Strawhorn v The Queen [2009] HCATrans 119 (29 May 2009)

Last Updated: 3 June 2009

[2009] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M49 of 2008

B e t w e e n -

WAYNE GEOFFREY STRAWHORN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 1.58 PM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC: If the Court pleases, I appear with my learned friend, MR P.J. MORRISSEY, for the applicant. (instructed by Galbally & O’Bryan)

MR J.D. McARDLE, QC: I appear for the respondent with my learned friend, MR T. GYORFFY, if the Court pleases. (instructed by Director of Public Prosecutions (Vic))

HAYNE J: Yes, Mr Priest.

MR PRIEST: There are compelling reasons in this case why a warning should have been given about the evidence of BC and there were no good reasons for not giving such a warning. In the circumstances, there has been a substantial miscarriage of justice, in our submission, which only this Court can now remedy. Beyond that, it is our submission that this case throws up the question of whether or not there ought not be, in the case of indemnified witnesses, a rule of practice requiring a warning to be given with respect to them.

Your Honours, in order to make good our propositions, it is necessary to look at parts of the judge’s charge and I wonder if I might invite the Court to go to volume 1 of the application book and first of all might I take the Court to page 11. At line 21 his Honour gave a direction about the role of counsel’s addresses and you will see at about line 28 his Honour told the jury, “you are not bound” by what each of them has put before you.

The importance of that, of course, is that the two bases upon which the forerunner of this ground in the Court of Appeal was defeated was, on the one hand, it was said – and I am paraphrasing – that the factors in the case that impinged upon the credibility of the witness BC were things that the jury themselves could have determined without the need for a judicial warning. Over and above that, it was said that, in any event, counsel had teased out in cross-examination and in the course of his final address those matters that went to the reliability and the credibility of BC and therefore, in effect, no judicial warning was required. We say, with respect, that is a fallacy. If I can take the Court on then to - - -

HAYNE J: Why is it fallacious?

MR PRIEST: For this reason, your Honour. If the circumstances called for a warning with the weight of the judge’s office behind it, it really is no answer to say, well, counsel were able to address each of these matters, particularly in circumstances where the direction was given that the jury could, in effect, reject what counsel had to say, if they chose to.

HAYNE J: But is it that the judge is to tell the jury something they do not or may not know or is it some other function that is being performed when you say that a warning with the authority of office is required?

MR PRIEST: The circumstances requiring the warning must be such that the ordinary lay jury, uninstructed by judicial direction and warning, would not be able to appreciate for themselves. So there must be, if you like, a danger lurking in the evidence which the jury cannot appreciate without judicial instruction or warning. The case of indemnified witnesses, with respect, ordinarily is such a case.

HAYNE J: So in such a case what is the judge telling the jury that they either do not or may not know?

MR PRIEST: Going back a step, the warning must go to the reliability of the evidence. So the circumstances calling for the warning therefore must themselves have the capacity to impinge upon the reliability of the evidence. If that is so, if the circumstances are such that they may very well impinge upon the reliability of the evidence, a judge is required to give a warning if the jury are incapable, uninstructed, of dealing with those matters themselves.

One of the great problems in this case was the way in which the subject was approached by the learned trial judge and it is necessary to take the Court to what was said in relation to other witnesses in the case. Can I take the Court next to application book page 34 and you will see at about line 38 his Honour turned to deal with the evidence of Paton. Now, Paton was, of course, an accomplice and it is tolerably clear that the law is that there must be a judicial warning in the case of an accomplice if the evidence of the accomplice gives is adverse to the accused.

You will see then what follows is a conventional accomplice direction where his Honour outlines the law and then the various items of evidence that went to corroborate or perhaps corroborate Paton’s evidence. Part of what his Honour said, one of the categories of evidence he left, was wrong, as it turned out, the betterment evidence, we do not make any particular complaint about that, but he gave an extensive accomplice warning with respect to Paton. So that put Paton into a pigeonhole, if you like. What his Honour then did at 54 of the application book, he turned to the evidence of the individual that is named at line 32 in the sentence that commences, “The evidence of the witness”. The person there named is described in the Court of Appeal judgment as Witness A.

BELL J: I am sorry, which page is this?

MR PRIEST: Page 54 of the application book at about line 34, your Honour. Witness A was the subject of a warning and the reasons why he was the subject of a warning was that he had “a long criminal history”, “a history of associating with significant criminals” and, you will see at line 49, “In this court he was the subject of an indemnity”. So he fell into exactly the same category, in our submission, as the witness BC for whom there was no warning later given.

May I then take the Court on to 57 of the application book. At about line 12 there is the warning embarked upon with respect to the witness Rosenes. You will see it is said that, insofar as he was concerned, he falls into the same category as Witness A. What his Honour told the jury was, Rosenes had been involved in significant criminality, he received a sentencing discount and he appeared in the court as an indemnified witness. Those three circumstances, his Honour describes it at line 50 in this way:

In the light of that combination of circumstances, I direct you that you should scrutinize the evidence of Rosenes with great care –

and it goes on. So, again, like Witness A, Rosenes had been indemnified and that was one of the reasons why his Honour was moved to give a warning. That stands in stark relief, in our submission, to what was said about the witness BC. BC was pivotal, pivotal to the Crown’s case on Count 5. Your Honours will have noticed that there was a hung jury in relation to the first count, acquittals in relation to Counts 2, 3 and 4 and 6. The thing that set Count 5 apart was the evidence of the witness BC. Your Honours will see at 59 of the application book, about line 58, it is said, “The defence were critical of” BC’s “evidence. It was submitted” –
and then it goes on. Over at page 60 at about line 43 or 44:

Numerous or criticisms were made by the defence of [BC’s] evidence. I will deal with them later when summarising counsels’ final address.

