[2005] HCATrans 776
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M50 of 2005
B e t w e e n -
BOHDAN WEISS
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 29 SEPTEMBER 2005, AT 10.09 AM
Copyright in the High Court of Australia
MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friends, MR S.T. RUSSELL and MR L.C. CARTER, for the appellant. (instructed by Falcone & Adams)
MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the respondent. (instructed by Director of Public Prosecutions (Victoria))
GLEESON CJ: Yes, Mr Tehan.
MR TEHAN: Your Honours, this appeal concerns what Justice Brooking of the Supreme Court of Victoria once described as “a riddle”.
GUMMOW J: I am not sure it is a riddle, actually, when you understand where it all came from.
MR TEHAN: His Honour thought so.
GUMMOW J: Well, that is right but he did not have the benefit of full submissions.
MR TEHAN: The provision of course is section 568(1) of the Crimes Act 1958 (Vic), a provision which is common to all State Courts of Criminal Appeal. The appeal comes before this Court because the Court of Appeal found that evidence of the age of a girl with whom the appellant was having a sexual liaison at the time of his separation from his then partner, Jean Horstead, should not have been admitted. On 20 May of this year special leave to appeal was granted on the ground that the Court of Appeal erred in failing to quash the appellant’s conviction and order a retrial when it had found, firstly, that the learned trial judge had wrongly admitted the evidence of the age of the girl and, secondly, the court had found that it was not inevitable that a reasonable jury properly instructed would have convicted the appellant.
As to that second matter, at appeal book 1339, which is in volume 2, Mr Justice Callaway said at line 7:
If the test were inevitability, in the sense that any reasonable jury properly instructed would inevitably have reached the same conclusion as this jury, I could not apply the proviso to this case. A new trial would have to be directed.
In a footnote to that sentence, footnote 69:
Another jury might have taken a different view of Ms Horstead’s evidence or the reliability of the applicant’s confession, for this was a case that largely turned on the credibility of the two principal witnesses.
KIRBY J: Mr Tehan, I notice the two other judges in the Court of Appeal agreed with his Honour Justice Callaway and therefore with that paragraph.
MR TEHAN: Yes.
KIRBY J: But what would happen in this appeal if we were of the view that his Honour was wrong in that estimation? Is that a matter that arises in a strict appeal? There is no notice of contention.
MR TEHAN: No.
KIRBY J: But it is a matter that at some stage I would like you to answer because it is a matter that puzzles me as to whether we are bound by his Honour’s assessment. His Honour was very painstaking and looked at the videos, though he said he did not have to do so, and went through the whole evidence of the trial and many issues that we are not concerned with, but that is a matter that worries me, that you might on all of the facts of the case, particularly the confession and the nature of the matter that should have been excluded, come to a view that the proviso did properly apply in this case.
MR TEHAN: Well, our position, of course, is that if the correct test had been applied, that is, would a rational jury inevitably have convicted, then this appeal should succeed because Justice Callaway found that a reasonable jury properly instructed might not convict. In the alternative, we say that if the test were, would this jury have convicted, then the proviso was not properly applied. Our position is, to make if perfectly clear at the outset, that whatever the test is the proviso was not applicable to this case.
KIRBY J: It may be the time to ask ‑ I may have to repeat it at the end of the argument because it is a matter that concerns me in the case that Justice Callaway was being admirably transparent in stating upfront the different way he would have approached it if he had applied a different test, but upon one view, even if you applied the test for which you argue, you might come to the conclusion that the matter to which you objected and which probably ought not properly to have been admitted is not such a matter as would, by the test you propound, warrant a retrial of the accused.
MR TEHAN: Where a Court of Appeal has been prepared to find that a reasonable jury properly instructed might not inevitably convict, it would seem at first blush unfair for this Court to form a different view.
KIRBY J: Yes, I began with that position myself, but as I read more and more into the facts I was left in a state of uncertainty at the end, but maybe that is when I will repeat the question.
MR TEHAN: Thank you, your Honour. The two issues which arise out of this appeal are, firstly, what is the correct test to be applied by Courts of Criminal Appeal in determining whether to dismiss an appeal against conviction because there has been no “substantial miscarriage of justice”, and secondly, did the Victorian Court of Appeal err in applying the proviso in this case?
We answer those two questions, your Honours, as follows. Firstly, the correct test is whether a reasonable jury properly instructed would inevitably have convicted, and secondly, the proviso was wrongly applied in this case, whatever the test. We desire to present our argument in essentially two parts. Firstly, we want to take the Court to the relevant evidence, the evidence in the trial and in particular the evidence concerning the age of the girl in question, and the issues in the trial, and to argue why on any view the proviso should not have been applied to this case and then secondly, in the second part, to take the Court to the relevant authorities in this and other courts to demonstrate that the test we contend for is the correct test.
The factual summary of matters is set out at paragraphs 5 to 15 in the judgment of Justice Callaway, but there are some matters that we feel we have to bring to the Court’s attention in putting to the Court what the issues in the trial were. The murder of course occurred on Thursday, 24 November 1994. The deceased, Helen Grey, was aged 27 at the time of her death; the appellant was aged 23. Jean Horstead was aged 30. Renee Gebert, the girl, at the time of the separation of the appellant and Jean Horstead, was aged 14, and I can tell the Court that her date ‑ ‑ ‑
KIRBY J: Nearly 15.
MR TEHAN: Nearly 15. That is what I am about to tell the Court. Her date of birth is 22 May 1982. I do not think that fact is in fact in any of the papers, but with the leave of my friend I tell the Court that. It is certainly consistent with the evidence I might say.
Now, to the issues in the trial. It was common ground that the deceased had been murdered. The real issue, as identified by the learned trial judge at appeal book 1103 line 12 was who was the killer. The Crown said it was the appellant because of the confession to Horstead on the night of the killing and a confession to police in a second record of interview, which became exhibit N on the trial, and an oral unrecorded confession to one police officer by the name of Thomas before that second record of interview was conducted. The defence case was ‑ ‑ ‑
KIRBY J: That was a so‑called “verbal confession”.
MR TEHAN: A verbal confession, unrecorded verbal confession.
GUMMOW J: Oral, you mean, do you not?
MR TEHAN: Oral.
GUMMOW J: Hopefully they were not speaking other than in words.
KIRBY J: In the jargon it is called a “verbal”.
MR TEHAN: In the jargon that existed for many years in Victoria it would be called a “verbal”, yes.
The defence case was that the appellant did not kill her, but attended at her house after she had been killed, leaving the house in a panic and making a statement to police that he was home on that night for fear of being wrongfully charged with her murder. It was on his account Jean Horstead who put it to him that he should make such a statement to the police.
GLEESON CJ: Did he deny making the oral confession?
MR TEHAN: He denied making the oral confession. Indeed, your Honour, there was a real dispute as to what the conversation was between he and Thomas. That conversation was followed, of course, by the second record of interview in which the appellant claimed that the confession was false and that he made that confession consequent upon representations made by Thomas that he would get a manslaughter. Elements of that interview are starkly inconsistent with the forensic evidence. It is in fact a confession to killing by accident.
The defence case was to put it that there was a prime candidate for the killing, that is Ian Grey, the estranged husband of the deceased. He was, to summarise what his Honour said to the jury in his charge at appeal book 1267, the perfect candidate to erupt. Evidence was led through almost every witness, including Grey himself, as to animosity between he and his estranged wife.
Therefore, upon this central issue there were other issues; the credibility of Horstead, Grey, the appellant, Thomas and Mitchell, the reliability of all witnesses as to time, the relative opportunity and motives of Grey and the appellant, and the reliability of the recorded confessional statements, both in terms of their voluntariness and the forensic evidence of the death.
So the steps in the Crown case were these. Horstead was called – well, she was not in fact called. She gave evidence by way of television, by way of video link to America.
KIRBY J: The question arose at one stage as to whether she would be given an indemnity or some form of immunity. Did that ever transpire or not?
MR TEHAN: She was given an indemnity, as I understand it, and that was before the jury, yes. She was really seen as an accessory after the fact to the killing and the appellant got the benefit of an accomplice direction, although that also meant that he got the disbenefit, if you like, of what went with it, that is that the judge was then bound to point out corroboration of Horstead. The essential corroboration for her evidence of the confession was the confession to the police.
KIRBY J: One of the children that she took to the United States was a child by the appellant, is that correct?
MR TEHAN: The child Ayrton was a child by the appellant. He was not immediately taken to the United States, not taken there until some time afterwards, a year or two later. He lived with the appellant after Horstead went to the United States and ultimately her new partner, Eddie Keller came to Australia and took the child Ayrton to the United States. Indeed, I think there was a dispute involving Ayrton and birthday presents and money which gave rise to all this, the backdrop to the tape‑recorded conversations which were recorded in about the middle of the year 2000 between the appellant and Horstead.
KIRBY J: They were conversations which were initiated on the suggestion of the police?
MR TEHAN: Yes.
KIRBY J: Did they procure confessional material?
MR TEHAN: No, in fact quite the opposite. They were undertaken in circumstances where she said that she was seeking to get a conviction – at one stage during the course of the trial she used that phraseology. She invented things and put scenarios which were clearly false to the appellant in an attempt to get a confession. What is most interesting is that at no time did she ever say to the appellant, “Look, you came home that night and you told me you had killed her.” No confessional statement or admission to the killing was made in those tape‑recorded conversations.
KIRBY J: Are the transcripts of the tapes in our appeal books?
MR TEHAN: No.
KIRBY J: May that not be something that is helpful to you if they were before the reasonable jury postulated – they were in evidence at the trial, were they?
MR TEHAN: Yes.
KIRBY J: Well, I would like to see them if that is possible.
MR TEHAN: Yes, your Honour. We will take a note of that. There were matters relating to her reliability – I do not want to spend a long time on this but just to paint the picture – which are set out at appeal book 1331 in the judgment of the Court of Appeal. These were matters which were identified as important as pertaining to her credit:
1. Ms Horstead had been in a relationship with the applicant for some years and the relationship had continued after Miss Grey’s death.
Indeed, the reality is that she had stayed with the appellant, sleeping with him, for the next three years, having claimed that she was in fear of her life and wanted to leave him on the night that the killing occurred. She continued to stay with him as his partner for the next three years.
2. Ms Horstead had told false stories to the applicant on the telephone with a view to facilitating his prosecution.
3. She had a motive to stay in the United States. She was about to marry Mr Keller but her United States visa had expired.
4. She was using marijuana every night at the time of the offence.
5. Nearly six years had passed between her first statement, which provided an alibi to the applicant, and her later statement that he had confessed the murder to her.
6. The relationship had broken down because of the applicant’s ‑ ‑ ‑
KIRBY J: What is the relevance of her use of marijuana?
MR TEHAN: The use of marijuana and other drugs seems to be something that pervades almost ‑ ‑ ‑
KIRBY J: She was a – no, it was the deceased who was a dealer in drugs, was it not?
MR TEHAN: The deceased was a dealer in both amphetamine and marijuana from the deceased’s house and was in part her supplier of those drugs. He had access to the house. Indeed, the last person to see the deceased alive, one Marina Matos, who had left the deceased at about 9.30, had earlier that night received a telephone call from Grey, the estranged husband of the deceased, in which he had intimated that he wanted to speak to the deceased and the deceased had said she did not want to speak to him. Of course, she had taken out an intervention order against him the day before the killing.
KIRBY J: That came through the mouth of Mr Grey in his evidence.
MR TEHAN: It came through the mouth of Grey. It came through the mouth of other witnesses, I think in particular one Brad Connor who had, in fact, relayed that information to Grey.
The relationship had broken down because of the applicant’s affair with Renee so the jury might think that she was revengeful. She had a grievance against the applicant because he had failed to send maintenance to support his son, Ayrton, in the United States, and she had feared that she herself would be charged and had been given an indemnity by the Crown. In our submission, this was far from an overpowering case.
The next step in the evidentiary material is, of course, the tape‑recorded conversations to which reference is being made, and they were over a period – I think there were five tape‑recorded conversations over a period of some time, but as I have summarised it, no admission was made by the appellant. The previous alleged confession was not put to him, and there were all sorts of tricks and inventions and devices put to him by Horstead in order to try and get him to make an admission.
The next step, of course, is record of interview No 1 in which the appellant had put to him the statement that he made to the police on the night of the killing and he effectively adopted that statement, and made no admissions. Then there is the conversation between the appellant and Thomas, the contents of which are heavily and were heavily disputed, the Crown case being – and as I understand it the Court does have copies of the records of interview – if one goes to question 358, towards the end of the first interview the appellant was asked:
Do you know what the murder weapon was that killed Helen Gray?
From – from what I believe it was a base‑, a cricket bat or a baseball bat, one or the other.
How do you know that?
Because throughout the investigation that’s what last interview they told me, that she’d been beaten to death with a bat, so a baseball bat or a cricket bat.
Rightio. Is there – can you give me any reason for – any reason for why your DNA would be on the murder weapon?
Not at all. Not at all.
Now, that, it was put at the trial was a trick, and indeed, well might it thought to be so because in fact that statement contained in the question was false. What the police had done was sent away the cricket bat for analysis. They had not at the time of the interview received any results, and in fact when results were received some days after the interview they proved to be negative – negative in the sense that it could not be said whether there was any, or if any, whether the appellant’s DNA was on the bat.
But the relevance of that in terms of the context of the case was that after that knockout question, if you like, question 360, Thomas is called down by the appellant at the homicide squad offices – Thomas being the man that the appellant had known previously – and indicated that he had not told the truth and he wanted to make a confession, and the circumstances of that – this is on Thomas’ account, the defence being, of course, that the conversation was much longer. The time period involved, I think, was three‑quarters of an hour, the defence case being that Thomas put it to him, “Well, you are effectively gone, you better do the best you can” and to use the words put to Thomas, “Didn’t you put to him that you’d hook him up” - that phrase was used with manslaughter.
Now, the Crown said that that second record of interview demonstrated some remorse on the part of the appellant which was consistent, so the Crown said, with him being unable to confront reality and that is why he had it, so the Crown argued that it was a killing by way of accident. The next step in the evidentiary material is statements made by the appellant, which are dealt with substantially in our reply, to the effect that he had said to various persons in the 24 hours prior to the killing that he was going to go down and pop – pop her down the street.
KIRBY J: What was his suggested motive? Was it to do with a personal relationship or to do with drugs?
MR TEHAN: No, it was neither, your Honour. It is difficult to see a motive. If there is a motive, it is in a desire to deal with her because of her attitude towards the appellant concerning he telling another, that is Heenan, about rumours concerning the deceased’s sexual liaison with others. So it is a bit of a twisted path, but I will come to that in due course, your Honour.
KIRBY J: Because at one stage it was suggested that he might also have killed one of the deceased’s children, did he not?
MR TEHAN: I do not think that was put, your Honour, no. Yes, I am reminded that the witness Horstead said that she had asked him, at the time of him making the confession, about the child and he had said, “I thought about killing him”.
KIRBY J: Which bespeaks a high passion of some kind. I mean, it is one thing for an adult to kill another adult for various reasons, but to kill that adult’s child seems a bit bizarre.
MR TEHAN: Yes, completely, your Honour, but in reference to those statements, the appellant said that he could not remember making them, but he did not really deny making them, but if he did so, he did so without any intention to put them into effect. In fact, the reality is that on the Crown case this was not a premeditated killing and, indeed, that the killer took no weapon with him. Then the next step is a body of evidence concerning time, opportunity and movements of various persons on the night.
HAYNE J: Just before you develop that, can I understand where we are going with this. You are describing the facts to us. You are describing the fact that there were disputed questions at trial. Does it really go beyond that proposition, that there were disputed questions at trial?
MR TEHAN: It goes further than that in this sense, your Honour. It puts it – and it is a critical part of our case – that conviction was not inevitable in this case.
HAYNE J: Well, that, you see, invites attention to what the Court of Appeal is doing or should be doing when it is addressing the proviso. Demonstrating that there were disputes at trial is an obvious first step you have to take – I understand that – but the next step is: what is the Court of Appeal going to do about that? What is the test to be applied? What is its function?
MR TEHAN: That is the second part of our argument, your Honour. I am coming to that. I am getting there.
HAYNE J: I understand that, but at the moment I am just at sea a bit knowing quite what I am meant to be looking for in the course of this necessarily abbreviated and truncated description of facts as they emerged at a 20‑day trial.
MR TEHAN: Yes. I am getting there, your Honour.
HAYNE J: Yes.
MR TEHAN: Brad Connor was a witness who said that he had been to the deceased’s house on the night and had been there at about 7 o’clock. He left at about 9 o’clock after he had undertaken a marijuana transaction. He said that Ian Grey arrived at his house shortly after 9 o’clock and stayed till midnight, leaving on foot. He had had some three to four bongs of marijuana at the deceased’s house and another five at home that night.
In cross‑examination, although he said that Grey had stayed till midnight, he said in a statement to police, upon which he was cross‑examined, that Ian Grey and himself had gone out to get food and before they had done so they had gone to a person by the name of Adrian’s place at about 10.30 to 11 o’clock, where they had stayed for some 45 minutes, and Ian Grey had left at 12.15. He knew that Ian Grey was a prime suspect and he had said previously that he, that is, Connor, thought that he could be charged, or it was put to him by the Homicide Squad that he himself could be charged as an accomplice.
I have referred to Marina Matos, who said that Brad Connor had come to the deceased’s house at about 7.30 and had left at about 9 o’clock. She said she had left at 9.30, and I have referred to the telephone call that she received from Ian Grey just prior to her leaving. When she left she could not remember if the door had been locked.
Then there is Carolyn Heenan, who said that Ian Grey arrived at her house, leaving at about 9.30 that night. Everyone seems to have been questioned about times in terms of when a program known as The Footy Show was on and The Footy Show apparently came on at 9.27.
HAYNE J: Your ignorance is very touching, Mr Tehan.
