Oliviera v The Queen

[1994] HCATrans 324

~ ~

-, .. ~·,

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S14 of 1994

B e t w e e n -

RUPERT PHILLIP OLIVIERA

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Oliviera 1 12/5/94

AT SYDNEY ON THURSDAY, 12 MAY 1994. AT 12.35 PM

Copyright in the High Court of Australia

MR T.A. GAME:  If the Court pleases, I appear for the

applicant, together with my learned friend,

MR s.J. ODGERS. (instructed by T. Murphy, Managing Director, Legal Aid Commission of New South Wales)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MR GAME:  If the Court pleases, on the first day of a trial

which was over in two days a witness, called

Mr Pilkington, gave evidence, and it came out as a result of what was clearly a prosecutorial error,

that just some few months prior to the offence in

question the applicant had come out of gaol. That

appears at page 2. He said that the applicant had

told him that he had not used his car for 12 to 18

months. So, the jury might well have drawn from

that, clearly enough, that he had been in gaol for

12 to 18 months.

He said at page 5 that in view of the

applicant's history he doubted whether he would get

paid, and at page 7 line 40 he said that he had

always been paid by the applicant, so that the jury

might have had no difficulty in concluding that the

applicant had a history for dishonesty, and that he

had been in gaol for 12 to 18 months for such

criminality.

The application for discharge was refused, and

the reasons that were given - - -

TOOHEY J: Could I just ask you about the reputation for

dishonesty? There is a passage in the direction at

the foot of page 36 going over to page 37, which I
think is referring to the evidence of Mr Pilkington

about the accused:	He said he was basically a pretty honest sort
of bloke who paid his bills, looked down at heel at times, and that was his evidence on
that point.

MR GAME:  He did not say that he was "a pretty honest sort

of bloke", but he did say that he had got paid, but

my point is that the witness' concern about not

getting paid in view of his history could not be a

reference to something which this witness had

experienced with him because he had never had any

problems with him; it must have been due to his

history for dishonesty. There could be no other

conclusion, in my submission.

Oliviera 2 12/5/94

Now, the application for discharge was

refused, page 10, top of page 11 - and this is a

matter which seemed to assume some significance

later on - the judge said that:

there was no look of shock horror or anything

like that on their face.

Well, frankly, that is an observation which is of

no moment whatsoever, and it assumed great

significance in the Court of Criminal Appeal. At

page 13 he made the observation that within another
half an hour another jury could be empaneled, and

at page 14 he said that he was not satisfied that

the jury would disregard the directions. Again, in

my submission, the judge's observations of this

would disregard the directions is not to be jury and his assessment of whether or not they

assessed in any way by his observations of the

jury, but by an assessment of what the evidence was

that came out.

Now, in the directions that were given in the

summing up, this matter, commencing at page 37,

became the principal matter in the whole summing

up - apart from the directions on identification

which were just may be a few lines longer - but the

principal directions in the whole summing up were

in relation to bad character. He commences by

telling the jury how "terribly prejudicial" this

evidence is. He gives a whole series of directions

about propensity, he refers the jury to Makin's

case, at page 38. Then tells the jury that it

would be relevant in a sexual assault case, at the

bottom of pages 38. Then at page 40, goes on about

various propensity-type reasoning observations.

Then at the bottom of the page, he says:

I hope I have not offended your commonsense,

but you see I am directing you here in this

atmosphere. When criminal trials go on appeal

as some do, it is all done from the books,

three Judges sitting up there -

Now, basically, in my submission, that is a wink

wink, nudge nudge direction because he is saying,

"It is not for you, it is for the Court of Criminal

Appeal that I am giving these directions." These

directions themselves show the complete inadequacy

and inability to direct against prejudice of this

kind because these directions are purely about

propensity. Bad character goes also to

credibility, and there is no way that one can

direct against credibility.

