Dunn v The Queen

[2001] HCATrans 24

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 2000

B e t w e e n -

ROBERT JOSEPH DUNN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 10.29 AM

Copyright in the High Court of Australia

MR S. J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR M. THANGARAJ.  (instructed by Kalmath & McGhee Lawyers)

MR A. M. BLACKMORE:  May it please the Court, I appear with my learned friend, MR M. C. MARIEN, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GAUDRON J:   Yes, Mr Odgers. 

MR ODGERS:   Yes, thank you, your Honours.  This application is advanced primarily on the basis that there has been a serious injustice done to the applicant, requiring a grant of special leave.  However, we also submit that the case does raise questions, important questions, about the approach which should be taken to interpreting indemnities from prosecution, which appear to be in a reasonably standard form across Australian jurisdictions.  We submit that they should be read liberally, in recognition of the public interest that persons who receive such indemnities are not inadvertently tricked into giving evidence, and thereby damaging their own interests.  We also submit that this case involves an investigation of the relationship between the actual terms of the indemnity and the relationship between the indemnified offences and the recitals.  And I will explain that point in a moment. 

In this case, we submit that it is clear that the Crown wished the applicant to testify against three allegedly corrupt police officers who, in August 1987, found some evidence that he was engaged in the commission of paedophile offences and extorted, on the Crown case, $40,000 from him and others, on the basis that they would not further investigate such paedophile offences. 

McHUGH J:   It was not clear to me whether the money came from the applicant or Wain.  I thought it came from Wain, did it? 

MR ODGERS:   I think the evidence was that it did come from Wain, yes. 

McHUGH J:   Yes.  But as part of the bargain, the applicant would not be prosecuted if ‑ ‑ ‑

MR ODGERS:   Yes, although, your Honour, I have carefully avoided the term “prosecuted”.  In my submission, the bargain, if it was a bargain, went further.  And it is an important point.  We say it went that, it was not so much “you will not be prosecuted” but “we will not even investigate the evidence which suggests that you have committed these offences”.  I will come back to that point in a moment. 

The indemnity was given on 3 April 1990 and this application is solely concerned with the interpretation and construction of that indemnity.  We have not advanced an argument that was advanced below, and I will not say any more about that. 

GAUDRON J:   So you are only concerned with which indemnity? 

MR ODGERS:   The indemnity which is found on page 1 of the application book. 

GAUDRON J:   It is the only one in issue. 

MR ODGERS:   Yes, your Honour.  Your Honours will see, at line 45 on page 1 – or perhaps I should just take your Honours quickly through that indemnity.  The first recital refers to the three allegedly corrupt police officers and “offences arising out of the receipt of a sum of money” which is the $40,000.  The second recital is that the applicant is “required as a witness against” those officers “to adduce all the facts to his knowledge at the hearing of the said proceedings”.  The third recital, and this is one upon which we place some significance, is that, “whereas in order to adduce such facts” - and the facts are, as indicated in the second recital, facts relevant to the prosecution of the police officers:

the said ROBERT JOSEPH DUNN may render himself liable to prosecution for an offence under the law of New South Wales. 

Then, the fourth recital, which I do not need to read out, and then the indemnity, as your Honours see - I will not read it, but it indemnifies in respect of the offences aforesaid ‑ ‑ ‑

GAUDRON J:   What are they, do you say? 

MR ODGERS:   We say that they are not limited to the first recital.  We say that they extend to the matters referred to in the second and third recital.  Can I just interpose, your Honour.  His Honour Judge Davidson focused exclusively on the words “associated offences”.  He interpreted the words “offences aforesaid” as being essentially the extortion offences.  That is to be found, your Honours, at ‑ ‑ ‑

GAUDRON J:   That would be the usual course in such a case as this, would it not?  One does not imagine, for example, that an Attorney-General grants an indemnity on the basis that if, during the course of cross‑examination, an indemnified witness admits to murder, mayhem, etc, the indemnity will cover him when he has been given an indemnity with respect to give evidence of a particular transaction. 

MR ODGERS:   Your Honour, I accept that that would be one approach that could be taken, and, indeed, may well be taken by an Attorney-General in order to limit the protections offered by an indemnity.  However, we say that indemnities should be read benevolently to ‑ ‑ ‑

GAUDRON J:   Why?  Why should they? 

