Poland v The State of Western Australia [2016] HCATrans 24 (12 February 2016)

Last Updated: 15 February 2016

[2016] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P33 of 2015

B e t w e e n -

ALLAN RONALD JAMES POLAND

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 12 FEBRUARY 2016, AT 2.36 PM

Copyright in the High Court of Australia

MR J.L. GLISSAN, QC: May it please the Court, I appear with my learned friend, MS M.R. BARONE, for the applicant. (instructed by Barone Criminal Lawyers)

MS C. BARBAGALLO: May it please the Court, I appear with my learned friend, MS A.C. LONGDEN for the respondent. (instructed by Director of Public Prosecutions (WA))

FRENCH CJ: Thank you.

MR GLISSAN: Your Honours, if I can start this in a slightly unusual way perhaps for a special leave application. It is commonly said that hard cases make bad law and one of the things that has to be acknowledged at the beginning of this case is that this offence was a particularly unpleasant one. There were three counts. It is only the third of which which is agitated in relation to the question of special leave.

FRENCH CJ: Can I just mention, Mr Glissan, apparently there was some suppression order made by the Court of Appeal.

MR GLISSAN: Yes. Your Honour, that actually informs, in a sense, part of the special leave application in a way. The order that was made by the Court of Appeal was not for the protection of the identity of any person except to this extent, that the victim who was the victim of the unusual and very unpleasant sexual assault which informed count 3, now has no recollection of the offence and the court was astute to protect him from it ever being brought to his attention that he had been the victim of such an offence.

That becomes a really important factor in how your Honours might consider this special leave application for this reason. The hearsay component of it, if I can put it in that way, depends in large part on a contemporaneous statement of what had occurred by a man who was 89 at the time. Within a short period of the commission of the offence and within a very short period within the compass of the statements, he reported to three separate sets of people, and to a total of four people, that he had been the victim of an assault by not one but four people whom he described as coloured.

GORDON J: Is not your problem in relation to this ground the lack of the high degree of reliability of these statements? I mean, you have to, do you not, deal with what is set out at paragraphs, I think it is 225, really 226 to 228, I think, of the Court of Appeal’s reasons which set out what they seem to rely upon as failing to get to that level of reliability.

MR GLISSAN: That is something I do propose to deal with, your Honour, yes. But in that particular context, it goes to two things. It goes to both the concept of admissible hearsay and as well the question of res gestae.

GORDON J: Yes.

FRENCH CJ: So far as the res gestae aspect of it is concerned, and maybe it spills over into the hearsay question, there were, in essence, evaluative judgments made. It is not a bright line test that you have for determining whether something is res gestae. So, how does a question of principle emerge out of that?

MR GLISSAN: That, really in part, is the reason that this is an appropriate vehicle for special leave because that absence of a bright line, that language of range, if you like, is precisely the kind of thing in which some modern and reasoned approach that goes beyond what was said by Lord Wilberforce in Ratten or what was picked up your Honours in this Court, subsequently in very brief terms in Papakosmas, is concerned.

GORDON J: Can I ask a question directed at that then? What is missing or wrong with the principle set out at paragraphs 219 to 222 in respect of those principles?

MR GLISSAN: Your Honour, as we have said in the written submissions, it is not that there is anything wrong in the statements of principle as they are set out, but it is in the way the Full Court, in particular in Western Australia, or Justice Mazza, has interpreted them and confining them in such a limited way - go back to Ratten in the first place or if you go back to the general thrust of the admissibility of hearsay and the exposure of a more generous approach to the reception of hearsay, one of the things that is always regarded as an essential touchstone in that regard is, as your Honour the Chief Justice has said, there is no bright line, there is no hard focus that can be imposed and there are.....of factors that need to be reflected.

To go back a step and to try and deal with a question that your Honour raised with me earlier, that list of reasons that it was said these statements might be unreliable, is something that really needs to be taken – and this is part of the answer to the other question – contextually. The context is all in relation to this.

Let us go through, if I may, with respect - take your Honours through those things that are set out at 226. The victim’s age – 89, at assault - after the assault, although, as you would understand, shocked and, perhaps, confused, he had throughout a Glasgow Coma Scale score of 15. The Glasgow Coma Scale is completely misrepresented in the material before the Court. It is not for me to go into evidence from this Bar table of all Bar tables, but it is a measure of consciousness and alertness.

