Grakalic v The Queen [2003] HCATrans 438 (24 October 2003)

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Grakalic v The Queen [2003] HCATrans 438 (24 October 2003)

Last Updated: 6 November 2003

[2003] HCATrans 438

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P61 of 2002

B e t w e e n -

DEJAN GRAKALIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 10.48 AM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Slades & Parsons)

MR D. DEMPSTER: If it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

McHUGH J: Yes, Mr Grace.

MR GRACE: If the Court pleases. The primary issue in this application, your Honours, is whether a substantial miscarriage of justice has occurred by reason of the trial judge’s refusal to discharge the jury. Other issues concern the content of various directions given by the trial judge to the jury.

McHUGH J: None of them were taken at the trial and neither were they raised in the Court of Criminal Appeal.

MR GRACE: That is true, your Honour. I will address those issues, if I may, later.

McHUGH J: Yes.

MR GRACE: If I could first deal with the primary issue. Could I take your Honours firstly to page 28 of the application book. This passage I am about to refer your Honours to occurred immediately after the announcement by the Crown that the co-accused had changed her plea and would be giving evidence against the applicant. At line 45 counsel for the applicant said this:

His defence was originally focussed on the fact that three people were standing trial saying that they were not guilty of the allegations against them. It was not expected that there would be a turnaround such as there has been. It was not expected that Ms Mandich would be giving evidence against my client. Indeed the contrary was expected. Now the focus of the defence will have to alter completely. The defence needs time to consider the content of Ms Mandich’s statement and consider what evidence the evidence –

that, I think, should be “the defence” –

can attempt to obtain to refute the allegations that are contained in that statement. That is not something that can be done in the short term and, in my submission, it’s impossible, from the defence viewpoint, to continue with this trial on any fair basis.

At page 32 the Crown Prosecutor responded to that at line 9 and said this:

If there is any prejudice, your Honour, and we do not accept that there has been any, any prejudice is curable by direction. May it please the court. We are anxious to proceed. Manuela Mandich, if the trial is to continue, will be the next witness called by the crown and as your Honour may well understand there is all kinds of pressure.

At page 33 his Honour says at line 10:

You say that given the new circumstances you would wish to call Ms Mandich straightaway.

At line 25 on that page his Honour says:

I know I have to give rulings, but at the moment I am not persuaded by what Mr Bougher has had to say. It may be that I should give it thought overnight, but is there some particular reason why Ms Mandich can’t give evidence tomorrow?

CHONG, MS: I’m anxious to strike whilst the iron is hot.

HH JACKSON DCJ: I can understand that. It’s not - - -

CHONG, MS: I mean, from a strategic point of view a plea at this late stage changes the whole strategy I had adopted.

I would interpolate there that it changed the whole strategy of the defence, obviously, or it would potentially. At the next page, page 34, his Honour says at line 18 in response to Mr Bougher:

You’re not being asked to call evidence. You’re being asked to cross-examination Ms Mandich and if your position simply is that she’s telling lies, then you can no doubt put it to her in the morning.

BOUGHER, MR: It’s not as simple as that, your Honour. I would hope to be able to obtain evidence to establish that she’s telling lies.

At page 35 Mr Bougher at the top of the page talks about the problems caused to the defence by the change of course and at line 18 says:

What it does do though, your Honour, is it prevents information being obtained on behalf of Mr Grakalic that can be used to discredit Ms Mandich’s testimony.

HH JACKSON DCJ: Well, it’s for that sort of reason that I was going to give you till tomorrow.

Page 36 at line 22:

Can I just say, Mr Bougher, that at this stage if I were to grant your application, I would think it would be very likely that I would have to revoke your client’s bail.

This is an application for separate trial, because of the developments.

BOUGHER, MR: Well, that is another matter . . .

HH JACKSON DCJ: But his position is now entirely different.

BOUGHER, MR: Your Honour is recognising that, your Honour, yes.

HH JACKSON DCJ: It’s a very strong change of circumstance.

