Dowe v The Queen

[2009] HCATrans 250

[2009] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S126 of 2009

B e t w e e n -

DAVID DARLEY DOWE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 9.59 AM

Copyright in the High Court of Australia

MR B.W. WALKER SC:   May it please the Court, I appear with my learned friend, MS G.A. BASHIR, for the applicant.  (instructed by Legal Aid Commission of NSW)

MS D.M.L. WOODBURNE:   May it please the Court, I appear for the respondent Crown.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, my client has already been to the High Court.  In the reasons for the decision in the case known by reference to his then co‑accused Gedeon, 236 CLR 120, at paragraph 25, a statement was made which, in our submission, remains as true, perhaps with extra force following a conviction, today as it was then, namely:

There is a considerable public interest in the observance of due process by law enforcement authorities by putting beyond doubt important questions of construction of the [so-called] LECO Act.

In the same reasons at page 138, paragraph 41, there was, as the critical holding in that case, a reference to the:

need for approval under both statutory regimes –

that means State and Commonwealth –

if full protection for those involved is to be obtained. 

The “protection” in question, we interpolate, is protection against the application of the criminal law.  To return to the quote:

Further, the absence of a necessary approval under either scheme –

There was, of course, no approval.  Indeed, factually it had been strongly discouraged that there should even be thought that there might be approval by the Commonwealth –

will be sufficient to raise at trial the operation of s 138 of the Evidence Act.

In our submission, understood against that background, the reasoning of the Court of Criminal Appeal in disposing of the ‑ ‑ ‑

GUMMOW J:   What remedy would you seek from us if you are successful?

MR WALKER:   There are two possible, and one plainly more likely than the other.  The more likely is for an order setting aside the orders of the Court of Criminal Appeal and in lieu thereof substituting orders quashing the conviction and ordering, under section 8 of the Criminal Appeal Act, a new trial. That is the primary way in which the argument that we would wish to make about section 138 and its proper interpretation and application would transpire.

GUMMOW J:   A new trial on the assumption that we would have expressed a view about section 138 which would indicate a particular course then to be followed for the new trial with the new evidence, is that right?

MR WALKER:   Yes. The Court of Criminal Appeal has itself indicated, as it were, a view of section 138 where no view had been expressed except that it did not apply at trial. Now, to return to Justice Gummow’s question, there is a second possibility and your Honours see it throughout the presentation of my client’s case below, and that is that if the court, and that would include the High Court were we to be granted special leave, could be persuaded on material properly before the court, I stress that last expression because of the second set of special leave points we seek to raise, if the court could be persuaded on that material that no order for admission of evidence of the illegally undertaken activities should be admitted under section 138, then it would appear that a critical element of proof of an offence against my client would be lacking.

I do not mean would be detracted from, I mean lacking, and if and only if the Court could be persuaded in an argument appropriate to argument in the High Court that that was so, then an order for acquittal rather than a new trial would be in order.  I have made it clear what – bearing in mind the ambit of material properly before the Court of Criminal Appeal and before the High Court on the issue of what ought to be done in light of the error in question, that the more likely one would be for a new trial. 

Your Honours, could I develop the notion of the error. In our submission, it is clear and we think, in essence, conceded by the Crown in this Court, see application book 151, paragraph 3.22. It is clear that for reasons which reflect absolutely no discredit or attract no criticism, the trial judge made an error, a rather important error. Now, he made the error because at that time it had been held in collateral proceedings that the footing of the argument concerning section 138 was quite different, opposite, from what this Court later held in Gedeon.

So the trial proceeded, which resulted in conviction of my client, with evidence of supply in particular having been put before the jury, including through the evidence of the doings of Mr Standen before what might be called his fall from grace.  The trial proceeded with that being put before the jury as lawful activity, as evidence of a lawful activity, an activity that had been through the relevant scrutiny of law enforcement officials properly resulting in rendering lawful what would otherwise be the plainly unlawful and serious activity of supplying kilograms of cocaine. 

Now, if the evidence might be hypothesised as evidence which could possibly be admitted under section 138, the statutory response to the policy of the law shown in Bunning v Cross and its particular sharpened application shown in Ridgeway, if it could be supposed or hypothesised that the evidence might be admitted properly under section 138, the critical and very important difference would be that it would be admitted under the rubric of evidence of unlawful activity. It would be admitted under warnings and statements, directions by the trial judge to the jury which can be compared with the kind of directions which had to be made in relation to the disgraced former policeman, Finch, whose evidence was also admitted, and I do not suggest not properly so, but under admonitions to the jury concerning the care with which it ought to be scrutinised.

