R v Soma

[2002] HCATrans 95

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 2001

B e t w e e n -

THE QUEEN

Applicant

and

SIPAI SOMA

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 1.34 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the applicant.  (instructed by Director of Public Prosecutions (Queensland)) 

MR R.V. HANSON, QC:   If your Honours please, I appear with my learned friend, MR A.W. MOYNIHAN, for the respondent.  (instructed by Legal Aid Office (Queensland)) 

GLEESON CJ:   We thought we might be assisted by hearing from Mr Hanson. 

MR HANSON:   Thank you, your Honour.  Your Honours, in our submission, the case of Chin shows that the principle that the Crown should not split its case has application both to a request by the Crown to call rebuttal evidence and to the situation where the Crown cross-examines the accused ‑ ‑ ‑

CALLINAN J:   This depends entirely upon the construction of the statute, though, Mr Hanson, does it not? 

MR HANSON:   Is your Honour speaking of section 18? 

CALLINAN J:   Yes, I am. 

MR HANSON:   I suppose the question is whether that confers an absolute right, or whether the discretion remains at large. 

CALLINAN J:   But if the Court of Appeal is right, effectively, the only people who could ever avail themselves would be one side of section 18.  It just depends upon when the evidence is given, which somebody wants to contradict. 

MR HANSON:   Well, your Honour, in our submission, it depends more on that.  It depends on exactly what it is that the Crown seeks to elicit by cross-examining under section 18 ‑ ‑ ‑

CALLINAN J:   What it seeks to elicit is a prior inconsistent statement relative to the subject matter of the proceedings of the issue.  “Relative to” ‑ not necessarily the issue – relative to it. 

MR HANSON:   Of course, the case proceeds firstly by cross-examination, putting that prior inconsistent statement to the witness.  If he agrees ‑ ‑ ‑

CALLINAN J:   Yes, but the Crown does not know what it is going to have to cross-examine on until it hears what the accused’s evidence is. 

MR HANSON:   But if the material it has to cross-examine him upon is something that goes to proof of the Crown case, as it did in this case, and could have been led as part of the Crown’s case in-chief, then the Shaw principle comes into play, when ‑ ‑ ‑

CALLINAN J:   I am not satisfied that it could have been led, or, if it could have been led, whether its prejudicial effect, at that stage, might have outweighed any probative value that it had. 

MR HANSON:   Well, that would give rise to a debate with his Honour the trial judge as to whether, in his discretion, he ought to permit the cross‑examination to proceed any further. 

CALLINAN J:   But a Crown Prosecutor, acting properly, might take the view that it was not worth that controversy and, indeed, he might be of the view that at that stage, it might be prejudicial.  He might, quite properly, in the exercise of his prosecutorial discretion, decide not to adduce it. 

MR HANSON:   Having taken that decision, your Honour, it would then seem that he is stuck with the regime that must follow.  That is ‑ ‑ ‑

CALLINAN J:   No matter what the accused says in his evidence? 

MR HANSON:   If the accused then says something inconsistent with that, he then has the opportunity to seek to cross-examine upon it. 

CALLINAN J:   Section 18 does not say anything about a discretion. 

MR HANSON:   It does not, your Honour, but the case of Niven, in this Court, 1968, says the Tasmanian equivalent does not give the Crown an absolute right to have a prior inconsistent statement admitted. 

McHUGH J:   But why not?  If you practice in New South Wales, for example, where the old system of pleading existed for a great many years, people would understand these principles a lot plainer.  In the criminal trial, the reason, historically, the Crown had to put all its evidence in-chief was because the only pleadings were the indictment and the plea of not guilty, which put everything at issue.  Then, in 1854 or 1856 – whenever it was ‑ the Evidence Act came in and gave a statutory right to the Crown to lead evidence of a prior inconsistent statement.  Surely, that had to be given effect to.  So in those days, the accused could not give evidence, but a witness called for the defence might give evidence, and if that person made a prior inconsistent statement, then the Crown – the only time he could tender it, really, would be in reply. 

