Ferguson v The Queen [2011] HCATrans 161 (10 June 2011)

High Court of Australia Transcripts

[Index] [Search] [Download] [Help]

---

Ferguson v The Queen [2011] HCATrans 161 (10 June 2011)

Last Updated: 15 June 2011

[2011] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M103 of 2009

B e t w e e n -

IAN NORMAN ERIC FERGUSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 2011, AT 10.41 AM

Copyright in the High Court of Australia

MR D.A. DANN: If the Court pleases, I appear on behalf of the applicant.
(instructed by C Marshall & Associates)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS S.B. McNICOL, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: I understand there is an extension of time required in this matter. Is that opposed?

MR McARDLE: No.

FRENCH CJ: Yes, you will have your extension of time, Mr Dann.

MR DANN: If the Court pleases.

FRENCH CJ: Yes.

MR DANN: Your Honours, the application is confined to the ground of appeal dealing with the non-disclosure of evidence by the Crown in the applicant’s trial.

FRENCH CJ: That is simply in relation to the witness, Duy Le. I am not sure if that is how it is pronounced.

MR DANN: That is how it is pronounced and that is correct, your Honour.

FRENCH CJ: I notice the application refers to another witness, Lai.

MR DANN: That is right. Yes, so it is confined to that ground. It is submitted that this case, in fact, does raise an important issue about the approach to be adopted in the face of a clear breach of the prosecutor’s - prosecution duty of disclosure. In this case, there could be no issue that there was such a breach of that duty of disclosure. In the Court of Appeal the prosecution did not take issue with that, that there was such a breach. In the Court of Appeal judgment there was no issue taken with that in respect to this particular witness, Duy Le. There was in respect to the other witness, Kenneth Lai, but not in respect of this witness. That was because the evidence in question did directly go towards the credit of the key witness in the applicant’s trial, Duy Le, and directly towards the assessment of his presentation by the Crown in this case.

CRENNAN J: You have to turn your mind, do you not, to the effect of the non-disclosure?

MR DANN: That is right. What I was about to say, there was no issue in respect to the general duty of the prosecution to disclose and even more so, in this case, there were repeated subpoena requests for this very evidence all the way through these proceedings. But it is the Court of Appeal’s approach to the facts and significance of the non-disclosure that is submitted was in error. To identify the evidence, I can do that briefly - there was the video material that was not provided which contained the cutthroat gesture, if I can describe it in those terms.

CRENNAN J: You particularly rely on that, do you not?

MR DANN: Well, married with the 33 pages of transcript that then followed which was not provided because it is the video gesture, the cutting of the throat, married into the 33 pages where this witness indicates and indeed really comes to an arrangement with police that he will not talk about his uncle, Ky Quoc Pham, on tape. He will not provide information to police about his uncle on tape. So it is those two aspects married together.

In the written argument I have attempted to outline the context in which that occurred in the applicant’s trial, the context being that his defence and answer to a number of prongs of the prosecution case relied on an alleged or sworn described relationship between himself, the applicant, and Ky Quoc Pham, Duy Le’s uncle. So it was in that context that, in my respectful submission, the Court of Appeal then had to approach the question of non-disclosure. It is submitted that the Court of Appeal, in fact, erred in the approach to the assessment of the evidence and the significance of it. Essentially, the conclusion reached in the Court of Appeal was that this evidence would have made no difference to the applicant’s trial.

CRENNAN J: Now, that is to be found, is it not, at application book 154 at 366?

MR DANN: That is the very paragraph that I was going to take the Court to, yes, your Honour. In reaching that conclusion it is submitted that the Court of Appeal did not complete the appropriate pathway - proper pathway in the consideration of this situation. That pathway has to be underpinned by notions of fairness and the accused person’s right to a fair trial.

