Taylor v The Queen

[1996] HCATrans 83

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S94 of 1995

B e t w e e n -

LAWRENCE THOMAS TAYLOR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 11.42 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear in this matter with my learned friend, MS N. RUDLAND.  (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR K. MASON, QC, Solicitor‑General for New South Wales:   I appear for the respondent with my learned friend, MR P.G. BERMAN.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

DAWSON J:   Mr Norrish.

MR NORRISH:   If your Honours please, this is a matter where there is an application for an enlargement of time.  The application for leave to appeal was filed out of time and the basis of that application is set out in the last part of the papers that were filed and form part of the appeal book.

DAWSON J:   What is the period of time?

MR NORRISH:   The appeal was decided on 18 April.  The application was filed on 19 July.  Advice was actually given to the Legal Aid Commission on ‑ ‑ ‑

DAWSON J:   It is the same problem.

MR NORRISH:   The same problem.

DAWSON J:   Maybe you cannot answer the question, but what is being done to correct it?

MR NORRISH:   I cannot answer that question directly.  I must say in this matter there is a complication in that the brief was held by two other barristers before myself who were unable to complete advice in relation to the matter and that was a contributing factor to the ‑ ‑ ‑

DAWSON J:   That is not a very impressive explanation, is it?

MR NORRISH:   It may well be not impressive, your Honour, but unfortunately that was the fact of the matter which contributed to the delay.

DAWSON J:   This is not directed at you personally ‑ ‑ ‑

MR NORRISH:   No, I understand, your Honour.

DAWSON J:   ‑ ‑ ‑ but the time must come when the Court adopts a stricter attitude towards these applications for extension of time.  They are occurring all too frequently, but that being said, you proceed.

MR NORRISH:   As your Honour pleases.  Your Honours, if I might deal with the last two special leave issues first concerning the appropriateness of the granting of a voir dire examination and the circumstances in which that should occur.  In this matter the court held at page 35 of the appeal book line 50 and following that:

it is a matter for the discretion of the trial judge as to whether a voir dire examination should be held in relation to an application to exclude evidence in the exercise of his or her discretion.

The issue of whether it was a discretionary matter for the judge in terms of admitting the evidence is, of course, another issue to be dealt with in relation to the first special leave point.

GAUDRON J:   But what purpose was to be achieved by a voir dire?

MR NORRISH:   Firstly, to ascertain the nature of the information that the Crown prosecutor desired to put to the doctor to determine whether the questions themselves were admissible in the form in which the Crown proposed to pose them.

GAUDRON J:   We were not worried about the form in this case, were we?  We were worried about the substance of the questions to be put.

MR NORRISH:   Even if one puts aside the issue of form, if one goes to the substance of the question and the doctor had given evidence on the voir dire which either sought to explain the situation in a way in which it might not reflect adversely upon his character ‑ ‑ ‑

GAUDRON J:   So you wanted a dry run.

MR NORRISH:   No.  I mean, that takes up one of the secondary aspects of the matter we raised in relation to the granting of a voir dire examination, the misapplication of an irrelevant consideration to determine whether the discretion, if it was a discretion, ought be applied.  In our submission, it was quite wrong of the court and the trial judge to take the view that a tactical consideration was a relevant matter for the judge to take into account in determining whether a voir dire examination ought be granted and the reason for that is tied up with our primary submission, that where an issue of fact has to be determined or facts have to be determined to ascertain the admissibility of either questions or evidence, then the trial judge has no discretion but ought grant a voir dire examination when the voir dire examination is sought.

GAUDRON J:   Primarily you put this ground on the basis that it was necessary for a sound exercise of the discretion to exclude otherwise admissible evidence.

MR NORRISH:   It may depend upon whether this Court took the view that it was admissible evidence in any event, but subject to that qualification, yes, that is correct.  The Court of Criminal Appeal held that the issue of whether a voir dire examination ought be held was a discretionary decision, where the evidence to be admitted or, alternatively, the questions to be asked, were admissible or acceptable in the exercise of a discretion.  In our submission, the issue of discretion to conduct a voir dire examination does not turn upon the issue of whether the material sought to be adduced is admissible in the exercise of a judicial discretion and, as I said earlier, where, whether the matter is one of discretion or strict admissibility, the trial judge is required to determine facts in order to establish the issue of admissibility or determine the issue of admissibility properly, where a voir dire examination is asked for, it ought be granted.

DAWSON J:   But what facts were required to be determined here?

MR NORRISH:   Firstly, what questions the Crown wished to ask.

DAWSON J:   They are not facts, not in the relevant sense.

MR NORRISH:   In this case it was somewhat relevant to the situation because the Crown had told his Honour that there was material that they wanted to put to the doctor.  The concern of counsel for the applicant, quite properly, was that the whole purpose of the former medical practitioner’s evidence would be ‑ ‑ ‑

DAWSON J:   You may put the question, someone objects, the judge rules.

