Reci v The Queen

[1999] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A26 of 1998

B e t w e e n -

GEZIM RECI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 11.53 AM

Copyright in the High Court of Australia

MRS M.E. SHAW QC:   May it please the Court, I appear with my learned friend, MR M. SELLEY, for the applicant.  (instructed by James P. Noblet)

MR P.J.L. ROFE QC:   May if please the Court, I appear with my learned friend, MS J.L. RYAN, for the respondent.   (instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ:   Yes, Mrs Shaw.

MRS SHAW:   If the Court pleases, the important question of law raised by this application is whether the Crown is obliged to withhold from a court and an accused material information relevant to the guilt or innocence of an accused which has come into the Crown’s possession during plea bargaining with another accused because, firstly, such information falls within the ambit of the doctrine of limited waiver of legal professional privilege and, secondly, the public interest in encouraging the resolution of criminal charges by plea bargaining and, which it is said, makes necessary the secrecy of such negotiations, overrides the public interest in having all relevant evidence available to the decision maker and the public interest in allowing an accused to put forward a tenable case in its best light.

That important question arises because of two principal findings made by his Honour the Chief Justice during the course of his judgment. The first finding is that the statement of the co‑accused, Ms Lleshi, provided to the Crown by her solicitor remains subject to legal professional privilege whilst it was in the hands of the Crown.  That finding ‑ ‑ ‑

GLEESON CJ:   What page is this?

MRS SHAW:   That is at page 37 of the application book, line 48, and his Honour concludes there that:

To the extent that there was a waiver of privilege, it was a limited waiver, not a general waiver.

And at page 39, line 30, his Honour concludes:

That considerations of policy (I mean, the wider interests in the proper workings of the criminal justice process) support the view that a limited waiver of privilege should be able to be made in a case like this.

Secondly, his Honour finds that, as a matter of public policy, plea bargaining between the Crown and an accused should be encouraged and that it is necessary to maintain the secrecy of those negotiations for the purposes of such encouragement, even if that means that an accused person is deprived of exculpatory information which the Crown would otherwise be required to disclose.  That finding by his Honour is at page 39, line 28 in the same passage I referred your Honours to earlier, and at page 40, line 10, his Honour ‑ ‑ ‑

CALLINAN J:   Mrs Shaw, has anything been said in this Court about plea bargaining?  It was my recollection that Chief Justice Barwick, some years ago, condemned the practice.

MRS SHAW:   Your Honour, that was argument during a special leave application in the case of The Queen v Bruce, where his Honour made the comment arguendo that the interests of the administration of justice should not be considered.  “The clearing of the lists” was the expression he used.  But nothing said by the High Court on this specific topic.  That comment by his Honour is referred to in a Victorian decision of The Queen v Marshall where plea bargaining had occurred in the context of his Honour seeing one of the parties in chambers.  That comment is reported during the course of that judgment and relied upon in the Victorian Full Court to condemn plea bargaining.

CALLINAN J:   Mrs Shaw, assume you are correct in a proposition, and I know you have put it higher than this, but that it is at least undesirable that material of this kind be in the possession of the prosecuting authority and suppressed, put it at least as high as that.  In this case, you sought to rely upon fresh evidence of which you say the suppressed statement was part, is that correct?

MRS SHAW:   That was one of the grounds of appeal.  The other ground, a more important ground, was the non‑disclosure ground, the obligation to disclose.

CALLINAN J:   Can I put aside the obligation to disclose for the moment, and just deal with the other ground.  I wondered whether this was truly fresh evidence in the sense that the maker of the statement could have been called‑ a choice was made by your client not to call her - and had she been called, that evidence, in all probability, would have emerged.  I wondered whether you could satisfy the fresh evidence test.  I know that does not meet your other argument, and that is a separate matter.

MRS SHAW:   No, it does not.

CALLINAN J:   But just deal with that for present - and, of course, the further obstacle for you is that even assuming that you could satisfy the fresh evidence test, the Court of Criminal Appeal did not think that it had sufficient cogency or persuasiveness to have been likely to cause a difference anyway, or to produce a significant possibility of a different result, to use the language that this Court has used.

