Kostaras v The Queen

[2004] HCATrans 131

[2004] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A264 of 2003

B e t w e e n -

NIKOLAS KOSTARAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 11.23 AM

Copyright in the High Court of Australia

MR D.H. PEEK, QC:   May it please the Court, I appear for the applicant.  (instructed by Wallmans)

MR P.F. MUSCAT:   May it please the Court, I appear with my learned friend, MS L.J. CHAPMAN, for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ:   Thank you.

MR PEEK:   Can I take the Court to the applicant’s summary which is at 116 of the application book.  Obviously I do not intend to read all of this, but just the setting out.  You will see that there were a number of problems with the prosecution case in this matter.  As indeed the President, Justice Debelle, observed, it was a matter that could have gone either way.  I do not stay to dwell on the various inconsistencies within the Crown case and within the evidence of the complainant, but some of the matters are referred to from paragraph 2 onwards against, of course, the background of a very lengthy delay of which the Court will be aware in this case.

I, of course, know that the Court has looked at those matters.  That takes me up to what I have referred to as the first question, Question A, at paragraph 5 on page 117, which relates to the duties of a prosecutor and including the provision of the Evidence Act in South Australia, section 18(1)(ii).

Now, that provision is set out at my paragraph 7, but is also set out in each of the judge’s judgments, that is to say that President, Justice Debelle – and perhaps the convenient point there to look at is at page 76 of the application book, if the Court would be so good.  You will see at paragraph 24 of the President’s reasons he sets that passage out.

GLEESON CJ:   Mr Peek, I think the parties may be aware that we asked to be provided with the portion of the transcript at which counsel for the present applicant had said something to the jury in relation to the reason why the applicant did not give evidence at his second trial.

MR PEEK:   Yes.

GLEESON CJ:   I am not sure what the page is, but it appears to be page 589 – I am not sure whether that is right.

MR PEEK:   Yes, I have that in front of me, your Honour.

GLEESON CJ:   Having regard to what Mrs Shaw said to the jury as to why he did not give evidence at his second trial, that is, that it was not necessary for him to do so because he had given his evidence at the first trial, how could the Crown Prosecutor have failed to analyse the evidence that was given at the first trial, which was being put forward by Mrs Shaw as the accused’s evidence?

MR PEEK:   Yes.  The situation was that it was really the first part of her opening of the case for the accused that she said those words at 589.  It was really no more than to allude to something that had already occurred in the case, that is to say the prosecution had applied and had tendered the accused’s previous evidence, and she alluded to the fact that he had been examined and cross‑examined at the previous trial and, in the light of that, was not going to give evidence himself, although he called other evidence, of course.

GLEESON CJ:   Mr Peek, the transcript is headed, before Mrs Shaw’s remark is made, “CASE FOR PROSECUTION”.  Should that be “CASE FOR PROSECUTION CLOSED”?

MR PEEK:   That is right.

GLEESON CJ:   Yes.  Then she made this remark while opening her case to the jury.

MR PEEK:   That is right.  It is really the first sentence.

GLEESON CJ:   Yes.  What she, in effect, did was tell the jury that they were not going to be hearing evidence from the accused because it was not necessary for him to give evidence.  He had already given his evidence about this matter at the first trial.

MR PEEK:   Yes.  We, of course, do not dispute that proposition that she did say words to that effect, but that, in our submission, does not derogate from the meaning and breadth of this section of the Evidence Act.  In other words, it was ‑ ‑ ‑

GLEESON CJ:   No, but it forms a very important part of the context in which we have to evaluate what the prosecutor then said to the jury in his address.

MR PEEK:   I accept that, but can I just take the Court to the two major comments upon which we rely which we say went well beyond anything that was legitimate in the light of what your Honour has put to me and which still founds a clear breach of the section.  The first passage would be at page 656 of the transcript.  Now, I want to read just a few lines which are leading up to those which have actually been reproduced in the judgment but the lead‑in has not been reproduced in the judgments.  I would like to start at page 656, line 31 if I may.  I read from there:

Aspects you might consider as you think about the evidence you have heard are what the witnesses said.  It is obviously very important factor, but there are other factors you can think about too:  How did the person say it?  Did they say it in a convincing way?  Did they seem to know what they were talking about, did they seem to have an actual recollection or were they reconstructing what had happened?  How did they appear as they gave evidence?  Did what they say ring true to you?  How did what they say fit with the other evidence you heard in the case?

