Saricayir v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0260

AKIN SARICAYIR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE, T FORREST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2018
DATE OF JUDGMENT:	30 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 319
JUDGMENT APPEALED FROM:	DPP v Saricayir (Unreported, County Court of Victoria, Judge Ryan, 29 June 2017)

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Appeal against conviction – Trafficking in a drug of dependence in a quantity not less than commercial quantity – Theft – Total effective sentence 5 years and 9 months’ imprisonment – Non-parole period 4 years’ imprisonment – Whether substantial miscarriage of justice a result of inadmissible and prejudicial material placed before jury – Material not excised from record of interview placed before jury – Whether substantial miscarriage of justice occurred as result of counsels’ incompetence at trial – Consideration of Criminal Procedure Act 2009 s 276 – Consideration of ‘proviso’ cases – Consideration of rarity of cases where ‘serious departure from the prescribed processes for trial’ where ‘no trial at all’ – Consideration of rarity of cases where counsel’s incompetence causes substantial miscarriage of justice – Obligations of prosecution regarding inadmissible evidence – No substantial miscarriage of justice – Conviction was inevitable – No fundamental irregularity in conduct of trial – No fundamental failure of process – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with	Theo Magazis & Associates
Mr Michael Allen
For the Respondent	Mr Patrick Doyle	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA
ASHLEY JA:

Akin Saricayir (‘the applicant’) stood trial on charges of trafficking in a drug of dependence in not less than a commercial quantity (Charge 1), cultivation of a narcotic plant in a quantity not less than a commercial quantity (Charge 2) and theft (Charge 3).[1] He was found guilty on Charges 1 and 3 and, following a plea, he was sentenced on 29 June 2017 to five years and six months’ imprisonment on Charge 1, and to six months’ imprisonment on Charge 3. The Judge directed that three months of the sentence imposed on Charge 3 be served cumulatively on the sentence on Charge 1. The total effective sentence was thus five years and nine months’ imprisonment. The Judge fixed a non-parole period of four years’ imprisonment.
[1]The trafficking charge was advanced as one of possession for sale. Charge 2 was treated as an alternative.

Proposed grounds

Now the applicant seeks leave to appeal against his conviction; and, if his application is granted, that his appeal be allowed and that an order be made for a retrial. By his amended application for leave to appeal, he relies upon these proposed Grounds:[2]

(1)A substantial miscarriage of justice was occasioned by a failure properly to edit the Applicant’s record of interview, with the result that inadmissible and prejudicial material was placed before the jury.
(2)A substantial miscarriage of justice occurred as a result of counsels’ incompetence at trial.

[2]Conveniently, hereafter, ‘Ground’ or ‘Grounds’.

The areas of contest

Grounds 1 and 2 are interrelated. Initially, the applicant relied upon Ground 1 only. The written outline of argument filed at the time adverted, however, not simply to inadmissible and prejudicial material having been put into evidence, but to deficiencies on the part of applicant’s trial counsel — and as well the prosecutor, and perhaps the trial Judge. When Ground 2 was added, the revised outline of argument footnoted:

This ‘further’ and final written case does no more than expressly plead a ground alleging counsel’s incompetence at trial. It has resulted in no change to the submissions set out in the written case.

The gist of Ground 1 is that a record of interview between police officers and the applicant, tendered in evidence, contained material which was inadmissible and prejudicial to the applicant, this being productive of a substantial miscarriage of justice. As will be seen, the respondent did not dispute that some inadmissible and prejudicial material was placed before the jury. Counsel for the respondent submitted, nonetheless, that conviction was ‘inevitable’, for which reason the applicant could not satisfy the Court that there had been a substantial miscarriage of justice. Senior Counsel for the applicant understandably and correctly conceded that the evidence against his client was very strong. But he orally submitted, relying upon matters raised by applicant’s trial counsel,[3] that conviction was not inevitable. There was said to be room for doubt as to the applicant’s guilt. It is noteworthy, however, that the applicant’s written case, before and after the insertion of Ground 2, focussed upon there having been, in the events which occurred, an unfair trial — as to which see the next paragraph in these Reasons.
[3]Who did not appear in this Court.

The gist of Ground 2, as advanced for the applicant, was that the inadmissible and prejudicial material in the record of interview got into evidence because of the incompetence of trial counsel. This was a circumstance leading or contributing to the conclusion that there had been ‘a serious departure from the prescribed processes for trial’.[4] In those circumstances, there was a substantial miscarriage of justice, regardless of the strength of the prosecution case. For that reason, leave to appeal must be granted and the appeal allowed.
[4]Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (‘Baini’) citing AK v Western Australia (2008) 232 CLR 438, 456 [55]–[56] (Gummow and Hayne JJ) and Handlen v TheQueen (2011) 245 CLR 282.

Disposition foreshadowed

For the reasons which follow, we are of opinion that, whilst inadmissible material, prejudicial to the applicant, was admitted into evidence, it did not occasion a substantial miscarriage of justice. That is because — (1) excluding the inadmissible material, the applicant’s conviction was inevitable; and (2), there was not a serious departure from the prescribed processes for trial — what has been described also as a fundamental irregularity in the conduct of the trial and a fundamental irregularity going to the root of the trial.[5] True it is that trial counsel for the applicant ought to have ensured that the inadmissible and prejudicial material was excised from the record of interview before it was placed before the jury. But we reject the applicant’s submission that this error vitiated the trial process.
[5]For convenience, we will sometimes refer to this concept, in these Reasons, simply as ‘failure of process’.

In considering whether there was a vitiating failure of process, we have also taken into account what we regard as failure at both ends of the Bar table to ensure that only relevant and admissible material from the record of interview was put into evidence. That is, fault lay with the prosecutor as well as with applicant’s counsel. But, aggregating those deficiencies, we remain unpersuaded that there was a failure of process.

In the event, we will order that the applicant have leave to appeal, but that the appeal be dismissed.

The circumstantial case

The prosecution case was that the applicant was party to a joint criminal enterprise to cultivate and traffick in cannabis L.[6] It was alleged that he, with others, possessed for sale a cannabis crop at premises at 389 Canterbury Road, Heathmont (‘the Heathmont premises’, or, simply, ‘the premises’).[7]
[6]DPP v Saricayir (Unreported, County Court of Victoria, Judge Ryan, 29 June 2017) [2]–[3] (‘Sentencing Remarks’).
[7]Ibid [3].

It was not in debate that when police executed a search warrant at the Heathmont premises on 11 July 2015 there was found at that premises 111 cannabis plants weighing some 47 kilograms, the dried useable parts of the plants being in the order of 31 kilograms.[8] A commercial quantity of cannabis L is not less than 25 kilograms.[9]
[8]Ibid.
[9]Drugs, Poisons and Controlled Substances Act 1981 s 70(1), sch 11.

The plants were being grown hydroponically in a number of rooms in the premises,[10] including the kitchen. The set-up was of a kind encountered often enough. It included, as the trial Judge said when sentencing the applicant, ‘the ubiquitous electricity bypass’.[11] We pause to say that the bypass was the mechanism by which the theft of electricity alleged by Charge 3 was effected.
[10]Sentencing Remarks [4].
[11]Ibid.

The cannabis crop found at the premises included plants at various stages of maturity. This allowed, as the Judge said, ‘for the inference that the cultivation was a continuing enterprise’.[12]
[12]Ibid.

Parties to the joint criminal enterprise were said by the prosecution to be Yitican[13] Gunal (‘Gunal’), Fatma Traljesic (‘Traljesic’), her husband Enis Ebricic,[14] and the applicant. As the trial progressed, the applicant’s complicity with Gunal dominated the evidence and the prosecution case against him.[15]
[13]In the Indictment list of witnesses, Gunal’s first name is spelt ‘Yigitcan’, and in the Summary of Prosecution Opening it is spelt ‘Yagitcan’.
[14]In the Summary of Prosecution Opening, and in the respondent’s Amended Response to Applicant’s Written Case, Ebricic is spelt ‘Ibricic’, and in the Summary of Prosecution Opening his first name is spelt ‘Ennis’.
[15]See, eg, Sentencing Remarks [2].

According to the indictment, the period of trafficking alleged by Charge 1 was 17 March 2015 to 11 July 2015.[16] The earlier date was the date upon which, on the prosecution case, the applicant entered into a contract with an electricity company for the supply of electricity to the premises. The latter date was the date upon which police executed a search warrant at the premises.
[16]This was the same period of cultivation alleged by Charge 2.

