Kheir v The Queen

[2015] HCATrans 236

[2015] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M65 of 2015

B e t w e e n -

ALI KHEIR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 2015, AT 12.58 PM

Copyright in the High Court of Australia

MR N. PAPAS, QC:   May it please the Court, I appear for the applicant.  (instructed by Access Law)

MR D.A. TRAPNELL, QC:   May it please the Court, I appear with my learned friend, MS K. ARGIROPOULOS, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

NETTLE J:   Yes, Mr Papas – by the way, Mr Trapnell, do you oppose the extension of time application?

MR TRAPNELL:   Yes, your Honour.

NETTLE J:   Yes, very well, thank you.  Yes, Mr Papas.

MR PAPAS:   Maintain that but rely on material within the brief – sorry, within the paperwork to set out the factual circumstances.  In the end, if it is a matter of sufficient importance or a case that has any, if we can use the vernacular “legs”, then, with respect, there is nothing in the material to suggest that the applicant himself has sat on his hands.  He gave instructions in a timely manner.  The lawyers unfortunately took their time and for various reasons and in my submission this would be – if there is a proper basis to consider that this is a matter of importance that justifies a grant then the application for leave to appeal out of time should fly, if it please your Honours, and unless you want me to take that any further that seems to be the principles.

NETTLE J:   Let us get to the substance of it, Mr Papas.

MR PAPAS:   Your Honours, it is an unusual case and I hesitate to suggest there is very little between the parties but when one looks at the reply of the respondent, when one looks at the judgment of the Court of Appeal and then one looks at the cases that deal with questions, both with section 78 but specifically with section 79 dealing with sections 78 and 79 of the Evidence Act, there is a case that will very soon need to go to the Full Court to be given leave to clarify whether Honeysett, which has reserved the question – I will not necessarily say that it has reserved the question but Honeysett has effectively confirmed that right now judges around the country are permitting ad hoc evidence to be given as section 79 evidence, relying on Butera and Menzies which are common law cases.  I hope I have not butchered that point by going around it but your Honours will understand that ‑ ‑ ‑

NETTLE J:   Yes, I think we get the thrust of it, Mr Papas.

MR PAPAS:   So, in other words, it is there.  Is this the right case?  In my submission, this is the right case for a number of reasons.  Firstly, the Court of Appeal applied the law consistently with the common law, application book page 231, paragraphs – it starts really at page 230, paragraph 55 of the Court of Appeal judgment where their Honours adopt the rationalisation and description of the evidence as being an:

‘ad hoc’ expert was first recognised by the New Zealand Court of Appeal, in R v Menzies. 

Paragraph 56:

Menzies was endorsed by the High Court in Butera –

and then paragraph 57:

The High Court returned to this topic recently, in Honeysett v The Queen but did not need to express a concluded view.

It is actually, and I do not want to spend long on this, but in Honeysett at paragraphs 47 and 48, specifically paragraph 48, their Honours there in the joint judgment made the point that in Butera:

a person may ‘be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc’ –

but noting the Butera and Menzies were dealing very much with the transcript point, the transcript being prepared by someone who has listened to tapes over and over again thereby qualifying them to produce the transcript.  Their Honours say in the middle of paragraph 48:

The particular problem that they addressed is the subject of provision under the Evidence Act. 

Now, of course, that is the documents section in the Evidence Act, section 48.  Indeed, section 48(1)(c) specifically deals with the transcript issue.  So on one view the common law was dealing with facilitating the provision of a transcript by having an ad hoc expert listening over and over again.  That might not be the end of the question but that leaves, in my submission, a very real question which their Honours then said as follows:

Whether the New South Wales Court of Criminal Appeal is right to consider that the repeated listening to an indistinct tape recording or viewing of videotape or film may qualify as an area of specialized knowledge based on the listener’s, or viewer’s, experience does not arise for determination in this appeal. 

