Oblak v State of Western Australia

[2008] HCATrans 300

[2008] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 2008

B e t w e e n -

SCOT JEREMY OBLAK

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 8 AUGUST 2008, AT 1.09 PM

Copyright in the High Court of Australia

MR P.L.R. MEYER:   May it please the Court, I appear for the applicant.  (instructed by Thames Legal)

MR D. DEMPSTER:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

HAYNE J:   Yes, Mr Meyer.

MR MEYER:   Your Honour, this is an application for special leave to appeal.  It is not a submission of mine that a judge owes a duty of care to the accused.  It is my submission that a duty of care exists and the question for the Court to decide is where to draw the line.  The difficulty in this case is that evidence in the form of testimony was admitted and not disputed by the defence at the time of trial.  It is my submission that this must be seen, in effect, how it came about that the evidence was given in the first place.

We know that the testimony provided to the court was different from the statement given to the prosecutor by the witness prior to trial.  We also know that the defence only had notice a few days prior to trial of this change in witness statement.  We also know that the evidence provided in court was different from the evidence provided in the statement.  In particular, the evidence in the statement asserted that a T‑shirt was found, the T‑shirt allegedly belonging to the accused.  The evidence was given by a witness who was the mother of the co‑accused and that T‑shirt was never found.  Particular interest is that in a statement the witness referred to ‑ ‑ ‑

HAYNE J:   The real sting in the evidence was, was it not, the witness’ assertion that the T‑shirt was bloodstained?

MR MEYER:   Indeed, I was coming to that.  Your Honour is ahead of me.  In her witness statement she said it looked like blood.  At trial she said it was blood.  This is highly prejudicial and of little probative value, in particular because that shirt was never produced at trial, neither was a photograph or any other evidence supporting that testimony.

Your Honour, the prosecution relied very heavily on that testimony.  Indeed, in the opening trial counsel said, “There is one piece of evidence I did not mention.  I ought to have”.  He refers to the testimony as evidence, although his Honour in his closing drew to the jury’s attention that the testimony of the witness was quite different, but the judge gave no direction to the jury whether the stain referred to was indeed blood, or that it came from the deceased.

KIEFEL J:   That was because of the way in which the trial was conducted, was it not, and that was because the defence appeared implicitly to have accepted the evidence of the bloodstain on the T‑shirt?

MR MEYER:   The evidence was given and the defence did not raise a point or object to it.  Now, I am not willing to criticise any trial counsel as to tactics as to why and how trial counsel conducts his trial.  What we have to remember though is that this evidence was not released to the defence until a few days prior to trial.  As your Honour is well aware, trial tactics are paramount in matters like these and at the appeal in the Western Australian court, his Honour Buss actually dismissed the application because he put himself in the shoes of the defendant’s counsel and said that there was nothing to object about.

The question is not why the defence counsel did not object, the question is why was the testimony of the witness referred to as a piece of evidence in the opening and in the closing, even without the evidence of the actual item?  To the contrary, Justice Buss did not view the matter from the accused position and that was the judge’s role at trial.  In order to ensure a fair trial the presumption of innocence applies at all times, until judgment.  At trial the judge did not consider these matters, nor did the judge at the appeal.  The most damning part of that is that testimony was of little probative value, yet highly prejudicial.

Another point I wish to raise in my submissions, your Honours, is that the witness was not entitled to give that kind of evidence.  The evidence was not in the nature of expert evidence.  It should not have been allowed, full stop.  The expert evidence, what is not expert evidence, has been formulated in the position of R v Bonython (1984) 38 SASR 45 at 46 to 47. His Honour clearly formulated:

“Whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area.”

This is a crucial point.  We have a witness who said “It looks like blood” in a written statement.  You have a witness who said in court “It was blood”.  We have nothing at trial to either support or deny that, but the State relies very heavily on that part of the evidence in a link of coincidences, what we call now – sorry, I lost my thread there.  There is no evidence to support the testimony and that is vital.  We have the mother of the co‑accused - it must be remembered the co‑accused did not give evidence at the first trial, this was a second trial – suddenly changing her statement significantly.  Not only did she say it was blood, but she also said she saw the accused wearing it on the day when a previous statement was quite to the contrary.