Gunal was at the premises when the search warrant was executed. He was arrested, interviewed and remanded in custody.

The applicant was interviewed at the Kyabram Police Station on 18 November 2015 and again on 19 November 2015. A lengthy record of interview was compiled. In all, it consisted of 974 questions and answers. The applicant was arrested on 18 November and thereafter charged.

There was no eyewitness evidence that the applicant ever attended the Heathmont premises.

The elements of the circumstantial case, not in any particular order of importance, were as follows:

(1)There was a lease of the Heathmont premises, with a commencement date of 1 April 2015, in which Traljesic was described as the lessor and the applicant as lessee.
(2)The name of the customer to whom electricity was supplied at the Heathmont premises as from 17 March 2015 was a person whose name was almost identical in spelling to that of the applicant. Moreover, the company’s records noted the customer’s date of birth. It was the applicant’s date of birth. The records also noted a contact telephone number. It was the applicant’s mobile telephone number.
(3)Telephone calls were made to the electricity supplier for the purposes of also connecting gas to the Heathmont premises, by a man who used the applicant’s name and telephone number to identify himself.
(4)Several documents in the applicant’s name were found by police in a refuse bin at the Heathmont address on the day that the search warrant was executed. There was a traffic infringement notice which indicated that there had been personal service upon the applicant. The notice referred to an offence allegedly committed on 26 April 2015 at Yering. Call records showed that the applicant’s vehicle was in the vicinity of the Heathmont premises on 26 April 2015, and that he communicated with Gunal on that day. There was also an environmental protection reminder notice, which had apparently been sent to the applicant’s previous Oak Park address, but had been re-directed to his then-current Kyabram address.
(5)Although the applicant lived in Kyabram in the period of the alleged offending, there were call records (many of them late in the charge period) and Eastlink records which demonstrated the applicant’s frequent presence in the vicinity of the Heathmont premises in that period. The latter showed that he both left and entered Eastlink in the vicinity of those premises.
(6)DNA extracted from items found within the premises bespoke the applicant’s attendance inside the premises. The applicant’s DNA was extracted from all these items: (1) a coffee cup lid found in grow room 3; (2) a second coffee cup lid found in the kitchen; (3) cigarette butts in an ashtray on the kitchen table. It will be remembered that cannabis plants were being grown, inter alia, in the kitchen; (4) a drinking straw in a coffee cup in the lounge room of the premises, where Gunal was apparently living; and (5) a cigarette packet, found in grow room 2. It connected with a particular cigarette butt found in the ashtray in the kitchen. We have used the language of certainty only because it was not contended at trial that the DNA evidence was equivocal as to the applicant’s contribution.
(7)There were text messages between the applicant and Gunal, prior to the latter’s arrest, which, in part, related to the growing of cannabis. They included the following:

· 11 March:
GUNAL:???pm I told (them) I found a house
???pmthe houses would be vacated brother
???pmwe could have a look if were available

APPLICANT: 5.53pm Tomorrow let’s have a look and see which one we shall get
GUNAL:???pm the one in yea is in the pocket I believe
???pmwe can get the one in euroa too, most probably
???pmlooks like no more problems

APPLICANT: 5.58 pm Yeah!

·    16 March:
GUNAL:1.17pm               I’m hanging around in the greenery
APPLICANT: 1.21pm       I’ll be there within 10 minutes

· 29 March:
APPLICANT: 6.28pm Can, put them in the bucket as you cut them so that we find out how much on average

GUNAL: 6.33pm that’s what I’m doing brother
GUNAL: 6.34pm the cutting machine fell down a moment ago, brother

·    30 March:
APPLICANT: 10.34am     I’m still at the bank
APPLICANT: 10.34am     How many bucketfull so far?
GUNAL:10.35am             6 but half
GUNAL:10.35am             but these are the very bad ones
APPLICANT: 10.36am     6 buckets?
GUNAL:10.35am             half bucket
APPLICANT: 10.36am     6 trees haf bucket
GUNAL:10.??am              exactly

·    5 April:
GUNAL:4.33pm               I cleared the lounge completely, I gathered all of the power cables, ballasts, lamps (bulbs?), there is only a small room left, I’ll do it tomorrow, I’m really tired
APPLICANT: 4.39            OK, thanks, bless your hands

·    7 April:
GUNAL:7.01pm               What are we doing tomorrow brother?
APPLICANT: 7.01pm      I’ll bring the babies and do repairs
APPLICANT: 7.02pm      We need to rush and finish it

·    22 April:
GUNAL:3.21pm               Can you bring up black hose tomorrow
APPLICANT: 3.29pm      OK
GUNAL:3.32pm               I Increased watering hours, eight times per day, expansion in cam zero
APPLICANT: 3.38pm      3 is good enough
GUNAL:3.40pm               It used to be 4, you said it’s dry..
3.41pm               let me take it down to six then

APPLICANT: 3.55pm I said the ones on the ground are dry
GUNAL:3.56pm In that case- alright brother

· 23 April:
GUNAL:4.53pm I am not tall enough for the ceiling brother, I could do only one and I had to use the door for support to do it. I have to mount a butterfly (circuit?) on one of them but I can not.
4.53pmI need a long ladder brother

APPLICANT: 4.54pm I’ll sort it out later
GUNAL:4.55pm I have already drilled the holes brother

·    4 July:
APPLICANT: 7.25pm      Can, the woman’s goods are at isik, don’t forget
GUNAL:7.25pm               No brother, I remember, I’ll look
7.25pminto it

APPLICANT: 7.26pm If they dried package them, you’ll tell (me?) how many
GUNAL:7.25pm Ok brother, I’ll text you
8.50 pmNo drying, took them to dark but could not hang them, not enough room

Most of those texts require no further explanation. But (1) the word ‘Can’ was a contraction of Gunal’s first name; (2) reference to ‘babies’ in the texts of 7 April was shown by a call made between the applicant and Gunal whilst the latter was on remand to refer to cannabis plants; and (3), the text conversation on 23 April was demonstrated by other evidence, including photographs, to relate to activity to suspend various items used in the cultivation process from the ceiling.
(8)The applicant was found to be in possession of documents, at the time of his arrest on 18 November 2015, which linked him to Gunal and Traljesic.
(9)Telephone calls between the applicant and Gunal, whilst the latter was on remand, demonstrated the applicant’s knowledge of the criminal combination, contained admissions as to his involvement therein, and laid the foundation for an argument that he had told lies going to his credit in the record of interview.
(10)The applicant engaged in post-offence incriminating conduct. Specifically, he lied in the record of interview when he said that he did not know the Heathmont area; that he had never heard of the particular address in Heathmont; and that he had never been to the Heathmont premises. He also told other lies, which were relied upon by the prosecution as going to his credit.

The applicant’s answer to the circumstantial case

In this Court, senior counsel for the applicant was asked by Kaye JA whether he relied upon the matters advanced by applicant’s trial counsel in his closing address to show that there was room for doubt as to the applicant’s guilt. He said that this was the case. He advanced no other circumstance in support the asserted room for doubt. In these circumstances, we now focus upon the content of the closing address.

In very large measure, the circumstances relied upon by the prosecution were not in dispute.

The defence case at trial, always bearing in mind that the applicant had no burden of persuasion, was broadly that the applicant knew Gunal and had assisted him in various ways which had nothing to do with the commission of the charged offences. He had met Gunal in the vicinity of the Heathmont premises from time to time, but simply as a friend. He had not been inside the premises. He had been the ‘fall guy’ for others.

There was an obvious tension between that general picture and things both said and denied by the applicant in the record of interview. In the course of an attractive closing address by applicant’s counsel, a number of what were now said to be inaccuracies in the interview were, in effect, attributed to the applicant’s understandable reluctance, knowing that Gunal had been arrested, to concede that he had much to do with the other man.

A second broad aspect of the closing address was to highlight what were said to be evidentiary deficiencies in the prosecution case, and to contend that particular items of evidence were ambiguous, or led nowhere. Counsel repeatedly submitted that the prosecution case could not be established in reliance upon this or that particular piece of evidence alone — notwithstanding that the prosecutor had repeatedly and correctly stated that the prosecution did not rely upon any particular piece of evidence to prove the case, but upon the cumulative effect of all the evidence.

