Peck v State of Western Australia

[2005] HCATrans 567

[2005] HCATrans 567

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P9 of 2005

B e t w e e n -

SHERYLEEN PECK

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 11.37 AM

Copyright in the High Court of Australia

MR P.G. GIUDICE:   May it please your Honours, I appear for the applicant.  (instructed by George Giudice Law Chambers)

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

MR GIUDICE:   Your Honours, it is with much trepidation and with the greatest of respect that at the outset I request permission to ask your Honours to consider in the future the possibility of conducting appeals in the High Court by video link to country places.  I am from Geraldton, Western Australia, and I am doing this pro bono for my client.  It requires me to fly to the city, stay overnight and at much expense, of course.  Having said that, can I move on to the special leave point.

Your Honours, it is my submission that this appeal throws up a special leave point and that is the status of exculpatory statements by accused people participating in a video record of interview where the accused is being taxed with incriminating facts or allegations.  The law is that that is not admissible because it is hearsay and because it is ‑ ‑ ‑

GUMMOW J:   Just before you go any further, do you not want to amend your grounds of proposed appeal?

MR GIUDICE:   I do, your Honour.  Yes, I do apply for ‑ ‑ ‑

GUMMOW J:   Had we not better deal with that?

MR GIUDICE:   Yes, sir.

GUMMOW J:   Is that application opposed, to add ground 2A that:

the trial judge erred in law in informing the jurors after they had been deliberating for 2 hours and in response to a note from the jurors indicating they were deadlocked at 10/2, that the Juries Act provides that there is provision in some cases for a majority verdict to be given.

Is that resisted?

MR GIUDICE:   Unfortunately the respondent has not seen that application, your Honour.  It was faxed to her yesterday, but I had to fly down to Perth yesterday.

GUMMOW J:   Perhaps we will stand this down in the list for a few minutes.

AT 11.40 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.49 AM:

GUMMOW J:   Ms Sweeney, what is the State’s attitude to this amendment?

MS SWEENEY:   Your Honour, the State’s attitude is that we oppose the addition of a new ground of appeal at this stage.  It was not raised in the court below and ought, we say, to have been raised in the court below.  It is apparent from the transcript the reason for not raising it apparently is simply that it has not been noticed, which we say does not constitute an exceptional reason, and in line with the Court’s decisions in relation to Mickelberg, Eastman and, more recently, Crampton, we say that the Court ought to be loath to hear entirely fresh grounds unless there are exceptional circumstances.  Should the Court nevertheless wish to hear argument, the respondent says there is no merit in the ground.

GUMMOW J:   Yes, well, I think we will hear your opponent on the ground in any event and see what position we reach then.

MS SWEENEY:   Yes, your Honours.

GUMMOW J:   Yes, Mr Giudice, just proceed with all the grounds, including 2A at the moment.

MR GIUDICE:   Yes, your Honour.  Your Honours, the point I wish to address you on, apart from relying on written submissions, is the status of the video record of interview and it is my respectful submission that this does throw up a special leave question.  The question is pertinent because in this particular case the applicant was interviewed on two occasions, once on 8 August 2002 and then five months later on 13 January 2003 by police in relation to these allegations.  The prosecution indicated that they would not be calling that evidence because it was self-serving and was not admissible.  However, at the trial evidence was given by a detective that he in fact interviewed the accused and, after that interview, charged her.

Now, (a) that was misleading because she was in fact interviewed twice and was consistent on each occasion and, secondly, it opened up a can of worms, in my submission.  It opened up the possibility of the jurors wondering what she said to the police when she was interviewed, and especially in light of the fact that immediately after the interview they charged her.  The jury might be speculating that she must have confessed, for instance, and now in the court she has made something up that is a recent fabrication, or that she told the police what she said in the witness box, but the police did not believe her, or that she exercised her right of silence and refused to answer any questions.  Interestingly on that point, his Honour, when charging the jurors, did not tell them that she did not have to answer questions that the police officers put to her.

