Maurangi v The Queen

[2002] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 2002

B e t w e e n -

CHARLIE MAURANGI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 15 AUGUST 2002, AT 9.32 AM

Copyright in the High Court of Australia

MR K.V. BORICK, QC:   If the Court please, I appear with MR M.R. LOVE for the proposed applicant.  (instructed by C.B. McDonough & Co)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear for the respondent with MR C.J.B. WEIR.  (instructed by the Director of Public Prosecutions (South Australia))

KIRBY J:   Yes, Mr Borick.

MR BORICK:   If the Court pleases, I propose to use my allotted time in the following way:  to first deal with what I perceive to be, or submit will be the principal issues involved and then to deal with the importance of the issues and, at that point, to refer briefly to one of the English articles by Mr Roger Ede dealing with the recent English seminar.  I then will deal with the relevance of the material which was not disclosed and then submit that the Court of Criminal Appeal were in error in their approach to it and there was an arguable case that here was a miscarriage of justice and that, collectively over all, we meet the criteria for a grant of special leave.

I start with the proposition that very little attention has been given in this country to the discovery processes in criminal trials, and that needs to be corrected.  Secondly, it is submitted the judiciary should take a far greater role in the search for a workable principle defining the ambit of the prosecutor’s and the prosecution’s obligation to disclose unused material and then to the subsequent task of moulding around that principle workable and practical process.

KIRBY J:   These are large propositions, but when we turn ourselves to the tedious business of the facts of the case ‑ ‑ ‑

MR BORICK:   Yes, I will.

KIRBY J:    ‑ ‑ ‑ the material was provided to you before the end of the trial.  It might have been different if it had not been, but you were alerted to the material before the end of this trial and that distinguishes this case from Grey.

MR BORICK:   Yes.  I appreciate that and I make that point in the outline of my argument.  That is where this case differs ‑ ‑ ‑

KIRBY J:   Those large questions may one day come up.  The question is, is this a suitable vehicle for those large questions, and the factual premises do not seem to make it out.

MR BORICK:   Just to finish where I was going, because I was just about finished that anyway, and I pick up Mr Hinton’s argument that the “equality of arms” principle is the important issue here and, in addition, your Honour, there is the important issue of the discovery process between police investigators and the prosecution, which the circumstances of this case bring to bear.

Now, your Honours, the information which was disclosed was clearly relevant.  Gaskin was an associate of the men who were involved in the robbery and the subsequent manslaughter, and he was identified by the anonymous caller the following day as being a person who was seen running from the pool hall.  The pool hall is on a major Adelaide arterial road and it is a busy area; it is just by the Holden Hill police station, which is one of the major suburban courts in this State, across the road from other places like McDonald’s and other fast‑food outlets.  It is a busy area and Gaskin was seen running, not in that direction, that is the direction of the arterial road, or across it, but coming around behind the pool hall.

That is important for a couple of reasons.  It indicates where the person was who was making the phone call, because he would have to be in the area behind the pool hall, and it is an area that you could reasonably easily search for and locate that person if it became necessary, or the police thought it necessary at the time.  There are not a large number of houses in that area, and remember this man was seen at about 4.15 in the morning.

KIRBY J:   Yes, we know all this, but the man admitted he was there and he said that he was walking, not running.

MR BORICK:   That is right.  That is the fundamental difference between what the anonymous caller said – he said he was running.

KIRBY J:   Yes.

MR BORICK:   Now, I pause to make the submission that it does not really matter what Gaskin says, whether he was involved or not.  He does admit that he was in the area and walking, and, perhaps, he had to.  The Court of Criminal Appeal relied upon the fact that he said that he was not involved.  In my submission, that clearly cannot play a part in this.

What makes this case important and different in terms of the relevance is that the evidence of the anonymous caller goes directly to the evidence of Mrs Vaughan.  Mrs Vaughan was employed by one of the airlines, so she was a shift worker. 

