Caratti v Reg

[1998] HCATrans 448

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P39 of 1998

B e t w e e n -

JOHN MICHAEL CARATTI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1998, AT 9.43 AM

Copyright in the High Court of Australia

MR J.A. DAVIES:   I appear for the applicant.  (instructed by Davies & Co)

MR B.R. MARTIN, QC:   May it please the Court, I appear with my learned friend, MS L.F. WARD, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

MR DAVIES:   If it please your Honours, sometimes in the West we miss the finer points of justice and that is what we say has happened in this case.  The special importance ‑ ‑ ‑

KIRBY J:   Is it true that you do not have a right of appeal even by leave to the Court of Criminal Appeal of Western Australia?

MR DAVIES:   That is the case.

KIRBY J:   So if your proposition is accepted by this Court, with every interlocutory resolution or decision by the Supreme Court or any court in Western Australia, the person discontented, if it has a federal element and if appeal lies, will leapfrog to this Court.

MR DAVIES:   That is not necessarily the case.   The person who seeks ‑ ‑ ‑

KIRBY J:   It is likely to come if we grant special leave, is it not?

MR DAVIES:   It is if you grant special leave, but you must be satisfied, of course, your Honour, that the grounds exist for the exercise of that very special discretion.  And that is the grounds upon which we come before you today.

HAYNE J:   Why should we interfere at an interlocutory stage in a criminal trial?

MR DAVIES:   We say you should interfere because the trial has already gone off the rails and that it will not be easy to look behind the verdict of a jury on the matters that we seek to place before you.

HAYNE J:   But if evidence is wrongly admitted, as you say is going to happen, why will that point not remain open to you, on appeal, if the verdict is adverse to the accused.

MR DAVIES:   Because at that stage we have to discharge the proviso; that is to say we have to satisfy the appeal court that no injustice has happened.

KIRBY J:   Presumably you say that this is a very serious injustice and therefore the proviso problem will not present.  Otherwise you would not be here today arguing this case that exceptionally we should intervene at this stage.  It must be, in your judgment or your client’s judgment, a very serious mistake.

MR DAVIES:   It is.

KIRBY J:   Well, it will still be available to you at the end of the trial.  See, this is in part the way that courts say we do not disturb criminal trials at the interlocutory stage, but it is also in part the way appellate courts protect themselves because many problems go away.  Your client might well be acquitted or may be acquitted in which event we are not troubled.  That is the rationale behind these principles of restraint.

HAYNE J:   And, I would add, failure to interfere often in the end is of assistance to the accused in that the trial comes to an end.  But there we are.

MR DAVIES:   We say that we have the hallmarks of a Grimwade debacle commencing in this case already and we say that there has been no proper control by the trial judge on the flow of the evidence.  We say that there has been no restriction on the documents going in and we say that the constitutional right of the applicant for a fair trial is offended and that, of itself, outweighs any fragmentation argument that may be put forward.  We say the circumstances are special and exceptional.

KIRBY J:   Your client has gone to a lot of expense to put this application so we should hear what you say is special about it.  But you know as well as we do the authority of the Court, including recent authority, which says it has to be truly exceptional for the Court to fragment a criminal trial.

MR DAVIES:   What is exceptional about it, your Honour, is that we have a long trial, probably one of the longer that we see in Western Australia, although there have been longer.  There is enormous public expense concerned in the prosecution of it.  There are 25,000 pages or thereabouts of documents that have to be sifted through and there is an enormous burden on the accused, without any clear indication as to what use a large volume of the documentation is to be put.  For those reasons, the cost in the public interest, we say, the circumstances are special and exceptional and warranting the supervisory jurisdiction of this Court.

HAYNE J:   The 25,000 documents of which you speak are not yet in evidence, are they?  They are the pool from which the evidence may be drawn.  Do I understand it, or have I misunderstood the position.

MR DAVIES:   My understanding of it is that the evidence which is in the brief is the evidence that will be led in terms of the documents.  I am sure my learned friend will correct me.  Those documents have to go in through 77 witnesses.

HAYNE J:   The notion of a jury sifting through 25,000 documents does not look too promising.

MR DAVIES:   Twenty-five thousand pages of documents.

HAYNE J:   Yes, I know.

MR DAVIES:   And without any clear guidance from the trial judge, without any regimentation, we say that without appropriate organisation, in fact it is a conservative line to take to require that his Honour make appropriate directions.  So we say that we have a Grimwade debacle in the making that requires the intervention of this Court and that is the special and exceptional circumstance that warrants this application.

We say that the trial judge has not exercised sufficient control over the proceedings to ensure that the trial will not become unfair.  We say that if there is no adequate control, ipso facto procedural unfairness follows.  We say further that the rules between the States that govern the management of long and document intensive trials vary from State to State.  At page 30 of his reasons his Honour the trial judge says:

As our rules are presently framed and as the statues allow, I am unable to give directions about how a Crown case should be confined, the extent to which facts ought to be agreed or the extent to which a summary by way of a Schedule should be received in evidence ‑ ‑ ‑

HAYNE J:   But assume we gave you leave, would we, in the context of that vehicle, be able to correct any of these matters that you say are looming as possible fears.  Would we not be confined to the bare question of admissibility or no?