So the point is this, when a person is interviewed not once, but twice, five months apart, not charged the first time, but charged after the second interview, does it take on a relevance of its own, even though it is self‑serving, even though it is exculpatory, in this sense, that she has been consistent despite the efforts of trained interrogators on two occasions to put allegations of criminality towards her?

In this case we are dealing with an Aboriginal woman from Carnarvon who went to year 8 in school and who has lived up there, born there, and she is interrogated by police twice and she has been consistent.  Now, once they have two bites of the cherry, it is my submission that it takes on a relevance of its own, despite what the law is generally in relation to exculpatory and self-serving statements.

If I was to be asked what I would like, if I had my way, it would be for the whole question of video interviews to be opened up and looked at again, but for the purposes of this application I am suggesting that this case is unique.  If the police had simply not given any evidence at all of the fact that the accused was interviewed, it might be a different story, but once they say in the witness box, “On such and such a date we spoke to the accused”, “What did you do after that, detective sergeant?”  “We charged her”.  “Any cross‑examination?”  “No”.  Now, that is a most unfair situation, in my submission, for the accused.

In the Court of Appeal, at page 56 of the application book, Roberts‑Smith JA said that:

Things said out of Court by an accused person are only admissible as to the truth of what they assert if they constitute admissions against interest . . . although where the prosecution seeks to rely upon incriminating parts of a statement by an accused which also contains exculpatory material, the law requires as a matter of fairness that the whole statement be tendered . . . 

Evidence of this kind infringes the rule against self‑corroboration, it infringes the rule against hearsay and, as I have said, it is irrelevant and inadmissible as having no probative value.

That question as to whether it is hearsay is also a live question these days, in my submission, because it is not a case of a policeman coming to court saying, “The accused told me this, and I asked her that”, and relating a conversation.  It is a contemporaneous record when you are dealing with a video record of interview of what actually took place.  I raise the question as to whether or not that is in fact hearsay any more.  So that that ground for excluding self-serving statements perhaps no longer exists.

Justice Steytler took the point at page 57 and said in answer to my arguments before the court about that point, at 73:

insofar as video evidence can be regarded as real evidence, the evidence in this case was nonetheless inadmissible as being collateral evidence designed merely to self-corroborate a witness’s evidence as a matter of credit and serving no other function.

In my respectful submission, he is wrong there.  This evidence did serve another function.  It rebutted any assumption by the jurors as to what was said to the police officers.  It rebutted the unfairness of leaving the matter open, opening up this can of worms and allowing the jurors to speculate in the manner that I have already outlined.

CALLINAN J:   Did you ask for the tender of the video at the trial?

MR GIUDICE:   I was not defence counsel, your Honour.

CALLINAN J:   No, well, did the defence counsel ask or seek to tender the video?

MR GIUDICE:   No, there was a discussion with the prosecutor about the matter and the prosecutor indicated that it was his view that it would not be admissible and the point was not taken with the judge.

CALLINAN J:   Well, is that not a problem?

MR GIUDICE:   It is a problem ‑ ‑ ‑

CALLINAN J:   You could have sought, not you personally, but your side could have sought the tender of it, or could have tendered it yourself and

had argument about it.  We do not even know, and nobody knows, what it contains.  I mean, this all might be a complete waste of time.  It might in fact contain a mass of inculpatory material.

MR GIUDICE:   There are two videos and apparently they do not, your Honour.  They are ‑ ‑ ‑

CALLINAN J:   We do not know that.

MR GIUDICE:   Well, we could take some comfort, I would suggest respectfully, from the fact that the prosecutor did not seek to tender them.

CALLINAN J:   But the view might have been open that he thought, or the prosecutor thought, they were unreliable for some other reason.  It is all just speculation. 

MR GIUDICE:   Well, I can only say that – well, except of course that I have spoken to the defence counsel who says that they were exculpatory.