In my submissions, there are at least three

senses in which the evidence can be prejudicial:

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one is to propensity; two is to credibility - there

are no directions touching on that and nor could

there be; and, thirdly, is this, the jury might

think that the accused's case is less worthy of

their consideration because they have heard that

here is a person who has already been in gaol for

dishonesty of this kind. Now, in this particular

case, that is a matter of great moment because the

applicant's case, even on the defence case, his

involvement in this crime was somewhat fishy
because he was saying some people in the Crest

Hotel had taken his car, how they got the keys was

not known, the offender was ringing him up the next

day.

Now, the jury might well have concluded that

he was an accessory before the fact. So that,

having assumed that, they might think, "Well, who

cares whether or not he is an accessory before the

fact, or a principal in the first degree?" But,

the prosecution had a fundamental problem with

their identification case, and their fundamental

problem with the identification case was that it

simply could not have been the accused who was

running down the street because the applicant

suffers from advanced emphysema, and the immediate

description of the applicant was of a person about

25 to 30, and the applicant is, in fact, a man of

50 and in ill health.

TOOHEY J: What was the evidence about his inability either

to move quickly or from which it might be inferred

that he could not move quickly?

MR GAME:  Well, a doctor by the name of Dr Melman gave

evidence that he - I have the pages if necessary, I

will just read:

suffered from quite severe chronic lung
disease, emphysema, secondary to chronic

bronchitis and very, very severe asthma -

and, the judge put the scenario of the prosecution

case, and he said that it was a most unlikely

picture, and that if he had run, even for 25 metres

he would have been debilitated, would not be able

to talk or walk, and that evidence was simply not

disputed. The witness Apthorpe had said that she

saw the man running away very fast. In fact he ran

so fast the young Constable Taylor could not catch

him. So, there is no way that it could have been

the applicant who was the person who committed this

crime.

DEANE J: There is a bit of force in His Honour's comment at

page 42 though, in what he says is "the

vernacular" .

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MR GAME:  Which line, Your Honour?

DEANE J: Line 10.

MR GAME:	One cannot deny that he has a very
serious respiratory condition.

In fact, it was so serious that Dr Melman described

it as "terminal", but I am not sure that I have

understood Your Honour's point.

MASON CJ:  No, what the Judge is suggesting is that in an emergency of that kind your capacity exceeds what

your doctor says you can do.

MR GAME: But, yes, that might be so.

DEANE J:  I think, in less "vernacular" terms, the

adrenaline rises, as it were.

MR GAME:  Yes, but the idea of this particular accused

darting down Darling Point Road with such Olympic

athleticism that he manages to get away from a

25-year-old constable and disappear down New South

Head Road seems unlikely, to say the very least.

But, as I say, the point that I was making is this,

having the evidence of the bad character makes the
case less worthy of the jury's consideration, and
my point is that the jury might think, "Well, we

think he is an accessory before the fact, we do not

know whether he is the principal, we do not think

he is the principal, but what does it matter in the
circumstances?", and the directions simply cannot
deal with that.

In the Court of Criminal Appeal at page 50 commencing at line 18, the court said that it was:

important to observe ..... there did not appear

to be any look of horror or shock -

again, we would submit, that that is quite beside

the point, and then at page 52 at line 14:

His Honour concluded that with this particular

jury he was not persuaded that they would
disregard proper instructions -

Again, it clearly received high prominence in the

Court of Criminal Appeal and, we would submit, that

it is quite irrelevant. At page 52 lines 18 over
to page 53 line 6, the court relied on what was

said to be a concession given by the appellant's -

in that court - counsel, and we have put on an

affidavit which shows that no such concession was

given. Again at page 53 line 12, satisfied the:

Oliviera 12/5/94

jury would accept proper directions -

Again, we would submit, that is really not the

question. At page 54 line 18, there is a reference

to the fact that the jury also had identification

photos, and the judge repeatedly referred to these

in his directions to the jury as "mug shots" which,

in our submission, could only worsen the position.