The difference between a trial where the material which was admitted is admitted as evidence of lawful activity and a trial where it is admitted, assuming a favourable balancing exercise under section 138 in favour of the submission, is obvious. The jury would have been told that this was unlawful activity being conducted by a person who, were there to be a retrial now or had there been a retrial following the Court of Criminal Appeal decision, would be entertaining evidence from a man who is now of course subject to very serious charges rather than a man occupying a very senior position at the Commission.

HEYDON J:   I am not sure that is really a legitimate point of view to take.  Has Mr Standen been convicted of anything?

MR WALKER:   No.  There is the world of difference, however, when it comes to the prosecution use of evidence depending upon what the prosecution knows about a witness.  Your Honour, it will not be possible for Mr Standen to give evidence of his current occupation, being a senior officer of the Commission, and that absence is a very, very important matter when it comes to what a jury may make of the evidence of activities which the trial judge would be bound to point out were illegally conducted.

HEYDON J:   We are talking about admissibility.

MR WALKER:   We are.  We are talking about not merely admissibility, we are talking about the direction that comes to the jury in relation to the use of material, and the admission would be on the premise that the activity was illegal.  That premise is opposite from the basis upon which the trial which resulted in conviction was conducted.

HEYDON J:   I understand that. I am not sure it is a decisive point though. What points are decisive are the various factors listed in section 138(3).

MR WALKER:   Quite so.

HEYDON J:   You have to take into account gravity contravention.  Contravention was found to be a contravention, contrary to the opinions of a number of Supreme Court judges and on what might be called a fairly nice point, an important point but a formal point.

MR WALKER:   It is no mere technicality that there was a deliberate decision, according to Judge Hulme, as he then was, a deliberate decision not to seek Commonwealth approval. That is no nice or technical point, and nor with great respect to this Court was it nice or technical for the court to observe for the purposes of section 138 that Commonwealth law is of course a law, the contravention of which, attracts the possible application of section 138.

HEYDON J:   The point on which the opinions of some experienced criminal lawyers goes one way and this Court goes another way is not a kind of - well, it does not point unequivocally to a breach of the law so extreme as to rule the evidence inadmissible.

MR WALKER:   With great respect, your Honour, we would, as your Honour would expect any barrister to put, certainly acknowledge that there is an obvious and important difference in moral quality of an action which happens to be illegal undertaken by somebody who genuinely believed apparently serious legal advice that it was legal, compared with somebody who did not care whether it was legal or not and did so otherwise.  We accept that.  That would go, for example, in an ordinary case very strongly one would have thought to sentence.  It may even, in many cases, go to a prosecutorial discretion whether to prosecute at all. 

In this case, we are talking, however, about law enforcement, where the two State and Commonwealth regimes in question contain, as it were, their own code and their own self‑contained balance between the self‑evident, to the legislature, evils of the drug trade and the equally self‑evident public interest in investigating, detecting and prosecuting those who are not as policemen engaging in the drug trade – as policemen, obviously, if they were engaging in it without approval.

Now, those balances, in our submission, are balances which do not lightly permit of the notion of propriety being given to activities which have not satisfied all of the requirements of both regimes.  That, in our submission, is the holding of this Court in Gedeon.  What Justice Heydon has raised with me requires a consideration of all the circumstances of the case as they may particularly apply when one considers things such as the extent to which the policemen or officers in question relied upon legal advice that what they were doing was proper, the grounds upon which they relied upon it and, in this case, for example, surrounding circumstances to which we have drawn attention in writing such as the informal or irregular way in which forfeited goods, the cocaine in question, was in any event dealt with.

Your Honours have seen references as well to the rather hair‑raising amounts of money that were also dealt with irregularly, that is without the proper approaches being taken in relation to being treated as evidence and the like. 

Now, for all of those reasons, in our submission, when one comes to the critical matters that Justice Heydon has, with great respect, properly emphasised as being at the heart of the case, namely the items in section 138(3), what was required and what could not be conducted in the Court of Criminal Appeal and was not, in reality, conducted in the Court of Criminal Appeal was a factually rich exploration of where the balance was to be struck in the evaluative assessment, like a discretion but not strictly a discretion, called for by section 138.

