[2011] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Melbourne		No M144 of 2010

B e t w e e n -

FARUK ORMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 FEBRUARY 2011, AT 9.33 AM 

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the applicant.  (instructed by Galbally Rolfe)

MR J.D. McCARDLE, QC:   If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Solicitor for Public Prosecutions)

GUMMOW J:   Yes, Mr Richter.

MR RICHTER:   Thank you, your Honours.  If the Court pleases, there is one matter that I would like to attend to before proceeding, and that is that the description in our outline of submissions of the defence case being “summarised at paragraph [48]” of the Court’s judgment stops there and it needs a little bit of clarification.

CRENNAN J:   Sorry, where are you, Mr Richter?

MR RICHTER:   I am looking at our outline of submissions at paragraph 2.2.

CRENNAN J:   Thank you.

MR RICHTER:   The last sentence of which says, “The defence case is summarised in paragraph [48]” of the Court of Appeal.  Now, when one looks at paragraph 48 of the Court of Appeal’s judgment in fact it says no more than the following:

	The applicant did not give evidence or call evidence and he made a no‑comment record of interview.  His defence was that the jury could not exclude as a reasonable possibility that someone other than he drove the get‑away car, and that most probably it was Traglia.

The fact is the defence involved the non‑concession that it was Veniamin who killed Peirce and it is important to bear that in mind because the defence stressed that the jury would have to find beyond reasonable doubt that Veniamin did it in the face of a case in which it was not conceded by the defence, so it was a live issue and the jury had to find that Veniamin was the murderer before being able to even consider Faruk Orman’s case.

	That being so, what we have done is we have provided the transcript of the opening address that I made at the trial.  We have given our learned friends copies and I would like to pass up those copies to the Court because they put into context the way in which the matter was, in fact, fought.  So it is important to understand in terms of our submissions that that was the way it was done because considerable emphasis is put by the Court of Appeal and, indeed, might be drawn to the notion that we in our opening in fact invited consideration of Veniamin’s propensities to be a killer, a professional killer ‑ ‑ ‑

CRENNAN J:   Paragraph 81 of the Court of Appeal decision.

MR RICHTER:   That is right.  We did not do that at all.  What happened was that in terms of the opening address – if I can take to the Court first to page 383 of the opening, of the defence opening which is really a response and is limited, of course, to isolating the issues and at line 31:

	Now we hold no brief for Andrew Veniamin.  He may or may not have been the killer on the evidence.  It matters nought to Faruk Orman whether or not he was the killer in this sense, that given the way the prosecution put its case you actually will need to be satisfied beyond reasonable doubt that it was Andrew Veniamin who killed Victor Peirce and that it was Faruk Orman who was with him in the car.  

	Faruk Orman does not know because Faruk Orman’s position is he’s not there - 

So there are no issues of concert, there are no issues of agreement, there are no issues of anything other than presence at the scene of the murder.  That is repeated in one or other ways in the opening for the defence.  The other matter then that needs to be considered is the fact that it is said that we ourselves, in the opening, brought up this notion of Veniamin being a professional hit man or a professional killer.

	Now, the way that arises can be traced in terms of the opening address and it puts the context properly and it is a context which, in our respectful submission, resulted in elisions and slides by the Court of Appeal from the way we actually put the case to the notion that we actually put in the arena, the concept that Vaniamin was a professional killer in any event.

	What was said was said in the context that - there are a number of points, having set out the fact that the defence was “We are not there”, there are a number of points that were then put to the jury – 10 in all – which were raised as issues for the jury’s consideration about Traglia’s credibility.  Given it was accepted all around that if the jury did not accept Traglia beyond reasonable doubt, there was no case against either Veniamin or Orman, there was simply no case if they were not prepared to take Traglia on his oath, both as to truth and accuracy.  