At page 55 line 8, His Honour says that in a

Court of Criminal Appeal that the person is

generally:

entitled to have his or her case dealt

with ..... without	evidence	of ..... bad
character -

but that that did not necessarily mean there had
been a miscarriage. In general terms, and in a

purely abstract sense, it may be so but, in this
case, there was no single feature of this case which

would not call for a discharge. There was

directions which could meet the prejudice, and

these directions hardly assisted and possibly made

it substantially worse.

Then at page 55, the matter which assumes

particular weight in the reasons of the Court of

Criminal Appeal is what is said to be the undoubted

advantage which the trial judge had and once again,

we would submit, that this so called undoubted
advantage simply misconstrues what the problem is.

At page 56, it is said that:

the directions were full and adequate -

and I have dealt with that already. It is said at

page 57 that the appeal should be dismissed on this

ground for another reason which is that the case

"was a strong one". We would say the case was

actually an identification case, with problems in

the identification directions but, putting that to

one side for the moment, we would say that the

conclusion that the case was a strong one is not to

pose the correct question.

In a case such as this where one has

inadmissible, prejudicial evidence of this kind,

and if one applies the reasoning of this Court, for

example, in Marie then one would have to say that

the proper question would be whether or not there

was otherwise an overwhelming case.

TOOHEY J:  Do you attribute any weight to the views formed

by the trial judge? You appear almost to exclude

those.

Oliviera 6 12/5/94

MR GAME:  I would submit, Your Honour, that the judge's

views of the jury, as to how they somehow absorbed the direction, are to be put entirely to one side.

TOOHEY J:  I was not confining that question merely to the

registration of an expression or the absence of an

expression but, generally, to the trial judge's

assessment of the jury, how they appear to react,

what he thinks he can do by way of curing the

problem, how the remark comes to be made.

MR GAME:  Your Honour, how he can cure a problem might be

very much within the province of the trial judge,
and one might well have regard to his assessment of
the situation, but that is not this case. This

case is a case about a judge looking at the jury,

and saying, "Well, they have taken in my

directions, everything is fine," now that is simply

illogical. On the other hand, one gets a case such

as Miller where, in a very long murder trial, where

an accused person was arguing - that is the South

Australian case where Miller was aiding and

abetting a person called Worrell in murdering a

number of women. His case was he was an accessory

after to all the murders, that he was not a
principal.

Now, because of a very long trial, it slipped

out of a witness that Miller had been in gaol, and
the judge handled it by saying to the jury,

"Disregard that," and that was the end of. He made

an assessment of it, and one might say, "Well, the

trial judge makes an assessment in the

circumstances," but this is a very different sort

of a situation.

MASON CJ: But, in that example you were giving, you were

talking about it being "a very long trial". What

weight are you giving to that fact in the example

that you gave?

MR GAME: Well, I do give some weight to that, Your Honour,

because one might make an assessment that in the

circumstances its significance might fall away in

the overall picture of things but, in this case,

this evidence - - -

MASON CJ: But it would not fall away, would it, in the mind

of the jury in the sense that if the remark comes
out that an accused person has formerly been in

gaol they are not likely to forget that bit of

evidence?

MR GAME:  Yes, I accept that, Your Honour, and I think that

is probably a mistake for me to put my argument on

the basis that such a distinction is to be drawn.

But I would say this, that the matter is heightened

Oliviera 7 12/5/94

in a case such as this where, really, the

directions on bad character became the predominant

feature of the case, apart from the directions on

identification. So, yes, I accept the jury would

not forget the material. But in that example that

I just gave the jury might think that it was of

less significance that he had been in gaol.

MASON CJ: Yes, particularly if the judge gave a direction

then and there in a long case, and said, "You

disregard that,". But one of the points on which

you rely here, of course, is that it was injected

into the summing up and, therefore, it had a focus

at the time when the jury's attention was being

directed to how they were to approach the case.

