Poynder v Kent & Ors; Sodomaco v O'Bryan & Anor

[2009] HCATrans 120

[2009] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M4 of 2009

B e t w e e n -

SCOTT JAMES POYNDER

Applicant

and

GRAHAM KENT AND DENNIS O’BRYAN AND STATE OF VICTORIA

Respondents

Office of the Registry
  Melbourne  No M5 of 2009

B e t w e e n -

ROBERT JOHN SODOMACO

Applicant

and

DENNIS O’BRYAN AND STATE OF VICTORIA

Respondents

Applications for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 2.20 PM

Copyright in the High Court of Australia

__________________

MR S. GILLESPIE‑JONES:   If your Honours please, I appear for the applicants in both of those matters.  (instructed by BM Legal)

MR D.J. BRACKEN:   If it please the Court, I appear for Mr O’Bryan.  (instructed by Russell Kennedy)

MR M.A. TOVEY, QC:   May it please the Court, I appear for Mr Kent.  (instructed by Mahonys Solicitors)

MR H.J. LANGMEAD, SC:   If the Court pleases, I appear with my learned friend, MR G.J. MAGUIRE, for the State of Victoria.  (instructed by Victorian Government Solicitor)

HAYNE J:   Now, is there any reason not to deal with both matters together and treat them as a single application?

MR GILLESPIE-JONES:   No, your Honour.

HAYNE J:   Yes, Mr Gillespie-Jones.

MR GILLESPIE-JONES:   Your Honours, heading to my, as it were, the first question first, is it lawful for police to threaten a prospective witness and his family to ensure that he makes a statement, being a proof of evidence and, two, gives evidence?  The answer that was given by the trial judge in this case was, yes; by the Court of Appeal was, yes; by the police hierarchy in this case was, yes; by the police respondents was, yes; and by the State of Victoria here today is, yes.  Now, in my submission, all of those answers are inadequate.

It is an important matter.  The threats were tape recorded and, as it were, the results of the tape recordings was a statement and the statement formed the basis of the prosecution of both of the applicants.  The submission is that were it that the position in Victoria remains as it is, it becomes a legitimate forensic weapon for police forces not only in this State, but by application, because it is a question of application of common law principles, to police forces elsewhere in the country.  Now, in my submission, it is a point of importance and it shows serious error and it is a matter, in my submission, for this Court to correct and intervene in this particular application. 

If I can go to the actual threats that were made, it is important, with respect, to realise that the case against Kent did not have anything to do with false imprisonment.  Kent was party to a plan to put these threats to Kostadinovic, who was the witness, and those threats had been the subject of approval going all up the lines, as it were, of the police hierarchy.  What happened was that Kent himself was not aware of the circumstances of the restraint, as it were, of Kostadinovic and he was kept at the police station for eight to nine hours during this questioning.  But he was aware of the threats that were to be made and ultimately he relied on the statement in order to bring his information against Mr Poynder.  So were it not for Mr Kent, Mr Poynder would have suffered no loss.

HAYNE J:   Do you say that the making of the statements which you characterise as threats was itself unlawful?

MR GILLESPIE-JONES:   I do.

HAYNE J:   Why is it unlawful?

MR GILLESPIE-JONES:   It is unlawful, if I can put it this way.  If the situation is that pressure is brought to bear on witnesses, such as to intimidate them, in my submission, that of itself is sufficient to be an attempt to pervert the course of justice and it can be contempt of court.  Now, here I was relying on Meissner’s Case which applied Kellett which has been applied widely.  Kellett applied to potential witnesses.  In Kellett the threat was the threat of bringing a civil action and that was sufficient to establish a liability.  So, in my submission, if one has a look at the threats that were applied to Mr Kostadinovic here, they were pretty substantial. 

Contrary to what was said in the Court of Appeal, they had to be extracted by subpoena.  They were not voluntarily disclosed.  Also, contrary to what was found in the Court of Appeal, it ended up with a witness such as Mr Kostadinovic admitting that he lied to the police in the statement, which again, in my submission, is not surprising.  If I can go to the threats themselves, and I have outlined them at paragraph 3, there are some things I would like to point out. 