The first step that the Court of Appeal travelled along was to look at the way the disclosure of this evidence was handled in the trial of the co-accused when it emerged, which was about six month’s after the applicant’s conviction. It is my respectful submission that that was not helpful to this overall consideration because this particular issue of the relationship between Ky Quoc Pham and the applicant involving his explanations for various transactions and prosecution evidence just did not arise in that trial. It was insignificant in respect to that trial. Looking at the way it was handled in that particular trial was not helpful to this consideration.

The next step along the path really occurs in that very paragraph at application book 154, paragraph 366. Yes, the court had to consider the conduct of the applicant’s trial. That was a necessary step along the pathway, but in considering that step and assembling those series of matters in that paragraph, it is submitted that even in respect to that step the state of the evidence was not properly considered.

The first matter assembled relates to the transcript that was available of 21 December where it said that there was a reference to the fact that Duy Le was not keen to discuss his uncle, that that was disclosed to police on that transcript, but it is submitted there is a world of difference between what happened at the end of that interview in terms of the written word or spoken word and what emerged via the undisclosed material because what was contained in the written word or spoken word was, in fact, an agreement that they would discuss the uncle and he would discuss the uncle at a later point with police – “We will not do it now, we will do that at a later point”. That was the agreement that was reached - - -

CRENNAN J: I think the Court of Appeal has pointed out that there was ample basis for exploring Le’s reluctance to speak about his uncle. The attack on him at trial was basically on his reliability, was it not?

MR DANN: That is, in my respectful submission, where we get to - where I was hoping to take the Court to and what the Court of Appeal did not do was assess how this evidence could have been used in this trial. It is not enough to look at the way this trial played out without the evidence. It was essential and this was a step that was not undertaken, in my respectful submission, to look at the way this evidence could have been used in this trial. When it said there was ample material, in my submission, there was not ample material. In the words of, I think it is Grey’s Case of this Court, the question of whether there was, in fact, a full opportunity to meet the case in these various areas, had to be explored both in the way the trial was conducted and the way the trial could have been conducted.

CRENNAN J: I think the point is you are on notice about the issue. You could have cross-examined in relation to it.

MR DANN: Well, the point of the non-disclosure is that it elevated things very, very significantly where you had a witness who was presented to this jury in this case as someone who had made full and frank disclosure, had told the police everything, was completely truthful, that is the way he was presented to this jury. Not only that, but that the defence in this case had been provided with all material, everything had been disclosed.

CRENNAN J: Did he not concede under cross-examination that he told lies when it suited him?

MR DANN: Yes, and that is what I was going to take the Court to in respect of that second aspect of that paragraph. The way this witness was presented in this trial was a prosecution concession that he had told numerous lies in the past. He had falsely implicated people in the past. He had told lies about his uncle in the past. But when he became involved in this investigation with these investigators, he had come to an agreement with police to give full and frank disclosure and that thereafter what he said could be relied on as being truthful, despite the sins of the past.

When we get to this point and, indeed, the prosecutor went to the jury and read out the terms of each record of interview and the way it started in terms of a promise to make full and frank disclosure and that was the basis upon which nothing would be used against him in terms of what he said. So that there was material in which his dishonesty and record of dishonesty could be attacked, certainly so, but in terms of these issues, the non-disclosed material had extreme and significant relevance.

So it is submitted that, in fact, the matters assembled in respect to that record of interview and the reference to not being keen is materially different to what was then disclosed. The suggestion of past areas of dishonesty was not completely or singly relevant to this particular issue and thirdly, the reference there to refusing to tell police about Pham’s whereabouts, well, that hardly rose to any extent in terms of the witness saying, “Well, I did tell police about his whereabouts. I did tell the police about his address”.

So what you then have, in my respectful submission, is the step in terms of how the trial was conducted, was not properly considered in terms of what was available to the defence to mount this attack or to meet the attack of the prosecution. But then what was not undertaken was this last step which is necessary and consistent with the approach of this Court in cases such as Mallard and Grey. You need to look at how this evidence could be used.

