Spence v The Queen

[2016] HCATrans 285

[2016] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M78 of 2016

B e t w e e n -

HARVEY SPENCE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2016, AT 10.38 AM

Copyright in the High Court of Australia

MR R.F. EDNEY:   May it please the Court, I appear on behalf of the applicant.  (instructed by Emma Turnbull Lawyers Pty Ltd)

MR G.J.C. SILBERT, QC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by the Solicitor for Public Prosecutions)

FRENCH CJ:   Yes, Mr Edney.

MR EDNEY:   Your Honours, this application raises for consideration a novel, significant and important point of principle in the application of the law of evidence under the Uniform Evidence regime and the relevance, if any, of the grant of certificate to a witness in a criminal trial under 128 of the Evidence Act.

The basal contention or the essential argument on behalf of the applicant is that the grant of the certificate, following the assertion of the privilege against self‑incrimination, is not evidence, not relevant to the task of the jury, let alone should be permitted to be used in a closing submission that a witness is reliable or, conversely, unreliable. 

To develop those submissions further, if I could take the Court, please, to the appeal book and the Court of Appeal reasons, which are essentially located at paragraphs 81 to 87 of the decision in Spence.

GORDON J:   In relation to those propositions you have just set out and described as non‑exhaustive, in what respects are they wrong?

MR EDNEY:   If I can do it this way:  proposition 1 and 2 ‑ ‑ ‑

GORDON J:   Are wrong or right?

MR EDNEY:   Are right, are correct.

GORDON J:   Which ones are wrong?  Just tell me which ones are wrong, which ones you do not like and why?

MR EDNEY:   Well, it starts to go wrong at proposition 3 because that refers to section 132 of the Act which, as your Honours would be aware, indicate or the statute states that that type of taking of a privilege against self‑incrimination, exercising that, should be done in the absence of the jury.  Now, the Court of Appeal, as your Honours can see, when they deal with this particular proposition, say this:

Once a certificate is granted, however, s 132 of itself presents no obstacle to the existence of the certificate being revealed to the jury.

GORDON J:   What is wrong with that?

MR EDNEY:   In my submission – and there is some limited authority from New South Wales to support the argument that it is contravention of section 132 to reveal to the jury the fact that a witness has been granted a privilege against self‑incrimination and therefore a certificate and that, of course, is the decision of R v Parkes [2003] NSWCCA.  The reason why it is wrong, in my submission, as a matter of principle – and certainly in that part of the decision of the Court of Appeal there is no reference to authority because indeed there is very limited authority on this issue – there is no, from our researches, any High Court authority, whether or not section 132 mandates that not only should the taking of the privilege be in the absence but it should not be a matter which is disclosed to the jury as the fact finder.

If I can say this about the third proposition:  the problem with a jury

being informed of the certificate is that – and I pick up really what was said by Justice of Appeal Batt in Roberts, which is set out in paragraph 80 of their Honours’ reasons at page 169 of the appeal book – it does not provide the jury with any evidential material, it does not serve any other useful purpose and it might tend to distract the jury from their proper task.

GORDON J:   Are there not really two questions?  The first is whether or not you are right, in terms of absoluteness, that it is not a matter for the jury either in their presence or otherwise and that, arguably, depends upon the facts and how the trial transpires, which is what happened here, and second, is the question of the adequacy of the direction, if it is disclosed to the jury?

MR EDNEY:   Well, in my submission, when I deal with proposition 7 of the court’s reasoning, your Honour Justice Gordon, with that particular matter and what I say in respect of the inadequacy of that particular direction.  But insofar as the propositions are concerned, it starts to fall, or the error commences, in my submission, at proposition 3.  If I can then take your Honours to the heart, really, of the reasoning of the Court of Appeal and that is proposition 4.  The court says, and accepting propositions 1 and 2:

although the taking of the privilege against self‑incrimination cannot affect credit, depending on the circumstances of a given case, the grant of a certificate under s 128 may affect credibility.  Whether it has that capacity will depend on whether knowledge by the jury of the protection afforded to the witness by the grant of the certificate is capable of bearing upon the credibility of the evidence of the witness.  Hence, where there is an attack on credit, whether of a general nature or directed to a fact in issue, it may be relevant to a jury’s assessment of credibility to know that a witness has been granted a certificate and its effect.