MRS SHAW:   The question of whether or not the material was properly within the ambit of fresh evidence depended upon whether or not one took the view that material which was not available to an accused because it was claimed to be subject to a legal professional privilege and therefore he did not have access to it, made it fresh evidence in that context, but ‑ ‑ ‑

CALLINAN J:   But there would be many other occasions when witnesses might have some material information in relation to a matter which they may have disclosed to their solicitors, not to the prosecuting authority, but thereby attracting legal professional privilege.  But the accused person could never get hold of that, except perhaps by calling the witness and eliciting the facts as could have happened here.

MRS SHAW:   Your Honour, the scenario that occurred in this case is very much like the scenario in Stinchcombe’s Case, the Supreme Court of Canada situation, where in fact the witness had been called at the preliminary hearing by the Crown, then the Crown had taken two statements from the witness, just one before trial and during the trial, but did not call her.  The defence could not get production of those statements.  The Supreme Court of Canada took the view in that case that that was material which should have been made available to the defence, and the fact that the defence counsel had actually interviewed the witness but the witness would not speak to defence counsel, which was exactly the scenario here.  The Supreme Court held that they could assume that if the material was made available, as it properly should have been, then the evidence would have been called.  In other words, we say that this is more properly a non‑disclosure claim, and a true non‑disclosure claim and, more importantly, in this case the Crown presented its case against the applicant upon the basis that it did not have this information, that it was non‑existent. 

So it put its case to the jury as though there were only two persons who knew what happened, namely, the deceased and the applicant, and the deceased who was, of course, unable to tell us, because he was dead.  And all the while, the Crown had in its possession a statement from a witness who was able to confirm precisely the applicant’s account, namely, it was the deceased who had the knife and approached him, and that the applicant was not the aggressor and did not have the knife in the house.  So, we say ‑ ‑ ‑

CALLINAN J:   But does not Apostilides in this Court say that these are matters that the prosecutor has to make a judgment about, whether the evidence is of sufficient reliability, and that it should be called?

MRS SHAW:   Apostilides certainly refers to the obligation of the Crown to consider its position in calling a witness, and its obligations as to whether or not it decides to call a witness who is credible or otherwise.  In the end, the test is, “Was there a miscarriage of justice?”.  But in relation to the question of non‑disclosure, the developments in Canada as a result of a royal commission, and the developments in England, which adopt the same approach, and the approach of the inquiry that is being conducted in this country incorporated in the Mack Report by the Australian Institute of Justice Administration have all put forward the proposition that in order to achieve fairness in the courts, and fairness for an accused, it is necessary that all relevant information be disclosed irrespective of whether or not the Crown considers it is persuasive.  It is not for the Crown to make a judgment about credibility.

CALLINAN J:   Mrs Shaw, could I say this, that I, personally, feel very uncomfortable about what happened here.  I question the desirability of the course adopted by the prosecuting authority, speaking for myself.  I wonder about the question of privilege, whether the material was privileged.  Let us assume that those things should not have happened.  It seems to me that you have still the very serious hurdle of the opinion that the Court of Criminal Appeal formed about the evidence and formed about this witness.

MRS SHAW:   Your Honour, the only criticism of the witness by the Court of Appeal who accepted she was “open, frank, spontaneous”, related to two issues that emerged subsequent to the trial, namely, that she produced a knife and the reason that she did not say anything about the knife at the time of the trial.  But on the critical matters of her account at the window, what she saw of these events, there was no challenge to her credibility and it was an account given at a time when she was charged with murder and had every reason to save her own skin, and coincidentally ‑ ‑ ‑

CALLINAN J:   But one of the problems about that was that the victim had, what, 37 stab wounds?  The case was supposed to be a case of self‑defence, and I think the accused had four wounds, something of that order.  Is that not correct?

MRS SHAW:   No, it is not, your Honour, with respect.  In fact the evidence of Dr McCleave was that the applicant had 32 wounds; that there was an injury to the wrist, a laceration to the wrist which was in conjunction with a fracture of the wrist, and was consistent with a knife injury, consistent with the account given by Ms Lleshi in her statement at first instance as to what she saw through the window and the ‑ ‑ ‑

CALLINAN J:   What about the injuries to the victim?

