Dudko v The Queen

[2004] HCATrans 78

[2004] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S138 of 2003

B e t w e e n -

LUCY DUDKO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 MARCH 2004, AT 2.01 PM

Copyright in the High Court of Australia

MR G.E. SMITH:   If the Court pleases, I appear for the respondent.  (instructed by the Director of Public Prosecutions (New South Wales))

GUMMOW J:   Thank you, Mr Smith.  We have studied the written submissions for the applicant.

KIRBY J:   Mr Smith, is Ms Dudko going to be here today or not?

MR SMITH:   I understand not, your Honour.  She is in custody.

KIRBY J:   Yes, I know she is in custody.  I ask this only for my own sake.  We do live in an age of telecommunications.  Why is it so impossible to have a link to the prison so that people can have the same right as any other citizen?  So long as we still allow people to address the Court, I do not see why a prisoner who is a citizen should not be heard in the same way as anyone else.  It happens in other States.  They are brought to Court, they address the Court, and, occasionally, as in Cameron – I think we have been through this before, you and I – it is helpful to the Court.

MR SMITH:   I was in the matter recently of Milat, where he actually applied either to be brought for his special leave or to have a link. 

KIRBY J:   Yes, but the question I ask goes before that.  Why are some arrangements not made either for them to come or to have opportunities that other citizens have?  I am just not satisfied.

MR SMITH:   I understand it is the practice of the Court in this State, your Honour.

KIRBY J:   I know it is the practice.  It is not the practice in Western Australia or Queensland, where they are brought to Court.  It is not the practice in South Australia, where if they ask and the Court thinks it would be helpful they would be brought to Court.  I do not see why citizens who happen to be prisoners in New South Wales should be in a different position.  I will never see it.  If we had a system of dealing with these matters only on the papers it would be different, but we do not.  We give people the chance to be heard.

MR SMITH:   Yes.  I take note of what your Honour says, but I do not know that I have any power ‑ ‑ ‑

KIRBY J:   Anyway, I speak only for myself.  I do not speak for the Court, but I am troubled by the inequality.  We carve into stone equal justice under law and I am offended by the lack of equality.

MR SMITH:   Yes, I understand what you are saying, your Honour.  It does apply in the State courts, but, for other reasons, apparently, it does not apply in this Court in this State.  I do not understand the reasons for it, so I am not really in a position to comment.

KIRBY J:   Yes.  Anyway, I have let you know my views.

MR SMITH:   Thank you, your Honour.

KIRBY J:   There is a question of Apostilides in this case.  Can you help me with this?  The complaint made in the written submission is that the principle in Apostilides, if applied to the case, should have led to the calling of the co‑accused, Mr Killick, because he would have been in the best position to assist the jury to decide whether or not the person who assisted him in his escape was Ms Dudko, or somebody else, as she claimed. 

Now, the Crown did not call Mr Killick in Ms Dudko’s case.  I understand that the Crown says – you say in your written argument – that that was because a judgment was made by the prosecutor that if he were called, he would be supporting her, because of their personal relationship.  But the principle in Apostilides is a stringent one and why would that not be a matter for cross‑examination, if Mr Killick proved to be hostile, and submissions to the jury, so that the jury could decide whether or not he was telling the truth?

MR SMITH:   Your Honour, from my reading of the material, there was no application by the defence in the trial for Mr Killick to be called.  I note that that point does not seem to have been taken in the Court of Criminal Appeal, but there does not seem to be any reference, certainly, in the material that has been put before the Court.

GUMMOW J:   Chief Justice Spigelman dealt with Apostilides at paragraph 97, did he not, at page 230?

MR SMITH:   Yes, he did.  I was looking at the material that has actually been put in the book, your Honour, and I see what the Chief Justice said and, with respect, I submit that he was correct.  But it does not really make it clear, and, certainly, the submissions that were filed in support of the appeal in the Court of Criminal Appeal did not appear to make clear, that there was a refusal by the Crown.  As I understand it, Apostilides normally is activated where the defence asks for a material witness to be called.  There does not appear to be any evidence that that request was made.  I would submit that in those circumstances the applicant really has not set the groundwork for such a ground of appeal.

KIRBY J:   We do not have the applicant here to correct this.

MR SMITH:   No.

KIRBY J:   We just have to go – I know you would never mislead the Court, and I am sure what you say is the result of your research ‑ ‑ ‑

MR SMITH:   Well, I have certainly had a look.

KIRBY J:    ‑ ‑ ‑ but the fact is that we know from other cases that sometimes one is helped by submissions from someone else, especially a person who is looking at a long sentence.  It does tend to concentrate the mind.