MR HANSON:   Well, it depends, I suppose ‑ ‑ ‑

McHUGH J:   See, that is what you have to bear in mind, that in those days, because it was not – the accused could not give evidence.  It was witnesses who would be giving evidence for the defence. 

MR HANSON:   We have moved on from there, and now ‑ ‑ ‑

McHUGH J:   Well, you may have moved on, but the principles have not. 

MR HANSON:   Your Honour, the cases, in our submission, show that it is nonetheless still a question of discretion of the trial judge to ensure there is overriding fairness in the cross-examination, and that extends as far as discretion to refuse to permit cross-examination on a prior inconsistent statement, in certain circumstances. 

CALLINAN J:   But I looked at Killick.  Killick was relied upon by the Court of Appeal.  It has nothing to do with section 18. 

MR HANSON:   Section 18 was a separate ‑ ‑ ‑

CALLINAN J:   It is a pure rebuttal case. 

MR HANSON:   There were two points. 

CALLINAN J:   The section is not mentioned. 

MR HANSON:   It is, in the judgment, your Honour. 

CALLINAN J:   In Killick, is it? 

MR HANSON:   Sorry?  No, section 18 is mentioned in the judgment. 

CALLINAN J:   No, but in Killick.  Is it mentioned in Killick, which is one of the cases in this Court?  I do not think it is, Mr Hanson. 

MR HANSON:   No. 

McHUGH J:   You rely on Lawrence.  I argued the first stage of the Lawrence appeal in the High Court, and if anybody was prejudiced by the Crown being allowed to reopen its case, it was Lawrence.  There he was, in the middle of his cross-examination, and the Crown was allowed at that stage to reopen its case, to call a witness who was quite damning to him.  Now, in that situation, you can say, well, the prosecution has to tender all its evidence in-chief, but ‑ ‑ ‑

MR HANSON:   Your Honour, in the High Court, of course, in Lawrence, they agreed, it should not have been done.  But they applied the proviso. 

McHUGH J:   I know they did. 

MR HANSON:   But they said it should not have been done. 

McHUGH J:   That was after I was out of the case.  The second stage of it. 

MR HANSON:   In our submission, your Honours, it is consistent through all of the cases – including Chin, that is probably the last word on it – that the trial judge retains this discretion whether or not to permit this sort of cross‑examination.  May we demonstrate that point, your Honours? 

McHUGH J:   Yes. 

MR HANSON:   If we could take your Honours to Chin (1984-85) 157 CLR 671. There are two main judgments; Justices Gibbs and Wilson wrote a joint judgment. If we could ask your Honours to look at the second paragraph on 676. The judgment speaks of Shaw and Killick and Lawrence, and then speaks about the principle dealing with the calling of further evidence, that is, a positive act of calling evidence rather than cross‑examining and eliciting admissions.  That topic is dealt with at 678.  The first new paragraph on 678, the judgment comes on to talk about the position with cross-examination.  Part-way through that paragraph, after the reference to Kane and Lawrence, you will see a statement there, “In principle” ‑ this is what our learned friends rely upon: 

In principle, it is difficult to accept that the introduction of evidence by means of cross-examination of the accused or his witnesses stands in the same position for the purposes of the principles discussed in Shaw v The Queen, as does evidence adduced by calling other witnesses after the close of the prosecution’s case. 

And then goes on to discuss what can happen in the course of cross‑examination.  At the foot of the page, the judgment goes on, in the third last line: 

The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair. 

Then goes on to give examples of where unfairness might be found.  We would submit that those passages show that the Shaw principle is still there. 

McHUGH J:   In Chin, it seems to me, the difference is that the evidence was led in as rebuttal of evidence in the defence case, whereas here, the only use that could properly be made of the evidence was so as to affect the credibility of the accused.  Historically – some of the Evidence Act, of course, has changed that now. 

