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High Court of Australia Transcripts |
Melbourne No M6 of 1998
B e t w e e n -
HUGO ALISTAIR RICH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GLEESON CJ
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 11.07 AM
Copyright in the High Court of Australia
MR D.E. RISSTROM: If it please the Court, I appear for the applicant in this matter. (instructed by T.F. Grundy & Co.)
MR P.A. COGHLAN, QC: If the Court pleases, I appear for the respondent. (instructed by P.C. Wood, Solicitor for Public Prosecutions)
GLEESON CJ: Yes, Mr Risstrom.
MR RISSTROM: Yes, your Honour, there are a number of grounds of appeal as for my learned friend. I draw your attention to grounds 1, 2 and 7 as the elected grounds that touch on undecided issues of public policy. I take you to ground 7 first, which is the question of the dealing by the Court with the victim impact statement. Section - - -
GLEESON CJ: This is in relation to sentence?
MR RISSTROM: Yes, that is correct. I will return to other issues. This is the issue I wish to commence with and do not in any way abandon other issues.
Section 95A of the Sentencing Act states:
(1) If a court finds a person guilty of an offence, a victim of the offence may make a victim impact statement to the court for the purpose of assisting the Court in determining sentence.
What the Court of Appeal, with respect, has done in - - -
GLEESON CJ: What page do we find the Court of Appeal, Mr Risstrom, dealing with this issue?
MR RISSTROM: At page 69 of the depositions. On submissions from counsel, the Court of Appeal has read the section to state at line 5 that:
The section contemplates that the statement will be made and tendered to the court following the conviction of the accused person and will be used by the court for the purpose of sentencing.
My submission to this Court is that is a misreading of that particular section and this Court is in the position to cure a position that often troubles lower courts in relation to the potential for a victim impact statement to negative a trial where new information arises from the victim impact statement which properly should be dealt with as part of proceedings prior to sentence.
GLEESON CJ: I am sorry, what do you say the section means?
MR RISSTROM: I say that the section correctly protects the accused from the presentation of a victim impact statement, any of its contents, prior to the determination of guilt, so - - -
GLEESON CJ: I am sorry, where - - -
MR RISSTROM: What the section says is that the victim impact statement must be not put before the court prior to sentencing.
GLEESON CJ: How is that different from what the Court of Appeal said? I am sorry, you mean they should sentence before they see the victim impact statement?
MR RISSTROM: No, no, no, your Honour, that the accused should be in the possession of the victim impact statement prior to trial or at trial so they are in a position to evaluate any allegations that may arise within the victim impact statement. There is - - -
GLEESON CJ: And cross-examine the complainant on it.
MR RISSTROM: Yes, that is right.
GLEESON CJ: But what has that to do with the sentence that was imposed on your client?
MR RISSTROM: What in this case - in this victim impact statement states that the victim, a Mr Kent, and this was a matter raised by counsel in the Court of Appeal, says that:
following the threats I experienced significant weight loss -
et cetera -
due to anxiety.
He indicates matters in relation to his marital status. He indicates that in the victim impact statement under clause (4) that the actions of the accused were "tactic to intimidate me". In conjunction with the evidence that was before the court which was of the nature, as your Honour would be aware, that the police witnesses provided evidence of one nature and other witnesses, not being police members, being legal studies students, provided evidence of a different nature.
GLEESON CJ: This document was not in existence.
MR RISSTROM: That is my point, and the document should have been in existence. My point is - - -
GLEESON CJ: You mean it was the duty of the prosecuting authorities to take the victim impact statement during the trial?
MR RISSTROM: Yes, and that is a matter of public policy which I submit has caused difficulty, and that as a matter of practice and procedure, this Court has the opportunity to elucidate upon section 95A to ensure that victim impact statements do not arise after the conclusion of a trial.
GLEESON CJ: You mean do not come into existence after the conclusion of the trial?
MR RISSTROM: Yes, do not come into existence - - -
GLEESON CJ: Is this a matter of a statutory construction? You say this is what a legislature provided for.
MR RISSTROM: Yes, yes. Well, I say the - - -
GLEESON CJ: What are the words in the legislation that provide that the victim impact statement has to come into existence before conviction?
MR RISSTROM: There are not words which explicitly cite that.
McHUGH J: In fact, the words are against it, are they not, because the introductory words are that if a court finds a person guilty of an offence, a victim of the offence may give a victim impact statement.
MR RISSTROM: Yes, that is correct, but, with respect, subsection (2) states in both cases that that has to be written, that victim impact statement. I say, in the interests of justice, that what this Court should determine is that if there is to be written evidence and that that evidence has the capacity to cause mistrial, to cause great cost as a consequence of the real potential for that victim impact statement to not accord with matters that should have been put at trial. What the section does state fairly, explicitly, is that a victim impact statement should not be presented to a court or a tribunal prior to sentence. But in presenting the case, the prosecution should arm the accused with the contents of a victim impact statement. So in my submission to - - -
McHUGH J: But that may mean that the accused would then be cross-examining on matters that were not even issues in the trial itself.
