Beljajev & Ors v Rozenes

[1995] HCATrans 56

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M92 of 1994

B e t w e e n -

BORIS BELJAJEV, SONYA SZAJNTOP, LESLAW FRANCESZEK KUNZ and LARRY WADE LAMBERT

Applicants

and

MICHAEL ROZENES and DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)

Respondents

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 11.55 AM

Copyright in the High Court of Australia

MR P.A. WILLEE, QC:   If the Court pleases, I now appear with my learned friend MR S.R. SOUTHWOOD, your Honours.  (instructed by H.S. Wise Gershov & Co)

MR D.J. ROSS, QC:   If Your Honour pleases, I appear with my learned friend, MR S.R. SOUTHWOOD, for  Mrs Szajntop.  (instructed by H.S. Wise Gershov & Co)

MR P.W MURLEY:   If Your Honours please, I appear for the third-named applicant.  (instructed by H.S. Wise Gershov & Co)

MR H.T. MASON:   If Your Honour pleases, I appear on behalf of Mr Lambert.  (instructed by H.S. Wise Gershov & Co)

MR P. FARIS, QC:   If the Court pleases, I appear with my learned friends, MR R.F. PIRRIE and MR D.J. LANE for the respondents.  (instructed by Solicitor for Director of Public Prosecutions (Commonwealth) and Director of Public Prosecutions (Victoria)

MASON CJ:   I should say at the beginning that I would like to disabuse anyone who holds expectations that we are going to permit each of the applicants to have 20 minutes.

MR WILLEE:   Your Honour, I do not believe that any of the applicants were labouring under that misapprehension.  They will each be quite happy with whatever your Honour given them.

MASON CJ:   I am glad to hear that, Mr Willee.

MR WILLEE:   If Your Honours please, this, like the first case in the list, has the same situation inasmuch as we are well aware of the normal rule that special leave will not be granted in relation to evidentiary rulings, except in special circumstances.  We submit that the special circumstances in this case are as follows:  first of all, that the evidence of the impugned witness Hills will take weeks, so that the normal reason for not interrupting a criminal trial is not applicable.  In any event, no jury has yet been empanelled for the current trial.

Secondly, the applicants contend that the court should not say to the applicants, go away, have your trial and come back if you are convicted, because a trial with Hills will be quite different from one in which Hills might not be called.  If the applicants are convicted they will, if they can, return to this Court, presumably on the same ground as brings them here now, the only difference being that months of costs, time and inconvenience will have been expended.

Most importantly, and lastly, as a matter of special circumstance, we submit that they will almost certainly not be able to sustain an appeal on any ground relating to the admissibility of Hills’ evidence because the Full Court of the Supreme Court has already decided the matter against them and in this State the practice is that one Full Court will not overrule the decisions of another.  It is possible, technically, but I know of no specific instance of it happening and we are firmly of the understanding that that would be the situation.  Those are the special circumstances upon which we rely, your Honours.

We submit that the possible positions in relation to this question of whether or not a trial judge may deal with evidence on the grounds of unreliability in the way in which it was done here are, first of all, that there is a power to exclude on the grounds of unreliability and that it is an independent power with no special footing or foundation other than the power to ensure that an accused is not subject to unfair trial.  Secondly, the power is simply part of the narrow and well-recognised discretions such as those relating to the exclusion of confessions or the balancing between probative and prejudicial.  The third way in which it can arise is in a separate way altogether, simply as part of the common law’s apparent insistence on the reliability of evidence and the process that is undergone merely involves putting the Crown to its proof that the evidence is reliable, as a precondition for its admission.  That last position was not one of the positions contended for in the court below but it is simply a possibility.

In these proceedings, your Honours, from start to finish the applicants have never contended for the power otherwise than on the basis that it is part of the residual discretion founded on fairness, that is not unfairness to the accused per se but unfairness that will result because he is denied an adequate means of testing and challenging such evidence and because the evidence is so unreliable that it will not be adequately dealt with by a warning.

