Tesic v The Queen

[2020] HCATrans 159

[2020] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B20 of 2020

B e t w e e n -

IVAN TESIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.D. LANGE, for the applicant.  (instructed by One Group Legal)

MR D.C. BOYLE:   May it please the Court, I appear on behalf of the respondent with MR M.T. WHITBREAD on behalf of the respondent Crown.  (instructed by Office of the Director of Public Prosecutions (Qld))

NETTLE J:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, at application book page 94 in her Honour’s concluding paragraph [178][, Justice Lyons reached a conclusion expressed in principled terms concerning this appeal which focused solely on the unreasonable ground.  Her Honour did so after what, with great respect, was a most comprehensive and focused examination of the material which is the material proper to be examined in that fashion in just such an appeal.  In particular, we draw to attention, as your Honours have seen from the exchanged written submissions, and from their Honours’ reasons below, to the way in which there were multiple foundations for the conclusion reached by her Honour.

First of all, this was a case where there was a great concreteness, real detail, and an impressive overall impression given by what are, within the jargon of these cases, called “acknowledged discrepancies” in the evidence.

Your Honours appreciate that this was a case, perhaps unusual but nonetheless important to note in the context of the proper appellate method, where it was virtually common ground that without acceptance of the truth and accuracy of the pseudonymous White’s evidence, there could not be a safe conviction. 

Thus the cliché “acknowledged discrepancies” focuses upon the extent to which the cross-examiner plainly yielded the demonstration to the jury, from the witness’ own mouth, of discrepancies involving previous very considerable lies, lies which, if not uncovered, would obviously have caused considerable detriment to the administration of justice.

EDELMAN J:   Mr Walker, against that the jury would have had to have weighed the case that was put for the defence about the purpose for Mr White’s travelling to Sydney and the considerable discrepancies in the defence case on that matter.

MR WALKER:   Your Honour, first of all, of course it is true that it is all the evidence, including in support of what might be called a defence case that has to be weighed by the jury but, in our submission, it is still the Crown case – I do not mean confined to evidence led by the Crown – I mean it is still the Crown case that all the evidence taken as a whole eliminates reasonable doubt, which is both the task for the jury at a properly conducted trial, and also the target of the test for the appeal on the grounds of unreasonable verdict.

In our submission, some of the discrepancies to which her Honour turned detailed attention, to which I will come by way of example, were such that they both raised and left a reasonable doubt that could not have been resolved by any supposed advantage the jury had, bearing in mind that, like those reading the transcript, the jury had before them the to and fro and to and fro of the acknowledged lies and choice between different versions played out graphically by cross‑examination on inconsistent versions. 

There was, for those reasons, in our submission, again, in the acknowledged language of the principles in question, an understatement in her Honour concluding in the phrase that the evidence in question, critical as it was to the Crown case, “was redolent with inadequacies”. 

Then, we come to the third, namely “incurably tainted”.  There does not appear to be any way in which the majority in the Court of Appeal dealt with the quite extraordinary and, in our submission, reprehensible circumstances identified and carefully characterised by her Honour concerning the obtaining of the statement from White. 

It was an obtaining that started with a prescription or specification of what the evidence yet to be produced by a then unwilling possible witness should do.  It was not in unexceptionable terms such as “Describe your activities between such and such a date and another date” or “Describe all your dealings with a certain person” but rather that it had to implicate our client in relation to an element, in particular for present purposes, of a possession charge and, in particular, in relation to a period – that is a time – when such evidence would be germane, to make out a police theory of that case.

NETTLE J:   Is not your difficulty that Justice Boddice acknowledged that terrible fact, but nonetheless then identified facts which objectively corroborated White in the matters that went directly to the applicant’s guilt. 

MR WALKER:   It is certainly something I need to come to, and I intend to very quickly.  May I, in first response to your Honour Justice Nettle, remind your Honours that at page 95 at paragraph [184] his Honour certainly acknowledges in compendious terms the analysis that we urge is the compelling one, that in the dissent.  His Honour in particular refers to the circumstances in which White came to give the detailed statements implicating the appellant in that offence. 