MR NORRISH:   Yes, but the very nature of a voir dire examination is to enable a judge to determine admissibility where the responsibility of the issue falls for the judge alone.

DAWSON J:   It is a question of whether the question is allowable or not, not the admissibility of evidence.

MR NORRISH:   Yes, but, your Honour, my submission is that this was an unusual case where the issues that the judge had to determine in terms of the admissibility of the material was, firstly, the nature of the questions asked coupled with the answers given by the former medical practitioner to determine whether ‑ ‑ ‑

DAWSON J:   The issue was whether the prosecution were entitled to ask in cross‑examination questions of the witness about his past professional misconduct.

MR NORRISH:   Yes.

DAWSON J:   That is a simple enough thing.

MR NORRISH:   But if one goes back to the issue of whether the evidence would be admissible in the exercise of a discretion, the answers of the doctor were critical to the issue of whether the jury should hear the questions at all.  If these matters were matters solely concerned with the general character of the doctor and the Crown was bound by the answers that the doctor gave, it might transpire that the ‑ ‑ ‑

DAWSON J:   If you were going to have a voir dire every time a question was objected to or might be objected to in order to determine whether the objection would succeed, a trial would never end just because one side did not like the nature of the question being before the jury.

MR NORRISH:   Your Honour, this was not a matter of a  voir dire examination being conducted in relation to a single question.  This was an application made in relation to a line of questioning that the Crown desired to pursue in relation to the doctor which touched upon the issue of whether his expert opinion could be accepted in the trial.

DAWSON J:   The first question along that line would raise the issue, the judge would hear the argument and rule.

MR NORRISH:   The first question, I would suggest, plus the answer of the former medical practitioner, but, in my submission, a voir dire examination properly conducted would not have turned upon one question.  It would have required, in our submission, an examination of the whole issue and an examination of the whole issue involved, I would expect, a number of questions with the former medical practitioner’s answers taken into account to determine whether, if that material was before the jury, in keeping with the test relevant to evidence on credit, did it logically and irrevocably reflect upon the issue or cast a light upon the issue as to whether the doctor’s veracity or reliability as a witness could be questioned and it was not a matter, in our submission, of determining the issue by reference to simply posing the question first, having an objection taken and then having legal argument.

You see this matter arose in the context of legal argument in the absence of the jury and it was made an issue by counsel for the applicant indicating that there was a problem with the applicant’s case about to start and he wanted resolution of the problem.

DAWSON J:   All right.  The judge ruled, whether he was right or not, on holding a voir dire, the judge ruled that the questions could be asked and then the witness did not materialise.  Now, what is your complaint about that?

MR NORRISH:   We say this in relation to that aspect of the matter, your Honours, that the facts of the matter are that the witness was not called, it was clear that he was capable of giving relevant evidence to a crucial aspect of the applicant’s case.  It may well be argued another doctor could have been called or ‑ ‑ ‑

DAWSON J:   Maybe he could have, but he did not want to be called - someone did not want to call him because he was going to be cross‑examined as to his credit along the lines which the judge had allowed.

MR NORRISH:   Exactly, and to that extent it was a tactical decision, but it was a tactical decision forced upon the applicant’s counsel by reason of the failure of the trial judge to conduct a voir dire examination and a proper examination to determine whether the line of questioning was acceptable or the evidence given in relation to those questions was admissible or not and to that extent, as it be relevant to the importance of the issue, it deprived the applicant of the opportunity of leading evidence, we would respectfully submit, with relevance to the critical issue in the case as far as the applicant was concerned, that is ‑ ‑ ‑

GUMMOW J:   Deprive you of the opportunity of leading evidence from this prospective witness.

MR NORRISH:   I apologise.  From this witness and there ‑ ‑ ‑

DAWSON J:   But what form would the voir dire have taken?

MR NORRISH:   I would have expected that it would have involved the Crown being invited to question the ‑ ‑ ‑

DAWSON J:   The Crown would question the erstwhile doctor and say, “You are now a forensic consultant.  You were previously a registered medical practitioner.  You were charged with misconduct.”  He would say, “Yes,” presumably, “And you chose to forego your registration in answer to the proceedings which were brought against you and you are no longer a registered medical practitioner.”  That would be the questions and answers.

MR NORRISH:   Not necessarily.  Counsel for the applicant would then have the right to cross‑examine him and ask him the circumstances of the allegations as he understood it, his reasons for asking that his name be withdrawn from the register, the truth of the allegations that were placed against him.  These are additional matters which might not necessarily have been incumbent upon the Crown to ask but would have been ‑ ‑ ‑

DAWSON J:   If your side had called him, those questions could have been asked.

MR NORRISH:   Yes, but that was precisely the problem that confronted counsel for the applicant that caused him to raise the matter in the absence of the jury prior to the commencement of his case and it is I think quite clearly set out in the transcript which is contained in the application book, he was deeply concerned that the trial would derail ‑ ‑ ‑

DAWSON J:   He was deeply concerned whether he should or should not call this particular witness because it might backfire on him and he chose not to and he probably chose wisely.

