MCI v The Queen

[2019] HCATrans 130

[2019] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 2019

B e t w e e n -

MCI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 21 JUNE 2019, AT 10.29 AM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned friend, MS K. PRSKALO, for the applicant in this matter.  (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC:   May it please the Court, I appear with my learned friend, MS D. BALIC, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Keim.

MR KEIM: Thank you, your Honour. Your Honour, the application for special leave is based on two related grounds. Ground one relates to the conduct of the Crown Prosecutor in proceeding to make the jury aware of a taped pretext call containing a prior inconsistent statement of the applicant, without having made any attempt to comply with the procedural requirements of section 18 of the Evidence Act (Qld).

Ground two is a closely related ground, which relates to the conduct of the Crown Prosecutor in relying on the contents of the pretext call as proved by the oral evidence of the applicant in cross‑examination as part of its substantive case, so as to effectively split its case against the applicant.

Going to ground one, in R v Soma (2003) 212 CLR 299, the plurality, at paragraphs 22 to 23, makes it clear that confronting a witness with a prior inconsistent statement in the form of a tape recording, is conditional upon complying with the procedural requirements of section 18(2) of the Evidence Act.

At paragraph 114 of the same case, Justice Callinan made the point that it is important that the requirements of section 18 must be carefully satisfied. His Honour said that:

Any prior statement which a party wishes to adduce must clearly and substantially be put to its maker before the evidence of it is adduced.

His Honour went on to say, at the end of the same paragraph, that:

it must be kept in mind that if the witness does distinctly admit to the making of a statement, that is the end of the matter.  The occasion for other proof of the making of the statement simply does not arise.

In Nicholls v R (2005) 219 CLR 196, a case that was concerned inter alia with the collateral evidence rule, at paragraph 207, Justice Kirby emphasised the importance of complying properly with the procedural requirements to properly lay the ground for admissibility. His Honour said that the provisions of the Evidence Act are:

not exhaustive of the common law.  It is rather illustrative of a . . . general principle. The requirement to lay the ground derives from considerations of procedural fairness to the witness whose credit is impugned. It is also protective of the fairness and efficiency of the trial process.

In the same case of Nicholls at paragraph 275, Justices Hayne and Heydon set out the common law rule from the reasons of Chief Justice Abbott in The Queen’s Case, 129 ER 976 at 988, including the statement that:

if it be intended to bring the credit of a witness into question by proof of any thing that [s]he may have said or declared, touching the cause, the witness is first asked, upon cross‑examination, whether or no [s]he has said or declared, that which is intended to be proved.  If the witness admits the words or declarations imputed to [her], the proof on the other side becomes unnecessary; and the witness has an opportunity of giving such reason, explanation –

as the circumstances may allow. Thus the whole of the matter is brought before the Court at once.

BELL J:   The error that you identify is that the prosecutor went straight, as it were, to the tape recording, rather than asking the applicant whether he had had a telephone conversation with Ms – whatever the lady’s ‑ ‑ ‑

MR KEIM:   G, I think if we use, your Honour.  G it was, yes.

BELL J:   G ‑ “In that conversation, did he state” and then whatever the statement relied on is.

MR KEIM:   Yes.

BELL J:   That is the nub of the complaint, is it?

MR KEIM:   Yes.  And the confusion that seemed to arise both at trial with defence counsel, and even continued to some extent in the Court of Appeal, is that what the Crown Prosecutor seemed to be purporting to do was to use the procedure that is discussed, for example, in the Queensland case of R v Bedington, where you put a hospital report before a witness and make sure that the witness does not identify that, and ask the witness if they persist in their evidence on a particular point. 

Now, there are really two difficulties with that.  One is you cannot use the Bedington point to get around section 18(2) and the common law. But also, the Crown Prosecutor was not at all careful ‑ the whole dramatic process that was used of playing it to the applicant in court where the jury could not hear it, made it clear it was a conversation, made it clear it was a recording, it did all the things that in the third party document that you avoid anyway.

KIEFEL CJ: Well, you are putting this on an unfairness basis, really, about the way in which it was undertaken, rather than the respondent’s approach, which is that there was no obligation, as I understand it, that section 18 was not engaged. There was no obligation to go down the path of proving a prior inconsistent statement. It was open to the prosecutor to see if an admission could be obtained, and it was. And so the question is, why did section 18 have to be engaged?

MR KEIM: I am in partial agreement with your Honour, but the point that I cite ‑ the common law is that the whole thrust of section 18(2) – and if section 18(2) is read very narrowly to avoid those requirements in those circumstances then the common law still applies and the whole basis of section 18(2) and the common law is the fairness point, as your Honour correctly raises.