In our submission, they certainly, at the very least, amount to reasons why the jury ought to examine closely that evidence.  But in an appeal based on unreasonable verdict, in our submission, it also requires the appellate judges themselves to reach a conclusion so as then to ponder the proper question recognising the difference of function of judge and appellant – appellate judge and jury in inquiring whether the doubts the judges feel are doubts which might be resolved by the advantage possessed by the jury. 

EDELMAN J:  Has that ever been part of the M test, or are you suggesting a modification of the M test?

MR WALKER:   Your Honour, I am not bold enough to suggest that either this case as a vehicle or that in general as a matter of doctrine the M test needs to be revisited either to break it up in the fashion that I just described.  Rather, I am suggesting it is part and parcel an accepted part and parcel of the M test – that it is for the judges to assess the strength of the case against the test.  Was it not open - the onus being on the appellant - to the jury to be satisfied beyond reasonable doubt - a question which can only be answered by the judges forming a view for themselves and being astute to ensure that they do not merely substitute their view as a pseudo jury on transcript for the view taken by the actual jury who heard and saw the evidence.   

EDELMAN J:   What if, in a case such as this – or many other similar cases – the appellate judges say to themselves we have not seen any of the crucial evidence being given, the manner in which Mr White gave his evidence, the manner in which a number of the other witnesses gave their evidence may have been crucial – we just cannot form a view about this but the jury had and we think that view is open to the jury.  Is that not an acceptable mode of reasoning?

MR WALKER:   No, it is not.  There is great peril in that mode of reasoning – that it says of a verdict from a properly directed jury at a fairly‑conducted trial that it is automatically an answer to an appeal on the unreasonable ground.  It is, of course, the case that the jury accepted the evidence.  They could not have convicted otherwise.  That comes from the, as I say, virtually common ground that White’s evidence was crucial.

When we say, “White’s evidence”, those parts of White’s evidence which inculpated rather than raised reasonable doubt.  But it is, in our submission, for the judges, having made that assessment for themselves, then to ask, in order not to usurp the role of the jury, whether these are doubts of a kind which, in the circumstances of this case with this material, could have been resolved by the jury having the advantage to which Justice Edelman has just referred.

It can never be correct simply to say the judges were never in the position of the jury, therefore there may always be something in the jury’s appreciation of the matter which could explain what the judges regard as a reasonable doubt raised and left.  That would be to render the unreasonable ground of appeal close to a dead letter, at least in the case of a fairly conducted trial with a properly directed jury.

NETTLE J:  You might have a reasonable ground if there were not corroborating evidence as to the essential facts that Justice Boddice…..

MR WALKER:   If I could go to pages 96 and 97 – I am sorry, I will go back to 95.  In paragraph [188] his Honour uses the expression “independent evidence”.   That means evidence not relying, we think, upon the credibility of White which had been, in our submission, damaged beyond repair from the point of view of asking has this eliminated reasonable doubt.  It is not a question of mere probabilities.  It is a question of beyond reasonable doubt.  Was it open to find on the basis of that evidence reasonable doubt? 

Now, none of the evidence referred to in [189] to [190], none of that evidence of course came anywhere near compelling the degree of control which was the essential integer required for the possession case.  As for the “chicken burger” dialogue, in our submission, on no view could it contribute towards the elimination of reasonable doubt concerning the requisite control with respect to an alleged consignment of drugs.             This is a control which, it may be said with some morbid humour, that, if that is control in relation to the very straightforward task of obtaining a chicken burger, it was extremely ineffective control.

Furthermore, the evidence referred to in paragraph [194], with respect, has been greatly over‑egged by the majority.  The “I didn’t know we were coming here”, by no means – and Justice Lyons points this out – contradicts the notion of a trip to pick up material from storage.  It refers to the time and place, by contrast with the expectation that there would be a chicken burger obtained from somewhere else.  It by no means contradicts the notion that the trip was for the purpose of retrieving something from storage.

