Obian v The King

[2023] HCATrans 135

[2023] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M29 of 2023

B e t w e e n -

SAER OBIAN

Applicant

and

THE KING

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 13 OCTOBER 2023, AT 9.30 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR C.T. CARR, SC and MS H.L. CANHAM for the applicant.  (instructed by Milides Lawyers)

MR C.B. BOYCE, KC appears with MR G.L. BUCHHORN for the respondent.  (instructed by Office of Public Prosecutions (Victoria))

KIEFEL CJ:   Mr Walker, I think an extension of time is required.

MR WALKER:   Yes, your Honour. 

KIEFEL CJ:   Is there any objection, Mr Boyce?

MR BOYCE:   My opposition is only formal, your Honours.  I am happy for it to be bound up in the merits of the matter.

KIEFEL CJ:   Yes, thank you.  We will proceed on that basis.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  The power granted by section 233, which your Honours will find at 227 in the application book, regulates the relevant criminal procedure in relation to a matter fundamentally significant to the accusatorial system, and in particular, the aspect of an accused is entitled to know the whole of the case against him or her before deciding whether to give evidence.  That, in our submission, remains true, notwithstanding the absence of any legislatively stipulated requirement for special or exceptional circumstances to reflect the antecedent common law.

In our submission, with respect to the existence of a substantial miscarriage in this case, there are, with respect, two simple steps correctly taken by Justice Priest and in large measure well on the way to being achieved in the other reasons in the Court of Appeal, which ought to have resulted in orders for a retrial.  The first step is unanimous, namely that but for the leave being given to reopen on the part of the Crown, there was a chance – which was not unrealistic – of an acquittal, or to put it another way, as is plain to demonstration from a passage in Justice Macaulay’s reasons, paragraphs 374 and 375 at page 200 of the application book, there would not have been, on account of so‑called inevitability of conviction, a refusal to make such orders upon a substantial miscarriage.  In our submission, there is the substantiality leaving only the second step:  is there a miscarriage here which meant that the trial, in particular, was not held according to law?

In our submission, the particular meaning to be given in this case to that expression includes the miscarrying of a discretion.  Familiarly, from House v The King, for example, a discretion miscarries if it is exercised on the basis of a wrong understanding of the facts.  The facts relevant to the exercise of the discretion under section 233(2) are, of course, particularly focused on the state of affairs concerning party disclosure, now regulated by the Act.

Unfortunately, when the Crown made their application after questions in cross‑examination of the applicant locking in times, it was put on the completely wrong basis that it was only in the applicant’s evidence in‑chief, following the close of the Crown case, that there was any inkling that the applicant admitted hiring a van – which was close to the heart of the case against the applicant by the Crown.

KIEFEL CJ:   Mr Walker, would the appeal be put on the basis – sorry, this application for special leave – is it on the basis of a visitation to correct what you have just referred to, on the basis that that was a wrong basis for the court to exercise its discretion in relation to the prosecution reopening, or is it a question of public importance that is involved here in relation to section 233?

MR WALKER:   Your Honour, this is one of those cases where those two are not completely distinct, but certainly, from my client’s point of view, our application is most definitely calling in aid the particular injustice he suffers, that is, a visitation matter.  But, of course, it is concerning a matter of significance and recent statutory regulation of one of the cardinal features of an accusatorial trial in the sense that I opened on.  So, yes, there is a general importance in this very important discretion being exercised properly.  This case is simply one of the ways in which such a discretion may be improperly exercised and is nonetheless generally important, notwithstanding, of course, it is a visitation case depending upon the view one takes of the existence of this egregious error.

KIEFEL CJ:   On appeal, would you be arguing in relation to section 233 that it ought to be construed in accordance with the common law requirement of exceptional or very special circumstances?

MR WALKER:   Probably not quite so bluntly, your Honour, but I think really the answer to that question is yes.  Let me explain.  We would be arguing that section 233(2) is the statutory regulation of a trial, the accusatorial features of which are in no sense to be regarded as fundamentally altered by that provision.  To put it another way, there is no suggestion in either the legislative history or in the terms of the enacted text that it was intended to detract to any extent from the characteristic feature of a trial as one where the Crown case ought to be fully known by the accused before he or she exercises the right to give evidence or the right not to give evidence and without comment.

