El-Azzi v The Queen

[2005] HCATrans 781

[2005] HCATrans 781

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S18 of 2005

B e t w e e n -

WILLIAM EL-AZZI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 SEPTEMBER 2005, AT 11.35 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   May it please, I appear for the applicant with my learned friend, MR C.C. WATERSTREET.   (instructed by Kings Lawyers)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.   (instructed by Office of the Director of Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Game.

MR GAME:   If the Court pleases, the argument I wish to advance today involves the proper scope and application of section 104 of the Evidence Act.  I should begin by confessing that the argument I propose to present is an advance on what is in the written submissions.

McHUGH J:   Sorry, is?

MR GAME:   An advance upon what I ‑ ‑ ‑

McHUGH J:   An advance, I see.

MR GAME:   Well, I hope so.

CALLINAN J:   You mean improvement.

MR GAME:   Improvement, yes.  I am responsible for both.  What I want to argue is this.  Section 104 provides a level of protection that makes reliance on Phillips and provisions under consideration in cases such as that inapposite and it actually provides a higher level of protection, and I will explain why in a moment.  I will also explain why this particular case is an appropriate vehicle for considering that issue.

Now, section 104, if your Honours have it there in front of you, at least up until subsection (4), it really has the same broad effect as the statutory predecessors and the provisions under consideration in Phillips.  In Phillips – there is no need to go to Phillips, but in Phillips, cross‑examination was allowed upon the accused in relation to prior convictions for dishonesty where he had cross‑examined a complainant on an allegation that she had sold Indian hemp where the only reason for him being at the premises, according to his case, was that he had purchased Indian hemp.  So because of subsection (5) Phillips would be differently decided if it were considered under these provisions. 

Now, subsection (5) is the provision that really provides the level of protection, and I will explain why in a minute – and I have to confess, it has been overlooked to this point – why subsection (5) is so important.  Subsection (5) which was introduced with the Evidence Act says, in effect, that:

subsection (4)(b) to evidence does not include a reference to evidence of conduct in relation to:

(a)      the events –

and I am cutting it short – and in relation to –

(b)      the investigation of the offence –

Now, if you look at the questions that the prosecutor relied upon, and this is the curious thing about this case, in fact, it is evidence adduced and it is not questions.  You can see them at page 465 in Justice Sperling’s judgment.  Now, the curious thing about those – incidentally it is not questions, but evidence adduced and so, for example, a question put to Robert Proctor that he was a “career fraudster”, he in fact did not admit that, would not be picked up.

The thing about those questions is that they are entirely incidental to the central issues that arose in cross‑examination, and I will explain why in a moment.  But the thing about them is that clearly – and this has really been overlooked – the prosecutor was correct.  What the prosecutor had in mind was thinking up examples that went beyond subsection 104(5) and that is why they are so curiously inconsequential, bearing in mind that the main witness was Mr Simpson and that the second main witness was Mr Knight and all that is referred to about Mr Simpson in this – and I will take you to some evidence shortly – is in fact his prior convictions.  But the prosecutor framed them for a very good reason.

Now, if you go back to paragraph 229 on 465 you will see his Honour Justice Sperling thought the cross‑examination was important and emphasised the criminal histories of the witnesses.  Then you see what really is the clue to this case is at the top of page 468 in which his Honour Justice Sperling said that the reference to:

straying into areas remote from the matters in issue –

really must be a reference to 104(5).  Now, if you go back to what this case was about, and I will have to take your Honours to some short passages in the first application book shortly and then I will come back to the judgments, but there were seven indemnified witnesses in this case and they were all accomplices.  They all had appalling criminal histories, motives to lie and many of them had lied on oath on previous occasions.  They had indemnities and it is not an exaggeration to say that their indemnities covered an extraordinary range of activities which they were due to lose if they lied in the proceedings.

So it was sine qua non, that in fact the prosecution was presenting witnesses of a kind whose evidence was likely to be unreliable and the subject of a warning under subsection 165.  It was only the cross‑examination by the defence which showed what an extraordinary range of things these indemnities actually protected them for.

Now, that is why it would appear that the prosecutor steered completely clear of Mr Simpson and Mr Knight – and I will take your Honours to some passages in a moment – but my argument is this, that the protection provided by subsection (5) means that when you have incidental things such as are identified there on page 465, what you have to measure is all that falls within the proper cross‑examination under 465 plus that which goes outside it compared with what properly falls within 104(5), and that is the protection.

But what it means is that if you go, shall I say, a tiny bit beyond 104(5) or even a substantial amount, if it is of no consequence to the ultimate attack on the credit of the witnesses, then you will not engage the discretion under section 104 and that is the additional protection that this provision provides, and that is what the prosecutor had in mind and why the prosector identified such incidental things.

Now, may I just take your Honours to some short passages in the first book to make good, as it were, what I am saying in an evidentiary sense.  If you look at page 59 of the first book you will see that his Honour commenced his section 165 warning – that is the warning in relation to this series of witnesses – and then the first two on page 61, a Mr Simpson and Mr Knight who do not even form part of this application.  Then if I could take your Honours to a bit of Mr Simpson.  In a different part of the summing-up his Honour summarised their evidence and some of the things relied upon in this list do not rate a mention at all, even anywhere in the summing-up, they are so incidental. 

