Sood v The Queen

[2007] HCATrans 703

[2007] HCATrans 703

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S386 of 2007

B e t w e e n -

SUMAN SOOD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 12.43 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MS M.A. KUMAR.  (instructed by Mitchell Lawyers)

MR J.V. AGIUS, SC:   May it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

HAYNE J:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, the first issue of general importance raised by this application is the meaning of the term “probative value”.

HAYNE J:   Why should we interrupt the process of the criminal law at this point?

MR ODGERS:   Our response to that is that there is no existing trial.  The jury in the second trial was discharged at the request of the Crown.

HAYNE J:   Why should we take on this matter at an interlocutory stage?

MR ODGERS:   The primary reason is that we will not be able to challenge the decision of the Court of Criminal Appeal if the matter proceeds to trial and the applicant is convicted because she will be appealing against what might be called discretionary decision of a trial judge, who will no doubt be applying the decision of the Court of Criminal Appeal, but we will be constrained by House v the King principles in respect of that challenge.  We will not be able to challenge directly the ruling of the Court of Criminal Appeal in this case.

In our submission, bearing in mind that, if the appeal succeeds, it is very unlikely that the trial would proceed given the fact that this is really, in substance, the only evidence the prosecution has of an element of the offence, that while it is an unusual situation to grant leave at this stage, that it is an appropriate case.

HAYNE J:   Can you point to any decision of this Court that would support a grant of leave at this stage of this process?  There is a stream of authority that would run against you, I think, is there not, Mr Odgers?

MR ODGERS:   It is true to say that it is generally regarded as exceptional.

HAYNE J:   No.  Is it exceptional?  I think it is rather harder than that, is it not?

MR ODGERS:   I am not aware of the precise formulation of the authority in respect of that, your Honours.  I have had experience in the past of at least one matter where we tried and failed.

HAYNE J:   You are right.  It is exceptional.  I have in mind what Justice Dawson said in Re Rozenes; Ex Part Burd:

This Court has repeatedly indicated that the fragmentation of a criminal trial –

I understand what you say.  There is no trial which has begun –

by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances.

MR ODGERS:   Yes.  In my submission, there are a number of factors that make this exceptional.  One is the importance of the issue, which is an issue that occurs every day in criminal trials in jurisdictions where the uniform evidence law applies, that is, where an accused seeks to have evidence excluded under what is called the fairness discretion, probative value prejudice.  It is an issue that arises every day.  Let it be assumed that this matter proceeds to trial, if assuming she is convicted, when then have to go to the Court of Criminal Appeal and then come, some time later, before this Court.  We are looking at potentially years before this issue could be properly resolved.

KIEFEL J:   How would a resolution of the matter in this case, however, provide some point of general guidance or principle toward these other matters, apart from encouraging them to make the application that you have?

MR ODGERS:   Your Honour, if the Court of Criminal Appeal has adopted a fundamentally misconceived approach to section 137 and, more broadly, to the definition of “probative value”, which of course is a provision which recurs throughout the Evidence Act, then that is the law in New South Wales and indeed presumably in other jurisdictions of Australia where the uniform evidence law applies and Courts will be bound to apply it.  The result will be, we say, that essentially section 137 has become a dead letter, that it will be almost impossible for the defence to be able to persuade a judge that evidence should be excluded under that provision, because of the very narrow approach taken to the concept of probative value, because of the analysis which says the judge is required to proceed on the basis of the prosecution case thereby effectively undercutting the independent role of a trial judge in a criminal trial in making determinations which are designed to ensure that there is no miscarriage of justice.

We say that this is of profound importance, both the section 137 criminal trials but also for many other provisions of the Evidence Act and indeed in civil proceedings because, of course, probative value is a factor that must be considered by the court under section 135, which is that general discretion to exclude evidence which is where probative value is substantially outweighed by risk of prejudice.

HAYNE J:   Where is the error of the Court of Criminal Appeal best identified or exemplified in their Honours’ reasons?