It is for those reasons that, yes, whether by epithets such as “exceptional” or “special”, or whether simply by a phrase such as, but not so as to detract from, the fundamental features of accusatorial trial, we would certainly be arguing that these are provisions and this is the kind of case which would serve as a proper test, and depending upon on the outcome, as in our submission a salutary reminder, that these powers are designed to avoid the unfairness to the community of what I might call slips, rather than to alter the balance of forensic position, which is the characteristic feature of an accusatorial trial.

STEWARD J:   Mr Walker, can I ask you a question.  What do you say about the reasoning in Justice Macaulay’s judgment, from paragraphs 352 to 357, when his Honour said that the surveillance evidence was simply irrelevant to the issue of whether your client hired the van and went solely to the question of whether he had delivered it to Mr Allouche – if that is how you pronounce his name – so that the misleading statements did not really touch upon or go to the exercise of a discretion by the trial judge?

MR WALKER:   The first part of my answer is – but as we have pointed out in our application, of course the trial judge took into account – during discussion with counsel, which was incorporated into the reasons – the statement, unfortunately not directed by the counsel for our client, but there had been, only for the first time, revealed the admission of hiring the van.

In further answer to the way Justice Macaulay puts it, there had also been the prior foreshadowing of an alibi concerning delivery of the van.  For all of those reasons, in our submission, it is Justice Priest who is correct in saying that had those mistakes not been made, the application would have been differently and oppositely decided.  The whole of the dialogue – which, as I say, is to be understood as supplying reasons for the decision that is recorded concerning the making of the application – suggests, in our respectful submission, that Justice Macaulay’s explanation in those paragraphs is somewhat artificial and does not, in fact, replicate the forensic reality at the time.

STEWARD J:   Do you disagree with Justice Macaulay’s characterisation of the exchange between counsel and the trial judge, which his Honour says was focused upon the appearance of Mr Allouche for the first time?

MR WALKER:   Yes, I do disagree.  That is, the focus is on the surprise novelty of it being admitted that he had been involved in hiring the van, a matter which, as we know, had been part of the foreshadowed alibi answer. 

So, no, in our submission – again, going back to the way in which it was argued – put by the Crown, alas, not directed by the defence – plainly, the hiring of the van being admitted, the alibi, obviously, involving that kind of trip, all of that, in our submission, can be seen as at the core of the way in which the discretion was sought by the Crown to be favourably exercised in favour of the Crown.  Again, it is, in our submission, artificial, as it were, to re‑engineer and to point up a different way one might have reasons to a similar outcome of the discretion. 

That is why, in our submission, it was a miscarriage, the substantiality of it – if it be a miscarriage – being common ground.  Now, your Honours, I have, I think, in answer to the Chief Justice in particular, anticipated what we were going to say concerning the nature of this application.  It does combine both visitation aspects, bearing in mind the finding as to substantial miscarriage, if there were any miscarriage.  It is – as I say, with respect to an aspect of accusatorial trial, which is never unimportant – for those reasons, in our submission, that there should be a grant of special leave.

KIEFEL CJ:   Yes, thank you, Mr Walker.  Yes, Mr Boyce.

MR BOYCE:   Thank you, your Honours.  Firstly, can I just note that it is important to recognise that his Honour the trial judge, in this case, applied the exceptional circumstances test – that is to say, the common law test – in deciding to allow the Crown to reopen.  So, it might be said that – I know Mr Walker has suggested both visitation and principle on that exceptional circumstances situation, but the fact is the trial judge did apply that – so, our opening submission would be this is not a good vehicle to explore that particular legal matter.

On the question of visitation, the fundamental issue in this case is whether or not we have turned the applicant’s Allouche evidence, which was that Allouche visited – sorry, I should say the applicant visited Allouche visited in Coburg after 12 o’clock on 14 June 2016 to pick up funds and speak to him, and also, on a second time, to drop out the rental van, leaving aside matters immaterial.  It was necessarily foreseeable on the Crown’s part; that is the fundamental question.  The applicant, in this case for reasonable foreseeability, was based upon the array of facts and circumstances that are outlined at paragraphs 338 to 339 of the judgment below, which is found at application book 191 to 192.

