Stewart v The Queen; Piper v The Queen

[1994] HCATrans 377

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M114 of 1993

B e t w e e n -

BRIAN JOHN STEWART

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M116 of 1993

B e t w e e n -

GARY EDWARD PIPER

Applicant

and

THE QUEEN

Respondent

Stewart 1 10/6/94

Applications for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 11.47 AM

Copyright in the High Court of Australia

MR H.J. KABLE. QC:  May it please the Court, together with

my learned friend, MR. D. GRACE, I appear for the

applicant Stewart, (instructed by Grace Partners)

and for the applicant Piper. (instructed by

Patrick w. Dwyer)

MR B.D BONGIORNO, QC:  I appear with MS C.D. DOUGLAS for

the Crown in each matter. (instructed by the

Director of Public Prosecutions (Victoria))

MASON CJ: Yes, Mr Kahle.

MR KABLE:  May it please the Court, in order to emphasize

the point that we submit warrants the grant of

special leave, could I invite Your Honours'

attention to page 222 of volume 2, which is page 17

of the joint judgment of Their Honours

Justices Marks and Harper, and in particular to the

paragraph commencing "If necessary". Could I

invite Your Honours to read that paragraph to

yourselves.

GAUDRON J: That is not, of course, what the trial judge

did, is it?

MR KABLE:  We would say that the trial judge failed to

exercise the discretion relating to the weighing of

the prejudicial effect of the evidence against the

probative value and I would take Your Honours to

his ruling in a moment in order to support that

contention. But what we say is that the Full

Court, in the first and the third sentences in that

paragraph are, with respect to Their Honours,

demonstrably wrong and not in accordance with this

Court's judgment in Domican. And we say that error, and the importance of it, is highlighted by

the Crown's submission in this matter, and I take

Your Honours to page 284 of book 2 and to the

submission appearing under the words "Ground (c)"

which, so it would seem, we would say, from a

reading of that argument that the Crown's view of

what the Full Court held is equally wrong and that

becomes important when considering whether or not

the decision of the Full Court is in fact authority

for that erroneous proposition. I will come back

in a moment to deal with the ruling of the learned

trial judge.

We would say that in order to appreciate how

wrong the majority of the Full Court's judgment was

can I take Your Honours to page 226 and invite

Your Honours' attention to that page and, in

particular, beginning at line 3 to the bottom of

the page, where Their Honours seem to be saying,

with respect to them, that this Court's decision in

Domican was neither in accordance with practice nor

experience, when the unambiguous statement of this

Stewart 2 10/6/94

Court in Domican, at page 561 of the Commonwealth

Law Report, is to the opposite effect.	Now, the
reason - - -

MASON CJ:  It is a pity that the Full Court here expresses

itself in this way but, ultimately, how does it

affect this case?

MR KABLE:	Your Honour, I propose to answer that question, but I just wish to say one sentence as to why I
have taken the Court to this, prior to answering
the question. It affects this case because we say
that the learned trial judge, in his ruling which
commences at page 36 in book 1, did not give
consideration to the discretion to exclude the
evidence if its prejudicial effect was such that it
outweighed its probative value or, to put another
way, if the evidence was such that it was
irrationally impressive.

GAUDRON J: Was there some other purpose to the voir dire

examination?

MR KABLE:  Yes, there was a suggestion of police impropriety

and His Honour made a finding that there was no

police impropriety, the allegation being that the

circumstances resulting in the viewing of the

suspects at the police station in some way had

impropriety. So the discretion was sought to be

activated on two bases: one, that it was unfair to

the accused because of that collection of

circumstances, even if the viewing of the suspects

at the police station had not been contrived that

it was unfair; and secondly, the discretion now not

disputed to exist of comparing the prejudicial
effect of the evidence with its probative

value - - -

DAWSON J: The whole purpose of the - not the whole purpose

in light of what you said - but the main purpose of

the voir dire was to determine the admissibility of	the evidence, and the only basis on which it could
be excluded was the basis that it was too weak and
therefore its prejudicial effect may outweigh its
probative value. What other basis could there be?

