section 38. It must therefore be a limitation on the discretion that is granted.

MR BYRNE: The words of section 38, in our submission, should not be, as it were, interpreted - I appreciate the specific words may be given the meaning which has been applied to them by the learned judge in this case, but the submission here is the terms of section 38 are not such as should be used to permit cross-examination of a witness after that witness has been cross-examined by the opponent.

It, I suppose as well, your Honour, raises questions as to the meaning in section 38 of the term "unfavourable". Can I just take your Honours perhaps briefly to the judgment of Justice Adams in this case. The relevant part is at page 373 of the application book. Whilst his Honour agreed in the decision of the court, at line 15 on page 373, his Honour said this:

I think it would be most unfortunate if counsel, especially prosecuting counsel, thought that s38 of the Evidence Act might be used as a device to nullify the effect of a cross-examination -

and then his Honour referred to circumstances peculiar to this case. But the general issue there raised is the issue that, in our submission, is one which is appropriate for the grant of special leave.

The circumstances of this case as is disclosed in the reasons given by the primary judge for his decision to permit the Crown to cross-examine under section 38 - those reasons set out in the application book at pages 2 to 10.

KIRBY J: Does not what Justice Adams simply indicate that the leave, which is provided for in section 38(1) would be cautiously provided, as was the case with the previous common law, and that really we are just dealing then, if that is the principle, with rather peculiar circumstances of this particular case.

MR BYRNE: I accept what your Honour says with its application to this case, but whether the circumstances of this case can be said to be so peculiar as to justify the procedure that was adopted in this case is another question. The contention for the applicant in this case is that the circumstances here were not so remarkably peculiar and that this case effectively stands as authority which would permit the Crown in virtually any case to say the cross-examination of the Crown witness has been unfavourable, or has resulted in unfavourable evidence being produced, that gives rise to our right to make an application to cross-examine the witness further under the provisions of section 38. There is nothing particularly unusual about the facts of this case which would make this a decision that does not have general application.

McHUGH J: But you have to put a gloss on the section, Mr Byrne. That is the problem, it seems to me. Otherwise it is a matter of discretion. The words of the section are wide enough to allow cross-examination with the leave of the Court in any circumstances subject to it being a proper exercise of discretion.

MR BYRNE: Accept that is the case, your Honour, section 38(4) does seem to proceed on the understanding that questioning which is permitted under the provisions of section 38 should take place before - - -

McHUGH J: I know, but there is the "unless" clause in that as well.

MR BYRNE: I appreciate the qualification to it, but perhaps it comes down to this, that the exceptional, the qualification to section 38(4) is not satisfied simply where there has been an unfavourable cross-examination of the witness, because that is not a particularly unusual situation in criminal trials.

KIRBY J: Maybe we are re-reading "unfavourable witness" and "unfavourable" in paragraph (a) with the eyes that have been developed in the old common law where it was hostile. Maybe this is what Parliament meant, that "hostile", after all, is much more nasty than "unfavourable".

MR BYRNE: Certainly. That is one of the difficulties with the section and that is one of the specific problems that Justice Adams referred to. His judgment used the words "some attention will need to be given in due course to the meaning", and impliedly the scope of the term "unfavourable", and, in turn, the scope of section 38.

McHUGH J: But it was not uncommon in common law trials in my experience for witnesses to be called just to take a piece of evidence from their evidence and ask the jury to reject the rest of it. It was done more than once against the Commissioner of Railways in a case called Leotta v The Commissioner of Railways in this Court. It is a classic illustration of it. But the section is designed to assist plaintiffs in that sort of situation. It may assist the Crown but - - -

MR BYRNE: The question arises, your Honour, whether the use that was made of it in these circumstances should continue to be a, as it were, conventional use, because the circumstances here are not so - - -

McHUGH J: I know. I share the views of Justice Adams. It is worrying. One has the feeling the section is being used for a purpose outside what was in the mind of those who passed it in this particular case, but the wording is wide enough and unless you can point to some error of discretion it seems to me you have a difficult road to hoe.

MR BYRNE: The only other question, again in relation to the overall intention embodied in section 38 - perhaps the question might be put this way. That if section 38 was intended to have the kind of effect that it seems to have had in this case, that would seem to have made provisions such as section 38 relating to re-examination unnecessary.

GLEESON CJ: We happen here to be considering the operation of section 38 in a criminal trial.

MR BYRNE: Yes, your Honour.

GLEESON CJ: But as a matter of construction of section 38, it is not limited to that.

MR BYRNE: No, I accept that, certainly.

KIRBY J: What you want us to do is to put in a new subsection (1)(a): "subsection (1) will only apply in the case of a criminal trial in the special circumstances of the case".