MR ODGERS:   Pages 41 and 42.  Down the bottom of page 41 in the second‑last sentence:

The argument therefore assumes that the trial judge is entitled to consider interpretations of the evidence other than that advanced by the Crown, and that questions relating to the weight of the evidence sought to be adduced are legitimate factors in assessing probative value.  In my opinion, the argument must be rejected for the following reasons.

Then over the page her Honour refers to the definition of “probative value”.  Then she correctly, with respect, says that that definition must be considered in the context of section 137.  Then her Honour says:

Section 137 requires the assessment of the probative value of evidence to be adduced by the prosecution, that is, the probative value of that evidence in the Crown case, unqualified by competing constructions or inadequacies that might be advanced by the defendant or contrary evidence that might be led in the defendant’s case.

She refers to Shamouil and, importantly, section 5F(3A) of the Criminal Appeal Act.  Her Honour and, indeed, it appears the Chief Justice of New South Wales in Shamouil, appear to have taken the view that under 137 the court is required to proceed to apply that provision in the context of the prosecution case and in some way is bound by the way the prosecution puts its case.  So that, even though those words do not appear in 137 – all that 137 talks about is evidence adduced by the prosecution ‑ ‑ ‑

HAYNE J:   But is the point any more than a temporal point?  The ruling is being made at a time before the defendant has announced his or her cause – indeed often before a word has been said in evidence.

MR ODGERS:   Yes, quite.  There are two separate issues here.  One is whether or not the judge is bound by the Crown case and what is being said here is that the judge is.  The judge must not consider alternative inferences from the evidence which are not contended for by the prosecution.  This is a proposition that the judge must only consider inferences contended for by the prosecution.  We say that there is nothing in 137 which imposes such a limitation.

I appreciate your point, your Honour, about the stage of the proceeding.  The first point I make is, of course, that there was a voir dire in this case, evidence was adduced, the judge made a ruling on the evidence, but there is abundant authority in New South Wales – at least in three decisions – which have held in similar cases a judge is entitled to look at the position an accused is placed in. 

Step back here.  The Crown says, We have this evidence which shows that the documents were found in the bins.  You infer that she put them there and you infer that she did it because she was conscious of a guilt of Medicare fraud”.  That puts the accused in the position of either not contesting that or attempting to adduce evidence which raises alternative explanations.  The defence sought a voir dire here to put that evidence before the judge.  He concluded that the overwhelming inference was the innocent one. 

So we say that 137 allows for a situation where an accused is put in a catch 22 position; either you simply leave the inference to be drawn by the jury or you adduce evidence which may be prejudicial, which puts an alternative complexion on the situation.  The point is that there are three decisions of the New South Wales Court of Criminal Appeal which accepted that if forensically the defence has to put evidence to advance an innocent explanation, that that is something a judge can consider in applying 137. 

With respect, it must be so because otherwise how can the risk of miscarriage of justice ever be properly dealt with by a trial judge?   How can a judge determine whether or not to allow the jury to hear the evidence without knowing what it is that puts it in a different light and reveals that the inference the Crown advances is indeed one which is very weak in circumstances where to do that the defence has to bring in potentially prejudicial material?  There is no realistic way that this provision can work without that process of analysis.

It is important also to understand this, your Honour.  Section 135 talks about balancing the probative value of the evidence against the unfair prejudice arising from the evidence.  Section 137 does not do that.  It balances the probative value of the evidence against the danger of unfair prejudice but not limited to the evidence led by the party that is sought to be excluded.  That difference in formulation supports a conclusion that it is proper for a trial judge to consider what will the defence have to do here or what is the position the defence is put in here in responding to this problem.

HAYNE J:   What is the unfairness that you say follows from the fact that the prosecution is trying to build up a case which, if unanswered, proves guilt?

MR ODGERS:   The unfairness in this case arises from the evidence that the defence will be compelled to adduce to advance ‑ ‑ ‑

HAYNE J:   Namely, in this case?

MR ODGERS:   We have summarised it in the application book – evidence that a doctor who had worked with her had made allegations of tax evasion against her, she failed to pay tax on cash in the practice.  Secondly, that the HCCC was investigating that allegation a month before this search.  Thirdly, that at the very day of the search she had $160,000 in cash in her home and, fourthly, the very fact that she, on the Crown case, put these documents in the bin.  What are the documents?   The documents are cash receipts. 

