Tema v State of Western Australia [2011] HCATrans 336 (9 December 2011)

Last Updated: 13 December 2011

[2011] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P10 of 2011

B e t w e e n -

MICHAEL TEMA

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 9 DECEMBER 2011, AT 12.19 PM

Copyright in the High Court of Australia

MR M. BAGARIC: May it please your Honours, I appear on behalf of the applicant. (instructed by Mirko Bagaric Lawyers)

MR B. FIANNACA, SC: May it please the Court, I appear on behalf of the respondent. (instructed by the Director of Public Prosecutions (WA))

HAYNE J: Yes, Mr Bagaric.

MR BAGARIC: Your Honour, this is a somewhat bizarre case. Three people had the opportunity on 19 December 1996 to place drugs behind the fan cover in room 12 of the Great Eastern Motor Lodge in Perth. Two of those people have got extensive criminal records for matters, including drug matters. They were both investigative officials. The third person is the applicant, my client. This was never put to the jury. The reason this was never put to the jury is because prior to the three-day trial the prosecution did not disclose to the applicant and his counsel that the main agent in this matter, Mr Eddie – that is his pseudonym – that he had prior convictions, that he in fact had extensive prior convictions. It also was not disclosed to him that Mr Eddie was, in fact, an authorised undercover officer.

It is my submission that an accused person cannot get a fair trial where prior to the commencement of the trial the prosecution do not disclose the prior convictions of the main person involved in the transaction. An accused person cannot get a fair trial where prior to the commencement of the trial the prosecution do not disclose the status, ie, lay person or investigative official - - -

KIEFEL J: When did the prosecution come to know of this?

MR BAGARIC: The defence came to know of this in terms of the prior convictions at the start of the second day of the three-day trial.

KIEFEL J: But when did the prosecution come to know of it?

MR BAGARIC: The prosecution were aware that Mr Eddie was an undercover police agent since 1997. This matter was never disclosed to counsel. It profoundly changed the orientation of the case.

KIEFEL J: I think it was mentioned in the Court of Appeal that your client had an opportunity and was offered an adjournment to consider his position when the - - -

MR BAGARIC: That is correct, your Honour.

KIEFEL J: And a decision was made to proceed.

MR BAGARIC: At the commencement of the second day of the case, once defence counsel had already opened on the basis that Mr Eddie was a mysterious man and that my client was set up by someone but they do not know who, once five of 10 witnesses had already been examined and cross-examined. On the second day - - -

HAYNE J: But terminate - - -

MR BAGARIC: On the second day - - -

HAYNE J: No, just a moment. Terminate the trial at that point, discharge the jury and start again. That was the application that was open.

MR BAGARIC: Yes, your Honour. There are two fundamental issues at play here. The first one is whether or not an accused can in any circumstances waive the right to a fair trial where the breach is caused by the omission of the prosecution. If that is the case, if an accused can waive the right to a fair trial by breach caused by the omission of the prosecution - - -

KIEFEL J: You say waive the right to a fair trial. A decision was made to proceed when an opportunity was given to at least adjourn or, as his Honour has said - - -

MR BAGARIC: Yes, your Honour. A decision was made to proceed in circumstances where the accused’s counsel had already laid the foundation for his case which did not include two important considerations – two important facts; firstly, the main person was an undercover police officer, the second consideration being that he had prior convictions. If it is at all possible - - -

HAYNE J: But it is a common place to discharge the jury and start again with a clean slate.

MR BAGARIC: What was at consequence here, your Honour, was the right to a fair trial. If that can be waived, if it can be waived, it must be waived in a manner which is with a free and informed consent of the accused. The decision made here was not with a free and informed consent of the accused. It could not have been. My client was remanded in custody for six months prior to this trial. If my client decided to seek an adjournment, the consequence of that, knowing that my client had been denied bail, also knowing that there had been two previous aborted trials which took nine months to get on again, the consequence of my client - - -

KIEFEL J: No, if the jury had been discharged, you would just - - -

HAYNE J: Start again.

KIEFEL J: - - -start again immediately with the same panel.

MR BAGARIC: That is certainly not a factor that was actually open to him – that certainly was not a consideration that my client was aware of. His previous experience with this very case, with this very legal system; the first occasion in 1998 the trial commenced. It was aborted after one day because a prosecution witness was not available. Nine months later the trial starts again, there was no retrial immediately afterwards. Nine months later another trial is scheduled. That trial is aborted because at the last moment the prosecution provided new evidence, being the fingerprint evidence. At that point in time my client did not object to an adjournment and to the trial being aborted. What profoundly changed the dynamics in this case was that in this situation my client was in gaol. The likely consequence of him actually electing to abort the trial, have the trial again, to ascertain whether or not Eddie was dead or alive – the prosecution in this matter did not even know whether Eddie, the main agent in the transaction, was dead or alive.

