Efandis v The Queen [2014] HCATrans 182 (15 August 2014)

Last Updated: 21 August 2014

[2014] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M27 of 2014

B e t w e e n -

VASILIKI EFANDIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 2014, AT 2.32 PM

Copyright in the High Court of Australia

MR R.A. LAWSON: If your Honours please, I appear with my friend, MR N.R. LESLIE, for the applicant. (instructed by Gaffey and Chintulda Lawyers)

MS S.M.K. BORG: If the Court pleases, I appear on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

CRENNAN J: Yes, Mr Lawson.

MR LAWSON: Your Honours can see at the second volume of the application book at 587 the beginning of the applicant’s summary of argument.

CRENNAN J: Yes, we have that.

MR LAWSON: She sought a time extension, having been convicted in September - November 2008. She sought leave to appeal coupled with an application for an extension of time with documents filed in August 2013 which was in excess of four and a half years. So when the Court of Appeal dealt with the matter in March this year, there were two questions. First, could a time extension be given and, secondly, on the merits, should leave to appeal be granted. The Court of Appeal decided the matter - - -

KIEFEL J: Well, the merits affect the first question as well, do they not?

MR LAWSON: Yes. The Court of Appeal decided the question 12 days later on 19 March and the principal judgment was from Appeal Justice Weinberg, which begins at 567 in the second volume of the applicant’s book. The Court of Appeal, we say, rightly regarded the authorities that governed the question of a time extension to be Darby’s Case and cases that had followed it and the six principles of Darby’s Case were set out by his Honour and they appear at 574.

His Honour has made, with respect, two errors. The first is to regard as he has principle (6) set out at 574 as paramount. So his Honour has said this application which is, first of all, seeking an extension of time is so late. Principle (6) which says an applicant must give a reasonably satisfactory explanation of the tardiness has not been forthcoming and that is the end of the matter.

KIEFEL J: Well, this would not be first occasion on which a court has held that a failure to provide such an account is essential to an extension of time.

MR LAWSON: There was, in the court below, two affidavits before the Court: one sworn in August 2013, a second sworn in the first week of October 2013 by the applicant’s sister and a further affidavit sworn by the principal of the firm who was acting for the applicant then. The explanation of the delay has been adverted to by his Honour in the first 47 paragraphs of the Court of Appeal’s judgment which finishes up at 576 in the application book. Paragraph 47 at the bottom of 576 in the application book is critical because his Honour says:

It would be sufficient to dispose of this application simply on the basis that no reasonably satisfactory account of the failure to comply –

and so on. That is the sixth principle, listed (1) to (6) in Darby’s Case. Whether an explanation for delay is satisfactory or not it is, to some extent, inevitably subjective. His Honour has adverted to - - -

KIEFEL J: Well, that makes it more difficult for you to show error.

MR LAWSON: The error is that where, as here, you have a circumstantial case because the sole ground, the sole substantive ground here and back in March is that the verdict was unsafe and unsatisfactory. If you say, as has been done in the intermediate court, you are simply too late, then the applicant is hamstrung because one of the reasons in Darby, which has been followed for the last 35 years – one of the reasons why lateness will be excused is if you have a good case on the merits.

KIEFEL J: That is what his Honour went to deal with, the case on the merits probably, in part, because of that.

MR LAWSON: The problem is that, at paragraph 47, towards the bottom of 576 in the application book, he is not – his Honour, with respect – looking at the merits of any substantive appeal because it is part of the Darby principles. He is looking at it, not for those reasons, but for erroneous reasons because, as he says at paragraph 47:

the applicant is facing a long sentence and, for that reason alone deserves to have –

the merits looked at -

at least to the extent of seeing whether it is at all arguable.

KIEFEL J: It does not really matter based upon which his Honour says that he is going to give consideration to the prospects of success in relation to the argument because you have to deal with it in any event. Even if you could show that his Honour was somehow in error in finding that there was not a sufficiently satisfactory account of the delay, in the end result you have to deal with his Honour’s view of the evidence.

MR LAWSON: The problem with his Honour’s view of the evidence is that it offends M v The Queen because M v The Queen says that the function of an appeal court in reviewing evidence to the question, is this verdict unsafe and unsatisfactory, the function is to review the whole of the evidence.

CRENNAN J: But both of their Honours did precisely that. At page 581 of the application book, paragraph 65, Justice Weinberg says:

Having reviewed the evidence for myself, and considered it as a whole, I entertain no such doubt.

Then Justice Coghlan, separately, indicates that he has also made his own assessment of the evidence.

MR LAWSON: With respect, your Honour - - -

CRENNAN J: So have not their Honours acted entirely in accordance with the statement of principle in M as explained in MFA?

MR LAWSON: They say they have but, with respect, there is much evidence that is not adverted to in paragraphs 58 to 65 which is the substantive discussion of evidence. When I say paragraphs 58 to 65, what I am referring to is 579 to 581 of the application book. All that is mentioned in those closing two pages are the telephone tower statistics, the two prison informers, a teenager called Anthony Wright, and a middle-aged man who was the applicant’s gardener, called Peter Culvenor. That is the sum total of the discussion of the evidence.

If you have regard to the list of witnesses at pages 2 and 3 of the thick first volume where the presentment witnesses are listed, there is no discussion of Dr Drummer. There is no discussion of Miss Mladenovski. There is no discussion of Mr Obradovic. There is no discussion of.....There is no discussion of a number of important witnesses.

CRENNAN J: But their Honours are considering the whole of the evidence in the context that it was part of the applicant’s case in relation to delay that delay should be considered in the context that this was a circumstantial case which, she would have it, was weak. That is the context. That is the argument to which their Honours have responded – in particular, Justice Weinberg in dealing with those aspects of the evidence.