KIRBY J:   She was travelling very early in the morning and she said she saw four.

MR BORICK:   Four men.

KIRBY J:   Now, that was before the jury.

MR BORICK:   That was at a relevant time.  That would have been just after or about the time of the ‑ ‑ ‑

KIRBY J:   So you had the advantage of her evidence before the jury.  You had that evidence.

MR BORICK:   The prosecution had to call Mrs Vaughan, yes.

KIRBY J:   You knew about Gaskin before the end of the trial.

MR BORICK:   Yes.

KIRBY J:   So you had the essential factual material?

MR BORICK:   No, all we had was a statement by Gaskin that he was walking past the hall at a relevant time.

KIRBY J:   Well, the inference from that is that somebody had dobbed Gaskin in and, therefore, that the police had gone to get a statement from him.

MR BORICK:   We know what happened.  The Crime Stoppers man ‑ ‑ ‑

KIRBY J:   The Crime Stopper.  We know that, yes.  We know that now.

MR BORICK:   Yes.

KIRBY J:   But what is the issue of principle that would be raised in this Court concerning any default on the part of the prosecution, vis-à-vis, the defence?

MR BORICK:   This was relevant information; I do not understand that the prosecution dispute that.  It was relevant, and it was relevant because it gave support to Mrs Vaughan’s evidence that there were four men, and what followed from that is that the evidence of the other two men involved, Rivett and his brother who said there were three, would then be in dispute.

HAYNE J:   Now, you had all of this information before the trial ended.

MR BORICK:   Yes.

HAYNE J:   So we are talking about not whether you get it, but when you get it.

MR BORICK:   Yes, I appreciate that.

HAYNE J:   Now, what is the significance of when you get it?

MR BORICK:   Well, if the defence had got the information the day after this occurred when the accused had been arrested that day, there could be no doubt that all parties, the prosecution and the defence, would have investigated Gaskin very carefully and would have sought to find ‑ ‑ ‑

HAYNE J:   That is a very large proposition that immediately after commission putative defendants are to be supplied with everything the police have.

MR BORICK:   That is not the proposition.  I was dealing with the evidence itself, the relevance of it.  If Gaskin had been known about immediately, within days, then both the prosecution and the defence, in my submission, would have had to investigate that evidence.  The defence certainly would and the defence would have done exactly what it did when it was finally told, and that is, attempt to find the anonymous phone caller because the only way we could make use of that evidence was by finding him and seeing if he could give evidence of observing Gaskin running.

HAYNE J:   Can I just make sure I understand where we have got to in the proposition?

MR BORICK:   Yes.

HAYNE J:   The proposition seems to be a proposition about the way the crime was investigated, not a proposition about what defence counsel should have available to him or her in their brief as they start the trial.  Have I misunderstood?

MR BORICK:   Yes, the proposition that I am putting relates to the relevance of this and the importance of this non‑disclosed material.  Once I have established the importance of relevant material, then, in my submission, the Court of Criminal Appeal, and subsequently this Court, has to look at the principles relating to disclosure of information of this sort.  So dealing with that proposition that it was important and relevant, it backed up the evidence of the independent witness, Mrs Vaughan.

KIRBY J:   It did not really.  She said she thought she saw four.

MR BORICK:   She saw four.

KIRBY J:   And the Crime Stopper statement was that Gaskin was in a lane, or in a street, and Gaskin admitted he was in the street, but differed about the running.

MR BORICK:   Yes.

KIRBY J:   Now, that is not really contradictory to, or in any way relevant to Mrs Vaughan’s statement of seeing the four.

MR BORICK:   It is very supportive, because she sees – and your Honours do not have all this information before you, but two of the men she saw in the median strip in the middle of the road and two on the footpath.  Now, human nature being what it is, when something went wrong like this, people tend to scatter.  There is no doubt that two of the men, at least on Mrs Vaughan’s version, have scattered across the road, another two are by the median, stayed on the same side of the road.