	At page 387 of the opening I went to the examination of the evidence of Traglia as the real issue as to whether or not he is to be believed and I listed, essentially, 10 points or 10 issues that would arise for the jury’s consideration.  Of those 10 points, point number six, which is at 390, is this:

	Issue number six is a very interesting one because it is this:  is Traglia’s involvement in the killing of Victor Pierce greater than he is prepared to admit? 

It was clear from materials and, indeed, later on in cross‑examining in terms of the fact that he had a far greater complicity than he acknowledged or, at least, it was put that way.  In that context point number nine, which is the critical one from a point of view of the Court of Appeal was raised at 391:

	Issue number nine:  was Traglia in fact in the habit of driving Veniamin around as his gunman/security and his enforcer in the drug trade?  That’s going to be an important issue because it will make some difference to you if you knew, for example, that Mr Traglia is driving around with Mr Veniamin once or twice a week on drug deals and that Mr Veniamin is there as protection.  That’s going to be an issue about their relationship.

That is transposed by the Court of Appeal and, indeed, is looked at by the Court of Appeal as though it was already raised that he is a professional hit man.  There is a vast difference between a bouncer at a nightclub, who is employed for protection and is known as violent and the notion that the bouncer at the nightclub is a professional killer, a professional hit man.  Yet it is put as part of the reasons for dismissing the appeal that, by the way that we have conducted the defence all the way from the opening, we are, in effect, rather conceding that Veniamin was a professional hit man.

	So it is important to have the context in which the defence was conducted because it is only when one has that context that it is then possible to examine his Honour Justice Weinberg’s decision and the correctness and arguability of the Court of Appeal’s judgment in relation to it.  Given that the time is very limited, what I would like to say is this.  I would raise the hypothetical question which, on its face, in my respectful submission, encapsulates what it is that we are complaining about.

	If, for example, when Traglia got into the witness box, after my defence opening, there had been a notice of additional evidence served upon the defence which said it had proposed to lead Traglia to give the following evidence, what is proposed is ‑ ‑ ‑

CRENNAN J:   The problem was it was a non‑responsive answer, was it not, during the course ‑ ‑ ‑

MR RICHTER:   Correct, but the test about whether or not it is admissible can be raised in this hypothetical way because the answer to that is obviously not.  A judge would have said you are not allowed to do it.  The fact that it is non‑responsive does not make it any the more admissible.  It creates a problem and the problem is that there has already been – there is a defect in the charge because inadmissible evidence was before the jury.  That, in itself, is a miscarriage.  Whether or not it constitutes a substantial miscarriage is something else but no one ever considered that as an issue.

CRENNAN J:   I think the repeated theme in the judgment of the Court of Appeal is that from whatever vantage point they consider this evidence, it was contextual evidence.

MR RICHTER:   Yes, this is what I do not quite understand what they mean by context, you see, because if they mean by that a fact which is essential and inherent in the facts then they are actually wrong when one analyses what is set out in Cross in the discussion of that sort of context.  The test that is to be raised about context is does it add anything other than the impermissible Makin reasoning?  Does it raise anything other than that?  It does not.  The only thing that it raises is the Makin impermissible propensity reasoning.   

CRENNAN J:   Then the Court of Appeal answers that, I think, in paragraph 86, 226 of the application book.

MR RICHTER:   The Court of Appeal answers it, in my respectful submission, wrongly - they answer it wrongly.  They justify it in terms of the five reasons that they set out at page 228.  It is not part of any context as one can see it.  There is no context other than the prohibited Makin backdrop.  The fact that he is a hired killer does not make any difference and you ask yourselves that question on the basis of, what if Traglia had given evidence that Veniamin and Orman were bakers or school teachers together.  

