Kallis v The Queen

[1993] HCATrans 319

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B43 of 1993

B e t w e e n -

WILLIAM KALLIS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1993, AT 12.33 PM

Copyright in the High Court of Australia

Kallis 1 26/10/93

MRS. DI CARLO:  Your Honours, I appear for the applicant.

(instructed by Baker Johnson & Partners)

MR R.N. MILLER, QC:  May the Court please, I appear for the

respondent. (instructed by Director of Public

Prosecutions (Queensland))

MASON CJ: Yes, Mr Di Carlo.

MR DI CARLO:  Thank you, Your Honour. This is an

application by the applicant, Mr Kallis, in respect

of section 668E(l) of the Criminal Code.

The argument is simply this: on appeal to the

Court of Appeal, Their Honours found that there was

prejudicial material, or that the material that

went before the jury could have easily been excised

and that it was in fact - - -

MASON CJ:  And should have been excised.

MR DI CARLO:  And should have been excised. Can I go as far

as saying that at least one of Their Honours on
appeal said, "It was like taking the policeman into

the room with the jury", and the comments about it

being excised, and it should have been excised,

were very strong by at least His Honour

Mr Justice Ambrose and His Honour Mr Justice Pincus

with whom Her Honour Justice White concurred that

they should have been excised.

They were clearly a case where I as the

defence counsel chose not to call Mr Kallis, having

had last say. That was superseded because they

then walk into the jury room not only with the

prosecutor's last argument, but that supported by

the arguments of the police in that jury room to

the effect, "That sounds like rubbish", or "We

don't believe you", and His Honour did nothing to

cure that because on page 51 of the record, unlike

in Melrose which I will refer Your Honours to, he

says: 

Now, during the records of interview on tape

that have been played to you various comments

or opinions are made by the two police

officers in interviewing the accused. Now,

any comments or opinions expressed by the

police officers should be treated by you as

irrelevant.  You are concerned with the

explanations offered by the accused. You are

not concerned with the opinions or the

comments made by the police officers.

That simply does not go far enough, in my

submission, to cure his defect.

Kallis	26/10/93
TOOHEY J:	Was there any application for further directions?

MR DI CARLO: There was an application for further

directions but it related to the point at the

bottom of page 56. His Honour said:

Members of the jury, you might think that in the month of October 1991 the accused must

have been one of the unluckiest men in

Brisbane. Not once but twice in that month

some villain brought a stolen car to his

premises. Each car had the ignition barrel

drilled out. In respect of the first car left

there, the Pajero, the employees of the

accused were silly enough to allow this man to

come back and strip the Pajero -

So, in effect, he gives them a warning which does

not go far enough, and then he enhances the case of

the Crown by going one step further and saying,

"Well, how ridiculous is this story".

MASON CJ: Well, it is ridiculous, is it not; absolutely

ridiculous.

MR DI CARLO:  In my respectful submission, that is a matter

for the jury, and that is the application that I

make. It is my submission that section 668 -

TOOHEY J:  I am sorry to interrupt you, but I am still not

clear what redirection was sought. You say it was

not in respect of the matter the subject of this

application.

MR DI CARLO:  No, it was in respect of that comment by the

judge.

TOOHEY J:	What was His Honour asked to do, withdraw it?
MR DI CARLO:	To withdraw it, yes, to redirect the jury that

his comments about being the unluckiest man in

October 1991 were inappropriate and to withdraw it,

and he refused to do so.

DAWSON J: Where does that appear? At page 63 it appears

there are no applications for redirections.

MR DI CARLO:  It was made after a luncheon adjournment,

Your Honour. He retires to chambers and upon

return - it does not appear to be recorded,

Your Honours, perhaps the tapes were turned off.

DAWSON J:  Anyway, it does not matter because it is not the

point.

MR DI CARLO:  It is not relevant to the point, but quite

clearly th~t is what happened. I asked for a

Kallis 26/10/93

redirection on that point. Whether the tapes were

switched off or not, I do not know.

TOOHEY J: But the point is that you did not ask for a

redirection on the matter of which you now

complain.

MR DI CARLO: Well, I asked him to exclude it quite clearly,

and he chose not to.

TOOHEY J:  I am sorry, I must be missing something. I

thought you said that you asked His Honour to

withdraw the comments he made about the applicant

being the unluckiest man in Brisbane.

MR DI CARLO:  I did.

TOOHEY J:  My question earlier was: was His Honour asked

for any further direction in regard to the comments
made by the police officers during the course of

the interview, and to that I thought you said the

answer was no.