MR DAVIES:   No, I do not think you would, with respect.  I do not think you would be confined in that way.  It would give the Court the opportunity to explore and clearly state principles which would govern trials of this nature which are becoming increasingly more prevalent.

HAYNE J:   We have enough problems in these cases without searching for them, you know, Mr Davies.

MR DAVIES:   I beg your pardon.

HAYNE J:   There are enough problems without us searching out problems to answer that are not raised by the particular appeal that is before us.

KIRBY J:   Can I add, we would then be rummaging around 35,000 pages when we could, if we wanted to at a later stage, come to this issue after a trial, when the issues have been refined and the relevance of the pages and the debacle, as you have suggested, has been made clear by the way in which the trial has unfolded.

MR DAVIES:   But we say that already the constitutional right not to be tried unfairly is imperilled and we say that that is of primacy, that is of importance, and it is that which justifies the imposition of this Court’s supervisory jurisdiction.  The prosecution in this case has still not apparently closed its brief, it continues to vary, and this application which was brought pursuant to section 611A of the Western Australia Code provided his Honour with an exhaustive and detailed memorandum of challenged evidence and five carefully drafted issues of evidence for determination – they are contained in a schedule in synopsis 4 in the materials that I have filed.

His Honour was presented with the matters which needed to be sorted out so that the applicant could know the case that it had to meet.  But we say the trial judge in this case has failed to grasp the nettle and we have a large brief which leaves us guessing as to the Crown case.

KIRBY J:   But would not the judge at trial protect you during the trial from such injustices, if you could demonstrate that it was unfair to require you to answer such a vast mass of material without proper particularisation?

MR DAVIES:   The matter has been before him, we say.

KIRBY J:   But at the trial.  I mean, when the matter is unfolding.  You are not prevented from indicating to the judge as the case unfolds that the way in which the prosecution case is being presented imposes intolerable – or injustices on your client.  The judge would then, presumably, endeavour to ensure that the prosecution presented the case in a way that you can fairly answer.

MR DAVIES:   We say this has not happened.

KIRBY J:   It has not happened at this stage, but this is the problem, you see.  You are asking us to intervene before we know what is going to happen at the trial.

MR DAVIES:   If this were to occur in Victoria, as a result of what I understand to be the post-Grimwade amendments to the Crimes Act, I understand it that the accused parties would be entitled to apply for a pre‑trial statement to further define the issues.  It is our submission that it is unfair that in Western Australia we do not have the benefit of that procedure, whereas in Victoria ‑ ‑ ‑

KIRBY J:   That is a statutory provision in Victoria?

MR DAVIES:   That is right.  We do, where in fact we are being tried theoretically in the same federal jurisdiction.

His Honour’s remarks at page 30, I submit to you, are disturbing, particularly in light of what Justice Gaudron had to say in Dietrich about the trial judge having everything that he needed to have to control the proceedings at trial.  Here we have, in Western Australia, judges being uncertain of their powers to control the trial and that, in my submission, is a point that requires the intervention of the supervisory jurisdiction of this Court.

We say that conspiracy trials are particularly vulnerable to inadequate control because the scope of relevancy of the evidence can be so much broader than in cases of a substantive charge.  In the final analysis, the trial has already become unfair.  That is the first point upon which we say there is such special importance that your Honours should grant leave.

The second point is the confluence of statutory and evidentiary rules of evidence which, we say, unless carefully governed in a case such as this by the exercise of a proper discretion can operate unfairly to the accused. Here we say there is a coincidence of statutory authority, being the provisions of section 1305 of the Corporations Law and the common law, a la the co-conspirator’s rule which puts the accused effectively behind the eight ball before the jury has ever been empanelled and effectively, we say, allows for the reversal of the onus of proof.

The rule of evidence known as the co-conspirator’s rule in Tripodi ought not, we say, to apply to the actions and utterances of agents when the effect is to make admissible documents which would otherwise, or should otherwise, be excluded.  The acts and declarations of co-offenders made in the course of the conspiracy are admissible against co-conspirators by reason of the Tripodi exception to the hearsay rule.  The point is this:  the document that is put in by these means may speak for itself but it cannot be cross-examined.  However, we say this should not operate to the detriment of co-offenders if the cross-examination of the author is available as a balance.  What has happened in this case, as a point of evidence - and again that is what we say is of overriding importance – what has happened in this case is the document has gone in without the author being called. 

HAYNE J:   And if the author were to be called and tendered for cross‑examination the trial which you say is already unmanageable would be even less manageable, would it not?

MR DAVIES:   With respect, your Honour, I would disagree with that proposition.  I would say that the trial which has already, by reason of this ruling, become unfair can have that unfairness mitigated by the calling of the accountant Ellison who, apparently, according to his evidence at the preliminary hearing, will explain the use of particular expressions in the farm operational books which are the subject of this particular point.

HAYNE J:   Is it plain that the Crown will not tender Ellison as a witness?

