Urbanec v The Queen, Roberts v The Queen [2005] HCATrans 52 (11 February 2005)

--

Urbanec v The Queen, Roberts v The Queen [2005] HCATrans 52 (11 February 2005)

Last Updated: 21 February 2005

[2005] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M36 of 2004

B e t w e e n -

CARL HEINZE URBANEC

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Melbourne No M39 of 2004

B e t w e e n -

WERNER PAUL ROBERTS

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 10.02 AM

Copyright in the High Court of Australia

__________________

MR P. F. TEHAN, QC: May it please the Court, I appear with my learned friend, MR W.E. STUART, for the applicant, Urbanec. (instructed by Lewenberg & Lewenberg)

MR D.J. ROSS, QC: If the Court pleases, I appear with my learned friend, MR W. DOOGUE, for Mr Roberts. (instructed by Doogue & O’Brien)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR W.G. GILBERT, on behalf of the respondent in each of these two matters. (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J: Mr Tehan, is there any arrangement between you and your colleague as to division of argument on your side of the record?

MR TEHAN: We have not come to any formal arrangement, no, your Honour.

KIRBY J: We are just going to steamroller on.....

MR TEHAN: Well, I would not say “steamroller on”, your Honour. Special leave should be granted in this case for four reasons. Firstly, the process by which the trial judge pre-emptively, globally and, in the absence of the jury, upheld claims of privilege by two key police witnesses was wrong. The endorsement of that process by the Court of Appeal at a time when that court knew these witnesses had admitted their corruption needs to be corrected by this Court.

Secondly, the credit of these witnesses, in particular the witness Rosenes, was, as events unfolded, a fact in issue and relevant to facts in issue. The judge’s ruling in this regard was wrong, as was its endorsement by the Court of Appeal. Thirdly, this case is a suitable vehicle for this Court to recognise the need to relax the collateral evidence rule so that corrupt police officers can be cross-examined upon their corruption. Finally, the Court of Appeal was wrong in finding that there was no miscarriage of justice in this case, particularly when the court knew that the two Crown witnesses had by their guilty pleas admitted their corruption.

KIRBY J: Now, if we were of the view that the fourth matter was correctly decided by the Court of Appeal, we would not need to get into all those earlier interesting and potentially significant matters. Is that not correct? If one came to a view - - -

MR TEHAN: That there was no miscarriage - - -

KIRBY J: - - -that whatever the wrongs of the.....that might have happened in the trial, the Court of Appeal were correct in the end to say that the matter was one where conviction is inevitable and the proviso was appropriately applied, that would be it, would it not?

MR TEHAN: We respond to that by saying that, had the corruption or alleged corruption of these police officers been put before the jury, it could never be said that conviction was inevitable, and indeed by the time - - -

KIRBY J: Well, get out of my mind, therefore, if you can, the matter that concerns me. As I understand it, your thesis, your theory of the case, was that the police had corruptly provided the cocaine to your clients, but the telephonic interceptions indicated that your clients were talking about presents, about wooden varnished items which were in fact items that.....and about getting it through Customs. That therefore seems completely inconsistent with your alternative theory of the case. Now, if I am wrong in that, please disabuse me, because that seems to me, if it is correct, to be fatal to your proposition that point 4 was wrongly decided.

MR TEHAN: It was not just the proposition that the police witnesses were the criminals, so to speak, in this case. It went further. There were other facts such as the ability of Rosenes to provide Roberts with funds, which was a matter in issue, and - - -

KIRBY J: Well, that might be a criminal offence, but the offence with which your client was charged and convicted, count 1, was importation.

MR TEHAN: Exactly - - -

KIRBY J: The matter that was the subject of the intercepts was repeated discussion (a) of getting it through Customs, (b) of the wooden items, (c) to make sure it is varnished and so on, all of which is critical and appears to be fatally inculpating of the importation of which you were convicted.

MR TEHAN: The point is, your Honour, that the jury were not told anything and the witnesses were not able to be cross-examined in any way - - -

KIRBY J: Well, that may be so. There may have been.....here and so on, but it does not affect the fact that your clients were rightly convicted of the offence of importation.

MR TEHAN: The real problem, your Honour, is that they really were not able to put their defence properly. Their defence properly put was these police officers are the criminals, and one of the reasons why we say they are criminals is because months before in the case of Rosenes, he was saying “I’m just like any other Australian, I’m an ordinary wage earner”. The court knew, counsel knew, the Crown said it was true and correct that he was engaged in large-scale trafficking in narcotics, the manipulation of people and dealing in large amounts of money.