Certainly, it is not a measure of cognitive function. But what is being considered is that very factor of consciousness and alertness in whether or not people are able to report, and report accurately, that which has occurred. He was 89 at the time of the event. By the time the matter came to trial, where his evidence was given and was accepted, that evidence was, “I can no longer remember much of what happened”.

FRENCH CJ: He was cross-examined about the presence of another person, was he not?

MR GLISSAN: He was and he made concessions in relation to it. They were not clear concessions but by that stage, part of the reason that deals with this suppression order that your Honour the Chief Justice raised with me was because he had forgotten the very existence of the underlying facts. His recollection at trial – because it was given on oath and was “I cannot really remember” – to deprive an accused person of the opportunity of putting before a court as evidence of the truth of what was said the contemporaneous material that would have entirely allowed him to escape conviction cannot be to do justice to him - to accord with what Sir Wilfred Fullagar said in Mraz was Sir Leo Cussen’s great guiding principle, that an accused should have a fair trial according to law.

This man was denied the opportunity to put what would in any State which operated the Uniform Evidence Acts – New South Wales, Victoria, at least – have been clearly admissible hearsay as evidence of its truth. In terms of whether or not this is therefore a vehicle that is apposite for a grant of special leave, obtaining uniformity in the understanding of the law of hearsay throughout Australia is no small reason for advancing a grant of special leave.

Let us move to the second, not his age. At the time he went to the front door he was not wearing his glasses. It was dark when he went to the front door. All that is asserted is, in the material that was rejected, that he said there were four of them; they were coloured. There is no specific description. There is no specificity of observation. It is something that anyone with any eyesight - - -

FRENCH CJ: What are you doing here? You are challenging the factual bases upon which the Court of Appeal made a finding of unreliability?

MR GLISSAN: I am challenging the conclusion which the judge in the Court of Appeal - - -

FRENCH CJ: By reference to the material, the way they characterised the evidence?

MR GLISSAN: In the way they characterised it. May I put this, because this is a really important thing to distinguish – it is not as though this material was not before the jury. The real problem was this was before the jury in such a way as, assuming that they were not recreant to their oath, they were not permitted to take it into account. That appears – and we have set it out, obviously – at AB 37 to 38, which I should probably take your Honours to, where, at the foot of transcript 1447, her Honour says:

You’ve heard detailed submissions on that from both counsel . . . So if you find that [Mr B] did tell Constable Wooler . . . that there were four, that is not evidence in fact that there were four unless - - -

FRENCH CJ: Perhaps I can just suggest you do not mention the name of the person, and the transcript can be directed to delete reference to the name.

MR GLISSAN: Thank you, your Honour –

He said he couldn’t confirm that. But it is evidence to which you can have regard in assessing –

his reliability. If you take Mr S’s evidence out of account, there was simply no evidence that assisted the accused at all as to how many people were there. The unchallenged and unchallengeable balance of evidence meant that he was, to put it in the traditional terms, deprived of a fair chance of acquittal to which he was otherwise entitled. The Crown acknowledged that much in the way it conducted the case.

That evidence was not left to the jury at all in any meaningful sense. That charge is repeated at AB 62 to 63, in almost the same terms. At that point, dealing with the prosecution’s submission, her Honour crystallises the submission between line 40 on page 62 and the top of page 63. Effectively, the central issue in the trial was withdrawn from the jury by this exercise.

We then take your Honours to what is perhaps the next most compelling thing that can be found in the judgment of the court below which recognises, we would respectfully say, the injustice that is inherent in that rigid application of a hearsay rule which does not pertain in the other States but declines to deal with it, reserving the position to your Honours, saying at page 229:

Mr Poland’s counsel submitted that this court could, and should, extend the common law exceptions to the rule against hearsay, rather than leave the matter for the High Court.

Their Honours go on to say in 230:

Such an exception, if it is to be recognised, is a matter for the High Court or Parliament.

Well, other Parliaments have spoken about it. It is not often one has the benefit of making a special leave application that is, in a sense, supported by the judgment appealed from, but there it is. Both the issue of res gestae, which has not been addressed for a long time in this Court, and not in a detailed and rational way, and Ratten was a very different case – and a very long time ago – and the issue of this kind of firsthand hearsay needs to be addressed.