One of the formulations of the power in Dietrich was by Justice Gaudron and it seems to have proceeded on the second basis, but where it is expressed at page 363 of the judgment it is submitted that it encompasses both the circumstances of an inability on the part of the jury to test both weight and credibility and the possibility that a jury may misuse evidence where its prejudicial value outweighs its probative value. 

It is submitted that Judge Kelly was correct in his reliance on the passage at page 42 of the application book and in interpreting the passages, including the combined effect of a number of circumstances as satisfying the requirement of exceptionally.  Such circumstances would, as Judge Kelly found, include the expected duration of the trial, the extreme unreliability of Hills, the incomprehensibility to and inaccessibility of the evidence by a jury, and their likely misuse of that evidence, as he spelt it out between pages 43 and 44.  The underlying basis for each of these elements of unreliability are clearly identified by Judge Kelly in the judgment.

What we submit the Full Court did was to confine the type of unreliability which might be relied upon entirely to potential unreliability, based on a future assessment of what might, on the face of it, because of surrounding circumstances, be unreliable, and they did that at the application book pages 93 to 94.  I must apologise to the Court because it looks highly suspicious that that is one of the missing pages that was not sent up.  That proposition commences at the foot of page 92A.  We submit that they went on to say that because the only examples which they cited from the cases which were cited dealt with that type of unreliability there was no room to admit of a combination of actual and potential unreliability and then to apply the principles of Doney’s Case against us.

The crux of what they did is at page 114.  It consists of a curious acceptance and a rejection of the power.  They do not say that Mr Justice Vincent was wrong.  They rely upon him in the event that they are wrong.  All Judge Kelly did was to apply Mr Justice Vincent’s ruling, as he was required to do.  They then accepted the minority judgment of His Honour Mr Justice Carter in McLean and Funk, denying the existence of the power to exclude evidence based wholly or primarily on the trial judge’s ruling that it is unreliable, but go on to say that if the view is too extreme the circumstances lack the exceptionality for the exercise of such a power, substituting, we submit, their own assessment of the circumstances for those of the learned trial judge.  This, we say, is not permissible.

In any event, the analysis in the way in which it was done proceeded not from an examination of the issues via the evidence but from an analysis of the ruling and what was said by the Crown to be the evidence.  They could not, and did not, get across the mass of material and even if they could have done, it would have been no substitute for the ‑ ‑ ‑

GAUDRON J:   But is not the difficulty this:  the whole proposition is predicated on an assumption that the jury cannot get across what you call a mass of material.

MR WILLEE:   Your Honour, that may well be the case.  Not that they cannot get across the mass of the material but, in fact, that the defence are unable, because of the particular characteristics of the witness concerned, to give the jury a proper understanding ‑ ‑ ‑

GAUDRON J:   That seems to me an extraordinary proposition, that it is beyond the wit of counsel to expose the matters that counsel says render this evidence unreliable.

MR WILLEE:   Your Honour, it is not the only matter, but it is a very significant matter.  Your Honour’s comment surprise me at all.  All counsel, when we viewed this matter, found it an extraordinary proposition and it may well be that it is a most exceptional and peculiar case.  But the foundation of it is the multilingual nature of the individual concerned and the use of all those languages in the course of the tapes that are the subject of the evidence.  Secondly, that the morass of the material is very clearly directed to strong aspects of criminal conduct and an attempt to hide it which goes on for days and days, weeks and weeks, which not only cannot be properly put in context in the mind of the jury but cannot even properly be analysed as to what it relates to.