Kostadinovic was arrested for breaching a bail condition that was known to be non‑existent prior to this conversation and he was held at the police station for eight hours.  He was told that were there to be a deal, there was a deal, that would enable him to go home today.  Now, this is in the context of him being held at the police station.  The fact that he was told that there could have been a sum of $48,000 brought against him, that when he was advised by his solicitor to do a “no comment” statement, the police said to him, “Well, you will go to gaol for two to three years if you do not”, and then the threats were made to prosecute both his mother and his father for drug trafficking. 

The point is that at that point in time he was being wrongly held and the threat with respect to going to gaol for two or three years might well lead one to the view that that was going to be the extent of his further incarceration were he not to make a statement to the police.  My point is that it is artificial in a way to say that the threats were, with respect to what took place in the police station that day, lawful, but the false imprisonment was not. 

The applicants failed before the judge at first instance because the judge said the police had done nothing wrong either with respect to the false imprisonment or with respect to the threats.  The question of causation really was never the subject of decision before the trial judge.  It was the subject of observations by the Court of Appeal.  The applicants failed against Kent because the threats were lawful.  They failed against Poynder because it was said that the threats did not cause any loss.  Now, what happened, it seems to be admitted that, looking at the response of counsel for O’Bryan, looking at paragraph 18 ‑ ‑ ‑

BELL J:   Would you give me an application book number?

MR GILLESPIE-JONES:   Yes, page 183, your Honour.

It was not disputed by O’Bryan that he obtained a statement from Kostadinovic knowing and intending it would overcome Nancarrow’s objection to the arrest and charging of the Applicants, and that they would be arrested and tried (the normal consequences of which, the Applicants argue, satisfy the requirement of “harm”). 

My friends are right.  I do argue that.  What happened in this case, as soon as the applicants were charged, they were arrested and imprisoned.  They developed a medical condition, the subject of agreements by the psychiatrists between the respondents and the applicant, and they suffered financially, even though the amount of the finance has been the subject of dispute. 

That was held by the court not to be a foreseeable risk of harm that followed the unlawful act and, with respect, if leave were given, we would challenge that particular finding.  In my submission, it is obvious that when police are charged with drug trafficking and brought in front of the cameras, that all of these risks are not only foreseeable, but to adopt the English view, would have been foreseen. 

HAYNE J:   But do you not need to grapple with what appears in paragraphs 11 and 12 of the Court of Appeal at page 101; namely, that the malicious prosecution fails because the officers concerned honestly believed on reasonable grounds in the appellant’s guilt and you are then in the position of prosecuting a claim for misfeasance in public office which is founded on what; that there was the illegal detention of a witness whose evidence bore upon the charges which it was then contemplated might be brought against the two applicants?  In the course of interviewing that witness, threats or inducements of a kind that might be relevant in considering confessional statements and their admissibility, were made, is that right?

MR GILLESPIE-JONES:   That is true, but having said that, the misfeasance point was the only point that was argued on the appeal and the situation ‑ ‑ ‑

HAYNE J:   But it is the only point that you prosecute here, is it not?

MR GILLESPIE-JONES:   That is correct.  The situation is that we fall, in my submission, into a similar category to an ordinary victim of any other intimidation and this is one branch of it, I suppose.  Of course, misfeasance can be reckless as well as intentional and it has that particular edge to it here.  These threats that were made were operative and were operated on and really the extra hurdles that the applicant would ordinarily have to get over for malicious prosecution, those are ones that we chose not to jump, as it were, at the committal and, in my submission, there are different tests and different matters to take into account here.  Here, in my submission, your Honours, we have got a question of unlawful conduct in order to get a result and it means that, with respect, the application of that has meant that these applicants have suffered loss.

Now, the Court of Appeal was of the view that one had to look at the prospect as to whether any subsequent trial might or might not be fair.  With respect, in my submission, that proposition puts far too great a burden on any particular applicant in this position. 

HAYNE J:   But the complaint that is made is grounded in the fact in the charging and arrest of the two applicants, is it not?  The misfeasance in public office is constituted by the propounding of charges against them with the consequences that followed of imprisonment and financial and physical consequences identified?

MR GILLESPIE-JONES:   That is true, but the wrongful act, in my submission, is the intimidation of this witness, in standing over him and the threatening of him, in order to make the statement without which there would have been no basis for the prosecution.