MRS SHAW:   The injuries to the victim, as the medical evidence agreed, were perfectly consistent with a lengthy struggle where the victim was a stronger muscular man and with the applicant getting the knife from him as a result of his ability of some Army training.  According to Dr James’ evidence, the victim may not necessarily have known that those wounds were being received during the course of the struggle because of the nature of them.  And, of course, the issue of excessive self‑defence always remained, in any event, even if there was a question of the extent of the wounds suffered by the deceased. 

The real concern of the applicant in this case is that if negotiations with the Crown are subject to a limited waiver then the “without prejudice” principle that applies to civil proceedings will have no work to do.  The effect of this judgment is that not only is the Crown not obliged to disclose information its receives that might be exculpatory, it is not entitled to.  We say the importance of that, of course, is that the Crown is therefore potentially able to receive information, not even draw it to the court’s attention and claim public interest immunity, but seek to rely on the claim of privilege that is not made, in fact, by the person who provided the information.  

We say that the claim of limited waiver is completely misplaced because it can only apply in circumstances where the communication is to a third party non‑litigant.  One can never have a limited waiver of privilege in relation to your opposing party because that, of course, is inconsistent with a rationale of legal professional privilege.

So in this case, when the Crown case against this man was pitched upon the basis of who struck the first blow and the Crown were effectively saying, “You have only got Mr Reci”, the applicant, “and the deceased”.  The trial judge directed the jury that it was only Mr Reci’s account and he did not remember everything, then the failure to disclose the presence of another witness and the Crown presenting its case on a basis inconsistent with what it knew to be in its possession, we say, is inconsistent with the interests of the administration of justice.

CALLINAN J:   Mrs Shaw, the findings in respect of Ms Lleshi are at page 29, line 27, in particular, are they not?

MRS SHAW:   Yes.  Your Honour, those findings, we say, erroneously compare the overall strength of her evidence against the Crown case at its highest, rather than considering whether or not there was any implicit incredibility in her account, bearing in mind that the Crown, by accepting her plea to the lesser charge, accepted substantially the credibility of her account in the statement given before trial. 

The court’s approach to her credibility was to say - when one looks at her account in the overall context of the Crown case at its highest, was effectively not supportive of Mr Reci’s account.  We say that that has a premise which is illogical, namely that one determines who is the aggressor by looking at who has the most injuries at the end of the day.  That might be relevant in some circumstances but, as is obviously the case, the winner is not necessarily the person who starts the aggression.

When one actually examines the reasons of the Court of Criminal Appeal the only criticisms they make of her relate to matters which concern the dealings with the knife after the event, and the failure to come forward sooner.  We say, in this case, where the Crown had, in effect, a circumstantial case pitched against Mr Reci’s account, the important question of failure to disclose in this case has deprived this man of a fair trial. 

His Honour, the Chief Justice, acknowledged that the question of the disclosure obligation was an important point that had not been determined authoritatively in this Court.  Indeed, your Honour Chief Justice Gleeson, in the New South Wales case of CPK, we say, applied the developed test as has the Victorian Court of Appeal in Garafolo, that the question of credibility should not be looked at in relation to determining disclosure.  What the real question is, is how material is the evidence.

We say that the Canadian decisions which have been adopted thus far in the State courts make it plain that if the witness is a material eyewitness, then the obligation to disclose is clear and constitutes a procedural irregularity at the trial.  We say here that, irrespective of any criticisms of Ms Lleshi after the event, it is an important decision in so far as it permits the Crown to deliberately withhold evidence and to present a case inconsistent with that material and allow the Crown not to have to rely on a claim of public interest immunity in relation to information which it would otherwise have to do if it was seeking to contend that information in its possession was subject to a confidentiality undertaking. 

