Bedek v Brown & Anor C19/2000 [2001] HCATrans 424 (14 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Registry No C19 of 2000

B e t w e e n -

IVAN RUDI BEDEK

Applicant

and

ANDREW KEVIN BROWN

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 SEPTEMBER 2001, AT 2.37 PM

Copyright in the High Court of Australia

MR P.A. WALKER: May it please the Court, I appear for the applicant. (instructed by Mr Philip Walker)

MR G.A. STRETTON: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitors)

GAUDRON J: Yes, Mr Walker.

MR WALKER: Your Honours, in the course of the decision of the trial judge in this case, he said that:

there is no reason in fairness or in logic why the failure to comply with the rule -

in Browne v Dunn, as he was referring to -

in criminal proceedings cannot be the subject of comment and attention in subsequent civil proceedings.

This statement is most conveniently reproduced at page 28 of the application book. It is also there accompanied by the reason of the Full Court. Your Honours, it was the trial judge's perception that counsel in a criminal trial, touching upon the same matters as were raised in this simple trial, not having put certain aspects to Crown witnesses which were then subsequently the subject of evidence by Mr Bedek in the civil trial, gave rise to some inference of recent invention.

GAUDRON J: But was the question objected to when it was asked, when the police officer said that he had not been cross-examined in the criminal proceedings, to that effect?

MR WALKER: The question was not objected to at that stage, your Honour. However, one ought to - - -

GAUDRON J: And there was no re-examination of him in that regard?

MR WALKER: There was no re-examination of him in that regard. Your Honour, the question by itself, however, was one which touched particularly on whether a particular police officer had brought a knife into a room and placed it next to the present applicant. What there was, I should say, your Honour, was submissions quite similar to those which I make now to the effect that because of the many and varied matters which might attend the conduct of a criminal trial, it was not open for the trial judge to draw the sort of inference which ultimately he did draw. Mr Salmon, in his closing submissions, said that there might be reasons of how well a particular defence might go down with the jury, or numerous reasons, as to why a particular defence might not be put in a criminal trial. That, however, tells us nothing.

GAUDRON J: It was not a question of a defence being put, was it? It was a question whether Mr Bedek was to be believed and on that issue there were several matters to be taken into account. One was that he had not mentioned it in his statement to the police, is that not right?

MR WALKER: There were two matters which the trial judge ultimately relied. In my submission, the principle one was the one which he canvassed more extensively and which is reproduced at page 28 and also in his judgment. A further matter he referred to was a discussion between a member of the police force and Mr Bedek while he was in hospital - as it happened, your Honour, about one hour after he had come out of intensive care - where there was no mention of a knife in the course of that conversation.

However, it might be said, your Honour, that the question of any knife was never even so much as raised until about question 86 in that particular record of that interview at the hospital. However, the same might be said in relation to that as it was said, or as I say now, in relation to the inferences one could draw from a failure to advance a particular version of events in a criminal trial. There is no obligation on Mr Bedek to put a version of events, particularly to police, and particularly in circumstances when he is being interviewed in hospital. There is no obligation - - -

GAUDRON J: No, but the issue was somewhat different. The issue was whether it was open to a trier of fact to form the conclusion that this having emerged for the first time, as it were, it was not true. That is really all it is about, is it not?

MR WALKER: That, your Honour, has to be viewed in its context. Mr Bedek never gave any evidence at his criminal trial. The notion that it emerged for the first time was not based on the fact that Mr Bedek had said anything at his criminal trial and he now said something different, but in his civil trial it was based in the perception, and I use that word advisedly for reasons which I might subsequently explain, that counsel appearing for Mr Bedek in the criminal trial did not put to a prosecution witness that he put a knife next to Mr Bedek. As it happened, your Honour, as I said - - -

GAUDRON J: But is it any more than the trial judge saying to himself, "I might accept this evidence if the allegation had been raised before today". Is it any more than that? Are you not trying to convert something that is just an ordinary part of the reasoning process into a proposition of law?

