Perich v The Queen

[1997] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P54 of 1996

B e t w e e n -

MATE PERICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN J
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 8 DECEMBER 1997, AT 12.15 PM

Copyright in the High Court of Australia

MR L.W. ROBERTS-SMITH, QC:   If your Honours please, with MR D.P.A MOEN, I appear for the applicant in this matter.  (instructed by Karp and Monaghan)

MR J.R. McKECHNIE, QC:   If your Honours please, I appear with my learned friend, MR I.S. JONES, for the respondent.  (instructed by the Director of Public Prosecutions (Western Australia))

BRENNAN CJ:   Thank you.

MR ROBERTS-SMITH:   Your Honours, the point sought to be argued on the appeal is a short and quite specific point, but it does raise fundamental questions about the proper evidentiary basis for the admission of evidence as either so-called relationship evidence or as propensity evidence.  The short point is that the admission of the ‑ ‑ ‑

BRENNAN CJ:   Why do we need to worry about propensity evidence?

MR ROBERTS-SMITH:   Because his Honour Justice Murray in the court below described the basis for the admission of the evidence in this particular instance as being in the category of propensity or similar fact evidence; a generic category, perhaps, of circumstantial evidence but specifically of propensity evidence. 

BRENNAN CJ:   What about relationship, and leave it at that and see how you get on?

MR ROBERTS-SMITH:   If your Honours please.  The short point is that the admission of the evidence of Ned and Mary ‑ ‑ ‑

TOOHEY J:   Sorry, while you are being interrupted, could I just ask you this:  you began by referring to admissibility; is that the footing upon which the application is made, namely, that the evidence was inadmissible or that while it was, strictly speaking, admissible, it should have been excluded in the exercise of some power or discretion?

MR ROBERTS-SMITH:   The application, if your Honours please, is actually made on both bases.  We say if the court below, and, indeed, the trial judge, had applied the correct test of admissibility involving the degree of prejudice, then the evidence would have been properly held to have been inadmissible, but that on any view, whether that test were applied or not, the prejudice in this case for the admission of the particular statements which we seek to challenge on this appeal was so extraordinary that on no proper view could the discretion have been exercised, if it came to a point of discretion, to allow that evidence in.

The particular statements to which we refer, if your Honours please, are set out at pages 140 and 141 of the application book in the draft notice of appeal, and they are, in short, statements which go to evidence of Ned and Mary Perich that the deceased, on an occasion some seven months prior to the shooting, had said that she was too frightened to go back to the accused - the applicant in this case - because:

if she did she would be signing her death certificate -

and statements to that effect; it would be a “death sentence” and so on.  Objection was in fact taken to the admission of those particular pieces of evidence, those statements, in the trial court and his Honour expressly ruled on them.  His Honour the trial judge, in fact, ruled on them in the context of other rulings which he had made immediately prior to that and consequently his rulings on this part of the evidence has to be looked at in context.

At page 56 of the application book, your Honours will see the series of rulings made by the learned trial judge beginning between lines B and C and essentially, his Honour first ruled that the evidence of “prior acts of violence” which he was saying would be admitted:

cannot properly be used as propensity evidence -

which he explained as:

a propensity of the accused to commit acts of violence generally nor as evidence probative of his guilt of.....wilful murder.

Subsequent to that, his Honour said in the next paragraph:

Secondly.....that.....does not preclude the crown properly adducing evidence as to prior acts of violence insofar as.....relevant -

and then proceeded to itemise some of those matters.  It was important that his Honour the trial judge at page 58 said that the evidence of the relationship was admissible not as:

propensity evidence but.....as going to the relationship between the parties.

Our submission is, or would be, in due course that one has to be rather more specific about the evidentiary purpose of so‑called relationship evidence in a particular case.  We would seek to submit that it is not enough simply to say evidence is relevant because it goes to a relationship.  His Honour went on at page 60 line D to say that the true relationship was relevant to any -

defence which is properly raised such as absence of intent or provocation.

That, of course, necessarily depends upon the circumstances and the way the Crown case is being put.  It was in the context of those rulings that defence counsel at the trial, and then at page 66 when dealing with this particular item of evidence, that is the conversations or the statements rather which were made between Christmas 1993 and January 1994, if I might call it the “death certificate evidence”, said that he did not say that evidence was irrelevant in view of his Honour’s ruling.  That is the important qualification because his Honour had already ruled on admissibility generically, and then his Honour the trial judge at 67 lines B to D said it was admissible because it was clearly relevant to:

the history of the matter and the relationship of the parties.