MR DI CARLO:  No. I asked His Honour to exclude that

material on the basis that it was either

prejudicial and not sufficiently probative to

outweigh the prejudicial value.

DAWSON J:	Did you ask for a redirection in relation to the judge's summing up where he referred to the accused
being one of the unluckiest men in Brisbane?
MR DI CARLO:	Yes, I did.
TOOHEY J: That was not my question.	Can I get myself out

of this hole in which I appear to have been dug.

This application is brought on the basis that

certain remarks made by the police during the

course of the interview should have been excluded.

His Honour was asked to exclude them. He refused

to do so. But in respect of the direction which he	then gave, having refused to exclude that aspect of
the interview, was His Honour asked to point out in some more extensive way that the jury should not pay regard to the comments made by the police
officers?

MR DI CARLO:  No, I did not ask His Honour to enhance his

comments at page 51. His Honour made comment at

page 51. I did not ask him to enhance those,

although I did make comment which I cannot recall,

I am sorry, Your Honours.	I did not ask him to
enhance that.	He went so far and I did not see it
upon me to ask him to go further at that time.	No,
I cannot say I did.

Kallis 26/10/93

The real point in this case, and perhaps if I

get to it, is this, that the rule in respect of

section 668E(l) is that unless there is a

substantial miscarriage of justice, as Your Honours

well know, the proviso can be applied. It is my

submission that that flies - it has, in effect,

stood for some time, but that flies in the face of

Reg v Doney, and I have a copy for Your Honours of

Reg v Doney.

DAWSON J:  I am sorry, what flies in the face of

Reg v Doney'?

MR DI CARLO:  The provision in section 668E. I will explain

that further to you in a minute, Your Honours.

MASON CJ:  The provision must prevail if it flies in the

face of Reg v Doney.

MR DI CARLO: Well, it is inconsistent in the sense that the

authorities on the provision, perhaps, fly in the

face of Reg v Doney, because if one looks at

Reg v Doney, in particular at the bottom of

page 214 and the top of page 215, it says:

It follows that, if there is evidence

(even if tenuous or inherently weak or vague)

which can be taken into account by the jury in

its deliberations and that evidence is capable

of supporting a verdict of guilty, the matter
must be left to the jury for its decision.

Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if

there is a defect in the evidence such that,

taken at its highest, it will not sustain a

verdict of guilty.

What I am intending to submit, Your Honours, is

this, that you have an opposite situation here. In

one sense a trial judge is instructed that no

matter how weak and tenuous a case is, provided

there is something there, he cannot take it away

from the jury, yet the authorities on 668E are not

clear enough or have not been defined sufficiently
enough, and for that reason it is important to

define it sufficiently enough, to show whether the

same situation exists there. If Their Honours

said, after having read all that material, "Yes,

this was prejudicial, it should have been excised",

and it then was not excised, but we say that the

jury without doubt would have reached the same

decision, then it is my submission that that flies

in the face of the authorities on the

interpretation of 668E. In other words, that it is

unfair, and 668E should be interpreted clearer, so

that the Court of Appeal knows exactly when 668E

should be applied, and it should have some

Kallis 26/10/93

consistency, so that in one case you do not say a

trial judge cannot take something away from the

jury, no matter how weak and tenuous and so on and

so forth it is.

TOOHEY J:  You are not talking about taking a case away from

the jury; you are talking about the admissibility

of evidence basically, are you not? I mean, your

argument was, and I can see the force of it, that

comments made by the police officers during the
interview should have been excised from the record

of interview. Now, the trial judge declined to do

so and he may have been wrong in declining to do
so but if, at the end of the day the court is

satisfied, in this case the Court of Appeal, that

no miscarriage of justice had actually occurred, then that is a classic case for the operation of the proviso, and the evidence is just overwhelming,

is it not?

MR DI CARLO: In my submission, it is not. In my

submission, the evidence is such that it could have

gone to a jury and I argue that on the basis that

there was a number of charges that were dismissed

by the jury. So that those that did go to the jury

and those considered in one respect were dismissed,

so there was always a possibility open that the

jury, without that other material, may have

dismissed the action. You see, His Honour

Mr Justice Connolly in Melrose - I am sorry, I did

not provide a copy for Your Honours, but at

page 574 - - -

TOOHEY J:  What is the citation?

MR DI CARLO:  (1989) 1 Qd R 574 half-way down the page. It

says:

It is against this background that I come

to the question whether it is a proper case to

apply the proviso to s 668E(l). Where

evidence has been wrongly admitted the

principle, as I understand it, is that one

must be able to say that, in the absence of

that evidence the jury would, without doubt,

have convicted.