KIEFEL J: Can we just go back to the question of when the defence understood about Eddie’s position. It was said in the Court of Appeal that by reason of the information given at the preliminary hearing in 1997 it would have been known by the defence that Eddie had been in communication with Paton before the search and the drugs were found and that it was obvious that Eddie had not been charged as a co-offender and that it was a fairly clear inference to be drawn from that who Eddie was and the capacity in which - - -

MR BAGARIC: The response to that is that my client had his liberty at stake. He was charged with an offence that has got a 20-year maximum. The defence should not be left guessing as to the exact status of Eddie. What was not known, the defence counsel at this trial on transcript said he - - -

KIEFEL J: There must have been some real questions about him.

MR BAGARIC: Yes, there were some absolute real questions. The answer to that comes from the case of Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593 where the High Court definitively stated that the defence should not be required to fossick for information. That is information that should have been provided to the defence before the start of the trial so that the defence can make an informed decision how they deal with that information. Defence counsel on this particular occasion expressly said to the court he had a suspicion that Eddie may have been an informant, not an undercover officer.

The reason why that distinction is very important. If I refer you to my list of authorities, under the Misuse of Drugs Act 1981 (WA), section 31, pursuant to which Eddie was appointed as an undercover agent, that authorises this person Eddie to possess and to carry drugs. My client’s defence from 1996 in his record of interview, “Not me. Someone else carried these drugs from Melbourne to Perth and they put it behind the fan.” Lo and behold, 15 years later it turns out that the central player, the person that actually travelled with him from Melbourne, organised the trip, it was his project, is actually authorised to carry drugs. That was the other part of the jigsaw. That is the part of the jigsaw the jury never knew about in order to actually supplement the set-up case, the planting defence that my client had.

KIEFEL J: What do you say about the circumstantial evidence which I think the Court of Appeal described as a strong circumstantial case, in particular, the newspaper?

MR BAGARIC: That is a mischaracterisation of the circumstantial evidence. Firstly, this was an entirely circumstantial case. Many of the circumstances in fact pointed just as definitively to a setup as opposed to the fact that my client was guilty. Number one, when the drugs were found under the fan cover – firstly, it was unusual that someone would carry drugs from Melbourne, 479 grams, a small package, carry it on his body from Melbourne, check into a hotel and rather than keep it on his body, on his person, he would actually secrete it behind a fan cover, a fan which was put on with, presumably, disbursed valuable items.

It was unusual that when the drugs were secreted behind the fan cover, this valuable item, the fan, was protruding thereby inviting inspection. It was unusual that the drugs were wrapped in a newspaper which was four days old at that point in time. The police then go and execute a search on my client’s house eight days after the arrest and that exact newspaper with those missing pages is there. What is particularly unusual about that and odd is that the police in relation to this supposedly very important investigation, they would not conduct the searches simultaneously. It would make sense to actually conduct a search in Perth at the hotel where my client was situated and simultaneously at his house in Melbourne. That did not happen.

The reason it did not happen is because the police waited for police officer Paton to return from Perth to Melbourne so he could get back to Melbourne and plant the newspaper and the scales. The evidence was equally pointed towards the evidence at the case. The number of oddities, irregularities, was equally pointed, in my submission, to my client being set up as opposed to him bringing the drugs to Melbourne. That is a mischaracterisation of the evidence in this matter. There was an alternative rational explanation which got far more rational, far more plausible if the jury had known that not one but the two main agents in this matter were corrupt.

This matter went to the jury, the jury thinking that the police officer, or knowing the police officer that was in charge of this investigation had been convicted of two serious drug offences and was sentenced to six years imprisonment. What they did not know is that the other person involved also had prior convictions for drug offences, assault offences, firearms offences, dishonesty offences. Set-up defences are very difficult to maintain. Normally they are not plausible. This one was. The two central agents were corrupt. My client had no relevant prior convictions. The two central agents were communicating with each other. They had contacted each other. They had the opportunity to put the drugs behind the fan cover. That was not told to the jury. My client lost an opportunity for a conviction. My client did not give free and informed consent to his right to a fair trial being abrogated. The inducement of liberty overwhelmed my client’s decision in terms of whether or not he should proceed or not.

If this decision is allowed to stand – the law of disclosure – prosecution disclosure in Australia which affects every criminal trial in Australia – this decision stands for the proposition that the right to a fair trial in those circumstances can be whittled away by an inappropriate, stressed, rushed decision by a client to decide to bat on on a sticky wicket in circumstances where he knows if he does not, he will remain in gaol for another six to nine months. The right to a fair trial is far more important than that. If the right is to be waived, it has got to be in an informed and a free way, and it was not. My client did not have that opportunity.

Your Honour, those matters relate to ground 1, ie, non-prosecution disclosure. This matter could have been easily remedied by, number one, the prosecution before the trial given the defence a copy of the prior convictions, secondly, saying this guy is an undercover police officer, he is not a lay person. It would have profoundly changed the direction and the orientation of the trial. Point number two, the prosecution should have called Eddie. Eddie was the main person involved in this transaction, his project to come to Melbourne, he was in contact with my client all along. Prosecution did not call Eddie because it had information that 13 years ago, 13 years before this trial, he was an undercover agent and as a result of public interest immunity, did not have to be called.