As is obvious, the majority of the court below rejected the contention that these matters gave rise to reasonable foreseeability on the part of the applicant’s Allouche evidence.  The judgment below at 341, Justice Macaulay rejected the contention, describing that array as a “Delphic breadcrumb trial”.  Similarly, Justice Niall at 112 of the judgment below, found at application book 147, said: 

The evidence that the applicant hired the van for Allouche was entirely new and could not reasonably have been anticipated. 

Justice Priest, as my friend has properly recognised, focusing more on the impugned statement by the prosecutor which I will come to, declared in the judgment below at 71, application book 137:

had the judge been made aware that the applicant had admitted the very matter which the prosecutor told him the applicant had not, I have no doubt that the judge would have exercised his discretion differently and refused the application to reopen the prosecution case.

The declaration, we submit, with respect, without any express reference or analysis of the applicant’s arrayed case for reasonable foreseeability; or any analysis of why, for instance, Justice Niall was wrong to conclude at 108 of the judgment below that the applicant’s hiring of the van was largely irrelevant to the application to reopen; or why, as we would put it, it was wrong to conclude that the applicant’s Allouche evidence was not reasonably foreseeable when even assuming foreknowledge that the applicant would say he did hire the van – but, of course, his formal position on the documents was to suggest that he had not admitted – that he did not admit doing so, and where there was no challenge of the witness Wang as to saying her evidence of the man had said that he wished to hire boxes, that he would, as it were, confess in a void and say that he took the van to the one person whom the surveillance evidence suggested was impossible.

Now, of course, the applicant’s Allouche evidence – well, I should say the surveillance evidence, which is helpfully summarised in the judgment below at 296 to 298 at application book 180 to 181, gives no reference to any taxi, to the applicant, nor any van seen at Allouche’s place over the relevant period.  Indeed, Allouche is depicted from, I think, 12.23 am to 12.46 elsewhere at a 7‑Eleven in Bell Street, or a kebab shop in Sydney Road.  It could be asked, perhaps a little rhetorically in those circumstances, how possibly could it have been that the Crown might foresee that the applicant would say he conferred with, or convened with – physically, that is, in Coburg at Allouche’s house – the one person that there is this evidence that they had, and also that the applicant had made impossible.

The majority’s conclusion on reasonable foreseeability – which is the fundamental question here – is plainly correct, we submit, and not simply open; it is obviously correct, and it is not the subject, as we apprehend it, of any express reasoning to show its error on the part of the dissentient judge in this case.  The applicant clearly disagrees, obviously enough, with that conclusion, but apart from simply saying that it is wrong, the applicant – at least in the documents – has made a two‑prong attack upon that conclusion, and only really one of those prongs has been outlined by my friend in oral submissions.  When both of those prongs are examined and held up to scrutiny, they are found wanting.

The first substance of the attack is the argument, orally, that has been made by my friend this morning, which is to fix upon the prosecutor’s impugned statement and contend – like Justice Priest concluded – that this must have vitiated the trial judge’s reasoning or discretion.  But this contention runs headlong into two fundamental difficulties.  The first is, as Justice Steward has noted, the majority’s conclusion that upon close examination of the course of the argument at trial level – sorry, the prosecutor’s impugned statement did not vitiate the exercise of the trial judge’s discretion.  What the prosecutor said – which is variously described by the majority as an “overstatement of the true position” – one finds that in the reasoning of Justice Macaulay, at 271, application book 174.

STEWARD J:   Just one moment, Mr Boyce ‑ ‑ ‑

MR BOYCE:   Yes.

STEWARD J:   Sorry, the Chief Justice has returned.  Thank you.

MR BOYCE:   Sorry.  Or as a false flag – as Justice Niall would have it – was simply not considered material by the trial judge.  For instance, in the judgment below, at 277 to 285, application book 175 to 177, there is close analysis with the discussion by the trial judge and counsel which justifies, for example, the conclusion reached at judgment below at 353 by Justice Macaulay at application book 194 – namely, that rather than demonstrating that the judge acted upon a mistake in apprehension that the Crown was unaware that the applicant would say he hired the van, the discussion between the judge and counsel demonstrated the judge was fixed upon of what notice had been given that the applicant had hired the van for Allouche, delivered it to him and gone home – or in the judgment below at 354, application book 195, where, to summarise, the conclusion the conclusion is reached ‑ ‑ ‑

KIEFEL CJ:   Mr Boyce, just on that point, there had, in fact, been notice given by way of pre‑trial admission and notice of alibi, had there not?