MR TEHAN: In any event, she could not say when Ian Grey left in relation to The Footy Show. At another point she said that he had in fact left 10 to 15 minutes before it came on. Mick Havers, who was Carolyn Heenan’s partner, said that he could not recall if Ian Grey left when The Footy Show was being watched and he further said, consistent with what he had said at the committal, that he was not sure what time Grey had left.
Ian Grey himself said he had been in a hotel that afternoon for some three hours with Howard Ashley and then caught a cab to Mick Havers and Carolyn Heenan’s place. The importance of Ashley is this, that Ashley was a gentleman who lived next door to the deceased and he had been introduced into the relationship between Ian Grey and the deceased as a third partner. Independent of that matter, there was also evidence that Howard Ashley was having a relationship with the deceased. He said that he had smoked some marijuana on that night, amongst other things. He said he was clowning around, jumping out of windows – acting in a bizarre way it might be thought. He went down to Brad and Julie’s place, after leaving the Heenan’s, to take a bag of marijuana to them. He said that he had no idea what time he got to Brad Connor’s house, but that he was on foot and he said that he did not remember if he was alone when he left.
KIRBY J: What was the relevance of his evidence except perhaps as showing a motive on Mr Grey’s part, or was he propounded as a third suspect?
MR TEHAN: Who, your Honour?
KIRBY J: Mr Ashley.
MR TEHAN: No, it was motive.
KIRBY J: Motive on the part of Mr Grey?
MR TEHAN: Yes. It was Mr Grey’s evidence about that matter that I was referring to. There are a number of persons mentioned in this dialogue who were not called. Howard Ashley was not called, for example. Julie, Brad Connor’s partner, was not called. Wayne, a person who was apparently at the house, was not called. Maddocks, of course, was not called, Maddocks being the person to whom the witness Ian Grey apparently made a confession. Grey was called by the Crown and asked one question, “Did you kill your wife?” He was then cross-examined on confessional statements he had made within two months, on 10 and 11 January 1995 to Maddocks. Of course, Maddocks was not called even though the defence insisted that he be called and the judge directed the jury that the cross‑examination was of no importance at all, because nothing could be got out of it in those circumstances.
There were a number of witnesses called who touched upon, as your Honour Justice Kirby has just mentioned, the issue of Grey’s animosity and motive towards the deceased. Connor himself said that there was hostility in the relationship. He spoke of the intervention order being taken out and he telling Grey about that, Grey telling him there was no need for her to do that.
Marina Matos spoke of abusive arguments between Grey and his wife, of Grey’s concern to get custody of Stephen and of Grey spreading rumours concerning the deceased’s promiscuity. Heenan spoke of loud arguments between the deceased and her estranged husband in relation to the intervention order being taken out. When she asked Grey about that matter, why his wife would take out an intervention order, he said, on her account, “Because she knows what I am capable of”. She said that Grey said she would take Stephen.
Havers spoke of a stormy relationship and Grey himself gave evidence to this effect, and these are just some highlights of his evidence. If Helen did not pull her head in he would go for custody of Stephen. Shortly before her killing he had smashed the window of her car. He admitted that he could have threatened to punch her head in shortly before the killing. He had heard rumours of Helen Grey being in a threesome and had an argument with her concerning that matter. He had asked Helen about threatening messages left on a telephone answering machine at her house that suggested that she had had a sexual liaison with Howard Ashley.
KIRBY J: Mr Tehan, I am getting to the point that Justice Hayne was at a few minutes ago - I am always a little bit behind his Honour. In your written submissions you basically and unusually, I must say, simply said the facts are set out in paragraphs (a) to (b) of Justice Callaway’s reasons and now you are going in some way in support of your argument into quite a detailed examination of the facts. I must say if you are going to do this it is not a very efficient way to present it because we do not have the proposition and the reference to transcript which we can check and see things in context. It is really not very satisfactory, I have to say to you.
MR TEHAN: I could certainly give your Honour references to each matter that I have been dealing with. It has to be said, your Honour, that the adoption of the facts, of course, of Justice Callaway was largely on the basis that his Honour dealt with the two principal witnesses.
KIRBY J: I realise that but ‑ ‑ ‑
MR TEHAN: On reflection, your Honour, we should have ‑ ‑ ‑
KIRBY J: The Court of Appeal reasons follow the normal style of a judgment and they do not have in brackets the citation of the transcript. This is a very big appeal book and if you are checking these things, that is the efficient way to do and that is what our Rules really require. However, I will just sit here like a schoolboy taking notes of your references.
MR TEHAN: No, I will give your Honour – the references to Grey are appeal book 639 to 640, 645, 651, 661 and 663.
KIRBY J: The facts you have been propounding are quite complicated, and the relationships and the motives, and yet they may ultimately be important, certainly to me, because at the end we will come to our own judgment on the correct principle about the proviso and then its application in this case. I do not think we would be bound forever to what Justice Callaway said was his view of the application of the proviso.
MR TEHAN: The importance of the analysis, your Honours, is to show this, that it was not just a case about credit as between witnesses. It was also a circumstantial case. There were real issues about opportunity, time, movements, the condition that various persons were in who gave evidence touching those matters. Grey’s position – motives and animosity on the part of Grey, what Grey’s movements themselves were, the background of animosity held on the part of Grey. All of these things made it not just a case about credit but also a case which was circumstantial in many ways.
HEYDON J: Mr Tehan, you gave a list of references to Mr Grey’s evidence, the last two of which, if my memory is correct, was 661 and 663.
MR TEHAN: Yes.
HEYDON J: I do not have those pages in the appeal book, nor do I have them in any additional material of which I am aware has been filed since.
HAYNE J: I think his Honour may be specially favoured in this respect, Mr Tehan.
MR TEHAN: I think your Honour probably is specially favoured. I hope your Honour is specially favoured in that respect, but they are most certainly in mine, but we will make sure. I was referring to appeal book, your Honour.
HEYDON J: Yes. I jump from 656 to 669 in volume 1 of the appeal book.
MR TEHAN: I am sorry, your Honour, we will take a note of that and we will remedy that situation.
CALLINAN J: Mr Tehan, can I just ask you one question. What was the basis of the alleged anger of the appellant against Mrs Grey? Two people called at the appellant’s house on that afternoon and there was some sort of an angry discussion about rumours. I am just not clear of what they were. Can you tell me what they were? Do you know what I am referring to?
MR TEHAN: The rumours?
CALLINAN J: Yes. Just in outline. What was said to make your client so angry?
MR TEHAN: The appellant had learned from Heenan of rumours to the effect that the deceased had been involved in a sexual incident with others, probably, on one view of the evidence, either a foursome or a fivesome and ‑ ‑ ‑
CALLINAN J: What did that have to do with the appellant? What was ‑ ‑ ‑
MR TEHAN: What it had to do with the appellant was this, that that had been relayed to – he had relayed that matter to the deceased in confidence.
CALLINAN J: It had come to his knowledge that Mrs Grey had been involved in some sexual event and that he then went and told Mrs Grey that it had come to his knowledge.
MR TEHAN: About that.
CALLINAN J: And, what, then she disclosed to somebody else ‑ ‑ ‑
MR TEHAN: And then she disclosed that to Heenan and he, so it was said, became angry about the disclosure to Heenan and indeed, on the defence case his case was that he went around there that night to have a chat with her ‑ ‑ ‑
CALLINAN J: I just wanted to know what was said to have excited his anger, that is all. Thank you.
MR TEHAN: Heenan was cross with the appellant because the appellant had broken the trust between Heenan and the appellant by telling the deceased about the rumours.
GLEESON CJ: Is it the case that at the trial it was common ground that he had gone around to Ms Grey’s place on the evening to confront her about this issue?
MR TEHAN: He said to have a chat about it, yes it was, your Honour.
KIRBY J: Mr Tehan, I am getting to the hair‑tearing stage now. It looks as though you are reading a document and no doubt Mr Russell and Mr Carter have been working very hard getting these factual matters in a succinct and efficient way. Now, if there is such a document with references to transcript in square brackets as the rules, I think, require and practice certainly follows, then I would like it at some stage. I mean, we will have the transcript of argument but that is a discursive and not always efficient way to do the checking of these things.
MR TEHAN: I only have my notes, your Honour, which are in longhand. I am afraid I am old‑fashioned.
KIRBY J: What, you do not have a computer?
MR TEHAN: My friends do.
GLEESON CJ: Unfortunately the transcript of argument is often punctuated.
MR TEHAN: If we can come up with such a document we will, your Honour.
KIRBY J: If it is important to you, as it seems to be, then, if I can say so with respect, you ought not to have been satisfied with the presentation of the facts by reference to Justice Callaway’s reasons.
MR TEHAN: No, I agree with that, your Honour, on reflection.
KIRBY J: I do not think I have ever sat in a big criminal appeal like this where I have seen that before. It is not usually done. The appellant normally accepts the burden of setting out the facts that are relevant and the references to transcript.
MR TEHAN: Yes, no I accept that, your Honour. I am reminded that there is a detailed – and we do make reference to this in our outline – summary of the evidence in the judge’s charge at appeal book 1119 to 1216.
GLEESON CJ: And there is also, as is so often the case, a convenient summary of the judge’s view of the facts in the remarks on sentence which appear at page 1287.
MR TEHAN: Yes. I turn now, in terms of the case, to the defence case and I have said to your Honour Justice Callinan what it was that the defence said. He accepted that he went around to the deceased’s house on that night to have a chat. He, of course, gave evidence on oath of his movements on the night. He had coached a local Under‑7 soccer team. He had come home. He had been home for about 20 to 40 minutes and he left some 20 minutes after The Footy Show had started to go and see the deceased and he said that he walked in - effectively his evidence is summarised at appeal book 1307 to 1308 – upon the deceased, dead.
He gave evidence of the disposal of the cricket bat grip because he feared his fingerprints were on it, he having handled the bat when he went to the house. He drove past Ian Grey’s house. He noticed his car was not there. He came home to Horstead, told her what he had seen. She said, “As far as I am concerned you were at home with me all night. There is no way we are going to call the police”.
The next day there is evidence of him vomiting and he denied cleaning the clothes. That then brings us to his evidence concerning the matter that gave rise to the Renee ground of appeal at appeal book ‑ ‑ ‑
HAYNE J: Well, again, Mr Tehan, what is the point that you are now making? It is not disputed there was wrongful reception of evidence.
MR TEHAN: No.
HAYNE J: So where are we going?
MR TEHAN: Simply to tell the Court what the evidence was concerning Renee and how it came about that the Crown ‑ ‑ ‑
HAYNE J: Why do we need to get into that? What is the point that you make by reference to the way in which it all came about at the trial?
MR TEHAN: To show how devastating it was.
HAYNE J: Yes.
MR TEHAN: It is one thing to have evidence of a relationship with another woman and that being put as a motive to leave; it is another thing to have it before the jury that this man is a criminal. If at the start of this trial members of the jury panel were asked if there were any excuses, if the judge had said, “During the course of this trial you will hear that the accused was having a relationship with a 14‑year‑old girl, do any of you want to be excused for that reason?” This was absolutely devastating evidence, accepted as being completely irrelevant and, in our submission, highly prejudicial. The background to it – and I will again be as short as I can – is at 954, line 17. He started up a relationship with Renee two and a half years after the killing.
KIRBY J: What page again?
MR TEHAN: Page 954, line 17, your Honour. When Horstead learnt about that she threatened to go to the police and make it as if the appellant had killed the deceased. At 956 the appellant said that Horstead had discovered a receipt for flowers and that he admitted the affair and that she, Horstead, had rang all his friends. A 957 he said that Renee was working at a pizza shop where he was working and that Horstead had said, “If you sack her, we can start again”. At 958 he said that Horstead wanted to strangle Renee and that Horstead had threatened her. Then at 959 he said that Renee moved in. We know that the rest of the story is that Ayrton ultimately goes to the United States. There is a dispute over money for Ayrton’s birthday.
Then on the defence case, which is what I am dealing with, the defence case was – and I think it was accepted – that the police in 2000 had gone to his home and said – or at least had a conversation with him in which the appellant claimed that the police had said the person who killed the deceased did not mean to do it. He also claimed a conversation with police in the car on the way to the homicide squad where he said it was said to him, “We have got new scientific evidence; you had better start thinking of manslaughter”.
The first record of interview, of course, as I have said earlier, was a denial and an affirmation of an original statement, of the statement made some six years earlier. Then you have his evidence, of course, concerning the Thomas conversation. That evidence concerning that conversation – he said that when he first found out about the “verbal” it was when he received the committal hand‑up brief and he made detailed notes of what he said the conversation was with Thomas. He did not actually read from the notes in his evidence, but the fact that he had made fairly detailed notes was put in evidence.
As to the Renee matter, it was put at appeal book 1025, the submission of the Crown on this matter was that it was relevant, that is, the age of Renee was relevant because it was part of the discussion as to her anger – as to Horstead’s anger. The defence correctly, in our submission, at 1026, retorted by saying she did not say that that was why she was angry. Her position was that the relationship with Renee was the excuse for leaving the relationship but she did not say anything about the age, and counsel pointed out, again correctly, that no evidence had been led in‑chief from any witness concerning the age of Renee Gebert. It was mentioned by the judge twice in his charge at appeal book 1511, lines 3 to 18 and 1517, lines 3 to 10.
HEYDON J: There is no such page, 1517 is not a page in the appeal book. If these pieces of evidence – just going back a little bit – matter, we must know the references as you make the point. I for one am not going to read from page 1 to page 1347 in the hope of finding something that might support a point you have been making this morning.
MR TEHAN: I am sorry, your Honour. Would your Honour just excuse me one moment? The references in the charge are at 1255 and 1256 and 1262. The judge’s ruling is at 1029 and 1030, that ruling being given just shortly prior to the appellant being cross‑examined. So that is the background, your Honours.
Can I now move then with that background to statements of principle and why it is that we say the proviso should not have been applied. It is obvious enough that this was evidence of bad character, significant prejudicial irrelevant evidence of bad character. As this Court said in Attwood v The Queen:
“Bad character” may be regarded as the contrary of good character. But as a separate and independent fact or matter it can be proved on a criminal trial only in answer to evidence adduced of the accused’s good character. It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle. “The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety nine”:
That principle, I suppose, is also epitomised in the House of Lords decision of Makinv Attorney‑General [1894] AC 57 at 65 where their Lordships state:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.
GLEESON CJ: What was the name of that appeal from Queensland in which a person skilled in halal butchery had dismembered and buried the body of an infant and we said that ‑ ‑ ‑
HAYNE J: Ali.
GLEESON CJ: Ali. We said that evidence that, contrary to his religion, he drank alcohol although, perhaps from one point of view, showing a certain infirmity of character was totally submerged in importance by other aspects of the evidence not in dispute about his lifestyle.
MR TEHAN: That is not this case with respect, your Honour. This was evidence that the appellant had a sexual relationship with a 14‑year‑old child.
GLEESON CJ: How old was the appellant at the time?
MR TEHAN: The appellant at the time was 25, 26, because the relationship was two and a half years after the killing. He was 23 at the time of the killing, so he would have been about 25, 26. This Court itself has recognised the seriousness of that sort of offending and the public disquiet. Courts of appeal throughout the Commonwealth are full of cases which demonstrate the public disquiet and opprobrium against this sort of conduct. It carries a maximum penalty in the State of Victoria. Maintaining a sexual relationship with a child under the age of 16 carries a maximum penalty of 25 years imprisonment in Victoria. It is one of the most serious offences under our Crimes Act.
KIRBY J: I take the force of that and you have referred to what Justice Callinan and I said in Ryan I think.
MR TEHAN: Yes.
KIRBY J: But against that is (a) that it was 14, nearly 15; (b) he was himself a relatively young man; (c) they had lived together for six and a half years; (d) the jury had the advantage, did they not, of seeing Renee?
MR TEHAN: There are a couple of things ‑ ‑ ‑
KIRBY J: And (e) the jury had to consider that fact in the context of an enormous amount of material, which you have spent the better part of an hour recounting to us.
MR TEHAN: They did not have Renee – Renee did not give evidence. The relationship was not one of six years; it was of a far lesser time. I think it was a couple of years – three and a half years.
KIRBY J: I thought I read it was six ‑ ‑ ‑
MR TEHAN: It is a mistake in our friends ‑ ‑ ‑
KIRBY J: That is a mistake, is it?
MR McARDLE: Yes. The first thing I was going to do was to point out to the Court that we got arithmetic wrong. It is in the region of three, three and a half years. That is around about the time that he and Horstead separated, which was about three years after the event ‑ ‑ ‑
KIRBY J: Well, I delete (d) and I correct (c).
MR TEHAN: Your Honour, in Victoria only recently there was a young man in his early 20s who was gaoled for a number of years for having a sexual relationship with one of his students, who was I think 14 or 15.
GLEESON CJ: Nobody is trying to minimise the seriousness of an offence of this kind, but the jury did have a picture of the lifestyle of your client and his associates. What impact on that picture would this piece of information have had?
MR TEHAN: He was not part of a lifestyle involving sexual promiscuity. There is no evidence of him being involved in ‑ ‑ ‑
GLEESON CJ: I was not suggesting ‑ ‑ ‑
MR TEHAN: No, but in fairness – I mean, in terms of lifestyle, the lifestyle was that he was involved with people who used to take drugs.
KIRBY J: And he was friendly with people who had what some in society might regard as an unconventional series of sexual relationships.
MR TEHAN: The mere fact that you know someone who might have an unconventional – I mean, in one sense it probably makes it more devastating that this evidence comes in then. This is the sort of man you are, that you have a sexual relationship with a child.
GLEESON CJ: Do we have in the papers the judge’s ruling on the admissibility of this evidence?
MR TEHAN: Yes, your Honour, it is at 1030.
GLEESON CJ: I am just interested to know what the judge thought was the relevance of it.
MR TEHAN: It is at appeal book at 1030.