I will deal with the final sentence on proposition 4 in a moment.  But just staying there for the moment, the rhetorical question to be asked is:  how and in what circumstances the assertion of privilege against self‑incrimination and then the grant of certificate, how can it bear upon, possibly, the credibility of a witness?

GORDON J:   Is that not dealt with in paragraph 86, under their fifth proposition?  That is, there is no absolute proposition that is either in or out?

MR EDNEY:   Well, if Spence remains the law, it will develop over time, but submissions I would expect would be made that a witness who takes a certificate and it is revealed to the jury could be used as was by the prosecutor in this case, as a way of buttressing the credibility, but also could be used to suggest that the witness is unreliable.  Now, in my submission, in paragraph 85 the Court of Appeal does not explain how the certificate and revelation to the jury can assist them in their fact‑finding task.

FRENCH CJ:   So why is it that defence counsel sought an explanation of the grant of the certificate?

MR EDNEY:   I will not pretend to know the reasons why counsel did so, but it may have been to make the jury aware that he may be, perhaps, unreliable in some ways by reference to the certificate.

GORDON J:   And you have to deal, I think, with the six propositions which appear in paragraph 90 on page 171, where the Court of Appeal goes through and identifies, in a sense, what happened as a matter of fact at the trial.

MR EDNEY:   Yes, I will deal with those in terms of whether or not there has been a substantial miscarriage of justice.

GORDON J:   Well, it is not just a substantial miscarriage of justice; they go to the question I put to you before and that is, in the circumstances of this trial and the way in which the evidence was led, the certificate was disclosed.  The privilege was taken and the certificate was disclosed in front of the jury, and then what followed was, arguably, forensic decisions by defence counsel about how it would be treated and addressed by the trial judge.

MR EDNEY:   Yes, and if I can say this:  insofar as how it was addressed by the parties, the prosecutor relied heavily on it to make, in my submission, a novel and without precedent submission relying on the grant of a certificate.  A personal assertion of a right by a witness was somehow placing him in a special category who was to be believed.  That, in my submission, is the error of principle.

FRENCH CJ:   But the defence counsel put it in play, as appears from page 150 and 151 of the application book.  The jury, being aware that the witness had been granted a certificate, which would provide in the words of the trial judge – I am looking at the bottom of page 151:

protection that insofar as he or she gives evidence about things that would otherwise incriminate him or her, that evidence can’t be used against him or her in other proceedings.

could draw its own inferences, without even the help of the prosecution, that the witness would feel free to – unencumbered by fear of the evidence being used against him at a later stage.  I mean, once that is in play what difference does it make that counsel for the prosecution makes the perfectly logical proposition that it is a matter which they can have regard to?

GORDON J:   It goes to one more matter and it was the subject of cross‑examination by defence counsel, as set out in paragraph 51 at page 153.

MR EDNEY:   And if I can say about that, in a very, very, limited way.  There was no argument advanced by counsel for the applicant in his closing address about it, no argument at all about the fact that the witness had been granted a certificate and was revealed to the jury.  This was a matter which the prosecutor – and your Honours perhaps do not have the whole of the closing address, but your Honours would be aware from the facts that there were a number of criminally concerned witnesses in this matter.  Todi Muja and WR were the key prosecution witnesses.  This trial went in excess of six weeks.  The prosecutor, in his closing address, described Mr Nguyen as an important witness and he was important to the Crown case as it directly affected whether or not the motive described by the defence was true or not and insofar as his importance as a witness he was prominent and he was made prominent by the prosecutor. 

As I say, there is no authority and no example where a prosecutor or a defence counsel has used the grant of a certificate as a means of hiving out that witness as someone likely to be more credible, and before, your Honour Justice raised with me proposition 5 and before I go to that, in paragraph 85, of course there is the Western Australian authority Trudgian and the grant of certificate there, different statutory regime but similarly concerned with privilege against self‑incrimination, makes a witness unreliable.

So, in my submission, there is a real question of principle to be decided about this issue.  But insofar as proposition 5 is concerned, asserting the privilege against self‑incrimination and having a certificate is different to an indemnity and it is different to an undertaking and a discount that you receive on sentence.

GORDON J:   What would you have a trial judge do if the certificate is revealed?  Is that not what we are dealing with here?