	It can only give context in the way in which the court reasoned it when it gave its five reasons if you, in fact, assume that Traglia’s right in terms of the interpretation of intercepts, in terms of whether or not Traglia is right.  It really comes down to this.  When his Honour Justice Weinberg made his decision to discharge – not to discharge the jury rather – he made it on two erroneous bases.  Those erroneous bases are essentially more or less acknowledged by the Court of Appeal.  One was that what was said could make no difference and the Court of Appeal – what was said about Traglia could make no difference, and as far as the Court of Appeal is concerned, the Court of Appeal took the view that it could.  The other one was that there was ‑ ‑ ‑

CRENNAN J:   Then they went on to say that that was not a sufficient reason to warrant the discharge, even though they had that disagreement with Justice Weinberg about it, about the possibility.

MR RICHTER:   Yes, that is right.  It went on because of Wendy Peirce, the Wendy Peirce evidence.  Now, the problem is that everyone made an error about what Wendy Peirce’s evidence amounted to because when one actually looks at Wendy Peirce it is not that of an expert professional criminal like Traglia saying these two are professional killers.  That is not what she says at all, and we explain that in our outline of submission.  When one looks at the evidence that Wendy Peirce actually gave, which is recited in the judgment of the Court of Appeal, one comes to the following conclusion inevitably.  Number one, she does not give evidence that Veniamin and Orman killed anyone at any stage, historically or otherwise.  She does not give that evidence.

	All that she does is that she says that her husband believed that Veniamin had killed Benvenuto.  That is not evidence that he is a hired killer.  There was no evidence about the circumstances of the Benvenuto killer, whether it was a killing in hot blood, whether it was a hired hit, whatever it was, there was no evidence about it, none.  So all that she says is her husband believed that Veniamin had killed Benvenuto.  That is not evidence that these two are contract killers.  That is number one.

	Number two, she says that it was common knowledge that Veniamin had killed Peirce, but that was the very issue about which the jury was to deliberate, whether he had killed her husband.  So that to say that what Wendy Peirce had already said by the time Traglia had to give evidence could in the slightest way affect the real issue that his Honour Justice Weinberg had to decide is simply factually wrong, and everyone proceeded on the wrong and false basis that Wendy Peirce’s evidence somehow put into the arena that these two were professional killers because the evidence of Traglia effectively amounted to saying, these two are professional killers.

	So that when you remove that sort of substratum assumption by Justice Weinberg, and by the Court of Appeal, by actually looking at the evidence, you come to the conclusion that, number one, Justice Weinberg was wrong in the way that he ruled on it.  He had not unfortunately appreciated the seriousness of what it was that was being said, as is evident from the fact that he said that the application was not seriously arguable at all, which took me aback and I did not argue it but I came back the next day, because on the face of it, the assertion that the accused, together with Veniamin, were both professional killers in a case in which that particular killing had to be proved against Veniamin before Orman could be tainted by it took one’s breath away to say that that kind of assertion by Traglia would not raise a serious issue for a discharge.

	It follows that since his Honour Justice Weinberg had acted on an erroneous view of what Wendy Pierce amounted to, as he expresses in his judgment, it is an erroneous assessment of the Wendy Pierce evidence.  The Court of Appeal fell into ‑ ‑ ‑

KIEFEL J:   What do you say about the matters raised in paragraph 82 of the Court of Appeal’s judgment which are matters, which they say, were raised and put in cross‑examination by the defence?

MR RICHTER:   What we say is this.  At that stage there was evidence before the jury that Orman and Veniamin were professional hit men.  I did not take it when there was further cross‑examination of Traglia it was in the context of I opined the fact that he was keeping company with someone as a bodyguard, not the fact that he was a professional killer.  But Traglia having used the expressions that he used and effectively said Veniamin is a professional killer, I took the cross‑examination on his own terms in order to lead him where it might for our advantage.  What I did not do was join in the notion of the joinder of Veniamin and Orman which was, from our point of view, the most devastating assertion by Traglia.

