Suteski v The Queen [2003] HCATrans 493 (2 December 2003)

--

Suteski v The Queen [2003] HCATrans 493 (2 December 2003)

Last Updated: 16 December 2003

[2003] HCATrans 493

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S66 of 2003

B e t w e e n -

SNEZA SUTESKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 10.48 AM

Copyright in the High Court of Australia

MR B.H.K. DONOVAN, QC: May it please the Court, I appear with MR P. BYRNE, SC for the applicant. (instructed by R J Walsh Murphy & Roskov)

MR G.E. SMITH: If the Court pleases, I appear with MS N.J. ADAMS for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Donovan.

MR DONOVAN: This application, your Honours, involves the meaning of “against the interests” in sections 65(2) and (7) of the Evidence Act.

GLEESON CJ: That is a defined expression itself?

MR DONOVAN: Yes, it is. That is why I referred to subsection (7) as well. I was going to come to the Act in a moment. Can I just make some preliminary comments and I will come to those sections then. Second, what role does the Act’s underlying principle of reliability of evidence play in the interpretation of the section? Now, if I can just digress for a minute, before I come back to the argument, the respondent’s submission refers to certain matters which were set out in the Law Reform Commission Report, and it says this at page 285 – I do not propose to take your Honours to it necessarily, but just if I may briefly mention it – at 285 of the appeal book, line 40:

“The hearsay rule should not be relaxed in favour of the prosecution, however, unless specified guarantees of reliability were met – ”

Now, one of those specified guarantees was the phrase:

“it was against the interests of the person who made it” - - -

GLEESON CJ: That is defined on page 28?

MR DONOVAN: Yes, but it is important to see that the context of the phrase is associated with the principle of reliability. So it does not stand alone in the way that we say the Court of Criminal Appeal said it did, or indicated it did. The Law Reform Commission – and again, I am on page 285, line 50, now:

adopted an approach that it described as the “Best available evidence” with a qualification in relation to criminal trials –

At 286, line 10, the qualification is:

Where the maker is unavailable, some guarantees of trustworthiness should be required - - -

GLEESON CJ: That word “guarantee” is consistently overstated, I think.

MR DONOVAN: Your Honour must allow me to place a little emphasis on it.

GLEESON CJ: I know you do, but the guarantee of the reliability of human evidence might be a contradiction in terms.

MR DONOVAN: A little idealistic, your Honour, yes. I take the point. Can I come back to the other issues that arise? Assume that reliability does play a part, how does the principle of underlying reliability apply to an accomplice? Did the Act intend accomplices’ statements against interest to be within the ambit of section 65, especially bearing in mind the underlying unreliability of an accomplice’s evidence? Now, that has been a traditional attitude to accomplice evidence and, in addition, the natural intent of an accomplice to minimise his position by blaming others.

GLEESON CJ: This would not only apply to accomplices. If your argument is right, it would apply to categories of people in the interests of - well, in certain interests, we have now retreated from identifying certain categories of people as being unreliable, but there are a number of forms of unreliability apart from that that attaches to accomplice evidence.

MR DONOVAN: Indeed, although, perhaps it might be fair to say, your Honour, that accomplices probably are still categorised as having potential unreliability, anyway.

GLEESON CJ: But that makes it necessary for you to say that there is an implication in the Act, does not it, that means that the words are not to be read literally – the words of the definition of evidence against interest?

MR DONOVAN: That may be so. I wanted to develop that a little bit because if one looks at section 65(2)(a), (b) and (c), they do contain that idea of reliability within them. It is true that (d) on its own does not, but when one looks at the purpose and intent of - may I say, these words – the best available evidence – that is going to be important, section 65, the “best available evidence” used by the Law Reform – and put aside the word “guarantee”, but perhaps use the word some “evidence” of reliability, some “assurance” of reliability.

GLEESON CJ: Reasonable assurance.

MR DONOVAN: Yes. Then, certainly, (d) – perhaps in (d) it should be read in the way that your Honour has said, that some implication is needed. There is a more refined way of looking at it, though, which I will come to. Can I, just dealing with the introduction, deal with these next aspects. Next – and I am now moving into unfair prejudice – what are the principles of unfair prejudice which apply when a prosecutor declines to call a witness and instead tenders an ERISP - that is the record of interview - so that no cross-examination is available and, more importantly, the jury is deprived of seeing and assessing the witness.

I am sure your Honours will recall your Honour the Chief Justice sat in Adam. In Adam, there was an opportunity for the witness to be cross-examined and for the jury to see the witness. In this case, the jury neither saw the witness, nor were any questions asked of the witness by cross-examination.