Now, had the jury known that and indeed, by the time the Court of Appeal – the Court of Appeal certainly knew it because they had pleaded guilty, then who is to know what view the jury may have taken of the case? It could not be said that the defence was, as our friend says, fanciful in those circumstances, and therefore - - -

HAYNE J: There is a question of timing in there, is there not? At the time of trial, the police officers concerned denied the wrongdoing to which they later pleaded guilty.

MR TEHAN: No, it was never put – at the time of trial - - -

HAYNE J: At the time of trial they denied it.

MR TEHAN: They were charged.

HAYNE J: They were charged, not convicted - - -

MR TEHAN: Not convicted - - -

HAYNE J: - - -and did not admit the wrongdoing to which they later admitted.

MR TEHAN: True, that is correct.

HAYNE J: In a voir dire they said they would take the privilege against incrimination, to refuse to answer any question directed to those subject matters.

MR TEHAN: Yes.

HAYNE J: Before the jury, all that could have happened is they could have been asked those questions and they would have taken the privilege. Is that clear?

MR TEHAN: Well, we do not know, your Honour.

HAYNE J: Oh?

MR TEHAN: Well, we do not, your Honour.

HAYNE J: Indulge me and let me assume that they maintained what they said in the voir dire. The jury could make nothing of that refusal. Lawfully they could not take it to account, could they?

MR TEHAN: It is a right that they had, and - - -

HAYNE J: But the point is, lawfully the jury could not take it to account.

MR TEHAN: Yes.

HAYNE J: Where then does the argument go?

MR TEHAN: The argument goes - - -

HAYNE J: Save by building in the later acquired knowledge.

MR TEHAN: What happened here, your Honour, was far wider than simply the upholding of a claim to privilege. The effect of the ruling was summarised by his Honour at application book page 29 in these terms:

you must cross-examine on the basis that the summaries don’t exist, you’ve never seen them, you’ve never heard of them, you know absolutely nothing about any of those matters.

We would submit that, firstly, that ruling extended the protection in an impermissible way, in a global way.

HAYNE J: Why?

MR TEHAN: It gave a - - -

HAYNE J: On a voir dire they have said, “We will take the privilege”. Why can the trial judge not say to counsel, knowing that and knowing further that the jury may not take this information to account lawfully, “Do not raise it”?

MR TEHAN: But this went further than that.

HAYNE J: Oh?

MR TEHAN: The proper way that the procedure should happen is that, each question should be asked sequentially and the judge should determine the validity of the taking of the privilege. That did not happen. The witnesses would, so his Honour advised them, be asked no questions or have to give any answers to questions concerning any of the matters in the summaries of evidence. The cross-examination was effectively gagged.

But what happened on trial – because, firstly, the witnesses were called by the Crown and matters were put to them which had arisen out of the defence opening, and they denied those matters. That occurred in circumstances where the prosecutor knew that what was contained in the summaries was true insofar as the Crown were concerned, and he had indicated that he would accommodate the defence if admissibility was sought of the summaries of evidence. The critical thing was the cross-examination of Rosenes. Without any - - -

KIRBY J: I have to say to you, subject to – this is just my own opinion. You have some very interesting and potentially important points, but what worries me is if the case came up to our Court, we would not have the proviso argument, and on the face of things, it looks a very strong argument if the Court of Appeal did not err in what is its ultimate and critical.....and that we would be combing through the evidence of his trial and trying to understand the facts the way the Court of Appeal did, so that really is the matter. As far as I am concerned, that is the burden you have to - - -

MR TEHAN: The credit of Mr Rosenes - - -

KIRBY J: You say you could throw a lot of things before the jury and the proceedings, but the bottom line is your clients were intercepted and they talked of getting it through Customs. They identified the wooden items, they identified the varnish, and all of this hangs together as the offence of importation of which they were convicted. And if that is the conclusion that is open, then the conviction was inevitable just on that, and the.....on the path are not determinative – they are not - - -

MR TEHAN: It does not say anything about the proposition that Rosenes gave Roberts $20,000.

KIRBY J: But what does that matter?

MR TEHAN: It matters - - -

KIRBY J: If they imported, they are guilty of the offence, they were rightly convicted.

