Mule v The Queen [2004] HCATrans 452 (12 November 2004)

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Mule v The Queen [2004] HCATrans 452 (12 November 2004)

Last Updated: 22 November 2004

[2004] HCATrans 452

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P12 of 2004

B e t w e e n -

PELLEGRINO PAUL MULE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 11.05 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 Laurie Levy & Associates)

MR R.E. COCK, QC: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J: Yes, Mr Grace.

MR GRACE: Thank you, your Honour. This application raises what I submit is an important point concerning the directions or comments that a trial judge can give concerning the exculpatory parts of an accused’s out-of-court statements to police in a record of interview and where that record of interview has been tendered in support of the prosecution case due to its inculpatory parts.

Your Honour Justice McHugh will recall the matter of Rowbottom that you sat on, on 8 October of this year, where a similar, or related, issue was raised. This application in part traverses some of the matters covered by that application, but it has a different focus. In this case the issue - - -

KIRBY J: Who sat in that application? And why do you assume that a case is remembered?

MR GRACE: Your Honour Justice McHugh and Justice Callinan sat in it.

KIRBY J: Was special leave granted in that matter?

MR GRACE: No, it was not. In this case the issue was a simple one. The applicant claimed that his admitted possession of 27 tablets of ecstasy was for his own use, but he denied any intention to sell or supply the drugs. That was clear statements made by him in his record of interview. That was the defence case. There was no other issue that the jury had to consider because there was admitted possession simpliciter.

Section 6(1)(a) of the Misuse of Drugs Act (WA), which I have provided to the Court, coupled with section 11(a) of the same Act, applied so that the quantity in the applicant’s possession was deemed to be in his possession with intent to sell or supply unless the contrary was proved; namely, that on the whole of the evidence it was more probable than not that the applicant did not have the intention to sell or supply.

The effect of the learned trial judge’s direction was to significantly undermine the potential for the jury to be satisfied that the contrary was proved. This gave rise to a substantial miscarriage of justice, in my submission. If I could go to the direction itself. It is set out in the judgment of the court below at application book page 34. Can I take your Honours to line 27 on that page. There his Honour said:

Now, the video cassette of the interview, given that it has been tendered by the prosecution for the purpose I have just explained, it also, however, becomes material, evidence, for the accused as well as against him; in other words, once it goes in, it can be used for all purposes, legitimate purposes.

Those parts of the interview that are relied on by the prosecution you can accept as being not disputed by the accused and they are, as I have said, admissions, concessions, if you like, made by the accused person, in the sense that I have just explained, against his interests.

But the video also contains other matters that the accused person relies on in his case and he relies on his denials of police allegations and also his assertions, for example, his assertion that he intended only personal use. He relies on those statements in the video. Of course, his denials of police allegations and his assertions, such as his assertion of intending personal use, are disputed by the prosecution.”

Then at paragraph 7 the court goes on to say:

The next section of his Honour’s charge, which followed immediately, is contentious. His Honour said:

“The denial – his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession –

Now, if we just stop there. I want to emphasise the words used, “do not have”. His Honour goes on:

if you like, of possession, for example, against interest, doesn’t have the same evidential weight –

and, again, the use of the word “doesn’t” –

but the accused’s denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit.”

McHUGH J: Now, Justice McLure thought that last sentence righted what she regarded as a misdirection up to that stage.

MR GRACE: Yes.

McHUGH J: What do you say about that?

MR GRACE: Well, it has to be - - -

McHUGH J: Because that is the critical point. I think you are on reasonably strong ground in saying that that is a misdirection up to that point, notwithstanding the view of the majority.

MR GRACE: Yes. Well, Justice McLure referred to the conflation of two different principles, but what it boils down to in the end is, what is the standard by which the last sentence in that impugned paragraph is to be judged? Is it the - - -

McHUGH J: Your point is that its content has been prescribed by what has gone before.

MR GRACE: Yes, that is the simple point.

McHUGH J: Yes.

MR GRACE: So you start off - - -

HEYDON J: Did you ask, or did your predecessor ask, the judge to redirect the jury? Was there a complaint about that direction?

MR GRACE: No, there was not.

KIRBY J: But why is not the approach that Justice McLure ultimately took the correct one, that is to say that this was an error, it was substantially corrected by what was said at the end, and that in any case there is no miscarriage in the case? I mean other than this, it did not occur to counsel at the trial to raise this point and object to the direction and, therefore, the question is whether a miscarriage has occurred.