Now, if we go to pages 122 and 123 you will see the absolutely extraordinary consequences of the indemnity that was given to Mr Simpson.  He had done something like 80 separate cooks worth many hundreds of thousands of dollars and his indemnity protected him in relation to all of that.  You see on 123, line 14:

Mr Simpson said he believes that nothing from the past can be used against him.

Likewise, if one looks at Mr Trent Brown in respect of whom one of these things relied upon is quite – or these things are quite inconsequential when you compare it with what he in fact had to say, if you look at the summary of his evidence at 157, line 24:

Mr Brown told you that he has been given an undertaking by the Attorney General to the effect that he would not be prosecuted for any offence –

The same appears back at page 62 in the warning in respect of him.  So Mr Brown, who is a serial criminal, was getting a general indemnity for major acts of criminal misconduct.  We see the same in the warning that appears at line 10 on page 62.  Then Mr Knight, who is not even the subject of this direction, at page 151 – sorry, I should say, Mr Simpson also admitted that he had lied on previous occasions to get himself acquitted in offences.  But - page 151, Mr Knight, who is not even the subject of this application says:

Mr Waterstreet put to the witness that throughout his career he has lied to the police about his own involvement and the involvement of others.  He agreed that he had.

He is not even the subject of this application.  The same can be said about Mr Proctor, who is the subject of the application, but you see, Mr Proctor also got an extraordinary ranging immunity.  All that was put about Mr Proctor in respect of the application was the conviction that appears in paragraph 1 which forms no part of this application and the fact that it was put to him that he was a career fraudster which he denied, and we see that at pages 243 to 245 of the application book.  Mr Proctor critically admitted that he was in a precarious position and on bail for eight counts of embezzlement at the time that he was given his immunity. 

So one can see that what is lying behind what the advocate says it were - we are doing at trial – sorry, there is another bit at 245, but there is no need to trouble you with that further.  I think I may have made that point.  So, as I say, it is clear enough that what has been picked up here in this application are entirely incidental things.

McHUGH J:   No, but it has to be incidental in relation to the events.

MR GAME:   Yes, that is true.  But, your Honour, when you apply 104(5) what you have to do is measure what falls within 104(5) against that plus that which falls outside it and that exercise was never done.  I can demonstrate that to your Honours by taking you to begin to the judgment of her Honour Justice Simpson.  You will see in her Honour’s judgment – I will just turn that up – her Honour Justice Simpson at page 455, she said that – bottom of 201:

Having regard to the nature of the attack, made particularly upon Simpson, but also upon each of the other indemnified witnesses -

but that formed no part of the application.  Everybody has slipped into thinking that that list of things was, in fact, everything that was put to the witnesses, but, in fact, that is not so.

Then when you go to Justice Sperling’s judgment, in my submission, we go to the relevant parts – I took you to some parts of it before, but then if we come forward to page 475 his Honour deals with the first judgment and he says that the trial judge’s approach was “unsustainable”.  This is in respect of allowing cross‑examination on the two criminal offences.  It was unsustainable, in effect, because this was misconduct, the entries in the – failure to enter something in an occurrence, having gone on a holiday to Bali without approval.  That appears at 475. 

He says that part of the judgment cannot stand and then he goes on to the criminal conviction.  He says that is in a different class.  Then at the bottom of page 476 he says that the Queensland statute in consideration in Phillips was “substantially the same as s 104”, but that is not correct for the reasons I have given.  Then page 478 his Honour says:

In the present case, there was no finding of impropriety in the way Crown witnesses were cross‑examined . . . nor was this a case where evidence of the previous conviction was especially prejudicial . . . 

Relevantly, there was no special feature of the case –

At paragraph 272 he says “not materially different” from 135 and 137.  But we say that, really, his Honour has failed to engage the critical question and the critical question is this question about what is it about these incidental matters that take this cross‑examination into an area where an entirely unrelated conviction for accepting $500 in respect of not reporting a receiving stolen goods case comes into evidence.

So my argument is that section 104(5) has not been correctly construed in this case, that this is an appropriate vehicle for the reasons that I have just given.  I add to that the other points I have made in the written submissions about the error in discretion and to that I add the point about what substantial probative value means, and the point I make about that is that if you apply the dictionary, substantial probative value does rely to the facts in issue, does not apply merely to credit.  If it did apply merely to credit, then it would always be answered in the affirmative, and that that is

quite meaningful when one has regard to the fact that credit is a relevant matter under matters that can be relevant to facts in issue in the Act.

To this I add the fact that the Court held that the two misconduct matters should not have been allowed into evidence and the transcripts of the addresses should have been given to counsel, and that is really a – they are not special leave points.  They are merely points that we would want to ventilate if we were granted special leave.  I have said it fairly quickly, but that is the argument that I would put if we were granted special leave.

McHUGH J:   Thank you, Mr Game.  We need not hear you, Mr Lamprati.

We are of the view that if any of the questions asked of the applicant did infringe the provisions of section 104 of the Evidence Act it is highly unlikely that those questions have brought about any miscarriage of justice.  The case against the applicant was a substantially strong case and special leave is refused.

AT 11.52 AM THE MATTER WAS CONCLUDED