GLEESON CJ: Mr Donovan, how would your argument about the construction of section 65(2) operate in relation to paragraph (a), in the case of an accomplice who was under a duty to make the representation?

MR DONOVAN: Can I answer that by avoiding it first by saying it is hard to think of a case where an accomplice would be under a duty to make it, but let us assume - - -

GLEESON CJ: I am not so sure about that. If you take corporate wrongdoing, for example, there could be a lot of people who are under obligations to give information.

MR DONOVAN: Yes. I was not thinking on those lines. It may be that factors such as the ones that I have just raised may need to be looked at. It is difficult for me to give an answer on the run, so to speak, because I had not turned my mind to that properly, and I should concede that. I suppose, as Mr Byrne has just pointed out to me, it does come back to the question of a discretion, and the two aspects, both the interpretation and the discretion, are in this case quite closely interlinked.

GLEESON CJ: I understand that, but the very existence of the discretion tends against the implication, does it not?

MR DONOVAN: It may. Of course, if that is the case, then, in the factual circumstances of each case, one has to look at the discretion a little bit more carefully than what we would suggest is a fairly cursory approach that the Court of Criminal Appeal took, with due respect.

GLEESON CJ: If the ultimate safety net is the discretion, then you do not need to torture the language of section 65.

MR DONOVAN: Perhaps not, your Honour, and perhaps that is a way which I would be prepared to consider it. But I do want to deal with some aspects of the actual section, because this question of what is against interest does have some tricky points, we would suggest.

Now, there is a further point I need to make as part of the introduction, and it is this, that in this case the prosecutor, having embarked on the course that he did, then said to the jury in the address – and therefore, we say, presented the case in the interests in this way – that the most reliable and cogent – whatever it was the words were – evidence was that given by Sakisi in the record of interview and the ERISP, so that the primary thrust of the case became what was in the ERISP, rather than what was the oral evidence from other witnesses.

The evidence which was admitted is set out, your Honours, at page 229, and it is important just if I might spend a moment looking at what was set out there. First of all, Sakisi’s record of interview was made on 25 January 2000, some 36 days after the killing, and perhaps seven or so weeks after these alleged conversations between Sakisi and Suteski had taken place. So there is quite a time gap.

We say that it is well recognised how difficult it is to remember precise words used by a person even after a few days, and yet the applicant’s conviction for the murder in this case depends upon the precise words that she used, because these words were the words that the jury were asked to infer led to the scope of her intention or common purpose.

In the ordinary course, it may be – and just moving to the discretion, for a moment – that the inability to cross-examine is not something, as the court said, which automatically leads to rejection of evidence on the basis of unfair prejudice, but, in an area as slippery as recall of conversation, matters of cross-examination and opportunity to emphasise a witness’s uncertainty as to memory of what someone else has said has greater importance. Unfair prejudice may therefore be more readily ascertained, and the same goes for the witness’s opportunity to hear and absorb, so that cross-examination about opportunity is important.

GLEESON CJ: Just to put all this into perspective, there was no dispute, was there, that your client wanted the victim injured?

MR DONOVAN: That is right.

GLEESON CJ: And the purpose of wanting him injured was so that he would be out of the way while she continued with her defalcations for a certain time?

MR DONOVAN: Yes. There was - - -

GLEESON CJ: For how long was it necessary for him to be out of the way?

MR DONOVAN: There was contradictory evidence about that.

GLEESON CJ: Approximately?

MR DONOVAN: Some conversation suggested a couple of days, some suggested two weeks.

GLEESON CJ: It would have been a fairly clinical operation, would it not, that inflicted upon him just enough injury to ensure that he was safely out of the way for long enough for her to commit these defalcations, but was not subjected to grievous bodily harm?

MR DONOVAN: That does not necessarily follow from the evidence, your Honour. I take your Honour’s point, and I do not want to debate it at length, but it does not necessarily follow from the evidence. So, for example, if one looks at these answers – and perhaps that is what I might deal with now, because these answers themselves, in the record of interview or the ERISP at page 229, actually contain conflicting answers, raising those very issues that your Honour the Chief Justice raised with me. Can I just point this out – some of the answers suggest minor injury. For example, if your Honours look at 229, line 45:

somebody out of work for a little while.

Line 50:

Just give him a little touch up - - -

GLEESON CJ: If you are a professional thug, your idea of what constitutes “a little touch up” might be different from somebody else’s idea.

MR DONOVAN: But she is not a professional thug, of course, and these are supposed to be her words.