MR ODGERS:   To ensure, your Honour, that such persons who receive an indemnity, who go along to a trial to testify, can avoid the danger that they will be inadvertently tricked into giving evidence in respect of offences in respect of which they are not protected. 

McHUGH J:   But why should that construction – why should one not read it to the opposite construction:  that the public interest requires that those who commit crimes should be prosecuted for them? 

MR ODGERS:   Your Honour, this is plainly a classic case of competing public interests. 

GAUDRON J:   There is not really, is there?  Because, so far as he might be tricked into giving evidence of offences, the evidence cannot be used against him by reason of the later indemnity.  Remember what happened in this case? 

MR ODGERS:   Yes.  My response to that is, your Honour, that that indemnity is a use, an indirect use ‑ ‑ ‑

GAUDRON J:   Yes. 

MR ODGERS:    ‑ ‑ ‑ indemnity, and it does not necessarily provide a complete protection.  More importantly, your Honour ‑ ‑ ‑

GAUDRON J:   No, of course it does not provide a complete protection.  But it provides the protection against giving evidence in which you might incriminate yourself.  If there is any public policy in relation to indemnities, it is to protect yourself – well, to protect the individual against having to incriminate himself and having that evidence used against him later – or her.  That is the public policy. 

MR ODGERS:   Yes, I accept that, your Honour, but ‑ ‑ ‑

GAUDRON J:   You have to assert a much wider public policy than that to justify this notion that a document such as this should be liberally construed.  I mean, there are real questions as to whether they should ever be given, but that is beside the point. 

MR ODGERS:   Yes.  Yes, it is my ‑ ‑ ‑

McHUGH J:   And it has been liberally construed, has it not?  Arguably, there should not have been cover for the 11 offences, as opposed to the offences concerning the corruption. 

MR ODGERS:   We would certainly say, your Honour, even putting to one side what I have been saying a moment ago about what the “aforesaid offences” meant – and I have said that we say that related to the third recital‑but the “associated offences” we say that, plainly, with respect, he was going to be giving evidence about a police extortion in which they were saying to him “we are not going to investigate paedophile offences which we believe you have committed”.  He was going to give evidence of that at the trial and it was expected that he would testify about at least some of those paedophile offences, in examination-in-chief. 

GAUDRON J:   Hence the subsequent – what you call “transaction immunity”. 

MR ODGERS:   With respect, no, your Honour.  I think “transactional immunity” relates to the first indemnity ‑ ‑ ‑

GAUDRON J:   All right.What do you call the second? 

MR ODGERS:    ‑ ‑ ‑ “use” and “indirect use” indemnity. 

GAUDRON J:   Yes.  Hence, the second indemnity. 

MR ODGERS:   We say that one has to give meaning to the terms “associated offences” at least ‑ ‑ ‑

McHUGH J:   What is the matter with the statement that Justice Sully, or the meaning that Justice Sully gave it?  Did he not say that it meant

offences actually committed by the appellant that are intertwined, in a real and proximate sense, with the corrupt and unlawful conduct -

was that not the way he put it? 

MR ODGERS:   He did express it in general terms like that, your Honour.  I can take your Honours to that just briefly.

McHUGH J:   I think it is at page 154. 

MR ODGERS:   Pages 154 and 155.  We would not necessarily cavil with that as a general proposition, your Honour, subject to this:  we do say that both Judge Davidson and the Court of Criminal Appeal misinterpreted the term “aforesaid offences”.  We say that the “aforesaid offences” extended to any offence of which the applicant might give evidence at the trial.  It was, we say, inevitable that he would be cross-examined about his paedophilia and that therefore that might come out.  But, putting that to one side, in relation to the term “associated offences”, we accept that that term had to be construed in the context of the document as a whole, and yes, the primary focus of it was the extortion attempt by the police officers – or the extortion by the police officers. 

McHUGH J:   But does that not create a real problem for you, Mr Odgers, on the special leave?  Because this is really a case about the terms of a particular indemnity as applied to a particular set of facts.  Unless you can bring yourself within the miscarriage of justice in the particular case ground, it does not seem to me that you get within the ordinary principles. 