We say it is an important question as to the obligations of the Crown and the obligations of disclosure, bearing in mind that both in Canada and England, the change of direction has resulted from royal commissions and

inquiries into the convictions of persons who were subsequently exonerated.  If your Honours please, in this case, we say that the American experience, in fact, according to the United States Supreme Court, is that plea bargaining in secret does not encourage resolution of pleas and it has been held to be in the public interest that such plea bargaining occur in the public arena.

GLEESON CJ:   Thank you, Mrs Shaw.  Yes, Mr Rofe.

MR ROFE:   Thank you, your Honours.  The respondent says that the Court of Criminal Appeal was clearly correct both on the disclosure obligations and waiver on the particular facts of this case and that, in any event, this is not an appropriate vehicle for this Court to review either of those areas.

I say that in regard to disclosure because, in this case, the statement of Ms Lleshi was not brought into existence by the prosecution.  It was not the fruits of the investigation, to use the words of the Canadian cases of Stinchcombe and Baxter.  It came into the possession of the prosecution for a limited time, for limited purposes.  Those purposes being, consideration of the acceptance of a lesser plea, consideration of the Crown calling her as a witness, and consideration of a Crown attitude on sentence.             I would say that is not plea bargaining.  That is simply a co‑accused, or a defence, putting to the prosecution a basis on which they say, “You have overcharged my client”. 

If, for example, the solicitor for Ms Lleshi had written to the prosecution saying, “My instructions are”, and then set out a factual basis. “Please consider the case against her in that light and indicate whether you would be prepared to accept accessory after the fact, instead of a principal offence”, is really no different to the way in which this was conducted.  Of course, the conditions that was given to the prosecution were not taken up.  The prosecution, indeed, charged her with the lesser offence as, indeed, did they charge the other woman who stood originally charged with murder, Ms Zenuni, but indicated they would only consider calling her as a witness if she gave a statement to the police, and indicated, by the way, opposition to a suspended sentence.

GLEESON CJ:   Correct me if I am wrong, but did not the Court of Criminal Appeal ultimately deal with this matter on the basis that Ms Lleshi was called before them, and questioned before them, and they asked themselves whether, if her evidence had been given at trial, it would have affected the outcome of the case, and they decided that question in the negative?

CALLINAN J:   That is at page 30, I think, line 11.

MR ROFE:   That is the situation.  It was treated as a fresh evidence case and using the tests enunciated by this Court in Gallagher and Mickelberg, at 29 of the application book.  Apart from the passage already referred to about credibility, the Chief Justice continued there was an inherent implausibility in her account.

CALLINAN J:   It is at page 30, line 11:

All in all, I am quite satisfied that Ms Lleshi’s evidence is not evidence that would have given rise to a significant possibility of an acquittal.

MR ROFE:   That is right.  That was the miscarriage point.  What they then considered was whether there was a failure to disclose which may have, in itself, given rise a miscarriage of justice.  Could I make the point that whilst the prosecution had this statement in its possession for 15 days, or thereabouts, once the decision had been made to accept a plea to a lesser charge, but not to call her unless she gave a statement to the police, which offer was declined by her, the statement was returned to the ‑ ‑ ‑

GLEESON CJ:   Was what went here that there were a number of people who were potential accused, one of them being Ms Lleshi, and her legal advisers were trying to persuade the prosecuting authorities not to charge her with murder?  In the course ‑ ‑ ‑

MR ROFE:   She was charged with murder, originally, with the applicant and another woman named Zenuni.

GLEESON CJ:   Yes.  But her lawyers were trying to talk the prosecuting authorities out of proceeding against her for murder.

MR ROFE:   That is so.

GLEESON CJ:   And in the context of doing that, they provided the prosecuting authorities with a statement of her version of events which represented their instructions, which they required to be given back to them after the prosecuting authorities made their decision.  Is that right?

MR ROFE:    That is so, your Honour, yes.  That was in the month before trial.  Having made that decision a fresh information was laid by the prosecution charging only the applicant with murder and the two women with, essentially, accessory after the fact.  Ms Lleshi pleaded to the accessory after the fact - the other woman did not - and the trial continued against the applicant for murder and the other woman for accessory after the fact.

