Rawcliffe v The Queen P78/2000 [2001] HCATrans 549 (24 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P78 of 2000

B e t w e e n -

MICHAEL DAVID RAWCLIFFE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 2.44 PM

Copyright in the High Court of Australia

MR S.D. HALL: If it please the Court, I appear for the applicant. (instructed by Director of Legal Aid Western Australia)

MR S.P. PALLARAS, QC: If it please the Court, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ: Yes, Mr Hall.

MR HALL: If it please, your Honours, both proposed grounds in this case I would suggest raise issues of general importance that are deserving of the determination of the Court. The first of the grounds concerns the conduct of the Crown in expressing the intention to call a witness at a time when another jury was considering whether to accept the Crown's submissions that that same witness' evidence on the same subject should be rejected.

The inconsistency of this conduct raises an issue of whether the appearance of justice and fairness was compromised. We say it was. The importance of the appearance of justice, of course, is to maintain public confidence in the criminal justice system. We say that applies not only to cases involving perceived bias but to a case like the present where the Crown maintained inconsistent positions before different juries at the same time.

I stress at the same time because it is essential to the understanding of this matter to understand the sequence of events. The applicant, Rawcliffe, was initially jointly indicted with a man named Diaz with joint possession of a quantity of amphetamines. They were listed for a joint trial. Diaz confessed to the police and that confession formed part of the Crown case.

Two days prior to the trial Diaz indicated that his defence was to be that the confession he had made to the police was false and had been induced by Rawcliffe on a promise of reward. The reason that Diaz advanced why Rawcliffe was doing this was that Rawcliffe, Diaz said, had a prior record and that if he was convicted he stood to suffer a much more serious sentence.

CALLINAN J: The Crown's position in the Diaz trial turned out to be wrong in the sense that Diaz was acquitted, was he not?

MR HALL: Yes.

CALLINAN J: Well, therefore, having been acquitted, that itself provided some basis for the evidence or really laid a proper foundation or demonstrated that what he was going to say in the trial of your client was certainly not something that the jury had rejected. Now, I am putting it neutrally, but certainly the jury had not rejected it. It may have been that they only had a reasonable doubt about it but they certainly had not rejected it, so that the evidence that Diaz gave in the trial of your client was, in all respects, consistent with his acquittal.

MR HALL: I accept that, your Honour. The difficulty is that Rawcliffe, my client's jury was, in fact, empanelled before that verdict was returned.

CALLINAN J: I know that. I know that. The Diaz jury was out, was it not?

MR HALL: Yes.

CALLINAN J: Coincidentally, it was the same Crown Prosecutor who was opening the case.

MR HALL: It was the same Crown Prosecutor, yes.

CALLINAN J: And his opening in the end turned out to be consistent with the jury's verdict of an acquittal in the Diaz trial.

MR HALL: He did not, in fact, start his opening, your Honour, but what he did - - -

CALLINAN J: Whether he had or not, the case against your client turned out to be consistent, at least, with the verdict of acquittal.

MR HALL: Yes. What he had done - whilst the Diaz jury was still out, considering, one would have thought, his submissions that Diaz was not to be believed and, in fact, had truly confessed to the police and was involved in this matter, what he said was that he intended to call Diaz as a Crown witness, presumably as a witness of truth. Now, that was quite inconsistent with the fact that the Diaz jury was still considering his submissions to the contrary.

Now, to an impartial, objective observer, the Crown was maintaining two quite inconsistent positions at the same time to two different juries who, of course, were quite unaware of what the Crown was saying to the other jury. Now that, at the very least, would give an objective bystander an impression that fairness was not being done in this case and so much was accepted, both by the Crown on the appeal before the Court of Criminal Appeal and by the court itself.

In those circumstances there should have been such concern for that appearance of unfairness as to at least cause the trial judge sufficient concern to inquire what the Crown was doing and, if necessary, to stay the case until that inconsistency was resolved. It was compounded by the fact - as your Honour Justice Callinan points out, it was the same Crown Prosecutor before the same judge who was maintaining these two inconsistent positions.

I should say there was objection taken to this course, although it was not taken immediately. What happened was that after that statement that the Crown intended to call Diaz was made, the jury then came back on Diaz' trial and acquitted him. The following morning objection was taken to the calling of Diaz and the Crown Prosecutor justified his course by saying that he had formed a favourable impression of Diaz during his giving of evidence at his own trial.

Now, if that were true, one wondered how that Crown Prosecutor not only could have closed contrary to that and have suggested to Diaz' jury that he was, in effect, a liar and should not be believed, and have allowed that jury to go on considering those submissions at a time when he was telling a different jury that he intended to call Diaz as a witness of truth, because no other inference could be drawn from the fact that he was naming Diaz as an intended Crown witness.