MR DAVIES:   The Crown has made that clear.  And we say as a result of that, the jury will have before it the documents and will have to speculate as to the meaning of the expression “wages” which is directly relevant to the matter at the heart of this trial.  Ellison explained that and he explained his use of that provision in the preliminary hearing.  However, the Crown does not agree with Ellison’s view and wants the jury to speculate.  His Honour, when confronted with the point, said that can be easily remedied by the defence calling Ellison as a witness in their own case.  We say that that reverses the onus of proof by compelling the defence to call evidence to explain, perhaps weeks after the documents have originally gone it, perhaps weeks later it requires the defence to try and explain away these provisions, long after the  ‑ ‑ ‑

HAYNE J:   But the obligations of the Crown to provide a witness of this kind and to put him in and, if needs be, just tender him for cross‑examination are well known and well established in this Court, are they not?

MR DAVIES:   They are.

HAYNE J:   There is either a breach or not a breach of those rules.  If there is a breach then assumedly there may be some appeal point that would be available to you at the end of an unsuccessful trial.  But until we know finally that the Crown will or will not call this person, we cannot say whether there is a breach of Apostolides and other such principles, can we?

MR DAVIES:   We say that the trial judge has already permitted – he has already made a ruling that these documents are admissible before any evidence has been called.

HAYNE J:   I understand that.

MR DAVIES:   We say that the gravity of this error is one which goes to the sacred right not to be tried unfairly.  That is why we come here, because we seek, perhaps with some degree of sentiment that is not necessarily central to the Australian soul, we seek to say that these rights are sacred and need to be enshrined and this is the case to do just that task.

We say essentially the confluence of these two evidence enabling principles amounts to a reversal of the onus of proof which already imperils the fairness of this trial and warrants the special exercise of the Court’s jurisdiction.  That is the second special leave point.

The third point that I need to address is the point of fragmentation which has been adverted to in our discussion and has also been raised specifically by my learned friend’s submissions.  We say that the facts in this appeal are not disputed in any real sense, it is a pure question of law; that the length of the trial, the volume of documents and the vast expense fall into and satisfy the criterion of exceptional circumstances such as the Court adverted to in Flannagan and Grollo.  We say that this is a situation not as in Elliott and Woods where the Crown is bringing an appeal on an interlocutory basis ‑ ‑ ‑

KIRBY J:   But the principle is neutral.

MR DAVIES:   The principle is indeed neutral, but we say that the matter of an accused’s right not to be tried unfairly tips this particular instance in his favour.  So the principle of fragmentation is not, we would suggest, a completely closed door.  The language of the cases makes that plain.  We say the primacy should be given to the constitutional right not to be tried unfairly and it is timely and appropriate and special that the Court exercise its jurisdiction and intervene in this case because it has demonstrably gone off the rails and it is unfair to submit the accused people to a punishment which the trial process itself would amount to, as was adverted to by the Court in Grimwade.  The process itself becomes a punishment and it is too late, we say, to wait until after a verdict because we cannot look behind the deliberation of a jury and we face the risk of having to satisfy a court that there is an injustice, not only an error.

I do not believe I can advance the case further.  Thank you.

KIRBY J:   Mr Martin, is the constitutional point that this would not be an order or verdict within the Constitution from which an appeal would lie? I am just trying to understand what – you hint at the fact that an appeal may not lie under the Constitution in a case of this kind. What was the hint? It is not very enigmatic? It is not your usual blunt advocacy.

MR MARTIN:   There may be a question about whether an appeal lies.  Mellifont’s Case could be used – extended to that point, but then there is a case of Mullane going back some years which would suggest there is no right of appeal.

KIRBY J:   What, from an interlocutory ruling as distinct from ‑ ‑ ‑

MR MARTIN:   From an interlocutory ruling. That would be an interpretation of section 73 of the Constitution.

KIRBY J:   You would be arguing that if special leave were granted?  We do not have to decide that, in the event that we are not minded to grant special leave.

MR MARTIN:   That is correct, your Honour.  This was the approach taken by ‑ ‑ ‑

KIRBY J:   You do not take any objection to the application?

MR MARTIN:   Not on that basis, your Honour, because that would ‑ ‑ ‑

KIRBY J:   That might engage a very large case.

MR MARTIN:   Precisely.  This was the approach that was taken in the reference from Justice Vincent’s ruling in Elliott, and there was an assumption that the right of appeal existed on that assumption, then it was a case of not interfering in the interlocutory stages of the trial.

KIRBY J:   Yes.

MR MARTIN:   So we are happy to proceed on that basis for the moment.

KIRBY J:   Yes, very well.  Just excuse me for a moment.

KIRBY J:   Thank you.  The Court does not need any further assistance.

Assuming that a right of direct appeal to this Court exists in a case such as the present, the Court is not persuaded that it should intervene at this interlocutory stage in these proceedings which are criminal in nature.  The Court has said many times, including recently, that fragmentation of criminal trials by interlocutory appeals is to be discouraged, see for example, R v Elliott (1996) 185 CLR 250. Special leave is therefore refused. Necessarily this decision involves no ruling on the substantive points argued for the applicant.

The Court will now adjourn in order to be reconstituted for the following applications.

AT 10.05 AM THE MATTER WAS CONCLUDED