Nicolaides v State of Western Australia [2008] HCATrans 163 (18 April 2008)

Last Updated: 29 April 2008

[2008] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P46 of 2007

B e t w e e n -

BRADLEY CHRISTOPHER NICOLAIDES

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 APRIL 2008, AT 3.18 PM

Copyright in the High Court of Australia

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

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

HAYNE J: Yes, Mr Grace.

MR GRACE: Your Honours, it is clear that the witness, Ripper, was the most important prosecution witness. Her truthfulness and reliability was crucial to the prosecution case. Moreover, she gave support, if believed, to a number of acts which were said to have given rise to a consciousness of guilt on the part of the applicant. One of those acts, the major one, was the evidence given by Ripper that immediately after the robbery the applicant told her to pack up the flat that she said they were living in, as they were moving out immediately; that they next spent the following week moving from hotel to hotel in the Perth metropolitan area and that she, during that period, was constantly with the applicant.

At paragraph 57 on page 105 of the application book Justice Miller set out the collateral evidence test which, by inference, he applied or adopted in his analysis of that particular ground of appeal. However, when you note what his Honour set out at paragraph 57, in particular the reference to paragraph 43 in Justice McHugh’s judgment in Nicholls [2005] HCA 1; (2005) 219 CLR 196, it is notable when you look at Nicholls that his Honour did not set out the balance of paragraph 43.

If I could just take your Honours briefly to that initially. At page 217, paragraph 43 appears. If you compare paragraph 43 to what his Honour Justice Miller set out in the judgment, his Honour has replicated down to about halfway down the paragraph towards the bottom of page 217 – but his Honour neglected to set out the following:

The credibility of a witness is inevitably indirectly relevant to establishing facts in issue. Sometimes, the credibility of a witness is decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact bears on the credit of a witness depends not only upon what the witness represents to the court, but also upon the nature of the party’s case.

If the prosecution case had simply been that Ripper said that the applicant had told her to pack up the flat and they moved around the Perth metropolitan area for the next week and stopped at that, without elevating that particular fact to a basis for an allegation of a consciousness of guilt, then that would have been in order to refuse the defence permission to call the witness, Harvey, but because the prosecution elevated the evidence of Ripper to becoming a factual foundation for the establishment of consciousness of guilt on the part of the applicant, it changed the whole complexion.

HAYNE J: I am sorry. Can you explain that to me again? I do not think I have grasped it.

MR GRACE: Yes. The evidence of vacating the flat and the attack on Ripper in cross-examination in relation to that issue was not solely related to credit. The reason it was not solely related to credit was because the establishment of that fact was relied upon by the prosecution as providing a foundation for the establishment of consciousness of guilt on the part of the applicant.

HAYNE J: That is the point I think I am not quite grasping. Wherein lay the demonstrated consciousness of guilt? Pack up the flat; pack up the flat and move from hotel to hotel?

MR GRACE: A combination.

HAYNE J: Because that is the way the evidence fell out.

MR GRACE: It was a combination of those factors. What the prosecution said: these are the actions of a guilty man. Why would he tell his girlfriend – that was in dispute, but let us assume – on the phone immediately after the robbery - - -

HAYNE J: “Pack up; we’re going.”

MR GRACE: “Let’s get the hell out of here” – and go. What happened over the next week, according to Ripper, was that they moved from hotel to hotel; she was in fear of the applicant; she was held hostage, et cetera.

HAYNE J: The evidence that is disputed, or that was sought to be led, was that she had spent one of those nights with someone else.

MR GRACE: Yes. There was also other evidence put to her, which she denied, that she had spent another night somewhere else. But the evidence of Harvey was to the effect that he had spent a night during that week with Ripper, which undermined – or if accepted would have undermined – her version of events and would have undermined the factual foundation for the conclusion of consciousness of guilt.

Could I take you to paragraph 55 on page 103. This is the extract from part of the discussion between his Honour the learned trial judge in relation to the application for the admission into evidence of Mr Harvey’s testimony. Justice Blaxell said this:

I have come to a view and I will give a ruling. In my view, this area of proposed evidence from Mr Harvey is tied up with issues which relate to the relationship between Nicolaides and Ms Ripper over a period both before and after the robbery at the Bayswater Hotel. The evidence is only relevant to her credit, but that doesn’t necessarily mean that it’s a collateral issue in respect of which her answers are final and as is shown in the decision I think of Bannister in the Full Court in this state:

‘Issues relevant only to credit can nevertheless be relevant to the fundamental issue in the trial, when the evidence of the witness is so important that the credibility is vital.’

That was a quotation from Bannister. Over the page:

In this case, Ms Ripper’s evidence is very important to the prosecution case. It’s not critical in the sense that without it the prosecution cannot succeed but, nevertheless, it is very important. If I was to stretch the principles as established in cases such as Bannister and to take the flexible approach referred to in paragraph 116 of Miller J’s decision in Hoy, then it could conceivably be admitted but I think that would be stretching matters beyond where they have been stretched before.