CALLINAN J:   We cannot receive any of that, Mr Giudice.  The state of the record is that nobody sought the tender of the videos.  There was no complaint before the court that the prosecution was under an obligation to tender them, so it is a point that just was not properly taken.

MR GIUDICE:   Yes, at no fault of the applicant, of course.  She is in the hands of her counsel.

CALLINAN J:   Quite, but it is a problem for ‑ ‑ ‑

MR GIUDICE:   But in fairness to counsel, he says he did ask for the evidence to be tendered.  So that is another question.  Should in fact that evidence be tendered by the prosecution?  Should the prosecution be permitted to be selective about that sort of evidence?

GUMMOW J:   Now, what other grounds do you wish to address us on?

MR GIUDICE:   The rest I will rely on the written submissions, your Honour.

GUMMOW J:   Yes, thank you, Mr Giudice.  Yes, Ms Sweeney.

MS SWEENEY:   Thank you, your Honours.  Dealing firstly with ground 3 in relation to the video records of interview, I note that that ground is being pitched in a very different way to the manner in which it was pitched before our Court of Criminal Appeal and the way in which it is dealt with in the written submissions.  The thrust of the submission, as I understood it, was that while the applicant accepts that one self‑serving video interview is inadmissible, surely two must be admissible, because if a suspect maintains a consistent story between two interviews, then that lends those videos some special head of admissibility, namely, consistency.

Now, as I understand my learned friend’s argument, the real point that is being argued is that the video was mentioned before the jury and that brings it into admissibility.  We say firstly that self‑serving statements are inadmissible and that is settled law.  If it was raised before the learned trial judge, we say that the application must have inevitably failed, namely, defence counsel had sought to have these videos tendered, we say the learned trial judge must inevitably have refused that application.  There is no exception to the hearsay rule, we submit, that allows a party to tender purely self-serving statements and it is up to the prosecution, if there are admissions, to choose whether it tenders those videos and, of course, if it does, it is then also bound to tender the exculpatory statements.

There is no material before the Court as to the actual content of the videos themselves, nor of course as to the content of any private discussions between counsel, but certainly there is no material.  I understand from the written submissions that there was no formal application made at trial to have these matters led.  We say, if the proposition that two consistent exculpatory statements become admissible is correct, then what flows from that, the logic of that, is that if, for example, a prosecutor were to call a complainant in a sexual case who gives evidence consistent with her lengthy written statement to the police, then that statement surely becomes admissible under this new head of an exception to the hearsay rule because she has demonstrated consistency.  There would be many applications, we would say, if there were some suggestion that if a person simply gives a consistent account ‑ ‑ ‑

CALLINAN J:   Recent fabrication, for example.  That might have justified, perhaps, the reception of the material, absent some special circumstance of some special situation.

MS SWEENEY:   Yes.

CALLINAN J:   That is why there is an exception for recent fabrication.

MS SWEENEY:   Yes, and of course recent complaint and recent fabrication are accepted ‑ ‑ ‑

CALLINAN J:   And some of the Evidence Acts actually make provision now for reception of consistent material on other bases, but it is a matter of statutory provision.

MS SWEENEY:   Yes.  We say simply, there is no exception to the hearsay rule ‑ ‑ ‑

GUMMOW J:   What do you say about the new ground 2A?  We know you oppose its addition, but what do you say about it in any event?

MS SWEENEY:   Your Honour, what we say about that is that this is probably a result of a country trial before a country jury.  Of course, juries in country towns appear on juries far more often than people in cities, and so they become familiar with how jury trials act.  What I can glean from the transcript and a combination of that and my learned friend’s letter is that about two hours into their deliberation a note was apparently sent by them to his Honour who apparently sent a reply back.  It is unfortunate that it was not recorded into the transcript, but we can gather, I think, from his Honour’s comments when the verdict was delivered, what the contents of the note were.