MR BOYCE:   To?

KIEFEL CJ:   In relation to the hiring of the van.

MR BOYCE:   That is why it is said that the prosecutor raised the false flag by saying the contrary, yes.  The point is that their Honours who considered – that is to say, Justice Macaulay – closely the course of the trial or course of the argument, so that the judge, effectively, considered that an irrelevancy.  It was not material to his decision‑making.

KIEFEL CJ:   But it is one thing for an appellate court to say, with hindsight, that it does not really have much relevance.  It is another thing to say whether or not that affected the mind of the trial judge in allowing the prosecution to take the course that it did. 

MR BOYCE:   Their Honours are clear in saying, in my respectful submission, in those parts of the judgment I have taken the Court to that it is the latter and in the negative; namely, it is clear that it did not affect his Honour’s mind.

STEWARD J:   Mr Boyce, your point is that there is simply no logical connection between the surveillance evidence that was led and the question of whether the applicant hired the van.  It does not go to the hiring issue at all.

MR BOYCE:   One can imagine a situation, let us say, of the prosecutor leading the surveillance evidence in her case, and the first thing that would be uttered:  what are you leading this evidence for?  What does it go to?  If the prosecutor then said, well, you know, based on the array of facts that in 338, we anticipate that he might say he took it to Allouche’s place, the obvious response, it is obvious he did not take it to Allouche’s place.  We all know that because we have the surveillance evidence that says it is impossible. 

So, the point is, even if the majority in the court below was wrong to conclude that the judge considered that matter irrelevant, it still in no way vitiates the conclusion which we say is plainly correct in the court below and the conclusion it reached – at least, if it is plainly correct, reached by the trial judge – that the applicant’s Allouche evidence as I have determined or I have described was not reasonably foreseeable for the reasons that I have said and for the reasons that are displayed or set out in detail in the majority’s judgment but seem, with great respect, at least not to be stated expressly in the reasoning of the dissenting judge in this case.

I will not waste the Court’s time, but you see recognition by Justice Macaulay at 355 to 356, application book 195, of this fact; namely, that even if the judge had misapprehended in some way or the prosecutor’s misstatement had vitiated the discretion, it could have caused no substantial miscarriage of justice.  If I may just read from 355 at application book 195:

It is therefore a distraction to focus on an error in representing the Crown’s knowledge that the applicant might admit he hired the van.  Even if it could be characterised as an irregularity —about which I have real doubt — it certainly did not result in any substantial miscarriage of justice.  It was not the fact that led the judge to make his ruling.

Had the judge been informed that the applicant had previously prevaricated between denying, not admitting and admitting that he hired the van, the critical issue was why, for whom and what he did with it.  Knowing only that the applicant hired the van (as the prosecution evidence itself soundly established) did not rationally lead to the conclusion that he did so for Allouche, and there is no reason to suppose that the judge’s decision would or should have been any different had the applicant’s previous ‘admissions’ been revealed.

So, this prompts the second attack that we see in the documents upon the reasoning, and it has not been elucidated orally, but if I could just deal with it very briefly, which is to suggest that Justice Macaulay, not Justice Niall, applied the wrong threshold in terms of disclosure when it came to the defence response, and this infected his Honour’s assessment of reasonable foreseeability.

Perhaps the best evidence of that – that would be a strange thing for his Honour to have done.  His Honour may have had a view about whether, under section 183 of the CPA, the defence response was compliant, but the fact, or otherwise, of its compliancy was not the reason why his Honour determined that there was no reasonable foreseeability.  Reasonable foreseeability was determined simply only on his Honour’s assessment of the array of facts and circumstances that had been relied upon by the applicant, which is set out by his Honour – that is to say, Justice Macaulay – at 338, 339, over to 344.  Paragraph 344, at application book 193, being the fact that the Crown and the defence had the surveillance evidence that effectively gave the lie to the applicant’s Allouche evidence.  Why would they think that the applicant would then go on to say, I conferred or convened with Allouche at his house in Coburg.