MR BYRNE: Yes, your Honour.

KIRBY J: That is effectively what you want us to do. You want us to write back the old common law and tell judges you have got to be very careful before you allow it at a criminal trial. Now, I have some sympathy for that, but it is not in the statute.

MR BYRNE: The manner in which the expression "unfavourable", or the term "unfavourable" is used in the legislation, it has been given a very broad meaning in the way in which the learned judge here interpreted was very broad. The scope of the section in its proper application in criminal trials is something that if the Court is of the view that what happened in this case should not be encouraged, or should indeed not be permitted, then that is something that can be - - -

KIRBY J: But where is our toe-hold in the statute? You see, as the Chief Justice has pointed out, the statute is neutral as to civil and criminal trials. It has used a watered-down word - "unfavourable" instead of "hostile" and it is not to be read hooked to the old law. It is a new code. So, where is our toe-hold for saying that this is an error on the Court of Criminal Appeal in the statute.

MR BYRNE: It may be found in (4), that is the specific provision which reliance may be placed on to say that is the conventional approach that is to be taken and it should not be departed from. Subsection (4) providing, as your Honours see:

Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

The qualification there put is one which should not be used unless the circumstances are genuinely exceptional, and the situation such as this are not generally exceptional.

KIRBY J: But that is not much help because in most criminal trials there are just two parties, there is the Crown and the accused.

MR BYRNE: Certainly.

KIRBY J: Therefore subsection (4) really will not do any work to help in the special context of the ordinary criminal trial.

MR BYRNE: It would, your Honour, if the Crown were restricted in resorting to section 38 to circumstances where cross-examination had not been completed, not even been commenced.

KIRBY J: What would be the principle you would be wanting the Court to formulate? What would you want the Court to say section 38(1) means as applied to a criminal trial given that that subsection is neutral as to civil and criminal trials?

MR BYRNE: The general proposition - - -

KIRBY J: Is it something like this, that the section has to operate in the trial process which is conventional and established and that concludes the beneficial operation of cross-examination to damage an opponent's case and therefore it cannot be the construction of section 38 that it was intended, every time a blow was struck, to open up the floodgates to further cross-examination to try to repeal the blow?

MR BYRNE: That would be an appropriate statement, in my submission, your Honour.

KIRBY J: I have put that loosely, but I took that to be the sort of thing you are trying to state, that it cannot mean that a successful cross-examination in every case is going to open sesame to an assertion that this is an unfavourable witness, that it must be read down, and cannot have meant that because that would be destructive of the whole system of cross-examination in the trial process, criminal and civil.

MR BYRNE: Yes, and it could not be seen to be what was intended by the legislatures.

KIRBY J: Did the Law Reform Commission say anything that helps on this, or not?

MR BYRNE: They did. That material is set out, Your Honours. I have to confess I have read somewhere of what the Law Reform Commission said.

KIRBY J: Just tell us because - - -

MR BYRNE: There was a change in the approach that they had taken. It may be in the judgment of the learned judge, I think. I suspect that is where I have read it. Yes, it is at page 8 of the application book. What is there set out is what was in the original report of the Commission in relation to unfavourable witnesses. There was then a change which is recognised at page 9 of the application book in that quote from the extract of the Commission's report:

The Commission now considers, however, that this should not be an inflexible requirement.

There was a change in what the Commission had proposed, and it is finally concluded by:

It is proposed that the questioning by the party who called the witness should take place before cross examination by other parties unless the trial Judge otherwise directs."

No helpful comment about the circumstances in which the general rule should be departed from.

GLEESON CJ: On page 9, lines 29 to 41, Justice Barr refers to the discretionary consideration as it weighed with him in the particular circumstances of this case.

MR BYRNE: Yes. Effectively what his Honour - - -

GLEESON CJ: He certainly did not decide the case on the basis that every time somebody landed a punch in cross-examination you should give leave for section 38.

MR BYRNE: I do not suggest that, but there was not anything particularly unusual about this case, with respect, that justified taking what, in our submission, should be an exceptional course.

McHUGH J: I thought you would have said the contrary. One has the impression that the Crown was well aware of some of the problems of this particular witness.

MR BYRNE: Yes, certainly. In the way in which it examined that witness in-chief, certainly.

McHUGH J: Yes.

GLEESON CJ: You have your second point to deal with.

MR BYRNE: I have. Your Honours, that can be dealt with, perhaps, briefly. It is set out in the application book at pages 389 and following. The essence of the question raised is that there is apparently conflicting decisions of this Court in relation to the standard of proof on issues of motive in a criminal trial. The primary judgment relied on is the judgment of the New South Wales Court of Criminal Appeal in the case of Murphy in 1985 which in turn relied on a judgment of this Court in Chamberlain [No 2] in 1984. The decision of the Court of Criminal Appeal in Murphy has only recently been dealt with by this Court in its decision in Penney, a judgment which is presently report in 155 ALR.