With respect to the two aspects just identified, we should refer to a number of the principal submissions which were advanced. As will be seen, they could not all co-exist.

It was contended that:

(1) There was a question as to the provenance of the lease. The evidence was deficient in establishing that the applicant had signed it.

(2) As to the evidence of call charge records which, on their face, identified calls frequently connected between the applicant’s mobile phone and Gunal’s phone via the Heathmont and Heathmont East mobile phone towers, such records did not necessarily indicate his client’s presence in that vicinity.

(3) Whilst the applicant did not deny that he had been in the Heathmont area at various times during the charge period, and that it was likely that he had then been in Gunal’s company, what of it?

(4) What could not be said was how often the applicant actually attended the premises; nor whether he went into the property when the cannabis was actually in situ.

(5) The applicant did not deny that the electricity and gas accounts had been established in his name, or in a name similar to his. But there was no evidence as to who set up those accounts.

(6) In establishing the gas and electricity accounts for the Heathmont property, the applicant had simply contacted the provider in the course of assisting Gunal; just as he assisted Gunal to secure accommodation in Euroa.

(7) Gunal having no family in Australia, the applicant had simply acted as a conduit between Gunal and his family overseas when receiving money to assist the latter in his defence of charges brought against him.

(8) True it was that documents belonging to Gunal and Traljesic had been found in a box in the applicant’s vehicle at Kyabram. But what was there to say that he knew of the contents of the box?

(9) The DNA evidence did not necessarily assist the jury to reach a conclusion that his client ever entered the Heathmont premises, let alone that the cannabis crop was there. The crime scene examiner had not seized the coffee cups — that is, as distinct from the lids — nor a container that a drink had been in. The cigarette butts had been found in an ashtray, which could be moved, for example, from the garden into the interior of the house. Further, the DNA could not be dated.

(10) The documents found in the garbage bin ‘could have been thrown out by Gunal’.

(11) There was no evidence as to what the text and iCloud messages between the applicant and Gunal might actually mean. The prosecution was inviting speculation.

(12) With respect to the record of interview, more often than not the applicant had not been evasive or difficult, but rather he was trying to understand what was being put to him. As to his alleged lies, well before being interviewed the applicant knew what was alleged against Gunal and knew that his relationship with Gunal was dangerous. Thus could be explained what he had initially said about the infrequency of his contact with Gunal.

The impugned material

By his revised written case, the applicant submitted that questions 145, 316-323, 326, 482-526 and 836-838 and the answers thereto of the record of interview had wrongly not been excised from the record of interview, and had been placed before the jury as part of the evidence in the trial. In oral argument, counsel expanded that list of allegedly irrelevant and prejudicial questions. He relied upon questions 139 and 140, which led into question 145, a question the subject of initial complaint. He referred also to questions 148 and 149, and to questions 319-330 in block — question 326 having been an initial subject matter of complaint. Finally, he relied upon questions 835-847.

In what follows, we will refer to the impugned questions. In each instance we are to be taken as also referring to the answer to the question.

Questions 139 and 140 concerned electrical supply to the Heathmont premises and mentioned, in a question, that an electrical bypass had been located at that property. That led on to these questions:

Q 143:And somebody at this premises has put an illegal wire past that power meter back into the house so the house isn’t paying for the power.
A:No.
Q 144:Do you know anything about that?
A:No. How can I put the power before to go to meter?
Q 145:Well, Gunal has stated that you were involved in doing that.
A:No.

Question 145, of course, involved an allegation by a co-offender that the applicant had been involved in installing the electricity bypass at the Heathmont premises.

Questions 148 and 149 related to the undoubted fact that the applicant was the electricity accountholder for the Heathmont premises. Reference was made to documentation, but the applicant was not shown that documentation.

Questions 316-323 related to the applicant’s statement that he had given his name as a reference to Gunal in connection with a lease which the latter wished to take out on a property. The burden of the applicant’s answers was that he had not assisted Gunal by providing a reference about the Heathmont premises. Rather, he was telling the investigator about a premises at Euroa. Later in the interview, the investigator returned to the question of a premises at Euroa.

Questions 325-329 related to a vehicle in which documents were located that connected the applicant, Gunal and Traljesic. The applicant denied that he had ever seen the particular vehicle. There was then this question and answer:

Q 326:Yigitcan says that that vehicle was given to him by you to drive around in.
A:I don’t – I don’t have vehicle. Like this is not my name, nothing.

‘Yigitcan’ was Gunal.

We should set out questions 482-526, which were directed to the applicant’s association with the premises leased by Gunal in Euroa:

Q 482:Now, when we were talking Yigitcan [sic] before you mentioned that you stood – or you provided a reference for him for a house in Euroa.
A:Can you say again please.
Q 483:You said you were a reference – provided a reference - - -
A:No, no. He just asked me, “Can I put your name in the reference?” I say, yes.
Q 484:Have you – have you ever been to the house he had in Euroa?
A:I been outside not inside.
Q 485:Not inside?
A:Yeah. But I don’t really remember the address.
Q 486:When – when were you last there?
A:I don’t remember. I been in the outside but not inside.
Q 487:When did he – when was he living there?
A:Eight months before, maybe nine months, maybe 10. I don’t remember – about this period. Maybe eight months, nine months, 10 months, maybe more.
Q 488:Did – did you ever go – did you ever go - - -
A:Maybe more.
Q 489:- - - to that house with him?
A:Which house?
Q 490:In Euroa.
A:In Euroa house?
Q 491:Yes.
A:I go over there. I pick up what you call – not a playstation the other one.
Q 492:An Xbox.
A:Yeah, that one. I get from him Xbox.
Q 493:Mm’hm.
A:Because I have three year old son, have some game.
Q 494:Mm’hm.
A:I get from him Xbox, yeah.
Q 495:Do you know who the real estate is that he rented the house off?
A:Yes, I do. I do.
Q 496:Yep. And that real estate knows you?
A:Yeah, sure.
Q 497:Yep. So – ‘cause he says you were there when - - -
A:I returned the key because she know.
Q 498:Mm’hm.
A:She know me.
Q 499:So you returned the key did you?
A:Yeah.
Q 500:Did you clean out the unit?
A:Did you - - -
Q 501:Did you clean his unit out?
A:What’s the unit out?
Q 502:Empty it.
A:Yeah, because - - -
Q 503:You emptied it.
A:Yeah. I asked the real estate agents what I need to do, can you tell me. She say needed to call the carpet cleaner.
Q 504:Mm’hm.
A:I called the carpet cleaner and they – he have bed, the freezer, washing machine, sofa – not the sofa – table.
Q 505:Mm’hm.
A:Yeah, and I told the guy, “What should I do with this one”, and they call a rubbish collector.
Q 506:Mm’hm.
A:Yeah, that’s all – take the - - -
Q 507:Who called the rubbish collector?
A:I did.
Q 508:Yep.
A:I say, “What I need to do with this stuff?” He give me rubbish collector phone number.
Q 509:Mm’hm.
A:Yeah, I called it. I did.
Q 510:Did you empty out all the hydroponic gear that was in the house as well, the lamp shades and the lights and - - -
A:What’s mean hydroponic?
Q 511:Hydroponic is like the – what cannabis grows under, the lights.
A:No, no, no. He don’t have lights.
Q 512:He didn’t have any of that in the house?
A:No, no, no, nothing. He have one bed.
Q 513:Mm’hm.
A:The freezer.
Q 514:Mm’hm.
A:Washing machine.
Q 515:Yep. The garbage collector says that when he collected the bin - - -
A:No.
Q 516:- - - it was full of all hydroponic lights, shades.
A:No, no, no.
Q 517:Were you there when he collected the bin?
A:No, I don’t go over there but I pull all – don’t have any light, anything. I didn’t see anything.
Q 518:Mm’hm.
A:I put his bed, one bed, the freezer, washing machine - - -
Q 519:Mm’hm.
A:- - - small table, not like this – coffee table – coffee table, that’s all.
Q 520:Mm’hm.
A:No light, not …………
Q 521:Yep.
A:Yeah, no nothing. Not about that kind of the stuff, no nothing. You can – if you want I can give the collector number, rubbish collector number.
Q 522:The police who are investigating all of this have already spoken to him.
A:O.K., no problem.
Q 523:That’s how I know that you emptied all the unit.
A:Yeah, I did.
Q 524:And that’s how I know that - - -
A:I emptied it because I asked if I can take this bond. She say, yes.
Q 525:Yep.
A:And I take the bond.
Q 526:Yep.
A:That’s all. But I didn’t see any light, nothing. I put myself in one bag, something like that, like house stuff and like dinner stuff, like I eat and something like that.

