Holzinger v The Queen

[2017] HCATrans 160

[2017] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B9 of 2017

B e t w e e n -

WERNER LEO HOLZINGER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 18 AUGUST 2017, AT 10.06 AM

Copyright in the High Court of Australia

MR T. KASSIMATIS, SC:   May it please the Court, I appear with MR C.K. WAREHAM for the applicant.  (instructed by Galbally & O’Bryan)

MR G.P. CASH, QC:   May it please the Court, I appear for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

MR KASSIMATIS:   If the Court pleases, the question of general importance which this application raises ‑ ‑ ‑

KIEFEL CJ:   Do you need an extension of time, Mr Kassimatis?

MR KASSIMATIS:   I beg your pardon, yes.

MR CASH:   Not opposed, your Honour.

KIEFEL CJ:   Yes, you have that extension.

MR KASSIMATIS:   The question of general importance that is raised is one that is the subject of division between the States.  There is, in one category of the States comprised inter alia of Queensland, Western Australia and more recently South Australia, jurisprudence to the effect that admissions which are made by an accused person to police, or out‑of‑court statements even when strictly speaking part of a mixed statement, may not be the subject of admission at trial because it is said that the overall flavour of the admission or the record of interview or the out‑of‑court statement is either self‑serving or its essence is self‑serving or the out‑of‑court statement is, in large part, self‑serving or exculpatory.

This is in stark contrast to the way that mixed statements are treated in, for example, New South Wales and Victoria where a different approach obtains, in two ways.  One is the threshold for what amounts to a mixed statement is considerably lower and there is an additional or a parallel course by which even self‑serving statements, wholly exculpatory out‑of‑court statements are admitted into evidence. 

These issues have not escaped consideration by this Court.  Justice Hayne in Mahmood v The Queen in considered obiter suggested that mere presence and opportunity was sufficient to render a mixed statement admissible and went on to say that in the ordinary course a prosecutor in possession of a statement that contained an admission as to presence and opportunity was duty bound to tender that statement.

KIEFEL CJ:   That was a rather different case on its facts, was it not?

MR KASSIMATIS:   It was, your Honour.

KIEFEL CJ:   I mean the prosecutor was acting unfairly.

MR KASSIMATIS:   He was and the plurality confined itself to dealing with that question.  In my submission, the remarks made by Justice Hayne, which were in response to supplementary submissions invited by the Court, were stated at a greater level of generality.

KIEFEL CJ:   And in relation to the tender of part only of a statement.

MR KASSIMATIS:   Well, again, in my submission, a proper reading of his Honour’s obiter dicta is that it applies to self‑serving statements – I beg your pardon, to mixed statements simpliciter.

KIEFEL CJ:   Do you not have a threshold problem in that this argument was not taken in the Court of Appeal?

MR KASSIMATIS:   That is an obstacle.  It is, however, in our submission, given that the point was taken at trial, not an insuperable obstacle.  Without wanting to be ‑ ‑ ‑

KIEFEL CJ:   This Court has said many times that it should have the benefit of the Court of Appeal having dealt with a point such as this.

MR KASSIMATIS:   Yes.

KIEFEL CJ:   Particularly on a point of criminal practice and procedure.

MR KASSIMATIS:   Certainly.  I do not want to be flippant about it, but it was better that it was taken in trial and not on appeal, rather than the other way round.

KIEFEL CJ:   From whose point of view?

MR KASSIMATIS:   Yes, well, from mine.  It is understandable why the point was not taken in the Court of Appeal.  I do not want to belabour it.

KIEFEL CJ:   What – because it was too difficult in face of the authorities?  Why?

MR KASSIMATIS:   The authorities here are longstanding and point one way.  That might explain why the point was not taken.  In any event, we say this has now – the state of law has been such that there is disparity between the States and there has been for decades. 

KEANE J:   How does your case deal with the point that, if you are right, it basically means that any statement taken by the police must be tendered by the prosecution?

MR KASSIMATIS:   Any statement taken by police ‑ ‑ ‑

KEANE J:   Any record of interview must be tendered.

MR KASSIMATIS:   The easier pathway is any statement taken by police which contains admissions should be tendered by police, unless there are some positive reasons not to do so.