GLEESON CJ: The person who was being engaged was.

MR DONOVAN: I do not know whether that is necessarily so, your Honour. Certainly, he said that he was on drugs at the time when the event took place. I am not really certain that the evidence would support your Honour’s point, but I understand. The important thing is that there are conflicting words within this ERISP, and she, of course, did not directly engage the assailant. That is an important matter to bear in mind, so that that “Just give him a little touch up”, if said by her, suggests minor injury; just enough to hurt him to be out of work for two weeks, maybe something more serious. A third category – and this appears at page 231, and may well be the most serious - - -

GLEESON CJ: “Break his knees or his legs?”

MR DONOVAN: I conceded before your Honour said it, but that leads to other problems, because this question and answer, first of all, is leading and it is very close to the evidence of other parts of the ERISP which his Honour the trial judge rejected. Second, as the trial judge said of this and the other passage, the answer did not have an unprompted response from Sakisi. It was objectively against his interest, but its weight was less substantial because he may not have fully perceived that it was against his interest. May I also add that the answer he has given:

“She wanted something like that” –

is not an answer about what her words were, but an answer of what Sakisi’s belief was about what she wanted, and it is in a fairly guarded form.

Can I now deal with the question of “against the interests of the person”. As I pointed out as part of the introduction, we say that the very point of the test against the witness’s interest is associated with questions of reliability. If a witness thinks that he is putting the responsibility onto someone else, and thereby he lessens his own responsibility, the reliability of the questions and answers becomes at least more doubtful. Here, if one looks at what Sakisi has done, he was seeking to minimise his role. We submit that the appropriate interpretation of the section requires an examination of the mind of the witness and an examination of what advantages the witness may have seen, or may have believed applied to the answer he gave.

In this case, by putting the responsibility for the seriousness of the matter onto Irani as the perpetrator and onto Suteski as the instigator, there is a strong inference that Sakisi saw himself as minimising his involvement. Your Honours will recall I said at the beginning this question involves a test of whether it is purely an objective test for section 65(2)(d), or whether it does require a look at the reality and the subjective element of what the person believed they were doing.

GLEESON CJ: Or whether, alternatively, that comes into the discretion.

MR DONOVAN: Indeed, yes, that is a third way. I wanted to suggest to the Court that it does also catch up, or may well catch up, that first part. We say that the essential part of the test against the interest of the witness is, at very least, not purely objective, but also involves some subjective factors. We accept that it is different from 2(c), as the trial court held, but let me point this out. The trial judge said that Sakisi’s position as an accomplice - and this comes back to that accomplice situation, but dealing with it as part of the facts of this case – made it difficult for him to have that degree of confidence in his account that it could be characterised as highly reliable. That is a paraphrase of 2(c), but it follows from that, in light of his Honour’s ruling, that Sakisi has been held to be not a witness whose evidence can be seen as being reliable.

We say that a simple objective approach is too simplistic and that the court must take into account what was in the mind of the person at the time. Justice Wood said in the Court of Criminal Appeal – this was how his Honour put it – that:

despite any mixed motives which [Sakisi] may have held, any answer which tended to be incriminatory of him was one made against interest.

Now, we say that test is just too simple and it is wrong.

GLEESON CJ: It is based on the words, is it not?

MR DONOVAN: No. I appreciate, your Honour, there is an argument to that effect, but we say that if one simply - - -

GLEESON CJ: It is a deeming provision, in part. It says:

a representation is taken . . . to be against the interests of the person who made it if it tends:
. . .

(b)	to show that the person has committed an offence - - -

MR DONOVAN: We would say that that needs to be seen in the context of the intent of the person as well. I appreciate the argument against me, but that is how we put it to the Court. I have already dealt, your Honour, to a large degree, with the question of unfairness and prejudice. May I just point these things out.

In Adam, as I pointed out earlier, there was an opportunity for the jury both to see the witness and to have questions asked. In this case, that did not happen. It is not appropriate, under the discretion, for a prosecutor not to call the witness and just tender the record of interview. The
procedure in Adam has been held by this Court to be appropriate. This takes the whole thing a step further.

May I just point out that this case, as we said at page 276 of our written submission, changes fundamentally the approach which criminal trials will have in the future in a way that has never been apparently envisaged before. I appreciate that the Court of Criminal Appeal took the view that that is what the Act said on its face, and that was sufficient, but we say it is not sufficient. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Donovan. We do not need to hear you, Mr Smith.

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

AT 11.09 AM THE MATTER WAS CONCLUDED