Puta v The Queen

[2004] HCATrans 224

[2004] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S427 of 2003

B e t w e e n -

ARBEN PUTA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 2004, AT 11.55 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR D.G. DALTON, for the applicant.  (instructed by Watsons) 

MR L.M.B. LAMPRATI, SC:   May it please your Honours, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales)) 

KIRBY J:   Yes, Mr Walker.

MR WALKER:   May it please your Honours, there is an application for an extension of time.

KIRBY J:   What is the attitude of the Crown to that?

MR LAMPRATI:   Not opposed, your Honour.

KIRBY J:   Yes, very well.  You have that extension.

MR WALKER:   May it please your Honours.  Your Honours, as noted in the reasons of Acting Justice Smart in the Court of Criminal Appeal, volume 4 of the application book at 709, paragraph 181, it was critical to the case of homicide against my client that he had knowledge of the possession of guns by the others with whom what I will call the “ambush” was being laid before he left his house to collect the two men who were eventually killed.  That is the way in which the variety of manslaughter, which was the eventual verdict, was also left to the jury.  It was critical.  To use the metaphor, this was a link in the case, not a mere strand. 

As to the critical matter of lies that we seek to raise in our special leave application, this case presents a quite different face from those with which the Court is familiar, whether it be Edwards, Zoneff or Dhanhoa, just to name three of the most prominent.  Could I put the matter in relation to the lies as follows.  My client gave evidence, and during that evidence admitted to having told many – really, beyond the counting – lies to the police, to the ambulance officer, and thereafter.  All but one of those lies, so‑called lies, that is, were entirely explicable in orthodox terms – see Edwards, for example – as betokening not a consciousness of guilt of homicide, but a consciousness of guilt of common enterprise to assault.

Your Honours will recall that there is in the reasons reference to the presence of rope, and there is no suggestion that this was intended to be a hanging homicide; rope, in other words, to restrain people alive.  So the presence of guns was an important link transforming the question of my client’s guilt from something much less serious than the homicide for which he was eventually convicted and sentenced.

The role of the lies, however, contrary to Edwards, we submit, but also in a way affected by the statutory change in New South Wales concerning the need for corroboration, committed the error we have identified in our written submissions as follows.  From the top of page 721 of volume 4, in the reasons of Acting Justice Smart, his Honour refers to Crown submissions, the Crown address, as containing:

a telling analysis and indictment of the obvious falsehoods of Puta’s evidence and the reasons why he told them, inter alia, because of a consciousness of guilt.  He had been heavily involved in a serious assault in which his co‑accused had guns.

Now, that is not disputed.  The question is, did he know of them beforehand?  What the judge there says in dismissing, we submit wrongly, our unsafe, unsatisfactory ground was that it was obvious and known that they would be used if thought necessary.  The question that was squarely put to the jury was, did my client know about the guns beforehand? 

I will come back to page 720, which contains the critical error, but could I simply take your Honours very briefly first, in order to put it in context, back to volume 2 of the application book, towards the beginning of what the judge had praised as the “telling analysis”, et cetera, by the Crown of all these lies and the role they played. 

Significantly, at 318 in volume 2 of the application book, in the Crown’s address, for the critical time and occasion of the words attributed to my client before the ambush, “No shooting, no guns”, the Crown, understandably, if they are going to be making a contest as they did between Mr May, a fellow criminal who attracted the 165 warning, and my client – the Crown pours scorn upon the matter for which in fact my client was convicted of contempt of court.  He refused to reveal the names of the two “mystery men” the Crown there refers to at line 17, to whom he said he made the comment in the hall on the way out, that is, a time and occasion where it would be quite inconsistent with Mr May’s version that the comment was made as guns were being produced.  So scorn is being poured by the Crown there in terms which make it quite clear:

because he doesn’t want it to come out that, in fact, he was saying it to his co‑accused in the loungeroom. 