KEANE J:   Well, how about the positive reason that the prosecutor thinks that the statement is a pack of lies?

MR KASSIMATIS:   That would be insufficient, in my respectful submission, if it contains ‑ ‑ ‑

KEANE J:   So that, if you are right, what we have previously understood of the extent of the discretion of the prosecutor in presenting the Crown’s case would have to be radically revised?

MR KASSIMATIS:   It would have to be rendered consistent with the approach taken in New South Wales and Victoria or it would have to recognise that the discretion is no different than it is now, but the discretion can no longer accommodate out‑of‑court statements that have in them admissions against interest.  So at present one can have a mixed statement, the flavour of which, or the essence of which is exculpatory and a prosecutor retains a discretion not to utilise those admissions and in doing so precludes the triers of fact from access to the accused’s exculpatory account.

Now, a shining example of the injustice that could work the other way is, for example, Middleton v The Queen in Western Australia where the accused was found standing above the body of his dead wife.  The police came along and he says, “I killed her, but it was self –defence”.  That evidence was not tendered and although there was found to be a substantial miscarriage of justice, the Court of Appeal said that it was open to the prosecutor, notwithstanding that glaring admission, an admission as to actus reus, not to tender that statement. 

There are two limbs to our argument.  The first limb is that – the law does not have to change.  The law regarding duties owed by a prosecutor does not have to change.  It just needs to get rid of cases where, if admissions are present in a mixed statement, a prosecutor nevertheless retains the discretion not to tender the mixed statement.

The harder problem and the more difficult submission is to have this Court consider whether at common law it identifies another or a parallel pathway to admissibility, and that is the practice that obtains in Victoria and New South Wales.  As to the latter, the parameters of the discourse are really no better summarised than by Justice Edelman as he was in 2013, a Trial Division judge of the West Australian Supreme Court. 

The medium neutral citation for that is R v Lovett [No 3] [2013] WASC 102. This was a ruling by his Honour, dealing with evidence of a forceful arrest of an accused and whether it was admissible in a case where the record of interview was tendered. So it was to give effect to the record of interview or to shed light upon the nature of the record of interview. His Honour says, at paragraph 35, better than I can:

At common law, evidence of out of court, hearsay, statements by an accused person have generally required an exception to the rule against hearsay before they are admissible.  A common basis for admitting an out of court interview with an accused person is that the interview contains admissions.

His Honour then goes on to state the definition of “admissions” in Cross:

This definition incorporates the understanding that a ‘statement’ for the purposes of an admission means all things ‘stated’, whether by words or conduct. 

An implied admission might not be readily apparent from an interview.  But, as the Supreme Court of the United States said in Miranda v Arizona, many statements which are intended to be exculpatory may raise inculpatory matters.

Then he cites Wigmore:

In Miranda the United States Supreme Court considered that ‘[i]f a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution.

This is our point, with respect:

It might be, however, that this approach does not reflect Australian law.  In R v Su the Victorian Court of Appeal, in a joint judgment –

and that was Justices Winneke, Hayne and Southwell:

explained a different basis for admitting evidence of an out of court interview with an accused person.  Speaking about out of court interviews, the Court . . . said that ‘[s]uch material is traditionally led by the Crown, whether incriminating or not, both as a matter of fairness and to show the “first opportunity” response by the accused to the allegations made against him by his accuser.

Moving on down to 38, his Honour said:

It is not necessary to decide whether, or the extent to which, this ‘traditional practice’ in Victoria is an independent rule of admissibility, as it appears to be in Canada, or, if it is a rule of general practice where the tender of the interview is admitted because there is no objection, the extent to which that practice operates in this State.

KEANE J:   But, Mr Kassimatis, that is a statement as to the circumstances in which the document tendered by the Crown may be received.  It does not suggest in the slightest that the Crown is obliged to tender the document.

MR KASSIMATIS:   No.  That is why I say that is the more difficult argument.

KEANE J:   Well, so far it is an argument for which there seems to be no authority at all, if that is the best statement you have.