MR ODGERS:   Your Honour, I appreciated that.  I did begin by emphasising the injustice in the particular case.  We have said that there was an injustice, but I do submit that there is some commonality between indemnities when they are offered, around Australia.  The case of Georgiadis, which we have not provided to your Honour, but that was a ‑ ‑ ‑

McHUGH J:   That is Justice Ormiston’s decision. 

MR ODGERS:   Yes, your Honour.  That was, in similar terms ‑ ‑ ‑

McHUGH J:   Does Victoria have a statute? 

MR ODGERS:   I believe it was based on a statute. 

McHUGH J:   It does not matter. 

MR ODGERS:   Perhaps it does not matter.  Your Honours, can I just hand up Georgiadis just briefly to explain the point more precisely.  I apologise for not having provided this earlier.  I will hand up three copies.  My friend has a copy.  At page 1031, your Honours will see at line 15 down to line 40 the indemnity that was offered and provided in that case, and it is, we say, in quite similar terms to the one in this case.  The first recital relates to what might be said to be the foundational offences, which is a conspiracy to import drugs. 

The second recital is that the appellant in that case was required as a witness, to give evidence of facts relevant to those charges.  The third recital: 

In so giving evidence the said MITSOS GEORGIADIS might render himself liable to prosecution for an offence. 

Then the fourth ‑ the actual indemnity refers, as your Honours see, to the “aforesaid offences”.  So it was, in a sense, narrower than the one in this case.  The reason I am taking your Honours to that – to this case, and to that indemnity, is because his Honour Judge Ormiston read the term “aforesaid offences” to extend beyond the first recital – which was related to the conspiracy to import drugs – and he gave emphasis to the third recital, which is to evidence that the person might give in testimony, in the trial, relating to the prosecution of those matters.  And he held that it extended to a robbery offence, I think – sorry, a shooting offence. 

McHUGH J:   He admitted in cross-examination he shot the person. 

MR ODGERS:   Yes.  And, your Honours, if I could just take you briefly to what his Honour Judge Ormiston said, on page 1038.  At line 42, his Honour said this: 

However, the operative part of the document contains an undertaking not to bring criminal proceedings of any kind against the accused “arising out of or in respect of or on account of his participation in the aforesaid offences which might render him liable to prosecution.  In my opinion those words are very wide and the “aforesaid offences” cannot be limited to those referred to in the first recital.  The third recital also referred to “an offence or offences” in terms that “in so giving evidence the said Mitsos Georgiadis might render himself liable to prosecution for an offence or offences.  Consequently, I see no reason to restrict the words “the aforesaid offences” in the operative part of the indemnity to the Commonwealth offences referred to in the first recital. 

Then, over the page, he says that the third recital was qualified to what he says in giving evidence.  And then, significantly, at line 5: 

It was argued that the facts relevant to these charges were only those facts which might be adduced in evidence-in-chief and not those which might be revealed in cross-examination.  I cannot so limit the recital.  The accused was obliged to give evidence and the nature and course of the evidence could not be precisely predicted.  In fact counsel for Mr McMillan considered it relevant to cross-examine as to the shooting incident.  It was not for the accused to distinguish in the witness box what was relevant and what was not relevant.  He might fairly assume that, if questions were asked and not objected to, then they were relevant to the charges then being heard.  He knew not the course of the evidence and he was obliged to answer.  It may be said that he could have claimed the privilege against self‑incrimination, but, apart from the fact that he was not warned, it seems undesirable that when a witness is called in these circumstances his evidence should be limited because he fears the consequences of answering truthfully. 

McHUGH J:   But it is difficult to apply what is stated at page 1038 literally, is it not, because supposing in this case Dunn had been cross‑examined at the committal on credit and confessed that he had been involved in an armed hold-up a decade before.  Now, that would not be covered by the indemnity. 

MR ODGERS:   No, I would accept that, your Honour. 

McHUGH J:   If you do not confine it to the first recital, how do you confine recital 3 as in Georgiadis? 

