Mussari v The Queen

[1994] HCATrans 88

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Perth         No P5 of 1994  No C17 of 1993

B e t w e e n -

PAUL MUSSARI

Applicant

and

THE QUEEN

Respondent

Application for special leave
  to appeal

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 1994, AT 11.04 AM

Copyright in the High Court of Australia

MS A.G. BRADDOCK:   May it please Your Honours, I appear for the applicant in this matter.  (instructed by G.A. Lacerenza & Associates)

MR A.N. HOPE:   May it please Your Honour, with MR P.D. YOVICH I appear to represent the respondent.  (instructed by the Director of Public Prosecutions (Western Australia))

TOOHEY J:   Yes, thank you.  Ms Braddock.

MS BRADDOCK:   Your Honours, this application is really about the approach of the Court of Criminal Appeal to the appeal from the trial judge’s summing up, in that the Court of Criminal Appeal, in my respectful submission, took an overly simple view of the proposition that was put up before it.

That can be seen, in my submission, from the references and the comments made by His Honour the learned Chief Justice in the reasons of the Court of Criminal Appeal, for example at page 25 of the - - -

TOOHEY J:   Can I just interrupt you a moment, Ms Braddock?  We are, I take it, to be looking at the proposed grounds of appeal as they appear in the minute that we received?

MS BRADDOCK:   Your Honour, the proposed grounds that appear in the original application book, with Your Honours leave, I would seek to hand up - - -

TOOHEY J:   I do not think you need leave.  They are just draft grounds of appeal, but it is a matter of what we should be focusing on.

MS BRADDOCK:   To assist, I have amended the draft grounds and would propose to hand up to the Court copies of those at this stage.

TOOHEY J:   We do have a minute headed, “Minute of Proposed Amended Grounds for Application”.

MS BRADDOCK:   Those are the proposed - - -

TOOHEY J:   That is the Court of Criminal Appeal, of course.  Yes.

MS BRADDOCK:   There seems to have been some little difficulty in that the matters as argued before the Court of Criminal Appeal were as in that minute, rather than as in the grounds of appeal in the application book.

TOOHEY J:   What do you want us to look at now?

MS BRADDOCK:   These are amended grounds as for this Court, which perhaps more closely reflect the matter as it was argued in the Court of Criminal Appeal.

TOOHEY J:   Does that mean that the argument or potential argument based on circumstantial evidence is not now urged?

MS BRADDOCK:   In terms, yes.  Also the matter that appears in relation to certain of the aspects of the analyst’s certificate which appears in the argument put forward was not argued in the Court of Criminal Appeal.  I do not propose to trouble Your Honours with it now.

TOOHEY J:   Yes, thank you.

MS BRADDOCK:   The Court of Criminal Appeal regarded this as an “extraordinarily simple case”, in the words of His Honour the Chief Justice, which appears at page 30, line 31 in the application book. 

The difficulty with the case, fundamentally, was that the certain woman by the name of Pauley, who was the purchaser, allegedly, of the heroin, was called neither by the Crown nor the defence, and that certain statements by her to a police officer were elicited during the course of cross‑examination, and in fact, certain other statements in re‑examination of a police officer.

The way in which the learned trial judge dealt with that was in the context, in fact, of a direction similar to such a direction as might be given as to a co‑accused’s out of court statement, in which he had, at page 40 and line 37 onwards in the application book, directed the jury that the out of court statements could not be used against the accused.  Then came to the proposition, the final sentence in that paragraph, is that he told the jury that they should ignore what Ms Pauley had allegedly said to the police.  If we accept, for the time being for the sake of argument, that the jury would have accepted the officer’s evidence as to what that woman said to him, then we have in evidence statements which, whilst I believe it was conceded in the Court of Criminal Appeal, could not be tendered as the truth of those statements, were or had a proper use to which the trial judge could have directed the jury, but instead of which he directed the jury to ignore that evidence entirely, and the Court of Criminal Appeal appears to have dismissed the matter very swiftly and very categorically.

GAUDRON J:   To what use might the statements properly have been put?

MS BRADDOCK:   Your Honour, the statements might well have been put to the jury, whether the content of them was elicited or not, for the inference to be drawn that that person would not have in any way supported the Crown case had she been called.