BOUGHER, MR: There is. That’s the reason why we need the adjournment. When it comes to a consideration of bail, well, your Honour, there are –

other issues. I will not read on. At page 38 there is discussion at line 15 about “taking Ms Mandich’s evidence-in-chief tonight”, but then his Honour ultimately agrees to defer that to the morning. At page 49 his Honour at line 16 commences to give his ruling. This is on the next morning. He says at line 30:

Having thought about these matters overnight and having heard counsel both then and again this morning, I cannot see sufficient justification either to discharge the jury in relation to the accused Grakalic or to order separate trials which, as I say, is a related matter in relation to both Colecchia and Grakalic.

The issue of Manuela Mandich giving evidence for the crown instead of presumably exculpatory evidence in her defence is the main issue, I think, that the defence has raised on behalf of Mr Grakalic. It seems to me that that is a matter which is one of the inevitable possibilities in any trial, criminal or civil, that a witness will recant what they have previously said or change their story or not come up to proof.

Just to stop there, what his Honour was saying about a witness is clearly not the same as a co-accused who pleaded not guilty in front of the jury and who was running a defence on the basis that she was not guilty of the allegations and cross-examination had proceeded to that point on that basis. Then his Honour continues:

In the present case nothing has been put forward before me justifying the courses of action sought on behalf of Mr Grakalic except that Mr Grakalic would like some time in which to find evidence with which to discredit Mrs Mandich. That’s a matter that I have taken on board but there are no particulars provided and in my view there’s nothing sufficient in it which would justify the extraordinary course proposed by Mr Bougher for Mr Grakalic. So that deals with the matters of discharging the jury and of separating the trials.

Could I take your Honours to the judgment of the Court of Criminal Appeal and to Justice Steytler’s comments at paragraph 47 on page 143 of the application book. Perhaps I could start at 142, paragraph 45. His Honour there says in a dissenting opinion:

In my respectful opinion, the applicant was seriously prejudiced by these events. His defence had been prepared upon the assumption that, as his counsel told the Court, Mandich would not be giving evidence against him and, indeed, that “the contrary” had been expected. Instead, he was faced with the imminent prospect of Mandich giving evidence against him, not only as regards the first of the offences with which he was charged, but also as regards prior sales of heroin to her, in circumstances in which he had had no adequate chance to consider the ramifications of this change of position. It was for that reason that he sought more time to consider what was to be said by Mandich against him and what evidence might be obtained by him in order to refute or discredit that evidence, particularly in respect of the alleged prior sales of heroin. While it is true that he could not, or at least did not, provide particulars of what might be done in that regard, this was not surprising, in my opinion, given the limited time which he had had to consider his position, even taking into account that he had been given a further opportunity to consider his position overnight. His situation, as the trial Judge himself remarked (in the course of contemplating what might be the position as regards the renewal of bail), was “now entirely different”. It could not be assumed, in considering what might or might not have been anticipated by the appellant, in particular as regards evidence of prior sales of heroin by him to Mandich, that he was guilty of the offence charged and that her evidence of the prior sales was truthful.

In paragraph 46 his Honour refers to a number of authorities. Then at paragraph 47 he says:

Given the circumstances of this case, the Crown could not have given the applicant any more notice than it did give him. However, it seems to me that the late notice denied to the defence the opportunity to prepare a full and adequate cross-examination of Mandich in respect of the matters to which I have referred, particularly the prior sales of heroin, and to consider what, if any, additional evidence might be led on behalf of the applicant in order to refute that evidence or to impugn Mandich’s credibility. In my respectful opinion, faced with an applicant in that position, the only course which was properly open to the trial Judge, in the exercise of his discretion, was to adjourn the trial, there having been no other way of ensuring a fair trial.

I would submit that those comments by his Honour are unimpeachable in their conclusions and directly relate to the situation at hand that faced defence counsel. In one of the cases that his Honour referred to, a decision of the Full Court of the Supreme Court of Victoria in McGill [1967] VicRp 79; [1967] VR 683 at 685, his Honour Justice Lush giving the judgment of the Victorian Full Court said this at the bottom of page 685:

It is essential to the administration of justice that the standards required to secure a fair trial according to law should be insisted upon. One of these standards is that an accused person must be given full opportunity to present his defence. In the present case that standard was not, in our opinion, observed. As the only effective sanction to safeguard the observance of the basic standards essential for the proper administration of justice is the failure of proceedings in which they are not attained, that result must ensue in this case.

