Lee v The Queen

[1998] HCATrans 34

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S62 of 1997

B e t w e e n -

NATHAN LEE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 10.35 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant, with my learned friend, MR S.J. ODGERS.  (instructed by Arden & Associates)

MR G.S. HOSKING, SC:   May it please the Court, I appear for the respondent, with my learned friend, MR M.C. MARIEN.  (instructed by the Office of the Director of Public Prosecutions (New South Wales))

BRENNAN CJ:   Mr Game.

MR GAME:   Thank you, your Honour.  In this case the Crown called a witness, Calin, known to be hostile, not for the purpose of eliciting any evidence from him but for the purpose of tendering a statement and establishing what it saw to be the preconditions to tendering a statement that he had made to the police in which he told the police that the accused had confessed to him.  That statement appears at page 26 of the application book.

BRENNAN CJ:   Your proposition is that section 60 does not take this as far as allowing that statement to be used as proof of the truth of what was allegedly said by the third party to the witness, is that right?

MR GAME:   That is the central proposition, your Honour, but there is a proposition which goes with that which is that section 60 should not be allowed to be used as a trigger, in effect, whereby one uses the pretext of credibility as a basis for obtaining admissibility, when credibility is not in issue, in getting the statement in on the basis that it is admissible as to credibility and then triggering section 60.  Then one, in effect, gets the second-hand hearsay assertion which lies in the statement as evidence of the truth of the statement.

BRENNAN CJ:   Can you show us where either of those propositions was raised either before the trial judge or argued before the Court of Criminal Appeal?

MR GAME:   Yes, your Honour.  It was argued by me in the Court of Criminal Appeal.  I should say, firstly, that ground 4 appearing at page 61
was amended, to say:  “and erred when he allowed evidence to establish the admission made by the appellant to Calin”.  Ground 4 was amended in those terms.

HAYNE J:   Sorry, what were the terms again?

MR GAME:   The words, “and erred when he allowed evidence to establish the admission made by the appellant to Calin”.  Grounds 5 and 6 intended to cover some of the circumstances related to, in effect, an attempt to establish the reliability of the out-of-court statement but, also, evidence was led from four police officers, in effect, to bolster the reliability of the out-of-court statement.  Now, the point was argued on a full voir dire in the court below.

BRENNAN CJ:   These points were argued in a voir dire?

MR GAME:   Yes, your Honour.

BRENNAN CJ:   As distinct from reliability?

MR GAME:   Yes, your Honour.

BRENNAN CJ:   How do we discover that?

MR GAME:   The voir dire went for more than 100 pages, and we are talking about 200 pages of a 300-page transcript that covers Calin, and it just would not be practicable to put it in an application book but I have actually extracted page 159, which is the ruling which does not tell you much, but at the top of page 160 counsel says:

Therefore section 82 applies.

Section 82 is the provision that cuts out second-hand hearsay admissions.  Counsel says:

I say the statement is inadmissible, that you should exercise your discretion to exclude it and that you are bound to exclude it, and I object to the calling of Mr Calin.

Now, when she refers to "the statement" she is talking about the statement that was made by Calin to the police.  Then, at page 162, having lost that battle, she says, “Well, I ask your Honour to limit the statement to its credibility purposes under section 136” which indicates at least that the nature of the problem was correctly perceived by counsel because what she ‑ ‑ ‑

BRENNAN CJ:   No, 136 is discretion, is it not?

MR GAME:   162, yes, but what she is saying is, “You've admitted it but the only relevant credibility purpose is what Calin said to the police.  Therefore, you should limit it to the first-hand hearsay, not the second-hand hearsay purpose which is the purpose upon which the Crown has sought its admission.”  By having lost the argument about its admission, she has perceived correctly that she could try, unsuccessfully, to persuade the judge to limit it to its first-hand hearsay assertion, that is to say, what Calin said to the police that the hearsay assertion lying behind that.

Now, I argued this case in the Court of Criminal Appeal and it was certainly never suggested that the point had not been raised directly in the court below and I argued fully about the effects of the Evidence Act, the first-hand and second-hand hearsay assertion problems, the - - -

BRENNAN CJ:   And the Court of Criminal Appeal did not deal with it.

MR GAME:   They did not address the questions at all and I argued the discretionary exclusion questions, 135 to 137.  The court did not refer to 137 which is the discretionary exclusion provision.  It is the same as the common law.  So, the points were well and truly addressed and Calin's evidence came to have a prominence in this trial which - well, it came to have a singular prominence in this trial.  When I say “Calin's evidence”, the statement, and the attempts to establish the reliability of the statement.

HAYNE J:   At page 63 of the application book there is a discussion at line 15 or line 16 of the application of section 60 in the judgment of Justice Cole.  Is there any other discussion to which you would take us in the Court of Criminal Appeal about the hearsay or other consequences of the Calin statement?