Questions 835-847 essentially concerned the applicant’s connection with Gunal. That series of questions embraced the circumstances, not in issue at trial, that Gunal’s expired Turkish passport was in the applicant’s possession, that he possessed a letter sent by a bank to Gunal to his Kyabram address, and that he had collected funds so that Gunal could pursue his defence. Again, also, the investigators returned to the fact, admitted in the record of interview, that the applicant had cleaned out the Euroa house. Concerning this last matter, the applicant’s response was that Gunal could not do it because he was ‘inside’. Further in that connection, the applicant denied that there was a shed at the Euroa premises. There was, he said, a garage. It was empty.

The impugned material – the course of the trial

Immediately after the videotape of the record of interview, in its agreed form, was played to the jury, the trial Judge said that he did not know, in effect, how questions 145, 326 and 515 had been allowed to get into evidence. He asked counsel what was to be done about the situation.

Applicant’s counsel responded that he and the prosecutor had been through the record of interview and that a number of passages in the interview where there had been references to what Gunal would say had been deleted. The Judge responded that he was focused upon what had in fact happened, which, in his view, should not have happened. His Honour observed that there might be a forensic reason why the material had not been edited out, but he could not think of one. He added ‘If what had happened was simply an error, and it slipped through to the keeper, I want to know how I’m going to deal with it’.

Counsel sought an opportunity to speak with the prosecutor. The Judge said that they could have whatever time they needed. Nothing seems to have come of it.

His Honour then noted that he could direct the jury that it was the applicant’s answers to questions in the record of interview, not the question asked, which would be the evidence in the case. His Honour observed:

I can deal with that in that way fairly readily, I would’ve thought, but I’d rather not – well, that’s one method of dealing with it. I’d rather not have had to have dealt with it.

In the event, the Judge did in fact direct the jury along the lines which he had foreshadowed. He relevantly said this:

In determining the facts, you must consider all of the evidence that you have heard from the witness box, remembering it is the answers the witnesses gave that are the evidence, and not the questions that they were asked.
Now, in this respect there was reference made in the record of interview at Question 145 by the police: “Well, Gunal has stated that you were involved in doing that?” and the accused man said, “No”; and later at 326: “Yitican has said that the vehicle was given to you for you to drive around in”, and the accused man said, “I don’t have a vehicle”. This is not evidence and effectively he denied that suggestion and at Question 515 the police put, “The garbage collector says that when he collected the bins it was full of hydroponic lights and shades”, being a reference to the cleaner who cleaned out in part the dwelling at Euroa.
Now, the contents of those questions are not evidence in this case and they, the contents or the propositions put in them, are not evidence of the fact of the allegations contained in them. It is the answer to those questions that is the evidentiary material before you. There is no evidence of what Gunal said or what the garbage collector said, because they did not give evidence before you. So it is the answers that the accused gave to those questions which is the evidence in your material and not the propositions that were contained within the questions, because there is no evidentiary foundation for those questions in this trial.[17]

[17]Transcript of Proceedings (6 June 2017) 828.20-829.17.

No exception was taken to that direction.

At no stage was application made to discharge the jury.

What irrelevant and prejudicial material was admitted into evidence — conclusion

Little argument was directed, in this Court, to the question of just what irrelevant and prejudicial material was placed before the jury. Argument rather centred upon the questions whether such material got before the jury by reason of the incompetence of applicant’s trial counsel; whether, excluding the inadmissible evidence, conviction was inevitable; and whether the requirements of a fair trial were not satisfied. Nonetheless, we consider that it is necessary to identify the material which ought to have been excised from the record of interview, but was not.

There is no doubt, in our opinion, that question 145 ought to have been excised. Counsel for the Crown correctly so conceded in this Court. As we have said already, it was essentially an alleged co-offender’s statement that the applicant had been involved in the Heathmont operation, specifically by involvement in establishing the electricity bypass. Notwithstanding the applicant’s denial of such involvement, this question and answer, set in the framework of the immediately preceding questions 139-144, was not only objectionable, but carried very considerable prejudicial impact. There was no conceivable forensic advantage for the applicant in that question remaining in the record of interview which was admitted into evidence. It should not have been left to the Judge to attempt to rescue the situation. Remembering that the applicant’s case was that he had not been involved in the drug cultivation at Heathmont, here it was being said that a co-offender had implicated him in a critical part of that operation. It was quite understandable that the trial Judge observed that he did not understand, for the life of him, how question 145 got into this record of interview — by which his Honour meant the record of interview put into evidence.

Next, we consider that question 326, the first in a series of questions ending at 329, should also have been excised from the record of interview. Again, counsel for the Crown fairly and correctly so conceded in this Court. Again, there was no possible forensic advantage for the applicant in that question remaining part of the record of interview that was put into evidence. Question 326 was an alleged co-offender’s assertion that the applicant had given him a vehicle which, later found in the applicant’s possession, contained documents demonstrating a connection between the applicant, Gunal and Traljesic. Again, despite the applicant’s denial of connection with the vehicle, the question had considerable prejudicial potential.

Questions 316-323, in which the applicant first, by his answers, stated that he had given a reference for Gunal in respect of the Euroa property, were not intrinsically objectionable. The applicant, earlier in his record of interview, had been at pains to minimise his interaction with Gunal. The fact that he had given a reference for Gunal in respect of the Euroa property bore upon the extent of their interaction, and was a legitimate line of questioning.

Then consider the situation at trial. By that time, the applicant was seeking to make a virtue out of his dealings with Gunal, being dealings, as was submitted by his counsel, of an innocent nature in which, from time to time, he assisted Gunal. Instances were his providing a reference to the latter in respect of the Euroa property, and making arrangements for the supply of electricity to the Heathmont premises.

In that context, it was objectively to the applicant’s potential forensic advantage to have this part of the record of interview placed before the jury.

Questions 482-509 were relevant, from the prosecution’s standpoint, to show the closeness of the connection between the applicant and Gunal, which the applicant, earlier in the record of interview, had denied. So the questions, when asked, were not intrinsically objectionable.

Further, by the time the matter came to trial, for reasons which we have explained, it was not adverse to the applicant’s case that evidence was placed before the jury that he had assisted Gunal by providing a reference so that the latter could lease the Euroa property, that he had attended the premises, that he had returned the key to the premises — that is, after Gunal had been arrested — and that he had cleaned the unit out. Such evidence was capable of supporting the innocent association hypothesis so far as Gunal was concerned. Moreover, it was compatible with the attempt by applicant’s counsel to extend the innocent association hypothesis beyond Gunal to Traljesic, (the owner of the Heathmont premises, and in whose residence at East Doncaster cannabis grow rooms had been found). Thus, objectively considered, it was a rational forensic choice by applicant’s counsel to let that material go to the jury.

But things went wrong at question 510:

Q 510:Did you empty out all the hydroponic gear that was in the house as well, the lamp shades and the lights and - - -
A:What’s mean hydroponic?

The position got no better with questions 515-517:

Q 515:Yep. The garbage collector says that when he collected the bin - - -
A:No.
Q 516:- - - it was full of all hydroponic lights, shades.
A:No, no, no.
Q 517:Were you there when he collected the bin?
A:No, I don’t go over there but I pull all – don’t have any light, anything. I didn’t see anything.

As we have already mentioned, the Judge immediately fixed upon question 515 as being objectionable. His later direction that it was the answer, and not the question, which was the evidence, referred, inter alia, to question 515.

In this Court, counsel for the Crown conceded that question 515 and questions based upon it were objectionable, and should have been excised. He submitted, however, that there was an arguable forensic reason for question 510 being permitted to remain, arguing that it was consistent with the innocent association hypothesis. That is, Gunal (and Traljesic) were the cultivators and traffickers, and the applicant was an innocent person caught up in the offending by others whom he was trying to help.