Using old, familiar and sound language of lie showing consciousness of guilt – the old and still good formulation that the lie is appropriately put to the jury as consciousness of guilt of the offence in question, not of mere assault, but of homicide, because it lacked any innocent explanation otherwise.  So that is how the Crown put it there, and through not a shred of suggestion in relation to what I will call straight corroboration of the old‑fashioned kind.

At line 36, you again find the plainness of the allegation of deliberate lie.  These were not just two competing versions about when this comment was made, Mr Puta and Mr May.  This was a deliberate lie and you will see the expression there at line 36 on page 318, “just a complete fabrication”.  Page 319, interestingly, one sees that there in relation to the lies generally, line 25 and following, the Crown actually put that which needs to be recognised in relation to the lies, namely, that they were not explicable only by a consciousnesses of guilt of the homicide and that they were not sufficiently indicative of that, as opposed to other matters, ever to go to the jury on that basis.  One sees in particular, at line 27: 

it was never his expectation to have to explain to police who were alerted by neighbours after loud gunshots –

So caught by surprise by the very thing that was at the nub of that essential link in the homicide charge against us. 

Page 320, one finds at lines 28 and following down to about 40, a reference in shorthand – we make no complaint, of course, about that – to the testimony which was in contest with Mr Puta’s version of the time and occasion when the reference to “No shooting, no guns” was made.  That is a reference to Mr May. 

Now, as your Honours have seen from the written submissions, there was a direct contest, which was then played out in the very thorough cross‑examination of Mr May by my learned junior at trial.  It is crystal clear, as one sees in the passage in Justice Smart’s reasons commencing at page 709 and then set out very extensively – it is clear that that culminated in evidence of the kind which kept as a very live dispute – disputed, conflicting testimony – between Mr Puta and Mr May as to whether Mr Puta was there when guns were produced; an allied question being, for circumstantial reasons shown at the foot of page 716, when did he make the comment about “No guns, no shooting”? 

At page 716, just to pick the high watermark, as it were, in cross‑examination, lines 33 and following: 

Q.       In other words, before the guns were produced?   [Mr Puta was gone from the premises]
A.       Yes, probably, most likely. 

CALLINAN J:   Mr Walker, is that correct?  The way the prosecutor put it at 321, lines 10 to 18? 

MR WALKER:  

[T]hat he understood –

means that Mr Puta understood –

that he carried a gun –

means Mr Unsal carried a gun –

would lead him –

I think that is Mr Puta –

to take appropriate precautions in lying in ambush. 

CALLINAN J:   That is before the ambush started, that was said?

MR WALKER:   Yes.  My learned junior will correct me if I am wrong, part of our position at trial was that it was feared that Mr Unsal, renowned for such behaviour, would have a gun.

CALLINAN J:   Why did your client remain, if he was so opposed to guns?

MR WALKER:   Well, he was not charged with – an occasion when someone else may have a gun other than his co‑accused, the victim.

CALLINAN J:   I understand, but if he was so concerned about guns as he claimed, why would he not disappear at that point and not take the risk?

MR WALKER:   He may well be wondering just that, your Honour.

CALLINAN J:   That is what the jury might have asked. 

MR WALKER:   Well, the jury could not have rationally reasoned from that that my client knew that his co‑accused had guns.  They would certainly say what a foolish or foolhardy or worst course of conduct was followed in staying around for the group of men who had taken ropes.  It was thought that two people were about to be brought back with guns.  Of course, as your Honours know from the judgment, this was a larger group than two, a larger group of people, who were going to lie in ambush – in other words, take by surprise people, obviously with the hope – engendered, presumably, by televised fiction – that they would overcome people with guns.  Now, that is the best I can offer your Honour as a rationalisation of what was, on any view of it, on all hands, foolish and far worst conduct.

The critical thing is that we were convicted of homicide because of this critical link of our prior knowledge of guns.  But for that, there would have been a different conviction, if any.  That is the critical question which is not capable of having been answered adversely to my client, safely, on the basis of the jury’s general disgust or suspicion for people who participated in or hung around an occasion where it was feared that one side would have guns.