Now, that is ambivalent on the question of Medicare fraud and tax fraud but at the end of the day, if the jury were going to conclude that she must have put them there – and we have conceded that that is certainly a plausible outcome – the jury is in a situation where they must conclude  either she put them there because she was aware she was guilty of Medicare fraud or she put them there because she was very worried about being prosecuted for tax fraud.  That is a very unpleasant situation for any defendant to be in. 

In circumstances where the trial judge concluded that the overwhelming inference was what I will call the innocence scenario but plainly is not completely innocent, there is an obvious danger that a jury will conclude, “Well, whichever it is, she is a dishonest person”.  Even if she did not put them there because of Medicare fraud, the element that we have to prove here is dishonesty.  That provides powerful evidence that she is the sort of person who would commit these alleged crimes.

This trial judge concluded that it would be very prejudicial to the defence for the jury to know that there was all this material surrounding the circumstances suggesting tax evasion.  I appreciate that the Crown says, “We are not saying that we can prove that she was evading tax”, but, with respect, the danger is obvious, that the jury will draw an inference of that kind or will engage in the reasoning I have just articulated and that it will prejudice the applicant.

We say there are numerous questions of general importance here.  One is the meaning of “probative value”, not just section 137 but throughout the Evidence Act.  Secondly, the proper application of 137 which, as I say, in criminal proceedings every day in New South Wales and in Tasmania and in the ACT and eventually in Victoria and Western Australia, will be ‑ ‑ ‑

HAYNE J:   No further territorial ambitions, Mr Odgers?

MR ODGERS:   It has only begun, your Honour.  There is also the question of assessing unfair prejudice where the defence – where the prejudice does not arise from the evidence itself but from how the defence will have to respond to it.  As I say, three decisions of the Court of Criminal Appeal have accepted that that is appropriate for a judge to take into account.  This decision holds that is it not.  This decision says, well, that is a forensic choice for the accused, so too bad, too bad.  “You are put in this wonderful position as an accused.  You can either not call evidence which is prejudicial, so what is going to happen?” 

The jury is going to say, “Well, the Crown says she must have put them there because she was afraid of Medicare fraud.  There is no alternative we can see.  There is nothing suggesting any other possible explanation”, so the jury will infer, inevitably, that she did it because she was conscious of her guilt of the crimes charged.                    They say, “Well, that is all right, you have a forensic choice”.  So the only other option is to lead all this evidence suggesting an alternative explanation and too bad that that is going to be potentially prejudicial to you.  That is not a basis, on this analysis – I repeat myself.  The result of this decision ‑ ‑ ‑

HAYNE J:   There is no need to do that.

MR ODGERS:   I know, your Honour, but I cannot resist myself and I still have a minute.  The result of the decision is to completely minimise the concept of probative value and to neuter the analysis of prejudicial effect.  The consequence; it will be almost impossible from now on in those jurisdictions for that power that judges have to prevent against miscarriage of justice to be exercised in favour of an accused.  If that is something that is acceptable, then so be it.  Those are my submissions.

HAYNE J:   Thank you, Mr Odgers.  We will not trouble you, Mr Agius.

In Re Rozenes; Ex Parte Burd (1994) 68 ALJR 372 at 373 Justice Dawson said:

This Court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances (See e.g. Reg v Iorlano [1983] HCA 43; (1983) 151 CLR 678 at 680; Yates v Wilson (1989) 168 CLR 338 at 339; and see also McNamara v The Queen (1978) 20 ALR 98; Reg v Garrett (1988) 48 SASR 435 at 451). As Brennan J said in Beljajev v Director of Public Prosecutions ([1991] HCA 16; (1991) 173 CLR 28 and 32), “The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial.”

No sufficient reason is demonstrated in this case for departing from that general rule.  Especially is that so when the particular decision sought to be challenged is as fact specific as this is.  Special leave to appeal is refused.

MR ODGERS:   If it please the Court.

HAYNE J:   Court will adjourn until 2.00 pm.

AT 1.03 PM THE MATTER WAS CONCLUDED