MR EDNEY:   Well, the certificate is revealed but it is also the manner in which it is then advanced on behalf of a party.  The question of privilege often arises in the course of a criminal trial and sometimes it is dealt with in the presence of the jury, sometimes in the absence.  But to then make a submission that that can be used as a way of buttressing the credibility and
the truthfulness of a witness, in my submission, is novel and it is without precedent.  Their Honours’ seven propositions, you will note, are not really reference to authority because there is no authority really on this issue and that is why it is an appropriate vehicle for special leave because it will affect all jurisdictions with a Uniform Evidence regime, which are multiple in the Commonwealth.

But if I can go back to the problem with the fifth proposition, a certificate is not equivalent to an undertaking or indemnity.  The Court of Appeal, as I indicated in the outline of argument, appeared to equate them.  Indemnity and undertaking are both transactional in nature.  They provide a benefit to the witness.  The indemnified witness can never be prosecuted, ever.  The person who gives the undertaking to give evidence gets the discount.  The person who has a certificate – all that is vested to them is the fact the evidence will not be used against them.

FRENCH CJ:   Well, I am not quite sure what distinction is being drawn there.  It may be just a matter of degree as to the extent to which the logical connection between, say, use immunity and credibility and transactional immunity and credibility – the strength of the connection between each of those two things is a matter of degree rather than a matter of qualitative difference, is it not?

MR EDNEY:   I accept there is some force in what your Honour Chief Justice French says, remembering of course that an indemnified witness, a person who receives an undertaking or a discount on their sentence, receives a very special warning when the judge directs the jury about their potential for unreliability.  That distinguished, in my submission, that type of witness from a person who is merely being granted a certificate to protect their own interests in pending possible prosecution.

Proposition 6:  there has been, in my submission, some discussion today about, and your Honours will appreciate my position, that it is contrary and an error of principle for a counsel, for a prosecution or a defence witness to make a submission on the basis that a person has a certificate.  Insofar as, finally, the proper directions, the directions at proposition 7 are in conformity with the Act, section 128. 

It also adds the issue of no protection against perjury.  But there is no guidance to the jury about how to use the fact that the witness has asserted privilege, the grant of certificate and the argument advanced by the prosecution.  There are no directions at all as to what a jury is to make of that evidence in light of an argument made about the certificate.

Insofar as the final paragraph, in my submission, defence counsel, although raising the issue, did not make it the centrepiece, like the prosecutor did in his closing address, of the importance of Mr Nguyen’s evidence.  In my submission, there has been an error – there is an error of principle that requires proper determination by this Court.  As the Court pleases.

FRENCH CJ:   Yes, thank you.  Yes, Mr Silbert.

MR SILBERT:   If the Court pleases, this trial was one that was replete with section 128 certificates.  There were section 128 certificates granted to WR, Short and Ashley, and were all utilised by defence counsel in support of the defence case.  Now, I suppose the basic proposition here is the Court of Appeal concluded in the present case that it is impossible to conclude there has been any substantial miscarriage of justice.  So we are looking at orders that were correct.

My friend is right:  there is no authority.  Whether the Court deems this an appropriate vehicle for an exegesis on section 128 certificates is really the issue facing your Honours.  We say that there is no substantial reason why a grant of special leave should be given in this case, given that the orders below are correct and that in the circumstances of this case it is not a suitable vehicle for the grant of special leave.

One gets into areas about indemnities.  It is submitted that it is perfectly proper for the status of a witness, once it becomes known to the jury, for it to be explained to the jury as to what the effect of it is.  I do not know that there are any great philosophical differences or practical differences – there might be philosophical differences between an indemnified witness and a witness holding a section 128 certificate.  Both of them are, effectively, immune from prosecution, transactional and derivative. 

It seems that, keeping that matter for the jury – once it becomes known to the jury, it seems proper for a judge to explain to the jury the effect of a section 128 certificate.  It seems also proper for a remark to be made, once it is in evidence, once it is explained by the Crown, as to what use can or cannot be made of it.  In our submission, we resist the application on the basis that it is not an appropriate vehicle for the grant of special leave.  Now, subject to any questions from your Honours, there is nothing further I would wish to say.

FRENCH CJ:   Yes, thank you, Mr Silbert.  Mr Edney.

MR EDNEY:   There is nothing in reply, your Honours.

FRENCH CJ:   Yes, in our opinion, having regard to the conduct of the case below, this is not a suitable vehicle for the determination of the point of principle which is asserted.  Special leave will be refused.

AT 11:00 AM THE MATTER WAS CONCLUDED