MR KABLE:  It could have been excluded on the basis it was

unfair to use it because the conduct of the police

or the circumstances in which the viewings took

place was such that, independently of the weighing
process between the prejudicial effect and

probative value, it would have made the evidence

unfair. If, for example - - -

DAWSON J: What, a sort of Bunning v Cross - - -

Stewart	10/6/94
MR KABLE:	More a Burchielli-type unfairness; that is if it

was a contrived placing of a person where they must

inevitably have been seen at the interview.	So
there were the two discretions -

DAWSON J: But it is quite clear that the judge was

assessing the strength of the evidence, and that

was the - - -

MR KABLE:  Your Honour, that is an interpretation that can

be placed on His Honour's ruling. It is

interesting to note that throughout the ruling once

His Honour observes that the facts and the

circumstances relied upon by counsel for each of

the applicants were matters for the jury, but

His Honour involves himself in no weighing up

process, nor does he consider whether the evidence

sought not to be admitted - or sought to be

excluded, more accurately - in the exercise of the
discretion had the capacity to be irrationally

impressive.

What we would submit is that a reading of that ruling shows that there is regular attention to the

notion of the police impropriety but not once does

the judge make any observation in the course of the

detailed ruling which would indicate a weighing up
of the weaknesses in the evidence with the

probative value.

GAUDRON J:  Everything is directed to that, Mr Kahle. I

have just got it open here at page 39.

Neither of them had any expectation of seeing

any alleged offender -

That does not go to the unfairness; that goes overall to whether the evidence has got probative

value.

MR KABLE:	The answer that I give Your Honour as to that is that there is not a weighing up process in respect of that evidence. When you look at the finding on
page 39, the actual critical passage of which
commences at line 10, His Honour says:

In my opinion that evidence by the

witness, Heath, is evidence which is proper to go before a jury. I do not intend, therefore,

to exclude that evidence including any

evidence by the accused should he be asked

during the trial to identify the accused

Stewart.

DAWSON J: Then he says "it would not be unfair to that

accused".

Stewart 4 10/6/94

MR KABLE:  I have not disputed, and do not dispute, that

they say it would not be unfair. My submission is

that His Honour had two tasks which was to weigh up

whether the circumstances in which the

identification evidence came to exist would make it

unfair to use the evidence and whether the fact of

the evidence having been obtained in those

circumstances would activate the second discretion.

My submission is that there is not anything in His

Honour's ruling which shows that he applied his

mind to that second discretion.

DAWSON J: That is one point. And the other point is that

he was not entitled to have regard to the other

evidence - or at least the Full Court was not

entitled to.

MR KABLE:  Yes, Your Honour. I acknowledge that His Honour,

in reaching the ruling that he did, (recognizing

the criticism that I have made of it), did not do

what the Full Court either did or appeared to do,

and that His Honour did not seek to allow this

evidence to be pulled up by other Crown evidence,

whereas -

DAWSON J:  Why can you not do that? Why can you not have

regard to the other evidence? Is there something

in Domican that says you cannot?

MR KABLE:  As I would read, Your Honour - can I invite

Your Honour's attention to page 565 and to the long

paragraph commencing "As the learned Acting Chief

Justice pointed out", and rather than read that

passage aloud, invite the Court to read that

paragraph to yourselves.

GAUDRON J: That is concerned with the jury's task, though.

It does not have anything directly to say as to the

question of admissibility or the exclusionary

discretion.

MR KABLE:  Your Honour is absolutely correct, and that is

what we say the special leave point is in the case,

as to whether those observations apply - - -

GAUDRON J: Yes, but your special leave point will only

arise in the event, will it not, that you can make

good your proposition that the trial judge did not

exercise his discretion.

MR KABLE:  Did not exercise that discretion; that must

follow, Your Honour, I would have to make that

concession, that if - - -

GAUDRON J: And I must say, that being so, it is only fair

that I should tell you I cannot ·understand why

His Honour was making the findings that he did

Stewart 5 10/6/94

unless directed to the ordinary exclusionary

discretion.

MR KABLE:  Your Honour, I am not going to seek to go over

what I have done before, because it would neither

be polite nor appropriate. What I am going to

submit is, however, that if there is any suggestion

that the alternative interpretation would be

available to His Honour's finding, then the special
leave point still arises because there is a live

issue as to whether that passage in Domican should be applied by a trial judge conducting a voir dire,

or if not a voir dire, ruling upon the

admissibility or extent of his discretion.

DAWSON J:  I do not understand that. I am not suggesting

that the trial judge did it here in any event, but

if he had and said, "Well, look, in the

circumstances this evidence, if it were the only

evidence standing against the accused, would be

highly prejudicial and I think that it would be

wise in the circumstances to exercise my discretion

to exclude it." But is he not entitled to say,

"But having regard to the other evidence, I do not

think the prejudicial effect of this evidence would

be such as to justify me excluding it." Why can he

not do that?