Again, we would say, rhetorically, yes, but why?  It is not enough just to say relationship.  His Honour said it should be admitted because:

Even if it be prejudicial -

and this, of course, was where he came to exercise the discretion -

it should be admitted because of its undoubted probative value -

but again, in our respectful submission, without identifying what that probative value was.  It is important that, throughout, his Honour the trial judge did recognise that if the evidence were to be admitted it would require specific direction to the jury that it could not be used as propensity evidence.  Now the evidence was subsequently opened by the Crown and it was given by the witnesses and it was addressed in the submissions to the jury made by counsel.

His Honour the trial judge, we acknowledge, gave further specific warnings to the jury in his summing up at page 105 line E, page 106 line A and 107 lines A to D.  Again, what his Honour was making quite clear there was that the jury could have regard to that evidence only in so far as it went to the relationship of the parties and helped place the events of August, in any event, 1994 in some context even though these particular statements to which we refer occurred some seven months earlier.

The question we would again seek to argue is, what, in any probative sense, could that evidence properly have added to the evidence that was already in and in by both ruling and by agreement as to the relationship being one of violence.  It could, in our submission, add nothing to that other than an extraordinary degree of prejudice.  “Going back to you would be like signing my own death certificate”, in our submission, cannot overcome that kind of proposition, that kind of statement by judicial direction, particularly in a situation where, in our respectful submission, it adds nothing probatively to the Crown case.  It cannot go, in our respectful submission, to the question of the applicant’s intent at the time he shot the deceased, it simply cannot go to that.  It is not evidence of the fact that he had an intent to kill her at any time.  She may have had an apprehension that she might have been killed as the result of beating, or whatever the case may be, but it cannot be direct evidence of an intent on his path either seven months earlier or, more particularly, in our submission, on the day of the shooting, but it was because - - -

TOOHEY J:   Well, if that be so, Mr Roberts-Smith, on what footing was evidence of a violent relationship admissible?  You said earlier, as I understand it, that there was agreement.  I am not sure whether you mean there was an agreement as to particular evidence or just an agreement between counsel that the jury could be told that the relationship had been a violent one without going into detail.  Was that how it was put?

MR ROBERTS-SMITH:   Yes.  It was put on both of those bases.  There was, to some degree, agreement between counsel before the court and then there was agreement between counsel in the course of a pre-trial application before the trial judge followed by rulings as to those matters on which counsel could not agree or were not prepared to concede.  But, essentially, in respect to your Honour’s question, the evidence that the relationship was a violent one was, I think it is fair to say, conceded to be admissible simply on the basis of O’Leary and cases of that kind.

TOOHEY J:   Well, then what is the objection to this particular piece of evidence?  That it goes too far within the framework of a violent relationship, or how is it put?

MR ROBERTS-SMITH:   Yes.  The objection to this particular part of the evidence is precisely that, that if one applies what we submit is the correct test, which was not applied by the learned trial judge and was not acknowledged by any majority in the Court of Criminal Appeal, the prejudicial effect of those particular statements measured against what, we would submit, is lack of probative force to any relevant issue before the trial court, meant, necessarily, that quite apart from any general consideration of relationship evidence generally, this particular evidence was so prejudicial and so lacking in probative force, that on no view could it be admissible.  As I said, even if admissible, then it ought to have been, again, on any proper view, excluded.

BRENNAN CJ:   Did it not show very clearly that the relationship was one of bitterness and fear?

MR ROBERTS-SMITH:   It did show that, your Honour, but there was no dispute about that.

BRENNAN CJ:   If that was so, and here is a person who is charged with taking the life of a person with whom he had a relationship that was marked by bitterness and which, on her part, was marked by fear, why is that not very relevant in the circumstances of the day in question to the drawing of an inference as to the intent?

MR ROBERTS-SMITH:   Your Honour, as I have said, the nature of the relationship we accept, as was accepted below, in that sense as being admissible.  These particular statements, “Going back to you would be like signing my own death certificate”, were obviously directed to that point but, in our submission, were extraordinarily prejudicial and lacked probative value.  They may well have had considerable probative value if, for example, as in Wilson’s Case, the defence had been, “This was an accident.  I did not mean the gun to go off” or “I did not know it was loaded” or something of that kind, or, “It was not me”, as in Wilson, “The gun went off accidentally, when it exploded on the bale of hay”.

BRENNAN CJ:   The probative value here is precisely the same as the prejudicial value.  It is prejudicial in the sense of being highly probative of the relationship between them.

MR ROBERTS-SMITH:   But the submission we would seek to make, your Honour, is there must be something more than that to overcome the particular prejudice in this case as to those statements, as I have said.  If, for instance, there had been little or no other evidence of their relationship, then it may well have been that the admission of this particular evidence, these particular statements, could have been justified as being probative.