MR GRACE: Yes. Well, the problem about it for the state of the law in Western Australia is that the majority of the court held the direction to be correct and the state - - -

KIRBY J: But if we were to indicate that we are inclined to agree with the approach that Justice McLure took, that would become known, and if the courts of Western Australia persisted with the approach of the majority, then there might be a case where there is a miscarriage of justice, or an apparent miscarriage of justice, which I do not have a feeling there is in this case.

MR GRACE: Well, in my submission, the simple answer is what I have perhaps already said, that the statement “you give them what weight you see fit” does not redeem the misdirection because it is qualified by the application.

KIRBY J: Now, you refer to a South Australian case. Is there any uncertainty of the law in other States of Australia that would warrant the Court resolving the point? You have Spence v Demasi. Does that touch on the issue that you wish to argue?

MR GRACE: That, in effect, adopts the approach that Justice Thomas adopted in Cox in Queensland.

KIRBY J: What I am looking for is something that would elevate the case into a case which we should take up. If you just look at the facts of this case, it does not scream out for our intervention.

MR GRACE: Well, that is why I mentioned at the outset the case of - - -

KIRBY J: Not that screaming out is necessarily the test.

MR GRACE: At the outset I mentioned the case of Rowbottom because - - -

McHUGH J: That was a strong case. That was the businessman’s case, was it not?

MR GRACE: Yes, that was the importation.

McHUGH J: Importation, yes.

MR GRACE: Yes. That was a much stronger case than this. Ultimately your Honours Justice Callinan and Justice McHugh were of the view there was no miscarriage of justice in that case, although it was an important point.

McHUGH J: Yes.

MR GRACE: The treatment generally across Australia of mixed statements contained in a record of interview or in out-of-court statements which are tendered by the prosecution does have varying application across the continent. In some States you have judges refraining from making
comments about the weight to be attached to such exculpatory parts of such statements, whereas in Western Australia you have the other end of the spectrum where the practice has been, it would seem, up until now to allow judges to direct the jury as a matter of law, which a jury would be obliged to follow, that such statements do not have the same weight.

McHUGH J: Yes, we might hear from you, Mr Cock.

MR COCK: Thank you, your Honours. So far as I am aware, in Western Australia there is no practice of the kind demonstrated by the trial judge below in this instance and it is the only case in which I am aware where a judge has, in fact, expressed the view in the terms set out in the judgment that my friend has taken your Honours to.

McHUGH J: May not the problem be, however, that the Full Court, having endorsed this direction, although by majority, that it will then become the standard direction in this class of case?

KIRBY J: Indeed, it would be the duty of the judges of Western Australia to observe what the Full Court has said, the majority have said.

MR COCK: I can only tell your Honours that so far as I am aware it has not become practice in Western Australia.

KIRBY J: It may not have had time to become practice, but if the Full Court of the State says something, the trial judges are duty bound to observe it.

MR COCK: I think your Honour has already expressed the observation that – your Honour’s comments already will also become known to the judges in Western Australia and, to the extent that there was an inclination for them to follow this judgment, I am sure they will be now looking more carefully at the judgment of - - -

McHUGH J: That may be, but part of the problem is we have said again and again that what is said in special leave applications is not binding on anybody.

MR COCK: I cannot take the debate any further, other than to indicate to your Honours that this case does not seem to have generated any particular interest. The views of Justice McLure are well understood. Your Honours have read our outline in which we rely upon it, more than the other judgments.

McHUGH J: Yes.

KIRBY J: I remember, Mr Cock, when you once turned up in Melbourne and made an announcement to the Court, very properly in your role as a prosecutor, and maybe that would be a way of dealing with this matter, if the matter is returned before the Full Court. I have never seen another Director do that, but it was a very correct thing for you to do on that occasion, and I have told my staff about it many times. Maybe that is the way to deal with this matter, briefly - - -

MR COCK: There was, in fact, a concession by me, I think, on this point below, despite the judgment. My friend, I think, draws attention to that.

McHUGH J: Yes.

MR COCK: I have made our position relatively clear, but I am prepared to make it as clear as your Honours think is necessary to resolve any uncertainty as to the law in this State.

KIRBY J: But what Justice McHugh has said is correct, that you cannot expect trial judges and Courts of Appeal elsewhere in the country to be following everything we say in special leave and, in a sense, it is undesirable that they should, because they have enough to read without that - - -

MR COCK: I do not think I can take it very much further, other than to indicate that our preference is with the judgment of Justice McLure. The case was argued by me below on that basis and I disavowed any reliance upon the English position if it was said to justify the statements that had been identified by the judge below.