KIEFEL CJ:   It is also facilitative, is it not?  It aids the person adducing the evidence, to prove as a fact the prior inconsistent statement.

MR KEIM:   Absolutely, and they are the three points.

KIEFEL CJ:   The considerations of fairness I think are fairly narrowly tailored, both in the Evidence Act and at common law.  It is really just concerned with proof of a fact.

MR KEIM:   Well, can we say two things with regard to that, your Honour.  The first is, of course, where the person being cross‑examined is an accused person, then the issues of fairness and fairness of the trial loom larger than if it is only a peripheral witness in a civil trial.

KIEFEL CJ:   True.

MR KEIM: So that is the first point we make. The aspect of the fairness in the procedure that is required, both in section 18(2) and in the common law, is that it brings to mind the circumstances, and allows the witness to say, “Yes, that is right, I do remember that conversation now. I do remember I said that”. And what we say here ‑ and this is probably the third of the two things ‑ is that the drama associated with earphones and playing a tape – and really, the jury would be there watching the face of the accused person.

KIEFEL CJ:   Well, what prejudicial effect do you say follows from it, that he feels compelled to make an admission?

MR KEIM:   We say, and what the authorities say, is that one of the reasons with regard to not splitting the case, which is the second ground, is that it gives the Crown a last say, as it were.  That is, in terms of adducing evidence, the splitting of a case, the last evidence that is important is something that the jury takes away with it.

KIEFEL CJ:   Well, that is a distinct point, you are splitting the case, is it not?

MR KEIM:   That is a distinct point.  But we say there was ‑ ‑ ‑

KIEFEL CJ: Because that might actually require the section 18 process to be undertaken.

MR KEIM: Yes. But what we say is that type of concept of fairness, of a dramatic cross‑examination device being used, without having gone through the common law and section 18(2) requirements ‑ ‑ ‑

KIEFEL CJ: Section 18 processes are pretty dramatic when they are used effectively.

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   It is a bit like being at the end of a poker game, is it not? 

MR KEIM:   Yes, but the cards ‑ ‑ ‑

KIEFEL CJ:   It is a full flush.

MR KEIM:   You do not have to comment until the cards are shown to you, yes, yes.

KIEFEL CJ:   You do not have much time to think about it.

MR KEIM:   No.  I mean, this was an important matter, in terms of the evidence.  In terms of the investigation, the pretext call was important.  It is unlikely that the applicant would not have had an opportunity to respond in a more measured way, and consider what he had said on the previous occasion, if it was not produced in the dramatic way that it was.

KIEFEL CJ:   So essentially what you are saying is that the process did not give him time to consider the position he would take?

MR KEIM:   Yes.  Well, yes, it did not give him a chance to recall to mind the conversation and that he had these things, and to admit that he had said these things, and then to respond to cross‑examination as to why he had said different things.  It all happened in a whirl.

The other aspect of it is that because the prior inconsistent statement was not identified precisely, as part of a section 18(2) or common law process, then the subsequent questions and answers gave it much broader effect. So the jury would not have been criticised if, at the end of the day, they thought that the admission in the pretext call had actually been given to having showered with the complainant on the very day in question.

Whereas if it had been identified, and the prior inconsistent statement had been identified that much earlier, when the children were much younger, the children would jump in the shower with the applicant, that is a very different prior inconsistent statement to what – and it tended to be accentuated by the way in which the questions were asked in the sense that it was just spoken about in general terms, “The fact that you admitted to having jumped in the shower with the complainant” rather than, “The fact that you admitted much earlier in time to having jumped in the shower with your three siblings”.

They are two quite separate concepts.  So if the process had been adhered to, and the cross‑examination had been conducted fairly, to use your Honour the Chief Justice’s words, then the impact on the fairness of the trial would have been significantly less.

BELL J:   Mr Keim, do you suggest that it was not open to the prosecutor to adopt the approach of inviting the witness to listen to a tape recording that was unidentified as to its circumstances ‑ this is as far as the jury is concerned ‑ and then ask whether he adhered to the evidence that he had given in relation to showering with the complainant?

MR KEIM: Yes, we do, your Honour. We say that if section 18(2) is not broadly enough to capture it, then the common law rules from The Queen’s Case are broad enough to catch it because, as I indicated, it is much more general, it says:

if it be intended to bring the credit of a witness into question by proof of any thing that [s]he may have said or declared, touching the cause, the witness is first asked, upon cross‑examination, whether or no [s]he has said or declared, that which is intended to be proved.