	So that number one once you have a ruling, such as the one such as Justice Weinberg made, you are bound by it.  The interesting thing is that if one reads the transcript of what was happening in front of Justice Weinberg, number one the Crown did not believe the evidence was admissible otherwise it would have sought to have led it.  Number two, his Honour Justice Weinberg did not believe that the evidence was admissible, but he thought it did not matter in the course of the trial because it would be forgotten.

	The fact is both the learned prosecutor and the learned trial judge came to the absolutely obvious and correct Makin conclusion that those assertions were irrelevant or rather, incompetent, which is the word that Makin uses, that Lord Herschell uses in Makin.  They are incompetent.  That being so his Honour was trying to struggle with the situation of “Do I have to discharge the jury” and came to the ‑ ‑ ‑

CRENNAN J:   He was using the high degree of necessity test.

MR RICHTER:   That is right - well he said that, but he applied it on the wrong basis and the wrong basis was that a dramatic assertion by Traglia as the central Crown witness that Veniamin and Orman were professional killers including, as it does, an unspecified number of homicides that they are supposed to have committed together, when they did jobs together, and it is capable of that reading, that when that was said, that did not product a high degree of necessity to discharge because the jury, in the course of the trial, would forget it.  Now the extraordinary thing, of course, as we say ‑ ‑ ‑

CRENNAN J:   That was the job’s evidence, rather than the hit man evidence, was it not?

MR RICHTER:   No, no, no, with the greatest respect because the jobs, even the Court of Appeal conceded, was capable of different readings.  When the jury considered that and said, here is Mr Traglia.  What his evidence is, is Veniamin is a professional killer, a hit man, a hired contract killer, a professional killer that is his profession.  He and Orman are close associates.  That was never disputed and, indeed, there was no need to say it because the evidence demonstrated it.  He and Veniamin are closely associated and Orman did jobs with Veniamin.  The only evidence of Veniamin’s jobs is that which Traglia gave, which is that he was a professional hit man, therefore, Orman did the jobs.  I see the red light.

GUMMOW J:   Are you going to deal with the question of substantial miscarriage?

MR RICHTER:   A substantial miscarriage is evident on its face, in my respectful submission, because if there was inadmissible evidence of such an explosively prejudicial nature which raised uncharged homicides in the past which puts the jury in mind that Mr Orman is with Veniamin in professional killings, one could not imagine that that would not be a substantial miscarriage, except no one ever considered the issue of a substantial miscarriage.  

	The question is we need to consider whether the Court of Appeal was right, whether his Honour Justice Weinberg was right.  The question of discretionary exclusion, for example, never arose because his Honour took the view that the jury would disregard the matter in the face of his Honour’s strictures to the jury they must disregard everything that they have heard outside the court but, in fact, directing them to consider what Traglia had said.  

	In other words, it had to be a substantial miscarriage which could have made the difference because the sole evidence - I mean there was circumstantial evidence, but there was no corroboration of Traglia.  Traglia’s credibility was open and susceptible to massive attacks, which were made, and one would say in the position of having demonstrated certain physical impossibilities about the description of the confession, the raison d’être for the confession having been made - there were all sorts of impossibilities built into the situation.  

	How would a jury look at that, possessed of the evidence and the knowledge which they were prohibited of getting from the internet, properly so, and would have abided by that, according to Dupas, of course.  But they are told to consider that Traglia said Veniamin is a professional killer and Orman did jobs with him.  So that the issue of a substantial miscarriage never arose, was clearly a miscarriage and had it arisen in the sense that there was error demonstrated which, we say, there is, it would have had to have been decided in Orman’s favour.

GUMMOW J:   Thank you.  Yes, Mr McArdle.

MR McARDLE:   Your Honours, the issue upon which special leave is sought came to the Court of Appeal as ground 2.  The complaint was that it was necessary to avoid a miscarriage of justice to discharge the jury without verdict.  Why?  For two reasons which were connected and they must be understood as being connected, we assume.  