MR ODGERS:   We say that it was entirely predictable that when he testified he would give evidence about the commission of paedophile offences by himself, in-chief.  And that, in cross-examination, there would be, inevitably, further investigation about what precisely he had done.  Indeed, that to a large extent is what happened in this case.  Your Honours, I think it is most adequately summarised in his Honour Judge Davidson’s judgment at page 62 of the application book.  Mr Smith – that was the Crown prosecutor –

asked the appellant to identify which of the 17 videos which had been in his possession when arrested in October 1989 were in his Ivy Street premises when the allegedly corrupt police arrived -

He identified 1 and 7.  He gave evidence about the content of those videos.  He agreed that one of them related to A.  He said that No 7 depicted him in relation to another boy, and then he was cross-examined, going essentially to credit, involving the detail of these sexual acts but – and this is important, of course – “no minor other than A was identified”.  And we say that was an error that ultimately – not an error of fact, but that his Honour Judge Davidson gave great importance to that failure to identify, and we say that was wrong. 

McHUGH J:   But the charges that you now complain - I mean, these events occurred back in 1990, did they not? 

MR ODGERS:   1987. 

McHUGH J:   1987.  And the indemnity was given when, in ‑ ‑ ‑

MR ODGERS:   1990. 

McHUGH J:   1990, the indemnity was given.  These present charges arose out of taking possession of 72 videos in February 1996 and 223 videos in April 1996, six years after the indemnity. 

MR ODGERS:   That is true, your Honour.  The complaint that is made, if I can summarise it in essence, is we say that the corrupt police said, “We will not investigate the commission of your paedophilic activities”.  There was a real risk that he would be giving evidence about those paedophilic activities at the trial of the corrupt police.  We seek an indemnity in respect of the offences he had committed before the police had come to the premises, because we submit ‑ ‑ ‑

McHUGH J:   But there is no evidence, is there, that these 308 videos were known to the corrupting police? 

MR ODGERS:   No.  Your Honour, it is conceded ‑ ‑ ‑

McHUGH J:   That is why you place so much weight on investigation. 

MR ODGERS:   Exactly.  I have to do that, because we say that it was not just a case of them – and, indeed, your Honour, it is demonstrated clearly, because they did not know that he had committed paedophilic activities with respect to A. 

McHUGH J:   Yes. 

MR ODGERS:   They had not looked at the video.

McHUGH J:   A was the boy, the young boy, that was there ‑ ‑ ‑

MR ODGERS:   The young boy who was there. 

McHUGH J:    ‑ ‑ ‑ who was there when they arrived. 

MR ODGERS:   So, plainly, the bargain in that respect was not to investigate offences vis-à-vis A.  We say that to limit it to A is artificial, and that the bargain was really, “We are not going to investigate you at all about our suspicions that you have committed these offences”.  We say that the indemnity extended, either through the terminology of “aforesaid offences” or through the terminology of “associated offences, to his paedophilic activities that had been committed before the time when the police made the bargain. 

McHUGH J:   But are not the basic facts that, back in August 1987 ‑ was it two police officers that went there? 

MR ODGERS:   There were two who came to the premises and a third who was involved. 

McHUGH J:   Yes.  And they were there looking for Wain and somebody else? 

MR ODGERS:   Yes, your Honour. 

McHUGH J:   And A was there, with Dunn, and then two of the officers seize some videos and photographs, and they were photographs of the applicant engaged in sexual activity with ‑ ‑ ‑

MR ODGERS:   I think the video, not the photographs ‑ ‑ ‑

McHUGH J:   The video. 

MR ODGERS:   There was clear evidence that the videos contained such activity, yes, your Honour. 

McHUGH J:   And then, there must have been – there was some further arrangement then with another police officer. 

MR ODGERS:   Yes. 

McHUGH J:   The three of them.  And then they said they handed back ‑ ‑ ‑

MR ODGERS:   They handed it without looking at them. 

McHUGH J:   They handed back the videos and the photographs in return for the payment of $40,000. 

MR ODGERS:   Yes, your Honour. 

McHUGH J:   Yes. 

MR ODGERS:   Your Honour, I see the red light.  I cannot say any more and I will not ask for an extension.  Thank you. 

GAUDRON J:   Thank you, Mr Odgers.  We need not trouble you, Mr Blackmore.

According to his application, the applicant seeks special leave to appeal to establish the principle applicable to the construction of indemnities from prosecution.  So far as the question of construction is concerned in this application, it is arguable that the indemnity was wrongly construed in the applicant’s favour.  There is certainly no basis upon which it could be construed more widely.  Accordingly, the application is refused.

AT 10.52 AM THE MATTER WAS CONCLUDED