MR RISSTROM: That may be the case but, with respect, your Honour, that is often the case with material that comes before the court, and that is, of course, a matter for objection.
McHUGH J: Well, I hope not. I hope the Bar does not disregard the rules of evidence and procedure to the extent that they cross-examine on matters that are not in issue.
MR RISSTROM: I accept what you say, your Honour. What I am indicating is that the fact that one element of the victim impact statement is irrelevant, I am sure would be dealt with by responsible counsel at trial. My point is that - and let me make this a sequential exercise - this State conducts trials at great expense and then because this section is read to indicate to the prosecution that they should construct a written statement after sentence, that that leaves at jeopardy the possibility for that victim impact statement to cause a doubt in relation to the evidence given at trial. It is an expensive way, in plain language, of reading that section. My submission is, yes, as you correctly identified, the victim impact statement should not be before the court before sentencing, but that in cases such as this where the victim impact statement may raise an issue that indicates the possibility for cross-examination, that that is a matter that in fairness should have been provided prior to trial.
GLEESON CJ: Yes.
MR RISSTROM: That was an instance countenanced in Glen Carson Lewis-Hamilton where in the Victorian Supreme Court of Appeal, Justices Winneke, Hayne and Charles stated that in that case the victim impact statement was in the possession of the Crown at the commencement of that trial and, therefore, these concessions make it unnecessary for the Court to consider the questions of principle involved in the issue whether the Crown is obliged to provide the accused's legal representatives with a victim impact statement before a verdict has been reached at trial. The Court - - -
McHUGH J: But in Lewis-Hamilton, the victim impact statement dealt with matters that were issues at the trial and it was in existence before the trial, and all that the court said, was it not, was that the document ought to have been made available by the Crown to the accused?
MR RISSTROM: Yes, that is my point, and what I indicate - - -
McHUGH J: But that does not support a general proposition that the Crown should always take victim impact statements before trial and hand them over to the accused.
MR RISSTROM: What it is open to this Court to do is to clarify that issue in relation to the construction of section 95A to ensure that that jeopardy in the operation of the justice system is not there, that because it is simply understood by the prosecution that the accused only need see a victim impact statement after sentence, that they rely on the fortune that there is nothing in there that would impinge upon the carriage of their defence.
GLEESON CJ: What if the Crown Prosecutor says to the complainant in a sexual assault case, "What was the continuing impact of this upon your life?", and the complainant says, "Mind your own business"?
MR RISSTROM: Well, there are statutory restraints that would stop that, and I accept that that would not be an appropriate vehicle to use in that case. What I do say is that that is a jeopardy. There is a jeopardy, as that particular case of Glen Carson Lewis-Hamilton indicated. There was a jeopardy in relation to, in that case, the sexual assault case, where the victim impact statement belied different allegations to that put at trial. I submit the same is for this case, and as a matter of public policy, that this is a matter that should be determined by this Court, in my submission, because it is a matter that regularly causes some difficulty in relation to that.
In relation to the other grounds, 1 and 2 - and indicate that I am not abandoning other grounds, but this is the issue of most import - that is the question of whether the evidence of the police officers was wrongly admitted, and there are two grounds in relation to that, either that the evidence of the police officers should not have been admitted at all and should have been the subject of a voir dire that removed them; or that if the evidence of the police officers was accepted, that it is proper for direction in relation to those individuals be given to the jury. I do concede that the second of those grounds is a stronger submission and that I can see the difficulty in relation to hearing evidence on a voir dire that effectively transfers the majority of the trial to a voir dire.
But in these circumstances we have - as the Court of Appeal recorded - that there was allegations of a threat to kill made within a court where there were a number of police present and there were a number of legal studies students present. It is uncontested, in my submission, that the police left the court after the alleged event and went to another place and sat together to discuss what had taken place. It was, in my submission, uncontested that one person took notes and that the others effectively adopted those notes.
Now, it is, in my submission, a very important point of public policy where a jury is presented with a number of police officers and needs to weigh that evidence against the evidence of a number of people who may be seen to have less experience with the court system.
GLEESON CJ: Was the evidence of the police officers disputed?
MR RISSTROM: Yes, it was.
GLEESON CJ: By cross-examination?
MR RISSTROM: Yes, it was.
GLEESON CJ: What was put to them in cross-examination as to what actually happened?
MR RISSTROM: It was put that the alleged events occurred, that they went away to a cafeteria - - -
GLEESON CJ: No, I am terribly sorry, I am not making myself clear. What was put to them as the defence case by way of cross-examination as to what really happened, as distinct from what they said happened?
MR RISSTROM: All right. That there was not a threat to kill made, which was the - or there were not words which constituted a threat to kill which was the evidence of the non-police witnesses, and that there was - - -
GLEESON CJ: Was it any part of the defence case to put a positive version of what actually happened?
MR RISSTROM: A positive version on an allegation of collusion?