	In the first place, evidence was adduced that Veniamin was a hit man, an assassin, a thug, a gunman.  Secondly, and this must be the critical aspect of it, that he and Orman did jobs together - critical words, “jobs together”.  Prior to this evidence being adduced, there was evidence or at least there was our learned friend’s opening in which he makes it clear for the purposes of, we would submit, establishing the possibility that Traglia was the driver of the car, rather than Orman, when Peirce was killed by Veniamin, that they had an association and that Veniamin was security, a gunman, an enforcer, the background being that Traglia was in the drug trade in a pretty substantial way and he needed Veniamin or took him around to frighten people into honouring their debts because they knew of Veniamin’s reputation.  Traglia himself says that at application book 14.  He says that he would take Andrew Veniamin around – line 30 or thereabouts:

Sometimes I’d go to see certain blokes that owed me a large amount of money.  By bringing Andrew with me, they knew, once they seen Andrew they knew that Andrew was a hired, that Andrew was a professional hitman and they knew that if I asked a question, you know . . . Andrew’s reputation was, of a hired killer.

Now, that was presented to the jury without any difficulty at all.  The other body of material, of course, came from Mrs Peirce.  Mrs Peirce was the widow of the victim.  She said that her husband believed that Veniamin had murdered Benvenuto.  She believed that her husband was being pursued by Veniamin and vice versa.  The Crown case in this trial was that it was a pre‑emptive attack.  There was a mortal warfare between Veniamin and Peirce.  Peirce was killed before he killed Veniamin.  So it is clear by the time that the disputed evidence is given that Veniamin is a professional assassin, a thug, a gunman.

	So then the critical issue is, we would submit, what then do the words “do jobs together” or the words that add to it all.  That must be the critical thing as far as the discharge application is concerned.  His Honour declined a discharge for reasons that have been explained.  The Court of Appeal – and this is a discretionary decision that was to be reviewed by the Court of Appeal – had no complaint about the test, which is a high degree of necessity and that is entirely orthodox, and does not expose a point worthy of special leave by itself.  They concluded that the jobs together did not require a discharge of the jury to avoid a miscarriage of justice.  We would say that that is correct, no error has been demonstrated as far as that is concerned, and that no special leave point arises.

GUMMOW J:   Do you rely on what we said in Crofts 186 CLR at 440, that:

No rigid rule can be adopted to govern decisions on an application to discharge . . . The possibilities of slips occurring are inescapable.  Much depends upon the . . . in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness –

et cetera.

MR McARDLE:   Yes, well, this was not deliberate, no one has said that.  Relatively early on – this occurred I think on 3 September or thereabouts – the jury went out I think around about the 26th or 27th or thereabouts, it had been just about three weeks had gone past.  No one mentioned it – and that is a matter of judgment, of course – no one mentioned it, it did not appear in his Honour’s charge.  Crofts is also, it is submitted, authority for the high degree of necessity.  So we would say no mistake has been made.  No special leave point arises from this particular issue.  

	Of course, it was inevitable that the context of this killing be exposed to the jury.  It was inevitable, we would say, that the fact that Veniamin had a bad reputation, or the reputation that he appears to have borne, so that that was inevitable that was going to come out and, in fact, it would give the jury a very distorted view of what on earth was going on without this sort of background, described, if you like, as contextual background.

	One other thing, your Honours, and it is this.  The case depended on Traglia pretty much.  There were other bits of evidence about, but basically it was whether or not the jury accepted Traglia in the critical parts of his evidence, in particular, the receiving of the confessions or the admissions.  
If Traglia was not believed then there would be an acquittal.  The “doing jobs” which is attributed – which was part of his evidence really does not add very much to his evidence at all.  

	If he is to be believed on the confessions and subject to the correct directions of law on that issue and there seems to be no issue about that, then the “doing jobs” adds nothing to it.  So far as, your Honours, the question of a substantial miscarriage of justice is concerned, we would pray that observation, if it is accurate, in aid of that because essentially it is a question of whether or not Traglia was going to be believed.  He was.