MR GAME:   Your Honour, there is only that which appears on the previous page but I should say that that passage at lines 15 to 20 indicates, in our submission, that the court did not perceive the true nature of the problem because the court has referred to “became evidence of the fact that the accused had made the statement to him” which is the first-hand hearsay assertion which was the whole point of the argument.

Now, it may be - this was a reserve judgment and it may be that the court had gone back to the - it is just possible, but the court really did not address the argument which was put to it, and I can say there was a full ranging argument about the effects of the Evidence Act because this was -apart from a case called Welch, this was really the first case in which the problem of second-hand hearsay under the Evidence Act arose.  So, it is not as though it was regarded in any light way by myself, when I argued the appeal, and it was very squarely and fully argued.

BRENNAN CJ:   Was Welch's Case the subject of consideration of section 60?

MR GAME:   Yes.  Welch's Case is the subject matter of section 60, yes, your Honour, but not the subject matter of the second-hand hearsay.  What Welch's Case says - - -

BRENNAN CJ:   Well, it does not deal with this problem.

MR GAME:   Not this problem but what Welch's Case says, in effect, is that it endorses the proposition that section 60 - once a statement is admitted for a non-hearsay purpose, then subject to discretion, that is to say, sections 135 and 136, which it can limit it, subject to discretion, it becomes artificial for a jury to have the hearsay assertion excluded so that section 60 has that effect.  But it does not address - this case is the first second-hand hearsay case.

BRENNAN CJ:   We will hear what Mr Hosking has to say.  Mr Hosking.

MR HOSKING:   Your Honours, I have heard what my learned friends have said about what happened in the Court of Criminal Appeal.  I was not in the Court of Criminal Appeal so I cannot speak for myself and I do not, for a moment, doubt what my learned friend has said.  But your Honours will note that he did not make, as I read his original summary of argument, any complaint in that that these matters were not dealt with.

BRENNAN CJ:   Where do we find that?

MR HOSKING:   They are at page 79 of the application book, your Honours.  My point is, your Honours, that all this is a bit new.  It is certainly a bit new to us.

BRENNAN CJ:   Certainly the grounds of appeal in the Court of Criminal Appeal do not bring this to the fore.

MR HOSKING:   And nor, we say, do the applicant's original summary of argument commencing at page 79 of the application book.  My friend is showing me something he put before the Court of Criminal Appeal.  As I say, I do not doubt what he says if he says it, but it is new to me.

BRENNAN CJ:   Yes.  I think paragraph 3.2 on page 85 makes the point.

MR HOSKING:   That makes the section 60 point, yes, your Honour, but not the other - - -

BRENNAN CJ:   Yes.  Is that not a question that needs consideration?

MR HOSKING:   Not in the circumstances we would contend of this case, your Honours.  Our primary submission is that if it does require consideration, this case is a very poor vehicle in which to consider it, given the facts of this case as we have set them out at page - - -

BRENNAN CJ:   Given that it is a strong Crown case in a variety of ways, this evidence, nonetheless, is evidence on which some jury may well have relied, is that not right?

MR HOSKING:   Yes, I concede that.  We say that it is not a question of first or second-hand hearsay.  The evidence was never hearsay at all as we have said in our submission.  We say that it was a confession received by a witness and was admissible on that basis - not on any hearsay basis - as direct evidence of a confession to Calin by Lee in a signed statement which ‑ ‑ ‑

BRENNAN CJ:   And did the witness give that evidence?

MR HOSKING:   He did.

BRENNAN CJ:   The witness to whom the confession was made?

MR HOSKING:   I am sorry, your Honour?

BRENNAN CJ:   Did the witness to whom the confession was made give that evidence?

MR HOSKING:   Yes, he did.  Calin gave that evidence when, under section 38, the trial judge permitted the Crown to put to him the original statement he signed to the police containing that confession.

BRENNAN CJ:   And he said that he had said that.

MR HOSKING:   And he said that he had said that.

BRENNAN CJ:   But did he ever say that the accused said it to him?

MR HOSKING:   Yes, he did.

BRENNAN CJ:   When?

MR HOSKING:   In the document.

HAYNE J:   In the out-of-court assertion.

MR HOSKING:   In the out-of-court assertion.  I am sorry, we are at cross‑purposes.

BRENNAN CJ:   We are at cross-purposes.  The point is that there was no evidence by a witness of an out-of-court confession, no evidence in court by a witness of an out-of-court confession by the accused.

MR HOSKING:   No, I accept that.

BRENNAN CJ:   Well then, the section 60 question arises very acutely, does it not?

MR HOSKING:   I do not know that there is much more I can say in that event, your Honour.

BRENNAN CJ:   No, thank you.  Special leave will be granted.

AT 10.49 AM THE MATTER WAS CONCLUDED