As I say, at page 717, middle of the page, we had there then the way in which the testimonial contest between Puta and May was set before the jury.  Then one comes to where we submit serious errors were committed in the Court of Criminal Appeal, page 720 of volume 4.  Paragraph 202, there is an accurate summation of a submission put by my learned junior to the Court of Criminal Appeal.  At paragraph 203, they are characterised as “misunderstand[ing] the Crown case”.  Then some critical expressions follow:

It was not that alone such lies established its case –

I presume that must mean all on its own, but how could it possibly?  Lies cannot establish a case all on its own –

but that taken with the other evidence –

We interpolate, well, it is always going to be taken with the other evidence – 

in the case they were probative of guilt. 

You establish a case by proving guilt, and you prove guilt by establishing a case.  This is a false contrast –

The prosecution did not rely on lies as “corroboration” of May –

We interpolate, of course. His Honour’s inverted commas are understandable, bearing in mind that section 164 of the Evidence Act had abolished any prior rule, in relation, for example, to people involved in the same criminality, requiring corroboration, and replaced it with the warning under section 165 which was given in this case and not in terms that talked of old‑fashioned corroboration.

Then there is a reference to Edwards, which is, of course, a decision on, among other things, the dire or dangerous circularity of permitting corroboration to appear from an accused’s lie when it is capable of being found to be a lie only by the evidence of the witness whose testimony is to be corroborated.  The circularity or bootstraps approach was clearly identified in Edwards and not for the first time.

KIRBY J:   Yes, but Justice Smart was conscious of that.  He goes on to point out what Edwards was about.

MR WALKER:   That is why I have to try and persuade your Honours that this was serious error and a miscarriage for that to have gone forward on this basis.  His Honour then goes on to say that:

the Crown relied on the lies as strengthening its case.

Now, again I am bound to observe that there is not much difference between establishing a case proving guilt and strengthening a case, particularly when the evidence in question, lies, could never, ever, alone prove guilt with nothing else.  It is always going to be in the context of whatever other evidence there is.  These are false contrasts ‑ ‑ ‑

KIRBY J:   Not inconsistent with relying on it to strengthen the case.

MR WALKER:   Now, to strengthen the case, one strengthens a case by assembling all the material, testimony plus exhibits ‑ ‑ ‑

KIRBY J:   Including testimony that damages the accused, and thereby undermines his explanations and assertions.

MR WALKER:   We would not have a complaint if rather than the Crown characterising as a lie what Mr Puta had said about the time and occasion of the mention of guns and denying that he had ever seen any guns – if that had not been characterised as a lie, but as one of the facts concerning an essential link about which there were competing versions, it is not the fact that every rejected version is therefore a deliberate lie for the purpose of the doctrine of the use of lies; that has been well established in this Court.  The Crown, having done that and using the lies as consciousness of guilt – and that is exactly what is then said at the end of Justice Smart’s paragraph concluding at the top of page 721 – was bound, in accordance with well‑established principle, to have identified the particular lies and shown how they were capable, depending on the jury’s determination, of informing the case of the particular offence. 

In this case, we stress that meant homicide.  All the lies but this one about the gun could not be informative of homicide as opposed to all the other possibilities about which anybody might have a consciousness of guilt or a desire not to speak truly.  In order to convict my client of homicide, there needed to be this link with the gun.  The only evidence of the link with the gun was Mr May.  So when one strengthens the Crown case for that link, what you were doing was strengthening the preference of the jury for Mr May’s version.  That is all. 

If you are using the lies to strengthen the preference of the jury for Mr May’s version – and the relevant lie, as I have taken you to, is the one about where was he when he made the telling comment about “No shooting, no guns” – then you are saying, “Believe it is a lie because it is contrary to Mr May’s evidence in‑chief, although not contrary to his concession in cross‑examination, and having believed it is a lie, use it to strengthen the case”, being rationally probative, of course, only of the prior knowledge of guns, which was the essentially link to homicide.  Thus the circularity emerged in circumstances quite different from Edwards’ Case, because there had not been this explicit reference to corroboration by reason of the statutory abolition in section 164.