Your Honour, from page 116 it is clear that that was the way in which the Full Court proceeded to analyse what was their own view and then to see if the trial processes would deal with the matter, then to decide that in fact they would.  So they say, line 26:

His Honour erred in several ways in considering the adequacy of the usual trial processes to expose to the jury the prima facie unreliability of the evidence of Hills as an accomplice.  In the first place, the judge seems to us to have wrongly regarded the case as an altogether exceptional one.  In the second place, his Honour erred with regard to the jury’s capacity.  In the third place, the judge had regard, not only to the ability or inability of the trial judge and the defence to expose to the jury the considerations by reason of which the evidence of Hills was prima facie unreliable because of his position as an accomplice, but also to the ability or inability of the defence to demonstrate to the jury other facts by reason of which, as the defence contended, the evidence of Hills should be viewed, not as prima facie unreliable, but as actually inaccurate and false.  In addition, his Honour had regard to other suggested difficulties which the defence would face in the trial.

Your Honours, in the course of the process the Court persistently, and in our submission wrongly, found error in the trial judge by continually attributing to him a false basis for the findings that he made on, as they say, credibility and they do that ‑ ‑ ‑

GAUDRON J:   But a lot of it must turn on credibility, must it not?

MR WILLEE:   Your Honour, it may well do and we would wish to contend for the position that, in fact, reliability and credibility, in most circumstances, are inextricably interwoven.  That is not the approach that his Honour the learned trial judge took and there was absolutely no warrant for accusing him of doing it, as the Full Court did.

MASON CJ:   Can I just ask you an irrelevant question.  How long did this case take in the Court of Criminal Appeal?

MR WILLEE:   It took one day, your Honour, and it was not a full day.  It was determined that the matter should proceed by way of written submissions because the material was so voluminous and written submissions ‑ ‑ ‑

MASON CJ:   How voluminous was the material?

MR WILLEE:   One hundred and four volumes, your Honour, of written material.

MASON CJ:   How long would it take the members of this Court to get through the written material, even assuming that the members of the Court managed to digest material of this kind more quickly than counsel do?

MR WILLEE:   Your Honour, I cannot say how long that would be.

MASON CJ:   We would have to put months aside to deal with it.

MR WILLEE:   No, your Honour, because in our submission your Honours would not have to go through that exercise.  The whole point is, your Honour, that what was done here was done by somebody who lived, slept, ate and breathed that material during the whole course of ‑ ‑ ‑

GAUDRON J:   Yes, but that may be part of the problem with his decision.

MR WILLEE:   Perhaps it is, your Honour, but to get to the salient points of it would not take this Court to 107 volumes, in our respectful submission.  I cannot say how many volumes would be necessary.

MASON CJ:   It does not sound like a very appetising case for the grant of special leave to appeal.

MR WILLEE:   Your Honour, it is an extremely appetising case because it is such a fascinating point and a fascinating application of it, and as her Honour Justice Gaudron has remarked, it is beyond the comprehension and coming to grips with that proposition makes it extremely attractive.  It is a short point and it can be shown shortly, but it is a matter of great interest ‑ ‑ ‑

GAUDRON J:   I do not think you should read that into what I put to you earlier ‑ ‑ ‑

MR WILLEE:   I did not , your Honour.

GAUDRON J:   Because I think it is a case which, from what appears presently in the materials that I have anyway, to be one where the facts have got to be elucidated and that is essentially a jury task - the facts have got to be determined.  That is essentially a jury task and it seems to me peculiar in the extreme that it would have been thought that it could have been determined other than by leaving the matter to the jury, aided by the submissions of counsel in the summing up.

MR WILLEE:   Your Honour, the case at that point primarily involved the scope and extent of that discretional power.

GAUDRON J:   The Full Court accepts that there is a power, a residual discretion, where that is necessary because there cannot be a fair trial.

MR WILLEE:   Yes, your Honour, and there will be cases, as there increasingly have been, where there is a voluminous amount of material where it is more appropriate than ever that that power should be exercised because it is so much quicker to do it without a jury being present than it is to run the trial, and then make a determination that it should not go to the jury, without deciding how it is that the high degree of prejudice that has then been engendered in the mind of the jury can be removed, otherwise than discharging them.  The costs and expense of these sort of proceedings with this sort of extraordinary individuals - this one in particular - warrants the approach, as indeed was taken by his Honour Mr Justice Beach in Routon, that it is not necessary for there to be a full scale hearing.  There may be a decision on the materials, on the depositions.  We had transcript, we had tape recordings, all that material was available.