That being Honeysett.  Then their Honours in the footnote make the point that we do have all these other cases which might be said to indeed identify difference of approach between Victoria and New South Wales in respect of one small part of it - Tang, Butera, Leung and Li.  So, your Honours, in simple terms this case, I submit, does warrant a grant of special leave.

NETTLE J:   Mr Papas, does the fact that defence counsel at trial objected to the tender of the record of interview in any way bear upon the issues that would have to be considered?

MR PAPAS:   Yes, and can be explicable this way.  If it is section 79 evidence, and that is how it has been admitted, then if one applies the principles that applied in Makita as the plain reading of section 79 the jury needs to have a capacity to identify what it is that the expert is giving.  In this case, his Honour Judge Chettle gave an unremarkable charge and told the jury that they could make their own minds up.

NETTLE J:   Having heard the accused in the dock.

MR PAPAS:   Two words ‑ ‑ ‑

GORDON J:   He called out from the body of the court.

MR PAPAS:   Yes, two or three words – “It is not my voice” from the body of the courtroom.  In my submission, it does not help him but the point of principle question if we have an expert who is purporting to reflect an opinion based on having a specialised knowledge brought about by repeated listening and expresses an opinion by reference to – well, we would have to describe as – I have just lost the word, but the record of interview where he is using that as the sample then is not that document to be put before the jury.  Now, the objection ‑ ‑ ‑

NETTLE J:   You are the ones that kept it out, how is that to be dealt with?  You cannot have it both ways, surely.

MR PAPAS:   The effect of keeping it out would have been to have kept the section 79 evidence out effectively because of course ‑ ‑ ‑

GORDON J:   That is not the way the Court of Appeal addressed it.  They said it could have been dealt with on the basis that it could have been leading and the judge could have given the usual direction about a “no comment” interview which is de rigueur. 

MR PAPAS:   Yes, that is so.  Yes, I accept that.

NETTLE J:   It was only a 137 exclusion anyway, was it not?

MR PAPAS:   It was; it was.  The difficulty would be, of course - and I am not sure whether it was taken sufficiently down below for me to confidently stand before your Honours and say the use of a ‑ ‑ ‑

NETTLE J:   Let us say we were to take the case.  We had decided that it was a 79, what is then to be done?

MR PAPAS:   A retrial.  This is why I was submitting ‑ ‑ ‑

NETTLE J:   Would not the answer be that if it were a 79 the evidence was in and you were the ones that kept out the facts so that much, as it were, was to be widened.

MR PAPAS:   If it is capable of being used as ad hoc evidence.  That is the point, is it not, though?  There is a threshold question. 

NETTLE J:   Of course there is - just making the assumption for the purpose of testing whether this is an appropriate vehicle to decide the point.

MR PAPAS:   Understood, your Honours.  In my submission, the consequences of the objection at the first trial means that if it was ad hoc expert evidence appropriately given then the accused had deprived themselves of the proper attack by seeking to exclude the material.  If it is not ad hoc expert evidence, so if we could persuade a court of appeal, sorry a High Court should I say, a Full Court, that ad hoc expertise truly considered pursuant to the provisions of section 79 requires that the evidence of this sort have some characterisation that does not allow a police officer by repeated listening to give that evidence then it is not affected. 

So, in other words, our argument relies on the proposition that it could never have been given, that the only way this evidence could have been given is perhaps using the Smith video case analysis of a police officer identifying video of alleged offenders.  I think that the law is reasonably settled that that is not capable of ‑ ‑ ‑

NETTLE J:   It was not capable in Smith because it was not utile and it was not utile because the jury were in as good a position as the so‑called expert.  Now, that is not the position here, is it not?

MR PAPAS:   Why would it not be, with respect?  That is I suspect where I am getting to.  If there is a series of telephone calls, in this case, important evidence - your Honours will note that in the charge his Honour the trial judge spent quite a bit of time detailing the evidence to the jury.  The applicant resisted the proposition that it was his voice.  He made that argument to the jury, objected to the reception of the evidence, asserted that the telephone was not his.  He took that point.