MR GAME:  Yes. Now, as I was saying, the notion that the

case was a strong case is, in our submission, the

wrong question and if one applies proviso-type

reasoning, which was adopted by the former

Chief Justice in Marie's case, then the question

would be whether or not the jury would inevitably
have acted not on this material, that is to say,
would have inevitably convicted on the balance of
the material, and that is not the question that the

court asked itself in this case.

That is the material in relation to bad

character. We have a separate ground in relation to identification. The identification directions

appear at - and we put our case in relation to

identification on the basis that should the Court

grant leave in relation to the bad character

material, then it should hear the appeal in

relation to identification, but we do not submit

that the identification directions in - - -

MASON CJ: On its own, constitutes - - -

MR GAME:  - - - themselves would grant any basis for special

leave, but since it is very much tied up with the

nature of the case, we would submit that it is

appropriate for the whole lot to be dealt with. If I could just take the Court very briefly to

the material we would rely upon in this regard.	In
the summing up at page 21, the judge gave
directions as to opportunity.	He said:

their vision was pretty good -

but he gave them no warning as to the shortness of

the time for observation, which was said to be

20 to 30 seconds. He gave the jury no directions

that this witness called Smith, who was an

independent witness, in fact said, "It was dark at

the time," which would very much have affected the

Oliviera 12/5/94

ability to observe. He gave no directions on that.

Then at page 22 line 15, the judge said:

she is pretty close as she goes by, may well

have got a much better look -

well, that is hardly, in our submission, a warning

on the opportunity to observe. Then at 23 line 5,

in relation to age "twenty five, thirty". He

misses the point in relation to the age, which is

of a person aged 50, in ill health.

Then at page 23 line 15, the photographic

identification: no direction was given on the

dangers of photographic identification. Then

"stranger against stranger": no directions on the

problems of "stranger against stranger". Then a

misdirection where he says, "You can have regard to

the degree of confidence", and no direction is give

on this problem which arises from the inconsistency

with the medical condition as described of the

applicant. No direction is given on the experience

of the courts in relation to identification, and
then on page 24 line 8:

It is not suggested either of these two young police officers is not telling the truth -

well, the evidence of those police officers was

tested to the limit, in our submission,

particularly Apthorpe.

The only other matter is that in relation to

this question of the engine number, it was

suggested by the court that somehow the fact that

she said at one stage that she did not know the

engine number until after the identification was of

some relevance. We would submit that that was

irrelevant but in any event the judge also put it

to the jury on the basis, at page 28 line 15, that:

she was not aware at that stage that he was a

person known to the police.

although she knew the engine number of the

vehicle •.... she was not aware at that stage

that he was a person known to the police.

And, at page 42:

The engine number of the car was known to her

at the time -

and that was put as a defence submission. So, the

Court of Criminal Appeal mistook the case in

relation to the knowledge of the engine number.

Oliviera 9 12/5/94

Those are our submissions, if the Court

pleases.

MASON CJ:  Yes, thank you, Mr Game. We will adjourn now and

resume at 2 o'clock.

AT 12.58 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.01 PM:

MASON CJ:	Mr Solicitor.
MR MASON:	Your Honours, our submission is that the judge's observation of the jury were not irrelevant and, in
a sense, some of my friend's submissions came close
to submitting that he was not entitled - - -
MASON CJ:	I think, ultimately, he conceded that the judge's

view may be relevant, but he was at pains to say

that in this case a number of the judge's

observations relied upon by the Court of Criminal

Appeal were not matters on which weight can be

attached.

MR MASON:  Yes. Ultimately, it was an assessment that the

judge had to make, and then the correctness of that

for that. There has been not shown, in

assessment came before the Court of Criminal apologize

my submission, to be any error of principle or,

indeed, any question of principle that would

attract the grant of special leave. There have been cases where material of this nature has got before the jury in, for example, a media contempt type situation. The fact that it comes from the mouth of a witness in an obviously non-responsive	way does not put it in a peculiar category, and	there is ultimately a judicial duty to consider
whether there has been a miscarriage in consequence
of it.