MR LAWSON: Yes. The beginning of his discussion of the evidence and the conclusion of his discussion of the evidence do not, with respect, match because when you get to paragraph 47 which is at the bottom of 576, the purpose for his inquiry into the evidence is:

the applicant is facing a long sentence and, for that reason alone deserves to have her case considered, at least to the extent of seeing whether it is at all arguable.

That is not M v The Queen.

KIEFEL J: But given that his Honour has, as Justice Crennan has taken you to, said that he has reviewed the evidence, what his Honour appears to be doing in the passages which follow is to identify those aspects of the prosecution case which would in his view have been compelling on the basis that, really, you would need to – the client would need to have overcome them.

MR LAWSON: The central question in the strength of the evidence is phone tower statistics. What his Honour - - -

KIEFEL J: And the gardener, I think – and the evidence of the gardener.

MR LAWSON: The evidence of the gardener. But the most compelling is the strength of the telephone evidence and in speaking of that - - -

KIEFEL J: By which one infers the accused sought to establish an alibi.

MR LAWSON: Yes.

KIEFEL J: So a failure of that and proof in the result that she was at the home when they were sent is fairly devastating.

MR LAWSON: Bear with me, your Honour. There are two houses to be talked about. They are both near Bell Street, Preston. They are a kilometre apart. She lives in one. He lives in the other. They are a couple in an intimate sense but they do not live under one roof. He lives at Bellfield. She lives at Ivanhoe. The common ground which is conceded in paragraphs 4 to 6 of the applicant’s summary which appears at page 588 of the application book was their routine for all of 2004, up to the date of death on September 9. Paragraphs 4, 5 and 6, which are at page 588 of the applicant’s book – the factual background, Part II, is common to the parties before you today.

Almost every day for eight months she would go from her place to his place in the late afternoon, cook dinner, sit for a while and leave at 10ish. That went on, day after day, all the way through to early September. They would start their day living under separate roofs. So the routine developed of him sending her a text message and she sending him one in the morning and in the evening. So that almost like clockwork, after breakfast they would swap texts and when she left at 10.15 to go back home, on arrival they would do the same.

That is the basis for what is the phone tower evidence because the Telstra prosecution witness looked back for three and a bit months – he looked back from September 8 to June 1 which is exactly 100 days. He looked at a hundred swapping of texts at breakfast and a hundred swapping of text after dinner. Some were repeated so that there were 238 messages to be talked about and the way the evidence unfolded was to say the tell-tale Preston tower happened once on the night of the death. Therefore, the odds of her being home, which she claimed to be, are remote because the odds are 238 to one.

That is what his Honour Justice Weinberg had said when he describes the power of that evidence as almost irresistible. He uses that phrase “almost irresistible” at the top of page 580. The point about it is that it is a matter of – that is, put down your glasses, that is it. She must have been at the crime scene. She cannot have been home and the tell-tale phone tower points that way. The trouble with that is that the odds were never 238 to one and this is what has been adverted to in the summary of argument at paragraph 11 on page 589 - 238 is a seductive number but that came from secondary material.

The technician, Mr Wilson, in inviting that conclusion was using secondary material, namely, exhibit AN, which was a vast, 80-page spreadsheet. He did not rely on the original telephone records of the applicant’s phone usage in the relevant months which were in the committal brief. What those records show is that the odds, 238 to one, are exaggerated tenfold. In reply to paragraph 11 on page 589, it is simply said by the Crown at the top of 603 in the application book:

The Telstra records. . . formed part of the brief of evidence in the possession of the defence, and were able to be tendered –

from which, presumably, it flows but they were not and it does not matter. The other problem with the spreadsheet just quickly was it was very, very difficult because it did not confine itself to the calls or texts sent by the applicant to her boyfriend and vice versa. It included every text message she sent for three months. So there are 30,000 entries.

The reason why the odds are overstated tenfold is that there are morning texts bouncing off the controversial Preston tower and that is why

everybody at the trial, the trial judge included, defence prosecution, everyone thought we are working on the footing of 238 to one and we are doing nothing of the kind. So that if one goes to the sentencing remarks, which is much earlier in volume 2, his Honour regards the phone tower statistic evidence as equally as irresistible as Justice Weinberg. So the 13th and 14th jurors – if one can call them that, in the person of the trial judge and his Honour Justice Weinberg - - -

CRENNAN J: Just a moment, his Honour Justice Weinberg finds that the inference for which the Crown was contending in relation to this was not merely open but almost irresistible.

MR LAWSON: Almost irresistible, but the problem with doing that is that is on a false premise.

CRENNAN J: Justice Weinberg was certainly conscious of the argument which you are putting now because he deals with it in paragraph 60.

MR LAWSON: Well, my recollection of it was that it was given short shrift and just like the jury was at risk of having done, the trial judge and the Court of Appeal said look, you are damned by the statistics of the phone tower material that put your claimed return home as very unlikely. Statistics do not lie. They say the odds of you being home and therefore innocent are 238 to one, when in fact they are 25 to one and that assertion in paragraph 11 of the applicant’s summary of argument is not disputed. In paragraph 19 of the respondent’s answer which is - - -

CRENNAN J: I think your time is up, Mr Lawson, so if you finish your sentence.

MR LAWSON: If your Honours please.

CRENNAN J: Nothing more to say, thank you. Ms Borg, we will not call upon you.

The Court of Appeal of the Supreme Court of Victoria applied established principles to the facts of this case. The Court of Appeal’s decision is not attended by sufficient doubt to warrant a grant of special leave to appeal. Further, we are not persuaded that the interests of the administration of justice require a grant. Special leave to appeal is refused.

Adjourn the Court till 10.15 am, Tuesday, 2 September in Brisbane.

AT 2.54 PM THE MATTER WAS CONCLUDED