MR TEHAN: It is a fact along the way to the defence in relation to importation.

KIRBY J: It cannot excuse them of importation. That is a criminal offence made by the Federal Parliament of bringing it across the barrier - by their own mouth in their interceptions.

MR TEHAN: I understand that, your Honour, but in order to properly understand the defence, that was one matter, as was the motive to “get Fraser”. Now, they are the sorts of things which could have come out - - -

KIRBY J: Dust in the eyes. It is not relevant to the guilt of the offence of which they were charged against a federal statute.

MR TEHAN: It is relevant to facts which were in issue in this case in the sense that the defence raised these matters and was unable to call in aid factual material that would have assisted in establishing that defence. We would go further and say that Rosenes himself, emboldened by the blanket global ruling that he would not be cross-examined at all on the summaries - - -

KIRBY J: Potentially a very important point. I am with you with that. At least with me, you do not have to persuade me that is an important point. To stop an accused cross-examining a police witness as far as I am concerned is a very important and significant point. My problem is it seems to lead nowhere because of the words of your own client’s mouth and also of the other accused.

MR TEHAN: Your Honour, the Crown thought these witnesses were important; the Crown called them. The Crown thought the defence had to be rebutted, and the Crown did so by calling them in-chief to do so. “Have you ever been engaged in any scheme to set up Andrew Fraser?” “No”. “Have you ever given any money to Roberts to travel overseas?” “No”.

KIRBY J: How does this contradict the telephonic interceptions?

MR TEHAN: It may not - - -

KIRBY J: I understand forensically it is significant and so on, but in the end we have to ask was there a miscarriage because of all the issues that you want to argue? And if out of your own client’s mouth they were indicating that they were involved in an importation, the very items prepared in the very way that was subsequently found in their possession, then the bottom line is they were properly convicted of importation, a federal crime.

MR TEHAN: The miscarriage lies in their inability to properly put their defence. That is where the miscarriage lies - - -

KIRBY J: But.....defence that their own language and objective indicia implicate them in the very crime of which they have been convicted by the jury.

MR TEHAN: The defence of the applicant Urbanec was derivative at least in the sense that it relied upon Roberts’ defence, but in effect it was that Roberts was set up, that the criminals were the police. The jury well might have accepted that if they knew that these very police officers were in fact criminals, that within months - - -

KIRBY J: But how could that excuse them from the offence of crossing the barrier, crossing the border with a narcotic drug, with the illegal drug? What you can say possibly.....be a matter in mitigation of sentence or it would be taken into account in that way, or there are other offences of which the police are guilty, but it does not mean there has been a miscarriage in convicting him of the offence of importation.

MR TEHAN: Roberts gave evidence that he did not import into Australia.

KIRBY J: Yes, but it is powerful evidence. The Court of Appeal said.....

MR TEHAN: In any trial, there is evidence always one way and evidence the other way. The real miscarriage, as we say, here is that we were gagged, we were stopped from having the tribunal of fact know that these police officers who came in – Rosenes spoke of his police career, how repugnant he felt at suggestions of impropriety being put to him, how his bank records were an open book. He did so in circumstances where he knew he would not be asked one question on the serious drug trafficking he had within little less than four months earlier been involved in. Now, our submission is that a cross-examiner, faced with a witness like that, should not be gagged, and that is where the miscarriage is.

KIRBY J: That is a very powerful argument.

MR TEHAN: Your Honour keeps saying where is the miscarriage. That is where it is, that the process of trial by jury went fundamentally wrong here. And it is wrong to look at the miscarriage - - -

KIRBY J: One of the accused gave evidence. Was that your client?

MR TEHAN: Roberts gave evidence.

KIRBY J: And was he questioned on the interceptions?

MR TEHAN: Yes, he was.

KIRBY J: What was his explanation? “It wasn’t me” – false, misunderstood, confused, never did it?

MR TEHAN: Mr Ross will answer that matter, your Honour. But there was explanations given, as I apprehend it, relating to those matters. So that, your Honour, really is the nub of the case, to answer your Honour in relation to what is the miscarriage argument.

KIRBY J: You say there is a point on the credit of witnesses and the fact in issue. Was that touched upon any way in the recent decision of the Court in - - -

MR TEHAN: In Nicholls?

KIRBY J: Nicholls and Coates. Is there anything in that that helps you on that point?