Now, although that is, of course, on its face addressed to all witnesses, immediately following that is the passage that you will have read as reproduced in the judgments:

I will discuss what you have from Mr Kostaras himself later because it is a little different insofar as it is not evidence that you saw him give; it is evidence from a prior trial, and you were at a slight disadvantage in assessing his evidence because you didn’t see him give it at the last trial.  So you only got the words, you didn’t get the other parts you can consider in forming a view about whether you believe someone or not.  I will come back to that, but I suggest, even with that disadvantage – that is not having seen him give evidence – that Mr Kostaras’s evidence from the last trial is plainly unconvincing and unsatisfactory.  To put it mildly, at his last trial, Mr Kostaras crumbled in cross‑examination and by the end of his cross‑examination, his credibility was naught.

Now, the second of the two passages in that vein is at page 679 commencing at line 17, where the learned prosecutor said:

When you look at the accused’s evidence in the last trial, there are a number of problems with it, and there is no gentle way of saying it, but I suggest he told lie after lie.  His evidence was unconvincing and he was quite evasive.  Unfortunately, it might not come out so well when it is just read out the once.  You don’t get to see him, see him thinking, you don’t get to hear if there are pauses between questions and answers, you don’t get to hear the tone of voice he uses, but even just looking at the bare words we have, I suggest in his evidence he came across quite evasively and not credibly.

Now, we would submit, as Justice Debelle, the President, held in his judgment, that the effect of those two passages – and I have added the lead‑in to one of them – was that the prosecutor was positively saying or implying to the jury that he knew of material that they did not; that is to say, that the way in which the accused had previously given his evidence, the demeanour and so forth, was such as to convey lack of credibility and, indeed, guilt.  In those circumstances, we say that whatever might or might not be the effect of that snippet at the beginning of Mrs Shaw’s address, it most certainly would not permit anything like that being said to a jury.

GLEESON CJ:   Did the Court of Criminal Appeal refer to what Mrs Shaw said in relation to the reason why her client was not giving evidence?

MR PEEK:   I believe the majority did, your Honour.  I will see if I can find that passage.  It is at page 96 of the application book at paragraph 102 of the joint judgment there.

GLEESON CJ:   Yes, thank you.

MR PEEK:   So, indeed, they found it upon that to some extent, but we say that although that might have been relevant in relation to some comments one could postulate being made by a Crown Prosecutor, it by no means provided any excuse for the type of comment that I have just read to the Court.

GLEESON CJ:   What that is, amongst other things, is a statement to the jury from the Bar table as to why the accused was not going to give evidence.

MR PEEK:   It really, in my submission, was quite permissible to make the observation.

GLEESON CJ:   Which is giving the envelope a little bit of a push, is it not?

MR PEEK:   Well, not greatly so.  A number of observations are to be seen in cases such as Azzopardi, for example, in this Court, where reference is made to the fact that nowadays one often has, for example, a videotaped record of interview and that, therefore, one should not in any way leap to the conclusion that the reason why a person remains silent in such circumstances is because of the fear of his guilt, but rather that that is one of the legitimate options available to him of presenting his defence, namely, where there is a detailed statement of his position already in the transcript, that is a legitimate option for him to adopt.  Now, I do not know whether the Court wants me to take you to that passage.  I think I have reproduced something of that in my outline indeed.

HAYNE J:   But in this case, Mr Peek, the jury had before it by the end of the prosecution case the transcript of the sworn evidence given by the applicant at his first trial.  What was the prosecutor to do with that piece of evidence in the course of addresses?  Was he entitled to make any comment on it?

MR PEEK:   He was entitled to address that topic, and I have never suggested that he was not, but what we say is that did not give the go‑by to the statutory prohibition in relation to commenting on the position of the appellant in this trial and suggesting, in effect – and, in fact, giving evidence from the Bar table from the prosecution side this time – that there was more to be seen than the jury were aware if one had been at that previous trial.

HAYNE J:   Well, it seems to me that the further difficulty that you then encounter is this.  Let it be assumed that you are right to say that the prosecutor went too far.  That may be a contestable proposition; it may not.  If the prosecutor went too far, there was an application for discharge of the jury, was there not?

MR PEEK:   There was.

HAYNE J:   That application was rejected, is that right?

MR PEEK:   Yes, that is right.

HAYNE J:   I do not think any of the judges in the Court of Appeal say, do they, that the trial judge was wrong to refuse that application?  Justice Debelle says it would have been open to discharge, but he does not say discharge was necessary.

