Flavel v The Queen

[2003] HCATrans 697

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S231 of 2002

B e t w e e n -

ROBERT SCOTT FLAVEL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MAY 2003, AT 12.26 PM

Copyright in the High Court of Australia

MR W.C. TERRACINI, SC:   If it please your Honours, I appear with my learned friend, MR J.S. STRATTON, for the applicant.  (instructed by Hardinlaw Lawyers)

MR D.J. FAGAN, SC:   If it please your Honours, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Terracini.

MR TERRACINI:   Thank you, your Honour.  Your Honours, despite the vigorously dismissive submissions by my friend, we maintain that this is a meritorious application.  If section 97 and section 98 do not apply and my friend is right that Harriman does, then we say that since Harriman was decided by this Court it has been constituted since to the point where only Justice McHugh remains on the Court when that decision was decided.

The Evidence Act in New South Wales had not been proclaimed, so the comments made, in part or in whole, about discretions and the probative and prejudicial effect in Harriman have been altered in subtle ways, one of which, if I could adumbrate now.  Section 101 of the present New South Wales Act increases the standard so that it has to have a substantial effect vis‑a‑vis probative and prejudicial effect, whereas in the past, and in other sections of the same Act, it is merely the balancing act that Justice McHugh talks about in Harriman where it is just merely probative against prejudicial.

GLEESON CJ:   But that is all on the assumption that this is propensity or tendency evidence.

MR TERRACINI:   Yes, but if it is not propensity, then Harriman applied the same standard.  That is our argument.  If they applied the same standard as the Court does in propensity similar fact cases, then if Harriman applies, then we say that the Court should reconsider ‑ ‑ ‑

GLEESON CJ:   Mr Terracini, I may have asked you this question on some previous occasion, but before the Act came into operation some of the old cases used to talk about “mere” propensity evidence.  They used to talk about evidence which merely disclosed a propensity.  How does that line of authority relate to the provisions of the Act now?

MR TERRACINI:   In my submission, it does not relate at all.  The various Courts of Criminal Appeal around the country and this Court on occasions used terms that may or may not mean the same thing.  We had the seminal case of Boardman and the cases that flowed from that about similar fact evidence and then the word “propensity” was perhaps a more recent adaptation of that, but I think they all flow from Makin, and that was that, fundamentally, the past of an accused cannot be introduced ‑ ‑ ‑

GLEESON CJ:   But there often arises evidence which happens to reveal a criminal tendency or propensity, but is not admitted on that basis at all.  To take the simplest example, an assault case might arise out of an incident between a citizen and an escaped criminal and the fact that a person is escaping from custody might be an integral part of the story of what happened.

MR TERRACINI:   No doubt.

GLEESON CJ:   But, of course, it will also reveal to the jury, when told, a criminal propensity on the part of the accused.

MR TERRACINI:   I do not deny that for one moment.

GLEESON CJ:   How does the Act deal with that?

MR TERRACINI:   The Act does not.  The Act endeavours – and this perhaps could be interpreted as a criticism, but the dictionary meaning ‑ ‑ ‑

GLEESON CJ:   To take an even simpler case, suppose an assault happens in prison.

MR TERRACINI:   Yes, and, as your Honour knows ‑ ‑ ‑

GLEESON CJ:   You could not tell that story without revealing a criminal propensity on the part of the accused.

MR TERRACINI:   It is so intricately involved in the relationship between the parties – it may have motive, it may have a whole range of different matters, but the Crown case in this instance does not go to motive.  It does not in a Wilson sense of relationship between a husband and a wife and a domestic murder and all of the matters associated with that past go in.  Originally – and if I could take your Honours briefly to page 5 of the application book, this was the original reason by the Crown for saying that it should be admitted.  That was on the basis of his being an accomplice.

CALLINAN J:   Mr Terracini, you could receive evidence, could you not, of trial runs or practice runs to commit a crime?  That would not be propensity or tendency evidence, would it?

MR TERRACINI:   Well, it may or may not be.  If the Crown said ‑ ‑ ‑

CALLINAN J:   It would be evidence of a state of mind, intention to commit the crime, because you practised committing the crime.

MR TERRACINI:   Well, that is admissible because the Crown is able to say, “Well, we are using it as part of our case that he has done it many times before and has been involved in the same activity.”  What they are saying here – it may be a little bit subtle, but the effect of it is very great, because what they say is, “We are not using it to demonstrate that he has committed a criminal act at all.”  The sections, particularly 97 and 98, do not necessarily just deal with criminal acts.  There could be a tortious or wrongful act.  There could be a whole range of acts that could constitute tendency.

In the judgment of the Court of Criminal Appeal, Justice Barr – I think it is paragraph 16 in the decision of the Court of Criminal Appeal ‑ says at page 78:

The Crown was entitled to invite the jury to find against that background that the appellant must have believed when he began the Maeva voyage that the purpose of the transatlantic runs had been to carry cocaine, that Del Prado was probably a substantial trafficker in cocaine and that the purpose of the Maeva voyage would therefore be to transport cocaine.

Now, if the purpose of the Crown was merely to demonstrate that it was wilful blindness – and that is very different to what Justice Barr is talking about there – it is quite a different test.  He is saying that they would have been entitled to put to the jury that he must have believed, when he began the voyage, that the purpose of the runs was to carry the illegal drug.  That plainly demonstrates that the jury would have been on notice that the Crown was saying he was so wilfully blind as a result of that that he must have known.

Now, if the Crown had been required to abide by section 97 and the protective section 101, the difference in terms of the test that the trial judge has to employ is of a higher standard.  Now, I am not going to stand here and tell your Honours that in many cases that is going to make a substantial difference to a Crown case, but it may well have made a difference in this one.  If the trial judge had been of the view that this material substantial outweighed, or did not substantially outweigh the prejudicial effect, then excluded it, it may or may not have made a difference, but it is impossible, in my respectful submission, at this stage to determine whether it would have made a difference or not.

It is very important evidence and this Court has not, in my submission, revisited the effect or, indeed, at all the effect that the present

New South Wales Evidence Act has on Harriman, Pfennig and Hoch.  This sort of material is regularly, as your Honours may have gleaned from reading cases that come before this Court – this sort of evidence is used in many, many cases of this type and, in my submission, the intention of the legislature was to provide some kind of mechanism, through section 97 and 98, to control this kind of material. 

We can well appreciate that it is not a match where certain rules are imposed on Crowns and not imposed upon an accused, but the Crown is placed in an advantageous position by using this sort of material, not having to comply with the tendency or the coincidence provisions.  In my submission, the Court could use certainly the facts of this case to revisit or have a recrudescence of the pronouncements made in Harriman, which predates all of the cases to do with tendency and coincidence that have come before the New South Wales Court of Criminal Appeal and this Court.  They are my submissions.

GLEESON CJ:   Thank you, Mr Terracini.  We do not need to hear you, Mr Fagan.

The Court is of the view that there are insufficient prospects of success to warrant a grant of special leave to appeal in this matter.  The application is refused.

We are going to adjourn now until 2.00 pm.

AT 12.37 PM THE MATTER WAS CONCLUDED