What the prosecution should have done in light of its responsibility to give all relevant information to the accused and to make an informed decision about whether or not to call the witness, which Richardson says must be done with fairness to the accused, they should have ascertained, number one, what was Eddie’s status in the year 2009? Was he dead? Was he alive? The prosecution on transcript saying they did not know whether Eddie was dead or alive – it was absolutely fundamental to the prosecution’s responsibility, pursuant to Richardson and Apostilides, to find out whether or not the main person involved in the transaction was available to give evidence. They did not do that.

Once they found out if he was dead or alive, what they were required to do next was to ascertain was he still an undercover agent. There is strong suspicions that he was not. The reason for that is because these appointments of undercover officers are made by a simple written instrument by the Commissioner of Police. They are revoked quite often quickly thereafter. The likelihood that Eddie was still an undercover agent at that point in time was small. I concede he may have been, but minimally what the prosecution were required to do in this case was to ascertain his status to make an informed decision about whether or not he should have been called to give evidence. The prosecution did not do that.

Given that the prosecution did not do that, there has been a fundamental miscarriage of justice and, in fact, a far more profound miscarriage of justice than happened in Apostilides. The witnesses that were not called in Apostilides had a peripheral role in the rape allegation.

KIEFEL J: Was the absence of Eddie’s evidence, him being called as a witness, raised at the trial?

MR BAGARIC: The fact that Eddie – I will just get back to that. Defence counsel on a number of occasions during the trial said had Eddie been called? Had they known this information, he would have run the trial differently.

KIEFEL J: Well, he might have had to because Eddie’s evidence might have made the prosecution’s case stronger against your client.

MR BAGARIC: Well, it may have, but, in any event, what my client was entitled to do – the law of disclosure in Australia pursuant to the right to a fair trial, which is a fundamental right, says my client was required to know beforehand – had not said that. Whatever Eddie did have to say was not likely to be – in my submission, could have been devastatingly attacked on the basis that this man is a criminal. He has got a 19.5 year criminal history. Ten years either side of 1996 this guy, this informer, has got an extensive criminal history. Whatever it is that he had to say, even if it actually did support the prosecution case, could have been, in my submission, significantly diminished because of his absence of credibility.

Defence counsel in this case initially opened at transcript saying Eddie was a mysterious man; that is in the judgment at paragraph 36. He then said, he expressly said, he would have expressly opened differently if he knew Eddie was an informer; that is at the judgment, paragraph 42, application book 61. My client opened to the jury, laying the foundation for the jury, saying that – sorry, the defence opened, laying the foundation for the jury, saying that Mr Tema, the applicant, was set up but did not know who by. Well, he knew who by on the second day of the trial. At transcript page 49 defence counsel expressly said he knew nothing about Eddie until now. That is after he had opened, the prosecution had opened, the first witness, the main police officer, Kirby, had given evidence.

At four different stages of the trial, on the second and third days, defence counsel said he would have run the case differently had he known about Eddie’s prior convictions and about the status of Eddie. That is at trial transcript pages 137, 151 to 152, 181 and 2004. Defence counsel was constantly complaining throughout the trial that he would have run things significantly differently had more information been disclosed to him. I understand the point my client could have elected to abort the trial. It was not a free and informed decision that was made by my client. The inducement of liberty overwhelmed his normal decision-making process. The criminal trial process should never be so unfair to put a person in that position; either go ahead with an unfair trial or stay in gaol for another six to nine months. That in itself is the indicia of an unfair trial. They are the matters, your Honours.

HAYNE J: Thank you. We will not call on you, Mr Fiannaca.

After a trial in the District Court of Western Australia 13 years after his initial arrest, the applicant was convicted of being in possession in 1996 with intent to sell or supply just under half a kilogram of powder of which 60 grams was methylamphetamine. Before the trial at which the applicant was convicted, the Victorian police officer in charge of the investigation had been convicted of offences of trafficking commercial quantities of drugs.

The man who organised the applicant’s travel from Melbourne to Perth, where the drugs were found, was referred to in the proceedings as “Eddie”. Eddie was a police informant with a history of prior convictions. The prosecution did not call Eddie to give evidence at the applicant’s trial. The prosecution did not disclose Eddie’s prior convictions to the applicant’s trial counsel until the second day of what ended up as a three-day trial, but trial counsel for the applicant sought neither an adjournment of the proceedings nor the discharge of the jury.

The Court of Appeal rightly concluded that some evidence to which the prosecution made no reference in closing submissions at the trial had been wrongly admitted. The Court of Appeal further concluded, however, that the circumstantial case against the applicant was so strong that there had been no substantial miscarriage of justice. Whether there was a failure to call a witness who could have and should have been called and, if there were such a failure, whether there was a miscarriage of justice depends on the facts of the particular case.

There is no reason shown to doubt the correctness of the conclusions reached by the Court of Appeal on these questions. Special leave is refused.

The Court will adjourn to reconstitute.

AT 12.40 PM THE MATTER WAS CONCLUDED