Your Honours, the jury were given strong

directions about the matter and the Court should,

and properly did in the Court of Criminal Appeal,

have regard to the fact that the jury would be

presumed to follow those directions rather than the

converse. My learned friend suggested that the

strength of the Crown case was, in effect, to be

put to one side. It is a relevant factor and was

properly regarded as a relevant factor having

regard to the appellate jurisdiction of the Court

Oliviera 10 12/5/94

of Criminal Appeal. Again, there was no question

of principle involved in the way the matter was

addressed.	The court was duty bound to have a look
at the totality of the evidence.	The independent

material flowing from the observation of the two

police officers, and "20 to 30 seconds" is not a

fleeting observation opportunity, with respect to

my friend. The material about the car and the

independence of the car registration was a factor

that was also properly taken into account.

Your Honours would know better than I, but in

Mr Solomon's report there is a reference to a case

called Hay v The Queen, a special leave application

from the Full Criminal Appeal Court of South

Australia, where there was a grant of special leave

in relation to a failure to discharge a jury. It

was a case where there was a newspaper

publication - - -

MASON CJ: It was the "flower's" case.

MR MASON:  I do not know, but - - -

MASON CJ: There was a presentation of a bunch of flowers to

the deceased by a juror - - -

MR MASON:  Yes, yes, one of the jurors sent flowers to the

mother of the deceased.

MASON CJ: Mother, yes.

MR MASON: 

One of the other grounds related to the refusal

to discharge the jury. Whether that case and this
are suitable vehicles, as I say, I do not know

enough about that case than to draw it to the

Court's attention.

Ultimately, therefore, Your Honours, this is a

case where no new question of principle is

involved. It is a question of the application of

well-established principle - - -

DEANE J: What is the well-established principle?

MR MASON:  That a mere disclosure of irrelevant and damaging

material does not require a discharge but requires

the proper exercise of a discretion; that the trial

judge would take into account the likelihood of the

impact of the irrelevant material upon the jury
their capacity to be given a proper direction to

disregard it.

DEANE J: Has there, to your knowledge, been any case in

which an appeal court has considered the situation
where there has been a real dispute about guilt,

and the disclosure was, or suggested, criminal

Oliviera 11 12/5/94

convictions of an offence in the same area of the

law?

MR MASON:  We have given reference to two cases in our

outline. The disclosure could come either from the

media or from a witness, and I assume we will

confine it to a witness disclosure situation?

DEANE J: Yes, or a disclosure in the trial - - -

MR MASON:	In the trial.
DEANE J:	- - - which means every member of the jury must

know, and no question of the accuracy of the

disclosure.

MR MASON: Yes.

DEANE J:  I mean, take the case where somebody is up on a

charge of rape, and the disclosure is that he has

been convicted of rape, would you seriously suggest

that in a short one or two day trial that could be

overcome by directions of a trial judge?

MR MASON:  It would be very difficult to do so.

DEANE J: Well, here you have someone up on a charge

involving theft where there is a real question

about the only direct evidence, and the disclosure

is that he has been in prison, the suggestion is in

prison for something involving dishonesty.

MR MASON: Well, there was not that suggestion, and the

judge was at pains to direct the jury - - -

DEANE J: Well, Mr Game has argued that there was. The

disclosure was that he had been in prison and the

man who disclosed that said he had never had any

trouble with him, but he could not be confident of

being paid.

MR MASON: Well, I stand corrected, but my understanding of

the evidence was that he had not had trouble but he

had been paid, but whether or not - - -

DEANE J: Yes, but I thought it was also that he could not

be confident of being paid, or something like that?

MR MASON: Well, Your Honour, I - - -

DEANE J:  I am not relying on myself, Mr Solicitor, I am

relying on what Mr Game said.

