Bennett v The State of Western Australia

[2012] HCATrans 289

[2012] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P9 of 2012

B e t w e e n -

MARTIN PAUL BENNETT

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 NOVEMBER 2012, AT 12.32 PM

Copyright in the High Court of Australia

MR H.C. QUAIL:   May it please, your Honours, I appear for the applicant.  (instructed by Francis, Burt, Chambers)

MR B. FIANNACA, SC:   May it please the Court, I appear with my learned friend, MR L.M. FOX, for the respondent.  (instructed by Director of Public Prosecutions, (WA))

HAYNE J:   Yes, Mr Quail.

MR QUAIL: Your Honour, there are two special leave questions raised in this matter, in my respectful submission. The first is whether section 31A of the Evidence Act (WA) admits prior trial convictions to prove propensity conduct. That is a question peculiar to Western Australia. The second special leave question, though in my respectful submission, has wider application across the country and that is whether at common law a prior trial conviction is admissible at a subsequent criminal trial as evidence of the material facts underpinning the elements of the prior offence.

The questions are dealt with essentially together in my outline of submissions, but if I could take your Honours to pages 213 and 214 of the application book.  Essentially, the applicant’s position is that the Court of Appeal, the court below, was in error in distinguishing the decision in R v Shepherd.  The crux of the applicant’s position is this and I rely on the quote from Shepherd at page 214 of the application book:

Knowledge of the previous conviction would inevitably convey to the jury the fact that another court had arrived at the conclusion that on similar facts the inference was that the appellants intended to oust the tenant; the knowledge of the conviction would also carry the information that in relation to a dispute concerning earlier similar matters, the word of the appellants had been rejected and that the word of the tenant had been preferred at least to a substantial degree. 

Your Honours, this was such a case.  In this case, Mr Bennett had been convicted on numerous previous occasions of possession of drugs with intent to sell or supply.  Notwithstanding that at trial before the jury, evidence as to the conduct of the previous 1993 offences was adduced before the jury in the ordinary course.  In addition to that, evidence of Mr Bennett’s convictions following jury trials in 1995 was also adduced before the jury. 

As we have said from the start of the proceedings, the admission of the fact of those convictions did considerable harm to Mr Bennett’s credibility because the jury had before them the information in the words of Shepherd that his credibility in relation to explanations on oath in relation to drugs had been rejected by two previous juries and so, in the words of Shepherd, that information in relation to exactly the same type of dispute concerning similar matters left the trial jury in the position of knowing that Mr Bennett’s credibility was almost irreparably damaged even before he came to give evidence.

HAYNE J:   Was it at trial disputed that evidence could be given of the 1993 conduct?

MR QUAIL:   No, it was not.  Indeed, in the court below the Court of Appeal said that I as counsel below had repeatedly refused to take on a ground objecting to that 1993 evidence not being admissible and that is because it was our view and has always been our view that the 1993 evidence was admissible.  That was the proper way to prove the facts in relation to those offences.

HAYNE J:   Are we not driven to the point that the complaint that now is made is not a complaint that the jury received the information that the applicant had previously trafficked drugs?  We are concerned about the form in which that information is placed before the jury, namely that he has been convicted of that offence.

MR QUAIL:   That is precisely right.  I would agree with that proposition, with respect, your Honour.  I should say in terms of the 1993 matters and, of course, there was an objection at that point as to whether it was propensity, but that is not an issue now before this Court.  The real issue is the question of form and that is the second question – the second special leave question that I identified – because that question of form is one which does have general application I would suggest across the country.

The first question in relation to section 31A, I think, it is clear and I do not wish to repeat my submissions in this regard that there is nothing expressed in the provisions of section 31A which authorises the admission of the convictions. Unlike in New Zealand or the United Kingdom and, indeed, I think, section 26C of the Evidence Act in the Northern Territory where there is an expressed statutory basis for the admission of convictions to prove conduct, there is no such provision in the West Australian Act.  And, indeed, in the uniform Evidence Acts, section 91, I would suggest, operates to give statutory effect to the rule in Shepherd. 

What the Court of Appeal has essentially done, in my respectful submission, is to expand the common law based upon principles of res judicata to allow, as a general proposition, the proof in subsequent criminal trials of facts by proof of prior conviction.  That is a substantial ‑ ‑ ‑

HAYNE J:   Mr Quail, it will be recalled that Pfennig concerned the admission of evidence of the accused’s commission of another offence involving abduction of a boy, is that so?

MR QUAIL:   Yes.

HAYNE J:   Evidence was given at Pfennig’s trial of the fact that he, the accused, had pleaded guilty to the offence of – I think it was an abduction offence; the exact offence is not to the point.

MR QUAIL:   Yes.

HAYNE J:   It would follow, would it not applying Pfennig that had the applicant pleaded guilty to the 1993 offences his conviction on plea of guilty would have been admissible under 31A?

