Mateiasevici v The Queen M91/1999 [2000] HCATrans 543 (8 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M91 of 1999

B e t w e e n -

DEIAN MATEIASEVICI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 12.33 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC: May it please the Court, I appear with my learned friend, MR M.P. TURNER, for the applicant. (instructed by Stephen Andrianakis & Associates)

MR J.D. McARDLE, QC: If the Court pleases, I appear with MS K.E. JUDD for the respondent. (instructed by the Director of Public Prosecutions (Victoria))

GUMMOW J: Yes.

MR TEHAN: Your Honours, the admissibility of what is referred to as propensity evidence or, in some jurisdictions, as tendency evidence is a subject which troubles criminal courts throughout Australia almost daily now.

HAYNE J: And troubles counsel determining whether or not to object to its admission.

MR TEHAN: That is true, your Honour.

HAYNE J: And at application book 10 do I not find counsel addressing the very question of whether this evidence should be admitted and saying:

I don't take opposition to the admissibility of the items found during that search - - -

MR TEHAN: I am obviously alive to that reality.

HAYNE J: Yes.

GUMMOW J: You are alive to it?

HAYNE J: Then?

MR TEHAN: The point we make is this: this evidence was not admissible for the limited purpose that it was allegedly admitted for and counsel ought not have conceded its admissibility. There is a real risk of a miscarriage of justice here. The evidence was highly - - -

HAYNE J: Mr Tehan, let me tell you the problem that lies behind that sort of submission. One thing we do not know is what counsel had in his or her brief at trial. One thing we do not know, therefore, is what was motivating the tactics that counsel employed at trial. Absent demonstrated flagrant incompetence of counsel - and there is not a hint of that, I hasten to add - how can we or any appellate court legitimately second guess the tactical call made by counsel who advert to the point and say, "No, I won't object to the evidence going in"? We do not know what counsel was wanting to make of it.

MR TEHAN: I understand that point, your Honour, that we do not know what counsel did. It seems from the final address as summarised by her Honour in respect of both counsel for the applicant and counsel for the Crown, they both made the same point, in other words, the evidence had a limited use, but the concentration of this application is upon the question of whether or not the evidence was admissible for that limited use. The argument that we put to this Court is that if it comes to the view that it was not, then the applicant has not had a trial in accordance with law because the evidence should not have been admitted at all and if there is a risk of a miscarriage of justice, then special leave should be granted.

Now, the evidence consisted of - and it is set out in the applicant's summary of argument - a finding in the boot of the applicant's car a rectangular welded metal frame with a metal base plate, a small hydraulic hand jack and a - - -

HAYNE J: Putting it tendentiously, it was a drug press. That is the tendentious method of putting it and this was the second such item that had been found in this man's possession.

MR TEHAN: They were not the same items.

HAYNE J: No, no.

MR TEHAN: Some of them were similar. Some of them were in a different place. Of course, they were at a different premises - - -

HAYNE J: This man had the misfortune to buy a motorcar that had in the boot of it, which he did not open for two weeks, an item which the uninformed third party might be cruel enough to describe as a drug press.

MR TEHAN: Yes, and the great prejudice that was done to him upon his trial was that the record of interview in relation to the possession of those items was played to the jury and what was said by counsel for the Crown was, "Because he has lied here or because he has said he does not understand what purpose they can be put towards" - I think he might have conceded that a hydraulic press could be used for all sorts of purposes, a hydraulic pump - "then in some way you can use that to attack his credit when he says in his record of interview in 1997 that he does not know what similar items are for." And quite frankly we submit that as a matter of logic that argument just does not have any legs.

If I could hand up to the Court copies of the 1997 record of interview, the 1997 interview, extracts from that, and also extracts from the 1998 one, because when one looks at this material one understands the prejudice involved in the admissibility of this evidence. In the 1997 record of interview, we commence that at question 383 and one can see from the answer to 384 what his stance was in relation to the items that were put to him. He said he had "No idea":

Have you ever seen these items before?

A No.

He said he had not been in the garage since he had got out of gaol and he said that he had never seen them. Then the various items are put to him. He says:

It doesn't belong to me.

At 397:

I put it to you that these 4 articles in front of me, are connected together and used to compress heroin into blocks. What would you say to that?

A That's not correct.

Then he makes a concession about the jack in the car. Then at 401 he was asked:

You've never done it before?

Referring to putting the items together and making them into a press:

No. Never.