MR KABLE:  He cannot do that for two reasons, we would say,

Your Honour. Firstly, we would say to do so would

be contrary to the principle articulated in the

passage I have just read - - -

DAWSON J: There is no principle there. The trial judge is

not absolved from warning the jury as to

difficulties with identification evidence just

because there is other evidence.

MR KABLE:  It is not just a question of not absolved from

the responsibility of warning, it is the imperative

to the trial judge to warn about the identification

evidence as evidence as a discrete part - that is,

do not give the warning and then dilute it by

saying, "But on the other hand you have got all

this other important evidence." As I read - and I

may be reading too much in - but as I read that

paragraph the imperative to the trial judge, and

the criticism of the Acting Chief Justice of New

South Wales in that paragraph was that when there

was the identification evidence which deserved a
warning, it diluted the effect of the warning by

tying it into the other evidence.

Now, if a trial judge is conducting a voir

dire - - -

Stewart 6 10/6/94

DAWSON J:  He should not dilute the effect of the warning

but the jury is entitled to look at the

identification evidence in the context of the other

evidence.

MR KABLE:  Absolutely. I am not submitting that the jury is

not entitled to but what I am submitting is that

the principle well espoused in this case, that two

bad identifications do not strengthen each

other - - -

DAWSON J:	The jury were told that.
MR KABLE:	Yes, but I was trying to come back to

Your Honour's question. A trial judge in a

fact-finding role on a voir dire ought not to

direct himself differently and warn himself
differently than a jury because, of course, he has

the knowledge that the Full Court does not

attribute to him, but the High Court does, of the

frequency with which these cases can go off the

rails, if I may use that phrase, and the submission

I make - and that is in answer to Your Honour's

question - is that if there is an adjudication as

to admissibility or, more correctly, when will a

discretion be exercised in favour of an accused
person, then that voir dire has as its primary

source of inquiry the nature of the prejudicial

effect, all evidence is prejudicial, so it is not

just that it is prejudicial or inimical to the

interests of the accused, it is that it might be

wrongly used. That is what grounds the discretion.

And we would say that the phrase that has been used

in some Victorian cases of "irrationally

impressive" is a good phrase to use and we would

say that that is the vice to which it is directed.

So that the answer to Your Honour's question,

flowing from the answer to Your Honour

Justice Gaudron, was if it is open to say that the

trial judge did not undertake that task, that is

undertake an investigation as to whether this evidence was so capable of being irrationally

impressive as to require him to exercise his

discretion, then the Full Court compounded the

error and the nature of the error in the Full Court

is of such magnitude as to warrant the grant of

special leave.

Now, that is the basis upon which I put the

submissions in respect of each of these applicants.

These are, perhaps, better set out, and the Court

no doubt will have read pages 277 to 279 which were

the summary of arguments filed on behalf of the
applicants and they appear, if it please

Your Honours, in volume 2, particularly (i) and (j) on page 279.

Stewart	10/6/94
MASON CJ:	I must say for my part I do not see that Domican

has anything to do with the exercise of discretion. exercise of discretion but I just do not see

Domican dealing with that at all.

MR KABLE:  The answer that I would give to Your Honour is

this: given that the existence of the discretion is

acknowledged, as I understand it, by the Crown, and

certainly in a number of cases in Victoria, the

issue then arises what will properly activate the

discretion. The test is whether the prejudicial

effect, in the meaning that I gave that phrase

earlier, outweighs the probative value. The

content of the test, I would submit, and the

factors relevant to a trial judge satisfying

himself will, I submit, be found in the comments in

Domican. That is the basis on which I seek to

bring Domican into that task.

MASON CJ:  I follow that. But I still do not see that

Domican deals with it.

MR KABLE:  Your Honour, I cannot give a better answer to

Your Honour than the one I have. They are the

matters that I would raise in support of these

applications, if it please the Court.

MASON CJ: Thank you, Mr Kable. The Court need not trouble

you, Mr Bongiorno.

The Court is not persuaded that any

miscarriage of justice arose by reason of the

admission of the evidence of identification given

by the Elliots and Heath or the directions given by

the trial judge with respect to that evidence. The

applications are therefore refused.

MR KABLE:	May it please the Court.
AT 12.08 PM THE MATTER WAS ADJOURNED SINE DIE
Stewart	10/6/94