It is my submission that Their Honours in the Court

of Appeal have not gone that far and said that the

jury without doubt would have convicted. That is

supported by His Honour Mr Justice Shepherdson.

His Honour Mr Justice Vasta - - -

TOOHEY J:  Just a moment. Take the case in hand and look at

what Mr Justice Ambrose said on page 80, line 25:

Kallis 6 26/10/93

it is my view that even had the material been

excised from the recorded interview, no fair

minded jury upon the whole of the balance of

the evidence placed before them and having

regard to the explanations given by the

accused in that interview, would have had a

reasonable doubt as to his guilt.

MR DI CARLO:  Would have had a reasonable doubt.

TOOHEY J: But His Honour is saying no jury would have had a

reasonable doubt, and that is a view that was

shared in by the other members of the court.

MR DI CARLO: His Honour Mr Justice Connolly, with whom

Mr Justice Shepherdson agrees, says, "without a

doubt have convicted", that they would without a

doubt have convicted.

MASON CJ: But that is convicted on the usual standard of

proof, beyond a reasonable doubt.

TOOHEY J:  It is only that the matter is expressed in

different language in the two judgments, but the

effect of it is precisely the same.

MR DI CARLO:  It is my submission that it is contrary.

MASON CJ: Well if it is, if it is contrary,

Mr Justice Connolly is wrong.

MR DI CARLO:  Your Honours, the submission - I cannot put it

much clearer than that. It simply is this, that if

the court intends to take one approach as it does

in Reg v Doney in respect of when a trial judge can

take something away from a jury and when he cannot,

and that is that no matter how weak or tenuous or

how vague it is, he cannot take it away from a jury no matter how weak, tenuous or vague it is, then it

seems to me that in fairness and so that there is

less prejudice to the accused, then 668E should be

interpreted more clearly so that one knows

importantly once and for all how far Their Honours

have to go before saying quite clearly the jury

would have convicted without a doubt anyway.	I am
simply suggesting that His Honour was right.

It has to be more than beyond a reasonable

doubt, it has to be without a doubt, in light of

Reg v Doney, that the Court of Appeal had to have

no doubt whatsoever, and they could not have

possibly gone and not had any doubt whatsoever
having regard to the fact that two of the charges

were dismissed, or the circumstances of aggravation

of the charges were dismissed and there were three

stories, or at least two stories, throughout the

interview which were other possibilities. One

Kallis 26/10/93

possibility was that this man that he had sacked
previously, and who had been seen there, my client

is working at a different premises - he sacks

somebody, three days later this person is seen

there and all of a sudden these cars appear

mysteriously. That is one story that could have

been considered by the jury and accepted. There

was another story in respect of the paint and the

fact that the key that fitted in the hole - if the

defendant or the accused were to supply one key

that would only fit one hole, the ignition, and he

would need other keys for the rest of the car.

They were all matters, with respect,

Your Honours, that could have gone to the jury, and

the jury could have decided upon. But, using the

test that, in my submission, is not clear enough,

Their Honours have reached the view that they would have convicted anyway, but the weight of the

material and the comment by Justice White and

Mr Justice Ambrose, that it was like taking the

policeman into the room with the jury, surely that

is sufficient to show that the accused suffered

substantial prejudice. If they have got the police with the jury in the room telling them, "Look every

time - - -

DAWSON J:  We are going over the same ground, are we not?

MR DI CARLO:  Yes, we are, Your Honours, I apologize. I

really cannot take it much further than that - just

to say that it is an important point because it

needs to be clarified more specifically along the

lines as Doney was. That is quite clear and

specific and it is applied regularly. Unless a

case is vague, tenuous or weak, then the trial

judge cannot take it away. Well, 668E(l) is not

clearly defined and I am submitting to Your Honours

that it should be defined on the basis espoused by

Mr Justice Connolly, that there be no doubt in

their minds, and that should not be done lightly.

MASON CJ:  I think that message has been received,

Mr Di Carlo.	I do not think you need to repeat
that again.

MR DI CARLO: That is as far as I can take it, Your Honour.

MASON CJ:  Thank you. The Court need not trouble you,

Mr Miller.

Kallis 8 26/10/93

The Court is of opinion that the decision of

the Court of Criminal Appeal is not attended with

sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

AT 12.54 PM THE MATTER WAS ADJOURNED SINE DIE

Kallis 9 26/10/93