Kanaan v The Queen

[2007] HCATrans 403

[2007] HCATrans 403

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S378 of 2006

B e t w e e n -

MICHAEL KANAAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 11.21 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   If the Court pleases, I appear with MR H.K. DHANJI for the applicant.  (instructed by Bannister Kyriacou Nasser)

MR L.M.B. LAMPRATI, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   There is an extension of time issue here, is there not?

MR ODGERS:   Yes, your Honour.

GLEESON CJ:   What is your attitude towards that, Mr Lamprati?

MR LAMPRATI:   I object.

GLEESON CJ:   Yes, you have that extension.

MR ODGERS:   Thank you, your Honours.  The Court of Criminal Appeal accepted in this case that the only evidence that the applicant was the person who shot the victims came from Mr Rossini, thus there was no corroboration of Mr Rossini.

GLEESON CJ:   Was there not a mobile telephone found on the site and was there not a girlfriend who shaved their heads and did they not go on holidays for the week and so forth?

MR ODGERS:   There was some evidence which could be used and tended to show that he was present at the scene.  If a distinction is drawn, and we say it should be, between the evidence showing that he is one of the five people in the car and the shooter, that is the distinction I am making here.  There was no other evidence tending to show that he was the shooter.  There is no question that a warning was required to be given.

GLEESON CJ:   Who were the two who got their hairstyles changed and went off for the vacation?

MR ODGERS:   Mr Rossini and Mr Kanaan.

GLEESON CJ:   Right.

MR ODGERS:   Defence counsel asked for a traditional warning in respect of Mr Rossini, that Mr Rossini’s evidence was not corroborated by any other evidence and that it would be dangerous to convict on his evidence and the judge declined.  We submit that there are two principles upon which the common law warning is based.

GLEESON CJ:   I am sorry, can I ask you a small question of fact?

MR ODGERS:   Certainly, your Honour.

GLEESON CJ:   After one of the men involved in the fight outside the pub was so incautious as to put his head through the window of the car and make a racist comment, how many men got out of the car?

MR ODGERS:   My learned junior is saying there were different accounts.

GLEESON CJ:   I was just wondering, how many of the occupants of the car had the opportunity to drop their mobile phone on the footpath?

MR ODGERS:   As Mr Lamprati says, there was more than one version.  I think the position is that some witnesses had more than one person exiting the car.  And Mr Rossini, there was evidence from him that he was outside the car.

GLEESON CJ:   Anyway, the common account of everybody was that one man or one of the men who got out of the car gunned a number of people down?

MR ODGERS:   Not entirely common.  There was some evidence pointing to the possibility that there was more than one shooter but it would be true to say that the majority of the witnesses suggested an account that it was one person who was responsible.  If I could return to what I was submitting were the two principles upon which the common law warning is based.  The first is that the evidence of an accomplice may be unreliable, I do not need to say any more about that and section 165 plainly reflects that proposition.  The second principle is that an accomplice is peculiarly equipped by reason of his inside knowledge of the crime to embroider a false allegation with details that are true and thereby convince the unwary that his lies are the truth.

That is a quotation from a South African Case.  I put that in the reply but Baskerville itself refers to that very proposition and when one thinks about it carefully the requirement of the warning that you need corroboration, that is, evidence tending to show that the accused was the offender, is premised on the danger of relying on confirmation or supporting material that is not corroboration.  Because the accomplice is in a position to tell an account which is 95 per cent accurate because he or she was there, the fact that his account is confirmed in all of those regards will not in any significant way provide a confident or a proper reason for being satisfied that the critical allegation – in this case, who was the shooter – is to be believed.

GLEESON CJ:   Your client did not give evidence at the trial.  Was there some interview with the police that, as it were, from which you could see his version of events?

MR ODGERS:   The defence case was that he was not there because alibi evidence was led to support that proposition.  So there is no doubt that the primary defence case is “I wasn’t there” but the secondary defence case is, “You have to prove beyond reasonable doubt that if I was there I was the shooter.”  Another example, Bassam Kazzi, who Mr Rossini said was one of the other people in the car, he went in the witness box and said he was not there.

GLEESON CJ:   Was the alibi “I wasn’t there” or “I was somewhere else”?

MR ODGERS:   “I was somewhere else”.

GLEESON CJ:   “I was at a particular place”.

MR ODGERS:   Yes, and witnesses came along in support of the alibi and plainly the jury did not believe it.