If there were four men and one was Gaskin – and remember, he had a relevant criminal record and he was an associate of Rivett’s – that is where we criticise the police investigation.  If, for example, it had been Maurangi himself, and the anonymous phone caller had said, “It’s Maurangi”, and the police immediately went to see Maurangi and found out that he lived close by and was with Rivett and checked his movements, then that information would have been followed up, but for some reason, the police, having got this information, whether they knew that Gaskin had a record – I am not aware, but I presume they would – easily could have found out who his associates were.  None of that seems to have happened.  They have accepted his response that he was not involved.

Now, if you turned it around the other way and, at trial, when we got the information, and we did – we sent inquiry agents out to check – if we could have found that anonymous phone caller, got him to court, then we could have got that back‑up support for Mrs Vaughan.

The trial judge in his summing up mentioned Mrs Vaughan only in the sense that he said that the defence relied upon her and there is hardly any mention of it, other than by calling her by the wrong name, in the Court of Criminal Appeal, which has never really been looked at.  So Mrs Vaughan, on the material before your Honours, seems hardly to exist.  But she was a very, very ‑ ‑ ‑

KIRBY J:   But her evidence was before the jury.

MR BORICK:   Her evidence was before the jury, yes.

KIRBY J:   And the jury had the evidence of Gaskin in the lane.

MR BORICK:   No, they knew nothing about Gaskin.

KIRBY J:   I see.

MR BORICK:   They knew nothing about him at all because the prosecution refused to call him.

KIRBY J:   But you knew it.

MR BORICK:   I invited the trial judge to call him, and the trial judge’s response was, “You call him”.  I could not call Gaskin because I would suddenly be stuck with him giving evidence that he was walking there.  We had other information about him; where he said he was going.  He did not get there.

KIRBY J:   Yes, but you knew, and your client knew that Gaskin was in the vicinity and that he had been seen in the vicinity.

MR BORICK:   Yes, we knew it, but there was no way we could get it before the jury, not in the circumstances that occurred where we got it almost towards the end of the trial and there was just no chance of properly following up that important evidence.  So, your Honour, in my submission, this evidence, and I come back to my basic proposition, it was relevant and it was important to the defence case.  The prosecution recognised that because as soon as they discovered it, as soon as they were told about it, they let us know very properly.  They let us know straight away.  We were given an adjournment to check it out.  That we do not complain about, but the trail was cold and it would not have gone cold if, we say, the investigation had proceeded properly, but I am not arguing a ‑ ‑ ‑

KIRBY J:   But the logic of that is that the matter could not be cured. 

MR BORICK:   That is right.

KIRBY J:   The logic of that is that your client could not be tried.

MR BORICK:   That is right.

KIRBY J:   They are very large propositions.

MR BORICK:   Yes, your Honour, but that is going to be, at the end of the day, the argument advanced to this Court, that if there has been either a wilful or inadvertent failure to disclose relevant and important information which occasions prejudice to the defence, then the consequence is going to be an inability for the prosecution to proceed with the trial or a mistrial.

HAYNE J:   So any failure of investigation equals no trial for the accused?

MR BORICK:   No, no.  The combination of ‑ ‑ ‑

HAYNE J:   Well, I cannot, for the moment, see, Mr Borick, where you are limiting this proposition.  It is a very large one.

MR BORICK:   This special leave application is not run on the basis of the failure to investigate properly.  It is not a Penney argument.  It is to do with non‑disclosure.

HAYNE J:   Of what, to whom, when?

MR BORICK:   Non‑disclosure of important relevant information, first to the prosecution lawyers so that they were deprived of the chance to consider it, and then, obviously, failure ‑ ‑ ‑

HAYNE J:   When?  When was the failure?