GLEESON CJ: Was it objected to on the ground ‑ ‑ ‑
MR TEHAN: Yes, it was objected to ‑ ‑ ‑
GLEESON CJ: Excuse me. Was it objected to on the ground that its prejudicial effect outweighed its probative value?
MR TEHAN: Yes, it was, your Honour.
GLEESON CJ: So we will find the judge dealing with that?
MR TEHAN: Yes.
GLEESON CJ: That is what I am interested in. Where does he say that?
MR TEHAN: At paragraph 2 his Honour said:
As I said to Mr Lovitt in discussion, I certainly would not let this trial go down the path of either a holistic attack upon Mr Weiss’s character or a gratuitous attack upon it either. This seems to me to be neither of those matters. It is relevant to matters joined in issue: it is put by the defence, in order to seek to undermine the confession which Ms Horstead says she received from Mr Weiss on the night of 24 November 1994, that she voluntarily stayed with him and indeed fought to keep him, and this material can go to the circumstances of their difference of opinion in relation to Renee; that is to say, why there was a difference of opinion. That is not an unimportant matter, although by no means the most important matter in this trial.
GLEESON CJ: It was paragraph 3 that I was interested in.
MR TEHAN: Yes:
I do not consider the question is inherently prejudicial in the context of this trial ‑ ‑ ‑
GLEESON CJ: What did he mean by that expression, “in the context of this trial”?
MR TEHAN: Well, his Honour obviously thought that it had probative value, as one can draw from the previous paragraph, that outweighed its prejudicial context in the context of this trial. There had been evidence led of bad character, as we point out in a footnote in our submissions, not of this sort but of two violent assaults by the appellant upon others which led to an application for discharge of the jury at the start of the trial, very early into the trial when Horstead gave evidence. That evidence ‑ ‑ ‑
KIRBY J: Is this what is meant by third trial?
MR TEHAN: Yes.
KIRBY J: Had there been yet another earlier trial, had there?
MR TEHAN: The application ‑ ‑ ‑
KIRBY J: Were there two discharges or was there an earlier trial that miscarried?
MR TEHAN: No, they were discharges.
KIRBY J: The third trial followed on immediately from the discharges?
MR TEHAN: Yes.
KIRBY J: A new jury was sworn and a new trial was ‑ ‑ ‑
MR TEHAN: A new trial, yes.
HAYNE J: At one of those earlier trials Ms Horstead had given evidence that the reason why she had cross words was that Renee was 14 and that he was carrying on with a 14 year old – see 1025 – that evidence not given at the third trial. Counsel for the prosecution says, “Well, I want to explore this”, and that is how the ruling comes up.
MR TEHAN: Significantly, of course, he did not lead it from Horstead. In fact she had not said in this trial that that was the reason for her anger. She had said the reason was that the affair gave her an excuse to leave him.
KIRBY J: I just do not see, with respect to Justice Cummins, what possible relevance the age had to do. It is potentially very prejudicial in the minds of some jurors and I just cannot understand how her actual age was relevant as his Honour seemed to think.
MR TEHAN: It had no relevance.
KIRBY J: It just seems unnecessarily to introduce a complete red herring in the case and a criminal offence which is presumably what Justice Callaway was getting at when he said what he did.
MR TEHAN: Yes, he said the jury in effect found out that the appellant was having carnal knowledge with a child. Now, I did ‑ ‑ ‑
KIRBY J: I must confess I wondered whether this came at a point after some of the contretemps between his Honour and then counsel for the appellant.
MR TEHAN: It did. It came after a number of confrontations between the appellant’s counsel and the judge and significantly, it came just before the appellant was to be cross-examined. The actual evidence appears in the appeal book at 1064A where counsel commences by saying:
You were asked a number of questions by Mr Lovitt yesterday about your relationship with Jean? . . .
And the ending of that relationship?
Then he puts matters that I alerted the Court to earlier. The fact ‑ ‑ ‑
KIRBY J: What is the page you are referring to there?
MR TEHAN: Page 1064A. At line 22 he put it:
The fact is, isn’t it, that at the time you commenced this affair with Renee, Renee was 14 years old, wasn’t she?---She was 15, yes, almost 15, yes.
She was 14. She wasn’t yet 15?---Yes, Mr Faris.
And the reason for Jean Horstead complaining bitterly about this, was that she thought it was inappropriate for you to be having an affair with a 14‑year‑old girl, didn’t she?---No, Mr Faris.
So without the witness having given the evidence at all, without any evidence being led of it, counsel was permitted to put the proposition and establish the age by the “putage”, the “putage” being denied.
GLEESON CJ: Have you and Mr McArdle agreed on a division of the available time between you?
MR TEHAN: I must say no, your Honour.
GLEESON CJ: You will need to do that at lunchtime.
MR TEHAN: Thank you, your Honour. The ruling in relation to the application for discharge because of the admissibility of evidence of other bad character is at page 211 of the appeal book. Now, to return to where I was in terms of statements of principle, in BRSv The Queen (1997) 191 CLR 275 at 322, your Honour Justice Kirby at point 5 on that page spoke of:
the need for care in the admission and use of evidence about events prejudicial to an accused has been reinforced by empirical studies . . . psychological research . . . confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimate about other conduct . . . The need for special care at the point of the admission or rejection of prejudicial evidence is reinforced by other empirical studies. These tend strongly to challenge the presumption that jurors are willing and able to make the limited use of testimony which judges instruct them to do. Once lay decision-makers know facts about the background and character of the accused, the risk is acute that the focus on the particular offences charged will be lost. Instead, the accused may be judged by reasoning that anyone shown to have acted in the criminal or discreditable way proved must be guilty of the offences charged, so long as they bear some similarity to the facts established by the evidence.
Those sorts of observations have been confirmed, with respect, by the Law Reform Commission in its review of the uniform Evidence Acts. The discussion paper I think which we have given the Court a reference to and copies of, in particular ‑ ‑ ‑
KIRBY J: This is the current review that is going on now, is it?
MR TEHAN: Yes. In particular, at paragraph 3.8 where it is noted that:
Psychological research confirms that such assumptions are commonly made, although incorrectly so, as in reality a person’s behaviour will vary depending on the context.
That is assumptions as to what follows from evidence of bad character.
KIRBY J: Since BRS was written we had the case of Zoneff and in Zoneff I referred to the New Zealand research on how juries actually operate and I am not sure that that is quite as strong as what I said in BRS. I will have another look at what the New Zealand research – because they were permitted to investigate and ask questions of jurors and it rather indicated that jurors look at issues globally, as one would expect, and that some of our assumptions that they act in a linear and logical way according to directions may not always be grounded in empirical material.
MR TEHAN: The observations of the Law Reform Commission were made only a couple of months ago this year and I think follow upon the New Zealand research, your Honour.
KIRBY J: They do not footnote any research material.
MR TEHAN: There is reference to paragraph 3.11:
Psychological literature has also confirmed and explained the risk of unfair prejudice flowing from evidence indicating bad character.
In particular, reference is made to what is referred to as:
The ‘regret matrix’ operates in a trial context so that a fact finder will be less concerned about making a wrong decision where he or she believes that the defendant has been guilty of other misconduct justifying punishment for which he or she has not been convicted.
That is just the point here. There was a real possibility that some jurors would think this discreditable conduct rightly justifies punishment. At paragraph 3.13, reference is made to Justice McHugh’s discussion in Pfennig whereby his Honour:
identified similar issues in support of the exclusion of evidence of this kind, commenting additionally that such evidence creates ‘undue suspicion’ and ‘undermines the presumption of innocence’.
KIRBY J: Could you remind me once again what was the hypothesis on which it was suggested that this was in some way relevant that the jury know this.
MR TEHAN: That it was part of the discussion concerning her anger over the affair. It was relevant to the discussion concerning anger, but in fact it had never been mentioned and that is the point that counsel was making and correctly making.
KIRBY J: Pretty obviously, the prosecutor had a statement of some kind that authorised him to put to the accused that that was one of the factors that had led to her anger.
MR TEHAN: He might have, your Honour.
KIRBY J: I cannot believe that he would ask such questions without such a statement.
MR TEHAN: He might have. Yes, presumably he did, your Honour. As your Honour Justice Hayne pointed out it was asked in the earlier trial.
HAYNE J: She had given sworn evidence to that effect at the first trial.
MR TEHAN: Yes. So what we are drawn to is this. The principles are these. Evidence of bad character is inadmissible. It is only admissible under certain exceptions, such as section 399 of the Crimes Act to rebut evidence of good character, or admissible on the basis of, say, propensity evidence or uncharged act type of evidence. Even then it has always met with warnings as to its limited use and it carries enormous prejudicial effect as this Court and Law Reform Commissions have recognised.
In trial courts throughout the Commonwealth daily directions are given in relation to the good character of an accused where that good character is established. The classic directions go along these lines, “That you can use that evidence, members of the jury, in assessing whether it was more probable than not that the accused committed the offence and you can also use that evidence in assessing the credit of the accused in out‑of‑court statements or in his assessing the evidence that he has given upon this trial”.
Those principles in relation to directions concerning good character evidence have been with us for a long time and are built upon commonsense. Why would not, we would ask, a jury when it has inadmissible, irrelevant, prejudicial evidence of bad character before them reason in exactly the same way, adverse to the accused on trial? It is that possibility which looms very large in this case.
Indeed, moving to the reasoning of the Court of Appeal, the court said at appeal book 1333, paragraph 60 of the judgment of the court:
The jury became aware, in effect, that the applicant had had carnal knowledge of a girl of 14.
The real impact we say in terms of consideration of the proviso is that it is just this type of evidence which might tip the balance in the jury’s assessment of the appellant’s credibility. It is no answer, in our submission, to say, well, the jury might have simply disregarded it. What we do know is this, that there was no direction in this case for them to do so. I suppose it might be said, well, how could there be, his Honour having decided that the evidence did have some probative value? But there was no direction concerning bad character in this case.
HAYNE J: Did counsel mention it anywhere in their addresses?
MR TEHAN: We do not have the benefit of counsel’s addresses, your Honour, I do not know. It was certainly led by the prosecutor, we know, and it was certainly mentioned by the judge twice in his charge.
HAYNE J: Where are those references?
MR TEHAN: The references in the judge’s charge are – I thought I had given them before. It is at ‑ ‑ ‑
HAYNE J: Well, you can come back to them and give them to me later.
MR TEHAN: Yes, thank you, your Honour.
HAYNE J: At some point I want the references.
MR TEHAN: Yes, we will, your Honour. Pages 1256 and 1262.
HAYNE J: Thank you.
MR TEHAN: The first one being a reference to the summary of the evidence and the second reference being a reference to a summary of the Crown Prosecutor’s final address. So one can glean from that second reference, your Honour, that it was mentioned by counsel for the Crown in his final address.
KIRBY J: Would you just explain that again?
MR TEHAN: They are in our outline and I have given them just recently. The second reference is in the summary of the Crown Prosecutor’s final address. So the Crown Prosecutor must have mentioned the age in his final address because the judge was summarising his final address. So we would submit that it is no answer to say that the jury might have or would have disregarded this evidence, there being no direction concerning it, it having been mentioned by the judge and by the Crown Prosecutor and, perhaps more significantly, as your Honours Chief Justice Gleeson and Justice Gummow said in Gilbert v The Queen at page 420, paragraph 13:
The system of criminal justice, as administered by appellate courts . . . does not involve the assumption that their decision‑making –
referring to the decision‑making of jurors –
is unaffected by matters of possible prejudice.
That principle, with respect, is very relevant to the present case. It is very relevant for this reason, because the critical step in Justice Callaway’s thinking is that the jury were not going to convict the appellant because he was having a sexual liaison with a girl, even though that girl was 14. That is the error that, with the greatest of respect to his Honour, he has made. You cannot make that sort of assumption about this sort of prejudicial evidence.
KIRBY J: I took his Honour to be saying that in the overwhelming character of all of the evidence of this case, this little morsel, though prejudicial, would not ultimately have loomed large because the jury would be focused on rather more serious matters.
MR TEHAN: It is a good reason to disbelieve the appellant. He is the type of fellow who ‑ ‑ ‑
KIRBY J: Why? You might reach the view that his morality is wrong and his action was reprehensible but it does not really touch his truth telling, does it?
MR TEHAN: Yes it does, your Honour. It shows him to be discreditable, reprehensible, discreditable conduct – immoral conduct, true enough, but also discreditable conduct.
CALLINAN J: That was why, I suppose, the prosecutor cross‑examined on it, because he thought it would be discreditable. I am not suggesting any impropriety, but he must have cross-examined on it for a purpose and that purpose would have been to discredit the accused.
MR TEHAN: Well, that was not the purpose that he advanced to the judge though. The purpose that he advanced to the judge was that it said something about Horstead’s anger at the appellant and why she might leave him. No evidentiary foundation for that, but that is what he put forward. He did not put forward it on the basis of an attack on credit, because if he had have the judge would have ruled against him, with respect.
HAYNE J: Let us assume for the purposes of debate that you establish the premise that the evidence that is adduced wrongly is evidence that is discreditable to the accused and it shows him to be a man of good character. It would seem to me that that follows inevitably from the conclusion about wrongful reception. It is the next step in the argument that an hour and a half later we are still to hear from you, Mr Tehan. Where do you go from there?
MR TEHAN: What we say, your Honour, is that a reasonable jury’s assessment of his credit could well be affected by the admission of that evidence.
HAYNE J: Let that be assumed, what the significance of that is depends radically upon where his credit stood, most notably as an issue in the trial, most notably in connection with the second confession. Now, I understand why forensically you wish to treat it in this fashion but at some point you are going to have to tell me what is the process that the proviso requires the Court of Appeal to undertake.
MR TEHAN: I am coming to that shortly, your Honour. I am nearly finished the first part and I will move to the second part shortly, but can I finish with the ‑ ‑ ‑
GLEESON CJ: You have decided to devote the first part of your argument to hardening us up.
MR TEHAN: Hopefully not adverse to our submissions. The affair with Renee was, as a matter of common ground, the reason for the separation. The separation, on Horstead’s evidence, was because the appellant had killed Grey and this gave an excuse for that. The fact of the age being admitted, in our submission, might well have tipped the balance in terms of the jury’s assessment of his credibility. It was an essential part in the reasoning of the Court of Appeal in applying the proviso to come to the conclusion that the jury were not going to believe Ms Horstead or disbelieve the applicant or convict him because of the sexual liaison with a child.
I mean, to cut to the chase and answer your Honour Justice Hayne, we would say, why not? Why not? I do not mean to be arguing in circles here but we meet the argument by saying here is a man who has committed a very serious criminal offence. He is not just having an affair with another woman. It is one thing to have an affair with another woman, some might think, it is another thing ‑ ‑ ‑
HAYNE J: You have told us that more than once, Mr Tehan.
MR TEHAN: ‑ ‑ ‑ to have a sexual liaison with a child. Why would it not very strongly impact upon his credit?
HAYNE J: I understand the point you make.
MR TEHAN: If that is the case, if this Court comes to the conclusion that it would impact upon his credit, then the Court of Appeal are wrong. That is the answer: they are wrong. It is as simple as that.
KIRBY J: I can understand that, but it may be that it is broader than that. It is not just credit, because that is lawyers’ language. It is that it creates a sense of distaste and dislike of the accused and the jury would tend to see him as a person for whom they could have little empathy or understanding or feeling and that is not just the question of his truthfulness. It is a question of how they approach his trial completely free of prejudice, as distinct from coloured by prejudice. That is why the Crown is normally so scrupulous and fair in presenting evidence. I am just curious as to why in such a big trial and a third trial such a matter was introduced into the case.
MR TEHAN: It should never have been introduced ‑ ‑ ‑
KIRBY J: It may be that it was partly relevant but in the big picture of this trial it really was not an important question and it did have a potential to prejudice and not just on credibility.
MR TEHAN: It should never have been introduced at all. Perhaps we confine the issue of credit too much. Credit really was almost, in the line of thinking adopted in Nicholls and Coates, a fact in issue in this case. That is why I have spent some time on what the facts were and what were the issues in the case, because it was all about credit. I mean, that was the fact in issue.
GLEESON CJ: Mr Tehan, this issue of admissibility was resolved in your favour by the Court of Appeal, but did the Court of Appeal decide that this evidence was simply irrelevant or did they decide that its prejudicial effect outweighed its probative value?
MR TEHAN: The second of those matters was certainly a ground for excluding the evidence. They excluded the evidence on three bases as set out at paragraph 60 at appeal book 1333:
His Honour ruled that the questions might be asked and that the evidence should not be excluded in the exercise of the Christie discretion. With great respect, I do not think that that ruling can be supported and Mr McArdle found it difficult to do so. In the first place, we are concerned only with Renée’s age. The jury already knew about the affair. Her age was not relevant to any issue in the trial. If it was probative at all, it was insufficiently probative. Secondly, evidence cannot be led from one witness solely to bolster the credit of another, even in cross-examination. It is not admissible for that purpose. Thirdly, if, contrary to my view, evidence of Renée’s age did have significant probative value, it was outweighed by its prejudicial quality. The jury became aware, in effect, that the applicant had had carnal knowledge with a girl of 14.
So it was three bases really.
GLEESON CJ: The Court of Appeal was prepared to accept that it had prejudicial effect, even a prejudicial effect that was capable of outweighing a significant probative value.
MR TEHAN: Yes.
GLEESON CJ: Well, where do you go from there when you are reasoning about the proviso?
MR TEHAN: The proviso should not have been applied in those circumstances.
HAYNE J: It is the conclusion, but it is that intermediate step.
MR TEHAN: But it was the link here.
HAYNE J: Well, I have asked my question, Mr Tehan, and at some point you are going to have to tell me how you move from proposition to conclusion.
MR TEHAN: It was a step. The jury well could have reasoned, with this evidence before them, that this was a basis for not believing the applicant as to the circumstances in which the second confession came about. If this evidence could have been used by them in that way – and it was open because no direction was given not to use it in that way – then they well might have reached a view of the applicant’s assessment of his credit on that second record of interview adverse to him and upon an impermissible basis. That is the answer that I give to your Honour Justice Hayne.
