Smith v The Queen

[2001] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S158 of 2000

B e t w e e n -

ARTHUR STANLEY SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 JUNE 2001 AT 2.04 PM

Copyright in the High Court of Australia

MR W.C. TERRACINI, SC:   If the Court pleases, I appear for the applicant with my learned friends, MR J.S. STRATTON and MS D. YEHIA.  (instructed by David Giddy & Associates)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Terracini.

MR TERRACINI:   Your Honours, this is an application for special leave which we say raises important questions about the conduct of criminal trials in New South Wales.  The primary submission is the failure of the Crown to call the person who had pseudonym of Mr White.  The prosecution at the Court of Criminal Appeal maintained, as did the Crown at the trial, there was no basis to call Mr White.

We say that there were a number of bases that would have permitted under the Evidence Act for them to call Mr White.  We have two put examples in our written submissions which indicate that in many, many instances a person such as Mr White could have been called and is regularly called by the Crown in cases where they seek to use that material as an unfolding, as it were, of the Crown case.

GLEESON CJ:   What exactly would the Crown have called Mr White to prove?

MR TERRACINI:   The Crown would have been entitled to call White to, first of all, rebut any suggestion that the man known as Green had received a large sum of money to give false evidence against the applicant.  Secondly – and this is the area which perhaps does not flow clearly from the Court of Criminal Appeal judgment – assume that White would have denied that, there are other matters that were conceded ‑ ‑ ‑

GLEESON CJ:   White would have denied what?

MR TERRACINI:   That he had paid by assisting Black to pay Green to give false evidence.

GLEESON CJ:   So that the Crown, having called witness A and relied on the evidence of witness A, would then call witness B to say, “Witness A wasn’t bribed to tell a lie”?

MR TERRACINI:   Yes, but in part – now, I accept that taken, that on its own, it is not as strong as what we would like it to be, but there is more.  Green agreed that he had been procured by a false document signed by Mr White to get him into a prison to see Mr Black, who was well known to Mr White and hardly known to Green.  They had not met for 15 years.  Green also agreed that White did not charge him anything for this assistance.  He also conceded that White had arranged through a person in the Seamen’s Union to facilitate Green coming forward.  He also agreed that Black, for reasons, in effect, unknown, chose to offer Green protection, presumably from those who were associated with our client, if he gave this evidence.

It was also conceded, and common ground by the Crown in the trial, that White had confessed animosity of a high degree directed towards our client.  What we were left with is that we could challenge the Green version and say, “Well, this happened and that happened”, and the only person that we could direct a number of matters to to confirm that what Green was telling was the truth in so far as how he came forward to give this evidence was through Mr White.

GLEESON CJ:   But that seems to suggest that the only purpose the Crown would have in calling him is to present him for cross‑examination by you.

MR TERRACINI:   No.  I concede, your Honour, that that is one of the limbs in the English authority, just putting him up merely so we can, to use the vernacular, have a go at him.  It is more than that.  It goes to the very issue in the trial that a person had procured a witness to give false evidence and by not calling him they denied the applicant of having a fair trial.  We were not in a position, because our instructions were as follows – the appellant did not know this information.  It came to those who represent him by a person who still exists but was in fear of his safety.

As a result of the information provided, we were able to subpoena material which did confirm certain matters and it confirmed that this person had been got into the gaol posing as a lawyer.  It did confirm that there was a connection between White and Black.  It did confirm that he had an unexplained sum of 425,000 that had been put into his bank account, he claimed, arising out of selling ice creams and running a swimming pool business but could not adequately explain the income.

What we are left with then, at the end of the day, we say to the jury, “Well, look, we have put these allegations.  They have been denied.  The very person that you would think would be able to rebut them or at least shed some light on it is the very person that Green says brought him forward out of some kind of conscious‑based claim”.

Further, what we were faced with is that we mounted the argument in the trial and before the Court of Criminal Appeal that just as you have the mother of a claimant in a sexual assault case who is called regularly by the Crown to rebut certain suggestions, where the police officers regularly call the third independent police officer to rebut certain suggestions and thus call it in their case.  We were denied, in effect, to ask any questions despite the fact that he had a motive, that is, Mr White, to present false material because of the antipathy between the parties, and the Crown maintains that the credibility rule applies.

Bias and motives are obviously exceptions to 106 of the Evidence Act and it has probative value.  If I could put it in the reverse, your Honours, we say it is inconceivable that if the Crown wanted to have called that material from Mr White that our opposition to it would have been successful on the basis of relevance.

GLEESON CJ:   You mean if the Crown had wanted to call White to prove that he had not bribed Green?