One of the issues is the issue - and this is another area where we take strenuous objection to the way the court below dealt with it - is the very narrow constraint that is put on the concept of contemporaneity. These events occurred to the victim between 10.30 and midnight, in broad terms. Within a half hour he is making a statement, whether res gestae or a hearsay statement, as to what occurred or a complaint if it was a matter which would permit of complaint – and an analogy that is not irrelevant in some ways - he is making that complaint to the first people on the scene who see him immediately - son-in-law and daughter, police officer, consistently “There were four – there were four”. Goes to the hospital, repeats the same thing to a doctor, the doctor who sees him fully conscious.

The accused makes no demur to being present at the scene. The case is conceded by the Crown and, again, unusually in appellate proceedings and certainly unusually in my experience in special leave applications, the Crown says in its submissions there is no factual dispute between the Crown and the appellant. I respectfully agree with that other than, going back to that material which your Honour raised with me before, the conclusions that are to be drawn from the factual material that led the court to the conclusion to which it came, and going back to that list again, we have dealt with age, his failure to be wearing glasses but what he was to see was only the number of people, that it was dark. He was rendered unconscious for a period of time by multiple blows to his head. Yes; he lost the sight in one eye, yes; he sustained other very serious bodily injuries, yes.

But every victim of every assault, in every trial, in every case in this country is permitted to give in circumstances where they have been rendered unconscious for a period of time – they may have sustained serious injuries such as the loss of sight or sustained other serious bodily injuries – are permitted to give evidence of their recollection.

Here we have a circumstance in which the evidence of that recollection, at the very moment at which he is first seen afterwards, is excluded from the consideration of the jury because one must necessarily say it was so fatal to the Crown case that had it been received, a conviction based on the material which included that evidence, unless the jury had been able to conclude that he was unreliable at the time, could not stand.

The next thing which is important to take into account in that behalf is this, that there is no evidence - notwithstanding the list to which your Honour referred me a few moments ago - before the court that his recollection was or would have been unreliable. It is an inference that is sought to be drawn absent evidence, and where he does come to give evidence where he has been in an induced coma, he has had extensive periods of treatment which are the kinds of treatment which in the ordinary event are likely to induce post-traumatic amnesia - - -

FRENCH CJ: If he had made statements referring to identifying characteristics of your client which he had later forgotten, they could be used by the prosecution on your argument?

MR GLISSAN: Indeed so, but it is his later forgetfulness that really informs this part of the case that says this is really important, both from the point of view of this case as a vehicle in terms of fairness and justice, but also in terms of the court needing, the community requiring the court to look again at what is the scope, what is the scope of hearsay in circumstances such as these because this is not a unique case by any means. It is an unusual one certainly but not a unique one.

So that the issue, and again, I have not taken the Court to the written submissions which we put in we hope with a reasonably adequate analysis of the law and the facts, but this is a case where there is a real element of question as to the fairness of a trial where such firsthand hearsay which is commonly accepted in jurisdictions across Australia is excluded as evidence of truth and an accused is deprived for that reason of a fair trial, according to law, or, if you like, a fair chance of acquittal which would otherwise have been open to him.

GORDON J: Mr Glissan, what is the response to the contention that, even if one was to accept this expanded proposition or principle in relation to hearsay evidence which seems to be set out at paragraph 229, that the facts here would not meet that relaxed or more expanded view - - -

MR GLISSAN: Well, that depends on whether your Honour is - - -

GORDON J: - - - so that really goes to the question about the appropriate vehicle.

MR GLISSAN: I am sorry, please do not think - - -

GORDON J: That is all right. It goes to the question about appropriate - - -

MR GLISSAN: In terms of the issue of res gestae or in terms of a new exception to hearsay rule, that is precisely the nature of the material that would need to be agitated before the Full Court of this Court in order for that question to be answered. It fairly raises the issue of what would be the context, if you like, or the matters which would go to make up that new exception to the hearsay rule terms not far away from the Uniform Evidence Acts.

GORDON J: So the last line at 230 of Justice Mazza’s judgment which again ties back to the factors set out in 226 is what you identify even on the expanded version as an error?

MR GLISSAN: Yes, your Honour. I see my time has expired.

FRENCH CJ: Thank you, Mr Glissan. We will not need to trouble you, Ms Barbagallo.

In our opinion the application does not disclose sufficient prospects of success on an appeal to warrant the grant of special leave. Special leave will be refused.

AT 2.57 PM THE MATTER WAS CONCLUDED