MR TEHAN: What helps us insofar as Nicholls and Coates is concerned is that four Justices of this Court have taken a more relaxed liberal view of the collateral evidence rule.

KIRBY J: The majority might say.....principle.....

MR TEHAN: And we would say that that gives us some comfort in terms of this case. But we would go further than that. We would say that what happened here was that the application of the collateral evidence rule was simply another nice evidentiary device to stop these witnesses from being cross-examined. The mere fact that they took the privilege of self-incrimination did not, in our submission, stop counsel from using this material which was in their hands, particularly when – and this was at the critical stage – Rosenes staked his reputation on the truth of the evidence that he gave when he said the things to which I have already referred. It was at that point that the trial went wrong, fundamentally wrong, and it is at
that point that counsel would have been quite entitled to cross-examine on the material in the summaries and tender them in fact.

And indeed, agreement had been reached between the defence and the Crown that this material could be put in a form which by consent would be admitted before the jury. We would submit that the taking of the privilege did not itself prevent the material from being admitted because the privilege relates to the witness’s own testimony which may impeach or incriminate himself but, in our submission, the taking of the privilege, if validly upheld – and the Court will understand what we say about that, that it should not have been just this global blanket bar – does not prevent a cross-examiner from eliciting evidence of the bad character of a witness. In fact, the bad character of – it is only by virtue of statute that the bad character of an accused is not generally admitted in a criminal trial. Bad character of any witness in any criminal trial is a relevant matter, and it could not properly be explored here because of the global gagging of cross-examination.

What the judge should have done was let events unfold, let the witness – who is to know whether Rosenes might have admitted some things or denied some things or taken objection to some things. One does not know.

GUMMOW J: I think you are airborne, Mr Tehan, but the red light is on. We had better hear from Mr Ross. Yes, Mr Ross.

MR ROSS: If your Honours please, I had the good fortune of having a conversation with Mr Tehan yesterday and I told him that our proposition was far more simple than his, and without wishing to undermine what he said, we do not have to go over that again. But if it be assumed that his Honour Judge Hart was right in allowing the claim of privilege, if you like, by the police because they had not yet been convicted of anything, they had been charged, what then happened was that there was cross-examination on behalf of Mr Roberts by Mr Traczyk that came about in this way. You understand that Mr Roberts’ position was “I came to an arrangement with Rosenes. I didn’t have the money to go to Benin. Rosenes paid the money and the purpose of it was to set up a man called Fraser”, a solicitor, who has subsequently been convicted. So that was his position and that had been opened.

Assume then that Judge Hart got it right, got his rulings right, but then what happened was when Rosenes gave evidence, he said this on application book page 33:

as a result of that, you in fact gave Mr Roberts $20,000 to finance just the trip overseas, not to purchase drugs, but just the trip overseas?---Well, if I had $20,000 in my possession or in my bank account, you can gladly look at my bank records. I’m in overdraft. I have been in overdraft –

And then his Honour Judge Hart asks the question:

You deny that?---I deny it emphatically, but I make available the offer that you can look at my bank records and see that I live like every other Australian, or 85 per cent of the Australian population from wage to wage.

And on it goes:

You agree that you had access – I’m not suggesting it came from your own money, you had access – ?---I had no access to $20,000.

And then there was reference to the police fund. Now, what we say about that, from those pages in the application book 23 and 24 – let us assume that his Honour was right in the ruling that he made – that position of privilege has by Rosenes been abandoned, and your Honours know that the defence was trying to say, “You, Rosenes, have been a drug dealer, you have heaps of money (we do not know whether it is in your bank account or in cash under your bed)”. Subsequent events have proved that that is correct, but what we say about those answers is that it meant that the privilege had, in effect, been abandoned. I do not know whether “waiver” is the proper word, but he had put in issue his access to amounts of money.

Now, the next question that arises is this. If that be true, if he had abandoned the privilege by that assertion and it was unprovoked, it was simply a question of Mr Traczyk saying, “You have the money, have you not?---No, I have not, I have never had it”, and we know that to be false.

KIRBY J: Yes, but, Mr Ross, what is your answer to the questions that I asked Mr Tehan? I mean, you have me with you, I am in your hands - - -

MR ROSS: Thank you. Well, that is a start, your Honour.

KIRBY J: - - - but what is the answer to the ultimate question in the case?

MR ROSS: The proviso question?

KIRBY J: Yes.

MR ROSS: Well, we say that that - - -

KIRBY J: What does your client say in cross-examination, concerning these interceptions?