HAYNE J:   I understand that is how you put the case, but the point I think you have to grapple with is, if malicious prosecution will not run because there was an honest belief in guilt that denied the malice and your complaint of misfeasance is rooted in the fact of the institution of the prosecution by charging these men, there is a problem of coherence presented, that if you cannot get up on mal pros, why should you get up on misfeasance?

MR GILLESPIE-JONES:   In my submission, with respect to the intimidation of witnesses, it matters not as to whether they were hoping to legitimately bring a case to a court.  The motives are irrelevant.  That is clear from the authorities with respect to intimidation of witnesses.  So one has a distinction between misfeasance in public office in that regard and malicious prosecution in the other and it is fundamental, with respect ‑ ‑ ‑

BELL J:   When you speak of the authorities concerning intimidation of witnesses, I think you are in a rather different field, are you not?  Here you have police officers interviewing someone because they believe that person can give information in support of a charge.  They, on the factual findings as I understand them, are seeking to get from that witness an account that they believe to be truthful.  Whether their conduct is appropriate or not, it is relevant that they tape record all that goes on and pass it on to those responsible for making a decision as to whether or not to prosecute.  To talk of the authorities relating to intimidation of witnesses, unless there is some particular case you want to take us to, it just seems to me you are in a very different field of discourse when you refer generically to that body of principles.

MR GILLESPIE-JONES:   With respect, Kostadinovic was being spoken to as a witness no as a suspect.  The police made it plain that the statement that they were obtaining was not to be used against him but to be used against the police.

BELL J:   Yes, I understand.

MR GILLESPIE-JONES:   It has been the law for a long time that, if you are approaching a potential witness, you cannot threaten them or induce them.

BELL J:   Perhaps I do not understand the authorities to which you are referring.  I may have been thinking of something else. 

MR GILLESPIE-JONES:   If I can take you to, for example, paragraph 9 of the ‑ ‑ ‑

BELL J:   Would you give us the application book number?

MR GILLESPIE-JONES:   Page 164, line 32:

“Threats and bribery are the (improper) means used by offenders in the cases, and any pressure by those means – or by force, as for example by actually assaulting or detaining a witness –

which I would say has happened here –

would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness.  If he alters his evidence or will not give it ‘through affection, fear, gain, reward, or the hope or promise thereof’ (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.”

That is a quote from Kellett and that passage was extracted from a judgment by Sir Daryl Dawson.

BELL J:   You do not challenge the conclusion with respect to perverting the course of justice.

MR GILLESPIE‑JONES:   The Court of Appeal said there was nothing wrong with what they did, you see.  With respect, they say it was perfectly lawful to do what they did.

BELL J:   Yes, and you do not challenge that.

MR GILLESPIE‑JONES:   With respect, I do.  I challenge that in the case against Kent because Kent only knew of the threats.  With respect to the illegality, I challenge – with respect to the unlawfulness of the intention, I challenge that also but in relation to the foreseeable risk of harm where I failed with respect to the conviction point.  With respect to Justice Hayne’s point, there are different – with respect to the detaining of the witness, if

one threatens a witness at all, it used to be that that was either a contempt or that was an attempt and in this situation all we have is a declaration of it being lawful.

Lastly, with respect to the State of Victoria being joined, it was the police case that the police members at trial – that all liability could flow to the State of Victoria.  It was not the applicant’s.  The applicant was of the view that liability should not flow and the position was changed – I tried to change the position on the appeal and I was not allowed.  But, in my submission, in any event the State of Victoria should be a party to these proceedings if an order might be made against them.  That is how I put it.  I thank your Honours.

HAYNE J:   Thank you, Mr Gillespie‑Jones.  We will not trouble counsel for the respondents in these matters.

An appeal in neither of these matters would enjoy sufficient prospects of success to warrant a grant of special leave to appeal to this Court.  Special leave is accordingly refused.

MR LANGMEAD:   Your Honour, is the application refused with costs?

HAYNE J:   Is there any reason why costs should not go?

MR GILLESPIE‑JONES:   No, your Honour.

HAYNE J:   With costs.

AT 2.42 PM THE MATTERS WERE CONCLUDED