MR MASON:  Page 11 line 10 and page 12 line 15. At the

bottom of page 5, "I virtually wrote off the thing,

I didn't realize - I didn't even believe that I'd

ever get paid. Once he'd been prosecuted and been

Oliviera 12 12/5/94

charged thing, and knowing his history". Now, that

was not saying a history of dishonesty, in my

submission, and the trial judge here was at pains

to direct the jury that being in gaol did not

necessarily import a conviction on that account.

DEANE J: But, you throw in that both the trial judge and

the Court of Criminal Appeal place weight on the

fact that there was no look of shock on the face of

the jury. One would have thought it would be far

worse if they just looked, "Ah, that confirms what

we suspected anyway."

MR MASON: Well, there is, of course, necessarily

speculation whether you do what the trial judge did

or do the opposite as perhaps Your Honour is

suggesting to me, and there is obviously a danger

in taking that too far, but the idea of trying to get, as it were, into the jury's mind to a degree

is well accepted. For example, in the Media

cases - Meissner was one, where the jury were asked

whether they had read the article in question. One
frequently encounters situations where the

attentiveness of the jury is prayed in aid as a

factor for them not being misled by a particular

situation.

Miller's case, 25 SASR page 170, was one where

there was a murder trial and reference was made by

a witness to the accused having been released from
gaol and, the trial judge, page 195 of the report,

directed the jury to disregard the matter:

We do not know what he was in prison

for •... you are not at liberty to speculate -

on that matter. The trial judge had regard to "the

apparent care and intelligence" of the jury. That

is at the bottom of page 194. The Full Court of

the South Australian Supreme Court in 1980 held
that in the circumstances the judge had acted

properly in refusing to discharge.

Ultimately it becomes, in my submission, a

question of applying the general principle to the

particular facts of the case. Here, the general

principle is not in doubt. It was correctly

adverted to and, for what it is worth, in my

submission, was correctly applied but, on a

question of special leave, the applicant has to do

better than that, in my respectful submission.

MASON CJ:  It is fairly obvious that the trial judge had

considerable confidence in his own capacity to get

a message across to the jury, and perhaps his

capacity in that respect is greater than judges one

could describe as "bookish" judges.

Oliviera 13 12/5/94

DEANE J: Or three members of a Court of Appeal.

MR MASON:  Your Honours, I would assume Your Honours do not

want me to address on the identification aspect

because my learned friend did not really advance

that as part of the special leave - - -

MASON CJ: No, there is no occasion to do that, it rests on

the first point.

MR MASON:  Yes.

MASON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. The principle which my

friend refers to does not really tell one anything about what the principles are beneath the first ·

layer of principles. That is to say, there is no

principle involved in simply saying, "Their

disclosure does not result in a mistrial,

necessarily, it is a matter for the exercise of

discretion." One has to delve further and identify

what the principles are underlying that, and those
principles really have not been elucidated in the

cases.

There are remarks by this Court and, in

particular, Your Honour the Chief Justice in

Glennon's case, as to how deeply rooted these

principles are in relation to such matters and, in particular, matters involving knowledge, wrongful:

reception of inadmissible evidence of a prior conviction has been said to offend one of the

most deeply rooted and jealously guarded

principles of our criminal law.

So, there are important questions of principle

involved in this case, both with a respect to the
ability for directions to meet the prejudice of the

evidence, with respect to the observations said to

be made, and with respect to this notion of the
strength of the Crown case.	It was not my

submission that the strength was to be put to one

side. My submission was that the court erroneously

approached the problem of assessing the strength of
the Crown case. So, in my submission, there are
important questions of principles in this case

which have not been elucidated in other cases.

In the written submissions I have also

referred to some other articles and things that

throw doubt on the notion that directions can

pleases.

actually deal with this kind of prejudice at all.

Oliviera 14 12/5/94

MASON CJ: Yes, thank you, Mr Gazne.

By majority the Court considers that the

proposed appeal does not enjoy sufficient prospects

of success to warrant the grant of special leave.

The application is therefore refused.

AT 2.15 PM THE MATTER WAS ADJOURNED SINE DIE

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