GUMMOW J:   Say that again, if you would.

MR McARDLE:   It is essentially a question of whether Traglia was believed on the confessions, at least.  He was.  So this blemish adds nothing to it.

GUMMOW J:   Yes, thank you, Mr McArdle.

MR McARDLE:   If the Court pleases.

GUMMOW J:   Yes, Mr Richter, anything in reply?

MR RICHTER:   Yes, your Honour.  The last point that my learned friend raised demonstrates why error occurred and demonstrates why it is a special leave application and is warranted as a special leave application in the absence of authority about the admissibility against Veniamin.  What my learned friend says is this, Traglia was believed.  One of the reasons he was believed was because of the inadmissible evidence or so it might well be said and substantially so.  

	Here is Traglia, a man from the inside of the underworld who says Veniamin and Orman are professional killers because that is essentially what it amounts to.  He is not challenged on that because there was no way that we could challenge it.  Veniamin was not there to defend it.  We had no idea what killings he had in mind, what he was talking about.  There was no way once that was uttered that we could deal with that proposition and a jury would have been in a position of sitting there saying, “Traglia has got a whole of problems about his evidence but no one has said to him, ‘You are a liar when you said that Veniamin was a professional killer and that Orman did jobs with him’”.  

	In other words, it made it impossible for us to defend ourselves and that is why if there had been any consideration of whether or not there was a substantial miscarriage of justice conceding inadmissibility, there would 
have had to have been a new trial ordered.  So that point simply demonstrates what we say.  

	When my learned friend in his first point says that Traglia, having first raised at application book 14, the notion that Veniamin is a professional killer, that went without any hullabaloo.  The fact is we made an application for a discharge which said that in itself was inadmissible and that in itself, here in this court, raises a special leave issue which is there is simply no authority to guide a court in relation to what happens when someone who is not in the dock with you is charged as the principal whose conviction or finding of guilt beyond reasonable doubt is a pre‑conviction to your own, can you just bad mouth them in terms of improper Makin assertions, ones that are not allowed to be made, just because he is not there in circumstances where what you say about him impacts immediately upon the accused who is present.  That protection surely must apply to both.  

	So when my learned friend says that once when Traglia had volunteered - and this is the volunteered part - that Veniamin was brought along not as protection, but because he is a hired a killer, a professional killer.  That is the inadmissible part and that, together with the immediate joinder of my client as having done the jobs with him and, as I say, the only jobs conceivable in that sort of context, were hits as a driver, that created an impossible situation and once one comes to the conclusion that his Honour effectively directed the jury that they should take into account what was said by Traglia, including impugning my client, it was game set and match because whatever we did with Traglia a jury would say, but he was not challenged on this.  

	The reason he was not challenged on this is because we could not challenge it.  Veniamin was not there to challenge it and we could not challenge it.  It follows from that that we were put in an impossible situation.  A miscarriage of justice occurred, inadmissible evidence was given and the reason we need special leave is because there is not sufficient authority on the issue of what happens when an absent co‑accused, whether through death or separate trials, is maligned in that way because unless this Court intervenes what we might find is that in the next trial – and we make the point that this is not merely academic – we might find ourselves faced with the notice of additional evidence saying “We are going to lead Mr Traglia” - who is the sole witness once again in that sense – “to say that Veniamin was a professional killer and that Orman did jobs with him”.  What is more he has been convicted of one already.  That is if we do not get special leave and if we do get special leave that trial will go off to await the decision.  So that is my response, your Honours.

GUMMOW J:   We are not satisfied, upon consideration of the circumstances that arose at the trial, that any issue of principle emerges in this application for special leave.  Nor are we satisfied that there has been any substantial miscarriage of justice.  Accordingly, special leave is refused.

AT 10.09 AM THE MATTER WAS CONCLUDED