GLEESON CJ:   That was possibly because your client did not give any evidence in support of the alibi.

MR ODGERS:   That may well have been a factor in the jury’s reasoning.  Your Honours, we accepted in the Court of Criminal Appeal and we accept here that it is not necessary in New South Wales under the Evidence Act to give a direction in the precise language of danger of convicting on uncorroborated evidence.  What we do submit, though, is that there is an obligation on a trial judge to warn a jury to be cautious when considering the significance of other evidence said to confirm or support aspects of an accomplice’s testimony.

Whether or not a trial judge does refer to so-called supporting evidence, it is likely that a jury will consider whether evidence that confirms parts of an accomplice’s account leads them to accept the rest of the account.  There is a danger that they will not take into account the caution that should be exercised in such a process of reasoning, the caution which is based on the proposition I advanced earlier as to one of the foundational principles behind the common law warning.  Our complaint is that the trial judge repeatedly referred the jury to evidence said to support Mr Rossini without ever at any stage warning them of the need for this caution.

GLEESON CJ:   Where was he asked to give that warning?

MR ODGERS:   He was asked to give the traditional warning, that is, it is dangerous to convict on uncorroborated evidence.  In our submission, that is sufficient to convey the proposition that you should be cautious in convicting on the basis of an accomplice where the supporting evidence is not evidence which tends to show that the accused was the shooter.  You do not need to use the language of corroboration, but to ask for the traditional warning can simply be rephrased.

GLEESON CJ:   The principle issue in the case raised by the alibi defence was whether your client was there at all.  That was the central issue in the case.

MR ODGERS:   I accept that it was an important issue.

GLEESON CJ:   Yes.  It would be a very gifted advocate who having spent most of his address telling the jury that his client was not there at all then turned to the alternative argument, perhaps he was there and perhaps his telephone was on the footpath but he was not necessarily the shooter.

MR ODGERS:   Yes, certainly, your Honour.  But, of course, this goes back to the structure of the criminal justice system and the obligation of a judge to give warnings even though they are not asked for and even if in circumstances where the defence is running its case in a particular way.

GLEESON CJ:   Yes, but it explains why trial counsel do not press judges to give particular directions in some circumstances because it would make their argument look silly.

MR ODGERS:   Your Honour, defence counsel asked for a warning.  He asked for a warning that it would be dangerous to convict on the evidence of the accomplice where it is uncorroborated.  That, in substance, is asking for a warning that you should be cautious in relying on supportive material if the supportive material does not tend to show that the accused was the shooter.  In substance, I maintain the submission that he did ask for that which we say was necessary in this case although we do not say that the precise language has to be used.  Your Honours, if I can take you to the provision of section 165.  What it requires a judge to do in evidence of this kind in subsection (2) is to:

(a)warn the jury that the evidence may be unreliable; and

(b)inform the jury of matters that may cause it to be unreliable, and

(c)warn the jury of the need for caution in determining whether to accept the evidence and the weigh to be given to it.

Now, (c) must have some work to do.  It cannot simply be a repetition of the points that are made in (a) and (b).  In our submission, particularly when one is dealing with accomplice evidence, the need for caution that is most apposite where a jury is determining whether to accept the accomplice is the caution that relates to the evidence said to support the accomplice.  Whether the judge talks about supporting evidence or the jury is simply going to be looking at supporting evidence, the caution that needs to be referred to is the caution in relying on supportive evidence to confirm, so to speak, the critical parts of the accomplice’s evidence without bearing in mind the problem or the danger that accomplices are peculiarly equipped to embroider false allegations with ‑ ‑ ‑

GLEESON CJ:   How does the prospect of embroidery relate to the mobile phone in this case?

MR ODGERS:   That particular aspect related more to the question of the presence of the accused.  I accept that whether or not he was present was an issue before the jury – I will call that an important issue – but it was not the final issue.  At the end of the day, Mr Rossini chose to allege that it was the accused who was the shooter.  There were other people there, plainly, other people in the car, three other people in the car, if he was there, as the jury found. 

Bassam Kazzi was there, according to him, and Bassam Kazzi denied being present.  Evidence that he was present, in my submission, would go only a limited way in satisfying a jury beyond reasonable doubt, or should go only a limited way, in confirming Mr Rossini’s key allegation that it was the applicant who was the shooter.  At various points the trial judge said, well, look at what is the supporting evidence.  He referred to the fact that there was confirmation that there were five people in the car.  That is supporting evidence he said.  How, with respect?  That is a detail.  It does not tend to show that the accused was the shooter. 

