Sokvari v The Queen

[1996] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S176 of 1995

B e t w e e n -

STEPHEN SOKVARI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 SEPTEMBER 1996, AT 2.42 PM

Copyright in the High Court of Australia

MR D. KNAGGS:   If the Court pleases, I appear for the applicant.  (of Douglas Knaggs)

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

BRENNAN CJ:   Yes, Mr Knaggs?

MR KNAGGS:   Your Honours, this was a very similar case on its facts to the previous case.  That is there was a charge which is referred to at page 1 of the application book at line 18:

that the accused.....did supply a prohibited drug, namely cannabis leaf.

Your Honours, as with the matter your Honours have just dealt with, again, it was a deeming supply case. 

The essence of the application before your Honours is that the Court of Appeal, whose judgment is in the application book at page 46, misdirected itself as to what were the live issues at the hearing before the Court of Criminal Appeal.

Your Honours, the part of the judgment which was delivered by his Honour Mr Justice Allen, where he lists what he says were the grounds of appeal as pressed, start at page 61 of the application book.  Now, your Honours, the point of the application is that his Honour completely omitted two grounds of appeal and all the submissions made on those two grounds of appeal from consideration and, of course, the other two justices who agreed with his Honour fell into the same error.  The grounds of the application that we say they failed to inform themselves about are set out in the statement of argument. 

TOOHEY J:   Where do we find, Mr Knaggs, the grounds that you say were pressed but not dealt with by the Court of Criminal Appeal?

MR KNAGGS:   Your Honours, at page 44 of the application book will find the notice of appeal and the grounds concerned are ground B(f) at 44, line 10.  I will begin by introducing that paragraph on the page before, B:

His Honour failed to direct himself that it was unsafe to accept the evidence of Jolyon Buchanan (“Buchanan”) identifying the Appellant as the supplier to him of cannabis, given -

now turning over to page 44:

(f)  Buchanan’s evidence at the hearing that he accompanied the appellant to 18 Fitzroy Street cannot stand with Const. Johnstone’s evidence of surveillance, that Buchanan came and left alone.

Now, your Honours, the transcript which I have appended to the ‑ ‑ ‑

TOOHEY J:   I am sorry, just before you go to that, Mr Knaggs, is that the one ground that you say was pressed but not dealt with or was there another one?

MR KNAGGS:   No, I am sorry, your Honour.

TOOHEY J:    Could you just identified without elaboration.

MR KNAGGS:   Yes, the other one is at page 45 of the application book, the other ground.  Ground E, in the middle of that page:

His Honour failed to direct himself that it was impossible or unsafe to accept -

and then:

(ii)  Harber’s evidence at the hearing that he saw no‑one but the appellant at 18 Raper Street around the 18th March 1993 cannot stand with the evidence (favouring the accused) of Const. Ham -

who was the surveillance officer, your Honours -

that Harber was on the premises at least between 11.45 am and 1.20 pm, a time frame in which some 9 people were seen coming and going at the premises.

That is to say, your Honours, seen by the surveillance officer coming and going at the premises.  Now, your Honours, the importance of those two matters which were totally ignored through a mistake by the Court of Appeal in deciding that they were not issues and were not  ‑ ‑ ‑

BRENNAN CJ:   The Court of Appeal says that the ones that they dealt with were the ones that were pressed.

MR KNAGGS:   Yes, they did.

BRENNAN CJ:   And are you saying that these other two were pressed?

MR KNAGGS:   Yes, your Honour.

BRENNAN CJ:   How do you make that out?

MR KNAGGS:   Your Honour, mainly because I have attached the written submissions by way of adoption that were handed to the Court of Appeal and have the Court of Criminal Appeal stamp on them, to my summary of argument and the written submissions refer to those particular points.  If your Honours could look at page 1 of the written submissions immediately behind the summary of argument as stamped by the Court of Criminal Appeal.  Under the heading, “Page 13.6” at the bottom of page 1 of those written submissions.  “Surveillance By Johnstone” is the heading:

His Honour with respect has not appreciated that the Crown had relied upon a witness - Buchanan - who is seen entering the premises of Sokvari at 4.25pm on 18 March but Buchanan’s own evidence was that he went to the premises in the company of Sokvari who would have been seen by the surveilling officer (Johnstone) if that were the truth.  See amended Notice of Appeal B(f).