We reject that submission. We can discern no possible forensic advantage for the applicant in permitting question 510 to remain part of the record. It asserted that, in cleaning out the Euroa unit, the applicant had emptied out ‘hydroponic gear’, which unmistakeably implied that the Euroa premises had been used by Gunal as a crop house. Moreover, the applicant had agreed that he assisted Gunal to lease that premises, had attended there, and had cleaned it out after Gunal’s arrest. What were arguably inconsequential concessions became, when linked with question 510, extremely damaging. That was so despite the applicant’s response to question 510, in the context of the Crown case that he and Gunal had been complicit in a hydroponic cultivation of cannabis at the Heathmont premises.

We have noted that the Judge did not refer to question 510 in his discussion with counsel immediately after the record of interview was played, or in the relevant part of his charge. It could not have been because this very experienced Judge overlooked the potential for prejudice which this badly framed question invited. To have mentioned it in a direction would only have highlighted it. Rather than approach it head-on, his Honour’s direction addressed the source of the allegation — the garbage collector.

At [35] above, we described the essential content of questions 835-847. In our view, they do not much add, if at all, to the applicant’s case.

In the event, a quite small number of questions were asked by the investigating police officers which, regardless whether they were proper at the time, should definitely have been excised as irrelevant and prejudicial before the record of interview was put into evidence. We particularly refer to questions 145, 326, 510 and 515. The most seriously prejudicial questions, in our view, were questions 145 and 510. There was, as we have said, no possible forensic advantage for the applicant in permitting any of those questions to remain part of the record which was put into evidence. It must be concluded that they were permitted to remain in the record by an oversight.

Principles

Putting to one side, for the moment, the applicant’s failure of process argument, the question whether the applicant established a substantial miscarriage of justice essentially involved, in a case such as the present, on the one hand the prosecution’s contention that, excluding the inadmissible material, conviction was inevitable; and, on the other hand, the applicant’s response that, had there been no error, the jury may have entertained a doubt as to guilt. That approach derives from these statements by the majority in Baini:[18]

Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms. As s 276(1)(b) contemplates, it will be possible sometimes to describe the cause of complaint as “an error or an irregularity in, or in relation to, the trial”. That is a description which is apt to encompass any departure from trial according to law. But as s 276(1)(c) shows by its reference to “any other reason” (emphasis added), the description contemplated in para (b) is not exhaustive. When read together, paras (b) and (c) encompass any and every form of substantial miscarriage of justice. Yet the ultimate question will remain the same: has there been “a substantial miscarriage of justice”?[19]
No single universally applicable description can be given for what is a “substantial miscarriage of justice” for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Second, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a “substantial miscarriage of justice” ultimately requires a judgment to be made.[20]
… the possibility that the Court of Appeal may conclude that no “substantial miscarriage of justice” occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces the proviso to the common form criminal appeal provision nor imposes on an appellant some onus of proving his or her innocence. To recognise that possibility does no more than acknowledge that the Court of Appeal’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been “a substantial miscarriage of justice”. The Court’s satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by s 276(1)(b) and (c).[21]
If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant’s conviction was inevitable.[22]
… the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by s 276(1)(a).) If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with “the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record”. That the jury returned a guilty verdict may, in appropriate cases, bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.[23]
This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression “substantial miscarriage of justice”, not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as “serious” departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused’s guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a “substantial miscarriage of justice” if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.[24]

[18](2012) 246 CLR 469. See also (on remitter) Baini v The Queen [2013] VSCA 157 [8]. See Andelman v The Queen [2013] 38 VR 659, 677–8 [85], 679–82 [94]–[104].

[19]Ibid 479 [25] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[20]Ibid 479 [26] (emphasis added).

[21]Ibid 480 [30] (emphasis in original).

[22]Ibid 481 [31].

[23]Ibid 481 [32] (emphasis in original) (citations omitted).

[24]Ibid 481 [33] (emphasis added) (citations omitted).

The potential availability of a failure of process argument in order to establish a substantial miscarriage of justice is found in the statement by the majority in Baini, noted above, that —

Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial.[25]

[25]Baini (2012) 246 CLR 469, 479 [26] citing AK v Western Australia (2008) 232 CLR 438, 456 [55]–[56] (Gummow and Hayne JJ); Handlen v The Queen (2011) 245 CLR 282.

It is notable that the authorities cited in support of the proposition just cited were cases in which the relevant legislation was of the proviso kind — that is, legislation similar in kind to the now repealed s 568(1) of the Crimes Act 1958. Thus, a principle recognised in the context of proviso legislation[26] was carried into the field of application of s 276 of the Criminal Procedure Act 2009.
[26]A then-recent case in which its existence was recognised, but in which there was no cause for its application, was Weiss v The Queen (2005) 224 CLR 300, 327 [45].

It is, we consider, useful to refer to the authorities cited by the majority in Baini, and to other authorities also, in order to better understand what is meant by ‘a serious departure from the prescribed processes for trial’.[27]
[27]See [60] above.

AK v Western Australia[28] involved a judge-only criminal trial. The applicable legislation required the trial Judge to give reasons for making a critical finding. The Judge stated a conclusion, but gave no reasons. The Western Australia Court of Appeal dismissed an appeal by the convicted boy, applying what we shall simply call, in this instance and others, ‘the proviso’. By majority, the High Court held that the proviso could not be applied. Gummow and Hayne JJ said this:

Once it is recognised that the Criminal Procedure Act requires that a trial by judge alone is to be concluded in this way, it is evident that to examine, as the Court of Appeal did, whether a chain of reasoning could be articulated that would support, even require, the verdict that was reached at trial was not to the point in deciding whether there was a substantial miscarriage of justice. It was not to the point because the relevant error or miscarriage which is the premise for consideration of the proviso is an error or miscarriage constituted by a failure to provide, as s 120(2) required, a reasoned decision about the central issue that was tried. The appellant was not tried in accordance with the requirements of s 120.[29]

[28](2008) 232 CLR 438 (‘AK’).

[29]Ibid 457 [58].

Their Honours had earlier referred to the decision of the High Court in Wilde v The Queen,[30] saying that both it and Weiss v The Queen[31] acknowledged that:

the operation of the proviso in the common form criminal appeal statute will fall for consideration in a very wide variety of circumstances.[32]

[30](1988) 164 CLR 365 (‘Wilde’).

[31](2005) 224 CLR 300 (‘Weiss’).

[32]AK (2008) 232 CLR 438, 456 [54] (Gummow and Hayne JJ).

Their Honours further stated that:
What was said in Wilde did no more than advert to a particular class of such circumstances in which the error or errors at trial are properly seen as radical.[33]
[33]Ibid.
The concept of a radical error could readily be applied to the circumstances which arose in AK.

In Wilde itself, a judge had refused to sever charges on an indictment, and had misdirected the jury as to the use it might make of what had occurred on the two occasions that were the subject of the charges. The New South Wales Court of Criminal Appeal dismissed the convicted man’s appeal by applying the proviso in circumstances where the evidence against the appellant was adjudged to be very strong. A majority in the High Court held that it had been open to the Court of Criminal Appeal to so decide. But observations were made with respect to principle. Brennan, Dawson and Toohey JJ said this:

However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J. in Quartermaine v The Queen:
“Ordinarily, when there has been a misdirection of law, the proviso to s. 689 [Criminal Code, (W.A.)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J., who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established ‘there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that “there had been a serious departure from the essential requirements of the law"’. The Court of Criminal Appeal was right in taking that view of the law ….”

This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick C.J. in Driscoll v. The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt ; Reg. v. Henderson; R v Couper.
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted.[34]

[34]Wilde (1988) 164 CLR 365, 372–373 (citations omitted).

Deane J said this:

… it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been “no substantial miscarriage of justice” in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law.[35]

[35]Ibid 375.

Quartermaine v The Queen,[36] referred to in Wilde,[37] was a case in which the trial judge misdirected the jury with respect to an element of one of the offences charged against the accused, and wrongly took away self-defence with respect to one of the charges. The Court of Criminal Appeal applied the proviso and dismissed the convicted man’s appeal. By majority, the High Court allowed the appeal.[38]
[36](1980) 143 CLR 595 (‘Quartermaine’).
[37]Wilde (1988) 164 CLR 365, 372 (Brennan, Dawson and Toohey JJ).
[38]Quartermaine (1980) 143 CLR 595.