Why this Court should take the case on by granting special leave is that now that corroboration as a well understood common law approach has been removed from these very important aspects of criminal trials, when evidence is given by persons who were also criminally involved in the same offence, the section 165 warning not containing corroboration as such, the danger emerges – exactly as happened in this case – that the testimony to be “strengthened”, to use the word following section 164, will be strengthened by a lie found only by preferring that version. That is a new form of an old circularity and, in our submission, this Court needs to nip it in the bud before it becomes a way of introducing irrational and seriously unfair use by a jury, under directions by a judge, of the supposed lies told.

KIRBY J:   At the end of the judge’s directions, I think there was a brief pause in the trial and counsel were asked whether they had any matters that they wished to raise. 

MR WALKER:   I hand to your Honours, as I have given to my friend, a passage from argument on the form of directions.  We have taken the liberty of highlighting it for speed.  It is clear in that passage that beforehand this matter had ‑ ‑ ‑

KIRBY J:   Where did this come in relation to the summing up?

MR WALKER:   This is before the directions were given.  As is quite common, counsel were invited to address on matters that should be covered.  In short, the answer to your Honour Justice Kirby’s point is this.  The matter had been argued, canvassed and determined adversely to my client

beforehand.  There is no requirement – indeed, it is to the contrary – that one has another go after directions have been given in accordance with prior rulings.  That is why the question of it not being raised at the end of the directions was not raised in the Court of Criminal Appeal.  It is crystal clear the matter had been fairly, squarely and, with great respect to my learned friend my junior, properly raised in full beforehand.  The judge had ruled against him, and that is why the point is entirely appropriate and ripe for determination by this Court.  May it please your Honours.

KIRBY J:   Thank you.  Mr Lamprati, on that last point, that seems to be contrary to the submissions that were put in the submissions for the Crown.  Would you come to the centre, please? 

MR LAMPRATI:   I am so sorry.  Yes, my recollection is that after the directions were given by his Honour no further comment was made.  It may be that in the circumstances, your Honour ‑ ‑ ‑

CALLINAN J:   He would not, he had put his position clearly ‑ ‑ ‑

MR LAMPRATI:   It already having been ruled on, yes. 

CALLINAN J:    ‑ ‑ ‑ he would just be wasting time if he raised it again.  And the judge has made the position clear anyway.

MR LAMPRATI:   I accept what your Honour says. 

KIRBY J:   But that leaves the adequacy of the directions and your submission, as I understand it from the written submissions, is that first, they conform to what this Court has said in Edwards and Zoneff; second, that on the premises a different direction did not in fact arise; and thirdly, that to the extent that the judge went further he would have simply been laying it on, on an area where it could be highly prejudicial to the present applicant because of the admitted numerous and outrageous lies that were told.

MR LAMPRATI:   Yes, we submit that it was likely to have been an utter forensic disaster for the trial judge to go through all of the lies, assigning them to this or that category, reminding the jury over and over of the untruths, many of which were admitted in court by Mr Puta, that had been told.  It could have done no good whatsoever, I submit, to Mr Puta’s interests.  Your Honours, I will be as brief as I can, but the theme that permeates the applicant’s submissions, I submit, is the notion that what in fact was being put to the jury was that Mr May’s evidence was being corroborated by lies told by Mr Puta ‑ ‑ ‑

KIRBY J:   But you contest that.

MR LAMPRATI:   Yes, we contest that.  Moreover, we put that the thrust of the Crown case was that, first of all, May was right when he said that Mr Puta had said those things at the house and had seen the guns produced, but also that a multiplicity of circumstances in the case pointed to the fact that what May said happened was likely to be the case.  For example, the whole sequence of preparation prior to the event, the careful preparation, the rendezvous, the importation of the ring‑ins, Nanai, Mullany and May himself, “muscle men” or, to use the vernacular, “bouncers”.  The moving off in the two cars, the stopping at the chemist shop to buy the surgical gloves and tape, the provision of lengths of rope at the house, Mr Puta having supplied his house as the venue for whatever was to occur.  The flurry of phone calls between various of the accused, including Mr Puta, prior to the event. 