He referred to the fact that there was evidence that Mr Rossini said the shooter got out of the rear driver’s side of the car – I am sorry, Mr Kanaan did – and there was some confirmation that a person got out of the rear driver’s side of the car but, again, that was a detail which did not tend to confirm that the applicant was the shooter.  Other evidence which tended to show that the accused was present at the scene, while certainly confirming parts of Mr Rossini’s evidence, did not, as the Court of Criminal Appeal accepted, tend to show that the accused was the shooter.

The fundamental point that we are complaining about is that when the judge repeatedly refers to supporting evidence, including the details of what happened, and invites the jury to use that to determine whether or not they are satisfied beyond reasonable doubt of Mr Rossini’s allegation that the accused was the shooter, it is essential in compliance with section 165(2)(c) to caution the jury about that process of reasoning.

GLEESON CJ:   Judges instruct juries in the light of the battlelines as they are drawn at the trial and the battleline drawn at this trial was drawn by the defence of alibi and that is why you will find the judge concentrating on that aspect of the case.  Now, that does not mean that the other issue that now emerges at the forefront of what I will call the defence case did not have to be addressed, but it explains the way judges act and the way trial counsel act in relation to giving and asking or not asking for directions.

MR ODGERS:   Your Honour, I can only repeat what I have said, that is, a warning was asked for and I can only say that a very large part of the judge’s directions related to the issue of who was the shooter.

GLEESON CJ:   But on the question of alibi the presence of that mobile telephone was strongly supportive, was it not?

MR ODGERS:   Absolutely.  Your Honour, it is entirely understandable how the jury concluded that the appellant was present at the scene of this crime but, of course, an accused counsel has to act on instructions.  His instructions were “I wasn’t there” and that is the case he runs, but the criminal justice system requires that that is not the end of it and that there still must be a fair trial about the critical issue, the ultimate issue of whether he was the shooter.  Now, I accept that – particularly if there had been no request for any kind of corroboration direction – it would be very difficult for this applicant to complain about the absence of the caution that we say was needed in this case based on section 165 but defence counsel asked for the warning. 

The substance of it is consistent with the requirements of 165(2)(c).  It is, with respect, an issue of the greatest general importance because in Evidence Act jurisdictions the approach that is now taken is, all right, it is enough, forget the corroboration warnings, they are out the window.  All you need to do is say “Here is a witness who may be unreliable and these are the reasons and you should be cautious” and that is enough.  Then, of course, there is repeated reference to supporting evidence and that is okay because that is not a reference to corroboration, you have not used the magic word therefore there is no need to give any ‑ ‑ ‑

GLEESON CJ:   The magic word that defence counsel always want to be used is “danger” – “The judge is going to tell you it is dangerous to convict”.

MR ODGERS:   Yes, certainly, your Honour, and that is the one thing I am not contending a judge has to say in New South Wales, but what is essential in New South Wales and in the Commonwealth and the ACT is to draw the jury’s attention to the caution that they need to exercise.  There are two aspects to that.  One courts now do and that is the first caution of “there is potential unreliability”, but the other caution which is the real basis of the common law’s directions, that caution is not given.  It is enough, you say “look to supporting evidence and here is lots of supporting evidence” and leave it to the jury to determine whether or not, given the potential of the unreliability of this witness, they think the supporting evidence solves the problem without cautioning them in a way that we say should have occurred in this case.

I am reminded, essentially, we may be in Pemble territory here about obligations of trial judges and your Honours appreciate.  But I am really trying to point to a general issue here which is something that ultimately this Court, with respect, will have to determine, which is, is a reference to looking for supporting evidence without any qualification, without any caution of the type found in the common law warning, is that something perfectly legitimate under the Evidence Act?  In my submission it is not.  It is of great importance that it may be made clear that it is not.  The point was raised appropriately or sufficiently by the application for a traditional warning.  The judge referred to supporting material which was details of the offence.  In my submission, there should be a grant of special leave.

GLEESON CJ:   Thank you, Mr Odgers.  We do not need to hear you, Mr Lamprati. 

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

We will adjourn for a short time to reconstitute.

AT 11.41 AM THE MATTER WAS CONCLUDED