So, in other words, it is important evidence and because it was a fact in issue that is really how it is being put as to whether he did or did not have the phone, the voice identification became an important question.  The officer, as I understand the material as best I can follow it, did not speak Arabic.  There was some Arabic language.  The jury would have been in just as good position ultimately to consider whether that was the applicant’s voice, it being a fact in issue ‑ ‑ ‑

GORDON J:   If they had had the record of interview.

MR PAPAS:   If they had had the record of interview.  The strategic argument being run by the – and, your Honours, I notice certainly a number of the other cases do not want counsel coming up here and taking different strategic approaches but in this case it was an objection to the voice identification per se, it should not be done.  They opposed the tendering of the records of interview because each of the accused made a “no comment” record of interview. Thereby nothing that was contained within the records of interview was admissible.

The secondary purpose of using those records of interview to provide a basis for voice comparison would ultimately not have been able to have been resisted if in application of what we say is the law the ad hoc expertise – I will put it around the other way.  If I am right and if it is not ad hoc expertise and if Butera is to be looked at as only common law then that evidence could never have been given in that form.  So that is the point.  If, though, it does go back for a retrial then the law will be that if it is not being used for any purpose other than for giving the jury the opportunity to compare it, then directions will be sufficient. 

NETTLE J:   Perhaps could I just ask you to look at page 250 of the application book, please, at the draft notice of appeal?  What exactly is the point that is sought to be made in ground 1?

MR PAPAS:   The Court of Appeal having considered that this matter would have been better dealt with as a recognition case or, sorry, not even a recognition case, a section 78 case, were left with, in my submission, in the particular facts of this case a risk of a miscarriage of some substance to the extent that where ‑ ‑ ‑

NETTLE J:   Let me just stop at that point.  Does ground 1 assume for all purposes that it was admissible under 78 subject to exceptions for injustice that might result?

MR PAPAS:   It is not presuming that, no.

NETTLE J:   Can I ask you more specifically, is it contended on behalf of the applicant that neither section 78 nor 79 were applicable?

MR PAPAS:   Yes. 

NETTLE J:   So, the first ground would have to be that the Court of Appeal erred in concluding that either of those sections was applicable?

MR PAPAS:   Correct.  If it is not clear it should have been made clear and yes we do maintain that section 78 when properly construed has a number of different features to it.  I am not sure if your Honours probably have not had the chance to read Mr Odgers’ footnotes and discussion on section 78 but at least the Court of Appeal has made reference to part of what the Odgers’ evidence book talks about it but there seems to be a real question about how section 78 is to be applied by reference to comparison between Leung and Lithgow, Leung and this case ‑ ‑ ‑

NETTLE J:   Is it any more than this, if this notice of appeal were reformulated to be a proper notice of appeal the first ground would be that the Court of Appeal erred in holding that section 78 was applicable?  What would the second ground be?

MR PAPAS:   That – if your Honour would permit me to go back to 250?  It should be more specifically drafted to specifically plead the argument that ad hoc repeated listening of – specifically the question as articulated in Honeysett ‑ ‑ ‑

GORDON J:   So, your principal ground number 2 is that no repeated listening of telephone calls can constitute ad hoc expert evidence for the purposes of 79?

MR PAPAS:   Correct.

GORDON J:   If you were unsuccessful in persuading the High Court of that proposition then there would be no retrial.  In other words ‑ ‑ ‑

MR PAPAS:   That, with respect, is – look, it might be that we can mount a nice argument about the use of a record of interview, I think not because of the discussion we have already had.  It may be that there is an argument about the inherent distaste for an investigator who has formed a view to become an ad hoc expert.  That does not seem to end the problem at common law.  So, in that sense – when I say “inherent distaste”, the applicant’s desire to run some sort of argument about a potential bias where it is the investigator who is doing the analysis but that would be a weight

question if it is a section 79 admissibility point.  I would be driven to conceding that if the applicant loses that point, if he was given leave to try and articulate it, then there would be no retrial. 