MR HANSON:   Well, in Chin, of course – as against Chin – it did indeed come in as rebuttal.  There, it came in in the cross-examination of his co‑accused, after Chin’s case had closed, so it did indeed come in in rebuttal.  In this case, it came in both by way of cross-examination and then the tape was tendered.  So both happened in this case. 

CALLINAN J:   Mr Hanson, there is a section, is there not, in the Queensland Evidence Act, which makes it evidence of the facts, as well ‑ ‑ ‑

MR HANSON:   Section 101, I think it is, your Honour.  Section 101.  Your Honours, the other majority judgment in Chin said it even more clearly.  Justice Dawson, with whom Justice Mason agreed – he goes through the same exercise.  If we could ask your Honours to look at 684.  Towards the bottom of 684, Mr Justice Dawson mentioned Shaw, Killick and Lawrence, and talks about the Crown calling evidence in rebuttal.  If you go over to 686, he then draws the distinction between that situation and doing the same thing in cross-examination.  In the first new paragraph on 686, he says: 

The principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the reopening of the prosecution case. 

And then he goes on to discuss the situation of cross-examination.  Throughout that discussion, which goes right through to the second paragraph on page 687, he speaks about discretion and unfairness.  We particularly ask your Honours to notice what his Honour says in the middle of 687, that paragraph there in the middle.  He points out how the principle is applied differently as between the two situations.  Could I read it to your Honours, if I have the time? 

All of these considerations, and no doubt others to which I have not adverted, will bear upon the exercise of a trial judge of his discretion to disallow cross-examination by the prosecution for the purpose of adducing evidence which could and should have been tendered during the presentation of the prosecution case.  Necessarily, the discretion is not as confined, or cannot be as rigorously applied against the prosecution, as in the case of an application by the prosecution to call evidence by way of reply –

So, in our submission, this Court has decided that the Shaw principle permeates both situations, but it is applied differently. 

McHUGH J:   I do not think it is, Mr Hanson.  This is talking about evidence being tendered as rebuttal evidence.  It has nothing to say about evidence whose primary function is to contradict a statement by the accused, or, for that matter, any other witness.  I mean, section 56 of the 1854 Evidence Act was designed to get around the rules in the Queen’s case and to adopt the view that the Court of Appeal has adopted in this case seems to me to deprive the statutory power to admit this type of evidence of any real significance.  What was a matter of right now becomes a matter of judicial discretion. 

MR HANSON:   That is what this Court said in Niven, your Honours, as we submitted in our outline. 

CALLINAN J:   But, Mr Hanson, the section does not distinguish between criminal and civil proceedings, does it? 

MR HANSON:   No, it does not. 

CALLINAN J:   And does any case purport to distinguish between them? 

MR HANSON:   I am not aware of one, and I would be surprised if there is one, your Honour.  Might we also mention that the Queensland Act contains section 130.  It only recites what is the common law, I suppose: 

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence. 

It probably only preserves the common law.  But I do not think I can take it beyond pointing out to your Honours, as we did in our outline, that the very same question came before this Court in 1968, on the Tasmanian legislation, which, in our submission, is indistinguishable from our section 18 and was said to be indistinguishable by our Court of Criminal Appeal, in the cases we gave you in our outline.  We have given your Honours the quote from the judgment in Niven’s Case in our outline.  That section: 

does not confer upon the party seeking to call the evidence any paramount right to have it admitted –

it is just made admissible, and it is ‑ 

in the same case as any other admissible evidence sought to be called by the Crown after the conclusion of the case for the accused . . . and subject to the same discretion –

I do not think I can assist your Honours any further. 

GLEESON CJ:   Thank you.  In this matter, there will be a grant of special leave to appeal. 

Call the next matter, please. 

AT 1.49 PM THE MATTER WAS CONCLUDED