MR WALKER: The question of whether it was said in some general way before, and in different circumstances, was not the way the trial judge ultimately decided the matter. He decided it specifically on whether counsel had cross-examined in a particular way in a criminal trial.

GAUDRON J: But that could only be relevant to the question whether the allegation had been previously made, could it not? It could not be relevant to anything else.

MR WALKER: It might be something inconsistently made by Mr Bedek, one could take into account, but if there is no obligation on the defendant in criminal proceedings to advance a case at all, and he chooses to do so, in my submission, your Honours, that right and that important right and criminal process is substantially undermined if he not doing so subsequently, when he gives evidence as to a particular version of events in criminal trials, somebody says that, "Because your counsel did not raise this before we have reason to believe that you are not telling the truth".

McHUGH J: But you cannot elevate that into a general proposition of law. Take the facts in Petty's Case, Petty v The Queen, which came up here. We said it was open to make adverse comment about the accused's failure to make inconsistent statements, even in the criminal trial. Supposing Petty had sued in a civil case. Surely the Browne v Dunn rule would have been applied to him.

MR WALKER: One has to be very careful though, your Honours, between comparing what might have been done in a criminal trial and not calling evidence in a criminal trial and applying what was done by counsel in a civil trial in a completely different trial. As it happens in this case, the trial was stopped, the trial judge concluding that the Crown had not made out a prima facie case. It was open for counsel for the defendant to take the same approach in the criminal trial.

If he takes it or, for that matter, should any person in a criminal trial take that particular approach to the conduct of criminal proceedings on the basis of the way the trial judge and the Full Court accepted that that was open, he would then be exposed, because of the way his counsel conducted his criminal trial, to the same challenge if he were ever to give evidence in an entirely different form of proceedings.

McHUGH J: It all depends on the facts, that is what I was putting to you, on the issue. The judge in this case made the comment, as a general proposition and it is standing on its own, I do not see anything wrong with it, in a particular case maybe you should not apply it. It is possible it should not have been applied in this case. But it does not seem to me a special leave point.

GAUDRON J: All that the trial judge said is, not that he was relying on it, but in the absence of evidence that the allegation had earlier been made, the inference was open that the allegation was false.

McHUGH J: Yes. The judge, he said, "a far greater significance is the failure of the plaintiff to raise the issue in the interview and by his counsel on his behalf at the criminal trial."

MR WALKER: Yes, and it is the reliance upon a failure of counsel in a criminal trial to advance a particular defence.

GAUDRON J: But to more easily draw the inference, not as the basis for the inference at all. What his Honour is saying, "This is the inference I make and I am not precluded that there be no evidence of earlier allegation - it is easier to draw that inference". If you look at what is reported at line 130 at page 28, you have to look at how the trial judge was reasoning.

MR WALKER: Well, my submission is if one is not obliged to put it and one can exercise an entitlement to simply put the Crown to proof, the exercise of that entitlement is not something which can subsequently give rise to an inference one way or the other as to the veracity of evidence subsequently given.

GAUDRON J: It was not giving rise to the inference. That is the error you keep making. The trial judge did not say it gave rise to an inference. He said, "Because that is there it is easier to draw the inference that I would otherwise draw in any event, that is, not telling the truth". He does not use it as the foundation for the inference. He uses it as something that would not negative the inference.

MR WALKER: At page 16 of the application book in paragraph 36 he does go on to place considerable reliance on that particular point. He describes it as being one:

Of far greater practical significance is the failure of the plaintiff to raise in the interview with him in the hospital and by his counsel on his behalf in the criminal trial, the alleged fetching of the knife by Const. Brown.

It is something, in my submission, your Honours, on which he, with respect to your Honour, takes it further than simply, "It enables me to more easily make it". He is resolving a question of onus of proof where, as it happens, this being a case of trespass, the defendant carries the onus and it is on this point on which he places, as he says, "far greater practical significance". He debates two possible absences from both the defendant's case and the prosecution case and he places great weight on the fact that this did not, it seemed, form part of the case put by his counsel in the criminal proceedings.

