Rodi v State of Western Australia

[2018] HCATrans 71

[2018] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P27 of 2017

B e t w e e n -

PAUL JOSEPH RODI

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

BELL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 20 APRIL 2018, AT 10.19 AM

Copyright in the High Court of Australia

MR M.D. HOWARD, SC:   May it please the Court, with my learned friend, MS R.R. JOSEPH, I appear for the applicant.  (instructed by the applicant)

MS C. BARBAGALLO, SC:   May it please the Court, I appear with my learned friend, MR L.M. FOX, for the respondent.  (instructed by Director of Public Prosecutions)

BELL J:   Yes, thank you, Mr Howard. 

MR HOWARD:   Your Honours, the applicant admitted that he was in possession of 925 grams of cannabis.  His evidence was that it had come from two plants that he had at the back of his house.  The critical issue at the trial was whether he intended to sell or supply the cannabis that he had and the related question was whether that cannabis came from the two plants.

Now, the majority identified that as being the critical issue and your Honours will find that in the appeal book, or the application book, at page 43 in paragraphs 26 and 27.  So, that was the critical issue; firstly, the question of his intent and, secondly, whether the 900‑odd grams could have come from the two plants at the back of his house.  It is important to see how the prosecutor closed in the case on that ‑ ‑ ‑

BELL J:   Well, Mr Howard, I think it is the case that it is accepted that if Detective Coen’s opinion as it stood in 1912 – I am sorry, in 2012 in the case of Challis, had his evidence conformed to his earlier opinion then it would have been open to conclude that the whole of the head material found in the house could have been the product of the two female cannabis plants that were growing naturally in the backyard and that the prosecutor invited the jury to consider that the appellant had lied in saying that those plants were the source of the cannabis by her reliance on Detective Coen’s opinion as at the date of trial that put the yield of cannabis to be expected from female naturally growing plants at a great deal less.

MR HOWARD:   Yes, may it please the Court.

BELL J:   So the matter that was lost is accepted to have been critical to what was the central issue in the trial and it is accepted or it appears that all the members of the Court of Appeal accepted that the fact that Detective Coen had previously expressed a different opinion was material that should have been disclosed.

MR HOWARD:   Yes.  Can I accept all of those observations and add to them in short because we say it goes to the question of whether there was a miscarriage of justice.  What happened was that there was no cross‑examination of the detective at the trial on the question of yield and the reasons for that are obvious.

But when the other earlier material, including that which your Honour Justice Bell has referred to, was before the Court of Appeal, the applicant in person cross‑examined Detective Coen and that led to evidence being given in the Court of Appeal by Detective Coen of a range from less than 100 grams per plant to up to 600 grams per plant.

So to reinforce the propositions that your Honour Justice Bell has just made, in addition to – perhaps I can take your Honours to where you will find that evidence ‑ in the application book at pages 56 and 57 your Honours will see, in the judgment below, it is in paragraph 83(h) at application book 56, starting at about line 40, and that evidence carries over up until, in the quotation of the transcript, on application book 57.

So that would have been, one might readily apprehend ‑ and no disrespect to the applicant cross‑examining the detective in person in the Court of Appeal ‑ but that, one can readily imagine, would have occurred at the trial and there would have been, secondly, a real question as to whether the State could have in any way held out Detective Coen as being an expert.

That is the point that his Honour Justice Mitchell makes in dissent below at application book 94 at paragraph 227 of the judgment, which is that there would be a real question, if that evidence had come out, as to whether Detective Coen could have given evidence of his opinion at all.

BELL J:   Is that also of some significance?  The majority’s analysis was, at its highest, that this would have established that Detective Coen had previously made an inconsistent statement or, more particularly, given an opinion inconsistent with his present opinion, but their Honours appear at application book 75, paragraph 148, to have acted in their review of the significance of this fresh evidence upon a view that Detective Coen would have adhered to his evidence in‑chief and explained that his earlier opinion was a mistaken one. 

MR HOWARD:   Yes, whereas Justice Mitchell – I am sorry, your Honour.

BELL J:   No, not at all.

MR HOWARD:   We accept that.  What we say is that one of the points Justice Mitchell makes in dissent is that, given the very significant change in the evidence which the detective had given between different trials, and given the explanation he advanced, which obviously Justice Mitchell was somewhat sceptical of, as to how he had, one, established his expertise in the first place, but, secondly, how he had changed his mind so dramatically, and then he gave a different range again in the Court of Appeal while being cross‑examined by the applicant. 