MR QUAIL:   Yes, absolutely and, indeed, there were other convictions where the applicant had pleaded guilty and those convictions were admitted without any objection.  There were a number in that category and this is discussed in the decision below and Chief Justice Martin said that was a proper concession to make because the plea was essentially an admission against interest.  What the court also said in Pfennig, your Honour, at page 482, was that where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged.  It goes no further than that in Pfennig, but it has always been the case in similar fact or propensity matters, that it is necessary to prove the facts to prove the actual acts which are relied upon by the State allowing ‑ ‑ ‑

BELL J:   Here the facts were proved, as I understand it.  Your objection is to the proof of the fact that the conviction followed at trial at which that issue had been in question and that, you say, reflected on the applicant’s credibility.

MR QUAIL:   In exactly the same way as occurred in Shepherd, your Honour; that is right.  The conviction, we would say, was completely irrelevant.  It was unnecessary to prove that in light of the facts being proved in the ordinary course and that conviction carried with it the additional information which damaged irreparably Mr Bennett’s credibility.

BELL J:   Because the jury were told that the conviction followed a trial at which that issue had been put in question?

MR QUAIL:   Not only that, but a trial at which he gave evidence, and that was very clearly part of my grounds in the court below, where it was an expressed particular within the grounds.  That is at page 174 of the appeal book at 2.2 where the particular of the ground in the court below was:

Evidence of those convictions where the conduct was not admitted unfairly undermined the appellant’s character and credibility as the jury were told he had previously denied intending to supply the drugs the subject of the offences on 31 March 1993 and 30 July 1993, but was convicted after trial.

So that was very clearly before the jury at the trial and it was part of the ground that was before the Court of Appeal.  What the Court of Appeal has done – and it is quite clear from the Chief Justice’s decision and also the principles at the end of Justice Buss’ decision – is they have taken the opportunity to expand the common law as a basis for admitting convictions in the place of proving conduct in the ordinary way.  In that very real sense that expansion of the common law, based upon principles of essentially res judicata, has application potentially across the country; certainly in Western Australia and certainly in those States which have adopted the uniform Evidence Act.  Section 91 of the uniform Evidence Act expressly preserves the rule in Shepherd which I have taken your Honours to a moment ago.  Section 91 provides:

Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

The clear effect of those words is to preserve the Shepherd position that it is not sufficient to prove a conviction.  Section 90 ‑ ‑ ‑

BELL J:   That may be controversial – that is, the scope and effect of section 91 of the uniform Act, particularly when you have regard – I do not have the Act in front of me, but section 93, I think, has something to say about res judicata.

MR QUAIL:   Indeed, and that is exactly the point that I was getting to, because section 92 creates an exception which overcomes the decision in Hollington v Hewthorn and really reinforces the common law position in Western Australia coming from Mickelberg.  But section 93 creates the exception in relation to the law relating to res judicata or issue estoppel.  That is exactly why, in my respectful submission, this decision of the Court of Appeal has the potential to impact upon those States where the uniform Evidence Act applies, because insofar as the decision of the Court of Appeal is seen to be based upon an extension of common law res judicata to criminal matters, in the way I have outlined in my submissions, then it would fall within the common law of Australia for the purposes of the section 93 exception in the uniform Evidence Act States.

This is a new way of assisting the State in proving conduct the subject of prior convictions. Where it has been done in other jurisdictions it has been done by express statutory authority. In the United Kingdom and New Zealand - the details are in my submissions - section 26C of the Evidence Act (NT). The Court of Appeal in Western Australia has taken it upon itself in the absence of any statutory provision in Western Australia to do it by reference to the common law.

In Justice Buss’ decision there is reference to the commentary in Cross, his Honour Justice Heydon’s commentary where he makes the point that there is very little authority on this point.  He seems to lean towards the interpretation adopted by the Court of Appeal in Western Australia, but he makes the point that there is very little authority and there is no discussion of section 91 at that point.

The Supreme Court in Canada, as I have said in my submissions, has taken a completely different approach to this exact same issue in terms of the development of the common law of Canada.  They would not agree with the Court of Appeal’s analysis of admissibility and the consequences of admissibility.  This appeal itself does not raise questions of incontrovertibility but they necessarily follow in a later matter if the crucial threshold question of admissibility is confirmed against the applicant in this matter.  Those are my submissions, your Honours.

HAYNE J:   Yes, Mr Quail.

HAYNE J:   We shall not trouble you Mr Fiannaca. It is not disputed that evidence of the applicant’s previous criminal conduct was admissible at his trial under section 31A of the Evidence Act 1906 (WA). The question which it is sought to agitate in this Court is one of the form in which that proof may be offered. In particular, may evidence of that misconduct be adduced by proving the applicant’s conviction for the offences after trial? In our opinion, the applicant would enjoy insufficient prospects of success in disturbing the orders made by the Court of Appeal to warrant a grant of special leave. Special leave, accordingly, is refused.

AT 12.49 PM THE MATTER WAS CONCLUDED