What his Honour did was outline what it was that had been said by counsel about BC, an indemnified witness. So he stood in stark relief to the other important witnesses in the case, two of whom were indemnified and attracted a warning, he, too, was indemnified but did not attract a warning. His Honour explained it this way. Can I take the Court on just a little bit further in the application book. At page 66 during a break in proceedings at about line 35 the prosecutor said:

I must say that so far as [BC and DE] are concerned, there is an exception taken clearly there in relation to why they are being dealt with in effectively the same part of the charge as [Witness A] and Rosenes where there are warnings directed.

His Honour explains that at the bottom of that page and perhaps line 9 of 67 where his Honour says:

I have dealt with Paton as an accomplice, [Witness A] and Rosenes at a lesser warning, and the other two without any warning at all, which makes it clear, I would have thought, that whilst there is a challenge to their evidence, no warning was required.

So his Honour said, his reasoning was, and he was imbued, to some extent, with, I suppose, the atmosphere of the trial, but his Honour said the jury will understand with respect to BC that no warning is required. Now, with respect, that is where this case went off the rails because there are a number of circumstances which required in this case a judicial warning to be given. Principal, amongst them, was the fact that BC was indemnified. He was in the same category as Witness A, the same category as Rosenes. Over and above that - - -

BELL J: I am sorry, you say in the same category as Witness A and Rosenes. You do not suggest the same category as the witness who received the accomplice warning?

MR PRIEST: No, your Honour.

BELL J: No, all right.

MR PRIEST: It is quite clear that he, being an accomplice, a warning was required as a matter of law.

BELL J: Yes.

MR PRIEST: Beyond the fact that he was an indemnified witness, there are other factors that require a warning, either alone or in combination, but I am prepared to accept that in combination is sufficient. First of all, there was evidence before the jury that BC had denied on two occasions previously to the police that the applicant had been involved in trafficking pseudoephedrine, which was the subject of the transaction on 19 May 2000. There was a dramatic change of heart after he was subjected to pressure by investigating police and, in particular, a police officer by the name of Moloney. There is no doubt that it was put to the jury, it was put to the jury in summarising counsel’s addresses and my learned junior put it very forcefully to the jury, I have no doubt, but it was put that Mr Moloney had offered BC a choice, “You are either in the dock or you are a witness”.

BELL J: What was it that the judge had to explain to help the jury to understand why that might affect the reliability of BC’s evidence?

MR PRIEST: There were pressures upon BC to give a false version of events.

BELL J: That seems somewhat self-evident as a proposition from your submission “You are in the dock, or you cooperate”. I am just trying to understand what, in the peculiar experience of the trial judge, it was that it was necessary to make the subject of a warning because the jury might have had difficulty appreciating what on the face of it seems a rather obvious point.

MR PRIEST: More than the experience of the trial judge. The better question, with respect, might have been, what was it outside the experience of the jury, which the judge should have appreciated, should have led to a warning? The first thing is, your Honour, that the ordinary jury would not be acquainted with the pressures that may be brought to bear by the existence of an indemnity; that is, to tow the line and make sure that one gives evidence in a particular way so that one does not lose the benefit of the indemnity. There is the pressure of being offered, “Either you are going to be a witness, or you are going to be charged”. Added to that, we know – and it was an exhibit in the trial, Exhibit 97 – there was a charge sheet in existence tendered by the defence which alleged that the witness was a co-conspirator of Mr Strawhorn’s.

There was evidence that if BC were charged, the mere charging would mean that he would be unable to conduct his security business into which he had put his superannuation nest egg. He would lose his business and, in effect, lose his livelihood and, even were the charges not proceeded with, the evidence was that he would not have been able to recover from that. Beyond that, there was the fact that he was a police agent and that he went out and covertly tape-recorded conversations with Mr Strawhorn, although there was really no product from those which assisted in the Crown case.

The ordinary lay jury, with respect, no matter how forcefully counsel put these things, would not have appreciated that the indemnity in the first place and the other circumstances in combination would have subjected the witness to undue pressure to maintain a version of events which was perjured, particularly against the background that he had previously twice denied that Mr Strawhorn was involved in any drug-trafficking.

So, your Honours, in this case, we would submit, it is plain that there has been a miscarriage of justice which only this Court can now correct. We say beyond that, that there is too a question as to whether or not there ought not be, in the case of indemnified witnesses, a rule of practice in the same way that there is with informers and uncorroborated confessional

statements to police, a rule of practice requiring a warning in the case of indemnified witnesses.

Your Honours, there is one last matter before I resume my seat and it is a matter of detail really. Our friends, in their submissions, have referred to the betterment evidence and they refer to it in their submissions paragraph 2.1, page 1091 of the application book where they say:

The Respondent agrees with the Applicant’s summary of facts save that Paragraph 2.7 omits to make reference to a betterment analysis –

With respect, that does not avail the prosecution in this case. It is necessary to take the Court to what was said about the betterment evidence by the Court of Appeal and that is also, your Honours, in the second volume. It is in the judgment of the - - -

HAYNE J: Is this to anticipate some reliance on the proviso?

MR PRIEST: Yes, is the short answer. One would think that, it having been referred to, your Honour, in their submissions, there must be a point to it.

HAYNE J: We would get to questions of proviso if but only if there were a question raised, would we not?

MR PRIEST: Yes, your Honour. Can I just put it shortly then. The Court of Appeal said that, in summary, the betterment evidence was of no assistance at all to the Crown on Count 5.

HAYNE J: Yes, thank you, Mr Priest. We will not trouble you, Mr McArdle.

There is no reason to doubt the correctness of the actual decision of the Court of Appeal in this matter. Special leave to appeal is refused.

AT 2.20 PM THE MATTER WAS CONCLUDED