That is the first of the two, your Honours. Then as to the second point that the evidence of Harber also could not stand with the police surveilling officer’s evidence.  That appears at page 3 of the same written submissions to the Court of Criminal Appeal at about line 6 under the heading “Surveillance”:

Constable Ham said that he saw Harber go onto the premises and not come out again - as the Crown would have it -

he went on to the premises -

to purchase drugs.  Harber would therefore presumably have seen this entry and exit by others going on -

and, in fact, there were nine people seen by the surveillance officer to go in and out of the premises:

Harber’s evidence, however, was that he never saw anybody at 18 Raper Street except Sokvari -

and then the transcript reference is given.

The reason for his lengthy presence as clandestinely observed by Ham, since it was not drug‑dealing with Sokvari -

that is according to Harber’s own evidence that Sokvari was not a drug dealer -

may well be that he was, in fact, dealing from Sokvari’s home.

That is Harber was dealing from Sokvari’s home.  Then at the middle of the page, your Honours, the passage from the transcript.  Harber was asked if he was charged:

A:  That’s right.
Q:  Possess or supply?
A:  Both.....Guilty.  I pleaded guilty.
Q:  That was in February 1993.
A:  That’s right.
Q:  And he wasn’t a supplier?

meaning Sokvari -

A:  As far as I know, no.

BRENNAN CJ:   Mr Knaggs, looking at your notes of argument that were put before the Court of Criminal Appeal, I would have thought that the Court of Criminal Appeal understood that these were a series of particulars of errors in approaching the facts which the trial judge made and they referred to the ones that they thought had substance in them.

MR KNAGGS:   With respect, that cannot be right when one looks at the way the grounds of appeal were framed.

BRENNAN CJ:   But look at the first one for example.  “Buchanan was in error in identifying the person who supplied him because”, and you have got paragraph (f) in.

MR KNAGGS:   Yes.

BRENNAN CJ:   Now, there might have been plenty of other ways in which Buchanan could identify the supplier; plenty of other reasons why he was able to.

MR KNAGGS:   Your Honours, Buchanan’s evidence was very important in the first place to both Judge Grogan in the District Court and in the Court of Appeal as a circumstantial fact that made Sokvari the supplier of these drugs that were found in this quantity. 

Your Honours, the point that was squarely raised in the appeal is that the judge could not, as we say he did - and I can take your Honours to where in the judgment this occurs - could not say, “I accept Buchanan’s evidence that he went to this address on that date and was supplied with drugs by Sokvari” and also say, as his Honour said, “I accept Officer Johnstone’s evidence that Buchanan came on his own and went in and got the drugs” because Buchanan had said, “Sokvari and I had met at a pre‑arranged spot.  We walked together to the house at 18 Raper Street.  We walked together down the side passage.  We went together to the front door and I was there supplied with drugs”. 

His Honour says he accepts that from Buchanan.  His Honour also says that he accepts from the police surveillance officer Johstone that Buchanan did not come with Sokvari, that Buchanan came on his own, was seen to disappear down the side passage and come out again and the surveillance officer could not see what he did.

BRENNAN CJ:   In terms of identification of Sokvari, whether it be one or the other, there is no reason why Sokvari could not have been identified by Buchanan, is there?  Buchanan was there.  Buchanan presumably saw Sokvari either in his company outside and going inside or when he went inside.

MR KNAGGS:   Your Honours, we simply say that a judge cannot simply say “I accept Buchanan’s evidence” that he saw Sokvari and identified him when Buchanan has said, “We walked together into the house” and at the same time say he accepted the surveillance officer’s evidence that Buchanan went all on his own to the house.  I mean, it is too much, in our submission.  It cannot be that the judge thought to himself in the District Court, “Well, it is not a point worth making whether Buchanan went with Sokvari or whether Buchanan went on his own”.  We say that the judge should have at least recognised the discrepancy and then said, “Well, if Buchanan is lying because I found the police officers were telling the truth about going with Sokvari and if Buchanan has been arrested on the same day for receiving drugs or purchasing drugs, I, as a District Court judge” the judge should have said, “cannot just turn a blind eye to (a) the likelihood that Buchanan might have been doing something self-serving in naming Sokvari at all and (b) Buchanan might well have been telling a lie because the officer said he was telling a lie, in effect.”

BRENNAN CJ:   Assuming that is right, where is the special leave point?

MR KNAGGS:   That Sokvari has been convicted in circumstances where neither the judge nor the Court of Appeal have recognised that Buchanan’s evidence naming Sokvari as having been the supplier on that day had to be scrutinised very carefully and had to be seen to be potentially dangerous to accept.