MR TERRACINI:   Yes, and that he had no ulterior motives, no improper purpose in getting him into the gaol, no improper purpose in arranging for a very, very serious criminal to provide protection for Mr Green, no motive whatsoever, and then later the newspaper articles which appeared under his own name, an explanation as to how he got them, and we ‑ ‑ ‑

GLEESON CJ:   Supposing it had appeared that his purpose was that he was very happy to have an opportunity to see your client get into trouble, or further trouble, with the authorities, would that be an improper purpose?

MR TERRACINI:   No, not to be compared with what the suggestion was.  We would say it was improper, yes, at a basic level that he would choose to involve himself in and provide, in effect, improper protection for a witness who could go to the appropriate authorities.  What was up with Mr Green having the protection of wit sec and, as your Honour knows, those facilities in the normal course of events.

GLEESON CJ:   Mr Terracini, what was the defence case here?  There were tape‑recorded interviews with your client in which he said that he had done certain things.  What was his response to that?

MR TERRACINI:   His response in relation to tape material is that with his experience as a prisoner and a criminal that he was aware that at times plants are put in the prison system.  He came to form a very, very strong opinion, indeed, that the person in the cell was a plant and that he sought to give exaggerated accounts of a whole range of murders and other crimes, many of which have been dealt with, resulting in him being discharged or acquitted, so that he could find out through the prison gossip whether, in fact, he was a plant.  He then decided that he was.  Further co‑operation or further unburdening of his alleged consciousness of guilt stopped.

He was a person who was working for the authorities it was established beyond a shadow of a doubt.  He was under the care of a police officer who under cross‑examination confessed to be a close friend of a number of disgraced police officers.  It was confirmed by that police officer that he did pass on certain information which was caught under surveillance, we say, by honest police officers in having the material released to Mr White, who then published it.

Now, we were able to demonstrate, despite the attraction of a confession, that what he confessed to in many respects was impossible.  With respect to the Green material, as your Honours are probably aware, what he claimed to observe is demonstrably different to what the applicant apparently confessed to Mr Brown.  So far as the Green version is concerned, there were two primary witnesses, Brown and Green.  The attack on Green was that he had been paid by Mr Black, facilitated by Mr White, and that is how he came forward.

Brown was given the usual protections and small monetary recompense by the authorities and placed on witness protection but, at the end of the day, counsel for the Crown said there was no basis to call him.  That was never commented on as being a correct statement of the law and we say that there were adequate bases to call him and they should have called him in the interests of having the applicant receive a fair trial.  Why would he lie submission is coupled with the first two grounds.  We say that that effectively reversed the onus on us.

GLEESON CJ:   I notice an exchange between you and the trial judge on pages 181 and 182 of the application book.  That exchange, following an application for discharge of the jury, raised your complaint about that direction, as I understand it.

MR TERRACINI:   Yes.

GLEESON CJ:   The response to that exchange appears to have been the direction on line 45 on page 192; is that right?

MR TERRACINI:   From memory – I will just check, your Honour – I think that is right.  Yes.

GLEESON CJ:   Why does not that redirection cover the complaint that you made?

MR TERRACINI:   We say, your Honour, there had been a number of applications for redirections.  They had either been given in part or in whole.  This was one we asked for the discharge of the jury and that the trial was effectively over and could not be cured.  We should not, in our submission, be penalised by not asking again for the jury to be discharged because we had already stressed that it could not be cured.  What we took as a – and we have to bear it – tactical decision was we asked for the jury to be discharged; that has been declined and we say that it cannot be cured.  In effect, the trial judge did not accede to that request and made a further direction.

We did not, and do not, suggest that it could have been cured in the context of this trial.  That goes back then to if Mr White had been called, we would have been able to demonstrate what the motive was very, very plainly, indeed.  We say that it would be unreasonable to expect then to rise again and say, “Well, look, even that direction is not much better than the one before”, and it creates an unreal atmosphere of having counsel constantly jumping up, we say, and making applications for discharge of the jury when we have put it as a point of no return.

I do not gainsay that if all I had asked for was another redirection and the trial judge had given me one and we disagreed with it that I was not bound then to raise it, but here we had asked for the trial to end based on the fact that the direction could not be cured and we say we should not then have to ask for another discharge.  Unless your Honours want any further assistance ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Terracini.  We do not need to hear you, Mr Blackmore.

We have considered the oral and written submissions made by the applicant and the Court is of the view that there are insufficient prospects of success to warrant a grant of special leave to appeal in this matter.  On that basis, the application is refused.

AT 2.20 PM THE MATTER WAS CONCLUDED