Gibbs J, with whom Stephen and Murphy JJ agreed, said this:

Ordinarily, when there has been a misdirection of law, the proviso to s. 689 will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J., who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established “there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that ‘there had been a serious departure from the essential requirements of the law'”. The Court of Criminal Appeal was right in taking that view of the law, but, in my opinion, wrong in considering that there was no substantial miscarriage of justice in the present case. In Andrews v. The Queen this Court held that the proviso should not be applied where the accused was not in reality tried for the offences for which he was indicted. That case was similar to the present, in that the summing up was more appropriate to a different charge, and the jury were not instructed as to the essential elements of the charge in fact laid. Another case, in which the proviso was not applied because the errors were considered to be fundamental, was Reg. v. Hildebrandt. The jury in the present case were never asked to consider whether the applicant committed an offence against s. 283(2) and did not find that the elements of an offence against that sub-section had been proved. When a jury has returned a verdict of guilty of a particular crime without having considered whether that crime was committed, the verdict cannot, in my opinion, be sustained by holding that the jury would or should have returned the same verdict if they had considered the proper questions. That would substitute trial by judge for trial by jury.[39]

[39]Ibid 600–1 (citations omitted).

Andrews v The Queen,[40] cited by Gibbs J in Quartermaine, was a case in which the appellant was convicted of dishonesty charges. The New South Wales Court of Criminal Appeal held that there had been a misdirection, but dismissed the appeal in reliance upon the proviso. The High Court allowed an appeal. The Court said:

It is not pedantry to insist that an accused be tried for the crime for which he is charged: and the function of the proviso to s. 6 of the Criminal Appeal Act, 1912 [NSW] is not to provide a Court of Criminal Appeal with a refuge from the performance of the exacting duty imposed in the interests of the due administration of the law of close analysis of the sufficiency of the evidence led to support the essential ingredients of the precise charges laid and of the manner in which a presiding judge has instructed the jury as he should in the elements of the offence and the relevance of the evidence thereto.[41]

[40](1968) 126 CLR 198 (‘Andrews’).

[41]Ibid 209.

The point was that the evidence which had been led did not support the charges on the indictment. There had been no trial at all. As the Court said, ‘The very fundamentals of a proper criminal trial [had] not been observed …’.[42]
[42]Ibid 207.

Even earlier, Tuckiar v R[43] was an example of a trial which, by the combined efforts of the trial Judge and counsel for the convicted man, was not a trial according to law at all. Tuckiar was, no doubt, an extreme example of a miscarriage of justice.
[43](1934) 52 CLR 335.

The authorities to which we have referred demonstrate, we think, that although there is recognised as being a kind of case where there has been a serious departure from the prescribed processes for trial, for which reason there will be, in such a case, a substantial miscarriage of justice, nonetheless the circumstances which give rise to the application of the principle are a rarity. Moreover, even in circumstances of apparently serious error, there will not always be unanimity of opinion.

The recent decision in Kalbasi v Western Australia,[44] a proviso case, illustrates, we think, the difficulty of establishing that there was, in all the circumstances, no trial at all. There, the appellant was tried on an indictment that charged him with attempting to supply a prohibited drug, with intent to sell or supply it to another.[45] There was a statutory provision which deemed a person in possession of a specified quantity of a prohibited drug, subject to proof to the contrary, to have it in possession with intent to sell or supply. The High Court had earlier held that the deeming provision had no application to a prosecution on a charge of attempted possession.[46] Nonetheless, apparently because the Judge, the prosecutor and senior and junior counsel for the defence all wrongly assumed that the deeming provision applied to the charge of attempted possession, the Judge so directed the jury. The accused man was convicted. His appeal was rejected by the Western Australian Court of Appeal in reliance upon the proviso. His further appeal to the High Court was rejected by a majority of four to three. The majority, Kiefel CJ, Bell, Keane and Gordon JJ distinguished Quartermaine and Handlen v The Queen.[47] Handlen was the second case cited by the majority in Baini in support of the proposition that there is a kind of case where there has been a serious departure from the prescribed processes for trial.
[44][2018] HCA 7 (‘Kalbasi’).
[45]Ibid [2] (Kiefel CJ, Bell, Keane and Gordon JJ).
[46]Ibid [3] citing Krakouer v The Queen (1988) 194 CLR 202.
[47](2011) 245 CLR 282 (‘Handlen’) cited in Kalbasi [2018] HCA 7 [53]–[58].

The majority in Kalbasi described Handlen this way:

In Handlen the accuseds’ trial was conducted upon the common, mistaken, assumption that liability would be established on proof that each was a party to a joint criminal enterprise to import a commercial quantity of border-controlled drugs. At the date of the trial, however, the general principles of criminal responsibility for offences against Commonwealth law made no provision for liability as a participant in a joint criminal enterprise. It was held that the intermediate appellate court erred in dismissing the accuseds’ appeals against their convictions under the proviso. The holding took into account that the trial had been conducted on a basis for which the law did not allow, on evidence which should not have been adduced, and the verdicts did not establish that the jury must have been satisfied of the facts necessary to establish guilt.[48]

[48]Kalbasi [2018] HCA 7 [53] (citations omitted).

Their Honours distinguished Handlen and Quartermaine this way:

None of the factors which were critical to the decision in Handlen are present in this case. The appellant was tried for an attempt to commit an offence contrary to s 6(1)(a) of the MDA. The jury was correctly instructed of the four elements which together make up liability for that offence. The error was in instructing the jury of the s 11 presumption on the trial of a charge of attempted possession of prohibited drugs with intent to sell or supply to another. It is less clear the extent to which if at all the balance of the direction, including that the jury should give the fourth element a tick, involved legal error. The omission to direct on an element of liability as in Quartermaine, or a direction which effectively removes proof of an element from the jury’s consideration, may not amount to legal error, much less occasion a substantial miscarriage of justice, if proof of the element was not a live issue in the trial.[49]

[49]Ibid [55] (citations omitted).

Their Honours added:

It may be accepted that in any case in which an appellate court concludes that an accused was “not in reality tried for the offences for which he was indicted” there will have been a substantial miscarriage of justice within the meaning of the proviso. And it may also be expected that in such a case there will be a contest as to whether that conclusion is appropriate: to say that an accused has not in reality been tried for the offence for which he or she has been indicted is a vivid way of expressing the conclusion that a misdirection as to the elements of an offence amounts to a substantial miscarriage of justice for the purposes of the proviso, but it does not aid the analysis of whether the error is of such gravity as to warrant that conclusion.
A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not.[50]

[50]Ibid [56]–[57].

As we have said, there were three dissentients in Kalbasi — Gageler, Nettle and Edelman JJ. Their Honours gave separate reasons. Edelman J put the matter simply:

There will always be a “substantial miscarriage of justice” where a person is “not in reality tried for the offences for which he was indicted”. That is what occurred in this case. As the respondent properly conceded, the trial judge removed from the jury’s consideration an element of the offence. The remaining elements considered by the jury constituted a different offence. For the reasons below, I agree with the conclusion of Nettle J that the directions of the trial judge were contrary to law and constituted a serious departure from the requirements of a fair trial …
and
[t]here will be many cases where an appellate judge’s assessment of whether a substantial miscarriage of justice has occurred will require him or her to be persuaded from the entirety of the record that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty. However, this will not always be the case. In this case, the direction that removed the fourth element of the offence from the jury was a fundamental defect, amounting to a serious breach of the presuppositions of the trial. This was a substantial miscarriage of justice. It is neither necessary, nor appropriate, in such a case for an appellate court to attempt to determine from the record whether the accused is guilty beyond reasonable doubt. To conclude otherwise would be to replace a trial by jury with a trial by appellate judges.[51]

[51]Ibid [146], [162] (citations omitted).