GAUDRON J:   Was a direction to that effect asked for?

MS BRADDOCK:   Not to my knowledge, Your Honour.  It does not appear from the transcript.  There was in fact no direction given as to failures to call witnesses, only a direction given towards the end of His Honour’s summing up to the effect that the jury should not speculate.  That would be at page 16, line 5 to 51 of the application book.

McHUGH J:   But your problem is that the judge directed the jury that this evidence could not be used against the accused, a direction which, with great respect, I would have thought was unduly favourable to your client.  If counsel elicit evidence, whether it is hearsay or not, that is evidence in the case.  It was so held in this Court long ago in Walker v Walker.  Once it gets into evidence it is evidence for all purposes.

MS BRADDOCK:   Your Honour, that is indeed correct.  It may have been that the learned trial judge was unduly concerned with other aspects of the matter which were elicited both, I think, in cross‑examination and more particularly in re‑examination, to other things that this witness - or this non-witness - was alleged to have said.  But, it is the direction to entirely ignore the evidence which was effectively adopted by the Court of Criminal Appeal which illustrates, in my respectful submission, a willingness to simply put difficult matters into a category marked hearsay, and then fail to take them out and examine them further in any way.  It also ignores - - -

McHUGH J:   The actual direction you complain about, I take it, is at page 14 of the appeal book, is it?

MS BRADDOCK:   I believe page 14, yes.  The penultimate paragraph.  The final sentence at line 47:

Also, whatever the police may have said Belinda Pauley said should also be ignored in your deliberations.

That follows the direction which might be regarded as a co‑accused’s out of court statement type direction.  That then finds its way and is reflected in the reasons of the Court of Criminal Appeal where His Honour the Chief Justice at page 26 of the application book, beginning line 27:

There was evidence elicited from a police officer of what she had said to the police officer but that evidence was inadmissible hearsay and, in my opinion, the trial judge rightly directed the jury to ignore the evidence in the way in which it had come out during cross‑examination.

I am not entirely clear as to what His Honour the Chief Justice might have been turning his mind to in the qualification, “in the way in which it had come out in cross‑examination”, but the view was taken that the judge was right simply to tell the jury to ignore the evidence of that woman completely.  In my respectful submission, that is the real error, where a Court of Criminal Appeal effectively is dismissing a matter that was put to the court, that the judges should not be telling juries to ignore matters that had come into evidence, and whilst I would concede that the failure to object to evidence does not make it admissible ‑ ‑ ‑

GAUDRON J:   Were redirections sought, Ms Braddock, on this matter?

MS BRADDOCK:   Not to my knowledge, Your Honour.

GAUDRON J:   You have got a considerable difficulty there, have you not, in that redirections may well not have assisted you in some respects?

MS BRADDOCK:   It would depend, perhaps, on what redirection was suggested at the time and what was conceded however, Your Honour.  No, there was no redirection sought, to my knowledge, on that particular aspect of the case at that time.

TOOHEY J:   I am still not clear as to what place in the scheme of things you say that the statements made by Ms Pauley to the police officer might have played.

MS BRADDOCK   There was considerable emphasis, it would appear, in the trial, to the absence of Ms Pauley.  There was no explanation tendered by the Crown as to why that might be.  It was explored in the context of the defence case which leads to rather scathing remarks by His Honour the Chief Justice as to the efforts that were made to trace the witness.  But, nevertheless, efforts were made on the part of the defence to trace the witness and it would appear that her absence and her part in things had a considerable influence in the trial, and that the evidence that then was elicited that she had given an explanation, and that explanation was consistent with the explanation given by the accused, not going to prove, per se, the truth of what she said, but that in the circumstances she was not called by the Crown or sought to be called by the Crown or excused in some way from giving evidence.  Yet, there was evidence from which the jury might have inferred that her evidence or her being called as a witness would have assisted the defence and not assisted the Crown. 