So in those circumstances, where this witness is presented to the jury on the basis that everything has been disclosed to the defence basically, they have not been able to lay a glove on him, with all that material they have not been able to lay a glove on him – I am paraphrasing - that is one thing, but when you know that all the material has not been disclosed, that is another thing.

Secondly, when this witness is presented as someone who has made full and frank disclosure, has completely co-operated with the police and put everything on the table, when you know that the police and he have come to an arrangement where he will not disclose information about his uncle, when the applicant’s defence is tied up with the relationship between himself and his uncle, that is very, very significant. So to meet these aspects of the case, the applicant again, in the words of Grey, must be seen to have been at a disadvantage, must be seen to have been in a better position if the court actually considered what use could have been made of this evidence.

Thirdly, where the prosecution were able to rely on the evidence of Duy Le and pour scorn on the applicant’s explanations of relating to the car transaction, relating to the contacts, I have set these out in a written outline. If the Court needs me to I will expand on them.

FRENCH CJ: It is 24 and following of your submissions.

MR DANN: The three “Cs”. Where the applicant’s explanations were ridiculed it was on the basis of Duy Le because the prosecution went to the jury on the basis – “Look, Duy Le is adamant that there was no relationship between the applicant and his uncle of which he was not there, he was there at every meeting so he can attest to what the state of their relationship was”. In terms of this explanation of Ferguson in this trial, it is just ridiculous because we have Duy Le who says he was there for each and every meeting.

The throat-cutting gesture immediately, if that was available to the defence, would have been fertile ground for cross-examination in this particular area but also, in terms of those 33 pages, you had this witness, Duy Le, even suggesting well it may have been that his uncle and Ferguson were in a relationship where even heroin was being transacted, he is not sure. So he allows for the possibility, indeed, in that 33 pages of undisclosed material of a different type of relationship completely to the one that he had given evidence about in the trial.

Lastly, it is submitted that we again have the prosecution going to this jury in this particular case saying well, with all that material these are the only areas of discrepancy. That undisclosed material was again fertile ground for the raising of further discrepancy and inconsistency. It is submitted in these ways the court has failed to undertake a crucial step of this examination. It was not sufficient to look at how the matter was handled in the co-accused trial. It was not sufficient to look at how the first trial played out to properly consider whether this applicant had a fair trial, to properly consider whether he lost a chance of acquittal that was reasonably open. This last step had to be undertaken.

I mean, this is not a complaint whereby the court has gone down and completed, in my respectful submission, a proper pathway. Then they have got to the proviso and said, well, having considered all of these matters we think, on the other hand, in respect of having a look at all of the evidence, that no substantial miscarriage of justice has occurred in this case. The court did not even get to that stage because, in my respectful submission, they did not undertake the proper pathway and not undertaking the proper pathway, they came to the conclusion, well, it would not have made a difference.

It is for those reasons, trying to set that out in that way that it is submitted when you look at those other High Court cases there needed, of course, to be a consistency in approach, that the approach, in fact, adopted in this case was inconsistent with the approach that is necessary and for those reasons a miscarriage of justice has, in fact, occurred in this case and special leave should be granted in this case. They are the matters put on behalf of the applicant.

FRENCH CJ: Thank you, Mr Dann. We will not need to trouble you, Mr McArdle.

The question said to warrant the grant of special leave in this application is the prosecution’s failure to disclose certain evidence to the defence at trial. The well-established issue of legal principle is whether the non-disclosure deprived the applicant of a fair trial: see Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at 148.

By reference to the way in which the applicant’s defence was conducted at trial, the Court of Appeal concluded that the unavailability of the undisclosed material did not affect the conduct of that defence. In our opinion, it was open to the Court to come to that conclusion.

No point of general principle would arise for consideration if special leave to appeal to this Court were to be granted. It is not in the interests of justice, either generally or in this particular case, for there to be a grant of special leave. Special leave will be refused.

MR DANN: If the Court pleases.

MR McARDLE: If the Court pleases.

AT 10.58 AM THE MATTER WAS CONCLUDED