Koushappis v State of Western Australia

[2010] HCATrans 279

[2010] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 2010

B e t w e e n -

ANDREW CHRIS KOUSHAPPIS

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 2010, AT 1.45 PM

Copyright in the High Court of Australia

MS C.A. McKENZIE:   May it please, your Honours, I appear for the applicant.  (instructed by McKenzie and McKenzie Solicitors)

MR J. McGRATH:   If the Court pleases, I appear with my learned friend, MR D.A. LIMA for the respondent.  (instructed by Director of Public Prosecutions (WA))

CRENNAN J:   Thank you.

MS McKENZIE:   Your Honours, the application for special leave in relation to this matter is brought on the basis that it is submitted that it is relevant to the interest of the administration of justice, both generally and also in the particular in relation to this particular matter.  I will deal briefly with those matters in my oral argument, but rely upon my written submissions.

The particular in this case is that the Court of Appeal, in our respectful submission, failed to appreciate or acknowledge the significant procedural unfairness that had occurred in the course of the trial by the introduction of the inadmissible evidence and, in particular, the Court of Appeal, we would say, did not acknowledge that, or indeed, refer to the fact that the challenge to that evidence and the fact that then, therefore, a large amount of time was spent in dealing with that particular matter, together, of course, with the State’s heavy reliance upon the DNA evidence as part of their case, could only have meant, in this particular case, that that matter would have been uppermost in the jury’s mind.

The further difficulty in relation to this particular matter is that the appellate court’s conclusion or statement, if you like, that her Honour effectively directed the jury to disregard the DNA evidence at page 82 of the appeal book ‑ ‑ ‑

BELL J:   I am sorry, 82, is it?

MS McKENZIE:   Yes.  The Court of Appeal found her Honour effectively directed the jury to disregard the DNA evidence.  My submission, your Honour, in relation to that matter is that that is clearly a misstatement or an incorrect conclusion if we have regard to what the judge actually said and ‑ ‑ ‑

BELL J:   Where do we find that?

MS McKENZIE:   At page 9 of the book.  What the judge said, in essence, whilst acknowledging that the DNA had some difficulties, she did say, specifically:

you may find that it is of very little value at all . . . 

you may find that it’s of very little assistance, if of any assistance to you.

Of course, the full content of what she said is contained at pages 9 and 10.  It is self‑evident, in my respectful submission, your Honours, that she did not, clearly did not, effectively direct the jury to disregard the DNA evidence.

BELL J:   A trial judge directing a jury, “You may find a particular item of evidence is of little assistance” or words to that effect, while not a direction that they are to disregard the evidence, the evidence was before them, but is a fairly strong indication, with the weight of the judge’s authority, that points to the evidence not having the sort of primacy that your submissions seem to suggest the Court of Appeal should have considered the jury placed on the evidence.

MS McKENZIE:   Look, it is conceded that the trial judge’s address does obviously caveat the use to which the jury can perhaps put that particular piece of evidence, but it is quite clear as well, however, that she certainly does not go so far as to say that – certainly does not direct the jury to disregard the evidence.  In fact, to the contrary, she is directing the jury’s attention to the DNA evidence.  She is adverting to some difficulties maybe that arose in relation to it but also ‑ ‑ ‑

BELL J:   She directs the jury’s attention to the evidence in order to point to the relative slightness of the evidence to the issues in the case.  Now, whether or not you want to quarrel with the suggestion in the Court of Appeal that she effectively directed the jury to disregard the DNA evidence, you – I am not sure that it is not a somewhat semantic argument, is it not?  The judge’s directions were such as to convey that little weight was to be given to the DNA evidence.  Would you cavil with that as a way of characterising it?

MS McKENZIE:   My submission is that it does not really direct that a little weight is to be given to it.  She says you may, for example, find that it is of very little value and she says you may find that it is of very little assistance but she does not direct them.  I mean, that is clearly still leaving it open for them to place whatever weight they think on it without – certainly she is not telling them to disregard it.

BELL J:   Absent a direction that you must disregard something, evidence is evidence, weight is a matter for the jury.  So that, inevitably, the proposition that you put must be right and it was open to the jury to accord weight to the evidence.  The matter that I am taking up with you is that the judge’s directions were such as to suggest that this was not the strong point in the Crown case against your client. 