In the end I think that the real problem is that the evidence which is proposed to be adduced has not been fully put to Ms Ripper; it has been put in a very abbreviated form, and I don’t see at this stage of the trial how it’s possible to do justice in the sense that the jury would be in a position to evaluate Mr Harvey’s evidence as against Ms Ripper’s evidence. It’s too late to re-call her and have her deal with that issue and in the end I have come to the view that the evidence should not be admitted.

In the event, as we know, the Court of Appeal regarded his Honour’s decision in respect of there being an absence of a factual foundation as being in error. That much is made clear in paragraph 63, where his Honour Justice Miller found:

In my opinion, it had been sufficiently put to comply with the rule in Browne v Dunn (1893) 6 R 67. Sufficient detail of the proposed evidence of Harvey was put to Ripper. There was not a great deal more that could have been put –

Given the reliance of the State on Ripper’s evidence, given the emphasis that the learned trial judge placed on Ripper’s evidence in his summing-up and the nature of the State’s case, in that there was no direct evidence that it was the applicant who was identified at the scene of the robbery – the relevance of the applicant’s consciousness of guilt of course was relied upon strongly by the prosecution as establishing guilt. All those matters combined to have dictated that the conclusion that Harvey’s evidence was merely a collateral matter, had there not survived the application of the collateral evidence test, was in error. What was sought in the interests of justice was the proper investigation of a material issue, and that was a material issue as I have analysed it.

HAYNE J: Do we have in the papers the trial judge’s instruction to the jury about consciousness of guilt in relation to this evidence of Ms Ripper?

MR GRACE: Yes, your Honour.

HAYNE J: I think it is at 63, is it?

MR GRACE: Yes, it is at 63, over to 64. It is at line 13 on 63. You will see in that first paragraph there is reference to that. His Honour was very brief in his summing up of the evidence, as your Honours may have noticed in perusing the directions.

HAYNE J: It goes to the jury, does it not, on the basis that it is moving out – that is the real consciousness of guilt - - -

MR GRACE: Yes.

HAYNE J: Not the subsequent movements.

MR GRACE: It is the moving out. The movements during the week insofar as it is moving from hotel to hotel were also very important in respect of that issue. What the applicant says in a nutshell is this. He was prevented, improperly, from leading evidence relevant to a fact in issue. In so doing the learned trial judge effectively prevented the applicant from undermining the evidence that went to the jury in support of a consciousness of guilt, and the evidence, if accepted by the jury, not only would have significantly weakened the factual foundation of the alleged act of consciousness of guilt but would have weakened the credibility of the witness, Ripper.

I know in Nicholls there was debate amongst members of this Court, particularly your Honour on the one hand with Justice Heydon in a joint judgment in relation to the strict application of the collateral evidence rule. Justice McHugh and other members of the Court seemed to take the view that a more flexible approach ought to be adopted to meet the interests of justice of a particular case. Your Honour Justice Hayne and Justice Heydon took the view one should apply the strict tenet of the collateral evidence test, which I think was set out in Attorney-General v Hitchcock back in 1847. That of course has been the subject of many glosses, but the view that your Honour took is encompassed at paragraph 285 in Nicholls, where your Honour said, halfway down paragraph 285:

There are real difficulties in defining the outer limits of the ban on evidence in rebuttal on “collateral” and “credit” questions. Opinions differ about how far it is legitimate to approach the problem emphasising the importance of flexibility against rigidity, convenience against principle, and case management rather than rigid rules, though the prosecution in this case was prepared to accept the legitimacy of such an approach up to a point.

But whatever the difficulties of definition and approach, the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness’s credibility is inextricably linked with the principal issue in the case -

whereas Justice McHugh took the view at paragraph 56 on page 223 as follows:

The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness’s denials concerning matters of credibility should be regarded as generally admissible if the witness’s credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final.

There is a difference in approach. Justice McHugh’s approach and perhaps also Justice Kirby and Justices Gummow and Callinan really do not address the issue in as much detail as your Honour with Justice Heydon and Justice McHugh do. But the difference of approach is whether you adopt a flexible approach in the interests of justice or whether you adopt the more
rigid approach that your Honour advocated. In my submission, in the interests of justice in this case it was appropriate for the evidence to be admitted regardless of the approach that was applied. The result has been, in my submission, a substantial miscarriage of justice.

HAYNE J: Yes, thank you. Mr Cock, we shall not trouble you.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this matter. The evidence which was excluded and about the exclusion of which the applicant would seek to complain was not so linked to the issues in the case being tried that its admission could have been justified under the principles described by Justice McHugh in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.

The application therefore does not present any suitable vehicle to explore the limits of the collateral evidence rule or whether the views expressed by Justice McHugh should now be regarded as to be preferred to competing views expressed both in Nicholls v The Queen and elsewhere. For these reasons special leave to appeal is refused.

The Court will adjourn to Tuesday, 22 April 2008 at 10.15 am.

AT 3.37 PM THE MATTER WAS CONCLUDED