CALLINAN J:   Mr Rofe, I do not know the answer to this.  Is it the practice, generally, to sentence somebody who pleads in that fashion before proceeding with the trial of the other person?

MR ROFE:   It can be, your Honour, if it is intended to call that person as a witness for the prosecution.  At that stage ‑ ‑ ‑

CALLINAN J:   Is it not better to do that?  Is it not better that the person be sentenced ‑ ‑ ‑

MR ROFE:   At that stage the decision had been made not to call her because she refused to give a statement to the police.  The prosecutor was not prepared to call her on the basis of the statement that she had provided to her solicitors as he regarded that as not a credible account, even though it did result in offering the lesser charge to her.  At the time of the trial, she pleaded on the morning of trial, and at that time became a compellable witness for the applicant.

CALLINAN J:   Yes, but she has the possibility of something to gain or something to lose until such time as she is sentenced.  I do not understand why it was not appropriate to sentence her there and then.

MR ROFE:   If it was intended to call her, then the prosecution would have taken steps to ensure that she was sentenced.

CALLINAN J:   But the prosecution might have changed its mind during the course of the Crown case, and it cannot be a decision that  ‑ ‑ ‑

MR ROFE:   If that had happened ‑ ‑ ‑

CALLINAN J:   It might have been a rebuttal witness.

MR ROFE:    I suspect, your Honour, if that had happened, then the sentencing process would have been accelerated.  But at that time it was never intended to call her.

CALLINAN J:   But it just leaves matters very much in the air and makes such a person, I would have thought, a very risky witness for either side, because she still had something to fear or to gain.

MR ROFE:    That may be so, your Honour, but if ‑ ‑ ‑

CALLINAN J:   It does not seem to me to be an appropriate procedure.

MR ROFE:   She was a person well known to the applicant and, indeed, there was no dispute that she was in the company of the applicant on that particular night.  But the Crown had formed a view as to her credibility which precluded them from calling her as a witness.  Whether the defence wanted to call her or not, was the real question.  They claim they were prevented because she was still being instructed by her solicitor not to give information to the defence, although, as appears at page 13 of the application book, during the course of the trial, she met on two occasions, at least, with defence counsel for the applicant and did give him some information. 

He was not prepared, however, in the absence of a statement, to call her.  That was addressed by the Chief Justice in his judgment.  And, of course, that happens in a number of other instances, people who may know something but decline to give statements, and the process cannot be held up by that.  But, certainly, at the time, that she became a compellable witness, the prosecution had nothing in its possession to disclose.  The statement had been returned, according to the conditions imposed by the solicitor for Ms Lleshi, and there could be no obligation on the prosecution in that respect.

CALLINAN J:   I do not find that very convincing.  The prosecution knew precisely the contents of the statement.  To suggest that by sending it back their minds became a vacuum on the matter is just ridiculous, frankly.

MR ROFE:   I accept your Honour’s criticism.  But in that respect, you are then asking the prosecutor to, what, go from memory, to relay to defence the contents of what had been given to them on certain conditions?

Could I contrast it, for example.  If the solicitor for Ms Lleshi had come to the prosecutor’s office and said, “Look, I want you to read this statement while I am here and consider it as to what charge you are going to lay against my client, but I want it back as soon as you finish reading it”, on one aspect of Mrs Shaw’s argument, the prosecutor, what, should dash out to the fax machine, fax the statement off to the co‑accused in the course of that and then come back and give it back?  That cannot be so, with respect, your Honour.  The witness is available, and was available, to the accused, as is demonstrated from page 13 of the application book, throughout the course of the trial.  A decision had to be made.  It was.  In my submission, the applicant cannot be heard to complain about it.

It is a very narrow fact situation we are dealing with here, and it does not, in my submission, give rise to the wider obligations of disclosure.  If,

for example, Ms Lleshi had said, “Yes, I am prepared to give a statement to the police”, no doubt, even if the Crown decided even after that not to call her, that statement would have been disclosed to the defence.  There is no question of that.  But this is a very particular factual situation we are dealing with and, in my submission, one does not give rise to the general obligations of disclosure that my friend has contended for, nor to provide a vehicle for those to be reviewed.