Under paragraph [195] it was, in our submission, to endorse a form of speculation by the jury to simply find that it was open to the jury to find that evident - his Honour correctly points out:

significant, notwithstanding the serious concerns in relation to . . . reliability and credibility –

but does not, in our submission, address the question with respect to whether that was evidence upon the basis of which, combined with all the other evidence, it was open to find beyond reasonable doubt and, in our submission, the notion that that evidence – the chicken burger being late, the finding himself storage when he had not expected to – that supports evidence concerning being subject to control and direction is in our submission very puzzling, in particular, in relation, for example, to going off to storage at somebody else’s behest while he understood that the supposed controller would like a chicken burger, which was not being forthcoming.

One sees in [197] Justice Boddice then referring to what his Honour called “another particularly compelling factor”.  Paragraphs [197], [198] and [199] are of course perfectly equivocal as to control by the defendant.  Indeed, one might say that they scarcely go towards control at all because they involve assumptions concerning what was involved in the notion of picking up something for the accused’s brother, in particular in relation to the simultaneous necessity of the presence of the brother at times and places in Sydney, none of which was, in our submission, explained by the majority but all of which are persuasively shown not to be capable of eliminating reasonable doubt by Justice Lyons.

Again, the formula that his Honour adopts at the foot of paragraph [199] on page 97 that it was open to find that evidence supportive of the drugs being under the control of the appellant.  With respect, it is very difficult on the face of things, particularly in light of the demonstration to the contrary by Justice Lyons, to see how that is anywhere near capable of removing reasonable doubt concerning the demonstration of that fact.

Paragraph [200] involves possibly a circularity or an assumption.  Certainly, if one assumes the nefarious involvement by control so as to entail possession on the part of the accused, the scenario noted in paragraph [200] might be consistent but that scenario is by no means the only reasonable inference from that material.  One obvious inference that Justice Lyons draws to attention are the other named perpetrators including Ross whom White feared and, therefore, lied concerning his involvement in earlier iterations of the supposed evidence, were involved quite independently of the accused and none of the material was capable of removing that as a circumstance and it constituting a powerful reason reasonably to doubt the truth and accuracy of White’s implication of the accused.

NETTLE J:   You are taking each of these pieces of circumstantial evidence seriatim rather than in aggregate as the jury would have been directed to do.

MR WALKER:   Your Honour, I hope I am not committing the piecemeal error.  Obviously, I can only deal with them one at a time.  I accept entirely and without qualification that it is the aggregate and the overall understanding of the impression given in their different ways by the combined force of the evidence that is the one and only proper approach. 

But taking them seriatim because I can only speak with one voice as I go, nonetheless, it is our submission, that the proper approach which was taken by Justice Lyons which necessarily has to deal with the detail of the evidence and then steps back to look at the overall impression available to the jury, that is, was it not open to the jury to be satisfied beyond reasonable doubt given these objective features of the evidence, that, in our submission, was proper method and that is why, in our submission, the one by one set of observations, for example, by Justice Boddice adopted, in effect, by Justice Morrison is, in our submission, not an approach that this Court should countenance.

EDELMAN J:   What about the additional matters to which Justice Morrison refers, for example, the matter at paragraph [22] where he talks about the failure of Mr White to make any:

attempt to transfer the six bottles of methylamphetamine oil to his own vehicle?

MR WALKER:   Your Honour, the speculation there is, as I say, one that cannot involve the proposition that you start with the conclusion of guilt.  If you do not start with the conclusion of guilt that is obviously consistent with the transport having been done either on his own account or for someone else and with no need for him to transfer at any particular time a drug from a vehicle which it was known he had access to and not just on a commissioned trip to Sydney.