MR NORRISH:   It might backfire because of the jury being asked to determine issues of credit which might not have had any material relevance to the opinions that the former medical practitioner wished to express concerning the hand injuries formerly suffered by the applicant.

DAWSON J:   That was a matter for the jury.

MR NORRISH:   With respect, it is a matter for the judge to determine whether prejudicial material ought be before a jury if it is not going to assist the jury materially in the determination of the issues that are for the jury’s consideration.

GAUDRON J:   The fact that the Crown prosecutor made it known what it was she proposed to ask suggests, does it not, that the trial judge had made up his mind that to the extent that there was a discretion, he was going to exercise it in favour of the prosecutor?

MR NORRISH:   That would have involved an element of prejudgment, in our respectful submission, which would underline how much ‑ ‑ ‑

GAUDRON J:   It assumes maximum degree of prejudice, as it were, and it is not against you.  The prejudgment is not against you in that assumption.

MR NORRISH:   The prejudgment is against the applicant in the sense that if his Honour had formed that view before he heard any evidence on the voir dire he had not given proper consideration to the basis upon which the objection was raised, firstly, as to the line of questioning, nor had he considered the proper basis for determining how it ought be allowed.

GAUDRON J:   Yes, but I find it very difficult to accept that a trial judge needs to have the specific answers out in the open, as it were, before he can make a proper exercise of his discretion or a proper determination as to the admissibility of a line of questioning.

MR NORRISH:   The reason that the answers are important is because of the peculiar common law rule that relates to evidence or questions asked in relation to credit.  Ordinarily, save for some special exceptions, the cross‑examiner - the Crown in this case - is bound by the answers.  Now, if a number of allegations were put to the doctor which he denied which form the basis for suggesting that he was a person of bad character, the jury would be left with a situation of not having any evidence before them of the “bad character” of the former medical practitioner, yet the prejudicial effect of the questions being asked.

It might be cured by appropriate direction, but, in our submission, that is one of the very reasons that voir dire examinations are conducted:  to enable the court to make a decision about whether in all the circumstances, given the very peculiar nature of a trial involving judge determining issues of law and jury determining issues of fact, to make an appropriate decision as to what should be before the jury in the matter.  In MacPherson v The Queen, not in our A list but referred to in written submissions, this Court, and particularly Justice Mason, with some hesitation determined that when the voluntariness of a confession is raised as an issue a voir dire examination ought be held.  The form of the voir dire examination is, of course, very much for the trial judge and the parties.  It could be done by agreement between the parties as to the material placed before the court.

DAWSON J:   That is as to the admissibility of the evidence, not allowability, if I can use that word, of the question.

MR NORRISH:   The two issues cannot be separated, in our submission.  Admissibility of evidence may involve a determination of whether the question in form or substance is allowable or not, because at the end of the day in this particular circumstance the evidence - and using the word “evidence” in a general sense - that a jury has to consider is a combination of questions and answers.  Questions themselves are not evidence, but questions themselves can be highly prejudicial to a ‑ ‑ ‑

DAWSON J:   When you are talking about confessional evidence, you are talking about extrinsic circumstances that render the evidence inadmissible, although it is relevant, but when you are talking about whether a question could be allowed or not, you are just talking as to whether the evidence is relevant, in this case to credit.

MR NORRISH:   Yes, but, your Honour, one of the complaints and one of the special leave issues that we raise is that the voir dire examination, an important and integral part of the criminal trial process, is not ‑ ‑ ‑

DAWSON J:   It is too much an integral part of the criminal law process nowadays, if I may express my personal opinion.

MR NORRISH:   There may abuses of the voir dire examination, but this was not such a case.  This was a matter that could have been dealt with probably in 15 or 20 minutes to enable his Honour to make a proper judgment.  We submit that critical to our application is the central proposition that even if it was a matter, as was suggested or held by the Court of Criminal Appeal and his Honour, for him to exercise a discretion as to whether he should admit or allow the questions, where the issue turned upon a determination as to what the questions were going to be and, we say, what the answers to those questions might be, in other words, turned upon the determination of facts, it was a matter where, consistent with what this Court said in relation to the voluntariness issue for confessional material, he was obliged to conduct a voir dire examination.

We submit that there is support for that proposition in Sinclair v The Queen and there is support in Cornelius v The Queen and to that extent the issue, if it remains as the Court of Criminal Appeal has left it, as a matter where a discretion to conduct a voir dire examination only exists or exists in relation to the admissibility of evidence which is otherwise only excludable on the basis of the exercise of a judicial discretion is a misstatement of the law and requires clarification by this Court.  They are our submissions, if it please the Court.

DAWSON J:   Thank you, Mr Norrish.  We need not trouble you, Mr Solicitor.

Any appeal arising from this application would have insufficient prospect of success to warrant the grant of special leave.  An extension of time to make the application is granted, but special leave to appeal is refused.

AT 12.00 NOON THE MATTER WAS CONCLUDED