If that is correct, if there is a possibility that they could have reasoned in that way, then the proviso does not apply. I mean, we accept the proposition that there can be technical mishaps in the course of a trial to which the proviso will be applied, there can be irregularities – and that is why I did spend some time on it – but this was no mere technical mishap or no mere little bit of bad character that gets in that we all try to hush up and not say anything about. This was very damaging evidence that well could have impacted upon the jury’s assessment of the appellant’s credit as his evidence related to the circumstances that the conversation with Thomas, which was vital – after all, it was an unrecorded verbal conversation over three‑quarters of an hour. Thomas’ version is that it goes for about five minutes and he just wants to make a clean breast of things. The appellant’s version is it goes much longer. That is the way it is put, your Honour.
The second record of interview really flows from the unrecorded conversation with Thomas. I mean, it is integral. The second record of interview flows from the conversation with Thomas. In fact, it is very integral because the appellant’s version of that unrecorded conversation is that it is Thomas who is suggesting to him “Look, do the best you can, you are going to have” – effectively saying to him, “You are going to have to admit killing her, but if we are going to do something for you and get you a manslaughter do the best you can. Make out you are sorry. Say it was all an accident”. That is exactly what he does in that second record of interview. That is the importance of it. You have no corroboration at all for Thomas’ evidence of that unrecorded verbal conversation which is the springboard to the second record of interview.
Now, if the jury say, “This man is a discreditable fellow, we cannot trust him when he gives evidence on oath about that conversation because we have just learnt in cross-examination that there he is ‑ ‑ ‑
KIRBY J: Can I explain to you the difficulty that I have with that so that you can meet it. There is some support for your argument at its foundation in Domican in this Court, where the Court in relation to some evidence concerning the identity of the accused said because there was a strong Crown case but because we cannot speak to the jury and do not know, they might have decided the case only on the identity evidence which it was common ground had not been properly warned against.
But in this case it would be a scandal and very offensive to one’s respect for the jury system and the jury to think that a jury would convict your client of manslaughter on the basis of the fact that he had been shown to have had a relationship with a young girl aged 14, nearly 15. I mean, it is not as if it is like the identity evidence in Domican or other cases where it is an alternative way of the Crown winning the case. It is a factor in the evidence but it is not of that order, it seems to me.
MR TEHAN: It is the possibility that they could have used the evidence to discredit the appellant in circumstances where his credit was almost a fact in issue in the case, was so important. His credit on that unrecorded conversation was so important that they could have used this discreditable conduct to say “No, of course we are not going to convict him of murder”. It looks at it with the greatest of respect simply to say, “We are not going to convict him of murder because he is having a sexual liaison with a 14 year old, but we do, in assessing his credit on that unrecorded verbal conversation, we do take account of the fact that he is a discreditable person engaged in this sort of reprehensible conduct and that is a reason why we will not believe him. That is the line of reasoning.
CALLINAN J: Mr Tehan, Miss Horstead’s reliability was obviously under heavy attack at the trial, is that not right? Her motives were strongly attacked, is that not right?
MR TEHAN: Yes.
CALLINAN J: You submitted in the Court of Appeal that one reason why her evidence was suspect and so suspect that a different direction should have been given was that the relationship had broken down between her and the appellant because of the affair with Renee.
MR TEHAN: Yes.
CALLINAN J: Might it not have been relevant to that matter that Renee was 14 years old, that the relationship did not simply break down – let me finish please – because of an affair with Renee but because of an affair, not only with another female but also with a female who was only 14 years old. Why is that not relevant ‑ ‑ ‑
MR TEHAN: No, the fact of the age is not relevant. In the absence of evidence, it is not relevant. There was no evidence that that was the reason for her anger.
CALLINAN J: Could you tell me where the cross‑examination is of Ms Horstead with respect to her motives regarding the affair with Renee?
MR TEHAN: Yes, it is at page 195, line 25. It was given as the excuse to leave:
Now, you have maintained, have you not, that you remained with the accused man, but at all times you were hoping to find some excuse for the relationship, or for you to get away?---Yes.
And that when he started to have a relationship or an affair with – Renee, is the name, isn’t it – that you were relieved because it meant that you could now untie the knot and use that as an excuse, a justification to break away; that’s been the position you’ve maintained, isn’t it?---Yes.
And it would fly against the face of that, that it would be certainly inconsistent with that, if, when he formed that relationship with Renee, you kicked up an enormous fuss about it, would it not?---It would be inconsistent.
Then the cross‑examiner went on to demonstrate that she had indeed kicked up a fuss when she learnt about the relationship with Renee – well, sought to ‑ ‑ ‑
HEYDON J: Asked a lot of questions, the answer to which were denials.
MR TEHAN: I am sorry, he put the defence case and it was denied. It was denied.
CALLINAN J: I understand that, Mr Tehan. That rather suggests though that Renee’s name may have been mentioned earlier. Is there an earlier reference to her in the evidence? You may not want to do it now, but if I could perhaps have all the references to Renee in the evidence.
MR TEHAN: I think there is an earlier reference which I will attempt to find in due course, your Honour. I must say it is our note that it is the first reference at 195.
CALLINAN J: It is the first. All right. You might be able to tell me later about any subsequent ones.
MR TEHAN: Yes, but we will check that, your Honour.
CALLINAN J: Thank you.
KIRBY J: At the special leave hearing Mr McArdle accepted – he was asked by Justice Hayne:
do you say that the evidence was properly received or not?
And he said:
We would have to accept what their Honours [in the Court of Appeal] said [on that].
So that he accepts that the evidence was not properly received.
MR TEHAN: Yes.
KIRBY J: Presumably that is on the basis that even if it is relevant – on one basis, the ultimate basis, even if it is relevant, it is against policy and is prejudicial and the prejudice outweighs and so it should not have been received.
MR TEHAN: Outweighs what Justice Callaway thought might have been arguably significant probative value on the third limb of why it was excluded. But we say it was irrelevant.
KIRBY J: If you take the third limb, you do not really have to go there.
MR TEHAN: No. Now, before I turn to the second part, there is one final aspect of part one that I want to deal with and that is the course of the trial in terms of the confrontations between counsel and judge. What we say is this. If the test is the test that we do not contend for, in other words, is the test, “Would this jury inevitably have convicted?”, as distinct from a rational jury or any reasonable jury, then we submit that a consideration of the course of the trial is relevant. In that respect, the confrontations between counsel and the trial judge are relevant.
I only want to spend a short time upon it, but these are the sorts of remarks that were motivated by counsel and judge during the course of this trial. Page 348, counsel: “It’s my fault.” A statement he made many times to the judge: “I give up. It’s my fault.” Page 375: “I feel like I am surrounded”. Page 377, his Honour: “Well, perhaps I might do the judging”. Page 378: “I give up. I give up”, “I can’t win . . . it’s just not fair.” Page 379: counsel complaining that his Honour continually allows inadmissible questioning of the witness and encourages the witness to give answers adverse to the appellant; counsel wanting the discussion in the absence of the jury and the discussion with the judge continuing in the presence of the jury.
KIRBY J: That is counsel for the Crown asked for it in the absence of the jury.
MR TEHAN: Yes, counsel for the Crown, and it continuing. Page 380: “Your Honour [is] taking advantage of your position on the Bench”; the appellant is not having a fair trial. It might be said that allegation was not really withdrawn by counsel. After that exchange it motivated the judge at line 5 on page 402 to observe “some members of the jury [were] quite shell shocked” and his Honour further commented, “I do not want Mr Weiss to be tarred with [the same] brush”.
At 405, line 4 his Honour said, “there was one person in this court who was looking extremely unhappy and extremely uncomfortable and it was your client.” His Honour observed on the same page at line 8, “he’s getting a big disadvantage from your conduct.” At page 409 his Honour observed the jury may be “so alienated by counsel’s aggression”. At page 412 his Honour again observed that he did not want the jury alienated. Ultimately, there was an apology by counsel at page 417, line 6 and at 498 he expressed the view that “it concerns me if that is the image” that was being given of the applicant’s case in the presence of the jury.
There was then an Easter break. It seems the Court of Appeal placed significant reliance upon the fact of an Easter break, but things did not seem to get much better. At 744 counsel said, “Your Honour always does this.” At 761 he accused the judge of currying favour with the witness. At 768 he said, “I’m always wrong and you’re always right” and it is the accused who “gets the backlash”. At 865 he said to the judge, of his performance, the judge’s performance, “It’s a disgrace”.
At 892 counsel said, “Is this going to be another homily from the Bench, Your Honour?” At 899 he said, “You can’t win, can you.” At page 900 he accused the judge of again currying favour with the witness, saying to the judge, “You’re giving the witness ‘the usual help’”. That of course motivated the judge to say to counsel, “Are you serious about that?” to which counsel said, “Yes”.
We would invite this Court to hold that the proper assessment of the impact of the error in this case must take account of the course of the trial as a whole, a significant aspect of which was the exchanges between counsel and judge which demonstrated two matters: that in defence counsel’s view the judge was biased and the judge found corrupt and encouraging of Crown witnesses; and secondly, the trial judge and both counsel took the view that the exchanges were having a significant adverse impact upon the defence case.
KIRBY J: By reason of the special leave ruling we do not have as a separate issue the question of conduct of counsel before us.
MR TEHAN: I know that.
KIRBY J: You say it is a contextual matter and I understand the way you put it but appellate courts have to pretty careful about this. Normally, and if I might say so, especially in Victoria, politeness and courtesy are the rule by which our courts are operated and one would have to be careful to say anything that could give any encouragement whatever to misbehaviour and insulting and other inappropriate remarks in court because if that becomes even a contextual matter it could be seen by some as an encouragement to a breakdown of the courtesies that are normally the way we keep the temperature low in courts in these very dramatic sorts of trials.
MR TEHAN: This was more than discourtesy, your Honour. The Court of Appeal themselves found that these were serious confrontations. I mean, it was effectively a war between the judge and counsel which went throughout the whole trial. It has a background to it that I think might be partially referred to in the judgment of the Court of Appeal. This was the third trial. Counsel for the applicant was under investigation by the Ethics Committee. It was just a war. What we submit is that if the test is, would this jury inevitably have convicted, by the end of the day, by the time they got this evidence of the 14‑year‑old girl before them they would have thought the defence case was hopeless.
KIRBY J: But, Mr Tehan, that is a bootstraps argument. That says because the accused counsel has a short fuse and lets off steam and says inappropriate things to the judge and gets responses in the presence of the jury that somehow on an appeal, including in this Court, that can be used to support the setting aside of the conviction. That is not a very good principle for us to lay down for the trial courts of Australia or the conduct of advocates.
MR TEHAN: The principle was mentioned by your Honour in Arulthilakan (2003) 78 ALJR 257 at 267, paragraph [52], that as a matter of principle application of the proviso must go to a consideration of the course of the trial. That is what we say. You look at the whole of the course of the trial. It is not our primary submission, because our primary submission is that the appropriate test is not whether this jury would have convicted but whether a reasonable jury would have convicted, but if we are wrong about that then it is appropriate, in our submission, to look at the whole of the course of the trial.
HEYDON J: But how do you get around paragraph 51 of Mr Justice Callaway’s reasons which are on pages 1327 and 1328? He said that the jury would have understood that the applicant was not responsible for the misconduct of counsel.
MR TEHAN: Yes.
HEYDON J: That means they would not think the worse of the applicant or would not discredit or disadvantage the applicant. You have to accept paragraph 51.
MR TEHAN: We do not have a grant of appeal. We do not have leave on it and so I understand that but it is the first part which we rely upon, that is the deeply offensive character of the allegations.
HEYDON J: Yes, but that is the way the judge starts but:
Jurors are not “twelve innocents” –
They have:
enough presumed experience of the world to put frustration and bad temper into perspective . . . They were directed on the subject –
and so on.
MR TEHAN: Our submission, your Honour, is really that the Court of Appeal had placed too much weight upon the ability of the jury to ‑ ‑ ‑
HEYDON J: You are attacking paragraph 51, are you?
MR TEHAN: We are, your Honour.
GLEESON CJ: But if your argument is right, the logical consequence is that the worse the misbehaviour of trial counsel, the more difficult it is for a Court of Criminal Appeal to apply the proviso.
MR TEHAN: Our argument is simply this that if the test is would this jury inevitably have convicted, then application of the proviso has to be looked at in terms of the context of the whole case. That is the principle. It happens to be an aspect that in this case we had misconduct on the part of counsel.
HAYNE J: Let us explore that principle. This jury would inevitably have convicted. How does the Court of Appeal go about that in a case where, as we established at about 10 past 10, there were disputed questions at trial?
MR TEHAN: How does the Court of Appeal go about that exercise?
HAYNE J: Just so, and what does the answer to that question say, if anything, about any reasonable jury test?
MR TEHAN: Your Honour, our submission is that the proper test is ‑ ‑ ‑
HAYNE J: I understand that, Mr Tehan. If you do not want to answer the question just tell me and I will stop.
MR TEHAN: I am quite happy to answer the question, your Honour. The way the Court of Appeal approaches the task is to take out the impugned evidence, take it out of the exercise, and ask itself whether they can be satisfied beyond doubt that conviction was inevitable.
HAYNE J: How does it go about the task of resolving disputed questions of fact, because where the proposition ends, it seems to me at the moment, is a proposition that in any case where there is a disputed question of fact the proviso can have no application? It is a very large proposition.
MR TEHAN: In some cases where it is solely a matter of credit and there is no independent evidence, no corroboration and there has been the wrongful admission of evidence of bad character it will mean the proviso does not apply. In many cases it will mean that, and I am not talking of technical or slips or just that, I am talking about the quality of this bad character evidence.
GLEESON CJ: What does the Court of Appeal know about the jury in this case that it does not know about a hypothetical jury?
MR TEHAN: What it knows is what I have just put before, that this jury had before it the confrontations between counsel and the judge.
GLEESON CJ: Putting that to one side, and putting to one side the question of whether a hypothetical jury, for which you contend, ought to be a hypothetical jury dealing with a case in which the accused is not represented by this counsel, in an ordinary case what does the Court of Appeal in considering the application of the proviso know about the trial jury in that case that it would not know about a hypothetical jury? Does it know how old they are, does it know what their standard of education was?
MR TEHAN: No, it does not, it does not know anything.
GLEESON CJ: Does it know whether they were male or female, does it know anything about them?
MR TEHAN: It does not.
GLEESON CJ: I am having difficulty at the moment understanding the difference between the two tests.
MR TEHAN: Can I take the Court then to Part II because that moves very nicely into this matter because the difference was highlighted initially by the Donovan Committee and I hope the Court has this document. In the 1965 Report of the Donovan Committee it noted that the reason, the very reason for the proviso at paragraph 151 was:
It was clearly intended to prevent a guilty appellant from going free because of some technical fault in the course of his trial.
152. There are two conflicting views as to the way in which the proviso should be operated. The one is that the Court should try to assess the effect upon the mind of the trial jury if the fault had not occurred. In other words, suppose that the evidence wrongfully admitted had been excluded, or that the mistaken direction had not been given by the judge, must the jury who tried the appellant nevertheless have convicted him? The other is that the Court should itself decide the problem which the proviso sets; and should resolve it by reference to the test whether any reasonable jury properly instructed could upon the whole of the admissible evidence have done otherwise than convict.
153. The language of the proviso tends, in our opinion, to support the second view.
At 161 the observation is made that:
Thus the second of the alternative views of the right way to apply the proviso has prevailed for many years. The Court does not try to assess what the particular jury which heard the case might or might not have done ‑ ‑ ‑
GLEESON CJ: But what does the court know about the particular jury?
MR TEHAN: The difficulty ‑ ‑ ‑
GLEESON CJ: The court has never seen the jury.
MR TEHAN: I know that, your Honour, but what they do know – and it is pointed out by Rosemary Pattenden in her book English Criminal Appeals 1884 to 1994 – what they do know is that the jury had the impugned evidence before them and that is why, in our submission, that is the wrong test. To look at this jury is the wrong test.
KIRBY J: I assume the difference is that the Court of Appeal is asking itself, if we simply could extract the erroneous material, on all the other material that was before this jury, was it inevitable that the jury would convict as distinct from, assume a properly conducted trial with a jury properly directed and without the impugned material, would that reasonable, hypothetical jury convict. The second is the theory which I have understood is the one that gained predominance and that is what the Donovan Committee said. Originally it started off with this particular jury on this transcript but then it moved to the fiction which, as one of the writers says, is essentially an acknowledgment that the Court of Appeal takes its own responsibility and decides the matter on the basis of reasonableness.
MR TEHAN: Yes.
GLEESON CJ: But these formulae about inevitability are simply different ways in which judges have explained why they conclude that the statutory formula applies. We keep telling judges that they have to apply the words of the statute and the words of the statute are that there was “no substantial miscarriage of justice”. Formulae referring to inevitability of conviction or no jury could possibly acquit or the accused was not deprived of a chance of acquittal are all different ways in which courts have accounted for the conclusion which has to be expressed in terms of the statute which was there was “no substantial miscarriage of justice”.
GUMMOW J: That is why paragraph 164 of the Donovan report is mystifying, because they took out the word “substantial”. That is the word it all swings on.
HAYNE J: And is a paragraph that is explicable only when you go back into the history before the 1907 Act. Hitherto history traces it neatly back to the 1907 Act and says see there, that is where it came from, but there is a lot more history that lies behind it.
MR TEHAN: Yes, I was going to give the Court the history. It is in Conway v The Queen (2002) 209 CLR 203, in particular, at page 207, line 4 to 220, line 39.
GUMMOW J: That is true, but at the risk of enraging my colleagues, I do not think it is complete. The history I think is not complete.
MR TEHAN: Your Honour knows better than I do the answer to whether that is the case.