All of this pointed to very careful planning and preparation, but importantly there was also the factor that Yildirim and Unsal, the two victims, were known to be people who carried arms.  It was not, as the written submissions suggest, that they had a reputation for it.  Mr Puta gave evidence that he knew they carried arms and he had actually seen Unsal demonstrate, and at another part of the evidence he said effectively that he was a crack shot – he never used two bullets when one would do.  The statement that Mr Puta admitted to having made ‑ ‑ ‑

KIRBY J:   Yes, we do not need any more assistance, Mr Lamprati.

MR LAMPRATI:   May it please your Honours.

KIRBY J:    Any reply, Mr Walker? 

MR WALKER:   Your Honours, it is, with respect, a form of spurious charity on the Crown’s part to say that we may have been worse off if lies had been dwelt on before the jury ‑ ‑ ‑

KIRBY J:   That is the problem, is it not?

MR WALKER:   We asked for it.

KIRBY J:   Yes, but the problem is that it is for the judge to decide on the adequacy, according to the principles laid down by the Court.

MR WALKER:   But the Court’s principles ‑ ‑ ‑

KIRBY J:   The more the judge goes into the issue of lies, the greater is the risk of a miscarriage, and then different counsel come up here and say the judge has laid it on with a trowel on lies and we should therefore set the ‑ ‑ ‑

CALLINAN J:   Mr Walker, I appreciate this is only a précis of the submission by your predecessor ‑ ‑ ‑

MR WALKER:   Yes, it is, your Honour. 

CALLINAN J:    ‑ ‑ ‑ but it does rather seem that what was asked for was a blanket direction which would not involve any analysis of the lies, but simply a direction that the lies were not capable of corroborating May on any topic, were not properly available and did not give rise to an available inference.

MR WALKER:   No, may I try to change your Honour’s mind in this fashion.  There is a blanket submission because a lie by lie analysis produces what I opened with today.  There was only one so‑called lie that went to the homicide link.

CALLINAN J:   Was that submission made?

MR WALKER:   Yes.

CALLINAN J:   Whereabouts was it?

MR WALKER:   In the first page, 2982:

The lies admitted or alleged unto themselves jointly or severally are not capable of a properly available inference the accused Puta knew of the possession by others –

In other words, focusing on the link –

nor are any lies admitted or alleged capable of corroborating May on that topic.

Then over the page we come to the circularity or bootstraps point, the last highlighted point:

the Crown thereafter has to point to other evidence to show that particular character or give that particular character to the lies and that evidence is May’s evidence and Edwards –

that is, this Court’s authority –

says you cannot use that evidence which goes to demonstrate that what is said is a lie to corroborate the accomplice.

Now, in other words, the point was quite precisely and well taken by my learned junior.  Look at all these lies.  Only one could be said to have anything to do with consciousness of guilt – leaving aside corroboration for the moment – in relation to knowledge of guns beforehand.  Only one of them.  All the rest, on analysis, one by one, confirmed in the Court of Criminal Appeal to the same effect ‑ ‑ ‑

CALLINAN J:   Section 165 still gives the trial judge a discretion, does it?  I am not sure.

MR WALKER:   Yes, it is a very closely trammelled ‑ ‑ ‑

CALLINAN J:   If a party requests or ‑ ‑ ‑

MR WALKER:   It is a very closely trammelled discretion. We have no complaint about the section 165 warning which was given by Justice Hidden in this case. It was a perfectly proper warning; it was a warning about the unreliability of May’s evidence. It was not a warning which, as it were, introduced by the statutory back door the common law on corroboration. That would be difficult with section 164, notwithstanding subsection 165(4) dispenses one from using any particular form of words.

