Frangulis v The Queen

[2007] HCATrans 261

[2007] HCATrans 261

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S489 of 2006

B e t w e e n -

SPIROS FRANGULIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2007, AT 12.21 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please your Honours, I appear for the applicant with my learned friend, MR G.M. THOMAS.  (instructed by Jordan Djundja Lawyers)

MR D.C.FREARSON, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, this is an application for special leave to appeal which raises, in our submission, important questions in the administration of criminal justice, including the nature of an interlocutory appeal by the Crown against the exercise of discretionary judgment by a trial judge to exclude evidence in a criminal trial and also the scope of section 90 of the Evidence Act, the uniform Evidence Act provisions, that is, the discretion to exclude an admission if:

(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Your Honours, the sources of unfairness to the applicant in these circumstances are, in our submission, set out in the judgment that the primary judge gave in his decision to exclude the material upon which the Crown sought to rely.  The first finding that was made by the learned primary judge was that there had been an arrangement made between police investigating the circumstances of the fire at the restaurant managed by the applicant with the person appointed by the insurance company to investigate those same circumstances on their behalf.

GLEESON CJ:   This was one of these pre‑trial hearings, Mr Byrne, was it?

MR BYRNE:   It was, your Honour.

GLEESON CJ:   There was then a section 5F appeal?

MR BYRNE:   A section 5F appeal by the Crown, yes.  The section 5F appeal by the Crown, as your Honours are aware, was based on two different grounds.  There were two separate statements which were sought to be introduced in evidence against the applicant.  The first of those, a statement made by him to the investigating police officer in the form of a police statement but one which was not recorded in the manner required.

GLEESON CJ:   The Court of Criminal Appeal kept that out.

MR BYRNE:   Yes, your Honour.  It is not part of this application.  The second body of evidence was the interview that was conducted between the insurance investigator and the applicant, but his Honour found as a matter of fact that in conducting that interview the insurance investigator was effectively acting as an agent of the police.  He had effectively been delegated the task by the police of investigating the circumstances of the fire, including the task of interviewing the applicant.

GLEESON CJ:   These were interlocutory rulings of the primary judge?

MR BYRNE:   They were.

GLEESON CJ:   He could have changed his mind the next day after thinking about it further?

MR BYRNE:   Certainly, and if there had been additional material which bore on the topic.

GLEESON CJ:   Your principal difficulty, no doubt, is our repeated statements that we, as a matter of general principle, do not intervene in relation to interlocutory rulings where that would interrupt the progress of a criminal trial.

MR BYRNE:   Certainly, your Honours.

GLEESON CJ:   If your client is acquitted, then all of this becomes irrelevant.

MR BYRNE:   Certainly.  There have been lengthy proceedings up until now.  The proceedings that determine the admissibility of this evidence extended over many days in the District Court and it was the Crown who made the application to the Court of Criminal Appeal to have that decision overturned.  Our primary contention on this application is that the Court of Criminal Appeal did not deal with that application in the proper way in the sense that they did not find, in our submission, relevant error on the part of the primary judge in determining that these various items of evidence should be excluded.

The basis on which it is contended that this is a case in which special leave should be granted, the point which we contend is one worthy of consideration by this Court is the precise basis on which interlocutory appeals of this kind where they involve a discretionary judgment by the primary judge should be determined.  It is our contention that in this case the primary judge was correct in determining that in all of the circumstances that existed the provisions of section 90 which are said to do nothing more than reflect the common law that existed at the time of the introduction of section 90 and indeed the terms of section 90 reflect almost verbatim the principles that have been established by this Court in cases such as McDermott v The King and Lee v The King, that is, that the use of the evidence, having regard to the circumstances in which it was obtained, would be unfair.