Indeed, one could imagine other circumstances in which the statement might come into the possession of the prosecution.  If, for example, at the committal hearing, the prosecutor swept up his papers and inadvertently picked up the co‑accused’s instructions, read them, not knowing what they were, is there then an obligation on him to, in certain circumstances, reveal that to the co‑accused?  In my submission, clearly it cannot be.  Of course with respect to the privilege that attaches, the respondent simply adopts the reasoning of Chief Justice Doyle at pages 37 to 40 of the application book.

The submission that the prosecution cannot conduct a case contrary to apparently credible exculpatory information in its possession or knowledge, in my submission, is plainly untenable and I instance simply the case where, for example, alibi witnesses give apparently credible statements of alibi.  That cannot surely prevent the prosecution from conducting its case contrary to those, and that it is a matter then for the court and the jury to determine whether that evidence creates a reasonable doubt.

Certainly, when one looks at Mills and Poole, the English case that my friend has referred to, one should also read with it the case of Brown which is not on the list, not in the application book, but was a case heard by the same Bench of the House of Lords relating to the prosecution retaining statements they had taken from alibi witnesses which they refused to disclose, and the House of Lords approved that refusal and said, “Prosecutors are here to prosecute, not to defend”. This is an adversarial situation.  If the defence wish to call witnesses, effectively, they must take their chances on the fact that they may have given inconsistent statements to the prosecution.  It is for those reasons, your Honours, that I submit that this is not an appropriate case for special leave.

GLEESON CJ:   Yes, thank you, Mr Rofe.  Yes, Mrs Shaw.

MRS SHAW:   First of all, in relation to the application of the test of no significant possibility of a different result, we say that that is not the test that applies where the complaint is non‑disclosure.  But, rather, the Mraz test applies, namely, that there has been a procedural irregularity by reason of the conduct of the prosecution in not disclosing, and that test in the context

of non‑disclosure has been accepted both in Stinchcombe’s Case and in CPK following the English case of McGuire.

We also say that the failure to tell the defence that Ms Lleshi had provided evidence to the Crown could not be justified after the plea had been entered and before sentencing.  The effect of the Crown agreeing to accept the plea meant that Ms Lleshi was no longer joined with Reci, the applicant on the same information, and thereby the Crown was able to separate her out of the trial so that her account, presumably to be given in her own defence to murder, would not be given in the trial of Reci.

GLEESON CJ:   What was the relationship, if any, between Ms Lleshi and Reci?

MRS SHAW:   They were friends, in the Albanian community.  The contention was that the reason for the arguments that occurred that night, was that a rumour was being spread that they were more than friends, and it was in that context.  But Ms Lleshi, at a time when she was attempting to avoid a murder charge, was following the instructions of her solicitor and refusing to talk to the defence counsel, so that the Crown were therefore able to allow Ms Lleshi the hope of a good sentence by not having her sentencing occur before the trial. 

So that at the sentencing stage, indeed, Ms Lleshi’s counsel relied upon her offer to assist the Crown and put to the sentencing judge that she had been willing to give evidence for Mr Reci, and she got credit for that.  In this case, if the Crown had simply said to the defence, “We have spoken to Ms Lleshi.  She says she saw the event.  She says Mr Reci did not have the knife.”, then the defence could have at least applied for an adjournment of the trial until she was sentenced so that she would not feel disinhibited, or be compromised, in wanting to give evidence or being able to give evidence.  We say here that the plea bargaining process has been used as a device to extricate her from the trial and, at the same time, not tell Mr Reci of the information.  If the Court pleases.

GLEESON CJ:   Thank you.  In this matter the Court is not persuaded that there are sufficient prospects that if special leave to appeal were granted the outcome of the appeal would be favourable to the applicant to warrant the granting of special leave.  The Court does not regard the case as a suitable vehicle for the consideration of the issues relating to privilege which the applicant wished to raise.  The application for special leave is dismissed.

AT 12.31 PM THE MATTER WAS CONCLUDED