So we say the common law requirement is a legal requirement.

BELL J:   Well, at the time of the trial of Queen Caroline we did not have tape recordings.  Is playing a tape recording through earphones so the jury do not come to hear of its contents not sufficient to identify the occasion to a person who agrees that he recognises the voices on the recording?

MR KEIM:   We would put it this way.  Firstly, it is much fairer to show a transcript, but we do not say that it would be impossible, as an alternative to showing the transcript, to allow part of a conversation to be played as a substitute to showing a transcript, provided the common law requirements of having identified it previously.

One might go, for example, by way of transcript, and then to tape, if the person denied the conversation ever took place, denied ever having said that, looked at the transcript, denied that he or she had said that in the transcript, and then was asked to listen to a tape in those circumstances.  But going straight to it raises questions of fairness which would not arise in the context where a person has just simply denied the event at all.  I should probably go to my second ground, your Honours.

KIEFEL CJ:   Yes.

MR KEIM:   Again R v Soma at paragraph 29 the plurality confirmed the rule that the Crown:

must offer all its proof before an accused is called on to make his or her defence.

At paragraph 31 the plurality stated the rule by reference to the qualifying clause, to the extent that the statements of the accused person are “admissible and incriminating”.  The plurality made the corollary point that to the extent that an otherwise incriminating statement contained exculpatory material, the prosecution must take the good with the bad and put it all before the jury.

BELL J:   Mr Keim, to succeed on this you have to establish, do you, that the statements made in the pretext call were admissible in the prosecution case.  That is, any statement as to showering with the complainant had relevance in the prosecution case.

MR KEIM:   We say we do satisfy that but we say it is not necessary.  If I can refer your Honour to what Justice Callinan said in Soma at paragraph 97.

BELL J:   Yes.

MR KEIM:   He gave an example of a situation where leave to adduce the prior inconsistent statement might be given and in introducing the example, his Honour addressed it in generic terms as:

where the point of inconsistency is one of central importance, although not one on which evidence could necessarily have been led in chief.

So we say that they are two separate requirements.  And we say this, that whether or not it could have been admitted, it could have been adduced in the case, the moment that one starts cross‑examining with the objective of adducing new material, one is, as it were, adding to the Crown case which has already closed and we say at that point leave needs to be obtained, even if it were not permissible.  And a number of the discussions in Soma obviously say that cross‑examination on prior inconsistent statements, the rule applies to those.

So what we say is that at the point at which you start the cross‑examination on a prior inconsistent statement that was not included as part of the Crown case, you are adding to the Crown case and so at that point you need leave to do that.  And if it were not admissible in the Crown case, applying what Justice Callinan says, that is part of the matters that is favourable with regard to leave, but Justice Callinan adds the additional requirement, that it be a matter of central importance.

We say in that regard, the example which his Honour took from Justice Pincus in Burns, and I think Justice Pincus in Burns actually took it from an earlier case, was where a person is given a wholly exculpatory statement and said that she knew nothing about the events at all, but then gets into the witness box and says, “Look, I was there, I did not know what was happening.  I was involved but I was not guilty of the offence”, that is what Justice Callinan, and earlier Justice Pincus, had said was a matter where leave would be given because (a) it was wholly exculpatory, it could not be given in the Crown case and because it went to a matter of central importance, then leave should be granted.

So we say those points need to be satisfied.  I probably should indicate, what I did mean to do, your Honour, was to hand up passages of the address of the Crown.  We have actually referred to these, in terms of the – in our application.  We have referred to these – can I hand those up, your Honour, just so that the references that I give, your Honours are able to access them because the references in the application to these points was to the application book and I did not realise ‑ ‑ ‑

BELL J:   Is there some part of the material you have just handed up?

MR KEIM:   Yes, your Honour.

BELL J:   Where are we to turn to?

MR KEIM:   Can I indicate the following.  The first point I wanted to indicate was that at page 45 of the record book, that is the actual record book, at paragraph [3], the Court of Appeal makes it clear that the Crown was aware, at least from the taking of the pre‑recorded evidence, that the complainant was going to say on the day, he had a shower with me but nothing happened.

BELL J:   I am sorry, you took us to page 45 of the application book.  What paragraph?

MR KEIM:   That was page 45, paragraph [3].

BELL J:   I see.

MR KEIM:   This is prefatory remarks, if I can describe it like that, your Honour.  And then in terms of the document that I have just handed up, the Crown Prosecutor, in our submission, suggested that the circumstances that the applicant had previously been in the shower with the complainant was probative of guilt, when he said in cross‑examination at page – and this is in the previous book that the Registry obtained from us, which is the cross‑examination ‑ ‑ ‑

BELL J:   Yes.