NETTLE J:   But you say that ground 1 should probably be re‑pleaded as that the Court of Appeal erred in holding that section 78 was capable of application.  Is that it?

MR PAPAS:   Correct, in the circumstances of this case, yes.

NETTLE J:   Ground 2 would remain as drafted as at present?

MR PAPAS:   Yes, but to be perhaps amended to be more strictly reflective of what is said in Honeysett as the question.  If it please your Honours.

NETTLE J:   Yes, Mr Trapnell.

MR TRAPNELL:   Well, I stupidly prepared this application on the basis of the grounds which were in the application book.  So one of my arguments for why this is not a suitable vehicle seems to have disappeared.

NETTLE J:   No, do not be deflected.  We want to hear you on it.

MR TRAPNELL:   Well, it is our submission that this evidence was admissible.  I mean, the starting point is section 76 of the Evidence Act which is that evidence of an opinion is not admissible to prove the existence of effect about the existence of which the opinion was expressed.  There are then exceptions.  Now, it is our position or our submission that it does not matter which exception applies if there is an applicable exception - we say there is here one or the other or both - then the evidence is admissible.

Now, in my submission, the Court of Appeal was correct in its analysis of section 78 that this form of evidence is no different to any other familiarity with voice type evidence.  It just happens that this police officer has gained that familiarity in the course of his investigation but it is no different to anybody who can identify a voice but cannot really state the reasons why they have that familiarity and can compare that voice with another voice and say, yes, that is the same voice.  So, that is really the 78 situation. 

Now, we say, the court said even though that was not put below the court held that that was a basis of admissibility and that was a correct finding and up until now that had not been put in issue in these proceedings.  So, the argument was going to be this is not an appropriate vehicle because either way the evidence was going to be admitted regardless of the view this Court took of the view of the ad hoc expert.

NETTLE J:   That is to say, even if not 79 then no substantial injustice because it would have been admissible under 78.

MR TRAPNELL:   Yes.  Now, the second basis for ‑ ‑ ‑

NETTLE J:   What if that is wrong, however, given the disparity between the decision of New South Wales Court of Criminal Appeal and our court or Victorian Court of Appeal on that point?

MR TRAPNELL:   Well, as I said up until now that was not a ground of appeal.  Our argument simply is that the Court of Appeal’s analysis is the correct analysis of section 78, that it makes sense, that it is ‑ ‑ ‑

NETTLE J:   But, more importantly, up until now that has not been disputed and there has been no, as it were, opposed consideration of it. 

MR TRAPNELL:   Correct, yes.  Our argument was that the applicant was accepting up until now that it was admissible under 78 or that the court did not err by admitting it on that basis and that really whether or not it was also admissible on an alternative basis was interesting but not going to end up with a proper vehicle for this Court to consider the section 79 question. 

But there is another aspect to it which has already fallen from your Honour the learned presiding judge and that is that there is a number of unsatisfactory features with the way this trial was conducted below which also make it an unsatisfactory vehicle.  The first point is that it was never put to Sergeant Bray that he was wrong in his conclusion as to the voice on the telephone intercepts being the applicant’s voice, never put to him at all. 

The defence made a rational forensic decision to not permit the record of interview from which the jury could have tested the veracity of Sergeant Bray’s evidence.  They made a rational forensic choice to not have that put before the jury.  There was really no basis for that.  That record of interview was admissible for the purpose of comparison by the jury.  It was not being admitted as to anything that was actually contained within it.

His Honour the learned trial judge who was a very experienced – both a very experienced criminal lawyer at the Bar and a very experienced judge would have and indicated he was prepared to give a strong direction which, in our submission, would have cured any prejudice.  Juries today are quite familiar with the concept that people being questioned have a right to remain silent and they would be told that they are not to hold that against the applicant and the only reason, as his Honour said - it is in the Court of Appeal’s judgment what Justice Chettle indicated he would say, in general

terms what he would say - that it is only being admitted for this particular purpose for comparison and that is the only use you can put it to. 