One readily, we would say, must ponder the question of whether the detective’s evidence could have been given at all as an opinion.  If it was not given at all as an opinion, then the whole dynamic of the trial would have been radically changed, in our submission. 

GAGELER J:   Mr Howard, given that we do not exist to correct every error at every level of the legal system, what is it that you say is the essential point of public importance in this case?

MR HOWARD:   I accept, obviously, as I must, what your Honour Justice Gageler says about that, but we contend strongly that there has been a miscarriage of justice.  It is a miscarriage of justice that arose from matters that were wholly within the knowledge of the detective called as an expert.  It was within the knowledge of the prosecutor that this particular detective did give evidence from time to time of an expert nature.  So there has been a marked, we would say, miscarriage of justice. 

BELL J:   Mr Howard, could I just take up with you your second ground, which goes to the question of the duty of disclosure?

MR HOWARD:   Yes, your Honour.

BELL J:   Is it your contention that it did not suffice for the Court of Appeal to act upon the assumption that there had been a breach of the prosecutor’s duty of disclosure without giving consideration to the question of whether that in itself constituted a miscarriage of justice and to the consequences of that finding which would have at least, if it were considered to be such, engaged consideration of the proviso had that been in play?

MR HOWARD:   Yes, your Honour, we do make that contention.

BELL J:   In the scheme that applies in Western Australia, is the police officer in charge of an investigation required, as it were, to sign off that he or she has supplied the prosecutor with all material that is of relevance in the brief?

MR HOWARD:   In terms of the scheme within the Act, the substituted second ground asserts a breach of section 95(6)(c).  There is unanimous authority, in the Court of Appeal – in our Court of Appeal – that that requires, in the Hughes decision, the prosecutor to make an independent assessment at that time rather than relying on what they have been given to that point in time.

So, we would say there is – to date, at least – an unchallenged position in this State that, irrespective of what comes to the particular prosecutor, or how it comes to the particular prosecutor, there is an independent obligation to satisfy the requirements of section 95(6)(c) which arises and which, we say, was breached in this case.  I am conscious I have not answered, factually, the question that your Honour Justice Bell asked, but I am sure my learned friend, Ms Barbagallo, will be able to tell your Honours not only what practically happens within the DPP ‑ ‑ ‑

BELL J:   It is one thing, one can understand, Mr Howard, to expect that a prosecutor will ensure that any witness statement, inconsistent with the material in the statement that is to be served is made available to the defence but, here, one wonders about how the prosecutor is to know that a police officer has given evidence in different terms on earlier occasions. 

MR HOWARD:   And, one can accept that as a proposition.  A couple of things; there are unusual facts that bring these issues for consideration because the prosecutor said – the prosecutor of the trial said, and her evidence was accepted, that she did not know yield, or evidence as to yield – she was going to lead evidence as to yield.

Detective Coen’s statement that was given to the defence prior to the trial did not say anything about yield.  But, when it becomes apparent to the prosecutor, she – knowing that Detective Coen does, from time to time, give evidence as an expert on yield – she, in effect, says, detective, I am going to lead this evidence from you, or, can I lead this evidence from you?  He does not tell her, it appears, that he has done this and it is an unusual set of circumstances. 

But it will go back in part to a construction of what the statutory provisions, statutory duty and the common law duty means about disclosing material that is relevant because we caused, perhaps unnecessarily, much excitement on the other side by relying on what the Chief Justice had said in relation to what “relevant” meant.  But, much less controversially, the Court of Appeal unanimously in the Hughes decision, which I mentioned previously, had said that when seeking to comply with section 95(6) of the Act – and this is at paragraph 48 – that the prosecutor had to have:

knowledge and understanding of the full range of issues, legal and factual, that will or could arise at trial.

Now, in this circumstance there are really only two elements to the offence.  One is the question of possession and the second is the question of

intention.  It would not be out of place to suggest it would not have been the first time in the history of criminal law that the accused says, “Well, this is for my own personal use.  There was no intent to sell or supply”.  So it is not fanciful; it is not beyond the reaches, we would say, of what should have been anticipated could arise at the trial.