MR ROSS: Yes. He says this, “I never made an importation”.

KIRBY J: Yes, but, first, he was intercepted talking about getting it through Customs several times - - -

MR ROSS: Yes, that was by - - -

KIRBY J: - - - second, he was talking about the wooden objects and eight of them, which were subsequently the very objects in which it just happened that the cocaine was found, and, thirdly, he was talking about the importance of varnishing so they would trick the Customs.

MR ROSS: Yes.

KIRBY J: I mean, really, we did not come down in the last shower here. These are powerful objective statements and evidence that inculpate your client in the federal offence of importation.

MR ROSS: Yes.

KIRBY J: That is the only one that is relevant.

MR ROSS: But you understand this, your Honour. He said, “I made some conversations about the wooden figurines. That was by arrangement with Rosenes, that was part of it”, and if you have a look at paragraph 29 of the judgement of the Court of Appeal, it effectively sets out his position that the plaques were presents for his wife.

What we say about your Honour Mr Justice Kirby’s proposition that we are going to be doomed because notwithstanding the fact that we have a good basis for getting special leave, we are doomed because of the proviso – the proviso will only apply when its not a bootstraps argument, when it does not come by saying, “The prosecution evidence is so strong that a conviction was inevitable”. What we say about that is, if we had been able to run the trial properly, and we were able to answer the allegations that were made against us in the way that we wanted to, and prove them, if you like, by similar fact evidence in the way that it is so regularly done by the prosecution against the defence, then it was by no means clear that the conviction was inevitable. The proviso would not apply.

HAYNE J: The Court of Appeal at paragraph 127 and following, on pages 230 and following, assemble what for the court seemed to be, I assume, the chief aspects of the evidence going to the proviso, beginning
with the three recorded confessions of Mr Roberts, various other evidence inconsistent with or contrary to Mr Roberts’ evidence, including the various telephone intercepts to which reference has already been made.

MR ROSS: Yes, there is no doubt that they went into that, but what we say is - - -

HAYNE J: In the face of that, why is conviction not inevitable?

MR ROSS: With respect, if we take things as a matter of logic, let us assume that Mr Roberts was able to support his position by properly being able to cross-examine Rosenes, if only because Rosenes had abandoned his position of privilege. Let us assume that that had happened. Then what we say is, you would then cease to have what was seemingly an unassailable prosecution position, because the Court of Appeal rightly said, just on the evidence that was there before it, that Rosenes had made the denial and that the denial had to be accepted. All true, but we say that the trial having miscarried in the way that we submit is the proper way of looking at it, then you cannot, as a matter of logic, say, “Nevertheless, the evidence was so strong that the proviso is inevitable”.

We say, look at it the other way. Let us assume we had been properly able to cross-examine. That would have been a horse of a different colour, and so questions of the proviso now do not apply. If we have this right, the proviso questions have no application.

GUMMOW J: Yes, Mr Ross.

MR ROSS: I think that is all, your Honours.

GUMMOW J: Thank you.

MR ROSS: If the Court please.

GUMMOW J: We will take a short adjournment.

AT 10.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.43 AM:

GUMMOW J: We do not need to call on you, Mr Holdenson.

The applicants in these matters that were heard together presented a number of potentially significant issues in support of their applications for special leave. In particular, they sought to argue that the trial judge erred in the ruling he made concerning the limits on the cross-examination of police witnesses who the accused alleged were corrupt and who subsequently were convicted of criminal offences. The applicants complain that the Court of Appeal’s orders left such errors unrepaired.

These points may raise important questions. We say nothing about the correctness of the Court of Appeal’s conclusion upon them. However, we have reached a firm view that the Court of Appeal was correct in concluding that even if errors occurred in the conduct of the trial and the rulings made during the trial, the case was clearly one for the application of the proviso in s 568(1) of the Crimes Act 1958 (Vic). There was objective evidence that powerfully implicated both of the applicants in the criminal offence of importation. It included telephonic interceptions indicating the involvement of each applicant in the offence and specific identification of the mode of importation of the cocaine in question.

In these circumstances, no error has been shown in the Court of Appeal’s conclusion that on this basis conviction of the applicants was inevitable. There was no miscarriage of justice in the conviction of the applicants. On this ground, there is no ground for the intervention of this Court. Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 10.45 AM THE MATTERS WERE CONCLUDED