MR SMITH:   Yes.  Of course, in the Apostilides situation, where a request is made, the Crown must put his or her mind to the question of whether it is in the interests of justice, putting aside the Crown case, but looking at the interests of justice and whether a witness is credible in the first place.  Otherwise, the jury may be misled.

In relation to Mr Killick, he certainly has a lengthy criminal record.  He was an accomplice in the matter and, of course, being so he would have to be the subject of warnings if he were called.  But I do not know, from my researches, whether there was any evidence that he ever said that she was not in the car.  I know that the Crown says that in its written submissions, not in the material in the books.  I looked through his book as well, and, certainly, his evidence before – if he gave evidence.  As I understand it, he did give evidence before Judge Mahoney on sentence – that is not in his book – but there is no material in the books that suggests that he gave a version either including or excluding this applicant.

KIRBY J:   I suppose this can be said, that, as Chief Justice Spigelman stated at paragraph 83 of his reasons:

The evidence against the Appellant –

that she was the participant –

was very strong and her explanation of her own conduct in making arrangements for Killick’s escape, which she did not actually believe was going to occur, beggars belief.

That would be the impression that I would have, having read the materials that have been supplied.  So that I suppose that would lead to a conclusion that even if a technical mistake could be established by some toothcomb approach to the material, it would lead nowhere, because Mr Killick could not overcome, in the trial of Ms Dudko, the overwhelming evidence that she was the perpetrator who take part in the actual escape and was present in the helicopter and the car.

MR SMITH:   That is right.  Yes, your Honour.  It may also explain why he was not called in her case or that there is an absence in the materials we have of her counsel calling for him, because it often has a damaging backlash, as it were.  If you call someone who is cross‑examined under section 38 or otherwise, who does not impress, it may damage, collaterally, the respondent herself.

KIRBY J:   Yes.

MR SMITH:   Apart from that, those are my submissions on that aspect, your Honour.  Are there any other matters? 

GUMMOW J:   Thank you.

KIRBY J:   Is there anything in recent developments in the Court of Criminal Appeal of which you should be aware relevant to the issue of pre‑trial publicity?

MR SMITH:   Certainly, the case of R v Tayyab Sheikh, which was decided on 4 March 2004 by a majority.  There was a statement in that by the majority, President Justice Mason and Mr Justice Wood, Chief Judge at Common Law.

GUMMOW J:   What was the date of that?

MR SMITH:   That is 4 March 2004.

GUMMOW J:   Yes, that is two weeks ago.

MR SMITH:   I have copies, if it might assist.  I only have two.  Basically, at paragraph 26, they repeated the principles and said that:

there is undoubted jurisdiction under s6 of the Criminal Appeal Act to set aside a conviction in an extreme case if the trial has miscarried because of the atmosphere of external hostility in which it was conducted –

They refer to Glennon, Georgiou and Long.

KIRBY J:   That was a case where there was a concurrent or a back to back trial, was there not?

MR SMITH:   Yes.

KIRBY J:   Whereas this case is one of very considerable interim between cases, is that not so?

MR SMITH:   I think, in this case, the adverse publicity was mainly given about two years before, when the arrests occurred.  About three weeks before when Killick was sentenced, there was some publicity in which Ms Dudko was mentioned.  That was three weeks before.  Her Honour, in this case, at Mr Stratton, QC’s request, gave a strong direction to the jury before the trial started.  Did not go to the length as had been suggested by the Crown that the panel all be asked about it – Mr Stratton did not want that to happen, I think perhaps to avoid too much emphasis on it. 

So this is quite a different case – this current case – from Sheikh, in that I think in that particular case there was the danger that the information given in the newspapers and on TV and radio about the convictions of the four, about a particular location where sexual assault was supposed to have occurred, was exactly the same information which was the subject of the opening address in relation to Mr Sheikh.  He obtained a separate trial.  One of the incidents was common to both, and the two things were overlapping, as I understand, in that first week of the Sheikh trial.  The majority considered that that created that type of hostility that ‑ ‑ ‑

GUMMOW J:   We had better not get too involved in that.  There may be an application for special leave, I suppose.  The time has not expired, yet, anyway.

MR SMITH:   The time has not expired for that, no.

KIRBY J:   That is not suggesting any new principle.  It is simply applying the principles established by this Court in the particular facts of this case.

MR SMITH:   That is right. 

GUMMOW J:   Thank you. 

The only question of substance that would arise on an appeal to this Court would concern the applicability of the principles stated in R v Apostilides (1984) 154 CLR 563 at 575. However, even if it were shown that there had been a failure in that respect, the other evidence of identity of the applicant for special leave was so overwhelming that the failure could not be shown to have given rise to a miscarriage of justice. Accordingly, the necessary extension of time is granted but special leave is refused.

AT 2.14 PM THE MATTER WAS CONCLUDED