I am raising that in this context.  Some of your submissions are directed to the proposition that juries are inclined to regard DNA evidence as having some peculiar cogency.  In some instances, that may be right but in the circumstances of this case it was not clear to me why that was so and it seemed to me the trial judge’s directions made clear that in her Honour’s view this was not an aspect of the Crown case upon which particular reliance was placed.

MS McKENZIE:   Well, except particular reliance was placed on it by the Crown in their submissions and in the case.  Of course, the preponderance of the evidence at the trial was about DNA.  That is the difficulty.  This was a trial where we became - because of the dispute about the DNA, it was not glossed over in evidence.  It did not form a small part of the evidence or but a little part of the evidence. It, in fact, became the significant thrust of the State case against Mr Koushappis because so much time was spent in the examination and cross-examination of the witness, original witness, Mr Bagdonavicius, and then of course a further witness was even called by the State in an attempt to bolster or to overcome the difficulties that then attended upon the DNA.  So this was a trial where the preponderance of the evidence was about DNA.

CRENNAN J:   But at its highest the only point that could be made in relation to it was that you could not exclude the defendant as a person present in a domestic context.

MS McKENZIE:   Well, that is right, but all DNA is about not excluding.  It is an exclusionary principle rather than an – and DNA, any DNA evidence is a statistical calculation of ‑ ‑ ‑

CRENNAN J:   But, I mean, this is in a situation where there were lineal relatives living in the same place and her Honour at  page 10 of the application book carefully explains and gives a sense of proportion to the DNA evidence.

MS McKENZIE:   In the context of this case, that is why I say that and why we – I emphasise – I mean, her Honour also says in conclusion that the DNA would appear to be, at best, equivocal.  Now, in fact, what the appellate court, the Court of Appeal, says is that it is less than equivocal.  So they do not go as far even as what the appeal court would seem to indicate should have been said.  She does not go as far what the appeal court indicates perhaps should have been said.

BELL J:   There is not a complaint about the directions in that respect?

MS McKENZIE:   Her direction?

BELL J:   Yes.  I am sorry, what is that last submission directed to?

MS McKENZIE:   Well, I am saying that her Honour was saying that - if I look at page 10 she refers to the fact that there were lineal relatives within the household but her conclusion about that is that the DNA would appear to be, at best, equivocal.  Now, what the Court of Appeal said was, well, at best it was less than equivocal. 

BELL J:   The matter I am taking up with you is your grounds do not assert some failure on the part of the trial judge with respect to the directions.

MS McKENZIE:   My grounds, effectively, in respect to what the Court of Appeal says.  I mean, obviously, at the ground of appeal in the appellate court was that the DNA evidence should not have been before the jury at all and clearly the Court of Appeal upheld that.  It was inadmissible and in addition to that, it was more prejudicial than probative.

BELL J:   I understand that.

MS McKENZIE:   So, what I say, in respect of her direction, what the judge said, what the Court of Appeal says is the reason why - if we turn to the proviso, the reason why the Court of Appeal says there has not been a miscarriage of justice, refers to her Honour’s address, as it were, and says, well, that cured the ill or the evil, as it were, in respect of the inadmissible evidence.  My submission, your Honours, is that it does not cure the problem that – the problem is still there, that the inadmissible evidence is there and her submission to the jury did not resolve the issue with sufficient clarity so that, in this case, we would say there remains a serious apprehension that there has been a substantial miscarriage of justice with that not going as far as what – what I am saying is the appellate court says to us - she effectively said disregard the evidence.  What I say is, she did not effectively say disregard the evidence.

CRENNAN J:   Well, that is not all the appellate court did, of course.  The appellate court went through in some detail at pages 32 and 33 of the application book -Justice Roberts-Smith went through the admissible evidence that was relevant to proving guilt.  In other words, the appellate court did not simply confine its attentions to the DNA evidence and the direction in relation to that as matters underpinning the operation of the proviso.

MS McKENZIE:   Look, I can see that, your Honours, and I accept that the appellate court and on the face of it, the appellate court in that section that you referred me to does go through, I suppose, a basis upon which it could be said that there was sufficient evidence to find the applicant guilty beyond a reasonable doubt, but my submission is that even if there is sufficient evidence to find the applicant guilty beyond a reasonable doubt, this was a case where there was a significant denial of procedural fairness at the trial because of the admission of the DNA and that was not cured as his Honour - because his Honour ‑ ‑ ‑

BELL J:   You seem to be conflating something there.  The reason for concluding that the evidence had been wrongly admitted was the question of the – there was some defect, I think, in the chain of evidence to establish the result, something of that character.  Is that right?