Your Honours, we submit that there was , apart from this, an acceptance in relation to the application of Doney of the Crown’s argument, which was specious by its circularity.  In those circumstances there could never be an application of the discretion and we say that cannot be what was intended by the judgment in Doney’s Case in the appropriate situation and we submit that regardless of the volume, this case touches upon such important principles that it is a matter which should be decided by this Court.

GAUDRON J:   Does your case extend beyond this:  the witness concerned has got a motive to lie.  He has had an opportunity to tailor his evidence in a way that might make other evidence look as though it is corroborative when in fact it is not.

MR WILLEE:   Oh yes, your Honour, it extends far beyond that.

GAUDRON J:   And he is clever enough to do it.

MR WILLEE:   He is clever enough to do it, but worse than that, he is a witness that is so clever with his use of language that it is almost impossible to pin him down to an answer in a way which shows that he is not being evasive or that he is being evasive.

GAUDRON J:   I thought counsel could do that sort of thing quite well too.

MR WILLEE:   Thank you, your Honour.  Your Honours, we submit that apart from that, what occurred here, in the way in which the Full Court took the matter on, were procedural errors and there was a serious interference with the proper operation of discretions and what they should be used for.  True it is we did not argue that at length before the Full Court.  We cited Sankey’s Case to them on the basis that this matter did not go to an issue of a true right inter partes and that it was not appropriate and expected them to take that into account.  And it was not what happened.  The issue of whether or not a superior court can review an inferior court that is invested with, and exercises co-ordinate jurisdiction with the superior court, as we submit is the situation here by virtue of section 36(a) of the County Court Act, was just not considered by the court at all.

Those are the matters that we urge in support of this application.

MASON CJ:   Thank you, Mr Willee.

MR ROSS:  If your Honour pleases, can I have a minute and a half?

MASON CJ:   Yes.  You can have two minutes, Mr Ross.

MR ROSE:   There is a matter that came from your Honour Justice Gaudron about the scope and extent of the discretionary power and one of the things that your Honour pointed out was that there was a time that the Full Court said that there is such a discretionary power.  We say that if it cannot be exercised, if such a discretionary power to exclude otherwise admissible evidence cannot be exercised, then it cannot be said that such a power exists.  You see, what the trial judge did in this situation is he acknowledged the discretionary power and he said that in his experience this was such an exceptional circumstance.  Sad to say, what the Full Court then did was they went behind that and they said, “There is no discretionary power.  Perhaps there is a discretionary power but this is not a case that calls for it.”  The trial judge had said this is a case that calls for it and what the Full Court did was to replace their view of the evidence on the 117 volumes and the argument lasting less than a day over his Honour the trial judge having been involved in the case since 1991.  We say it is really a simply matter, that the Full Court has gone wrong by replacing their view of what they think of it -and I am sorry to say this, Justice Gaudron’s view too - that it is simply a simple case of being able to point out the difficulties of cross‑examining the witness or where he has gone wrong or confabulated with the police.  They have substituted that for what the his Honour the trial judge did and they should not have done so.

If it please the Court.

MASON CJ:   Thank you, Mr Ross.  Mr Murley?

MR MURLEY:   I have not anything to add to the matter.

MASON CJ:   Thank you.  Mr Mason?

MR MASON:   I am in the same position.

MASON CJ:   The Court need not trouble you, Mr Faris.

The Court is not persuaded that the proposed appeal enjoys sufficient prospects of success to warrant the grant of special leave.  The application is therefore refused.

MR WILLEE:   May it please the Court.

AT 12.22 PM THE MATTER WAS CONCLUDED