In this case, as well as the issue involving the proper determination of appeals of this kind, there is also, in our submission, a question as to the correctness of the decision made by the primary judge.  Your Honours, can I just briefly deal with the basis on which his Honour found that it would be unfair to use the evidence against the applicant.  The background against which his Honour came to determine the section 90 issue was in large measure dominated by his Honour’s finding of fact, the finding which was effectively endorsed by the Court of Criminal Appeal that the arrangement that existed between the police and the insurance investigator to, in effect, delegate the process of investigation of the circumstances of the fire to the insurance investigator was a deliberate act on the part of the police to effectively deprive the applicant of the right which he would otherwise have enjoyed if he had been examined by the police to be properly cautioned, to understand the nature of his rights and to properly exercise his right to choose whether to speak or remain silent.

The primary judge described the arrangement that existed between the police and the insurance investigator as being highly unusual and most imprudent and one which deprived both the applicant and the community of an independent investigation into the circumstances of the fire.  In the Court of Criminal Appeal Justice Hidden observed in the application book at page 56, “It may well be that what occurred”, that is, the arrangement about the interviewing of the applicant “was imprudent, if not improper.”

HEYDON J:   You are not running a section 138, are you?

MR BYRNE:   Your Honour, section 138 has not been referred to in our submissions and it was not the subject of any attention in the court below but, as your Honours are aware, this particular topic has been the subject of significant attention by this Court in relatively recent times.  There is a case, currently judgment reserved, before the Court in which your Honours both sat of the R v Em a case which was argued before the Court on 19 April.  Having read the transcript of the argument in that matter, it does, in our submission, fall for consideration that section 138 did have a role to play in the circumstances of this case, although that is not something upon which we rely because it has not been a part of the litigation that has been involved in this matter to date. 

It was a matter which was raised but it was expressly rejected by the primary judge.  If I can refer your Honours just briefly to what he said at page 39 of the application book.  Perhaps I should refer your Honours as well to what he said at page 6 of the application book.  At the top of the page the observation was made that the other grounds of challenge to the admissibility of the interview conducted with the insurance officer included section 138 and at the end of his judgment his Honour indicated that:

it is not necessary to consider the other bases of challenge to this evidence, except to indicate that each of them had insufficient merit and would not have succeeded.

But the fact that there was what we would contend was an improper background to the conduct of the interview which produced this evidence, if not a matter strictly calling for review under section 138, was nevertheless a matter that could be taken into account as one of the factors to be assessed in determining the unfairness discretion under section 90.  That, in our submission, is really consistent with the genesis of this discretion as it was developed by this Court in cases such as McDermott and Lee where attention was given to aspects of impropriety in ‑ ‑ ‑

HEYDON J:   Also to aspects like the strength of the evidence, its reliability and seriousness of the crime.

MR BYRNE:   Certainly.  That list of factors which, as your Honour observed in the discussion in Em, is listed in section 138 but not in section 90.  We would concede or agree, with respect, that those factors are all them relevant considerations in determining the exercise of the section 90 discretion.  The fact that there was a degree of impropriety was a matter that was legitimate to be taken into account in exercising the section 90 discretion but the important factual findings that the learned primary judge made in relation to the section 90 discretion were effectively that if the police had behaved in accordance with the proper course of the investigation, then the applicant simply would not have made the interview that he did with the insurance agent.  That, in our submission, is effectively the source of the unfairness.

The nature of the discretion has been examined thoroughly by this Court and, of course, authoritatively in Swaffield and Pavic but if I might perhaps refer to what was said in the Court of Criminal Appeal citing the words of Justice Howie in the interlocutory decision as it was in Em’s Case which happened all the way back in 2003.  It is repeated at page 55 of the application book in this case.  His Honour there refers to:

It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused.  The purpose of the discretion is the protection of the rights and privileges of the accused.

In this case the right of the applicant, as he appears before your Honours’ Court, to exercise an informed and free choice as to whether he should speak or remain silent:

It . . . includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated –

The forensic advantage obtained by the Crown in this case is the obtaining of the evidence to be used against the applicant in circumstances where, if that unfairness was not present, it would not have been obtained.  So that there is, using the test that was formulated in the joint reasons of the majority in Swaffield and Pavic, there is in the circumstances of this applicant’s case, in our submission, an impugning of his right to choose whether to speak or remain silent because he was effectively deceived by a course of conduct engaged in by the police which misled him as to the true circumstances in which he was being interviewed.