He said that not only had he formed - this is the Crown Prosecutor - a favourable view of Diaz in the evidence, but he was reinforced, he said, in that view when Diaz was acquitted. But, as I say, that is not what was said to Diaz' jury. At the time he indicated Diaz was to be a witness, Diaz' jury was still deliberating. If he believed that Diaz was truthful, how could he have maintained to the contrary and allowed Diaz' jury to go on deliberating on that basis?

The Court of Criminal Appeal, in describing that conduct, said it was at least subject to criticism and went on to say it was surprising and, I think, remarkable, at one stage. In fact, however, the Crown Prosecutor went on to concede that if Diaz had been convicted - and that was still a possibility at the time that he named Diaz as a witness - he probably would not have called him which tends to show that the Crown Prosecutor was conscious of the inconsistency of what he was saying to one jury in regard to what he was saying to the other.

I do not say that it is inconceivable that a Crown Prosecutor can change his mind about a witness called or, indeed, change the Crown case, as happened here, because at the second trial, the trial of my client, what, in effect, happened, is that in calling Diaz the whole case against my client changed in that it was no longer addressed as being a joint possession but as being the sole possession of Rawcliffe and Diaz was called as a witness of truth and as a witness who had been induced to make a false confession because of Rawcliffe's consciousness of his own guilt.

It is conceivable, I would suggest, that the Crown could, had these trials occurred at totally different times, have had Diaz' trial, completed it, formed a view properly that Diaz was telling the truth and then called him. What is inconceivable is that these two trials having overlapped, that these inconsistent views could have been held at the same time.

If I can ask your Honours to look at what Justice Miller said in this regard at the application book at page 61. In the last paragraph his Honour said:

There is no doubt that the procedure adopted by counsel for the Crown in the two trials is open to criticism. The Director of Public Prosecutions did not seek to deny that fact on the hearing of the appeal. Although it was not for counsel for the Crown . . . to reach a conclusion as to whether Diaz was telling the truth or otherwise at his trial, the fact of the matter is that counsel for the Crown did conclude that Diaz was a witness of truth and publicly stated that fact at the trial of the applicant. If it were the case that counsel for the Crown had reached that conclusion after his cross-examination of Diaz at the first -

I apologise, the next page is, in fact, the page previous, page 60 in the application book -

trial, it is a matter of surprise -

his Honour goes on to say -

that he should have submitted to the jury as strongly as he did that the real truth of the matter was the confession made by Diaz to police and not his sworn testimony at trial. He should either have declined to prosecute the case further and invited the trial Judge to direct the jury to acquit, or alternatively, have declined to make any closing address to the jury at all. Having made a submission to one jury on the morning of the day in question that Diaz was untruthful in his sworn testimony and that the real truth was in his confessional interview, it is remarkable that counsel for the Crown should, on the afternoon of the same day, have then indicated that Diaz' sworn testimony at the first trial should be regarded as the truth and would be adduced in evidence against the appellant.

His Honour then goes on to say at the bottom of that paragraph:

In this case it would have been preferable for counsel for the Crown to have stopped to consider the position which he had created and to have conferred with the Director of Public Prosecutions. The Director conceded on the hearing of the appeal that an objective bystander (and the appellant) would have had good reason to have been concerned about the fairness of what had occurred with Diaz on the day in question.

That is really the crux of the special leave point, I would suggest to your Honours, that if an objective bystander would have had good reason to have been concerned about the fairness of what was occurring in respect of Diaz on this day, then this effectively was an abuse of the court's process. The second trial should not have been allowed to proceed in those circumstances because an objective bystander would lose confidence in the criminal justice system seeing what the Crown Prosecutor had done. It might well have been done in other circumstances but not in these circumstances. His Honour then goes on to say:

However, the question is whether the course adopted by counsel for the Crown brought the administration of justice into disrepute or was otherwise an abuse of process. As was pointed out by the Director, even if another prosecutor had been allocated to prosecute the appellant, that prosecutor may have determined that Diaz should be called as a witness. He would not personally have had the experience of cross-examining Diaz in a previous trial and would have had alone the responsibility for deciding whether or not Diaz should be called as a witness for the Crown -

and I do not dispute that. That may well have occurred but it is not what occurred. Then at the bottom of that paragraph his Honour says:

Even if this Court considered that there had been a lack of fairness and/or impartiality in the administration of justice in the case in question, it could not order a retrial on the basis that the Crown refrain from calling Diaz.

With respect to his Honour that seems to be an extraordinary proposition, that there could be a situation like this where there was a perceptible lack of fairness and impartiality and yet it be beyond the power of the Court of Criminal Appeal to do something about that situation. It is as much as saying that if the public were to lose confidence in such a situation, so be it. There was, of course, a power of the court in such a circumstance to set aside the verdict and order a retrial which would then occur in circumstances where there was not this perception of unfairness in the conduct of the Crown.