My learned friend cites a decision of Pearmine v The Queen, a 1988 decision of our Court of Criminal Appeal.  That dealt with a quite different situation.  In that case the learned trial judge, apparently, when sending the jury away to deliberate then read to them section 41 of our Juries Act informing them in advance that there would eventually be scope for a majority verdict, but that it did not arise at this stage and the court frowned upon that practice and said that, really, it would be better if the prospect of a majority verdict were left alone and the judge was silent on the point until at least three hours have elapsed.

But in this case the jury, it would seem, have asked the question and we would suggest they do need to be given some sort of answer.  Having been given that answer, they have nevertheless clearly gone on to return unanimous verdicts and so we would say that it is a matter of no moment in any event.  Having been informed that ultimately a majority verdict would be an option, they have nevertheless gone on to deliberate and been able to achieve a unanimous result.  So we say it could have had no impact on the verdict.  It is not the practice that was frowned upon in the decision of Pearmine v The Queen and it is simply a reflection of the more knowing nature of country juries, and that is simply an inevitable factor that a trial judge on country circuit must deal with from time to time. 

GUMMOW J:   Yes, thank you.

MS SWEENEY:   We say there is no merit in the submission, your Honours.

GUMMOW J:   Thank you.  Is there anything else you want to add?  I do not think there is any need?  Yes, Mr Giudice.

MR GIUDICE:   Except to say that on that last point there is nothing in the transcript that indicates that the jurors indicated that they were aware of the right to bring in a majority verdict.  It was simply advice to the court that they were deadlocked 10:2.  Then his Honour, it seems, proceeded to tell them that there is provision for a majority verdict but after three hours.  Now, at that stage, what effect would that have after two hours on the people who were dissenting and what effect would it have on the chances of the majority listening to the view of the minority.  Those are the questions that arise.

GUMMOW J:   Thank you.

MR GIUDICE:   If the defence counsel had sought to introduce these videos into evidence, the law as it stands would have forbidden it.

CALLINAN J:   If you want to make a new point or you want to have a court accept an alteration to a principle, you have to lay the foundation.  The court will not deal with these things in the abstract.  A court needs to have the concrete material before it and unless you seek the tender – if the tender is made and rejected, then the material can be marked for identification and an appeal court can look at it to see whether, for example, it might have made a difference.  But unless you attempt the tender, unless you make it plain that you are challenging the principle, it is just all too late.  You are really asking subsequent courts to speculate.

People frequently say, “We know we are bound by the principle expressed in such and such, but reserve our rights, we wish to maintain this position and state it briefly.  We will not take up the time of the court, but could the material be received and marked for identification”.  That is the correct way to deal with it.

MR GIUDICE:   It is, your Honour.  It is the correct way to deal with it.  Unfortunately, because it was not dealt with in that way, Ms Peck may have received an unfair trial and my point is, why should she be punished as a result of something counsel should or should not have done.  It is not as though he took a deliberate forensic decision in this case.  He raised it with the prosecutor, the prosecutor said “We don’t intend to lead it because it is not admissible”, and he accepted that as the law.

CALLINAN J:   He probably accepted it correctly.  That is what you would have to persuade us about, that he did not.

MR GIUDICE:   Yes.

CALLINAN J:   Anyway, I understand the point.

MR GIUDICE:   But then during the trial the rules change, the goalposts change, because the police officer gave evidence that she was interviewed and left it at that.  Now, counsel at that very moment, it did not occur to him that that was just as bad as – well, that resulted in unfairness.  It just did not occur to him and understandably, in my respectful submission, your Honour.  May it please your Honours.

GUMMOW J:   Thank you. 

We see no error in the conclusion reached by the Court of Appeal.  We allow the addition of ground 2A in the terms indicated in the course of oral argument this morning but that does not lead us to any other conclusion.  Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 12.12 PM THE MATTER WAS CONCLUDED