GUMMOW J: Well, if you take Makin [1894] AC, for example, which you took us to, that is dealing with a New South Wales section. It is one of the things Makin was about, though we all forget it.
MR TEHAN: Yes, yes, I have read that.
GUMMOW J: Can you see at page 63 counsel is talking about 423 of this colonial statute:
It was intended to give to the Supreme Court [of New South Wales] the same power of reviewing a verdict in criminal trials in New South Wales which the superior Courts in England possess in civil cases. The words of the section have been taken exactly from rule 48 of the Judicature Act, 1873.
Then you come to the discussion by Lord Herschell, I think it is, at 69 and following and you get that expression, you see, in the section some:
substantial wrong or other miscarriage of justice.
MR TEHAN: Yes. No, I accept that, your Honour.
GLEESON CJ: Inevitability of conviction, while a common and accepted method of explaining a conclusion about substantial miscarriage of justice, cannot be the exclusive rubric, can it? Consider the following example. Suppose that at a criminal trial the Crown seeks to prove fact X and they attempt to prove it by leading inadmissible evidence and as a result of an error of law the evidence is admitted and then, as so often happens at trials, the accused goes into evidence and one of the first things he does is admit fact X.
In other words, the error of law turns out to be immaterial, a common example of a case where one would have thought the application of the proviso is obvious, because the error has become in the way the trial is run immaterial. Yet that might be a case in which there are critical disputes of evidence and uncertainties about the credibility of witnesses. In that case, how does a Court of Appeal or a Court of Criminal Appeal conclude that there has been no substantial miscarriage of justice?
MR TEHAN: I am not saying the task is easy, your Honours. Something like that I suppose happened in Simic v The Queen where there was a misstatement of evidence. I suppose the ‑ ‑ ‑
GLEESON CJ: But that task is easy in that case, is it not?
MR TEHAN: The answer to it really is whether or not the evidence would have been likely to have had a material impact upon the jury. In that case it would not.
GLEESON CJ: But, Mr Tehan, it happens time and again in civil and criminal trials that inadmissible evidence gets in as a result of an erroneous ruling and then the whole issue becomes immaterial because of other evidence that is led, for example, in the defence case. That is an example, is it not, of an error of law that does not result in a substantial miscarriage of justice?
MR TEHAN: Yes, it is.
GLEESON CJ: But it is not a case, is it, where conviction is inevitable?
MR TEHAN: It may not be.
GLEESON CJ: On your test?
MR TEHAN: No, it may not be.
GLEESON CJ: I understand that in many cases the “inevitability of conviction” formula is an appropriate way of explaining why there has been no substantial miscarriage of justice but it does not cover the field, does it?
MR TEHAN: No, it does not. Although many appellate courts express – and this Court has often expressed itself in that way ‑ ‑ ‑
GLEESON CJ: What I am suggesting to you is that the test is the statutory test?
MR TEHAN: Yes.
GUMMOW J: We have to try and understand what in 1907 they thought was encapsulated in this question, miscarriage of justice. I think it was not just cause celebre. There could be quite technical tricks.
MR TEHAN: That is why I mentioned the opening paragraph of the Donovan Committee Report, because it seems that one rationale for the introduction of the proviso which was introduced without much debate into the House was that guilty men do not get off on technical faults.
KIRBY J: There is an article on the history of the way this came into the Australian colonies by Dr Des O’Connor which explains how they were very sceptical about introducing this English statutory provision because they were anxious about the very matter you have just mentioned, namely, that in rustic circumstances and expensive trials that they would go off on technicalities.
MR TEHAN: Yes.
GLEESON CJ: Is the expression “immaterial error” a useful expression in this context?
MR TEHAN: Well, the expression – to put it another way, “fundamental error” is used in some of the cases.
GLEESON CJ: They might be by way of contrast, but there might be an area in between those.
MR TEHAN: By way of contrast, yes.
GLEESON CJ: But one of the things that this proviso was intended to achieve was that trials or convictions did not go off because of immaterial errors, was it not?
MR TEHAN: Yes, indeed.
GLEESON CJ: And an example of an immaterial error would be the one that I just gave you, an error in the admission of evidence about a matter that later turned out not to be in dispute?
MR TEHAN: Yes, I agree with all of that, your Honour.
HAYNE J: That then means that the Court of Appeal is engaged most immediately in the task of assessing the significance of the wrongly admitted evidence at the trial that occurred?
MR TEHAN: Yes, I agree with that, too. There are not many cases – we have been unable to find hardly any cases that concern wrongful admission of evidence of bad character because most of the bad character cases tend to involve a consideration of section 399 or the admissibility of bad character evidence for a limited purpose. There are not many cases where bad character has been introduced, where it has been held that it is significantly prejudicial and it is irrelevant, in terms of the proviso at least.
HAYNE J: Wigmore in section 23 of the 1940 edition, traces the treatment of harmless error statutes in England and in the American states, and traces two dominating features, which in the author’s view, have led to the emasculation of the harmless error provisions like the proviso, namely, the notion that an accused has a legal right to trial by jury, which an appellate court is not to interfere with, and second, which is related to it, the theory of usurpation that the Court of Appeal is not to usurp the jury’s function.
The author makes arguments, which are powerful in their expression, whether in their persuasiveness is perhaps the ultimate question, denying that either of those has any role once the court takes the step, which it did in cases like M and before that of looking at the other side of the mirror and deciding whether a verdict is to be set aside because the jury ought to have entertained a doubt.
MR TEHAN: Or might have entertained a doubt without the admissible evidence, your Honour. The Court of Appeal have to be satisfied beyond reasonable doubt, to adopt the standard of proof required in some of the harmless error cases, that a reasonable jury properly instructed would have convicted without this evidence. That is why I addressed your Honour before about how this evidence may have led to an impermissible line of reasoning. Now, we concede at the outset, your Honour, that it is not going to be every technicality, or irregularity, or even a slip as to bad character that might lead to an impermissible line of reasoning.
HAYNE J: Let me stay with the point that you are making and it is made in footnote 69 of Mr Justice Calloway’s judgement. The distinction his Honour sees between “this jury” and “any reasonable jury” test lies there:
Another jury might have taken a different view of Ms Horstead’s evidence –
et cetera. That seems to be a view which depends upon a proposition that any question of credibility at trial inevitably leads to the conclusion that the proviso has no application. Now, that may be right. I am not saying it is wrong, but let us at least understand what the principle is that is being engaged.
MR TEHAN: The principle that is being engaged is that, as I understand what your Honour has just said, is it as wide as saying that where credibility is in issue how can the Court of Appeal decide the matter? Another jury might decide differently. Now, we do not interpret what his Honour says there in quite as wide a way.
HAYNE J: That seems to bring us back to the Exchequer rule which predated the enactment of the legislative of predecessor of the proviso. The legislative predecessor is the rule in the 1873 Judicature Act Rules that was enacted to do away with the old Exchequer rule – evidence wrongly received, you have a right to a new trial. If that is where we are at, that is where we are at, but let us confront where we are at.
MR TEHAN: Well, Mr Justice Isaacs in Hargan v The King in 1923 saw the new Act as the greatest innovation simply being that all an accused had to establish was that there was a miscarriage and if that meant the wrongful reception of evidence, so be it. In terms of the harmless error cases, one can by analogy argue that in our country every accused is entitled to a fair trial and a trial according to law.
GLEESON CJ: How did the Exchequer rule deal with the wrongful reception of evidence about a matter that later in the course of the trial turned out not to be in dispute?
MR TEHAN: I am not sure. I am not sure about that, your Honour. Maybe the answer is in the historical analysis in Conway.
GLEESON CJ: Because one of the most common experiences of counsel in the adversarial trial system is that matters that your opponent is having difficulty proving will be admitted by your own client when your own client goes into the witness box. That is the dilemma that faces counsel time and again in civil and criminal trials.
MR TEHAN: Yes, I understand that.
GLEESON CJ: A very common form of immaterial error is one of wrongful admission of evidence about a fact that is later admitted.
HAYNE J: I suspect that would be dealt with under the Exchequer rule, at least as Lord Coleridge saw it in R v Gibson 18 QB 537 at 540 where his Lordship said that the former rule, Exchequer rule:
was that if any bit of evidence not legally admissible, which might have affected the verdict, had gone to the jury, the party against whom it was given was entitled to a new trial –
but it is the “might have affected the verdict”.
MR TEHAN: Yes.
GLEESON CJ: When you look at the words with which we are concerned in the statute they say:
The Court of Appeal . . . shall allow the appeal if it thinks that the verdict of the jury should be set aside on –
certain grounds and one such ground is -
a wrong decision on any question of law –
Now, it may be that a wrong decision on what turned out later to be an immaterial question of law would not be a ground on which the verdict should be set aside and you do not get to the proviso.
MR TEHAN: We would say you do get to the proviso. To bring it back to this case, we fall under either leg two or leg three. Justice Callaway appreciated that this was not just a case of a wrong decision on a question of law but arguably, also, we would fall under the dragnet ground of a miscarriage of justice.
HAYNE J: Let us seize the dragnet ground miscarriage of justice as the general description or the genus of which the former two specifications are simply species, but the genus is miscarriage of justice. Two particular species of them are those in parts I and II.
MR TEHAN: Parts I and II and the proviso cannot apply to I. The difficulty about the proviso – one is tempted to say that the reason why ‑ ‑ ‑
GUMMOW J: Say that again, Mr Tehan, “the proviso cannot apply”?
MR TEHAN: It could not apply to I. If the verdict of the jury was unreasonable or cannot be supported by the evidence then the proviso could not apply. It does apply to II and to III. Arguably, on Justice McHugh’s view in TKWJ where ground 3 is made out in most cases it might not have much work to do at all because as his Honour observes, after all, once a miscarriage of justice has been established then that really is the end of it.
GUMMOW J: Yes, I am not sure that is right because I think his Honour is giving the phrase “miscarriage of justice” an emotive content whereas in the 19th Century it had a highly technical content, namely, the Exchequer rule.
MR TEHAN: In fairness to his Honour he did not say in all cases that would be the case.
HAYNE J: But what the contrast between the proviso and element one of the common form statute might reveal – might reveal – is that the proviso is inviting, indeed requiring the court perhaps, but at least inviting the court to engage in that independent review of the evidence that it would in connection with the first element of the common form statute. Review the evidence, is the verdict against the weight of the evidence, under the proviso, review the evidence – is the Court of Appeal persuaded beyond reasonable doubt that the evidence shorn of that which is impermissibly there establishes guilt.
MR TEHAN: We do not necessarily argue that that view is wrong, but that going down that path that is a separate question. There still remains the separate question of whether there is the “this jury” test or the “any reasonable jury” test.
GLEESON CJ: What about those judicial formulae that ask whether the accused has lost a chance of acquittal? What kind of a chance is that referring to?
MR TEHAN: A fair chance. The authorities speak of a fair chance of acquittal, not just a spurious ‑ ‑ ‑
GLEESON CJ: You are not asking, are you, can we imagine a jury that would have brought in a not guilty verdict?
MR TEHAN: No. As Justice Fullagar I think says in Mraz, the accused does not have to show that he did not have to be convicted of anything to look at the converse side of it.
GLEESON CJ: But the Court of Criminal Appeal does not ask itself, does it, “Can we imagine a jury who would have refused to convict this accused?” You could always imagine that because of the onus of proof.
MR TEHAN: What the Court of Appeal has to ask itself is this: “Can we be satisfied beyond reasonable doubt that without this impugned evidence a reasonable jury properly instructed would inevitably have convicted?” That is why a good deal of our attention earlier this morning was devoted to the impact of this evidence. We accept the proposition that within the test that we contend for the Court has to make some assessment as to the nature of the error, whether it is an immaterial error or an error that does not matter, a technicality, an irregularity in the course of the trial, or whether, as in this case, it is something which is quite fundamental: the admissibility of irrelevant prejudicial evidence of bad character touching upon credit. At the end of the day, that is why our argument has been all along, whatever the test is, the proviso did not apply in this case. We would win under either test, in our submission.
GLEESON CJ: We understand that, but you are onto Part II of your argument now and we are exploring the difference between what you say are the two possible tests.
MR TEHAN: Yes.
GUMMOW J: Is there any distinction to be drawn between the phrases in the section “The Court of Appeal . . . shall allow . . . if it thinks” certain things “Provided that the Court of Appeal may . . . if it considers” something. What is the standard of thinking and consideration?
MR TEHAN: Applying normal rules of statutory interpretation, I suppose the proviso is predicated on the basis of a discretion at least in the sense that the court does not have to dismiss the appeal.
GUMMOW J: What is the intensity of its consideration?
MR TEHAN: The intensity of the consideration comes about through the words “no substantial miscarriage of justice has actually occurred”.
HAYNE J: An interesting exercise to translate the new trial rule of the 1873 Rules:
A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial –
to translate that denial of grant of a new trial into the positive words dealing with when the verdict is to be set aside qualified by this proviso.
MR TEHAN: It may be that the former Rules had a more stringent test than the innovation introduced by the 1907 Criminal Appeal Act and that may give some support to the notion as to the concerns as to guilty men going free on technical errors that were expressed at the time of the introduction of the new provision.
GLEESON CJ: Suppose that in this case the inadmissible evidence that had been properly admitted had been that your client had a series of parking offences. Now, let it be assumed that the admission of that evidence involved an error of law. What would be the proper function of the Court of Criminal Appeal or the Court of Appeal in those circumstances? On your test, the court, notwithstanding the apparent triviality of that evidence, would have to ask itself whether some hypothetical jury could have had a doubt about the evidence of Ms Horstead.
MR TEHAN: Then they could not, not on that sort of evidence.
GLEESON CJ: I am sorry, I thought your argument was that once an error has been shown then you have to ask whether a hypothetical jury would inevitably have convicted.
MR TEHAN: Yes.
GLEESON CJ: I thought your answer to that question was you cannot say that a hypothetical jury would inevitably have been convicted because there are all these questions about the evidence of Ms Horstead or there are all these disputes between a police officer and the appellant about the circumstances in which an admission was made.
MR TEHAN: No, your Honour, with respect, we accept the proposition that the Court of Appeal has to make an assessment of the nature of the error in question and the impact or the likely impact of that error upon any reasonable jury. Now, in the case that your Honour puts to me, the Court of Appeal would be correct in coming to the view that that sort of evidence would not have any impact upon the jury.
GLEESON CJ: That is a different test from asking whether it was inevitable that a hypothetical jury would convict.
MR TEHAN: It is a step in the process towards that end, your Honour, rather than a different test. The test is inevitability of conviction.
GLEESON CJ: No, the test is substantial miscarriage of justice.
MR TEHAN: That is the statutory test expressed by common law courts as being inevitability of conviction.
GLEESON CJ: Well, in the example that I gave you about the wrongful admission of evidence of parking offences it must be inevitability of conviction by this jury, must it not, because you could never say, in this case, that a hypothetical jury would inevitably have convicted. A hypothetical jury, some jurors, might have disbelieved Ms Horstead, or had doubts about it.
MR TEHAN: No, no, we disagree with that, your Honour. It cannot be that every slip or every piece of inadmissible evidence means that the proviso does not apply.
GLEESON CJ: That is why I am suggesting to you that perhaps the rubric of inevitability of conviction is not a comprehensive explanation of the meaning of this expression “substantial miscarriage of justice”.
MR TEHAN: Well, it certainly has been interpreted as being – by this Court and other courts as being ‑ ‑ ‑
GLEESON CJ: It has been given as an explanation of a reasoning to a conclusion.
MR TEHAN: Yes, yes, and it looks – just as the phrase “loss of a fair chance of acquittal” also – they all tend to look at the result. But the process of reasoning must include some assessment of the possible impact of the error in question upon a jury.
GLEESON CJ: Which jury?
MR TEHAN: A hypothetical jury.
GLEESON CJ: This is the problem that we have to thrash out that is raised by the footnote to Justice Callaway’s judgment which suggests an argument, which you embrace, that seems to have as its logical conclusion that in a case where there is a substantial contest about the credibility of witnesses you could never apply the proviso.
MR TEHAN: Well, we are not going that far. We are not going that far, but we do say that the fact that there was a substantial contest on credit in this case, coupled with the significant prejudicial impact of this evidence in terms of an assessment of credit means the proviso does not apply. I mean, each case has to be dealt with ‑ ‑ ‑
GLEESON CJ: But does this proviso not require you in some way, by some process of reasoning, to relate the error to the outcome of the trial?
MR TEHAN: Yes, it does, and that is why the phrase “inevitability of conviction” appears in so many of the authorities.
GLEESON CJ: It may be why the Americans use the expression “harmless error”.
MR TEHAN: Yes.
GLEESON CJ: Or why an expression like “immaterial error” might be useful.
MR TEHAN: Yes. It is fair to say this, your Honour. Whilst we say the preponderance of authority is the “a reasonable jury” test emanating from Stirland in England, emanating from Mraz, emanating from Storey’s Case, emanating from the test your Honour applied in Gilbert’s Case, there are statements that do slide at times along the path of this jury, but the preponderance of authority, Festa, what your Honour Justice Hayne and Justice McHugh said in Festa. Again, there seems to be a continual recognition that the appropriate test, when the proviso is expressed in terms of inevitability of conviction, the test has been expressed as inevitability of conviction by a reasonable jury properly instructed.
GLEESON CJ: But it is all in the context of an attempt to assess the significance of an error.
MR TEHAN: It is, and that must mean some assessment of the significance of the error. We agree with that. That is why we devoted the time we did to the impact of the error in this case, because we say it was significant. Now, the onus is on our friend to say that there has been no substantial miscarriage of justice. That aspect is also pointed out in the authorities and is consistent with the harmless error cases, that the onus is upon the person contending that there has been no substantial miscarriage of justice to make good that matter.
HAYNE J: When did the power to direct a new trial come in, firstly, in Victoria and, secondly, in England? You may wish to take those questions on notice, but the 1907 Act as passed in the United Kingdom required the result that if an appeal was allowed:
the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
No power to order retrial. Now, that may – it may not – reflect back up into the process that is meant to be being undertaken by the Court of Appeal.