At the bottom of page 60, the last paragraph, his Honour says:

The problem thus faced by the appellant is that whatever criticisms there may be of the course taken by counsel for the Crown, the situation cannot now be redressed. Nor, it would seem, could it have been redressed by the learned trial Judge at the time. At best, her Honour could -

and it now turns to page 62 -

have suggested to counsel for the Crown that it may be more appropriate in the light of his cross-examination of Diaz at the first trial to proceed against the appellant without Diaz.

Needless to say, that did not happen -

That would not, however, entitle the trial Judge to interfere in the decision of counsel for the Crown as to which witnesses should be called -

and Apostolides is referred to.

It cannot therefore be said that there was at the trial of the appellant any miscarriage of justice which this Court can or should remedy.

I am not suggesting that, contrary to Apostolides, the trial judge should have given some direction to the Crown as to what witness it could or could not call but, in circumstances where this was the perception of unfairness to any objective bystander, it was open to the court and to the trial judge, to prevent that by ordering a stay, either for a period of time or permanently in those circumstances.

We say then, in respect of that first proposed ground of appeal, that the Court of Criminal Appeal was wrong with respect to them in two respects. In the circumstances, there was actual unfairness because the Crown case, in fact, materially changed, not at the commencement of Rawcliffe, the applicant's, trial, but when the Diaz jury during the course of that trial returned its verdict because it was only at that time it became apparent that the Crown Prosecutor really made a decision to call Diaz as a witness. So that change occurred during the course of the trial and I would suggest that was an unfairness.

But, perhaps more importantly, from the point of view of special leave, I would suggest they were wrong in that they suggested that they did not have the power to set aside the verdict and order a retrial even though there was apparent unfairness, something that was conceded.

If I can then turn, your Honours, to the second proposed ground of appeal which deals with an issue that arose during the course of the Crown case. This ground relates to the cross-examination of a Crown witness by the Crown Prosecutor without leave. It is important also that it be borne in mind in the context of the comments of the trial judge.

My submission would be that it raises important questions about when a party who calls a witness can cross-examine their own witness even though that witness is not declared to be hostile, what the proper procedure is, and why that procedure exists.

CALLINAN J: But you won on that. It was just that the Court of Criminal Appeal decided that no miscarriage of justice occurred. Is that not right?

MR HALL: Well, they did to this extent, your Honour. They said that whilst the procedure had not been followed, and that was regrettable, that in other circumstances - - -

CALLINAN J: Well, at page 69, Justice Miller said, at line 12:

What should not happen is what happened here.

MR HALL: Yes.

CALLINAN J:

Nor under any circumstances should a trial Judge say what the learned Judge said . . .

The question, however, is whether a miscarriage of justice occurred -

Now, you would have to satisfy us that you have an arguable case that a miscarriage of justice occurred. You won on the question whether it should have been done or not, so you should really apply your mind to that.

MR HALL: Yes. With respect to his Honour though, what he did not do in the course of that - and if your Honour looks on the same page to the second-last paragraph where his Honour says:

Although entirely unsatisfactory that the matter should have proceeded in the way in which it did, and although it was most inappropriate for the learned trial Judge to have rebuked counsel for the appellant in the presence of the jury as she did, I am unable in the end to say that there has been any miscarriage of justice.

He then says:

Had the proper process occurred, the same result (save for the learned trial Judge's unfortunate observation) may well have resulted.

That sentence seems to be the basis upon which his Honour reached the conclusion that no miscarriage of justice had occurred.

CALLINAN J: No redirection was sought when there was no reference to the matter in the summing up, either.

MR HALL: No, but the Court of Criminal Appeal appreciated that that was, perhaps, an understandable approach by the defence, that it may not have been desirable to draw attention to the conduct of the re-examination of this particular witness. The damage, I would suggest, had already been done in that re-examination. It was, in fact, quite crucial evidence that came from the applicant's father, because if it had been believed that, in fact, Diaz had made a voluntary confession to him, then, of course, it would potentially be something which would create a reasonable doubt.

In those circumstances, I would suggest that what his Honour, with respect to him, failed to take into account in coming to the conclusion that there was not a miscarriage of justice was that although, in other circumstances, there may well have been the same results achieved by the Crown in cross-examination, there would not have been the trial judge's "unfortunate observations", as they were called.

Now, those unfortunate observations were of crucial importance. They had, I would say, the potential to have a marked impact on the jury and his Honour did not take into account what impact that might have had. Those other circumstances would not have included such unfortunate observations and in those circumstances the result may well have been different. If your Honours please, those are my submissions.

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

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter, and the application is refused.

AT 3.04 PM THE MATTER WAS CONCLUDED