I would contend for a similar outcome. Your Honours, if I could now move on to the other grounds. I appreciate that in respect of a number of grounds they were not argued before the court below, although the ground relating to the admissibility of the uncharged acts was argued and the subject of decision of the court. That particular issue, that is, the admissibility issue of the uncharged acts, is not pursued.

McHUGH J: You do not pursue that?

MR GRACE: I do not pursue that, but I do pursue a number of the other issues and say that notwithstanding the fact that no objection was taken – and one can understand how this trial developed as to the non-participation, in effect, of the defence after the decision of his Honour, which is not, as his Honour Justice Steytler and other members of the court said, to be commended in any way, shape or form.

I do not disagree with that but, nevertheless, one can understand why perhaps exceptions were not taken to the extent that they ought to have been at the time. One of those exceptions that ought to have been taken, we would submit, concerns particularly ground 5 which relates to the consideration of the effect of the plea of guilty before the jury of the co-accused Mandich. Could I take your Honours to page 97 of the application book. His Honour says at line 4:

Remember a few more things that I need to explain to you. The first is that the guilt of one person does not establish of itself or of itself enable you to infer or imply the guilt of another even though they’re charged in the same trial. You must consider the evidence relating to each person separately. You must consider the evidence relating to that person separately and you must reach separate verdicts in respect of the separate accused on the separate charges that they face.

That is the only reference in his Honour’s directions to the jury concerning the issue of the effect of the plea of guilty of Mandich. Could I take your Honours to the decision of the Victorian Court of Appeal in Fountain and Tootell [2001] VSCA 200; (2001) 124 A Crim R 100. At 109 at the bottom of the page – and I might say that in this case this concerned the issue as to evidence of a plea of guilty of a co-accused being put before the jury. At the third line from the bottom of page 109 the court said this:

In Moore Lord Goddard referred to the accepted principle that a man’s confession is evidence only against himself and not against his accomplices, and that if a prisoner pleads guilty it does not affect his co-prisoner. In Cowell, a decision of the Court of Criminal Appeal of New South Wales, Street CJ, after referring to Lord Goddard’s statement in Moore, said that:

“Trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.”

Then, in Burnett Nicholson, Owen and White JJ in the Court of Criminal Appeal in Western Australia said:

“It is certainly the case that where evidence of a plea of guilty of a co-offender is admitted the jury must be very specifically informed of the limited use that they are entitled to make of that piece of information.”

Now, compare that to what his Honour said at line 5 on page 97:

The first is that the guilt of one person does not establish of itself or of itself enable you to infer or imply the guilt of another even though they’re charged in the same trial.

It is difficult to understand what his Honour meant by that, but if it had some limited role as part of the evidentiary foundation of a finding of guilt, then it was clearly in error. What was required was a clear statement, as Chief Justice Street enunciated in Cowell’s Case, which is set out in that case of Fountain and Tootell which I have just read to your Honours.

I next want to move on to the accomplice direction which is the subject of ground 6. His Honour directed twice on this subject. At page 100 of the application book his Honour said this – in the first paragraph on page 100 his Honour talks about the fact that a number of people were “involved in the illegal activity”. At line 9 his Honour says:

What that means is they are in law what we call accomplices, if that’s true. So it’s important that you carefully scrutinise the evidence of people who are accomplices in offences allegedly because people who get involved with others in criminal offences have motives to – or may have, sometimes do, shift the blame, minimise their own position, maximise someone else’s position and so on.

There are all sorts of reasons why accomplices’ evidence has to be very carefully scrutinised because if they are truly accomplices then they truly have reasons to try and implicate others sometimes or exculpate themselves, shift the blame or what have you. So when you’re looking at those particular pieces of evidence . . . then carefully look at the evidence of the others relating to them, remembering that on the crown case they are accomplices.

That is all his Honour says at that stage. After the jury has retired there is an exception by the Crown to that direction. That appears at page 110. Ms Chong says at line 23, referring to another case:

It concerns an accomplice warning that was not given –

and urges his Honour to redirect on the issue. At page 115 at line 9 his Honour does redirect and he says at line 9:

I did also talk to you about what I call accomplices. On the crown case, as I said, these people, including Ms Mandich, were accomplices in criminal wrongdoing. In relation to the charge the subject of count 1, that is, of selling heroin by Mr Grakalic to Ms Mandich, it’s important that I stress that you – I warned you about using accomplice evidence unless you look at it very carefully for the reasons that I outline.