MR TEHAN: The power came in in Victoria in 1914 and I think – but I will check over lunch – as your Honour observes, for many years the English Court of Criminal Appeal could not order a retrial and I think ‑ ‑ ‑
HAYNE J: Pattenden says it is 1988 that is the first general power to order a retrial. It seemed to me to be rather late but ‑ ‑ ‑
MR TEHAN: I thought it was after the Donovan Committee, I must say. I thought it was 1966 but, in any event, we will check that matter over lunch, your Honour.
GLEESON CJ: Is that a convenient time to adjourn?
MR TEHAN: Yes, it is, your Honour.
GLEESON CJ: We will adjourn until 2.00 pm and over lunch you and Mr McArdle should divide up the time between 2.00 pm and 4.00 pm.
MR TEHAN: Yes, thank you, your Honour, if the Court pleases.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.00 PM:
GLEESON CJ: Yes, Mr Tehan.
CALLINAN J: Mr Tehan, can I just ask you one question on the facts? Did the trial judge in his summing‑up make any reference at all to Renee or Renee’s age?
MR TEHAN: He did twice, your Honour.
CALLINAN J: Can you just give me those references now, please.
MR TEHAN: Yes, I will give you those. They are referred to in our outline. Just while the page numbers are being handed to me, your Honours, could I indicate that it is agreed that I will go for about another 15 minutes. A couple of housekeeping matters that the Court asked about - by the Criminal Appeal Act 1964 England, the Court of Criminal Appeal was granted the right to order a retrial. This Court has, because they were exhibits on the trial, the tape‑recorded conversations between the appellant and Ms Horstead, to which reference has been made. At 237 at line 17 Ms Horstead’s evidence was that it was her idea to engage in those conversations in order to seek corroboration and to use her words “to get a conviction”.
The first appearance of the word “Renee” is at 195, line 25 in cross‑examination. However, reference is made in her evidence‑in‑chief at page 170 to him having been involved in an affair although the name ‑ ‑ ‑
CALLINAN J: It was the trial judge’s summing‑up.
MR TEHAN: Yes, I have those. They are at pages 1256 and 1262. The final matter is this, and I have discussed this with my learned friend, with the leave of the Court, if we were permitted to give the Court a list of references to page numbers and line numbers in the appeal books to those parts of the evidence we have referred to, say within seven days, we would be more than happy to do so.
Your Honours, as set out in our outline, we have made reference to authorities in Canada and in New Zealand. What emerges from those authorities, and indeed all the authorities, is the proposition that the test for application of the proviso is a very high one. Indeed, in Gilbert v The Queen at page 422 having referred to the Canadian position as being – this is at line 19, page 422, your Honour the Chief Justice and Justice Gummow said:
McLachlin J said that, in such circumstances, the test for the application of the proviso is whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder.
We agree that such a question must be asked in order to determine whether there has been a miscarriage of justice.
In New Zealand the test is epitomised in the judgment of the majority judges in the R v McI [1998] 1 NZLR 696 at 712 in these terms:
The threshold for the application of the proviso in a case where ex hypothesi there has been a miscarriage of justice, is a high one. The Court is entitled to consider that no substantial miscarriage of justice has actually occurred if, but only if, the jury would without doubt have convicted had the error or deficiency not taken place.
GLEESON CJ: The jury.
MR TEHAN: The jury, I accept that. The New Zealand ‑ ‑ ‑
GUMMOW J: I think you have to look at Justice Thomas at 701, which is perhaps a fuller discussion of the statute.
MR TEHAN: Justice Thomas was in the dissent.
GUMMOW J: That does not matter. The question is how cogent it all is.
MR TEHAN: Yes.
GUMMOW J: We are in another country.
MR TEHAN: Yes, well, that epitomises that discussion, I think, your Honour. It is consistent with much of what was said before lunch about the history of the proviso and the fears that ‑ ‑ ‑
GUMMOW J: The paragraph beginning at line 36.
MR TEHAN:
The necessary consequence of the proviso is that it is not every error of law or breach of the rules of evidence or procedure which have evolved to ensure a fair trial for an accused which is necessarily fatal. Any such error or irregularity needs to be material to the outcome of the trial. Unless it is, no injustice has been done. The Court is not a referee blowing the whistle at every perceived or real infringement of the “rules of the game”.
HAYNE J: That is an evident reference to Roscoe Pound’s sporting theory of justice speech to the ABA in 1906, provoked amongst other things by the difficulties that were being encountered by retrials.
MR TEHAN: Yes, and, of course, the history of the introduction of the provision, at least in England, has to be seen in the light that there was no power to order a retrial.
HAYNE J: Yes, the Roscoe Pound piece is reproduced variously but at other places, 1936‑37, 30 years after the event, 20 Journal of the American Judicature Society 178.
GLEESON CJ: If you look at the concluding words of Justice Thomas in that paragraph:
it does not represent an injustice in the particular case unless it would have made a difference to the result.
MR TEHAN: Yes, that phraseology, “would it have made a difference” is used in some of the judgments of this Court, too.
GLEESON CJ: These are all various verbal formulae for expressing an opinion that an error was immaterial.
MR TEHAN: Yes, and they are helpful expressions towards a resolution of what is the test for application of the proviso which is, as we contend for, that is, would a reasonable jury have inevitably convicted the accused. Can you be satisfied beyond reasonable doubt that the jury would have convicted. That is consistent with all of the authorities including the harmless error cases in America where in the case of Chapman v California the Court, Mr Justice Black speaking for the majority opinion, said:
The California constitutional rule emphasises “a miscarriage of justice,” but the California courts have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s view of “overwhelming evidence.” We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v Connecticut, 375 US 85. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”
GLEESON CJ: But if you look back at the Donovan Committee Report, what they say is that these various verbal formulae are ways of the appeal court expressing its own judgment about the strength of the case against the accused person. They say in paragraph 161 in relation to the question:
“Could a reasonable jury, properly directed, have failed to convict?” Despite the form of this question the result is that the Court itself decides whether the only reasonable verdict was one of guilty.
MR TEHAN: That is so important in this case, your Honour, because when you go to paragraph 69 of the judgment of Justice Callaway at page 1138 of the appeal book, his Honour said:
Given the weight of the evidence against him –
There is no traversing of the weight of the evidence against the applicant in the way that we have sought to do earlier today. There is no analysis of the weight of the evidence in terms of an hypothesis consistent with innocence, namely in relation to such matters as time, opportunity, motive, Grey’s position. The case is simply looked at in terms of the credibility of Horstead and the credibility of the applicant. We join issue with the Court of Appeal when it says at 69:
Given the weight of the evidence against him –
That was one basis upon which the proviso was applied. The second basis was:
the fact that the evidence elicited as a result of the judge’s ruling was not deployed as a matter going to his credit –
We say, so what? How is one to know?
KIRBY J: The one thing that is indisputable is that the deceased died and was killed and therefore you have to have a theory as to who it was. If it was not the appellant, your theory is Mr Grey, but I do not get the impression that you laid a glove on Mr Grey or significantly in the cross‑examination. He was exposed to cross‑examination.
MR TEHAN: There was enormous evidence of animosity, including from the appellant himself, who said at one stage that he had heard Grey threaten his wife and say, “I’ve got to knock her off”. I have not given the Court that reference but we will give the Court that reference. There was more animus and there was more evidence of motive against Grey than there was against the applicant. He, after all, was the prime suspect. He was the person who made two confessions to Maddocks within two months of the killing having taken place.
When courts of appeal, including this Court, have looked at the weight of the evidence, as they did, for example, in a case such as Festa v The Queen, what are the sorts of phrases we see being used? They are phrases such as “the case was overpowering”, to use the words employed by Justice McHugh in Festa. That is not this case. It is the simple one line, “Given the weight of the evidence against him” and the fact that the Crown Prosecutor did not use it in relation to credit. He certainly mentioned it in his address, we know that much.
GLEESON CJ: Was there a ground of appeal that this verdict was unreasonable?
MR TEHAN: No. I think there was a ground about unsafe and unsatisfactory, but it was argued in the way of misdirection and conduct of counsel. The conduct of counsel certainly as a ground occupied a very major part of the hearing before the Court of Appeal.
I am satisfied that the questions and answers about Renée’s age did not deprive him of such a chance of acquittal.
I have given the rest of that reference to the Court.
HAYNE J: The court in Kotteakos 328 US 750, the other United States case to which you were referred, particularly at 763 and following, in the “Opinion of the Court”, discuss amongst other things the right of the accused to be tried by jury, not by appellate court, but at 764 it is said at the very end of line 4:
To weigh the error’s effect against the entire setting of the record without relation to the verdict or judgment would be almost to work in a vacuum.
What do you say about that proposition as a proposition identifying the task that confronts the Court of Appeal in applying or not applying the proviso?
MR TEHAN: Well, of course, this was a case which I think preceded the Chapman Case and it is a case where it would seem that the court looks at what this jury would have done ‑ ‑ ‑
HAYNE J: Kotteakos is non-constitutional harmless error. Chapman is constitutional harmless error, which is seen by some as controversial, but Kotteakos is I think still regarded as good law. Be that as it may, what about the proposition made?
MR TEHAN: Well, let us relate the proposition to this case, because the court goes on and say:
And the question is, not were they right in their judgement, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.
This must take account of what the error meant to them, not singled out and standing alone, but in relation to all else that happened.
That is why our submission is that if you look at the test from the point of view – and, in fact, in another part in the judgement they looked at things such as the character of the proceeding, what is at stake upon its outcome, the relation of the error asserted to casting the balance for decision on the case. If you look at the case as a whole here, then from the point of view of this jury, if that be the test, then this was devastating. This was a trial for murder where the stakes were extremely high, where there was evidence led, irrelevant, prejudicial ‑ ‑ ‑
HAYNE J: Yes, you have told us that.
MR TEHAN: No, but surely that answers the question, your Honour.
HAYNE J: The question is one of principle and that is what I am asking about, not more than that. What is the principle that the Court of Appeal should apply? Is it to consider what effect this error may have had on this jury?
MR TEHAN: We say the test is not that; the test is would a reasonable jury inevitably have convicted without the error. We say that is consistent with authorities in this Court. If that is the test, as we contend it is, then the proviso should not have been applied in this case and, as Justice Callaway accepts, that indeed would be the case. A new trial would have to be directed.
KIRBY J: This Court is a court of error and this process is a strict appeal. Do you have any submission as to what we can and should do if we came to a view that Justice Callaway’s concession and that of the other two judges of appeal is not correct, that on the other theory, on the theory you propound, that this is still a case for the application of the proviso? My impression and my memory is that this Court then gives effect to its own final conclusion on the matter.
MR TEHAN: Your Honour, as a matter of principle, we would say that this Court is not bound by what Justice Callaway says at lines 6 to 8 of paragraph 70 and in footnote 69, not bound by that and that it should give effect to its own decision, but that decision should be that the proviso was not applicable.
KIRBY J: You would have to give weight to the fact that the three judges came to that conclusion because their exposure to the transcript and the multiple issues they had to consider would have taken them more deeply into the facts than normally we would go, particularly when we do not have a good factual submission on the matter. I do not wish to belabour that point, Mr Tehan.
MR TEHAN: The weight that one would give is to the view that another jury might take a different view.
KIRBY J: No, this other jury is a personalised thing. It has to be the notional jury, the reasonable jury, it seems to me, with respect, which
effectively is another way of saying the court, as the Donovan Committee said.
MR TEHAN: Yes.
GLEESON CJ: References to reasonable persons are ways of objectifying an inquiry; that is all.
MR TEHAN: But if that was the test that had been applied in this case, a new trial would have been ordered. That is the position our client stands in, that he knows, if the test was in fact the one that we now contend for and say is the correct test, then he would have been granted a retrial.
KIRBY J: A few years ago myself in the Court of Appeal and Justice Callinan and myself in this Court said that we had the impression that the proviso was less applied now than it had formerly been, but since then and since Festa and other cases in this Court I am not entirely sure that that is correct and, in any case, every case, because this is statutory law, has to be applied against the standards of the Parliament.
MR TEHAN: It is still rarely applied in Victoria, resort to the proviso.
KIRBY J: I do not know how we can do this except by impression.
MR TEHAN: As I say, there are very few cases. We found some English authority, but very few cases upon wrongful reception of inadmissible evidence of bad character. As I said earlier, most of the cases of bad character turn on section 399 sort of cases. That is not this case.
KIRBY J: And apart from the article by Penhallurick that is referred to, is there any other analysis of the proviso in Australian ‑ ‑ ‑
MR TEHAN: In Australia?
KIRBY J: ‑ ‑ ‑ scholarly examinations or the Institute of Criminology or anybody looked at this?
MR TEHAN: Not that we have been able to find, your Honour. If the Court pleases.
GLEESON CJ: Thank you, Mr Tehan. Yes, Mr McArdle.
MR McARDLE: Your Honours, may we commence with a few words, only a very few words, in relation to the relationship with the girl Renee. Your Honours, its significance in this case, it is submitted, is really whether or not it impacted upon the credit of the appellant, or could reasonably be supposed to have impacted on the credit of the appellant. This was, it is submitted, an unusual – assuming there was criminal behaviour involved in the relationship. It was never expressly said that that was the case, but it may well be unrealistic to think otherwise. hat criminal behaviour presumably would be sexual penetration or indecencies of one sort or something of that nature – at some stage in the relationship. But it is unusual, it is submitted, insofar as it is not obviously a situation where an adult has taken advantage on one occasion of a young female. It has developed into a relationship that had been on foot – a cohabitation for about three years prior to his arrest. Presumably it was a loving relationship, presumably with levels of mutual respect.
KIRBY J: Now, Mr McArdle, just a few weeks ago down in the Melbourne in the special leave you were urging really very contrary submissions upon us in a number of cases. I mean, one of those cases might well have involved a loving relationship of some kind, but the jury would know that the reason why this is being pressed by the judge on two occasions and by the prosecutor at least on one and raised at all is that it is a serious matter that society frowns on seriously.
MR McARDLE: That is the difficulty I face, but I am submitting that in fact the events do not reveal the seriousness of the sort of offence that often comes before the courts. The purpose of this type of ‑ ‑ ‑
KIRBY J: I am beginning to think you speak with forked tongue.
MR McARDLE: That was a different case. Your Honour has in mind the schoolteacher case ‑ ‑ ‑
KIRBY J: There were a couple of them that day.
MR McARDLE: If I might be so presumptuous as to assume what is on your Honour’s mind, but that was a schoolteacher case. There were circumstances that really make that quite different, it is submitted.
KIRBY J: But the question a jury would ask itself is why has this been raised? Why is the judge referring to it? Why is the prosecutor? This is something we are supposed to take seriously. This is a wrong and awful thing that he has done and they then look at everything in relation to the accused through a screen of his wrongdoing in something which is extraneous to this trial. I really do not understand why the Crown introduced it.
MR McARDLE: Your Honour, it was introduced, according at least to the interpretation put on it by Justice Callaway, for this reason. One of the areas in which Jean Horstead was vulnerable in cross‑examination was this. “Why did you remain in a matrimonial relationship with this man for a number of years after he disclosed to you that not only had he killed this woman in an outburst of temper but also that he contemplated killing the child?” There was a seven‑year‑old child that was part of the household when this incident occurred.
Now, her explanation for that was that she was afraid that in the event that she was going to leave the household, or at least if she informed the police on him that she would be at risk, her family would be at risk. She had, I think, relations in Victoria, a mother, who by the time that she had made this information public had moved to Queensland and she herself was living in America at that stage, and so she would say that is the reason why I did not tell the police. It was a revolting thing, a worrying thing especially if I was going to cohabit with this man, and you may well wonder why I persisted in the relationship but I was afraid.
But in the event and given a good reason to leave the relationship, not associated with the prospect of her informing upon him, then she takes advantage of it. This presents a good reason to leave the relationship. His association with another woman, a girl, that gives her a legitimate reason for leaving the relationship which does not jeopardise her ‑ ‑ ‑
KIRBY J: You are answering my question and saying why it was thought by the prosecutor at the trial to have been relevant, but you are not resiling, as I understand it, from your acceptance expressed in the special leave hearing that the Court of Appeal was correct in its conclusion that it ought not to have been received before the jury?
MR McARDLE: The short answer is, yes. His Honour recorded us having difficulties in the Court of Appeal of ‑ ‑ ‑
GLEESON CJ: Why did the fact of the age of the girl turn what would not otherwise have been a sufficient reason to leave the relationship into a reason to leave it?
MR McARDLE: The defence position, as far as this witness is concerned, Horstead, was that the confessions were a fabrication by her, the result of bitterness and disappointment. Now, one might, moving outside this relationship and speaking more generally for a moment or so, assume that it would be a particularly hurtful thing, if you like, for her to be replaced by a much younger woman.
Now, there are two sides to this. It could be turned to the defendant’s advantage. He would say, “Look, this was a fabrication by a bitter and disappointed woman and she is particularly disappointed and bitter because I, the appellant, had run off with a young woman”, and compounded perhaps – although this might not have been expressed as such. I have not examined the addresses – but compounded by the fact that she was significantly older than the appellant, I think by we were told at the commencement of the proceedings, something in the region of six years, a bit more than that, and then he has, if you like, moved to another end of the spectrum of relationships.
So it is an event that really cuts both ways. It could have been used by the defence as providing an explanation for her fabricating the confession and that was a problem they had to face at some stage or another. There had to be a reason for her to do this and that provides it and as far as she is concerned, she would say this event was such that this gave me an excuse to leave the relationship without telegraphing to him that I was going to tell the police about him and I chose to do that later on when I was living in America, when the son of the union was also there with me and my relations, I think it is the mother, had moved to Queensland.