Perhaps the best proof of the fact that the Justice Macaulay did not fall into the trap that has not been described or alleged against him orally – at least today by my friend; it certainly appears in the papers – is that Justice Niall, whom is held up as an exemplar of someone who has not, in the documents, made that error, agreed with Justice Macaulay – entirely agreed with Justice Macaulay, that, in essence, the applicant’s Allouche evidence was not reasonably foreseeable.

Our contention therefore is, in conclusion, that – in one sense, we end where we began with the fundamental issue of reasonable foreseeability.  Putting that array together, it simply is – the reasoning of the court below, in terms of the majority, was plainly correct.  It only needs to be stated, and I have stated it and I will not repeat it.  Really, in essence, given that this trial judge did apply the exceptional circumstances test, this application could only be ceased ‑ ‑ ‑

KIEFEL CJ:   Mr Boyce, the trial judge may have applied the exceptional circumstance test, but Justice Macaulay eschewed that.  He seemed to think that the statutory provision had replaced the common law test, did he not?

MR BOYCE:   Yes, he did.  That is true. 

KIEFEL CJ:   So, given the position of the Court of Appeal, your case, really, comes down to whether or not – if that is a live issue about how one reads 233, your case comes down to whether this application is an appropriate vehicle.  I take it you rely upon your main submissions.

MR BOYCE:   Yes, we have the trial judge applying the higher test.  It cannot be inappropriate – if there was anything in it, which we do not submit that there is – because ultimately, you come back to reasonable foreseeability, and we submit that the decision of the court below is plainly correct, and on that basis, special leave should be refused, your Honour. 

Those are my submissions, your Honour.

KIEFEL CJ:   Thank you.  Mr Walker, anything in reply?

MR WALKER:   Your Honours, it cannot be to the point that the trial judge applied for more abundant caution, the exceptional test – bearing in mind that it was applied on what we have submitted is plainly a misapprehension of the facts, and in a fundamental, important way.  In relation to the, as we put it, artificial and hindsight reconstruction – supposedly logical – of the centrality of the Allouche component of the case, rather than simply the hiring of the van, we have these points.

The first is, that they are in fact, of course, inextricably linked, and that so much was plainly made clear as a possibility before the Crown had closed its case.  I draw to attention what Justice Macaulay has summarised.  Application book 159, paragraph 168, item two, concerning Allouche being the subject of cross‑examination of the main Crown witness Moustafa, concerning the possibility of contact between the applicant and Allouche, you will find that picked up as well, of course, in the passage at application book 165, 166, paragraphs 209 and 210, with respect to all of that being

done before the Crown closed its case.  When, as my friend has drawn to attention, in paragraph 338, application book 191, Justice Macaulay then turned to pull those threads together, it is plain, with respect, that you cannot separate the hiring of the van and Allouche, and that those were matters that were completely misunderstood by the trial judge in determining the application.

It is for those reasons, in our submission, that what one sees at application book 192, paragraph 342, was a misplaced comment concerning the course of free trial, and forensic events, prior to the Crown closing its case.  It is not an “ambiguous and Delphic breadcrumb trail”, and in any event, this case, if that were persisted in, would have a further aspect of importance, namely, that approach to defence pretrial conduct rather than the approach, with respect, correctly understood by Justice Priest, which may determine the significance of that which is and is not contained in defence disclosure before the close of a Crown case.  It is for those reasons, in our submission, that this case does present a vehicle for the broader point – the more general question – as well as, in our submission, a compelling case of a visitation find.

May it please the Court.

KIEFEL CJ:   The Court will adjourn to consider the course that it will take.

AT 10.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.08 AM:

KIEFEL CJ:   There will be a grant of special leave in this matter.  Mr Walker, what is your time estimate?

MR WALKER:   Half a day.

KIEFEL CJ:   Do you agree with that, Mr Boyce?

MR BOYCE:   I do, thank you, your Honour.

KIEFEL CJ:   Yes.  Thank you, gentlemen.  The Court will now adjourn until 10.30 am.

AT 10.08 AM THE MATTER WAS CONCLUDED