MR BORICK:   The failure started from the day after when they had the information and decided, for whatever reason, and it does not matter for present purposes, that they would not bother to inform the prosecution lawyers about it.  That is very significant when you go back to look at the principles I wanted to talk about, because you have, in this case, not just the failure to disclose to the defence, which is one thing.  You have the failure to disclose by the investigators to the prosecutors and that applies to all investigators, including forensic investigators for that matter.  There are no rules, there are no principles, there is nothing to govern the police.  They have a different objective to lawyers.  They have a different set of ethics.

KIRBY J:   You do not complain, I do not remember reading a complaint, that the prosecution failed to call Mr Gaskin?

MR BORICK:   We could not dictate to the prosecution what they were going to do.  They made their own decision not to call Gaskin.

KIRBY J:   Yes.

HAYNE J:   And nor can we, consistent with Richardson and Apostilides, can we?  The principles are clear.

MR BORICK:   Yes, Apostilides is not set in stone.  There comes a point, particularly, and I say in this case, where important relevant information, the prosecutor makes his decision.  The defence cannot control that and neither can the judge.  What the judge can do, of course, is to call the witness himself and he was invited to do that.

The third alternative – which is just an impossibility, your Honours.  There was nothing we could do about calling Gaskin, except we would put him in there and he would say he walked past and he had nothing to do with it and I could not cross‑examine him about what we say his real movements were.

In my submission, this is an appropriate vehicle for the Court to look at the very, very important issues of disclosure.  If your Honours have had a chance to look at the article by Mr Roger Ede and he summarises the legal profession’s experience.  They spent about two years reviewing the workings of the Criminal Procedure and Investigations Act which came into effect in 1997.  It is quite a short article, but it sets out all the problems that have occurred in the United Kingdom.  If your Honours turn to the second page, it is page 98.

KIRBY J:   Yes.

MR BORICK:   Right down the bottom of the page, “Examples of Unused Material – records of telephone calls to the police from members of the public reporting a crime” and on the other side of that page ‑ ‑ ‑

KIRBY J:   Mr Borick, I am not at all contradicting your assertion that these are important questions, but we have to deal with them in a case where they are truly presented to the Court in a way that is appropriate to testing the boundaries.  Now, this is a case where you got the relevant information in the midst of the trial.

MR BORICK:   But your Honours are putting to me that if we got the information after the trial, well then this might be the right vehicle.  It does not matter whether it was ‑ ‑ ‑

KIRBY J:   It might have been.

MR BORICK:   It was too late for us to use.  It is as simple as that.  If it is too late for us to use, it does not matter whether it is at the beginning of a trial or during it, but in the ‑ ‑ ‑

KIRBY J:   That is what distinguishes this case from Grey.

MR BORICK:   Yes, I appreciate that and we front up to that straight away, but what makes this case different to any I have seen is that it is evidence which goes to support a very important independent witness

whom the trial judge at trial virtually wished to ignore, the Court of Criminal Appeal has not dealt with.  If Gaskin was running and the jury knew about his association with Rivett and they disbelieved him when he said he was walking, then there was a very strong support for Mrs Vaughan.  If there was very strong support for Mrs Vaughan, then there was a strong argument that the jury could not accept Rivett and his brother.  My time is up.

KIRBY J:   Yes, thank you.  The Court does not need your assistance, Mr Millsteed.

At the outset of this application counsel for the applicant raised a number of large questions relating to the disclosure of relevant evidence between police and prosecution and prosecution and the defence.  These are large issues.  However, we are not convinced that they arise in the circumstances of this case. 

The defence had the relevant evidence before the end of the applicant’s trial.  The issue is whether, in the circumstances, the delay that occurred in supplying the evidence to the defence, and the way the evidence was investigated, occasioned a substantial miscarriage of justice that this Court should intervene to correct.

We are not convinced that any such miscarriage has occurred.  The principles applicable have recently been examined by this Court in Grey v The Queen (2001) 75 ALJR 1708. This case does not provide an appropriate vehicle to explore those principles further. Special leave to appeal is refused.

AT 9.59 AM THE MATTER WAS CONCLUDED