When one looks in particular at the gravity of the impropriety or contravention, paragraph 138(3)(d) one has, in effect, what we submit is a critical misdirection by the Court of Criminal Appeal, about which we have put submissions in writing, where the distinction between paragraph (d) and paragraph (e), in particular, is elided. 

The gravity of the contravention, that is the contravention by engaging in serious drug dealing, that gravity can be gauged from the fact that it is an offence which Parliament has determined can attract at maximum a life sentence.  On the other hand, whether it was deliberate or reckless would raise matters, including but not limited to the matters Justice Heydon has raised, such as why did you engage in what would be, on any view of it, the very serious offence of large quantities of cocaine being put into the community.

It is also to be recalled, of course, that under subsection (3), there is, in the most clear terms, a non‑exhaustive approach to be taken. It commences without limiting the matters that may be taken into account and that is the mandate to take into account in the most detailed and factually rich way appropriate to any particular case the balance which is required to be struck under section 138. In this case, that would include all the irregularities to which we have referred and not merely the drug dealing itself.

Now, the way in which the Court of Criminal Appeal proceeded was precisely in accordance with the way in which the Crown put it in the Court of Criminal Appeal. If I may paraphrase, the reasoning underlying that argument proceeded as follows. The appeal point is that evidence was admitted under the incorrect guidance of the Court of Appeal decision. That meant that section 138 was not applied. That is an error. It affected the admission of evidence which on any view of it was very important, perhaps crucial. Therefore, there was an erroneous or incorrect decision on a question of law and a miscarriage and such was the importance of the material that the proviso could not apply, to which the Crown said but if we could persuade the Court of Criminal Appeal that section 138 properly applied, as it should have been, would have resulted in the admission of the evidence then, and without any intermediate step in the reasoning, then there is no error, that is put by implication; no miscarriage, that was put explicitly; and certainly, if contrary to those two arguments, the question of proviso arose, no substantial miscarriage.

That is the way in which the Court of Criminal Appeal finally concluded the matter. If one looks at the language of paragraph 105 at page 125 of the application book, in our submission, that was a serious error for the reasons I have already put, namely, there is the world of difference between the admission of this material as evidence of lawful activity carried out under the supervision of diligent officers of the Commission, which is what happened at trial, and evidence of it being admitted after the balancing exercise undertaken under section 138 where it would, of course, be admitted after no doubt a different forensic course was adopted in relation to cross‑examination of the officers in question, and on any view the trial judge would be directing the jury that it was not lawful activity when the policeman or Commission agents undertook the exercise.

If one goes back a page in the application book to page 124, paragraph 103, the first sentence, with respect, is the way in which the parties chose to frame the argument. However, the second sentence, starting at line 40, represents the Crown’s approach and is quite contrary to the approach taken by my learned predecessor who said your Honours should find that it was inevitable that had section 138 been applied as it had to be this evidence would be excluded, leaving only the question of either acquittal or new trial to consider.

However, he said, if you could not be persuaded it was inevitable that it would be excluded, then there must be a new trial so that there could be examination on the basis of material properly admitted and appreciated both at voir dire and, depending on its outcome, at the trial concerning the illegal activity and its character. That, in our submission, means that the Court of Criminal Appeal has decided this case without taking into account that which follows from the nature of the issue, namely it required the kind of appreciation which the Court of Criminal Appeal could not give to the full material permitting the critical matters in section 138(3) to have been canvassed. May it please the Court.

GUMMOW J:   We do not need to call on the respondent.

The unusual circumstances in which the New South Wales Court of Criminal Appeal at the invitation of both parties came to determine for itself the operation upon the evidence at trial of section 138(1) of the Evidence Act 1995 (NSW) are explained in the reasons of Justice Tobias. His Honour gave the leading judgment in the Court of Criminal Appeal. The Court of Criminal Appeal decided that at any retrial the discretion under section 138(1) would be exercised in favour of the admission of the evidence in question.

We are not satisfied that on any appeal to this Court it could be shown that the Court of Criminal Appeal erred in that conclusion, nor that it could be shown in this Court that there had been a substantial miscarriage of justice.  Accordingly, special leave to appeal is refused.

AT 10.21 AM THE MATTER WAS CONCLUDED