GLEESON CJ: Yes, thank you, Mr Byrne.

MR BYRNE: If your Honours please.

GLEESON CJ: Yes, Mr Blackmore.

MR BLACKMORE: Perhaps I could deal quickly with the first matter. In relation to section 38, we submit, there is no requirement in the section for exceptional circumstances. There is no warrant to that section being written down to that requirement. There is, though, a requirement for leave. In this case - I can add to the material from the Law Reform Commission. I understand that we filed in Court yesterday three pages of the Law Reform Commission Report No 26. I am not sure whether your Honours have that there.

GLEESON CJ: Yes, I have it.

MR BLACKMORE: I just very quickly want to just direct your Honours' attention to one particular part. If your copy is the same as mine it is quite difficult to read, but it is on page 346. Paragraph 627. The second heading down says:

Unfavourable evidence emerging during cross-examination.

That is where the Law Reform specifically considered the procedural issues that occurred in this case and concluded:

It is proposed, therefore, that the party may, with leave, cross-question the witness on evidence given in cross-examination.

KIRBY J: This may not be an appropriate vehicle because there were discretionary....but it will be an odd interpretation of the section, and one that really changes fundamentally our trial process, will it not, if every time a witness turns up it can be categorised as unfavourable because of giving a few unfavourable answers that you will lend yourself to this further cross-examination. That cannot - - -

MR BLACKMORE: In a sense, your Honour, we can predict comfortably at some stage in the future some court will look at that exercise of discretion. No doubt the provision for leave was given so the judges would consider that, so that they are frivolous, or perhaps circumstances where a witness has been successfully cross-examined will not be subject to leave, and they will be challenged, no doubt, in courts of criminal appeal and perhaps even in this Court, ultimately. But, with respect, we say this is not a vehicle for that proposition. The evidence was clearly extremely important. It went to the very opportunity that this man had to go and commit the crime of murder, and the evidence comes as a surprise to the Crown. When clarified, it could be seen that, in fact, it was quite likely to be a mistake; that it was very unlikely that he was sure of what he was saying; quite cleverly, I concede, cross-examined to make the concession that he made. But when clarified in re-examination, or on further cross-examination, it could be seen that he was very unsure, in fact, of what he was saying and it could have left a completely misleading impression with the jury as to what his evidence was. So, we submit that in this case it was a proper exercise for discretion.

In relation to the second matter, we likewise rely on the written submission that we have filed. We also submit that if your Honours were against us in relation to whether or not Murphy's Case does, in fact, reflect the law on motive in its totality, that in this case we would submit his Honour did not, in fact, direct the jury that the motive did not have to be proved beyond reasonable doubt. He simply said in relation to motive that it was something the Crown did not have to prove. He had already given a direction in relation to - that the facts had to be proved beyond reasonable doubt. He did not, for example, say that motive only had to be proved on the balance of probabilities. So, in essence, we would submit this is not a vehicle for this proposition. There may be a case where someone in the future will direct that motive only has to be proved to the balance of probabilities, and that may in itself be an appropriate vehicle for this point.

Our primary submission is that in fact Murphy now has to be read with Shepherd's Case, and that circumstantial evidence does not always have to be proved beyond reasonable doubt, and that it is just another category of circumstantial evidence. Some motives will be very strong, some will be very weak. In some cases they will be crucial. Plomp's Case was an example where it was almost crucial to the case and therefore would have to be proved beyond reasonable doubt.

It is accepted that perhaps not every piece of circumstantial evidence has to be a link in the chain. Some may be just so crucial in themselves that they may have to be proved beyond reasonable doubt. But not every piece of motive evidence needs to be proved to that standard. That is our primary submission. Thank you, your Honours.

GLEESON CJ: Yes, Mr Byrne?

MR BYRNE: Your Honours, I have nothing further.

GLEESON CJ: Two points were argued in this application. The first concerned the meaning and effect of section 38 of the Evidence Act (NSW) concerning unfavourable witnesses. There may be cases that will give rise to serious questions as to whether it is proper to permit further cross-examination in circumstances where a cross-examiner has achieved an objective of gaining some answers unfavourable to the case of the party that called the witness. However, while that question may one day need to be considered by this Court, the present case is not a suitable vehicle for that purpose.

The second point concerned proof of motive. There is insufficient reason to doubt the correctness of the approach taken by the Court of Criminal Appeal in relation to that matter to warrant the grant of special leave. The application is refused.

Call the next matter, please.

AT 2.49 PM THE MATTER WAS CONCLUDED