HAYNE J:   What do you mean by saying the evidence is prejudicial?

MR ROBERTS-SMITH:   We mean, when we submit the evidence is prejudicial, that it is highly likely, in our submission, to be used by the jury for a purpose for which it is not forensically legitimate.

HAYNE J:   Namely?

MR ROBERTS-SMITH:   Namely, that it could have been used by the jury in this case as an apprehension or as a realisation that because the wife had said some seven months earlier, “Going back to you is like signing my own death certificate”, the jury may well have simply proceeded directly from that to say, “This man then wanted to kill her and therefore wanted to kill her when he fired at her seven months later”.  In our submission, that would be a quite impermissible use of the evidence and, indeed, it is the impermissible use which his Honour the trial judge consistently warned them against, evidence of propensity. 

Now, when it came to the Court of Appeal, his Honour Justice Pidgeon held that the historical evidence of prior acts of violence was admissible as part of the res gestae.  In our submission, that cannot be so.

On the other hand, that position is to be contrasted, for example, with the situation in Van Den Hoek (1986) 161 CLR 158, where the statement there was made, “Help me, she is trying to kill me”, was clearly, on any view, part of the res gestae because it was said while the person was actually being beaten by the accused. The distinction, in our submission, between whether this evidence was part of the res gestae or circumstantial evidence was a critical distinction but it was not one which Justice Pidgeon in the Court of Appeal made.

We say that, because circumstantial evidence which discloses other criminal conduct on the part of the accused is not admissible as a matter of law unless the probative value transcends its prejudicial effect.  This is where we say, or we seek to argue, that both the Court of Criminal Appeal and the trial judge erred.  On the other hand, in contrast with that, evidence properly characterised as res gestae is not subject to any further condition of admissibility.  That is the importance of Justice Pidgeon holding it admissible as part of the res gestae.  Justice Pidgeon, in our submission, fell into the trap of which Justice McHugh warned in Harriman (1989) 43 A Crim R 221 of applying the right test. At that page his Honour concluded that evidence in truth, which is purely circumstantial, improperly avoids the tests of admissibility which the modern cases expound, and he was saying that in the context where there was a failure to distinguish between res gestae and circumstantial evidence, otherwise called propensity or similar fact.

Of all the trial judge and the three Justices on the Court of Criminal Appeal, it was only Justice Murray who referred to the requirement for the probative force of the evidence to transcend its prejudicial effect, as distinct - as being a condition of admissibility, as distinct from a mere discretion to exclude.  And yet, as I have indicated, his Honour

Justice Murray held the evidence to be admissible as propensity evidence, and that is why we raised it earlier.  So, we have the trial judge admitting it on one basis, one of the Justices in the Court of Criminal Appeal saying it was admissible as res gestae, the other judge saying it was admissible as propensity evidence, and Chief Justice Malcolm simply agreeing with the other two justices on appeal.

There is a divergence of views here which, in our submission, fundamentally fail to address the critical question of what the proper characterisation of that evidence was, it going to the condition of admissibility, and that is why, again, we say ‑ we seek to argue both admissibility and discretion, but admissibility first, because it was subject, we submit, or would seek to submit, to that test of admissibility.

In Frawley’s Case (1993) 69 A Crim R 208, Chief Justice Gleeson at page 220.5, recognised that it was undesirable - not particularly helpful to begin with an assumption that in cases involving a man and a woman, evidence of their relationship is admissible. In that case, his Honour found it desirable to avoid the label and to seek to describe the particular subject matter more specifically and more particularly and, again, that is why we say here, whilst generally speaking the evidence of the violence in the relationship certainly was admissible, nonetheless, to say that does not mean any evidence which goes to relationship is admissible, because there are still some parts of it -and we would seek to submit these statements were critical parts which needed to be subjected to the test of prejudice as a condition of admissibility and, if that were done, then notwithstanding that those statements went to the violent relationship, otherwise conceded and common ground, in effect, then those statements should have been excluded as being just so extraordinarily prejudicial as to deny the applicant a fair trial. If your Honours please, those are our submission.

BRENNAN CJ:   Thank you, Mr Roberts‑Smith.  We need not trouble you, Mr McKechnie.

There was no error by the trial judge in admitting the evidence objected to by the applicant.  It was relevant to the relationship between the accused and the deceased, and thus relevant to the assessment of the circumstances that immediately attended the act of the accused causing the deceased’s death.  Prejudicial, it was; unduly prejudicial, it was not.  There was no miscarriage of justice.  Special leave is refused.

AT 12.36 PM THE MATTER WAS CONCLUDED