That is our answer to the supposed striking fact referred to in paragraphs [200], [201] and [202].  In [202], his Honour Justice Boddice uses the word “striking” to describe the fact that it was not all‑or‑nothing in terms of control of drugs according to White by the accused.  In our submission, that is a most unpersuasive approach when one considers that the man’s own vehicle had been searched so as to produce “other drugs” in amounts that did not resemble that which had been found in the so‑called silver utility.  It would have been striking if somebody had tried, as it were, an implausible job lot as compared to what he actually pleaded to. 

It is for those reasons, in our submission - I hear the buzzer - that this is a case which provides a straightforward vehicle to vindicate the correctness of the approach taken and the care shown in Justice Lyon’s reasons.  May it please the Court.

NETTLE J:   Mr Director.

MR BOYLE:   If the Court pleases.  The jury, in convicting the applicant, must have accepted the evidence of Bradley White beyond reasonable doubt that the applicant gave him the liquid methylamphetamine with the instruction that he transport it from his residence in Sydney to his residence on the Gold Coast.  We have seen that the jury must have found him credible and reliable in that respect.  This case very much turns on the credibility of Mr White and the jury’s subjective assessment of him.

EDELMAN J:   What do you say to Mr Walker’s submission that in approaching an unsafe and unsatisfactory submission, an appellate court should actually form the view for itself, whether itself it believes that the appellant is guilty beyond reasonable doubt, taking into account the findings of the jury and all of the other objective facts?

MR BOYLE:   Your Honour, my submission would be that that is one where the test, as posed in M, is that it is from the perspective of the jury and, in my submission, it would not be appropriate for the court to, whilst they have to conduct an independent assessment of the evidence, it would be taking it too far to say we are not satisfied beyond a reasonable doubt, therefore the jury must have had a - the jury’s verdict is therefore unsafe. 

I know Mr Walker points to - there is that line between that point of substituting the verdict of the appeal court as opposed to the decision of the jury, but the case of Chamberlain (No 2), a conviction cannot be disturbed simply because the appeal court disagrees with the jury’s conclusion.  Your Honour’s question to Mr Walker, it is pertinent to note from the decision of the Court in Pell at paragraph 37, the Court states that:

generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box.

So I rely effectively on all of that paragraph 37 in that respect.  It has been confirmed by a number of courts and in fact even by the majority – or I should say even by all members of the Court – the sanctity of the jury verdict and that the court cannot substitute its own view for the view of the jury. 

Your Honours, the decision of Justice Lyons, her Honour definitely undertook a comprehensive analysis of the evidence and the majority judgments do adopt her Honour’s facts, and that is Justice Morrison at paragraph [1] and Justice Boddice at [179].  The court does weigh those factors against the factors which the court itself considered to be important. 

His Honour Justice Morrison refers to the many inconsistencies and lies of Bradley White and at paragraph [2] his Honour sets out that there are a number of uncontested matters which may lead a jury to accept White’s evidence.  So the fact that the majority did not go and disregarded these factors but does refer to - for example, at paragraph [23] Justice Morrison refers to “even with all the flaws” in the evidence and Justice Boddice at paragraph [184] refers to lies and the circumstances in which he came to give the statement.  At [185] he says that:

It does not, however, follow that it was not open to the jury . . . to be satisfied beyond reasonable doubt –

and his Honour refers at paragraph [205] to:

An independent assessment of the evidence as a whole, allowing for the significant inconsistencies –

So the statement that is raised on behalf of the applicant is whether the court should ask itself whether it harbours a reasonable doubt.  In my submission it always has to be from the jury’s perspective, and that was some of the wording which the majority of the court took into account.  The problem with going into the area of the - the province of the jury was highlighted in Baden-Clay at paragraph [66]. 

Now, the ultimate question is whether the court thinks upon the whole of the evidence it was open to the jury to be satisfied that the accused was guilty, and the issues of credibility fall squarely here, as per Pell at paragraph 37, and it does not lead to a conclusion that the verdict was therefore was unsafe.

In this case the person White had a motive to lie, but it does not logically follow that if a person does have a motive to lie that he is therefore giving an untruthful account.  In this case the great – well, it is a significant discount in the sentence in which he obtained – is something which was put in place by legislation. 