There are two aspects of this. If it is to be linked in terms of credit, there are two, if you like, mitigatory matters. The first thing is this. It is not a propensity problem. If, for example, it was evidence of a violent attack upon another woman or something like that, then there would be trouble, clearly trouble. It is not like that. It is not that type of offence. Even if it was an offence involving dishonesty or perjury you would think that there would be trouble over it but it is not that sort of offence either. There would be a severe risk of it being misused if it was an offence, say, for dishonesties. You would say in those circumstances there is a risk that the jury will discount his evidence on the basis that he is prone towards dishonesties or perjury or something of that nature. So, it does not suffer from either of those two problems. It is an entirely different offence; an offence about which there may well be different views but a mitigating aspect of it is that it was a continuing relationship.
Now, the objection that was made to it was twofold. At 1025 of the appeal book you will see that the prosecutor, Mr Faris, in the absence of the jury, raised this matter and then Mr Lovitt, counsel for the applicant at the trial then said – going over to 1026 – in essence his complaint was that there was not really a foundation for this matter to be put. Then he moves to another objection or complaint about this course of behaviour at the top of 1027 which is in these terms:
No, well, it seems to me – well, I’ll put it properly. In my submission, what’s really being sought to be done here is to denigrate the accused, simply by introducing that he started up a relationship with a very young female.
Later on he complains at 1028 that it is a “cheap shot” at his client. At no stage is there any suggestion that this might disclose by inference criminal behaviour so you might think that at the trial it was not seen to have the significance that it has been portrayed as having here.
Applying that to this case, if one is to examine what the jury did, what they thought about it, the one thing that you can be sure of is that they rejected the appellant’s evidence. Must have absolutely rejected that and his evidence, of course, was entirely exculpatory that in fact he had walked into the room, found the woman and shortly after that departed the scene. Now, he had immense difficulties. Whoever ran this case for him had great difficulties because there are three or four other inconsistent statements that he made in relation to the matter, first one being that he was at home all night, did not go there. The next one is of course, if Horstead is to be believed, the statement he made to her that he was responsible for this woman’s death.
The next one is the statement that he made to Thomas, Thomas being the detective who he thought that he knew or did know and that was the statement that was made in the interregnum between the two records of interview and then the next statement is the recorded cautioned record of interview, the second one of those in which he is on tape saying that he is responsible for an attack upon her although he would have it, I think, that he hit her only once whereas the pathology would have at least three blows to the head.
The other difficulty he had in relation to his case was that his explanation, his final explanation, was intrinsically improbable. It was simply this, that he went there for some purpose or another, found her dead, came in some contact with her, I think, which would enliven the prospects of him having blood on his tracksuit pants, then picked up the cricket bat, which is clearly the weapon, then on the way home pulls the rubber handle off the cricket ball, the rubber grip I think it is - which is, unless there is something odd about this cricket bat, is something of an achievement in itself – why not stay?
Now, panic can overtake people, but there is to be borne in mind that there is a seven-year-old child in this house and you would think that that might impede your panic. The explanation he gives is quite irrational. It is intrinsic to improbable and linked with a whole variety of other prior inconsistent statements it is very easy to reject. It does not depend upon the evidence of the affair with the 14-year-old girl, or the nearly 15‑year‑old girl, to reject it.
In fact, in the course of his evidence he himself makes a number of concessions – and this is in the course of evidence-in-chief – concerning his behaviour. For example, at 974, line 11 – and before that, as I understand how this topic came up, he is asked why it is that he did not tell the police that Grey was the person who was responsible for it, and his answer to that is:
It’s a common, common rule. I mean, basically with the people that I’ve always hung around with (indistinct), you just don’t go dobbing people, you don’t drop names. You know what I mean, if – that’s the way it is, that’s the way I got brought up.
Are there any risks involved in doing that?---Of course there are.
If you go into custody, are there any risks involved if you have the reputation of someone who dobs people in?---Yes . . .
You get killed -
et cetera. Now, that would indicate that it might be thought that he is, or associates himself with part of the demimonde.
At 942 there you see him saying that he was involved in a significant bit of dishonesty. At some stage in proceedings Mrs Grey’s house was raided by police seeking evidence of drug involvement. One of the members apparently was silly enough to leave a police camera behind because it was taken. Now, at 942 – and this was in his evidence‑in‑chief – he says that he sold the camera, or swapped it, I think is probably more accurate. He swapped “the camera for a trailer and a lawn mower.” You see that at 942 at line 8 and thereabouts. He volunteered that his contact with Thomas, the policeman he wanted to speak to when he got to the police station after the first interview, arose from the fact that he had been charged with an offence by Thomas arising from a stolen dishwasher.
GLEESON CJ: Did Renee give evidence?
MR McARDLE: No, I do not believe so, no. No, she did not. At 945 he tells the jury, as I think an explanation for moving the cricket bat, that his fingerprints were on record.
CALLINAN J: He said he picked it up instinctively, as it were, the cricket bat, did he not? He thought he might have fingerprints on it.
MR McARDLE: He is troubled about the fingerprints or DNA or something like that and apparently takes the cover off it, the rubber grip.
CALLINAN J: The rubber grip.
MR McARDLE: Yes, and then throws it out on the way home – throws it out of the car. We contend that that is the whole – the final version, the version that he pledged his oath to at trial was intrinsically improbable. What we submit is really the easy solution as far as this case is concerned is this – well, this case is, we say, easier than some of the others. His evidence was rejected. It must have been rejected. The likelihood is that the jury were prepared to act on her evidence of the confessions.
KIRBY J: I have a difficulty with this sort of submission and it is often put the Crown defensive of trials because to say the jury must have rejected it is to accept that the jury rejected it with the ingredient of prejudice in the way it approached the evidence and therefore there is a weakness in drawing an inference from the rejection because the rejection may have been coloured by the suggested prejudice because the accused was a criminal who took advantage of a young girl.
Do you follow my meaning? I mean, it is not uncommon for the prosecution to put the sort of submission you have put but it begs the question of what influence, if any, the prejudicial evidence had on the mind of the jury.
MR McARDLE: Your Honour, at the risk of me repeating myself, if his evidence, which was completely exculpatory, was accepted then he could not have been convicted. If his evidence was such as to create a reasonable doubt about the matter, that is to say, that the jury were unnerved or reluctant, at the end of the day, to accept the confessional evidence as result of his sworn evidence, if you like, being in a state of indecision about the matter, certainly not prepared to act beyond reasonable doubt, well that, too, would have led to a verdict of not guilty, necessarily so, but this is a case where there is a verdict of guilty. They must have rejected his explanation. They must have. Now, why did they do that? We say they did that for those reasons that ‑ ‑ ‑
KIRBY J: We just cannot know. They might have rejected it because they came to the conclusion that he was a liar and that might in turn have been affected by their view that he was a discreditable person. This is the so-called halo effect that is referred to in the Law Reform Commission summary of the empirical data on this.
MR McARDLE: Yes. They were never invited by anyone in this trial to use this material on his credit. So far so good. Did they then, notwithstanding a lack of invitation, do so? We say that that really is not what happened in this case. If they were going to attack his credit ‑ ‑ ‑
GLEESON CJ: You mean this material was put to them as being relevant to the credit of Ms Horstead?
MR McARDLE: That seems to be one of the difficulties about its tender - that is the fact that the girl was 14.
GLEESON CJ: Was there anything in the judge’s summing‑up – we know that there are two references to it, but anything in the judge’s summing‑up that suggested to them that they might properly use this in assessing the credit of the accused?
MR McARDLE: No. I know that because Justice Callaway says that it was never used for that. It was referred to twice and it was referred to in an analysis of the evidence, a recitation of the evidence which you would expect and I think it was mentioned ‑ ‑ ‑
CALLINAN J: Really, I think all the trial judge did was repeat the substance of the cross‑examination and repeat the substance of the submission by the prosecutor at the trial.
MR McARDLE: Yes, which did not have anything to do with credit. So if there is a concern about this, it must be in circumstances where the jury have uninvited gone down that path. Now, in fact, as I said, it is not a propensity issue. It does not demonstrate a propensity. It is not a dishonesty issue. He volunteered bits of dishonest behaviour, in any event, for some reason.
KIRBY J: I think Justice McHugh keeps pointing out in this Court that juries do not have to be invited, they do not have to act on the hypotheses that are put forward by the parties. Juries have their own collective mind.
MR McARDLE: Something similar might have been said by Chief Justice Barwick either in Storey or in Driscoll, which was one of the cases that we had in mind. That is why I am meeting it. I mean, if it was as simple as saying that there was no direction, that they should use it on credit and therefore they would not have and so we can leave the whole thing alone, that would be fine, but I have had to go a little bit further and say this is not the sort of stuff that you could reasonably suppose they would use to damage his credit. Plenty of other stuff there. He was in very considerable difficulty in this case in the light of all his statements about what had occurred. Essentially, if he was not believed and she was believed, Jean, then that is just about the end of the case for him. That was the risk his lawyer was running. It was a very difficult case from his point of view, very difficult.
Now, your Honours, if that analysis of the situation is correct, then that disposes of this particular case. The matter that troubled his Honour Justice Callaway, it is submitted, is the statements from time to time about hypothetical juries and such and the inevitability of conviction. Now, if that refers to ‑ ‑ ‑
KIRBY J: But I do not think his Honour was postulating a hypothetical but unreasonable jury; he was just hypothesising what, with respect, seems to me to be the correct principle, namely, the hypothetical reasonable jury, ie, the court by another name.
MR McARDLE: Yes, perhaps I had not appreciated that that may well be a view of it, your Honour, but his Honour expresses the concern that a reading of some of the statements from the court would suggest that really what you do is that you remove the inadmissible evidence in this case, or the faulty direction or whatever it is that has caused a miscarriage, or thought to have, and then you say, “What would a reasonable jury think?” and he is troubled by the basis that another jury hearing this case may well come to a different view as to credibility and things of that nature. Now, that is not a problem in this particular case because we know, it is submitted that we know, that he lost out in a credibility fight, to put it bluntly.
KIRBY J: Yes, but he lost out when the poison was in the well. That is his complaint. We cannot ask the jury, “Did you pay any attention to that? Was it in any way of significance to your reasoning?” We just do not know.
MR McARDLE: We cannot ask the jury. We have to think about – and in this case it is not so hard because we have certain information, certain findings that you can be confident of that have occurred in this case. The difficulties in those in which a hypothetical rational jury might be deployed is, say, for example, in an entirely circumstantial evidence case where, for example, you might have 20 items of circumstantial evidence which might provide an overwhelming case, but upon analysis one or two of those items might not be admissible.
GLEESON CJ: As has often been pointed out, in one respect circumstantial evidence cases are easier and more powerful than cases that depend on the credibility of witnesses. The Court of Appeal of Victoria has never seen, and we have never seen, Ms Horstead. How do we know what a jury might have made of her?
MR McARDLE: My learned friend reminds me that she appeared on the television, of course, for what it is worth, but she was cross‑examined at length exhaustively. Putting that to one side, no, they do not, but you can come to some conclusions, the conclusion that I have pressed the Court with, that she was believed, he was not, then you build it from there. If that is the case, then the only thing that is at risk is whether or not the fact – not the fact of an affair but the fact that the girl was 14 or going on 15.
GLEESON CJ: That really raises the question that troubled Justice Callaway. Do you start by saying, “We know that this jury believed Ms Horstead, but they believed Ms Horstead in the context of a conflict between Ms Horstead and the appellant.”
MR McARDLE: Yes.
GLEESON CJ: Was one of the reasons they believed Ms Horstead because they disapproved of the appellant’s conduct in relation to Renee?
MR McARDLE: That is the question and the question we say, no, that would not have impacted upon his credibility because of the nature of the relationship – that is to say it was a long term sort of relationship which became a domestic one. That is the first thing. Secondly, it was not one of those offences in which you would say that knocks this man’s credit about. For example, if you want to cross‑examine someone, you might think the best thing that can fall into your hands is a prior conviction for perjury because that can be devastating.
KIRBY J: You and I might take that view, but for all we know there were members of the jury who said, “If a person of age 25 begins an affair with a girl aged 15, I would not believe a word he said. I regard him as disgusting.” You just do not know.
MR McARDLE: They were never invited to do that. I know that is not a complete answer to the question, but on the other hand why should they? I mean, this is a relationship ‑ ‑ ‑
KIRBY J: We do live in an age where offences against young people are regarded very seriously. It is in the papers every second day. The criminal law looks on it seriously, Parliament looks on it seriously and it would not be surprising if a juror looked on it seriously.
MR McARDLE: Yes. I come to the Court unequipped with information about what the youngest age is that you can marry in Victoria or Australia, as it probably is now, but it is probably ‑ ‑ ‑
KIRBY J: I will remind you of these submissions next time we meet in special leave.
MR McARDLE: I know what you called me last time, your Honour. However, the marriage of a 15 year old – just assuming this is a marriage. I know it is not, but for these purposes, the marriage of a 15 year old would not, I dare say, I would submit, be entirely unusual in cultures different from our own and perhaps not cultures that are all that much different from ours, but it might not be – I am sorry, your Honour.
GLEESON CJ: Mr McArdle, this just states the problem in another way. Let it be assumed that there are many people in the community who would not turn a hair, in the social context in which these events occurred, at the age of Renee. Let it also be assumed that there may be some people in the community who would regard it with the severest disapprobation.
MR McARDLE: Yes.
GLEESON CJ: We do not know, the Court of Appeal did not know whether any of those people were on this jury. This is the problem of subjectifying the inquiry. If what is going on in this exercise is that the court is expressing its own judgment about the strength of the case against the appellant then that is one thing, but if the court is expressing or trying to guess at what was going on in the minds of these jurors at this trial, the ones who actually believed Ms Horstead, how does the Court of Appeal know what was the extent of the prejudice caused by the inadmissible evidence?
MR McARDLE: Your Honour, they cannot know absolutely, but if they do not know the proviso is never going to have any work to do. I mean, one just has to do one’s best I suppose, deploying what it is submitted ‑ ‑ ‑
GLEESON CJ: Suppose you have a situation, which might be this case, where the inadmissible evidence is evidence of a kind that would not matter to many members of the community, and would matter a great deal to some other members of the community. What do you do then?
MR McARDLE: Well, I am unable to offer an easy solution as far as that is concerned. I think that is just a judgment that one has to make as a member of an appellate court. The expression of course is reasonable, that presumes rational thought about these things. I would say that the rational thought is that even if you disapprove of this as a lifestyle, and there would be differing views about these things - but if you disapproved of this you would have to say, “Look, he might have a sexual partner in circumstances which I disapprove of but I mean that has nothing to do with whether he is telling lies or not. Other things might. Plenty of other things will tell me if he is telling lies or not”.
I mean, the difficulty his credit had in this case just screams out at you and it is nothing to do with the relationship with the girl. It is the intrinsic improbability of his story, his prior inconsistent statements, together of course with the other stuff, the other witnesses who said he was furious or very angry on the night before the killing and he had a grievance and he knew Grey. It is not as if they were strangers or anything of that nature.
To return to the question of how one is to make an assessment of what the reasonable jury think, without trivialising it, your Honour, I just think it is whatever the Court of Appeal or the appellate court judges think they are able to with their experience of life.
KIRBY J: But if we are not certain that we have at least the opinion of three judges of appeal, all of whom are experienced judges and who do more criminal cases even than we do – though we seem to be getting an awful lot of them now - and they formed a view that if the criterion is, as I happen to think it is, the reasonable jury, then it could not be excluded that they could have affected a reasonable jury, or members of it, and therefore it would follow that the proviso cannot be applied.
MR McARDLE: Yes, except the view of the court in Victoria, the Court of Appeal, was that this would not – it is submitted – that this would not ‑ ‑ ‑
KIRBY J: Losing you again, Mr McArdle, I have to hear what you are saying, I am sorry.
MR McARDLE: The view of the Victorian Court of Appeal was that this would not have deflected ‑ ‑ ‑
KIRBY J: This jury, that is the point of distinction which secured the special leave because Justice Callaway was very transparent. He said “I do not believe it would have affected this jury given the way I infer this jury reasoned, but if the test is, would it have affected the hypothesised reasonable jury ‑ ‑ ‑
MR McARDLE: His Honour would have ‑ ‑ ‑
KIRBY J: It would have affected them or could have.
MR McARDLE: Yes, his Honour would, it is submitted, have had in mind a jury, if you like, another jury picked at random and he said the difficulty with that is that they might form different views as to the witnesses and so it is impossible to predict what another jury will do. One jury might convict, on identical evidence another jury might acquit. Who is to know?
KIRBY J: Well, quite and that is the problem that it seems to me you have to hypothesise out the erroneously received evidence and once you do that you hypothesise out the poison in the well that might have affected some members of the jury in this case to be inclined against the appellant.
MR McARDLE: It was the view of his Honour and those who concurred with him that:
The jury were not going to believe Ms Horstead or disbelieve the applicant or convict him because of a sexual liaison, even with a child -
last line of paragraph 69. That was his Honour’s judgment of the situation and shared with Justice Batt and Acting Justice of Appeal Harper. His Honour’s concern – I am sorry if I am repeating myself – is that really another jury, another entirely different jury, if that reading is to be given to the authorities of this Court, another entirely different jury, who is to know what they would do?
HAYNE J: There is a second element in that second aspect of his Honour’s reasoning again revealed by this footnote 69:
Another jury might have taken a different view of Ms Horstead’s evidence or the reliability . . . for this was a case that largely turned on the credibility –
Implicit in that proposition is the proposition that the Court of Appeal, with what it has before it, cannot safely form any view about the credibility or reliability of the confession.
MR McARDLE: It is submitted that his Honour’s concern really was with an entirely fresh jury ‑ ‑ ‑
HAYNE J: I understand that.
MR McARDLE: Not those who have made a finding which, we submit, in this case is relatively easy to work out what is happening and to apply the proviso.