Then to come back if I might, because I do not think I gave your Honour Justice Gageler a very good answer to the question of the Court’s role in correcting every error, this is an unusual set of circumstances.  We say there is a strong case that there has been a miscarriage of justice.  The reasons that the majority give, with respect, while it might be that they stated the correct test, we say it is certainly the case they did not apply the test correctly.  The reasons advanced, with the greatest of respect, do not seem to address the central issues and in addition the case will raise questions about the duty of disclosure which will have a broader significance than simply this case.

Now, we have cited statutes in four other States.  What is said against us is WA has its own regime.  That is a cry that is often made from this side of the country.  But when one looks at the Victorian and the New South Wales legislation one can see wording that is sufficiently analogous that if the Court were to grant special leave on both of the questions, then there would be, we would say, significant propositions that would be developed and argued before the Court which would have a broader significance.

BELL J:   I neglected, Mr Howard, to deal with the circumstance that you require an extension of time.  Is that opposed?

MR HOWARD:   I am told it is not.  I am grateful to my learned friend.

BELL J:   Yes, you have the extension.

MR HOWARD:   May it please the Court.  Unless I can assist the Court further at this stage, they are the submissions for the applicant.

BELL J:    Thank you, Mr Howard.  Yes, Ms Barbagallo.

MS BARBAGALLO:   Your Honours, could I deal with ground 2 first, if I might, the disclosure issue.

BELL J:   Yes.

MS BARBAGALLO:   In terms of that, the majority in the court below made an assumption that was in favour of the applicant – that is, that there was a breach.  So the point in terms of any breach, whether statutory or at common law, becomes moot.  So the majority made a determination in favour of the applicant and proceeded from there, but Justice Mitchell ‑ ‑ ‑

BELL J:   Ms Barbagallo, as I apprehend it, one issue that is taken, that is not covered by the approach that was taken below, is that where the prosecution breaches its duty of disclosure in respect of a matter that is a critical issue in the conduct of the trial, that of itself is a miscarriage of justice, which would require the appeal to be allowed unless the Court were satisfied, pursuant to the proviso, that no substantial miscarriage of justice had actually occurred.  Now, do we see any reasoning along those lines?

MS BARBAGALLO:   In respect of that, in D v State of Western Australia, Justice Buss said, at paragraph 4:

The prosecution’s duty of disclosure is an incident of an accused’s right to a fair trial.  If the prosecution breaches its duty, and the accused is convicted and appeals, it will be necessary to consider whether the breach has occasioned a miscarriage of justice.

So the breach may be one thing but then one needs to go on to determine whether there has in fact been a miscarriage of justice. 

BELL J:   Yes.

MS BARBAGALLO:   So applying that to the scenario that was present before the court below, they accepted there was a breach then they went on to determine whether there was a miscarriage of justice.  So the assumption that they made then makes the argument about whether one needs to look at the statutory construction and go on to determine the framework here makes it a moot point because they determined that there was a breach in favour of the applicant and then went on to determine whether there was a miscarriage.

So our submission is that, if there is a breach of a prosecutor’s obligation to disclose, that does not therefore make it a miscarriage of justice.  One has to go on to consider what are the consequences of that breach because there are breaches of disclosure and then there are breaches of disclosure ‑ there is a whole raft of different kinds of breaches and what the consequences might be.

BELL J:   Yes.

MS BARBAGALLO:   Further to that, your Honour, the court below, of course – this Court would not be assisted by any of the reasons provided by the court below because they did not go into the framework, the obligations, the consequences of breaches and the framework under the Criminal Procedure Act here is quite extensive.  So, your Honours would not be assisted by any of the reasons below in determination of the obligations of disclosure.

NETTLE J:   Ms Barbagallo, could I just ask, does the police informant have to sign off on full disclosure in the way that ‑ ‑ ‑

MS BARBAGALLO:   Yes, your Honour, I think it is a 45 or a 42 certificate, so there are – so the answer is “yes”.  In fact, there are, in terms of disclosure, the police have a responsibility and the prosecutor has a separate and distinct responsibility.  So, the responsibility falls on both parties at various times through the criminal justice process.

BELL J:   I take it, it is a continuing responsibility because here Detective Coen did not in his statement express an opinion about yield but it would seem apparent that in a conference on the day he gave his evidence the prosecutor raised with him his opinion on that issue and presumably it was at that point, if it is right that there was a duty on him to disclose that he had earlier held a different opinion, it was at that point.