Then we have the evidence being admitted of what happened 13 months later at different premises involving a recently purchased car and the garage, not the same items, some of them are similar, as I say, being led against him and it is not just the finding of the items; it is his explanations in this interview which were really relied upon by the Crown because the Crown went to the jury and, in effect, said that, "This man is a liar." In that record of interview that I have just put to the Court the Crown case was that he was a liar and one can see that from what was said by the judge at application book page 70, when summarising the submissions of counsel for the Crown in final address, at line 8 they were summarised as being:

He said the accused is unlucky, he said a heroin press there, and then a year later you ought not accept his denial of knowing anything about that.

So that is the circular argument that was put, that he is a liar in 1997 because he lies also in 1998 and that is where we say as a matter of logic the argument just cannot live. But what was put before the jury was the whole of the - or at least a large body of it - I do not think the last part, but we have taken it from question 111 onwards of the 1998 interview and, again, the applicant on that occasion was questioned at length about the finding of items in his alleged possession. At question 142, page 14, for example, he was asked:

Does it look like a jack that would be used for a vehicle?

A It can use for everything - - -

He says that again at 146. At 151:

Have you seen any item similar to it before?

A Yes - year before.

Q152 And when was that?

A Last year.

What I put it to you, Danny, is that this is a - an item which is used to recompress heroin once it's been diluted into a powder form. What would you say to that?

A I don't know. I don't want to say nothing `cos I didn't ever use - you can see its rust, and nobody use this.

And then it went on and on in detail. I mean, this man was not charged with any offence arising out of the 1998 matters and you have paraded before the jury all of this material relating to his answers concerning those items in that year and we would simply say that the limited basis upon which is was admitted appears at page 57 of the application book. When I say "the limited basis" of admissibility, I am really directing the Court's attention now to what her Honour said about it in the charge. At line 7, she said:

The Crown also say that you ought look at the accused's explanation to the police, saying he had not seen that heroin press, ought not be accepted. And you ought to consider that that explanation be discredited, as it defies commonsense that a year or so later in his garage and in his car again were items which, when constructed, were heroin presses. And again he denies knowledge of it. In Noble Park and the car, just as he did in Dandenong.

HAYNE J: And the direction goes on to say, "The only use you can make of it is to go to his credit."

MR TEHAN: Is to go to his credit, and that is what this case is about: "Could it have gone to his credit?" This was not a case where - it is not like Thompson and Wran and some of those other cases or the striking similarity cases where you can say it goes to the issue of identity. It was not led in that way. It was put solely in relation to credit and, in our submission - - -

HAYNE J: And you say it cannot be used for that purpose?

MR TEHAN: It cannot be used for credit.

HAYNE J: And the jury was told, "The only purpose you can use it for is credit. You cannot use it for any other purpose."

MR TEHAN: That is right, and our submission is that that finding by the trial court and by the Court of Appeal is wrong. That is the short end result. I suppose the question is, "Can a denial of possession of incriminating items at a later point in time be used to attack the credit of a denial of similar items or possession of similar items at an early point in time?" And, as we submit, as a matter of logic, the answer to that question must simply be, "No." The items were nothing more than the telltale articles of a heroin trafficker.

I mean, the issue can be looked at this way: in 1998 he may well have been a heroin trafficker and he may well have been lying in that record of interview. The question is, "Can you use that lie in the circumstances in which it is made, with the possession of the articles, to attack his credit a year earlier?" That is the question, and, in our submission, as I say, logic demands that the answer to that be, "No." Sir Charles Lowe said in an often-quoted passage - I think it is quoted in this Court's judgment in Edwards v The Queen, the case on lies and consciousness and guilt - that:

"[B]y no torturing of the statement `I did not do the act' can you extract the evidence `I did do the act.'"

In a sense that statement has some application here because we submit that an impermissible credit inference is sought to be drawn from this later evidence. What the Crown sought to say before the court was that because the applicant said he knew nothing about the heroin press in his possession in 1998, then he was not to be believed when he said no knowledge of similar items found in his possession in 1997. In our submission, that inference was an erroneous inference. It carried through, of course, to the finding in the Court of Appeal. One can readily appreciate how prejudicial the evidence must have been and I sought to demonstrate that in part by putting the record of interview before the court that was played.

Counsel did concede it had an admissible purpose and counsel was wrong. As I say, the concentration of this application is upon the question of law as to whether in fact it was admissible for the purpose for which it was led. If the answer to that is it was not admissible for that purpose then, surely, the answer to the question I posed earlier, "Has the applicant had a trial according to law?", must be, "No", and therefore the application should be granted. If the Court pleases.

GUMMOW J: Yes, we do not need to call on you, Mr McArdle, thank you.

The evidence which the applicant now contends was wrongly admitted at trial was admitted without opposition by counsel at trial. It is not arguable, as it appears to us, that there has been a miscarriage of justice, and special leave is refused.

We will adjourn until 2.15 pm.

AT 12.50 PM THE MATTER WAS CONCLUDED