Given all the circumstances, it was a circumstantial case, although some persons might say a strong one .  But that, in that context, led to an error and a miscarriage of justice, the jury simply being told to put that completely to one side and to ignore it, that in the context where it would appear it was a case where there were many implied hearsay assumptions in the Crown case.  The statement of the circumstances are set out on page 25 in the application book by His Honour the Chief Justice.  The paragraph beginning on line 13 is an exceptional statement of the Crown case.  But, of course, arising from a situation where the police officers say we have got some notes and we go and give them to a person, an informant who was also not called, watch his actions.  The implied insertions that, the officer being a drug squad officer had dealings with the informant, matters relating to drugs and this money.  Then the informant is observed to make a phone call, go to another place where the non‑witness, Pauley, meets him in her car, observed for something to change hands, and for her then to set off to another destination.  They are implied assertions that those matters had to do with a drug transaction from the very outset.  That is not reflected, of course, in the bald statement of the facts as set out on page 25 by His Honour the Chief Justice.

But those are matters of hearsay assertion which, in fact, amount to an assertion that the witness, Pauley, was going to the address of the accused in order to purchase heroin, which the hearsay assertion elicited in cross‑examination ran directly counter to the one and the other, being of no greater strength or weight, and no warning was given to the jury to, as it were, ignore any inferences of that kind, and the evidence was led in a way with those assertions, in my respectful submission, would be quite apparent to the jury that the whole thing from the outset was being put forward as a set up drug deal.  The non‑evidence of Pauley ran directly count to that.  That the jury were told to ignore, whereas the other matters did not rate any comment by the trial judge at the time, or any warning at all. 

In my respectful submission, whilst on the one hand it might be said, given those facts as set out by His Honour the Chief Justice, this is matter that might be merely peripheral, on the other hand, the situation is such that the intentions of the woman, Pauley, to go to buy drugs is clearly asserted by the Crown case.  Her assertion that that was not her intention is put out of the jury’s field altogether.  The judge does not say it as such, but on the ground, as reflected in the Chief Justice’s reasons, that it was merely inadmissible, or clearly inadmissible hearsay.  So to answer Your Honour’s question, that is the thrust and the scheme of things.  It is not simply the one matter alone in the context of the whole case.

As I indicated at the outset, save for that aspect, the wider aspect of other evidence in the circumstantial case, no exception is taken to the dealing with the second ground of appeal in the Court of Criminal Appeal, but the real thrust of the application for special leave is, here we have the Court of Criminal Appeal in Western Australia looking at the judgment, or the directions of the trial judge and telling the jury, in the context of a circumstantial case, in the context of much implied hearsay assertion, to simply ignore one part of a similar character by putting it in what might be described as the too hard basket, the hearsay basket, and leaving it at that. 

His Honour the Chief Justice does not appear to have examined in any way shape or form, that there might be other uses, or the jury could have been properly directed as to the limit of use that it could have made of those assertions.  It might also be argued, of course, that the same effect could have been achieved without having to adduce the content precisely in terms of what Pauley had said to the police.  It could have been put in such a way as an explanation was given and that she is not being called by the Crown.  As it came out in the way that it did, that explanation being consistent, in my respectful submission, that fact could have been left to the jury, not simply as saying, corroborate - and I would say cannot be called corroborative evidence of the accuser’s evidence when it is not given in evidence, but simply as a fact that in the circumstances where there was no opportunity and no evidence of opportunity for them to have conferred prior to being spoken to by the police, that this explanation was such that the Crown would not call her as a witness. 

Your Honours, those are my submissions on the applicant’s behalf, that this is a matter where special leave should be granted as the Court of Criminal Appeal has taken oversimplistic views of the hearsay concept in this way, and for the fundamental reason also that judge and jury’s functions - no need to cite any authority on that - remain separate, and for the judge to withdraw one portion of evidence from the jury whilst leaving unrecognised and untouched a substantial and highly prejudicial portion of the Crown case which is no better or no worse, is manifestly erroneous and

something that should be corrected.  Those are my submissions.

TOOHEY J:   Thank you, Ms Braddock.  We need not trouble you, Mr Hope.

The applicant now relies upon two grounds as supporting a grant of special leave to appeal.  Both relate to statements made by Ms Pauley to a police officer.  So far as those statements are concerned, no error of law has been demonstrated on the part of the trial judge or the Court of Criminal Appeal.  The trial judge was not asked to give any further direction as to any use the jury might make of these statements.  In the circumstances, the application must be refused.

AT 11.23 AM THE MATTER WAS ADJOURNED SINE DIE