MR PEEK:   Well, we would put that sort of argument really in the form of, “Was there a miscarriage of justice at the end of the day?” rather than a debate as to whether a judge erred or did not err in relation to the decision to discharge or not.  I think there are a number of cases, indeed, in the High Court which tend to say that, that once that decision has been made then at the appellate level the question becomes, “Is there miscarriage because of all that happened?”  Of course, in this case we stay with Justice Debelle’s approach, that this was not the only aspect of the prosecution summing up that had to be looked at in that cumulative sense.  The Court is aware that ‑ ‑ ‑

HAYNE J:   The question then becomes whether, in the light of these criticisms of the course taken by the prosecution counsel, sufficient or appropriate instruction was given to the jury, and yet there is no point about want of proper instruction.

MR PEEK:   Well, we say that at the end of the day the damage had been done and, just going back to the Evidence Act point for a moment, we say that the correct construction of that provision is to positively say that an accused person in South Australia is entitled to a trial without prosecution comment on his decision not to give evidence.  He is entitled to that.  If there is a breach of that provision then, as this Court said in Stuart and other places, that is prima facie a reason why the verdict should be overturned.

Now, the question of what, if anything, the judge says after that is really none to the point because the damage is done and, of course, in this case it was not a situation where the judge said something the same as the prosecutor and therefore one could say, “Well, it doesn’t matter because the judge said the same thing”.  The judge did not.  In relation to these other matters as to the prosecutor postulating that the defence case was to suggest that there was a grand conspiracy and why would the complainant and the other witnesses lie, that was, we submit, a very serious blemish on the prosecution address, for the reasons given by Justice Debelle.  That goes very much hand in hand with the other defect that I have been referring to.

In relation to the matter of what Mrs Shaw said, we would, therefore, adopt the same approach as Justice Debelle did at his paragraph 28, really, where he said:

One could not be critical if the prosecutor had simply stated the fact that the appellant had not given evidence and that his evidence at the previous trial had been read.  The manner in which the trial had been conducted meant that it was necessary to do so in order to introduce legitimate examination of the appellant’s evidence at the first trial.

So pausing there, we would not quarrel with that approach or with the proposition that that would allow some reference to what Mrs Shaw had said, but we would go on to say that his Honour’s following sentences cover the present case:

However, the prosecutor did not subject himself to the restraint of a simple statement of fact.  Instead, in a somewhat unrestrained and extravagant manner, he commented quite directly and extensively on the fact that the accused did not give evidence.

His Honour then goes on to say that the prosecutor added that commentary, in the passages that I have read, which, of course, meant that the error was greatly aggravated.  We would submit that even in a jurisdiction where section 18 is not in the form of which it is in South Australia, that is to say

if it were to allow prosecution comment, that sort of comment that I have read out would, irrespective of that, lead to miscarriage of justice.

Then there is the other cumulative aspect of the prosecutor’s comments on the evidence of Mrs Parha.  Now, I do not have time to dilate on the way that that fed into the matrix of facts, but suffice to say it was an important matter from the defence point of view.  They called her as a witness.  They did not call her as a witness to character, but rather as to fact.  It was the prosecutor who then cross‑examined her to suggest that she was a friend of the appellant’s, and she gave quite straightforward evidence, which has been reproduced in the judgment of Justice Debelle, to the effect that over the years she has been a colleague, she would consider herself a friend now, and when she was asked by the prosecutor – not defence – what her personal view was as to the allegations, she said that she considered them untrue due to her constant observation of his role as a teacher, she being the principal.

That was then put in a form – and I will not read it out, the Court has seen it – of comments on Ms Parha, of an ethnic sort and a rather emotive and inflammatory sort, which should never have been made.  So that as Justice Debelle says at paragraph 32, the matter may have been different if you viewed any one of those aspects in isolation perhaps, but when viewed together they produce the real potential of a mistrial.  It was a situation where these were verdicts by majority only.  There was a great deal of matter to be considered in relation to the inconsistencies in the Crown case and the delay, and it would have taken very, very little to tip the balance.

GLEESON CJ:   Thank you, Mr Peek.  We do not need to hear you, Mr Muscat.

The decision of the Court of Criminal Appeal in this case turned upon the application of well-settled principles to the facts and circumstances of the particular case, and the matter does not give rise to an issue suitable to a grant of special leave to appeal.  In addition, we are not persuaded that the interests of justice require such a grant.  The application is refused.

AT 11.45 AM THE MATTER WAS CONCLUDED