Now, the factors of that and the discount – significant discount and the fact that it could go back to the court for him to be resentenced if he did not comply with his undertaking – that was all explained to the jury and the court certainly, at the book, the application book at pages 10 to 11 makes a clear warning, and it is an appropriate case for such a warning but it does not mean that that evidence is to be rejected, otherwise the statute itself would have no utility. 

The judges did take into account the fact that – that is the appeal judges – did take into account the warning given by the trial judge, and, in particular, there is Justice Morrison at paragraph [23] refers to the “sternest possible warning”, Justice Bodice at [183] refers to “appropriate warnings”, and 185:

forceful observation by the trial judge as to the jury having reasons why it ought not to accept –

his evidence.  That warning was considered in this way by Justice Boddice at paragraph [204]:

supports a conclusion that . . . after having regard to the extensive directions as to the elements of the offence and the need to scrutinise White’s evidence with extreme care -

Now, the basis for a warning is that generally a lay member of the community would not understand or comprehend the risks of miscarriage of justice.  My submission is that the Court of Appeal would be acutely aware of such a risk and those matters would have been – or seen to have been – properly considered.  At least in the submissions, it was submitted on behalf of the applicant that…..the lens of judicial experience.  But, in my submission, the jury were given full directions and it is not a complicated scenario that the jury would be able to see that if you did not give that statement you would be serving a very long time in prison.

So, in my submission, there is nothing further that the court could take into account beyond what was contained within that warning.  In my submission, the principles of the unsafe, unsatisfactory or – I am sorry, I should say unreasonable verdict and the verdict cannot be supported having regard to the evidence - those principles are well settled by the Court and, in my submission, it is unnecessary to expand them to the question of approaching the evidence with a lens of judicial experience as proposed in the case of the – suggested, at least in the outline by Mr Walker. 

Again, for the same reason that it would fall into a category of case which, as was said about substituting the view of the Court of Appeal, of matters that were not considered or put before the jury, therefore it would impinge upon the rule about the Court of Appeal – it being a decision of the Court of Appeal as opposed to the decision of the jury.  All members of the court in this case were mindful of that principle.  That is at paragraphs [24], [133] and [181]. 

Given that they were given such an extensive warning it was then a matter for the jury – having seen and heard Mr White – whether they accept his evidence.  They have to pay full heed to the warning and then scrutinise his evidence and then decide whether, at the end of the day, they could accept his evidence beyond reasonable doubt or accept, at least, as to its truth and accuracy beyond reasonable doubt with respect to the providing of the drugs and the transport ‑ directions as to transportation of the drugs.

This is not a circumstantial case in the sense that it rests substantially on circumstantial evidence.  But the submission by the Crown is that there were a number of facts which seemed to be accepted where it tends to support the evidence of Mr White.  As your Honour Justice Nettle referred to the fact that it is the combination of those circumstances that lead to the position that his evidence – there is some support for his evidence.

But I would have to accept that, as circumstantial evidence goes, the Crown is not saying without the evidence of Mr White the jury would accept that the only rational inference is the involvement of the accused.  We are not going to that degree.  But all I am submitting is that it is used in the context of supporting the evidence and it is a case of direct evidence from White as to sworn testimony. 

Those factors are that he went to the applicant’s house in his own vehicle which had a secret compartment for storing drugs.  He then drives the applicant’s utility to Sydney which has its own secret compartments.  He obviously goes to the address, at some stage, of the applicant and then drives the utility back to Brisbane and the car is found outside the applicant’s house and the accused – sorry, Mr White, was not – had not previously used the applicant’s utility for the purpose of his drug‑related activities. 

Now, the combination of the circumstances is that there was an explanation that he was going to Sydney to help relocate wheels and tyre rims and collect personal items which is inconsistent with the fact that a truck was used for that purpose and also, in my submission, the text messages between White and the applicant and his brother suggest movements inconsistent with that purpose.  The defence case was that White was transporting his own drug‑dealing – drugs for his own drug dealing and that the applicant had no involvement in it. 