He was being interviewed not by a person who was acting exclusively as an insurance investigator but by a person who was acting as an agent for the police and who proposed to give the police what he obtained from ‑ ‑ ‑

GLEESON CJ:   He was told by his solicitor, I think, that he was bound to talk to the investigator.  Was that right?

MR BYRNE:   He was not bound ‑ ‑ ‑

GLEESON CJ:   Bound in the sense that if he wanted to pursue his claim under his insurance policy.

MR BYRNE:   Exactly.  Precisely.

GLEESON CJ:   It is a fairly good example, in that respect, of the perhaps misunderstanding that can sometimes surround the concept of voluntariness.  It is an illustration of a case where somebody who was obliged, at least in the sense that I just mentioned, to answer questions was nevertheless held to have said things voluntarily.

MR BYRNE:   Yes.

GLEESON CJ:   There were plenty of other illustrations of that that can be given.

MR BYRNE:   Yes.  This is not a case of involuntariness in the sense that your Honour is referring to and I think, with respect, your Honour raised the same point in discussion in Em, that there are many circumstances in which people are compelled, sometimes by Act of Parliament, to provide information to various investigating authorities and that material may be used in other circumstances.  The position here is that the applicant was deceived as to the true circumstances that existed, as the learned primary judge found it to be, and he also found it to be the case that if that deception had not been in place, then the applicant would not have spoken and would not have provided the ultimately ‑ ‑ ‑

GLEESON CJ:   The trial judge found he would not have pursued his insurance claim.

MR BYRNE:   He did not say that.

GLEESON CJ:   That would be the corollary, would it not?  Under the insurance policy, I presume, he was obliged to answer questions if he wanted to make a claim under the policy?

MR BYRNE:   For practical purposes, yes.

GLEESON CJ:   What he said to the insurance investigator did not amount to a confession but he made some admissions.

MR BYRNE:   Yes, certainly.  The findings that the primary judge made were that if the true circumstances had been revealed to the applicant he would have been advised by his solicitor not to participate and the accused would not have participated in the record of interview with the insurance agent.  Those findings of fact ‑ ‑ ‑

GLEESON CJ:   Did the trial judge direct his mind to what would have happened to the insurance claim?

MR BYRNE:   He did not, but, in our respectful submission, that was not part of his consideration in determining the unfairness.

GLEESON CJ:   How would your client have been able to pursue a claim under the insurance policy without telling some representative of the insurance company his version of what had happened?

MR BYRNE:   I think for practical purposes, he would not have been able to, but he would have been in a position to make a choice if he had known that the insurance investigator was effectively an agent of the police investigation and he would have then been confronted with the choice

between the two and to have assessed his position, but the position, as it existed through the deception, was that he was induced to say something that he otherwise would not have said.

I am reminded, your Honours, that the insurance claim has in fact not been pursued, in any event, but that is not a matter that was dealt with in these proceedings.  The issue that, in our submission, arises here is whether this was an appropriate case for the application of the discretion under section 90.  In our submission, it was and the primary judge has not been shown to be in error.  The judgment of the Court of Criminal Appeal effectively reviews his decision without finding it to be relevantly in error.  May it please, your Honours.

GLEESON CJ:   This Court has on many occasions indicated its strong general reluctance to intervene in matters relating to an interlocutory ruling on the admissibility of evidence given prior to the commencement of a criminal trial that has not yet taken place.

In addition to the general reluctance which this Court has to intervene in matters of that nature, we are not persuaded that there are sufficient prospects of success to warrant a grant of special leave to appeal and, in particular, we are not persuaded that the Court of Criminal Appeal failed to take due account of the nature of the decision from which an appeal came to that court.

We will adjourn until 2.15 pm.

AT 12.43 PM THE MATTER WAS CONCLUDED