MR KEIM:   ‑ ‑ ‑ and they are all numbered ‑ at page 104, lines 20 to 21, that in the context of an allegation of rape:

isn’t the last thing you’d want to admit . . . that you’d been in the shower with –

the complainant.  So we say the Crown Prosecutor, in his cross‑examination, is relying upon that as a form of circumstantial evidence going to prove the offences.

BELL J:   Yes.

MR KEIM:   The Crown Prosecutor ‑ and this comes to your Honour’s question ‑ repeated that question and its answer in his closing address at page 167, so the numbering goes on in that document that I have handed up, at lines 1 to 10.  So that is the first element of why we say it was relevant at the beginning of the Crown case, not simply after inconsistent evidence had been given.  The Crown Prosecutor raised the proposition that an admission by the applicant that he had showered with the complainant and his siblings previously was an indication that the applicant had esoteric knowledge of the events on the day, on which the offences are said to have occurred.

BELL J:   I am sorry, Mr Keim, where are you?  We are on page 167 of the material that you handed up.

MR KEIM:   Yes, your Honour.  And I have finished with that point, that is page 167, lines 1 to 10.

BELL J:   Yes.  Well, Mr Keim, just if one goes on that page to lines 28 and 29, the prosecutor says:

You might think his explanations or attempted explanations really left his credibility in shreds.

That is the point, I think, that was of significance in dealing with this aspect of your challenge in the Court of Appeal, namely, the thrust of the prosecution submissions was directed to issues of credibility.

MR KEIM:   Yes, your Honour.  We accept that the Crown Prosecutor skipped between relying upon it as part of the substantive case and relying on it as attacking the credibility of the applicant but we say that the latter does not disqualify the former.

BELL J:   Yes.

KIEFEL CJ:   I see the light, Mr Keim.  Do you need a few more moments?

MR KEIM:   Yes, please, your Honour.  Just to give the Court these references.  On the second of these three aspects, going back to the cross‑examination, can I refer the Court to page 104, lines 44 to 47, where the Crown Prosecutor asked whether the applicant knew, at the time he admitted to G that the complainant had jumped in the shower with him, that getting in the shower with the complainant was part of what was alleged to have occurred on the day when he allegedly the assaulted the complainant and the applicant said, “No”.

Then the Crown Prosecutor used this question and answer in his closing speech, and this is what I handed up today, at page 167, lines 15 to 27.  He repeated the question and answer, and he said that:

In the context of . . . having had the allegation of sexual assault put to him –

and the applicant “saying – denying” that he did anything sexual, and saying:

We just got in the shower,” before he even knew that the getting in the shower was part of the allegation, you might think that’s absolutely devastating to his case.

So we say there that the Crown Prosecutor is relying upon what was said in the pretext call as evidence of esoteric knowledge.

Then the last of the three issues is the use of the word “damning admissions”.  That is referred to for the first time at page 162, lines 40 to 45.  And then his Honour – and we do not criticise his Honour for summarising the Crown prosecution – but all of this was picked up at page 28 of the appeal book, when those matters were repeated by his Honour at lines 1 to 21.

And can we just say, your Honour, when the Crown Prosecutor spoke of “damning admissions”, and when his Honour repeated the argument, it was clearly identified that the “damning admissions” were the admission that he made to G on the phone that he had showered with the complainant:

Now, that was an admission that you might think he did his best . . . to get away with ‑

So we say, in those three aspects:  one is a generic use of the words “damning admissions”, one goes to a circumstantial case related to the odd behaviour of showering with a sibling, and the third goes to the esoteric nature of the knowledge, that it was actually used as part of the substantive case of the Crown.  It did not simply go to arguments with regard to credit.

In that sense, the Crown should have sought to adduce it on those two bases.  Whether it was permitted to or not, leave should not have been given, if an objection had been made, to enhance and split the Crown case by conducting cross‑examination with regard to a prior inconsistent statement that had not been included in the Crown case.  They are the submissions, thank you, your Honours.

KIEFEL CJ:   Thank you, Mr Keim.  We do not need to trouble you, Mr Heaton.

There are insufficient prospects of success to warrant the grant of special leave to appeal.  We consider the interests of justice do not require a grant.  Special leave is refused.

The Court will now adjourn to 10.00 am on Tuesday, 6 August in Canberra.

AT 10.58 AM THE MATTER WAS CONCLUDED