GLEESON CJ: No, on what happened by way of saying or doing things that might constitute a threat. What was the defence case as to what your client actually did?
MR RISSTROM: That he said words which did not constitute a threat to kill.
GLEESON CJ: And what were the words that, according to the defence case, he said?
MR RISSTROM: I do not have those words before me, I apologise, but the thrust of the cross-examination was in accordance with Leece's Case that words were said, but there were not words which constituted the threat to kill, and what - - -
McHUGH J: But your client called no evidence, did he?
MR RISSTROM: No, he did not, that is right. Cross-examination was made of four other witnesses who at page 60 of the depositions state what was put before the court by way of evidence. None of those four non-police witnesses provided evidence, which, in my submission, would provide a safe conviction on a threat to kill, and also as your Honour one would be - - -
GLEESON CJ: They were the witnesses who were talking about your client saying "boom, boom"?
MR RISSTROM: Yes, that is correct, there were words "boom, boom", yes.
GLEESON CJ: Yes. What was the defence case as to what was meant by that?
MR RISSTROM: The defence case, in my recollection, was that the accused had been prompted in relation to those words and that he simply repeated those words back. My strong submission in relation to that - and it is borne out by the evidence - was that there was a consistency in relation to the evidence of the non-police members; a consistency of words which indicated that the threshold needed to reach a conviction on a charge of threat to kill was not reached, and I accept that that is a matter of fact that the jury may need to consider. What - - -
GLEESON CJ: Well, this evidence is set out at pages 60 and 61, I think.
MR RISSTROM: Yes, that is correct, your Honour. The first five people stated there are police members, or were police members at the time and the following four are non-police members. They were, as I believe put in evidence, legal studies students in the court at the time and in the trial there was extensive cross-examination of Mr Kent, with his acknowledgment that any prompting or any collusion, any discussion by those non-police officers would be improper and any direction by a police officer to say, talk about it, agree on the facts and then write a statement would be improper; and the allegation, the case put by the defence, was that the police took that very course.
GLEESON CJ: Where do we find the Court of Appeal dealing with this issue?
MR RISSTROM: The Court of Appeal's judgment, commencing at page 56 of the depositions.
McHUGH J: Yes, I know, but where is the precise passage which deals with this issue?
MR RISSTROM: This was not a matter that was raised at the appeal.
McHUGH J: That is what I thought.
MR RISSTROM: It was raised at trial and I cannot speak for the matter being raised at the Court of Appeal. It was certainly a significant portion of the cross-examination at trial and I submit that some difficulty, though I say to the Court not, as Hoch's Case indicates, in a case where, as is alleged, that there was some collusion or motive in relation to the actions of the police. Now, this instance clearly falls within Hoch's Case that - - -
GLEESON CJ: When you say it was raised at trial, your client was represented a trial by senior counsel?
MR RISSTROM: Yes, he was, yes.
GLEESON CJ: Was this evidence objected to?
MR RISSTROM: Well, this evidence was the subject of a great deal of cross-examination - - -
GLEESON CJ: No, I did not ask whether the evidence was the subject of cross-examination. I asked whether the evidence was admitted without objection.
MR RISSTROM: Well, it was. The evidence was adduced by the counsel for the applicant at the time, so - - -
GLEESON CJ: So, are you raising an argument about the admissibility of this evidence?
MR RISSTROM: Yes, I am.
GLEESON CJ: And it was not objected to?
MR RISSTROM: It was by way of cross-examination, yes. It was put by way of cross-examination and to - - -
GLEESON CJ: You want us to give you special leave to appeal to the High Court to argue that evidence that was not objected to at the trial should not have been admitted.
MR RISSTROM: Well, let me be more specific, no. I say it was objected to and it was objected to - - -
McHUGH J: Not only was it not objected to, but it was not even a ground of appeal in the Court of Appeal.
MR RISSTROM: I accept it was not a ground of appeal in the Court of Appeal. What I say is the course of conduct in the trial, by cross-examining that very issue, laid that question open squarely and that the charge that was made subsequent to that cross-examination, of course, counsel could not have been aware that that matter would not be dealt with in the way he may expect. I can only speculate on that, but I say that is a matter of important public policy that this Court has an opportunity to address, and I say it is properly addressed - Hoch's Case indicates that where there is a suggestion of collusion and motive, it is a proper issue that should be addressed. I say this case falls clearly within that and simply because they are police members, do not put them in a different class.
I do not abandon the other grounds of appeal, though, and allow them to stand, but will make no further submissions on this - - -
GLEESON CJ: Thank you, Mr Risstrom. We do not need to hear you, Mr Coghlan.
In this matter the Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave.
In relation to the submissions made by counsel for the applicant concerning suggested or actual collusion by police officers in relation to the evidence that they gave at the trial, the Court notes that that evidence was given without objection, notwithstanding that the applicant was represented by experienced counsel at the trial and that the matter was not the subject of any ground of appeal to the Court of Appeal. The application is refused.
AT 11.27 AM THE MATTER WAS CONCLUDED
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