KIRBY J: Would the proviso be properly applied in a case like this where the accused has not had, if that be the case, a proper direction according to law and, therefore, arguably the injustice of a trial that did not conform to the law?

MR COCK: Well, it is a question of whether your Honours, if you were to review the case on appeal, would come to the same conclusion as her Honour Justice McLure below, that she was satisfied that the jury would not have been left with any impression that they were bound to accord less weight to the self-serving out-of-court exculpatory statements. That would be a proviso point, in our respectful submission. That would be the position we would urge upon your Honours should the matter go to appeal.

Her Honour’s reasoning for that is set out at page 43 of the application book. She not only refers to the passage to which my friend has taken your Honours where, immediately after making the impugned statement, he correctly indicated to the jury that the question of weight was for them alone, but later reiterated in a very clear statement – and it was really the combination of those two separate observations, one immediately following the impugned direction and one later on, which, as I read her judgment, led Justice McLure to the conclusion that the jury would not have been left with any impression that they were bound to accord the weight in the way my friend contends.

KIRBY J: Well, I take the force of that, but, on the other hand, if there is one theme that has gone through recent cases in this Court in criminal cases it is the defence of the accusatorial character of the criminal trial and not saying things that reduce that character to the jury. Arguably, that is how the jury might have understood the direction given on this occasion.

MR COCK: Well, your Honour’s observation really is somewhat inconsistent with the finding of Justice McLure and I can only indicate that we would urge the latter upon the Court.

HEYDON J: Do you know whether the section of the interview that contained admissions was, as it were, severable from the section of the interview that contained denials of guilt? Were they jumbled up together or is it simply the case that the whole of the record of interview went in? Do you take a point that in truth the directions are really far too favourable to the accused because a mere denial in a section of an interview which is well away from a section that contains an admission should not be let in; it is unsworn evidence? Do you take that point?

MR COCK: I do not take that point, your Honours.

HEYDON J: Is it available - - -

MR COCK: I think it is available, but I did not take the point below.

HEYDON J: No, you do not take the point now.

MR COCK: I do not, your Honour.

KIRBY J: Prosecutors like to get these records in generally because generally they are very damaging to the accused, on the whole. The police resisted them for years, the video films, but once they are in now they are often very devastating, at least those that I have seen – a great weapon for the prosecution.

McHUGH J: Yes. Are you finished, Mr Cock?

KIRBY J: We are not stopping you.

McHUGH J: We are not stopping you.

KIRBY J: It is always a pleasure to hear you.

MR COCK: I have expressed that aspect of the argument from our written outline that I think I need to develop orally.

McHUGH J: Yes.

MR COCK: Otherwise I rely upon what we have expressed in writing, your Honours.

McHUGH J: Yes, thank you, Mr Cock. Mr Grace, what do you say about the proviso?

MR GRACE: Well, the directions have to be taken in context. At the start of his Honour’s directions to the jury he said, “I will direct you as to matters of law and you have to abide by my directions, whether you choose to accept them or believe them to be right or not”. Then, when his Honour goes on to direct the jury as to the issue of weight, one should be slow to assume that some subsequent qualification of that, if it be a qualification, would allow the jury then to somehow withdraw from the force of that direction, or to accept it as being of less force, in their consideration of the case. That is the first point.

The second point is simply this. This was this man’s defence. It was in the record of interview. The belief that it would not be the subject of a direction of this manner no doubt influenced his decision whether or not to give evidence. So you have a belief in the state of the law which the applicant was intending to rely upon at the start of the trial which has been subverted by the judge’s directions during the course of his charge.

McHUGH J: Yes, there will be a grant of leave in this matter, but speaking for myself there are some aspects of the case that I would like developed in the argument on the appeal, that is, first, whether in this class of case where a video is tendered, whether or not the proper practice should be only to put the admission parts in when that is mechanically possible. The second point is whether, once a statement goes in, the whole of the statement is evidence or only the admissions and those parts of the statement which relate to the admission, that is to say whether the independent parts of the statement are admissible or are to be given weight by the jury.

KIRBY J: Those points not having been taken at the trial or in the Court of Criminal Appeal, in my view, the appellant should be protected in relation to any unfairness that might come out of the Court going into those matters that are not really part of the appellant’s case.

MR GRACE: If the Court pleases.

AT 11.25AM THE MATTER WAS CONCLUDED