Your Honours, the other point about Buchanan that we also make part of our application to your Honours today:  your Honours, at the summary of argument, if I can take you back to that, at page 3, paragraph 4, there is a heading, “Prior inconsistent statements”.  Now, your Honours, the Court of Appeal did list this point as one of the live issues so it is not in the same category as the last matter.  We say although the Court of Appeal does include this ground, the Court of Appeal has not clearly dealt with the submissions.  It was submitted that Buchanan’s evidence could not just be evaluated on the ordinary principles of prior inconsistent statements where the judge does not necessarily have to believe either the earlier or the later statements.

The point here, your Honours, is that Buchanan’s evidence, quite apart from the difference between Buchanan and the police officer about entry on the premises, included first of all an admission that he had made a statement earlier to the police in which he said, “Sokvari and I both went to the premises”.  He changed his mind between whether he accompanied Sokvari to the premises on that day and whether he went on his own to the premises at 18 Raper Street on that day.  Judge Grogan simply said, “My duty is simply to approach that on the ordinary rules of prior inconsistent statements.”

The part of his judgment in which he deals with the conflicting statements by Buchanan are at pages 21 and 22 of the application book.  His Honour says, looking at line 15 of page 21:

Whether there is an inconsistency in what the witness said in a prior occasion and what he said in his evidence to me, is a matter of fact to determine.  Here there are several inconsistencies, and the legal principle is that the prior inconsistent statement is not evidence of the fact asserted in it.  It is evidence relevant only to the credit of the witness.  This means that it may be considered by me in deciding whether I accept that what the witness said to me in this Court is the true version.

I am entitled to use my common sense - - -

Now, your Honours, that point of the application to your Honours is that Judge Grogan should not simply have looked at the prior inconsistent statements by Buchanan under the ordinary rules of the way a court deals with a prior inconsistent statement.  He should have, again, as with the last point I endeavoured to make to your Honours, directed himself, “Here we have somebody who has shown a predisposition to say” - as the case was, your Honours - “I have been dealing with this man for two months” and then to change it at the hearing and say, “I’ve only ever dealt with him twice, two weeks ago and today”.  There are, as his Honour says, several other inconsistencies in his statement.

We say that the District Court and the Court of Appeal should have recognised that although this man was not in the position of an ordinary informer, nonetheless, as somebody who was arrested on the same day as Sokvari and somebody who had shown a predisposition to give evidence against Sokvari in a police station which he later admitted was a lie, his evidence had to be scrutinised with special care. 

The case which we say should be followed in that respect is the case of Pollitt 174 CLR 558. Pollit says, at 614, his Honour Justice McHugh:

If the evidence of a witness is potentially unreliable, however, the jury must be warned of the dangers of convicting on that evidence even though the witness does not fall into one of those categories of witnesses in respect of whom the trial judge must warn the jury that it is dangerous to convict -

so, that is the second point, your Honours, that there was a misdirection about the danger or a failure to warn his Honour’s own self about the danger of accepting that evidence of Buchanan.

The third and final point, your Honours, is that as to the witness, Harber, again, his Honour failed to recognise that whereas Harber says, “I was never supplied with drugs by Sokvari, he was not a dealer”, the surveillance officer whom his Honour accepted as telling the truth said that Harber was in the premises for more than an hour and some nine people came and went in the meantime.  Again, that point was raised as something which his Honour should have scrutinised before he accepted Harber’s evidence which was crucial in the hearing and his Honour did not.  His Honour did not draw his own attention to the discrepancies between Harber and the officer and the Court of Appeal simply stated that that point had not been pressed at the hearing whereas it certainly was.

Your Honours, they are the points that we say are special leave points.  We say there are many other points in the hearing that, if your Honours were disposed to make any order than dismissing the application, would certainly make the decision unsafe, but they are the ones which we say the Court should determine to be against the interests of the administration of justice; not that they are earth-shattering points but that this Court should not stand by and see somebody in gaol when a Court of Criminal Appeal having said these points were pressed when they were pressed.

BRENNAN CJ:   Thank you, Mr Knaggs.  We need not trouble you, Mr Keleman.

The applicant seeks to erect some disparities in the evidence of witnesses at the trial into a question of importance warranting a grant of special leave because the Court of Criminal Appeal did not consider these disparities though they were raised in the argument on appeal to the Court of Criminal Appeal.  The disparities are in truth no more than factors that might have been referred to in determining the credibility of the witnesses.  It is not possible to predicate of the Court of Criminal Appeal that it overlooked distinct issues that had to be determined in order to dispose fully of the notice of appeal.  There is no question of principle involved in this case.  Accordingly, special leave will be refused.

AT 3.05 PM THE MATTER WAS CONCLUDED