HAYNE J: But his Honour seems to have concluded that it was enough to reach the point of saying the second jury, the hypothetical reasonable jury, might have taken a different view on credibility, I need express no view myself, perhaps because I cannot form a view myself though that is not explicit, but I do not express a view about likelihood, certainty, inevitability of the resolution of that question of credibility as by the new and hypothetical jury.
Now, that brings you back to what seems to underpin so much of your submissions which is a proposition that look, this man had told so many tales, really the only sensible, rational conclusion to reach was the second taped interview was the truth. Now, that is what – though you have not put it in that way – seems to be what is underpinning much of the submission. Now am I right about that and if I am, what is the consequence?
MR McARDLE: The second taped interview is not all the truth. That is the one where I think he said he hit her once.
HAYNE J: Yes.
MR McARDLE: Now, the pathologist, who is going to be believed on the issue, would say at least three blows to the head. Not surprising. Sometimes, especially with the passage of time, people are reluctant to admit full criminality, but he would ‑ ‑ ‑
HAYNE J: But the accused is guilty if the second interview is accepted beyond reasonable doubt.
MR McARDLE: Yes, probably, insofar as it is an admission that he caused her death and there is no suggestion of anyone else hitting her or any other intervening person causing the fatal blow. So the presence of that evidence would save it from being an unsafe verdict, if you like, if it was otherwise established that she had been killed in murderous circumstances.
HEYDON J: Do we have that second recorded interview?
MR McARDLE: Yes, you should have it. I think we were asked to ‑ ‑ ‑
GLEESON CJ: It is at the end of that bundle that was handed up to us this morning.
HAYNE J: We have the transcript.
MR McARDLE: No, it is not. It is not part of the appeal books.
HAYNE J: No, but we have a transcript of the record with the other records. Was it a video interview?
MR McARDLE: It would have been.
GLEESON CJ: It is at page numbered 71. It is in that bundle, is it not, that was handed up to us? The back page in the bundle has page 82 at the bottom of it, is that right?
MR McARDLE: Yes, page 82 at the bottom.
GLEESON CJ: Well, if you work forward from page 82, you come to page 71, and that is where he said he hit her.
MR McARDLE: Yes, but he said only the once.
GLEESON CJ: I understand that. That is the admission that he struck the blow which the Crown said was the fatal blow or one of the fatal ‑ ‑ ‑
MR McARDLE: I prefer to put it in terms of him causing her death.
GLEESON CJ: Right, he did the act causing death.
MR McARDLE: Yes, it is an admission of that. Whether he has underestimated what he has done or he is not being entirely frank does not matter much. That is an admission that he caused her death, in the circumstances of this case.
GLEESON CJ: Yes, and if the jury accept beyond reasonable doubt, on the strength of that admission, that he was guilty of the act causing death, he is finished.
MR McARDLE: Yes. They would have to reject his evidence, but I suppose if they accept what was said there, it involves a rejection of his evidence, or his evidence was not of sufficient standard to create a reasonable doubt on the issue.
GLEESON CJ: But the question is whether the process of reasoning by which they ultimately came to the conclusion that that confession was true, or that admission was true, was a process of reasoning affected by this prejudicial evidence.
MR McARDLE: No, it is submitted it would depend upon the integrity of the interview – what was said by the police beforehand, how reliable it is. Well, it would be pretty reliable as far as what was said because it is recorded on tape and I assume there is a videotape of it available. I should tell the Court that we were asked to provide the exhibits. They were surrendered to the Court in Melbourne and I think they are in a box somewhere over the other side of the courtroom there, everything I think except the cricket bat. I do not think that was required. I assume there are transcripts of those telephone calls that your Honour was inquiring about earlier. We could have fixed up a set of those but I did not want to ‑ ‑ ‑
GLEESON CJ: Was the cricket bat an exhibit in the case?
MR McARDLE: Yes.
GLEESON CJ: Was there glue on the handle?
MR McARDLE: I do not know. I wanted to have a look at the photographs, but the only photographs I have are in the box and I did not want to interfere with them while they are in the Court’s custody without your permission. I do not know how hard it would be to lift the rubber grip off the cricket bat.
KIRBY J: You put your submission to the Chief Justice with great conviction and sincerity, but it reminds me that it is very similar to what I said in the Court of Criminal Appeal of New South Wales in Domican, upholding the conviction. This Court corrected that and said once you get to a number of ways of coming at the guilt, then because you do not know which way the jury took – it may in this case have accepted the so-called verbal admission to the detective.
MR McARDLE: Yes, but the more substantial thing would be the second record of interview because it is all there in front ‑ ‑ ‑
KIRBY J: That is more substantial. You are being entirely logical. That is what I was in the Court of Criminal Appeal in New South Wales. There was a very powerful case against Mr Domican but the court said it might have been reasoned through the identity evidence and that it was accepted that the instruction there was not good enough and therefore because we do not know which route the jury took there has to be a new trial, absent the mistake on directions on identity and I accept that that is logically unassailable.
MR McARDLE: Thank you for that, your Honour. I do not think I can assist you any further then but trying to be logical about the matter. That is the approach. Whatever one says about the jury it is said to be a reasonable jury. I have not inspected the charge for this purpose but I would imagine that they were told that this was an intellectual process that they were embarking upon, not to be involved in matters emotional or prejudicial or anything of that nature, especially seeing the temperature at which this case was run you think that a direction along those lines would be highly desirable. If that is the case then the matter is to be judged by logic, it is submitted.
Your Honours, there are two other matters. Mr Maddocks was not, I think, on the presentment. The Crown, I think, declined to call him. In fact, there was some doubt as to just where he was, let alone what he was going to say on these matters. Grey denied the admissions said to have been made to Maddocks that he was responsible for his wife’s death. You will see the matter in the event that it is of significance to the Court discussed at 709 of the appeal book and thereabouts. It appears that Maddocks had gone. I think I read somewhere about it it was thought that he might be in Queensland and the police could not trace him and that is where the matter was left.
The last thing, your Honours, that I wanted to make reference to was – there was just one thing before I leave Mr Maddocks – if he was found, and if due respect is to be paid to this Court’s decision in Bannon’s Case, the third party confessions case, then there is probably virtually nothing he could have been asked. So, if he was called by the defence or the Crown it would have created a pretty remarkable sort of event because the jury would be saying, “Well, why isn’t he asked about this confession that he is supposed to have received?” In any event, whatever one is to make of the Bannon Case it was conceded by Mr Lovitt that he could not lead evidence of this confession in any event.
Lastly, although special leave was not granted on the question of counsel’s behaviour in the course of the trial – the defence counsel’s behaviour – you have been exposed to some of that in the course of argument presented by our learned friends. The matter, it is submitted, was correctly handled by the Court of Appeal. A number of outbursts have been presented for your consideration in this case. They, of course, have been condensed in.
There was no trouble, if my recollection is correct, and I think this is reinforced by the judgment of Justice Callaway which – the authorised judgment does not include any discussion of those grounds. The judgment in the Victorian Reports does not, it has been excluded from that, but it I think is certainly in ‑ ‑ ‑
KIRBY J: I am not following what you are saying there. There is a passage in the reasons for judgment which deals with the ‑ ‑ ‑
MR McARDLE: Yes, yes, there is, but it does not ‑ ‑ ‑
KIRBY J: So what has been expurgated?
MR McARDLE: The ground and that part of the judgment which deals with Mr Lovitt’s behaviour in the course of the trial and the conflicts with the judge and the contention made, which was the primary contention in the Court of Appeal, that in fact as a result of the heat and hostility and all the rest of it, that the trial had miscarried. All I am saying ‑ ‑ ‑
GLEESON CJ: We have the unexpurgated version?
MR McARDLE: You do, and I think it also appears in the Australian ‑ ‑ ‑
GLEESON CJ: It is only in the Victorian Law Reports that you have the King James version.
MR McARDLE: Not in the Victorian Law Reports.
HAYNE J: Not worth reporting as a point of any principle. Just a particular application of accepted principle to facts one would hope would not occur again.
KIRBY J: Let us hope it is not a principle that often has to be invoked.
MR McARDLE: I am told it is in the Australian Criminal Reports. They have the unexpurgated version of it.
KIRBY J: But what is the point you are making now to us?
MR McARDLE: The point I am simply making, your Honours, is this. What was outlined to you condenses a number of incidents occurred over a large number of days.
KIRBY J: One gets an impression that at a certain stage things blew over after the Easter break and there was an apology and the judge accepted it and said these things happen and the trial moved on. Then the storm – it was like Rita after Katrina.
MR McARDLE: Yes, well, your Honour, I do not think there was any exchange of unpleasantries in the presence of the jury after Easter and I do not – if my memory is correct, I am going on memory having argued this in the Court of Appeal, nor do I think that there was anything in front of the jury at least during the time his client gave evidence.
GLEESON CJ: Strongly supportive of the reasoning of the Court of Appeal on this point is that if exchanges of unpleasantries could provide a ground of setting aside a conviction, there would be a lot more unpleasantries.
KIRBY J: Which would be a complete departure from our tradition and not to be encouraged.
MR McARDLE: Yes, yes. The point I simply wanted to make about it, your Honours, was that the unpleasantries were, if my memory is correct and I think it is in the judgment, they were not occurring when his client was giving evidence and did not occur in front of the jury, I think, after
Easter – after the Easter break. So I think it was the view of the Court of Appeal that really, as far as the jury were concerned, the fire had died down.
KIRBY J: Mr Tehan walked a very fine line on the question of counsel’s conduct and he was not putting it forward as the ground. He was just saying you have to look at the nature of this trial in the context of this background dispute and ask whether or not, viewed in that context which is the real context of this trial of this accused, what might not have been so significant in another context becomes more significant in the context of this trial which had a highly charged element to it.
MR McARDLE: Yes, your Honours, there are different views about these matters. It can cut the other way. I mean, if counsel misbehaves in Court, or if I can use a colloquialism, puts on a turn, the jury may well think that he is not getting a fair go and may well be sympathetic to his client. That as a tactic is not unprecedented. I am not saying it happened here, but it is one of the considerations. They can feel sorry for a client (a) if they think the barrister is not getting a fair go or if they think the barrister is not much good.
KIRBY J: Justice Cummins, I think, understandably said, “The one person in this courtroom who does not look happy is your client.”
MR McARDLE: That was at one stage of proceedings, yes, yes. If I might just conclude, your Honours, in the event that you find it necessary to look at this aspect of the trial again, it is submitted that you will notice that his Honour made valiant attempts from time to time to calm things down. It is submitted, with the interests of a fair result, he from time to time made suggestive, or at least suggestions, constructive suggestions to Mr Lovitt as to how to overcome some difficulty or another that had occurred. Your Honours, I think that that concludes the submissions we desire to make, if the Court pleases.
GLEESON CJ: Thank you, Mr McArdle. Yes, Mr Tehan.
MR TEHAN: In answer, your Honours, to the first submission our friend makes that this evidence was not used to engage in propensity reasoning, that it is not a propensity type of problem, one cannot be confident that the jury might not have used it in that way. After all, this was a case where very early in the trial the jury had before them evidence that the appellant had committed two violent assaults on two separate males, in one case breaking a friend’s arm and in another case breaking someone’s nose. The breaking of the nose took place within six months of the alleged murder in 1994 and resulted in a court appearance. Ms Horstead also gave evidence that the appellant had put her through a laundry door.
The combination of that evidence, as we pointed out this morning, led to an application for discharge of the jury, but combined with the evidence the subject of this appeal there is no good reason to suppose that the jury might not have used the combined force of the bad character evidence to reason that not only was this man discreditable but he was just the sort of man who might deal with a person in this way in a violent outburst resulting in killing in circumstances where the Court should be reminded that the second record of interview was not relied upon by the Crown as being a confession to murder. The second record of interview, the Crown said, was wrong.
The second record of interview was an admission to an act causing death, but it was an admission to a killing by accident. The Crown went to the jury on the basis that the second record of interview was not the truth. They said it was full of lies. In part, of course, they relied upon it, but it is not accurate to say that it was a complete confession to murder upon which the Crown relied.
Now, it is all very well for our learned friend to speak about prior inconsistent statements on the part of the appellant. Ms Horstead’s evidence requires detailed and critical examination, as we attempted to undertake this morning in part, albeit only in summary form, but amongst other things she said that as part of the confession when the appellant came home that night, having killed the deceased, she said that he said that Brad Connor and Marina – that he saw them leave the house. That is at page 125, line 27.
Now, the fact of the matter is that is completely inconsistent with the evidence of those two witnesses. They had it that they had left the house well beforehand. It is all very well to talk about Mr Grey and, as your Honour Justice Kirby has suggested, that not a punch was landed on Mr Grey, as the judge said to the jury – and reference has been made to the directions which were given on this matter:
Mr Grey denied making the statements that Mr Lovitt put to him, so there is no evidence that Mr Grey ever said what Mr Lovitt put to him.
That is at page 1180, line 16. The fact of the matter is that prior inconsistent statements made by Grey did not go before the jury because Mr Maddocks was not called. Now, we know the basis on which Mr Maddocks was not called, Bannon, but the door was not closed to prior inconsistent statements on Grey’s part going before the jury through the calling of Maddocks and the Crown – not only was not Maddocks called, but two police officers were not called, and it was alleged that in relation to one of those police officers the appellant had said on the morning following the killing, on the Friday morning, “I shouldn’t have gone to her house last night”.
Now, I know it might be said these witnesses were not called, but the fact of the matter is that it is important, in our submission, in assessing the overall course of this trial to take account of those sorts of considerations. The defence tried to find Maddocks and it appears from the discussion that they could not, but the Crown had Maddocks. They simply refused to call him. That is what Mr Faris said to the judge. They simply refused to call him. They refused to call him in relation to two matters: as to the confession to Grey – and all in the court below seemed to act on the basis that that part of the material that he might have given was inadmissible because of the rule in Bannon’s Case ‑ ‑ ‑
KIRBY J: I thought Mr Faris said that they did not have the address.
MR TEHAN: No, the discussion is at page 711.
KIRBY J: I am thinking of 709 at line 11, although it is Mr Lovitt saying:
We’ve been given an address in Queensland that proved unfruitful.
MR TEHAN: Yes, that is right, but later on at 711 ‑ ‑ ‑
KIRBY J: And his Honour said:
it’s not presently known where he is, I take it, is the bottom line.
MR TEHAN: Yes, but at 711 at line 15 Mr Lovitt says:
I propose, with Your Honour’s – but I thought I’d better run it past Your Honour, first – to lead from Mr Mitchell, because he’s the man in charge of the investigation, that Maddocks can’t be found. Which is the truth. That way, the jury don’t know – they don’t speculate ‑ ‑ ‑
MR FARIS: We don’t know that.
MR LOVITT: Well, if he can be found, we’d like to know if he can be found, Your Honour.
HIS HONOUR: Yes, thank you.
Mr Faris it should read there, not Mr Lovitt, at line 25.
MR LOVITT: Your Honour, could I just say this. Mr Lovitt, before the trial started, when we were discussing witnesses, asked me to call Maddocks, and I refused. I called Grey, so that, being the maker of the alleged statement, he could be cross‑examined.
So the position of the Crown was, “You can have Grey, to whom – the confessionalist, the alternative killer, but you can’t have anyone else”. That was the position of the Crown. So it is all very well to talk about prior inconsistent statements and not landing a punch on Grey. Not much of a punch could be landed on Grey in circumstances where the Crown took the stance that they did, meaning that any prior inconsistent statements that might have been made by Grey – and they were devastating because they were confessions to murder – could not be proved.
KIRBY J: Did Mr Grey specifically deny that he made a statement?
MR TEHAN: Yes. I mean, the statements were put to him and he denied making them.
KIRBY J: It is Nicholls and Coates, is it, that deals with this issue of impugning a witness by reference to prior statements? We had a case last year ‑ ‑ ‑
MR TEHAN: Yes, Nicholls and Coates, but mainly Coates. Those matters, in our submission, are important in answering our friend. Now, the only other matter that we want to say is this, that it is no good saying in the resolution of the problem before this Court that the jury have convicted the appellant, they must have accepted Ms Horstead’s evidence and rejected the appellant’s evidence. That does not resolve the problem. It simply goes around in a circle.
They convicted the appellant with a poisoned chalice in front of them and one cannot discount the possibility that that poisoned chalice led to an impermissible line of reasoning. If that is the case, whatever the test be or application of the proviso, this was not a case where it should have been applied. May it please the Court.
GLEESON CJ: Thank you Mr Tehan. We will reserve our decision in this matter.
MR TEHAN: Your Honours, before the Court rises, I indicated to the Court that if the Court would be assisted by a list of page numbers to the evidentiary material that I raised this morning – and I accept that the summary is inadequate – we will do so within, say, seven days?
GLEESON CJ: Yes, thank you.
MR TEHAN: If the court pleases.
GLEESON CJ: We will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.
AT 3.23 PM THE MATTER WAS ADJOURNED
- AGLC
- Weiss v The Queen [2005] HCATrans 776
- Case
- [2005] HCATrans 776
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the recording was obtained in contravention of any Australian law, and if so, whether the desirability of admitting the evidence outweighed the disreputability of the impropriety. Specifically, the Court had to consider whether the actions of the police informant in making the recording constituted an offence under New South Wales law, and if so, the extent to which that contravention should influence the exercise of the discretion to admit the evidence.
The Court's reasoning focused on the interpretation of s 138 of the *Evidence Act 1995* (NSW), which provides a discretion to admit evidence obtained improperly or in contravention of an Australian law. The majority held that the recording was made in contravention of s 7 of the *Listening Devices Act 1984* (NSW), which prohibits the use of listening devices without a warrant. However, the Court found that the impropriety was not so significant as to warrant exclusion of the evidence, particularly given the probative value of the recording in establishing the applicant's guilt. The Court applied the principles established in cases such as *Ridgeway v The Queen* and *Bally v The Queen* regarding the exercise of discretion to exclude improperly obtained evidence.
The High Court dismissed the appeal, upholding the applicant's conviction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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