Well, if that were the case, he would, in my submission, logically use his own utility which did have a secret compartment and, as your Honour Justice Edelman referred to, on return there was no attempt to transfer the drugs to his own car.  Further, if there was an attempt to protect himself he did not attempt to attribute ownership of the cash or the other drugs found by police to the applicant.  Unless there is anything further, those are my submissions.

NETTLE J:   Thank you, Mr Director.  Mr Walker, any reply?

MR WALKER:   May it please your Honours.  Your Honours, one thing that was striking about the trial about which there seems to be common ground in this application is that notwithstanding massive covert surveillance resources applied for the purpose of investigating my client over a long period, including for the trafficking charge upon which the jury could not agree and on which nolle prosequi has been entered, nothing at all that we would submit amounted to independence, let alone corroborative evidence, was thus yielded. 

That is why in paragraph [23] of Justice Morrison’s reasons the notion of describing the matters that have been written about and discussed in this application as providing an independent basis or an accepted basis of fact in relation to attributing the six bottles to our client is, with respect, a misdescription. 

At best, they provide a not inconsistent set of circumstances by no means expelling other reasonable inferences for the relationship between White and the applicant absolutely necessary for the thesis of control.  They certainly, as I say, by providing, in some cases, circumstances not inconsistent with that relationship, go nowhere to removing reasonable doubt raised by the matters to which we have paid attention. 

Your Honours, it is of first importance as a matter of principle, in our submission, in applying the statute in question, that is, the appeals statute, that one does not say of a trial characterised, as this one was, by impeccable directions and appropriately stern warnings, that there is no room left for challenging the sufficiency of the material in the assessment of the appeal judges to expel reasonable doubt.

Now, true, the onus on appeal is for us to have shown that it was not open to be satisfied beyond reasonable doubt, and that is a process which necessarily involves the judges doing something that the jury does not do for itself, that is, the jury is posed with an exactly opposite onus.  It is for those reasons, in our submission, that there is nothing involved in the accepted method, that is accepted by the respondent here, that the judges have to perform their own assessment of the evidence.  There is nothing there that runs counter to the primacy which is, obviously, the law with respect to a jury verdict.

All that amounts to saying, which, in our submission, is both axiomatic and departed from in this case, is that the existence of the verdict from which the appeal is sought to be made is not itself an answer to the appeal.  How could it be? 

Your Honours, we do make the point that it cannot possibly be that there is some kind of statutory pre‑emption by section 13A of the Penalties and Sentences Act with respect to the understandable and, it would appear, accepted by all three judges below, diminution of credibility imported by the circumstances in which White’s evidence was obtained and presented.

It is for those reasons, in our submission, that when one adds those circumstances to the admitted, that is, acknowledged departure from the truth that one sees analysed by Justice Lyons from pages 67 through to page 70 of the application book, for very important dealings, that it is just not possible to say that this is a case where the jury have some advantage over and above the judges in assessing the status of necessary feeling of reasonable doubt, given the admitted lying about such important matters by the essential witness.

Coupled with the circumstances of the obtaining of that evidence, in our submission, this is a compelling case for the vindication of the approach taken by Justice Lyons, and it provides an appropriate vehicle for that, bearing in mind the impeccable directions, the fairness of the trial, and the concentration only on the question of what happened by reason of the crucial witness admitting, acknowledging, his own lack of truthfulness on critical matters.  May it please your Honours.

NETTLE J:   The Court will now adjourn to consider this matter briefly.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.20 AM:

NETTLE J:   The Court is not persuaded that this matter raises any question of principle as to the application of the test in M v The Queen or that otherwise it would be in the interests of justice to grant special leave.  The application for special leave is dismissed.

MR WALKER:   If it please the Court.

NETTLE J:   The Court will now adjourn.

AT 10.21 AM THE MATTER WAS CONCLUDED