NETTLE J:   The Smith’s Case point does not arise you say because section 78’s application was not disputed.  Is that it?

MR TRAPNELL:   The other point is that the defence counsel could have cross‑examined Mr Bray as to the nature of the record of interview, that is, his – number of questions, the length of the answers, all those sort of things.  It would not have been as good as the jury having the actual recording, obviously, but nonetheless, the defence were not cut out from putting before the jury material through cross‑examination of Sergeant Bray from which the jury could have formed some view about Sergeant Bray’s capacity to make the relevant comparison.  So, there is all sorts of reasons relevant to the way the trial was conducted which also, in my submission, make this not a suitable vehicle to determine the rather interesting question that is left open in Honeysett. 

GORDON J:   In the Court of Appeal at paragraph 41 it seems to suggest that the Crown did not rely on 78 for the tendering of this evidence at trial.  Is that right?

MR TRAPNELL:   Yes, that is right.  Having said that, I would go back to my first point and that is it is either admissible or it is not admissible.  You have an exclusionary rule so that is your starting – well, I suppose relevance is your very first starting point and we have got well past that.  You have your exclusionary rule.  If there is another basis on which that material was admissible there is no miscarriage of justice – no substantial miscarriage of justice and it matters not, in my submission, that the Crown in the trial put the admissibility on that basis when it has been held to be admissible on another basis. 

On the application to file out of time, I accept what my learned friend says that if the Court was otherwise minded to grant leave it probably does not amount to much but the rules are there for a reason.  This is a six‑month delay.  The instructions were given to the solicitor on 5 September 2014 – sorry, a week after 5 September 2014.  The application was filed on 8 May 2015.  That is a very, very lengthy period of delay and the rules are not to be ignored with impunity, in my submission, and that is something which this Court ought to consider as relevant to the question of whether leave to appeal ought to be granted in this case – special leave ought to be granted in this case.  If the Court pleases.

NETTLE J:   Thank you, Mr Trapnell.  Any reply, Mr Papas?

MR PAPAS:   Just briefly, and it may be that it would have been better that I had done that as part of my initial argument, but on the section 78 point, it not having been put at all by the Crown in the trial and yet the Court of Appeal taking the view that it was a section 78 matter, in the end, that process is one that leaves the applicant in a position where, to articulate this proposition, that is, that it was not admissible under section 78, is open.  In other words, it not having been run down below, the evidence being led as section 79 evidence ad hoc, in the Court of Appeal, the Court of Appeal taking the view that it would have been better if it had been section 78, we are then left with this.

Section 78 according, at least, to the analysis of Justice Simpson in the Leung Case and particularly at paragraphs 33 and 34 articulates what, in her opinion, is the difficulty with using section 78(a) when it is an identification process secondary, in other words, the matter, fact or thing that is being opined about if it is a lay observation - section 78 is usually primary evidence – it was wet, the man was running, the sky was blue, those sorts of matters – I saw John Smith who I have known for 30 years. 

In this case and consistent with the analysis it is secondary, the primary evidence being the tapes themselves, the secondary evidence being the identification and that, in the analysis of Leung being not permissible, I think that was the point I should have – it is articulated, I think, in the broadest terms in the written submissions but it is something I should have agitated orally and in reply I put that submission.  If it please your Honours. 

NETTLE J:   Yes, thank you, Mr Papas. 

In this matter the Court is not persuaded that it would be an appropriate vehicle for consideration of the question of principle whether either section 78 or section 79 of the Evidence Act 2009 would be applicable.  Nor is the Court persuaded that it would be in the interests of justice in the particular circumstances of this case to grant special leave.  Accordingly, the application for leave to apply out of time for special leave to appeal is refused.

Adjourn the Court.

AT 1.27 PM THE MATTER WAS CONCLUDED