In all, as we understand it, whether in the context of proviso legislation or now under s 276 of the Criminal Procedure Act 2009, there has been recognised a kind of case in which there has been such a fundamental departure from proper trial processes that, in effect, there has been no trial at all. At times, cases which would seem to fall within that class have been described as cases in which the proviso cannot be applied because the processes designed to allow the jury’s fair assessment of the issues have not been followed at trial, for which reason an appeal court is unable to be satisfied that a substantial miscarriage of justice did not occur. But regardless of the precise explanation, it is at least clear that, whilst there is room for argument whether the particular circumstances fall within or outside the boundary of this kind of case, the class is a quite rare one.[52] As Kirby J stated in Nudd v The Queen,[53] which was a case of alleged incompetence of counsel:

Sometimes, rarely, the misbehaviour, errors or incompetence in the legal representation of an accused at trial may be so egregious, frequent or obvious as, without more, to amount to a miscarriage of justice. The “proviso” postulates upholding the verdict at the conclusion of a trial that has met the minimum standards required for a fair trial. It does not envisage the affront to the appearance of justice of upholding orders that have followed a proceeding that did not amount, in law, to a proper trial at all.[54]

[52]In Evans v The Queen [2007] HCA 59 [39], Gummow and Hayne JJ observed that the High Court had not ‘authoritatively decided what kind of departures from essential requirements may be said to go to ”the root of the proceedings”’. See also their Honours’ observations at [50], and [117], [122] (Kirby J).

[53](2006) 225 ALR 161 (‘Nudd’).

[54]Ibid 187 [100] (emphasis added).

Now, where complaint is made on appeal that trial counsel was incompetent in some respect, the ordinary appellate framework is engaged. The question is always whether, in the circumstances which occurred, there was a [substantial] miscarriage of justice.

Appeals in which it has been contended that a [substantial] miscarriage of justice occurred by reason of the incompetence of counsel have been frequent enough in recent years in Australia. Earlier cases which raised the issue — ReKnowles[55] and R v Birks[56] — have been succeeded in more recent years by a number of High Court decisions, including TKWJ v the Queen;[57] Ali The Queen R;[58] and Nudd; and, in this State, by cases including R v Brown,[59] James v The Queen,[60] Bass v The Queen,[61] Knowles (a pseudonym) v The Queen,[62] Willis v The Queen,[63] Nicholls v The Queen[64] and Mulligan (a pseudonym) v The Queen.[65]
[55][1984] VR 751.
[56](1990) 19 NSWLR 677 (‘Birks’).
[57](2002) 212 CLR 124 (‘TKWJ’).
[58](2005) 79 ALJR 662.
[59](2002) 5 VR 463.
[60](2013) 39 VR 149, 152–56, [4]–[14].
[61][2014] VSCA 350 [113]–[121].
[62][2015] VSCA 141, particularly [128]–[146].
[63][2016] VSCA 176 [161]–[184].
[64][2016] VSCA 250 [25]–[26], [70]–[77].
[65][2017] VSCA 94 [33]–[46], [64], [69]–[72].

Particularly having regard to observations in Birks, TKWJ and Nudd, it may be said that there has been recognised a kind of case in which the conduct of trial counsel of itself, may be productive of a miscarriage of justice, regardless of the apparent strength of the Crown case. In Birks,[66] Gleeson CJ of the New South Wales Supreme Court said this:
[66](1990) 19 NSWLR 677.

The relevant principles, may be summarised as follows:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

In the present case the inexperience of trial counsel gave rise to an unusual and extreme situation. This is not merely because he forgot to ask some questions in cross-examination. That happens to the best and most experienced of advocates. There are two features of the case which take it out of the ordinary run. In the first place, the matter concerning the torch and the alleged punching was not only of importance in relation to the events leading up to the sexual assaults, it went to the whole issue in relation to the first charge. Counsel virtually failed to cross-examine at all about that serious charge. Secondly, there were various ways in which the problem, once it became apparent during the cross-examination of the appellant, could have been dealt with. In the running of a trial, counsel often have cause to regret things they have done or left undone. Damage control is part of the art of advocacy. There was ample scope for that here. The position in which the appellant was left was indeed invidious. It was being put to him, in effect, that the story he gave in evidence was different from that he had given his lawyers. As a matter of fact, it was not. His denials were contrasted with the conduct of his counsel. The matter was said to go to his credibility. There was available evidence to support him and to rebut the inference the jury were invited to draw from counsel's conduct. Counsel and his instructing solicitor both knew that the interpretation the jury were invited to put on counsel's actions was erroneous and they heard their client assailed in cross-examination with that interpretation. All this was occurring, not after the evidence closed and when it was then too late to repair the damage, but at a time when the mistake could have been rectified. The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing.[67]

[67]Ibid 685–6.

McHugh J addressed the issue in TKWJ:[68]
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks

that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.[69]
[68](2002) 212 CLR 124.
[69]Ibid 148 [76] (citations omitted).
In Nudd,[70] Kirby J framed this question:

Taking the criterion, relevantly, as the establishment of a “miscarriage of justice”, the question remains: Is the “miscarriage” spoken of confined to a case where, directly or indirectly, the incompetence of counsel has led to a verdict that, judged on the evidence, is unsafe and cannot be left to stand? Or are there exceptional cases where, although the appellate court may be convinced from the whole of the evidence that the conviction is not unsafe, the affront to the appearance of justice in the trial is such that a fair trial was not had, requiring a retrial, in effect to uphold the integrity of the judicial process?[71]

[70](2006) 225 ALR 161.

[71]Ibid 183 [83].

His Honour’s answer was:

Nevertheless, the trend of the decisions that I have mentioned appears to sustain the distinction drawn by McHugh J in TKWJ. Sometimes, rarely, the misbehaviour, errors or incompetence in the legal representation of an accused at trial may be so egregious, frequent or obvious as, without more, to amount to a miscarriage of justice. The “proviso” postulates upholding the verdict at the conclusion of a trial that has met the minimum standards required for a fair trial. It does not envisage the affront to the appearance of justice of upholding orders that have followed a proceeding that did not amount, in law, to a proper trial at all.[72]

[72]Ibid 187 [100].

The possible application of the kind of analysis mentioned above must be considered having regard to the following considerations:

(1)Ordinarily, a client is bound by counsel’s conduct of the trial. For that reason, a course followed at trial, even if it is shown with hindsight to have been unwise, will not ordinarily found a successful contention that there has been a substantial miscarriage of justice. That will be a fortiori when, on an objective evaluation of the record,[73] the course taken was at least arguably the result of a decision made in anticipation of a forensic advantage.
(2)Sometimes, however, it is clear that what was evidently a forensic choice was plainly wrong. In such a case a court on appeal may be satisfied that a substantial miscarriage of justice was occasioned. Most often, the reason will be that the court cannot conclude, absent the error, that conviction was inevitable.[74] Rarely, it may be because, regardless of the apparent strength of the Crown case, there was a fundamental irregularity in the course of the trial. An example of the latter was the circumstances which arose in Re Knowles.[75]
(3)In some instances, a course taken by trial counsel, objectively analysed, will evidently not have been the result of a forensic choice, but will, rather, be the result of an oversight, or ignorance, or negligence. In that event again, it may be that a substantial miscarriage of justice will be established for one or other of the reasons just mentioned.[76] Birks may be so characterised. Handlen was a failure of process case, but it does not quite fit that category, because in that case there was a common misconception on the part of the Judge, the prosecutor, and counsel for the accused.

88 All in all, it is clear that it will only be a rare case in which counsel’s conduct is called into question in which it will be held that there was a substantial miscarriage of justice because there was a serious departure from the prescribed processes for trial. It is notable that, despite the alleged incompetence of counsel being relied upon relatively frequently in recent years, there is a dearth of instances in which it has been concluded that the incompetence relied upon was productive of a trial which lacked essential fairness. That is so although in some cases — Nudd was an instance — counsel’s incompetence was of a serious order.

[73]Only in an exceptional case will counsel’s subjective reason for adopting a particular course at trial be relevant. See the discussion of leading authorities in Knowles (a pseudonym) v The Queen [2015] VSCA 141 [131]–[145]. In the present case, trial counsel did not seek to be heard.

[74]Employing language apposite to some cases under Criminal Procedure Act 2009 s 276.

[75][1984] VR 751, 767–70.

[76]See, eg, Birks (1990) 19 NSWLR 677, 680–1, 683–6 and, particularly, 685D and 685E.

Thus far, in analysing principle, we have examined general principles and their potential application in the case of an allegation of incompetence on the part of trial counsel. But in the present case, as we have said, the applicant also relied upon deficiencies in the conduct of the prosecutor. It follows that we must say something about the duties of a prosecutor, and the possible consequences of non-compliance with those duties.

