Pavic v The Queen

[1997] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M1 of 1997

B e t w e e n -

STEVEN FRANCIS PAVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 1997, AT 2.16 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR O.P. HOLDENSON on behalf of the applicant.  (instructed by The Office of David Grace, QC)

MR W.H. MORGAN-PAYLER, QC:   If it please the Court, I appear with MR D.M. SALEK on behalf of the respondent.  (instructed by the Director of Public Prosecutions Victoria)

DAWSON J:   Mr Morgan-Payler, you are aware that leave has been granted in a case of The Queen v Jason Roy Swaffield, are you?

MR MORGAN-PAYLER:   Yes, your Honour.

DAWSON J:   What is your attitude towards this application?

MR MORGAN-PAYLER:   The attitude is that this application itself does not disclose a question proper for this Court in that it is simply a question of the exercise of the trial judge’s discretion in this application.

DAWSON J:   Thank you.  We had better hear from Mr Grace then.  Yes, Mr Grace.

MR GRACE:   As was recently confirmed by this Court in Kable, Australia has a unified common law which applies in each State, subject to any statutory restrictions.  In the area of law the subject of this application, of recent times there has developed in at least two States of the Commonwealth a different approach to the exercise of discretion.  This development is contrary to the development of a unified common law and to the existence of a unified common law in Australia. 

In this case, the learned trial judge, and later confirmed by the Court of Appeal, has exercised his discretion by reference to matters which, according to some members of the Court of Appeal in Queensland, are not material to the basis upon which the discretion ought to be exercised. 

In this case police officers engaged in the course of deception of the applicant ‑ ‑ ‑

DAWSON J:    We know the facts, Mr Grace.

MR GRACE:   Yes.  Just to compare it with Swaffield, your Honour, Swaffield was more a case of chance in that the police there were investigating another offence and they happened upon discussing a

conversation with the Swaffield to do with the charge that had previously been dismissed.  That was the subject of admission to certain offences.  The trial judge allowed the evidence to be given.  The Court of Appeal, by majority, decided that it ought to have been excluded.  This Court granted special leave in those circumstances.  In this case we have a situation where the applicant had been interviewed, had exercised his right to refuse to answer questions, the police were aware of that.  Six days later the police were in possession of sufficient information to charge the applicant.  They were of the belief that he had committed the murder and yet they set upon this course of conduct which allowed a close friend of the applicant to act effectively as the police agent ‑ ‑ ‑

DAWSON J:   You say this is a stronger case than Swaffield?

MR GRACE:   A stronger case than Swaffield.

DAWSON J:   But the same principle is involved.

MR GRACE:   The same principles are involved.

DAWSON J:   Thank you, Mr Grace.  We will call on Mr Morgan-Payler.

MR MORGAN-PAYLER:   If the Court please.  The respondent’s submission is quite simply that there was a grant of leave in Swaffield.  There were particular problems in so far as conflicting judgments of the Queensland court was concerned ‑ ‑ ‑

DAWSON J:   Is there any different principle involved?

MR MORGAN-PAYLER:   Yes, your Honour, slightly different principle. 

DAWSON J:   What is it?

MR MORGAN-PAYLER:   In that in the present case the question is a very simple question of the exercise of discretion and the manner in which the trial judge approached the question.  There may well be a question of principle raised in Swaffield.  That principle may have applied in this case but not to an extent that ought to attract the intervention of an appellate court, given the finding of the trial judge which were pointed to by the Court of Appeal, particularly at page 39.

DAWSON J:   Is not the point, by one or other of these means, the police can avoid the necessity of giving a caution and advising the accused of his rights.  That is to say by the use of an agent, or at least someone acting for the police in one form or another, the police can avoid doing what in fairness they would have had to have done if they had done the same thing themselves.  That is the point, is it not?

MR MORGAN-PAYLER:   Yes, that is the general point, your Honour.

DAWSON J:   That is the same point in both cases. is it not?

MR MORGAN-PAYLER:   But the very simple submission of the respondent, however, and once put I do not think sustained argument will make it any better, the very simple submission of the respondent is the fact in this case the trial judge found that the deception, if we might call it that, did not in any way operate on the applicant in producing the utterances.

TOOHEY J:   He said that.  It is not entirely clear as to why the trial judge reached that conclusion.

MR MORGAN-PAYLER:   No, it is not, your Honour, in that the argument was conducted in front of the judge without the benefit of evidence, the parties apparently both being content to put submissions based on the depositions and the transcript of the evidence that was given at committal proceedings.  His Honour also emphasised that he had listened to the tape recording, so he had the benefit of that and, having considered the evidence, having listened to the tape recording, he made that finding and went on to say - and perhaps it is easiest to look at page 39 of the book, where the Court of Appeal quotes his Honour at about line 17:

In the application of those principles, any admissions obtained by investigating police by reason of the introduction of a calculated practice designed to circumvent the established rules relating to interrogation, or demonstrably induced by resort to subterfuge, will almost inevitably be excluded by the operation of the fairness and illegality/impropriety discretions.

His Honour said at line 5:

Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence.

Accordingly on the facts in this case I am not satisfied on the balance of probabilities that it would be unfair to admit the tape recorded conversation into evidence.

However that conclusion should not be seen as subverting the general principles to which I have referred in Li’s case.

Simply, the respondent submits this is not an appropriate vehicle for a grant of special leave, there being in this case no error, albeit Swaffield raises a question which is a question that could be said to have applied to this case and all of the various cases that are referred to in the materials that have dealt with this question.  It is a live question, but ‑ ‑ ‑

KIRBY J:   We have to hear Swaffield.  We have granted leave in that.  Sometimes it is helpful to have parallel or slightly different facts to test propositions, and hard facts, not just counsel’s hypotheses.  We have got this case before us.  The marginal increase in time would be minimal and the benefit in elucidating the principle might be substantial.  And finally, if we were to refuse special leave and the principle enunciated in Swaffield was such as would have provided some benefit to this applicant, we would have done him an injustice.

MR MORGAN-PAYLER:   There is no answer to your Honour’s last proposition. 

DAWSON J:   Very well.  Thank you, Mr Morgan-Payler. 

Gentlemen, there is no difficulty if this case were to be listed in Brisbane, is there, which is where I anticipate Swaffield will be listed?  That really concerns you, Mr Grace.

MR GRACE:   There is no difficulty whatsoever.  Yes, I understand from the Registrar that is the position.

DAWSON J:   Very well.  We need not trouble you, Mr Grace.  There will be a grant of special leave in this matter.

AT 2.24 PM THE MATTER WAS CONCLUDED