Your Honour, there are two grounds to this application. In my submission it does involve a question of law as to whether one is entitled to draw that inference or use it in any way.

McHUGH J: Well, I am not sure that the judge even used it. I mean, in the end, if you go to paragraph 39, he says that:

the strength of the defence case based on the evidence is irresistible. The defence witnesses were inherently credible. Their story was inherently credible.

Given those findings, apart from anything else, it seems to me you have real problems about whether this would be a suitable vehicle to raise the point.

MR WALKER: Your Honour, I intend to confront that because it is naturally raised against me. It, in my submission, is almost inevitable if one engages in, what I submit, is an erroneous method of using an absence from a preceding criminal trial in the way that his Honour the trial judge did and the Full Court seemed to accept as open to him. It is almost inevitable that you will find that there are some favourable credit findings in favour of the other party.

McHUGH J: Not necessarily. I mean, the judge went on and did not accept Constable Brown on one issue, did he not?

MR WALKER: Which passage is your Honour referring to?

McHUGH J: Is not there a passage in the middle of 39 somewhere:

However, despite searching cross-examination, Const. Brown would not concede that he fired instinctively or without thought, and he maintained that he fired deliberately. On the probabilities I am convinced that he fired in fear, and that his fear was accompanied by a belief that it was necessary to fire in order to stop the plaintiff's - - -

MR WALKER: I am not quite sure in the context of this case, your Honour, that it is quite the same thing. Firing in fear - there was an allegation by the police that he was being advanced on by a knife. That is not necessarily the same thing as instinctively.

Your Honour, there was one other matter in relation to this leave application and that was the question of the inferences which can be drawn and how tightly they might be drawn. Your Honours have some additional material which I attempted to have introduced on appeal in the Full Court where, in fact, it is revealed that counsel did, in fact, put to the prosecution witnesses - - -

GAUDRON J: Yes, but time to raise that was in re-examination, was it not?

MR WALKER: Well, your Honours, doubtless it might have been done better at trial but the point which I raise in this particular application is if this is open, your Honours, there is a question as to how tightly one can compare the evidence given by a witness himself with the questions put by counsel in a preceding criminal trial. It happens that in the Federal Court that the court concluded that as there was not an almost exact correspondence between the questions put naming Constable Brown by name, that the evidence proposed to be introduced would not support the applicant's case.

In my submission, that is not the appropriate way to exercise the discretion as to whether evidence ought to be introduced because, in fact, counsel had put the question that the knife was put there three times and on each occasion in a different form. It was plainly obvious that he was rather loose in his questioning and to exercise a discretion requiring such a tight correspondence between the questioning by counsel and the subsequent words used - - -

GAUDRON J: Well, it was not fresh evidence, was it, in the ordinary sense?

MR WALKER: It was not, in the ordinary sense, your Honour. This is true.

GAUDRON J: Very well. You would have to show some basis for the exercise of the discretion rather than turn around now and say that this was a wrong consideration. What possible basis was there for the exercise of the discretion in this case? There had been a proper trial. Parties represented by counsel, competent counsel.

MR WALKER: The basis, your Honour, I would put in terms of CDJ v VAJ and so forth, that there was ultimately an obligation on the Full Court to do justice. The evidence revealed that there had been something of a miscarriage in the conduct of the trial below and it was only a transcript. It did not require any particular oral evidence. I see the red light is on. Those are my submissions, your Honours.

GAUDRON J: Thank you, Mr Walker. We need not trouble you, Mr Stretton.

No error is to be detected in the approach of the Full Federal Court in this matter. Accordingly, special leave is refused. We note that it is said that the applicant is without means and that that is a reason why costs should not be awarded in this case. However, the normal rule is that costs follow the event. Accordingly, special leave is refused with costs.

The Court will now adjourn sine die.

AT 2.59 PM THE MATTER WAS CONCLUDED