The Legal Profession Uniform Conduct (Barristers) Rules 2015 provide, inter alia, that:

A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.[77]

[77]Legal Profession Uniform Conduct (Barristers) Rules 2015 r 83.

The policy of the Director to Public Prosecutions for Victoria, by Chapter 2, deals with ‘the role of the prosecutor’.[78]
[78]Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria 7.

General principle 3 requires prosecutors, inter alia to ‘assist the court to avoid appellable error’.[79] Principle 4 requires trial prosecutors to:

place before the jury all relevant and reliable evidence and address the jury as to how to use that evidence according to law.[80]

[79]Ibid.

[80]Ibid 8.

There have been a considerable number of cases in which an appeal has been brought alleging a miscarriage of justice by reason of the prosecutor’s final address. Prominent amongst those cases is Livermore v R.[81] In this State, in recent years, there has been Bugeja v The Queen,[82] De Vries v The Queen,[83] Woods (a pseudonym) v The Queen,[84] Basic v The Queen,[85] Spence v The Queen,[86] Smith v The Queen,[87] and, very recently, Paulino v The Queen.[88]
[81][2006] NSWCCA 334 [24]–[31], particularly [31] (‘Livermore’)
[82][2010] 30 VR 493.
[83][2013] VSCA 210.
[84][2014] VSCA 233.
[85](2015) 251 A Crim R 91.
[86][2016] VSCA 113.
[87][2018] VSCA 139 [73]–[79].
[88][2018] VSCA 306 [141]–[142].

The cases dealing with counsel’s final address do not directly bear upon the matter raised by the applicant in the present case. Rather, that complaint needs to be considered in the context of a prosecutor’s obligation to place the relevant evidence before a court. It is the corollary of that obligation that a prosecutor should not introduce irrelevant evidence. To do so must tend to distract the court from its proper application of the facts to the law.

But just as language in a prosecutor’s closing address which is intemperate or inflammatory, or which impugns the credit of a Crown witness where the witness was not afforded the opportunity of responding to an attack upon credit, or which conveys the prosecutor’s personal opinion — to take three instances of matters referred to in Livermore at [31] — will not necessarily give rise to a substantial miscarriage of justice, so it must be that not every instance in which a prosecutor permits inadmissible material to get before a jury will constitute such a miscarriage. It must all depend upon the entire circumstances of the particular case.

Ground 1

We have already identified the inadmissible evidence which, for the purposes of the present inquiry, must be excluded from consideration. We have also largely described the evidence adduced in support of the prosecution case, and the answer to that case which was advanced in the closing address of counsel for the applicant. As we have said, senior counsel for the applicant in this Court adopted the arguments advanced below to support his contention that, absent the inadmissible material, the jury may have entertained a doubt as to the applicant’s guilt.

In our opinion, excluding the inadmissible evidence, the prosecution case was overwhelming. In our opinion, a guilty verdict was inevitable. Applicant’s counsel below did all that he could in closing address to sow a seed of doubt. He sought to proffer an innocent explanation for each of the individual items of evidence which made up the circumstantial case. But the united and combined force of the circumstances relied upon by the prosecution pointed unequivocally to a guilty verdict. In reality, applicant’s counsel had nothing to work with. There was a mountain of evidence proclaiming his client’s guilt. Perhaps most persuasively, there was the DNA evidence and evidence of communications between the applicant and Gunal in the charge period.

The DNA evidence showed clearly that the applicant had been inside the premises. There was nothing to suggest that he had been in the premises before mid-March 2015, as might explain the DNA evidence. The several lids of coffee cups were found in different areas of the house where the crop was grown. A cigarette butt was found in one room and a related cigarette packet in another room. A drinking straw and other cigarette butts were found in the house. The different ages of the plants found at the time when the search warrant was executed was indicative of a rolling operation, the relevant electricity supply having been connected in mid-March 2017. The idea that the applicant might have been in the house for some innocent purpose in the charge period and that a crop was not then being grown (except when the bypass was being installed, which would be no better for the applicant) was fanciful in the extreme.

It might be said, even if the applicant did enter the house, and even if cannabis was then growing there, and assuming the applicant saw it, that these circumstances did not necessarily bespeak his involvement in the charged offending. But such an argument would have stretched credulity to breaking point, and understandably it was not advanced by applicant’s counsel below. Moreover, such an argument would inevitably have been met by the content of messages passing between the applicant and Gunal in the charge period. We have earlier set out some of those messages. They were, in our opinion, absolutely damning.

It follows, as we foreshadowed at [6] above, that Ground 1 must be rejected.

Ground 2

In the present case, as we have explained, in the end result, a quite limited number of questions were placed before the jury when they should not have been.

It is apparent from what counsel said when the matter was raised by the Judge that there had been discussions between counsel and the prosecutor with a view to identifying and excising inadmissible material. Indeed, so much is clear from the record of interview which was admitted into evidence. As we have said, it originally consisted of 974 questions and answers. By the time that it was placed before the jury, questions 276-295, 301-316, 466-481, 558-563, 610-624, 676-703, 710-735, 753-755, 761-771, 781-791, 798-832, 863-869 and 890-899 had been excised. It is clear, in the event, that applicant’s counsel and the prosecutor had worked through the record of interview in considerable detail with a view of excising irrelevant material.

It may, however, be said that the Court should not concern itself with the apparent care with which the record of interview generally was scrutinised by counsel before it was placed before the jury, but rather that emphasis should be placed on the material which ought to have been excised but was not. Whilst we accept that such a contention has some force, we do not accept that the evident care which attended consideration of the record of interview generally should be ignored. At very least, it points up a generally conscientious approach by counsel; and it readily leads to a conclusion that the slipup in permitting questions 145, 326, 510 and 515 to be placed before the jury is explicable as inadvertence in the course of a busy trial — a far cry from the kind of ignorance which fell for consideration in Birks, and from the fundamentally erroneous understanding of the law which fell for consideration in Re Knowles. It is also a far cry from the kind of situations in which, more generally, it has been held that there was a serious departure from the proper trial processes.

Whilst it was an error that question 145 thereto was admitted into evidence, the error was susceptible of a curative direction such as the Judge gave. Likewise with question 326. Next, whilst questions 510-526, most particularly questions 510 and 515, should not have been admitted, as we have already noted the applicant’s connection with the Euroa premises, and thus Gunal, was relevant to both the prosecution and defence cases in different ways. It was a regrettable oversight that the offending questions were not excised. But neither the failure to excise questions 145 and 326 nor the oversight with respect to questions 510 and 515, nor again the combination of errors thus revealed, could be fairly characterised as a failure of process such as would constitute a substantial miscarriage of justice. Whilst not underestimating in any way the prejudicial potential of the questions to which we have referred, potential which we consider remained despite the Judge’s direction (which, in any event, did not specifically address question 510), we reject the contention that this was a trial where there was a serious departure from necessary process.

We further agree with the submission for the Crown that, reviewing the entirety of the record, this was recognisably a fair trial, where the errors relied upon on the part of applicant’s counsel did not go to the root of the proceedings. Quite apart from the evident care with which the record of interview generally was scrutinised before it went before the jury, counsel’s closing address made as much as could possibly have been made in answer to what was an overwhelmingly strong Crown case.

In our opinion, also, the fact that the prosecutor was not alert to the problem which was created when the particular questions were admitted into evidence, though not satisfactory, was not so significantly deficient as to give rise to a substantial miscarriage of justice. The fact that the error was the consequence of the combined oversight of the prosecutor and applicant’s counsel does not lead, in our opinion, to a different conclusion.

Finally, we consider that there was nothing to the submission, faintly voiced, that the trial miscarried because of what the trial judge did or did not do. His Honour gave a firm direction which addressed the problem created by inappropriate questions. There was no exception to that part of the charge. By his reference to question 515, the Judge indirectly addressed the problem created by question 510. Further, no application for discharge of the jury having been made,[89] we do not think that the Judge can in any way be criticised for not himself raising the question whether there should be a discharge.
[89]As to which see Paulino v The Queen [2018] VSCA 306 [122] citing Saddik v The Queen [2018] VSCA 249 [19].

Again it follows, as we foreshadowed at [6] above, that Ground 2 must be rejected.

Order

We will order that leave to appeal against conviction be granted, but that the appeal be dismissed.

- - -

[2018] VSCA 319

30 November 2018