MS BARBAGALLO:   At that point, at that conference that morning, yes.  So, to answer your question, your Honour, there is an ongoing duty to disclose and that continues right up until – it just continues.  So, if we become aware of anything that impacts on the prosecution before June or even after, the obligation – we are required to disclose that to the other side.

BELL J:   Ms Barbagallo, turning to the first ground, when one looks at the majority’s analysis, a number of the reasons that are given for the ultimate conclusion do not seem to bear relevantly on the Mickelberg test.  The circumstance that the onus was upon the applicant, if anything, as the applicant submits, rather tends in his favour on this issue, one would think.

MS BARBAGALLO:   Your Honour, can I – in terms of the majority’s decision, when one looks at those 16 or 17 reasons that were outlined by Justice Buss, what they do is they put into context the unusual set of circumstances.  So, in our submission, the observation that the burden of proof was then on the applicant, in fact, our submission is quite critical to this determination, at that point.

So, what occurs, if I might, is that at the time the applicant decides to give evidence, at that point in time, he has admitted possession, the presumption operates to such an extent that the prosecution has nothing left to prove.  So, at that point, the prosecution has proved possession with intent to sell or supply and the burden then shifts to him.  At the time he gives evidence, he knows the case against him, including the expert evidence in terms of yield at that point in time.

BELL J:   What he does not know, Ms Barbagallo, is that the officer who has given that evidence has previously given evidence which would not put in issue the reliability of his – that is, the applicant’s account and he does not know that. 

MS BARBAGALLO:   Certainly, your Honour.  That is the position that was at trial, your Honour.  Even so, when one looks at the trial record or the court’s decision below, counsel for the applicant at no point in time challenged or even tested the expertise of the witness.  One does not need to know about any prior opinion about yield at that point in time in order to test his expertise.  He does not seek to test the veracity of the range that was opposed by Detective Coen.  At no point in time was there any cross‑examination, certainly as revealed by the Court of Appeal decision, as to the testing of either expertise or the veracity of the range that was proffered.

NETTLE J:   But if he had known the other evidence that had been given, he surely would have cross‑examined on it.  The trouble was he did not know.

MS BARBAGALLO:   I accept that he did not know, but our submission is that, in order to test the expertise or the veracity of the range even given, there was no cross‑examination that went anywhere close to that.  Detective Coen, in his statement since that time, has been obviously open about his change in opinion.  Had this cross‑examination even gone close to testing the veracity of the range that was put up in terms of yield, one only can speculate as to where that might have gone, but there was nothing of that done.

BELL J:   Ms Barbagallo, one might be critical, with the benefit of hindsight, of defence counsel not objecting to this evidence of which counsel had had no notice being adduced, but, in the circumstances that occurred, evidence of which counsel did not have notice was adduced.  In those circumstances, I have difficulty understanding how the forensic decision taken on the run not to cross‑examine bears relevantly on a consideration of whether there is a significant possibility, in light of the evidence that is now known to be available, that the jury would have returned a different verdict.

In that regard, can I just take up one matter with you.  It is the significance that the majority placed on the circumstance that, at its highest, the fresh evidence – namely, the opinion given in 2012 in the Challis Case – was available only going to the credit and reliability of Detective Coen’s present opinion.  But then, as Mr Howard points out, the evidence in the Court of Appeal went somewhat further than that.  It is the material extracted at application book 57, paragraph 83, in which it seems, as I read it, Detective Coen agrees that he would not be surprised with a plant yielding a higher yield than was the subject of his evidence at the trial.

So the basis of the majority’s analysis, applying the Mickelberg test – i.e. it would not have made a significant difference because it only went to reliability – whatever one thinks of that argument seems to be somewhat undermined by the evidence that was given.

MS BARBAGALLO:   In respect of that, your Honour, can I say this:  even if that evidence was given at the trial, even if the jury knew that that was the range, when the applicant gave his evidence it was accepted that that cannabis in that house, the 900 grams of cannabis in that house, came from the two plants at the back of the house.  So they accepted him on yield.  What the jury were faced with was that the burden had shifted to the applicant.  They accepted him on the question of yield, so that they knew what the source of the cannabis was, but then how does that impact on what he was intending to do with it? 