This is highly prejudicial and it is my submission that in cases like these, this matter should be pointed out to counsels by the judge.  At the time the evidence was given, neither the judge nor defence was aware if there was any other evidence coming forward, any other statements, or indeed if the shirt would be produced.  That leaves the judge with only one opportunity and that is in his closing.  In his closing, he did not warn the jury.  In his closing he merely made references to it that the evidence was somewhat different.

Your Honour I would like to remind this Court of the matter of The President of the State v Robinson 117 Mo 649, 23 S W 1066 at 1070, part 7. It is quite clear:

There is no doubt that the rule is that, where evidence is improvidently admitted, though without exception, such evidence may be excluded by an instruction, or stricken out on motion –

The word “improvidently” – I do not mean to be patronising – “improvidently” in these circumstances means lacking in foresight or thrift and it can also be equated with careless.  It is my submission that it was careless of the prosecution to admit this evidence, to present this evidence, and it was careless of the judge not to remark upon and warn the jury as to the circumstances and what it means.

KIEFEL J:   Would the trial judge have only been obliged to do so if it was clearly prejudicial to the accused?

MR MEYER:   In this case, my argument is that it is clearly prejudicial.

KIEFEL J:   But you cannot really maintain that, can you, given that there was no issue arising because of the way in which the defence was supporting it.  This is set out in Justice Miller’s judgment at paragraph 61, special leave book 73.

MR MEYER:   The defence did not support it or admit to it.  The defence merely failed to raise the issue at trial.

KIEFEL J:   No, according to his Honour, the defence was running a positive case that David Tolliday, not the applicant, was the killer.

MR MEYER:   Indeed, that was the defence case ‑ ‑ ‑

KIEFEL J:   So that there was reason for them to accept the existence of the stain as a bloodstain and, therefore, no reason for his Honour to direct to the contrary or to consider whether or not the evidence should be rejected.

MR MEYER:   I disagree, your Honour, if I may.  The dispute is not whether the evidence should have been admitted or is prejudicial.  The point is that we have a testimony which was not supported after the testimony was given.  At the time defence counsel heard the testimony being given, we do not know what else was there on the cards.  He was only apprised a few days prior to trial that this would happen and that at trial the evidence was actually far worse, so to speak, than in the written statement.  So he could not ask anything on that and because it is highly prejudicial as it turned out, the witness must have been very convincing because she found a way to explain everything, including the fact that she remembered that the accused wore that shirt on the morning, long after the event, whereas her first statement, taken shortly after the event, she clearly identified different attire to the accused and indeed, her son.

Yet at trial she was very convincing, she provided an explanation, except an explanation to why she did not take the shirt and why she did not inform the police earlier or why she changed her mind.  We do not have any information on that.  We only know that she provided this statement to the State a few days – we do not know, it might have a been a few weeks before trial – but a long time after she provided her first statement which the defence had.

The defence was probably preparing for this witness, based on her first statement.  The second statement was quite different, and her evidence in court was far worse, and it made it worse each time.  The prejudice that was created became worse.  Your Honours, unless I can be of any further assistance, these are my submissions.

HAYNE J:   Thank you, Mr Meyer.  We will not trouble you, Mr Dempster.

The applicant submits that there was a miscarriage of justice at his trial for murder because a witness, without objection, gave evidence of finding a shirt which she described as “stained by blood”.  In the Court of Appeal it was said that the defence at trial accepted that the substance staining the shirt was blood.  Even if there was no acceptance of that fact at trial, we are not persuaded that it is arguable that there has been a miscarriage of justice on account of the reception of the impugned evidence.

Accordingly, special leave to appeal is refused.

The Court will adjourn to 9.30 am on Tuesday, 26 August next in Sydney.

AT 1.22 PM THE MATTER WAS CONCLUDED