MS McKENZIE:   Why the DNA was inadmissible because it was reliant upon hearsay?

BELL J:   Yes, and there was some difficulty, I think, in the chain?  Yes.  Evidence that should not have been admitted was admitted and the question is did that produce a miscarriage?  Yes.  Your references to procedural fairness just seemed to me perhaps somewhat superfluous.

MS McKENZIE:   Well, sorry, then, your Honours, if I can explain.  If I refer to the Weiss decision which addressed this issue of the proviso because clearly that was where we got to with this matter, what that decision says is that it is not simply, you cannot just leave it at saying, well there was sufficient evidence upon which a jury could be satisfied beyond a reasonable doubt and, therefore, the proviso kicks in, as it were.  The Weiss decision goes on to say that even if that is the case it would be proper to allow an appeal and order a new trial where the appellate court was persuaded to the requisite degree of the appellant’s guilt where there is a significant denial of procedural fairness at trial.

BELL J:   Indeed, but the admission of evidence in error would not ordinarily come within that caveat in Weiss.  One can think of a number of circumstances where an appellate court reviewing a conviction following a trial that has been attended by procedural fairness might think there is a very strong case against the appellant but, nonetheless, having regard to the defect in the trial of that character it would be inappropriate to apply the proviso.  But why does that apply in this case if it happens that the trial was attended by legal error in that evidence was admitted that ought not to have been admitted, but upon a review of the evidence as was carried out by the Court of Appeal, it has concluded that that did not cause the trial to miscarry or at least not a substantial miscarriage.

MS McKENZIE:   Because if I can take you to page 81 of the book and his Honour’s reasons, he says there - he actually refers to that passage that I have just quoted you from Weiss and he says that:

Having undertaken that exercise in accordance with the strictures articulated in Weiss, I have come to the conclusion –

and goes on to say, but, of course, his conclusion is prefaced or based upon what I say is a wrong conclusion of her Honour’s address, which was that her Honour effectively directed the jury to disregard the DNA.  She did not direct them to disregard it.  This was a trial where, as I have said, there was a large component or element of the proceedings was taken up with the DNA.  So it could not have been, it would not have been possible for the jury to disregard that given that it comprised such a large element of the trial proceedings.

So unless there was a very clear direction that the DNA was to be disregarded then, in my respectful submission, this was a case where there was a significant denial of procedural fairness.  The original or preliminary denial of procedural fairness was that we sought to have the DNA evidence determined to be inadmissible or admissible on a voir dire and that was denied.

BELL J:   But that does not involve procedural fairness or the want of it as an issue.  You sought a ruling.  You were unsuccessful.  In the event, the Court of Appeal has said that determination involved legal error, but I am just at a loss to understand quite how you put this aspect of it.

MS McKENZIE:   Well, I say it is because in this instant there was – I would have to say that there was procedural error in that sense.

BELL J:   There was legal error.  There was not a want of procedural fairness.  You were heard.  A ruling was made which was found to be incorrect and that led to evidence being before the jury which should not have been before the jury.  The Court of Appeal reviewed the whole of the transcript of the trial and, having undertaken that exercise, applied the Weiss test.

MS McKENZIE:   Well, my submission is they did not apply it because they made the wrong conclusion that the jury had been directed to disregard the evidence when, in fact, that was not so.

BELL J:   I think what they said was “effectively”.

CRENNAN J:   You have to give some weight to that word “effectively”.

MS McKENZIE:   Well, my submission is if you consider what her Honour said, it was not an effective direction to disregard.  In fact, it was a direction drawing their attention to the particular matter and saying they could draw whatever weight they wanted to it but, obviously, there were some caveats that she did introduce.  But it certainly was not an effective direction to disregard.  They are my submissions.

CRENNAN J:   Yes, we have that point.  We do not need to trouble you, thank you, Mr McGrath.

This application for a grant of special leave to appeal does not raise any question of general public importance.  The decision of the Court of Appeal of the Supreme Court of Western Australia is not attended by sufficient doubt to warrant a grant of special leave.  Further, it is not in the interests of the administration of justice, either generally or in this particular case, that special leave should be granted.  Special leave to appeal is refused.

AT 2.05 PM THE MATTER WAS CONCLUDED