MR KASSIMATIS:   Well, the better statement perhaps is again a statement of practice by Justice Hunt, Chief Judge at Common Law, as he was, in R v Keevers, which is set out in Rymer (2005) 156 A Crim R 84, set out at paragraph 33 where his Honour says, quoting Justice Hunt:

“The fact that the investigating police officers had put the prosecution’s versions of the facts to the accused, and had given him the opportunity to answer them and to give his own account of the events in question, was relevant to the fairness of their conduct . . . As was said by this Court in an earlier case, it has long been common practice to adduce evidence of such conversations because, if it were not given, the jury would be left to speculate as to whether the accused had given any account of his actions when first challenged by police -

Now, with respect, that does raise the spectre of a prosecutor’s duty.  So, on the one hand ‑ ‑ ‑

KEANE J:   One might have thought it raises the question of the unfairness of the police putting the prosecution case to the accused rather than simply asking for the accused’s account.  There is a body of law to the effect that confessions or admissions extracted by a process of cross‑examination by the police are, for that reason, unfair ‑ ‑ ‑

MR KASSIMATIS:   Sure.

KEANE J:   ‑ ‑ ‑ and be excluded on that ground, not to be admitted on that ground.

MR KASSIMATIS:   No, no, but if presented with an opportunity to give one’s account one provides a mixed statement.  In Victoria and New South Wales the threshold is very low.  They go in.  In Queensland, inter alia ‑ ‑ ‑

KEANE J:   They do not go in.  The Crown tenders them and it tenders them either because it chooses to in making its case or because there is a view taken that it is obliged to as a matter of fairness.  Now, you really need to argue for the second basis, do you not?

MR KASSIMATIS:   Yes.

KEANE J:   You need to argue that a failure on the part of the Crown to do so amounts to a miscarriage of justice.

MR KASSIMATIS:   Yes.

KEANE J:   In relation to that - is there some clear statement of authority in relation to that proposition?

MR KASSIMATIS:   With respect, in Victoria and New South Wales the statements are not necessarily admitted only because fairness dictates that they are admitted.  They are admitted – they might be tendered as a matter of fairness, but they are admissible because they are mixed statements.

KEANE J:   No, they are admissible because they contain admissions against interest.

MR KASSIMATIS:   Yes, they are admissible because they contain admissions against interest.  In other States, including Queensland and Western Australia, the same type of mixed statements containing admissions against interest do not necessarily render those mixed statements admissible.  That is the division that exists between the States.

KIEFEL CJ:   Your argument assumes the correctness of one approach over the other?

MR KASSIMATIS:   Yes, and my argument assumes, first, the capacity to resolve the disparity and, two, the preference of one approach over the other.  Looking at it the other way round demonstrates the unfairness.  If, in Queensland, the Northern Territory or Western Australia, records of interview - or prosecutors are given a discretion not to tender statements even though they contain admissions against interest, why does a suspect ever talk to the police?

KEANE J:   He is not obliged to.

MR KASSIMATIS:   He is not obliged to, but why would he ever do so?
I note the light is on.

KEANE J:   No, it is only the yellow - you have a few more minutes.

MR KASSIMATIS:   Thank you.  Why would he ever do so if, to quote Middleton’s Case again and the judgment of Justice Pidgeon, if telling the police, in a case of rape or an allegation that is put that a suspect raped someone, “Yes, I had intercourse with her, but it was consensual” nevertheless results in the prosecutor retaining a discretion not to tender the interview, we ask rhetorically why would you ever talk to the police?  All you are doing is providing the prosecutor with a script of what you are likely to say when you are ultimately compelled to enter the witness box.

The first step is an adjustment to the way admissions against the interests are viewed in at least four of the States in the Commonwealth.  That is the first step.  To that extent, we rely upon Justice Hayne’s judgment in Mahmood where it would appear to be the case that his Honour says that in the ordinary course opportunity and presence are enough.

Here they would said to be mere concessions of facts which might form part of a largely self‑serving or essentially self‑serving statement.  But if that is so, I mean, how far does one go?  Must the record of interview and out‑of‑court statement be damning before it is admitted?  With respect, that cannot be the common law.  Those are the matters.

KIEFEL CJ:   We will not require your submissions, Mr Cash.

The point sought to be agitated on appeal was not taken in the Court of Appeal.  The interests of justice do not require that the applicant be permitted now to pursue it.  Any appeal has insufficient prospects of success. Special leave is refused.

The Court will adjourn to reconstitute.

AT 10.26 AM THE MATTER WAS CONCLUDED