Where the crown really relies on that accomplice evidence as being a principle basis of any conviction then I need to say to you that you can’t convict on the evidence of an accomplice as, on the crown case, Ms Mandich . . . unless you’re satisfied beyond a reasonable doubt that that evidence of that accomplice should be accepted. So count 1 – you need to look carefully at the evidence of Ms Mandich and it’s only if you’re satisfied of its validity beyond a reasonable doubt that you could, I think, convict Mr Grakalic on count 1.

The simple submission about that is that that is just not an accomplice direction. There is no advice to the jury that it is dangerous to convict on the evidence of an accomplice unless corroborated and they should scrutinise the evidence with great care.

HEYDON J: Well, he did say it has to be very carefully scrutinised.

MR GRACE: Yes.

HEYDON J: We are playing on words a bit, are we not? They are not cast iron formula that would have to be parroted.

MR GRACE: No, they do not, but certainly the requirement that the evidence be corroborated and the requirement that it is dangerous to convict on that evidence, that information being conveyed to the jury, it is submitted, is a significant matter that was omitted from the direction and gives rise, it is submitted, to a miscarriage of justice. Indeed, the very case of Lambley [2001] WASCA 38 which is the unreported decision of the Western Australian Court of Criminal Appeal that Ms Chong relied on in asking his Honour to redirect specifies at paragraph 18 – this is a decision of that court which has been provided to your Honours. At paragraph 18 the judgment of the court states in the second sentence:

Although there is no rule of law or practice identifying evidence from a source of that kind as evidence which must be corroborated or as evidence upon which it is dangerous to convict without corroboration, it has been said that it is always the duty of a trial Judge to warn of the danger of convicting on evidence which is potentially unreliable . . . In all but the exceptional case it is necessary for a trial Judge to warn of the danger of convicting on
evidence of that kind unless corroborated by other evidence connecting or tending to connect the accused with the offence charged:

Pollitt v The Queen was cited as authority for that proposition.

McHUGH J: Your time is up. Thank you, Mr Grace. We need not hear you, Mr Dempster.

The applicant was convicted on two counts of offences relating to drugs. One count involved the sale of heroin to a police officer; the other, possession of heroin with intent to sell. The evidence against the applicant was very strong, so strong that in the Court of Criminal Appeal Mr Justice Hasluck held that, even if the trial was marred by legal error, no miscarriage of justice had occurred.

The applicant seeks special leave to appeal on two broad groups of grounds. One group is concerned with the directions or lack of them given by the trial judge. Not only was no objection taken at the trial concerning these directions or the lack of them, but they were not the subject of an appeal to the Court of Criminal Appeal. There is nothing so exceptional about them that would warrant this Court granting special leave to consider them when they were not sought at the trial nor the subject of consideration by the Court of Criminal Appeal.

The other group concerns matters that were raised in the Court of Criminal Appeal. They concern the refusal of the judge to discharge the jury or adjourn the trial after a co-accused changed her plea of not guilty and gave evidence against the applicant, including evidence of uncharged acts of drug dealing. The applicant had no legal entitlement to the discharge of the jury merely because the co-accused changed her plea and the Crown stated that she would be called to give evidence against the applicant. It was a matter for the trial judge’s discretion whether he should discharge the jury. It was also a matter for his discretion as to whether he should adjourn the trial as requested by counsel for the applicant.

For the reasons given by Justice Murray in the Court of Criminal Appeal, we think it was open to the trial judge to continue the trial and to refuse the adjournment. Justice Steytler thought that an adjournment should have been given but this only means, as is often the case where discretionary issues are involved, that more than one view of the matter is reasonably open. In our view, the judge’s discretion did not miscarry.

No legal error occurred in the conduct of the trial that gives rise to any ground warranting the grant of special leave. Nor in our view, given the strength of the case against the applicant, has there been any miscarriage of justice in this particular case. Accordingly, special leave is refused.

AT 11.12 AM THE MATTER WAS CONCLUDED