That, in our submission, only went to highlight that, we having asked for a warning, it is really not an answer now for the Crown to say, “You might have been worse off if you got it”.  In our submission, we should have had a direction from the judge that said, “Members of the jury, you cannot use Mr May’s evidence to find Mr Puta’s evidence about where he was when the guns were produced was a lie” in order to strengthen the Crown’s case on that essential link to homicide, namely, prior knowledge of guns, because that depends simply and solely on the acceptance of Mr May in a testimonial contest.

KIRBY J:   I understand the way you put it, but it is not for counsel to determine what is required, because counsel tend to change in the hierarchy of these appeals and then we get people saying, “Well, that request should not have been made and the directions on lies have elaborated lies and his Honour needlessly repeated the references to lies and that was highly damaging to the fair trial of the accused”. 

MR WALKER:   Your Honour, this is a travesty that is suggested here today, that his Honour was going to dwell at length and lovingly, in relation to this essential link to homicide, on lies which nobody has suggested in themselves had anything to do with being an indicator of consciousness of guilt, of prior knowledge of gun, thus homicide, as opposed to all the other things.  There was only one lie and one gun ‑ ‑ ‑

KIRBY J:   We are not over‑sophisticating the issues of lies, though.  I mean, this was a very long trial, as Justice Smart pointed out.  Lots of evidence and many days ‑ ‑ ‑

MR WALKER:   All the more reason for a clear direction to the jury, “Mr Puta admits to lots of lies.  That will go to credibility, but you must not use the lies which could as well be explained by consciousness of guilt of assault in order to reason about consciousness of guilt of homicide, and on that critical link the Crown and the defence have this common ground to homicide, prior knowledge of gun.  You must not use Mr May’s evidence in a bootstraps or circular approach to strengthen a Crown case by castigating as a lie what was simply a live contest of testimony”.  That distinguishes this from other cases this Court has considered, where the ‑ ‑ ‑

KIRBY J:   A highly sophisticated distinction, which I doubt would be very helpful.

MR WALKER:   It is essentially and robustly fair, rather than sophisticated.  It is a plain and simple proposition that you do not visit a double whammy of calling it a lie and consciousness of guilt when there is a subsisting, existent contest between two witnesses and there are no other witnesses by which one could avoid the circularity denounced in Edwards. That is why this case, in our submission, both the individual injustice of the case and the importance of the principle following section 164, ought to be taken on by this Court. May it please your Honours.

KIRBY J:   Yes, thank you, Mr Walker. 

The applicant claimed that there was no agreement between himself and the co‑accused to assault the victims, still less to kill them.  However, the prosecution case to the contrary was a strong one and inferences were available to the jury which they were entitled to regard as compelling.  The applicant and the co‑accused, Nitrovic and Nanai, were acquitted of murder but convicted of manslaughter.

At various stages the applicant told a series of elaborate and inconsistent lies to police, an ambulance officer and others. He admitted he told lies. The lies were relied on by the prosecution at the trial to discredit the exculpatory version given by the applicant to the jury and to strengthen the prosecution case. The applicant asserts that they were used impermissibly to corroborate or strengthen the evidence of the accused accomplice, Mark May, notwithstanding section 164 of the Evidence Act 1995 (NSW): repeating the error to which that section was directed. The Court of Criminal Appeal, however, rejected that interpretation of the use that was made of the lies. In our view, it was correct to do so.

At the trial the judge gave the jury clear directions about the use they could make of the applicant’s lies.  He warned the jury that the lies must be proved to be deliberate; and that not all lies are told by reason of the guilt of the accused of the crimes charged.  The terms of the directions given by Justice Hidden at the trial conform to the authority of this Court in Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234. Any more elaborate direction on lies could, in our view, have given a greater emphasis to the lies than was fair to the accused.

We are not convinced that any error or misdirection or miscarriage of justice has occurred.  Accordingly, special leave is refused.

MR WALKER:   May it please the Court.

AT 12.30 PM THE MATTER WAS CONCLUDED