So the jury are faced with 900‑odd grams of cannabis, which is nine times the presumptive amount.  They accept that the source of that comes from the two plants, but then they had to determine what his intention was.  So they can accept him as to the source, but reject him as to what his intention was and the question of intent ‑ ‑ ‑

BELL J:   But the prosecution at the trial invited the jury to reject, as a lie, his explanation of the source of the cannabis and ‑ ‑ ‑

MS BARBAGALLO:   I accept that, your Honour, but that was one plank of the submission made in terms of rejecting his evidence.  There was also, in terms of his evidence and the way they ran their case, was that he also gave evidence about the composition of the cannabis that was located at the house.  So he said that 65 per cent of that was head and 35 per cent was leaf and he was going to discard that.  But that was contrary to the evidence of those detectives that were at the scene who found the cannabis, bagged and tagged it, who said that there was little bit of stem but it was mostly head product. 

So on the overall context of his evidence, the jury could well have been left with the impression, putting aside any concern about the lie that was asserted he told in respect of the yield, could have been left with the impression that he was simply playing down, not only the composition of the material in order to reduce that which was useable but play down what his intended use was as well. 

Bearing in mind, of course, that the way they ran their trial the defence sought to discharge the burden, was that they said that it was for personal use, that it came from the two plants and it was personal use because he had chronic back pain. 

Bearing in mind that the burden rested on him, he sought to rely at the end of the prosecution case when they could have sought an adjournment of the trial, they relied on his evidence and good character evidence.  They did not seek to rely on a drug expert of their own, bearing in mind the burden was on them, and nor did they seek to adduce any evidence, of any medical evidence, going to chronic back pain.  So they made a forensic or tactical decision at the end of the prosecution case, which they must have known at the beginning that this is how they were going to attempt to discharge the burden, relying on his evidence and his evidence alone, together with good character evidence.

What is being asked of your Honours is to look at one plank of the defence case in order to discharge the burden.  I am not suggesting for one moment that the jury not knowing this evidence could not have impacted on the question of yield and in some way on his credibility, but there were many other aspects to it.  So the jury were faced with that at the end of the trial, and in terms of yield, that was what but one plank of – one part of the plank that they relied on. 

BELL J:   Thank you. 

MS BARBAGALLO:   So, when the court below was looking at this, they looked at it in the context of the unusual circumstances and in the context of the entirety of the way that this applicant, and his lawyer, chose to litigate this matter, knowing that the burden was on him.

In our submission – consistent with our written submissions – is that the majority and the minority, in this case, have come to – they have applied the correct principles, the relevant principles, and they have applied it to the fact – the unusual factual matrix that existed here – and they have come down with different determinations on the facts.  And, what this Court is being asked to do is to adjudicate on a different outcome based on the application of correct principles.

So, I notice in the reply – in the written response ‑ that there was at paragraph 4 of the written response that it was submitted that:

a strong argument to the effect that the majority must have grossly misapplied the accepted principles in reaching its conclusion ‑

Of course, this is not an implied error case.  If that is the proposition that is seriously put to this Court, then what are those errors?  They must be express errors and they certainly have not been, in our submission, articulated.

BELL J:   I think what is relied upon are a number of the reasons given by the majority for the conclusion that there was not a significant possibility that, had the fresh evidence been before the jury, there would have been a different result.  The merits of that we could debate, Mrs Barbagallo, but that is what I understand from paragraph 4.  In any event, I see the time.

MS BARBAGALLO:   Yes, thank you, your Honour.

BELL J:   Thank you.

MS BARBAGALLO:   They are our submissions.  Thank you, your Honour.

BELL J:   Yes.  Mr Howard, we do not need to hear further from you, thank you.  There will be a grant of special leave in this matter.  What is the likely estimate?

MR HOWARD:   I am just looking at my learned friend.  I think that there is a chance that we would go into an afternoon.

BELL J:   Yes, very well.  Yes, thank you.  One day?

MR HOWARD:   May it please the Court.

BELL J:   One day matter.  All right.

MR HOWARD:   Yes, your Honour.

BELL J:   The parties are invited to approach the Registry to obtain a copy of the directions and are encouraged to comply with the time limits set out in those directions carefully.  Yes, very well.  The Court will now adjourn.

AT 10.55 AM THE COURT WAS ADJOURNED